Court opinions issued Sept. 2, 2020

Am. Immigration Lawyers Ass'n v. DHS (D.D.C.) -- following multiple rounds of summary judgment briefing, finding that, with minor exceptions, U.S. Customs & Border Protection properly relied on Exemption 7(E) to withhold records concerning reference manuals used for inspection and admission process into the United States.

Jurdi v. U.S. (D.D.C.) -- ruling that:DEA properly relied on Exemptions 7(C) and 7(D) to categorically withhold records about third party who testified at plaintiff’s criminal trial, and that FBI properly relied on Exemption 7(C) in refusing to confirm or deny existence of similar records.

NAACP Legal Def. & Educ. Fund v. DOJ (S.D.N.Y) -- concluding that Office of Community Oriented Policing Service properly relied on Exemption 5’s deliberative process privilege to withhold draft assessment of North Charleston, South Carolina Police Department.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Anne Weismann steps down from CREW

Anne Weismann, FOIA ‘Guru,’ Exits Watchdog Group

Weismann is no longer the chief FOIA counsel for Citizens for Responsibility and Ethics in Washington, but will continue to serve as outside counsel in some of the group’s litigation.

By Jacqueline Thomsen, Nat’l Law Journal,  September 02, 2020

Anne Weismann, the chief FOIA counsel for the watchdog group Citizens for Responsibility and Ethics in Washington, has stepped down from her full-time role at the organization.

In recent weeks, Weismann has filed motions withdrawing from several federal public records lawsuits filed by the organization. She was listed on a brief filed in a CREW case Wednesday, but without her affiliation with the group and using a personal email address. She is no longer listed on the organization’s staff page.

CREW spokesperson Jordan Libowitz confirmed Wednesday that Weismann is no longer with the group full-time, but is working as an outside counsel on certain cases. Weismann declined to comment further.

Read more here (accessible with free subscription).

Court opinions issued August 30-31, 2020

Aug. 31, 2020

In re: Clinton (D.C. Cir.) -- reissuing opinion of August 14, 2020 with nonsubstantive revisions.

Aug. 30, 2020

Stanco v. IRS. (E.D. Cal.) -- dismissing suit because plaintiffs failed to administratively appeal from agency’s adverse determination, but granting plaintiffs leave to amend their Complaint to include allegations that they timely appealed agency’s response to a subsequent, duplicate request.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 28, 2020

Ctr. for Pub. Integrity v. DOD (D.D.C.) -- deciding that: (1) DOD properly withheld communications concerning agency’s Ukraine Security Assistance Initiative pursuant to Exemptions 3 and 6; and (2) and DOD properly relied on deliberative process, attorney-client, and presidential communications privileges to withhold records, with the exception of certain redactions on five documents.

Nova Oculus Partners. v. SEC (D.D.C.) -- finding that SEC properly relied on Exemptions 5, 6, and 7(C) to withhold records concerning agency’s investigation of plaintiff.

Bryan v. DOJ (D.D.C.) -- ruling that Civil Rights Division performed reasonable search for records pertaining to third-party informant who testified at plaintiff’s trial.

Nat’l Pub. Radio v. FBI (D.D.C.) -- determining that FBI performed reasonable search for videos depicting ballistics tests of certain types of ammunition, but that agency failed to justify withholding videos under Exemptions 7(E) and 7(F).

Am. Oversight v. GSA (D.D.C.) -- concluding that GSA failed to perform reasonable search for agency’s communications with Trump Organization, because agency misconstrued plaintiff’s request and did not justify its decision to limit search to emails.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Aug. 27, 2020

Cole v. Copan (D.D.C.) -- ruling that: (1) the National Institute for Standards and Technology (NIST) performed adequate search for interviews concerning the September 11, 2001 terrorist attacks in New York City; (2) NIST properly relied on Exemption 3 in conjunction with 15 U.S.C. § 7306 to withhold interviews of emergency response personnel; and (3) NIST failed to clearly show that it could not segregate non-exempt information from Exemption 6-protected information included in interview of private individual.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: FOIA Advisory Committee to meet Sept. 10th

The NAtional Archives and Records Administration has announced that the Freedom of Information Act Advisory Committee will meet virtually on September 10, 2020, from 1pm to 4pm. This will be the first meeting of the new committee term. The purpose of this meeting will be to introduce all of the members, hear a report from the co-chairs of the Chief FOIA Officers' Council Technology Committee, and discuss topics for the Committee to consider in the next two years. Registration information is available here.

Court opinions issued Aug. 25, 2020

Farah v. DOJ (D. Minn.) -- concluding that incarcerated pro se plaintiff constructively exhausted his administrative remedies even though Executive Office for U.S. Attorneys allegedly issued partial determination before plaintiff filed suit, because plaintiff alleged that he never received EOUSA’s determination and EOUSA failed to respond to plaintiff’s telephone messages regarding the status of his request.

White v. DOJ (S.D. Ill.) -- denying in part plaintiff’s motion for reconsideration of court’s summary judgment determination, and ordering hearing with respect to plaintiff’s motion to hold U.S. Marshals Service in contempt for delinquency and misrepresenting the Court.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Exemption 4 litigation trends

We Are Beginning To See Effects Of High Court FOIA Ruling

By Kevin Barnett & Nooree Lee, Law360, Aug. 25, 2020

It has been a year since the U. S. Supreme Court's Food Marketing Institute v. Argus Leader Media crafted  a new standard for determining confidential information exempt from disclosure under Freedom of  Information Act Exemption 4. 

Trial courts have started to weigh in on how the decision will impact the FOIA  landscape.  From these  early  decisions, three trends have emerged: (1) courts have protected more  information than previously  protected; (2) courts have required agencies to show confidentiality using much  the same information  required under the old standard; and (3) courts have been reluctant to tackle open  questions  about whether  to require agencies. . .

Read full article here (accessible with free trial subscription)..

FOIA News: Gov't FOIA jobs available

• Dep’t of the Interior, Supervisory Gov’t Info. Specialist (GS 14), Virginia, closes 8/24/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 11), Illinois, closes 8/24/2020

• Nat’l Oceanic & Atmospheric Admin., Gov’t Info. Specialist (ZA 4), Maryland, closes 8/25/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 7-9), Florida, closes 8/26/2020

• Ctr. for Disease Control & Prevention, Gov’t Info. Specialist (GS 9), Georgia, closes 8/28/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 12), New York, closes 8/31/2020

• Fed. Res. Sys., Gov’t Info. Specialist (FR 24-26), D.C., closes 9/4/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 9), Texas, closes 9/11/2020

Court opinion issued Aug. 21, 2020

Machado Amadis v. DOJ (D.C. Cir.) -- affirming district court’s decision that: (1) State Department and DEA performed reasonable searches for records concerning their processing of plaintiff’s prior FOIA requests; (2) Office of Information Policy properly declined to process certain DEA and FBI documents contained in plaintiff’s OIP appeal files because plaintiff’s request asked for only records “memorializing or describing the processing” of plaintiff’s prior appeals; (3) OIP properly relied on Exemption 5’s deliberative process privilege to withhold portions of staff’s appeal recommendation forms; (4) OIP reasonably explained why statute’s foreseeable harm provision was satisfied, noting that agency had considered "information at issue’” and concluded that disclosure “‘would’ chill future internal discussions”; and 5) plaintiff was not excused from administratively appealing “no records” responses issued by DEA and FBI merely because agencies offered to perform additional searches if plaintiff supplied additional information

Summaries of all published opinions issued since April 2015 are available here.