FOIA News: Enviros and industry fight feds in Supreme Court FOIA case

Enviros and industry fight feds in Supreme Court FOIA case

By Pamela King, E&E News, Oct. 30, 2020

Should the public have access to documents that show why the federal government changed its stance on the impact an EPA rule would have on vulnerable species?

That's the question the Supreme Court will set out to answer Monday in the case Fish and Wildlife Service v. Sierra Club, which deals with a Freedom of Information Act request for documents underpinning a 2014 rule for cooling water intake structures at power plants.

At the heart of the battle is a draft biological opinion in which FWS found that a proposed version of the rule would jeopardize endangered species. EPA ultimately revised the rule, and FWS determined that the new version posed no harm.

But the Sierra Club will argue next week that the public has the right to know what changed.

Read more here.

FOIA News: NLRB reports FOIA processing stats

In a press release issued today, the National Labor Relations Board reported that its FOIA branch “responded within 20 working days to 82% of FOIA requests and 100% of FOIA appeals” in fiscal year 2020. The NLRB further reported that “FOIA backlogs were reduced from 35 requests at the end of FY 2019 to 3 requests at the end of FY 2020, which is a decrease of 91%.” Neither the agency nor DOJ has yet posted NLRB’s FY 2020 annual report.

FOIA News: FOIA lawyer wanted by FBI

The FBI’s FOIA litigation unit is looking to hire an attorney. The deadline to apply is November 30, 2020. See vacancy announcement here.

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.