Court opinion issued Feb. 9, 2021

Leopold v. Cent. Intelligence Agency (D.C. Cir.) -- reversing district court’s order that the CIA confirm or deny the existence of records concerning “payments to Syrian rebels,” and rejecting the requester’s argument that a tweet from President Trump “officially acknowledged” the “government’s intelligence interest in the broader categories of records
. . . requested” because that tweet was “subject to several plausible interpretations,” may have “fabricated facts,” and did not actually “reveal the existence of Agency records about the alleged [payment] program.”

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

FOIA News: Dep't of Transportation releases annual FOIA report for 2020

The U.S. Department of Transportation appears to be the first cabinet agency out of the gate in posting its annual FOIA report for fiscal year 2020. DOT reported that it received 14632 requests during the year and that it processed 15433 requests, reducing the number of “pending” requests from 6368 to 5567. The number of “backlogged” requests— i.e., legally overdue—nevertheless rose from 3578 to 4272, a nearly 20 percent increase.

Court opinion issued Feb. 8, 2021

Trotter v. Ctr. for Medicare & Medicaid Serv. (D.D.C.) -- deciding that CMS properly relied on Exemption 6 to withhold domain portions of email addresses associated with registered healthcare providers, except for domain names that CMS already releases for participants in a digital records-sharing program.

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

Court opinions issued Feb. 5, 2021

Accurso v. DOJ (D.D.C.) -- concluding that FBI properly relied on Exemptions 7(C) and 7(E) to withhold records pertaining to plaintiff’s prosecution for distributing child pornography.

NY Legal Assistance Grp. v. Bd. Immigration Appeals (2nd Cir.) -- in a 2-1 decision, vacating and remanding district court’s decision that agency was not required to affirmative publish its non-precedential opinions pursuant to 5 U.S.C. § 552(a)(2).

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

Court opinions issued Feb. 4, 2021

Renewable Fuels Ass’n v. EPA (D.D.C.) -- holding that EPA properly relied on Exemption 4 to withhold the names and locations of oil refineries that applied for relief from the agency’s Renewable Fuel Standard program, except for a small number of refineries that did not appear to customarily treat all of its applications as private. Notably, the court stated that a government assurance of privacy was not required under binding D.C. Circuit law in order for information to qualify for Exemption 4. The court further stated that even if it was able to ignore binding precedent, it believed that the “better approach would be that privately held information is generally confidential absent an express statement by the agency that it would not keep information private, or a clear implication to that effect (for example, a history of releasing the information at issue).”

Bd. of Comm'rs of Clermont Cnty. v. EPA (S.D. Ohio) -- finding that EPA properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold records about a closed hazardous waste dump.

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

Court opinion issued Feb. 3, 2021

N.Y. Times v DOJ (S.D.N.Y.) -- ordering in camera review of independent monitor’s report pertaining to intervenor-Volkswagen AG’s compliance with a 2018 plea agreement, rejecting claims by government and intervenor that withholdings were justified pursuant to Exemptions 4 and 5.

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

FOIA News: FOIA Project Analysis Shows Increasing Backlog of Pending District Court FOIA Decisions

Justice Delayed Is Justice Denied: Judges Fail To Rule in a Timely Manner on FOIA Cases

By FOIA Project Staff, The FOIA Project, Feb 3, 2021

The latest case-by-case court records show that even after filing suits, FOIA requesters are facing longer and longer delays before their cases are decided. Indeed, the backlog of pending FOIA court cases is growing much faster than the increase in litigation because judges are failing to rule in a timely manner and allowing cases to drag on for years.

As of the end of FY 2020, the number of FOIA cases pending in the federal courts climbed to 1,683. This is more than three and a half times the number of pending cases ten years ago in FY 2010 when the pending court caseload was just 467.

Read more here.

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.