Court opinions issued Sept. 23, 2020

Boundaoui v. FBI (N.D. Ill.) -- denying plaintiff’s motions to find FBI in contempt for violating court’s previous orders, but instructing FBI to increase its rate of document production to 1000 pages per month and to search an electronic surveillance database in response to plaintiff’s request for records pertaining to government surveillance of Muslim Americans in Chicago area in the 1990s

James Madison Proj. v. CIA (D.D.C.) -- ruling that CIA properly relied on Exemption 1 to withhold records regarding agreements with President Bush and two corporations, but that agency’s declarations were too conclusory to permit evaluation of whether agency properly invoked Exemptions 6 and 7(C), or whether the agency has disclosed all reasonably segregable materials.

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

FOIA News: Postal Service seeks to claw back FOIA-released documents

USPS Regrets Its Transparency, Asks FOIA Requester To Remove 1,200 Pages It Forgot To Withhold

from the please-double-check-your-work-for-accuracy dept

By Tim Cushing, Techdirect, Sept. 23, 2020

The government has fucked up and it thinks citizens are obligated to help it unfuck itself. We're not. Too bad.

Recently, government accountability nonprofit American Oversight obtained nearly 10,000 pages of memos and emails from the United States Postal Service. The documents dealt with the USPS's response to the COVID-19 pandemic. Unlike the USPS's effusive response to this FOIA request, the agency's response to complaints from employees about the danger they were facing was far more tepid.

These documents were shared with the Washington Post, which highlighted the Postal Service's scrapped plan to send every American five masks, as well as the internal turmoil that accompanied the spread of the coronavirus.

Apparently, the USPS had second thoughts about its FOIA response following this unflattering nationwide media coverage. It sent a letter to American Oversight asking it to take down every single one of the 10,000 pages it had given the organization.

Read more here.

Court opinion issued Sept. 21, 2020

Michigan Immigration Rights Ctr. v. DHS ( E.D. Mich.) -- denying plaintiff’s motion for monetary sanctions against government for missing court-ordered production deadlines, because plaintiff failed to show that government acted in bad faith.

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

Q&A: The administrative record

Q.  I appealed an agency’s Exemption 5 redactions and the agency remanded my request because the redactions “contain information similar to that which has been made public in recent months.” The remanded and less-redacted document I later received showed that the previously redacted information shouldn’t have been redacted in the first place. It’s also unclear where, how, or when roughly 90 percent of the new information was “made public in recent months.”

Aren’t agencies required to review FOIA appeals based on the administrative record established at the time the appeal was received? And wouldn’t this preclude the agency from considering new information that “has been made public in recent months”? I ask because I’m planning to appeal again, since the remanded version still contains many Exemption 5 redactions. And if it’s clear that the previously withheld info shouldn’t have been withheld in the first place, and if the agency’s reason for now releasing that information is inapposite, how do I know the remaining redactions aren’t also improper?

A. Agencies may take into account just about any information before issuing their administrative FOIA appeal decisions.  In fact, agencies may change their positions on the applicability of exemptions even after they’ve been sued.  The concept of an "administrative record" in FOIA is limited to only a few issues at the litigation stage--for example, expedited processing and fee waivers.   A requester probably cannot know with absolutely certainty whether an agency has properly processed requested records.   Short of litigation, however, you might consider asking the Office of Government Information Services for assistance.  

Court opinions issued Sept. 18, 2020

Judicial Watch v. DOJ (D.D.C.) -- ruling that DOJ properly invoked Exemption 5’s deliberative process privilege to withhold four drafts of Acting Attorney General Yates’ January 30, 2017 memorandum regarding Executive Order 13,769.

Lindsey v. FBI (D.D.C.) -- on renewed summary judgment, concluding that: (1) FBI performed adequate search for records pertaining to arrest of Lebanese-American businessman at Dulles Airport in 2003; and (2) FBI properly refused to confirm or deny existence of any other records concerning same individual pursuant to Exemptions 1, 3, and 7(C).

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

FOIA News: Death of Justice Ruth Bader Ginsburg

Justice Ginsburg, who died on Friday night at the age of 87, authored one Freedom of Information Act opinion during her twenty-seven years on the U.S. Supreme Court: Taylor v. Sturgell, 553 U.S. 880 (2008). A recap of that opinion is available from SCOTUSblog here. She ruled on countless FOIA cases as a member of the U.S. Court of Appeals for the District of Columbia Circuit from 1980 to 1993.

FOIA News: ICYMI, FOIA Litigation Trends

July 2020 FOIA Litigation with Five-Year Monthly Trends

By FOIA Project, Sept. 8, 2020

During the month of July 2020 federal district courts saw a total of 75 new Freedom of Information Act (FOIA) lawsuits filed under 5 U.S.C. 552. To place this number in perspective, 75 new filings compares with a monthly average of 66 filings during the last 12 months. This month’s total brought overall FOIA filings on an annual basis for these last 12 months to 797.

Read more here.

Court opinion issued Sept. 16, 2020

Coleman v. Dep't of Navy (D.D.C.) -- concluding that agency performed adequate search for video footage related to murder conviction of plaintiff’s client.

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

FOIA News: OGIS issues FOIA assessment of Nuclear Regulatory Commission

OGIS Publishes NRC FOIA Compliance Assessment Report

Office of Gov’t Info. Serv., Sept. 17, 2020 

OGIS’s latest agency compliance assessment delivers six findings and 10 recommendations for  improving FOIA compliance and administration at the Nuclear Regulatory Commission (NRC), which regulates commercial nuclear power plants and other uses of nuclear materials, such as in nuclear medicine.

NRC requested that OGIS review its FOIA program as part of its efforts to improve it. OGIS assessments include an analysis of FOIA data; a review of written materials such as FOIA regulations, standard operating procedures, management reports, Chief FOIA Officer reports and agency FOIA case files; direct observations; and interviews with agency employees and officials with responsibility for FOIA administration. 

Read more here.

Court opinions issued Sept. 15, 2020

Competitive Enter. Inst. v. U.S. Dep’t of State (D.D.C.) -- concluding that agency properly relied on Exemption 5’s deliberative process privilege to withhold legal memorandum that consisted of subordinate officials views on legal questions raised concerning Paris Climate Agreement.

Wash. Post v. SIGAR (D.D.C.) -- deciding, in most relevant part, that Special Inspector General for Afghanistan Reconstruction performed adequate search for interviews related to agency’s Lessons Learned Program, that it properly withheld records pursuant to Exemptions 7(A), 7(E), and 7(F), and that more information was required for court to evaluate withholdings under Exemptions 1, 3, 5, 6, and 7(C).

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