Court opinions issued Feb. 2, 2021

Sea Shepherd Legal v. NOAA (W.D. Wa.) -- finding that: (1) agency properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold records about the Māui dolphin, except for internal discussions about the content and timing of a Federal Register notice; (2) agency properly withheld identifying information about New Zealand government officials pursuant to Exemption 6; and (3) agency met foreseeable harm requirement for both exemptions under the criteria enunciated by the D.C. Circuit in Machado Amadis v. U.S. Department of State.

Albaladejo v. ICE (D.D.C.) -- concluding that agency failed to show that it performed adequate search for records concerning air transportation of noncitizen detainees with certain medical conditions, especially in light of internal agency documents that suggested ICE overlooked specific locations of responsive records.

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

FOIA News: Supreme Court petitioned to consider Clinton email case

Justices Urged To Take Up Clinton Deposition Email Case

Law360, Feb. 2, 2021

A conservative watchdog is gunning to revive a case seeking to depose Hillary Clinton over her use of a private email server as secretary of state, telling the U. S. Supreme Court a D. C. Circuit panel erroneously overturned a trial court's discovery order and granted Clinton "extraordinary relief. " The 38-page petition for writ of certiorari docketed Monday emerged from Judicial Watch Inc. 's Freedom of Information Act suit, which demanded U. S. Department of State records relating to the 2012 terrorist attack in Benghazi, Libya. The full circuit court's bench in October declined to reconsider a three-judge panel's August order releasing Clinton from deposition..

Read more here (accessible with free trial subscription).

See petition here.

Court opinions issued Jan. 28, 2021

Diocesan Migrant & Refugee Serv. v. ICE (W.D. Tex.) -- awarding plaintiff more than $52,000 in attorney fees and costs after considering, among other things, that agency “failed to establish even a colorable basis . . . to support the adequacy of its search” and “gave no reasonable basis” for its Exemption 5 withholdings.

Stylianos v. USCIS (D. Mass.) -- ruling that agency properly invoked Exemption 6 to withhold plaintiff’s marriage certificate maintained in his estranged wife’s A-file, but chiding the parties for not considering alternative resolutions.

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

FOIA News: EEOC to launch new FOIA software

EEOC TO LAUNCH NEW FREEDOM OF INFORMATION ACT (FOIA) SOFTWARE

Beginning Feb. 1, Requesters Can Initiate New FOIA Requests and Appeals Using New Tool

EEOC Press Release, Jan. 29, 2021

The U.S. Equal Employment Opportunity Commission (EEOC) announced today that, effective Feb. 1, it will begin using a new software system (“the 2021 system”) to receive and process Freedom of Information Act (FOIA) requests and appeals, replacing the system it has used since 2015.

As part of EEOC's ongoing commitment to transparency and accountability, FOIA requesters will continue to be able to monitor their requests and appeals online and exchange correspondence and documents with EEOC electronically.  While EEOC posts many agency documents on its website, and in its online FOIA public reference room, individuals can submit FOIA requests for other records.

Read more here.

Court opinion issued Jan. 27, 2020

Judicial Watch v. DOD (D.D.C.) -- concluding that government properly invoked Exemption 5’s deliberative process privilege to withhold records concerning 2015 proposal to integrate women in all Marine Corps occupational specialties, and that agency met the foreseeable harm requirement.

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

FOIA News: OGIS Publishes COVID-19 FOIA Website Review Follow-up

OGIS Publishes COVID-19 FOIA Website Review Follow-up

By C. Lemelin, Office of Government Information Services, Jan. 28, 2021

OGIS is pleased to announce publication of our latest report which examines whether agencies are following the U.S. Department of Justice Office of Information Policy (OIP) guidance encouraging them to post alerts on their websites indicating how the COVID-19 pandemic is affecting their FOIA operations. The results of this assessment, for which OGIS reviewed 305 agency and department FOIA websites, shows that 47 percent of the federal FOIA websites we reviewed alert requesters to changes in their FOIA processing due to the pandemic. Generally, agencies that receive a higher volume of FOIA requests are more likely to have COVID alerts on their FOIA websites than agencies that receive fewer FOIA requests. Read our report the findings and download the spreadsheet of our findings.

Read more here.

Court opinions issued Jan. 26, 2021

Ball v. USMS (D.D.C.) -- finding that: (1) U.S. Marshals Service, Treasury, and DHS performed adequate searches for records pertaining to plaintiff; and (2) USMS and DHS properly withheld records pursuant to Exemptions 3 (Federal Victim and Witness Protection Act), 6, 7(C), and 7(E).

Scott v. IRS (S.D. Fla.) -- deciding that: (1) IRS performed reasonable search for records pertaining to a private letter ruling; (2) agency properly withheld records pursuant to Exemption 5’s deliberative process privilege, except for a few redactions, and it met the foreseeable harm requirement.

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

Court opinions issued Jan. 25, 2021

Mertes v. IRS (E.D. Cal.) -- ruling that agency’s full disclosure of Form 709 that plaintiff requested did not moot case because agency failed to process a related document (Form 706) and both forms constituted a single “record” under DOJ’s guidance.

Eddington v. DOD (D.D.C.) -- dismissing case after determining that plaintiff failed to rebut agency’s sworn declaration that it had not received any of fourteen requests reportedly sent by plaintiff via email.

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

Court opinions issued Jan. 21, 2021

WP Co. v. SBA (D.D.C.) -- awarding litigations costs and all but around twenty percent of attorney fees in case involving loans approved pursuant to COVID-19 relief programs. In reaching its decision, the court found that plaintiffs were entitled to fees even though government had a reasonable basis for initially withholding requested data.

White v. DOJ (S.D. Ill.) -- declining to hold U.S. Marshals Service in contempt or to award plaintiff litigation costs, but stating that: (1) agency’s delay in responding to plaintiff’s 2013 request was “appalling”; (2) it was “inexcusable” that agency was unprepared for “foreseeable and regular complications”; and (3) USMS “must upgrade its FOIA processing protocols to avoid such delinquencies in the future.”

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

FOIA News: Gov't ordered to pay attorney's fees in PPP loan case

Ballard Spahr Wins $122K in Legal Fees in FOIA Suit Over PPP Loan Secrecy

The open records lawsuit ultimately forced the Trump administration to released detailed information about who received PPP loans.

By Nate Robson, Nat’l Law Journal, January 21, 2021

Ballard Spahr will receive $122,347 in legal fees for its work in an open records lawsuit that forced the U.S. government to release detailed information about who received hundreds of millions of dollars through a COVID-19 emergency loan program.

The law firm asked for nearly $154,842 in fees and costs, but U.S. District Judge James Boasberg of the District of Columbia on Thursday said Ballard Spahr failed to support its billing rates and hours worked, and subsequently shaved off nearly $32,000

Read more here.