FOIA News: ICYMI...A Round-up of Recent FOIA News Stories & Commentary

DC Cir. Revives Law Prof’s FOIA Fee Dispute With IRS, Law360 (Mar. 9, 2021)

A University of Denver law professor is entitled to attorney fees after successfully litigating a Freedom of Information Act case with the IRS, the D.C. Circuit said Tuesday as it reversed a lower court’s decision denying the award.

Read more here (behind paywall).

Aimee Davenport, et al., Supreme Court Protects Drafts Under Deliberative Process Privilege, JDSupra (Mar. 9, 2021)

Last week, in Justice Amy Coney Barrett’s first signed opinion, the U.S. Supreme Court expanded the deliberative process privilege under exception 5 of the Freedom of Information Act (FOIA), limiting litigants’ ability to access certain documents while a matter is still under consideration by federal agencies.

Read more here.

Ariane de Vogue, Stephen Bryer adds ‘respect’ to his dissent of Amy Coney Barrett’s first opinion, CNN (Mar. 8, 2021)

Justice Amy Coney Barrett filed her first signed majority opinion last week, a momentous occasion for any new justice, and now she officially has the "respect" of the dissenting side.

Under court tradition, a new justice is usually assigned a relatively uncontroversial opinion that is often, although not always, unanimous. . . . But eyebrows were raised when Justice Stephen Breyer, joined by Justice Sonia Sotomayor, not only dissented, but omitted a key word in his dissent. Except in the most fiery cases when a justice really thinks the majority has gone astray, he or she usually ends an opinion with some formulation of "I respectfully dissent." But in his opinion, Breyer left out the respect part. . . . On Monday, without comment, the answer was clear. Breyer amended the opinion, clearly signaling that he meant no disrespect.

Read the full article here.

Alejandro Camacho & Melissa Kelly, Court favors deliberative-process privilege protections over FOIA transparency goals, SCOTUSblog (Mar. 6, 2021)

Notwithstanding the Freedom of Information Act’s primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.

Read more here.

Jeffrey Justman & Matt Sapp, Supreme Court Decides United States Fish and Wildlife Service et al. v. Sierra Club, Inc., JDSupra (Mar. 5, 2021)

On March 4, 2021, the U.S. Supreme Court decided United States Fish and Wildlife Service et al. v. Sierra Club, Inc., holding that the deliberative process privilege exemption in the Freedom of Information Act (FOIA) protects predecisional, deliberative draft opinions from disclosure.

Read more here.

William Droze, Supreme Court Sides with Agency on Deliberative Process Privilege, JDSupra (Mar. 5, 2021)

Today, in U.S. Fish and Wildlife Service et al. v. Sierra Club Inc., Case No. 19-547, the United States Supreme Court struck down a Ninth Circuit Court of Appeals’ ruling that the federal government was required to turn over documents with regard to a proposed U.S. Environmental Protection Agency (EPA) regulation for power plant cooling.

Read more here.

Supreme Court clarifies scope of the deliberative process privilege, Lexology (Mar. 5, 2021)

On March 4, 2021, the U.S. Supreme Court decided, in a 7-2 opinion written by Justice Amy Coney Barrett (her first majority opinion on the court), that the deliberative process privilege protects from disclosure under the Freedom of Information Act (FOIA) in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts do reflect an agency’s final position.

Read more here.

Ariane de Vogue, Justice Amy Coney Barrett’s first majority written opinion limits reach of FOIA, CNN (Mar. 4, 2021)

ustice Amy Coney Barrett penned her first Supreme Court majority opinion on Thursday, writing a 7-2 decision that will shield federal agencies from having to disclose certain materials under an exception to the Freedom of Information Act.

Read more here.

Court opinions issued Mar. 9, 2021

Kwoka v. IRS (D.C. Cir.) -- vacating denial of request for fees; holding that the district court abused its discretion by weighing several factors in the entitlement analysis against the requester; directing the district court to “evaluate the reasonableness of the IRS’s” argument that, at the time of the initial request, it believed segregating exempt and non-exempt materials would impose an unreasonable burden; further directing the district court to re-balance the factors of the fee entitlement analysis.

Ctr. for Biological Diversity v. BLM (D.D.C.) -- denying the parties’ cross-motions for summary judgment concerning adequacy of the agency’s search for records responsive to a pair of requests about E.O. 13783 and Secretary’s Order 3338; noting the requester’s belief that certain draft records, which were missing from the agency’s production, exist “carries more than just speculative weight,” and calling alternative theories advanced by the agency “implausible and, if true, deeply troubling”; describing much of the agency’s supporting declaration as conclusory and deficient; directing the agency to request that former Secretary Zinke “search his own [personal] files for any agency records they may contain, to detail ‘its best efforts’ to retrieve records from the former Secretary, and to provide ‘any further evidence it is able to obtain’”; further directing the agency to seek the former Secretary’s assistance with accessing two work-issued cell phones, and to better describe efforts to obtain records from the phones; and requiring clarification from the agency with respect to records reflecting communications with the Trump Transition Team.

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

Court opinions issued Mar. 8, 2021

Glennborough Homeowners Ass'n v. USPS (E.D. Mich.) -- dismissing FOIA claim for lack of subject matter jurisdiction because requests were submitted by another party and made no reference to plaintiff.

Mich. Immigrant Rights Ctr. v. DHS (E.D. Mich.) -- finding that plaintiff was eligible and entitled to attorney’s fees and costs in case concerning records of agency searches and seizures in Michigan, but requiring parties to confer on recoverable amount based on court’s conclusion that certainly hourly rates and billing entries were improper.

Shapiro v. SSA (D. Vt.) -- ruling that: (1) plaintiff’s clarified request was unreasonably broad and burdensome because it contained no time limitations or custodian limitations (among other things) and implicated approximately 1.5 million responsive pages, which would take the agency at least 193,211 hours of work to process; (2) agency improperly charged fees for its untimely initial response; and (3) plaintiff’s request for costs was “a close call” and could not be adjudicated until agency justified its withholdings in connection with its initial response.

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

FOIA News: D.C. Circuit hears "FOIA record" argument

For those who missed this morning’s hearing in Cause of Action Inst. v. DOJ, here is the audio recording of the argument before the D.C. Circuit. Appellant’s opening argument, which was presented by Ryan Mulvey, comprises the first eighteen minutes of the recording. Notably, during the government’s argument, Senior Judge Harry Edwards stated that he was “flabbergasted” by the government’s “utterly bizarre” and “self-serving” position that a single, paginated document created by DOJ may be segmented into multiple records based on subject matter and then withheld in part as non-responsive to the request.

FOIA News: D.C. Circuit to hear "FOIA record" argument on March 9th

The U.S. Court of Appeals for the District of Columbia Circuit will hear argument this Tuesday in Cause of Action Institute v. DOJ, a FOIA case that challenges the Department of Justice’s 2017 guidance on defining the term “record.” The government prevailed in district court, which concluded that DOJ may segment a single document into multiple, smaller records based on subject matter and then withhold any records that are non-responsive to the request.

Our very own Ryan Mulvey will be arguing the case on behalf of Cause of Action Institute. Listen live here at 9:30 A.M.

Court opinion issued Mar. 5, 2021

Berryhill v. Bonneville Power Admin. (D. Or.) -- denying plaintiff’s request for attorney’s fees because plaintiff was unable to show that agency’s discretionary disclosure of additional material was triggered by his lawsuit, and because agency properly withheld records pursuant to Exemption 5’s deliberative process privilege.

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

Court opinions issued Mar. 4, 2021

U.S. Fish & Wildlife Serv. v. Sierra Club (U.S.) -- in 7-2 decision, ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold draft biological opinions that were prepared by lower-level staff and never approved by decisionmakers or sent to EPA as it requested per Endangered Species Act.

Rocky Mountain Wild, Inc. v. U.S. Forest Serv. (D. Colo.) -- finding that agency performed reasonable for records pertaining to Village at Wolf Creek project and that it properly withheld records pursuant to Exemptions 4, 5, and 6. Of note, agency telephone conference line numbers and access codes were held to be protected under Exemption 5’s “commercial” privilege.

Farmworker Justice v. USDA (D.D.C.) -- in case involving records of agency’s H-2A visa program, determining that: (1) agency improperly relied on Exemption 4 to withhold company CEO’s views on proposed legislation, because the same information was shared with an organization with membership of 265,000 people; (2) agency’s declaration and brief were too conclusory to justify Exemption 5 claims, and agency failed to articulate a specific foreseeable harm connected to the redacted records.

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

FOIA News: OIP highlights recent SCOTUS decision, notes forthcoming guidance

Supreme Court Opinion Issues in FOIA Exemption 5 Case

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

Today the Supreme Court issued its opinion in United States Fish & Wildlife Service v. Sierra Club, 592 U.S. ___ (2021), holding that “[t]he deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.”  The Court’s opinion can be found here.  

As with prior Supreme Court decisions and significant FOIA developments, the Office of Information Policy (OIP) will issue guidance and provide training on the impact of this decision.  In the meantime, agencies are always welcome to seek advice through OIP’s FOIA Counselor Service.

FOIA News: OIP releases 2020 Litigation and Compliance Report

2020 FOIA Litigation and Compliance Report Now Available

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

This week, the Office of Information Policy (OIP) posted the Department’s 2020 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing our efforts to encourage agency compliance with the FOIA.  The report also contains a listing of all FOIA litigation cases received and decided in the prior calendar year.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.      

Read more here.

Read the report here.

FOIA News: Gov't decisively wins Exemption 5 SCOTUS case

In Barrett’s first majority opinion, court sides with government in FOIA dispute

By James Romoser, SCOTUSblog, Mar 4, 2021

The federal government does not have to fully disclose certain draft regulatory documents under the Freedom of Information Act, even if those documents reflect an agency’s final view about a policy proposal that it later abandons, the Supreme Court ruled Thursday. Justice Amy Coney Barrett wrote the opinion, her first majority opinion since joining the court in October.

The court sided 7-2 against the Sierra Club, which filed a FOIA request for “draft biological opinions” that environmental officials produced in 2013. Those opinions analyzed potential threats to endangered species from a proposed rule on underwater structures used to cool down industrial machinery.

Read more here.