FOIA News: Nominations open for "Golden Padlock Award"

The nonprofit organization Investigative Reporters and Editors (IRE) is accepting nominations for the “Golden Padlock Award,” which recognizes the “most secretive publicly-funded agency or person in the United States.” Fill out your form here. Last year’s winner was the city of Detroit and its mayor, Mike Duggan.

FOIA News: Advocacy groups petition Garland for FOIA guidance

Politico, Transition Playbook, Apr. 5, 2021

For FOIA’s Sake

Dozens of groups advocating for government transparency will push Attorney General Merrick Garland to begin the process of fixing a broken public records system at DOJ, Anita Kumar writes.

The coalition, convened by the group Open the Government, will ask Garland in a letter to be sent this week to issue a directive to agencies about the Freedom of Information Act, review pending FOIA lawsuits within two months and support legislative reforms to the law. (The groups will also write to Sens. DICK DURBIN (D-Ill.) and CHUCK GRASSLEY (R-Iowa), leaders of the Senate Judiciary Committee, this week to push for FOIA oversight.)

Read more here.

Court opinion issued Apr. 2, 2021

Aguiar v. DEA (D.C. Cir.) -- affirming district court’s decision that DEA was not required to use GPS data spreadsheets to recreate map images that had been used in plaintiff’s criminal trial but no longer existed.

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

Court opinions issued Mar. 31, 2021

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv. (D.D.C.) -- ruling that government properly invoked Exemption 5’s deliberative process privilege to withhold biological evaluations and biological opinions on certain pesticides under the Endangered Species Act, but failed to identify segregable material in two records.

Property of the People v. DOJ (D.D.C.) -- concluding that FBI performed inadequate search for records relating to the documentary film “Cowspiracy,” the term “ag-gag,” and certain pieces of enumerated legislation.

Hall & Assoc. v. EPA (D.D.C.) -- granting in part and denying in part EPA’s summary judgment motion relying on Exemption 5 to withhold twelve documents pertaining to agency’s non-acquiescence to Eighth Circuit’s decision in Iowa League of Cities v. EPA.

Burnett v. DOJ (D.D.C.) -- finding that DEA performed adequate search for records concerning plaintiff’s criminal prosecution and that it properly withheld records pursuant to Exemptions 6, 7(C), 7(D), 7(E), and 7(F).

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

Court opinion issued Mar. 30, 2021

Shem-Tov v. DOJ (D.D.C.) -- on renewed summary judgment, determining that the U.S. National Central Bureau properly relied on Exemption 7(D) to withhold records pertaining to plaintiff provided by a foreign law enforcement entity.

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

Court opinions issued Mar. 29, 2021

Smith v. U.S. Marshals Serv. (S.D.N.Y.) -- finding that USMS conducted adequate search for records concerning plaintiff, but that EOUSA’s search was inadequate because it failed to explain its use of inconsistent search terms across multiple electronic searches.

N.Y. Times Co. v. FDA (S.D.N.Y.) -- concluding that agency had failed to justify its invocation of Exemption 4 to withhold a variety of records pertaining to electronic cigarette manufacturer. Of note, the court sidestepped the application of the “foreseeable harm” requirement and rejected plaintiff’s suggestion to adopt a public interest exception or balancing test.

Humane Soc'y Int'l v. U.S. Fish & Wildlife Serv. (D.D.C.) -- on renewed briefing following the Supreme Court’s intervening Exemption 4 decision in Food Marketing Institute, holding that agency improperly withheld disputed records concerning wildlife import and export. In reaching its decision, the court found that many third-party declarations objecting to disclosure constituted inadmissible hearsay and that the remaining declarations failed to show that disputed records were customarily and actually treated as private. The court also considered that the government had a history of releasing the disputed records.

Citizens for Responsibility & Ethics in Wash. v. GSA (D.D.C.) -- ruling that GSA properly relied on Exemption 5’s deliberative process privilege to withhold three categories of records concerning renovation of FBI headquarters, but that agency failed to justify use of same privilege to withhold two other categories of records.

Barry v. Haaland (D.D.C.) -- dismissing FOIA claim because plaintiff failed to administratively appeal from agency’s denial of access to any Inspector General records concerning plaintiff’s former supervisor.

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

FOIA News: SCOTUS declines to hear Clinton email case

Supreme Court Rejects Judicial Watch’s Final Attempt to Depose Hillary Clinton About Her Emails

By Jerry Lambe, Law & Crime, Mar. 29th, 2021

The Supreme Court of the United States on Monday declined a conservative legal group’s request to revisit whether Hillary Clinton should be required to answer questions about her use of a private email server during her tenure as secretary of state.

In an unsigned order issued without comment, the justices declined to take up Judicial Watch’s petition stemming from the organization’s lawsuit over the government’s response to a Freedom of Information Act (FOIA) request. The group had sought to depose Clinton and one of her top aides, Cheryl Mills, over electronic communications in connection with the 2012 attack on the U.S. consulate in Benghazi, Libya.

Read more here.

Court opinion added for Mar. 19, 2021

Mullane v. DOJ (D. Mass.) -- deciding that: (1) Executive Office for United States Attorneys and the Securities and Exchange Commission performed adequate searches for records pertaining to plaintiff, whose legal internships were terminated and rescinded by EOUSA and SEC, respectively, due to an incident with a federal judge; (2) EOUSA properly withheld records pursuant to Exemption 5’s attorney-client and attorney work-product privileges, and it properly withheld unsigned draft records pursuant to the deliberative process privilege; the agency improperly withheld email with University of Miami, however, and failed to adequately explain other deliberative process privilege claims; (3) both agencies properly redacted records pursuant to Exemption 6, which plaintiff did not dispute.

[ALB comment: The genesis of this FOIA action, which is not discussed in the opinion, is worth reading. See “incident” link above]

Court opinions issued Mar. 26, 2021

Stahl v. DOJ E.D.N.Y.) -- finding that BOP properly relied on Exemptions 7(C) and 7(F) to withhold certain segments of video that identified employees involved in force-feeding inmate, but rejecting agency’s use of Exemption 7(E) and rejecting agency’s argument that it could not edit video to segregate and release non-exempt portions.

Protect Democracy Proj. v. DOJ (D.D.C.) -- ordering in camera review of memo concerning a 2020 airstrike against an Iranian general to determine whether any portion of memo was officially disclosed by the government.

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

FOIA News: Discussion on establishing independent administrative FOIA oversight body

On April 14, 2021, Yale Law School will broadcast a pre-recorded discussion entitled “Fixing FOIA: Comparative Solutions to America's Transparency Deficit.” Details and registration information available here.