FOIA News: CFBP issues final disclosure rule

The Consumer Financial Protection Bureau issued a final rule on October 29, 2020 that amends its regulation regarding the confidential treatment of information obtained from outside parties. See agency’s press release here.

FOIA News: D.C. Circuit declines to revisit request to depose Hillary Clinton

Full Panel of Federal Judges, Including Three Trump Appointees, Unanimously Reject Judicial Watch’s Effort to Depose Hillary Clinton

By Jerry Lambe, Law & Crime, Oct 28, 2020

The full panel of judges on the U.S. Court of Appeals for the District of Columbia on Wednesday rejected a request to revisit whether Hillary Clinton is required to answer questions about her use of a private server during her tenure as secretary of state.

None of the ten circuit judges participating in the matter requested a vote on the petition filed by the conservative activist group Judicial Watch, including Donald Trump-appointed Judges Gregory Katsas, Justin Walker, and Neomi Rao. Judge David Tatel, an appointee of President Bill Clinton, didn’t participate in the matter.

Read more here.

Court opinion issued Oct. 28, 2020

Schneider v. DOJ (D.D.C.) -- on third round of summary judgment, deciding that CIA properly relied on Exemption 5’s deliberative process privilege and Exemption 7(e) to withhold one document pertaining to plaintiff’s employment application.

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

Court opinion issued Oct. 27, 2020

Connell v. U.S. Southern Command (D.D.C. 2020) -- determining that: (1) agency properly relied on Exemption 3 in conjunction with 10 U.S.C. § 130b, to withhold names of individuals assigned to military unit in Guantanamo Bay; (2) agency properly invoked Exemption 6 to withhold personally identifying information of military personnel below the rank of Major, Lieutenant Colonel, or Colonel, but that neither party was entitled to summary judgment on any records withheld about military personnel at those ranks or their GS equivalents.

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

FOIA News: American Bar Association examines Exemption 5 SCOTUS case

Does the FOIA deliberate process privilege “die on the vine” when an agency changes its mind?

Mary F. Samuels, ABA, Oct. 30, 2020

After a landmark Freedom of Information Act (FOIA) decision in 2019 regarding Exemption 4, the U.S. Supreme Court is set to provide clarity on another controversial FOIA exclusion—Exemption 5.

In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court rejected the 40-year-old “competitive harm” test associated with FOIA Exemption 4 as inconsistent with the language of the statute. Little more than a year later, on November 2, 2020, the Court will hear oral arguments regarding the scope of the much-disputed Exemption 5. Exemption 5 is invoked frequently by federal agencies, but courts often find that an agency has overreached in asserting the exemption. In U.S. Fish and Wildlife Service v. Sierra Club, No. 19-547, the Supreme Court must determine whether documents prepared by federal agencies during interagency consultation under the Endangered Species Act (ESA) are protected from compelled disclosure under FOIA—in particular, when one agency’s decision caused another agency to change its mind on its proposed rulemaking.

Read more here (accessible with membership).

Court opinion issued Oct. 26, 2020

Am. Small Bus. League v. SBA (N.D. Cal.) -- deferring ruling on plaintiff’s summary judgment motion regarding Paycheck Protection Program loan information until District of Columbia decides two cases seeking same information.

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

FOIA News: FMCS launches new FOIA processing system

The Federal Mediation Conciliation Service announced today that it was employing FOIAXpress software to process and track FOIA requests and appeals. See press release here.

Court opinion issued Oct. 20, 2020

Spadaro v. U.S. Customs & Border Prot. (2nd Cir.) -- affirming district court’s decision that the Department of State properly relied on Exemption 3, in conjunction with section 222(f) of Immigration and Nationality Act, to withhold records about government’s revocation of plaintiff’s visa. In a separate summary order, the Second Circuit affirmed the district court’s decision that the FBI properly withheld records pertaining to plaintiff pursuant to Exemption 5’s deliberative process and attorney work-product privileges.

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

FOIA News: Court rules that Trump tweets were not a declassification order

U.S. judge accepts White House statement as rescinding Trump tweet calling for full declassification of Russia probe

By Spencer S. Hsu, Wash. Post, Oct. 21, 2020

A federal judge on Wednesday accepted a White House statement as rescinding President Trump’s tweets that called for the “total Declassification” of all documents in the government’s investigation of Russia’s intervention in the 2016 U.S. election.

But U.S. District Judge Reggie B. Walton in D.C. chided the president for his carelessness, saying the commander in chief’s words caused confusion on a matter of national security.

“It is unfortunate that we are in this situation because, obviously, whenever there’s a reference to the declassification of classified information, the words spoken should be artfully spoken so there’s no ambiguity as to what the intention was,” Walton said. “Obviously that’s not what occurred here.”

Read more here.

FOIA News: Trump tweets were not a declassification order, says White House

Meadows says Trump did not order declassification of Russia documents

By Morgan Chalfant, The Hill, Oct. 20, 2020

White House chief of staff Mark Meadows said Tuesday that President Trump’s tweets about declassifying documents related to the Russia investigation were not an order to declassify or release further documents.

Meadows said in a sworn declaration in federal court that Trump’s tweets earlier this month instead merely referred to the authority given to Attorney General William Barr by the president last year to declassify material related to the Russia investigation.

“The President indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents,” Meadows wrote in the declaration filed in federal court in Washington, D.C.

“The President’s statements do not require altering any redactions on any record at issue in these or any other cases, including, but not limited to, any redactions taken pursuant to any discretionary FOIA exemptions,” he added.

Read more here.