FOIA News: FOIA Advisory Committee to meet June 10, 2021

The next meeting of the 2020-2022 term of the Freedom of Information Act Advisory Committee will be held remotely on Thursday, June 10, from 10 a.m. to 1 p.m. The meeting is open to the public and will be livestreamed on YouTube. See more here.

FOIA News: Court accuses DOJ of deception in withholding memo concerning Mueller investigation

Judge Says Barr Misled on How His Justice Dept. Viewed Trump’s Actions

Judge Amy Berman Jackson said in a ruling that the misleading statements were similar to others that William P. Barr, the former attorney general, had made about the Mueller investigation.

By Michael S. Schmidt, NY Times, May 4, 2021

A federal judge in Washington accused the Justice Department under Attorney General William P. Barr of misleading her and Congress about advice he had received from top department officials on whether President Donald J. Trump should have been charged with obstructing the Russia investigation and ordered that a related memo be released.

Judge Amy Berman Jackson of the United States District Court in Washington said in a ruling late Monday that the Justice Department’s obfuscation appeared to be part of a pattern in which top officials like Mr. Barr were untruthful to Congress and the public about the investigation.

The department had argued that the memo was exempt from public records laws because it consisted of private advice from lawyers whom Mr. Barr had relied on to make the call on prosecuting Mr. Trump. But Judge Jackson, who was appointed by President Barack Obama in 2011, ruled that the memo contained strategic advice, and that Mr. Barr and his aides already understood what his decision would be.

Read more here.

Court opinions issued May 3, 2021

Cincinnati Enquirer v. DOJ (S.D. Ohio) -- determining that: (1) DEA performed adequate search for records organized under “Operation Speakeasy”; and (2) DEA could not rely on Exemption 7(C) to categorically withhold investigatory records pertaining to third party, because privacy interest interest was outweighed by public interest—namely shedding light on DOJ’s decision not to prosecute the highest elected law enforcement official in a Kentucky county for obstruction of justice.

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- ruling that: (1) agency’s denial of plaintiff’s request for expedite processing was moot issue; and (2) DOJ properly relied on Exemption 5’s deliberative process privilege to withhold draft legal analysis prepared by an OLC attorney concerning Special Counsel Mueller’s investigation; and (3) DOJ failed to show that OLC’s signed memorandum to Attorney General Barr was pre-decisional for purposes of Exemption 5’s deliberative process privilege or that it was protected under the attorney-client privilege, noting that DOJ affidavits were “so inconsistent with evidence in the record, they are not worthy of credence.”

Besson v. U.S. Dep’t of Commerce (D.D.C.) -- on renewed summary judgment and following supplemental release of material, concluding that government properly relied on Exemption 4 to withhold remaining disputed portion of agreement between NIH and a private telecommunications company.

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

FOIA News: One for the dogs

Biden Family Dogs, Champ and Major, Trigger Conservative Group Lawsuit

By Benjamin Fearnow, Newsweek, May 4, 2021

The conservative activist group Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit in federal court Monday that names the "Biden family dogs" and accuses the U.S. Secret Service of not reporting an alleged March biting incident.

Judicial Watch announced the lawsuit today against the U.S. Department of Homeland Security (DHS). It seeks compliance in a filing listed as "JW v DHS Biden dogs complaint 01194." The federal complaint filed in the U.S. District Court for the District of Columbia demands the Secret Service respond in a timely fashion to FOIA requests for details about an early March dog biting debacle. Judicial Watch claims it's been "irreparably harmed" by the Secret Service's reluctance to report the incident, which reportedly involved one of the two Biden family German Shepherds, Champ and Major.

Read more here.

FOIA News: OGIS to host annual public meeting on May 12

The Office of Government Information Services will host its annual public meeting on Wednesday, May 12, 2021 from 10:00 AM to noon. The theme for its virtual meeting is "Change and Resilience amid COVID-19.”

See more here.

Court opinions issued Apr. 25-30, 2021

Apr. 30, 2021

Farah v. DOJ (D. Minn.) -- following in camera review of disputed documents concerning plaintiff’s prosecution, ruling that: (1) EOUSA that properly relied on Exemption 5’s deliberative process and attorney work-product privileges, except with respect to portions of two pages that contained non-exempt material; and (2) EOUSA properly redacted correspondence pursuant to Exemption 7(C) in all respects.

Apr. 29, 2021

Prop. of People v. DOJ (D.D.C.) -- following in camera review of FBI documents pertaining to Donald Trump through 2015, deciding that: (1) FBI properly withheld records pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e); intercepted communications could not be withheld under Exemption 3 in conjunction with Title III of the Omnibus Control and Safe Street Act of 1968, but sealing orders issued by another court would prevent disclosure if still in effect; (2) DOJ properly withheld records pursuant to Exemptions 7(A), 7(C), and 7(D), but failed to show that disclosure of surveillance logs from more than 20 years ago would cause harms protected by Exemption 7(E).

Apr. 28, 2021

Nat’l Pub. Radio v. FBI (D.D.C.) -- on reconsideration under Rule 60(b), finding that FBI justified its use of Exemptions 7(E) and 7(F) to withhold videos depicting ballistics tests of certain types of ammunition.

Chavis v. DOJ (D.D.C.) -- determining that: (1) DEA performed reasonable search for records concerning plaintiff’s murder conviction and properly refused to search for records concerning plaintiff’s co-defendants on privacy grounds; and (2) DEA properly withheld records pursuant to Exemptions 6, 7(C), 7(D), 7(E), and 7(F).

Apr. 27, 2021

Stoufer v. FBI (D. Alaska) -- concluding that multiple DOJ components conducted reasonable searches concerning plaintiff and that the Office of Inspector General properly relied on Exemption 7(C) to redact names of employees and third parties who handled plaintiff’s complaints.

Gutierrez v. EOUSA (D.D.C.) -- ruling that EOUSA conducted reasonable search for records concerning plainitf’s conviction for producing child pornography.

Apr. 26, 2021

Sartori v. U.S. Army (11th Cir.) (unpublished) -- granting summary affirmance to Army because plaintiff abandoned his appeal and because the district court’s decision was proper on the merits.

Apr. 25, 2021

NY Times v. Def. Health Agency (D.D.C.) -- denying plaintiff’s request for a preliminary junction to compel production, on an expedited basis and by a date certain, extensive data regarding the government’s effort to distribute coronavirus vaccines.

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

Q&A: Stars and Stripes Forever

Q. Can a government agency make a rule that would require a certain set of persons making a FOIA request to satisfy different requirements than any other requesters simply because the certain set is made up of U.S. Government employees? Perhaps more simply and broadly: Can an agency limit the private FOIA rights of any federal employee? For example, DoD has advised its FOIA liaisons to administratively close as "not a proper FOIA request" any request filed by a member of a group of DoD employees if the person fails to "demonstrate prior approval" from a government supervisor to make the request. This seems unenforceable on several grounds: first because it hinges on the identity of the requester; second because it involves an inquiry into the "circumstances" of the request; and third because it seems the policy is not based on published FOIA rules.

A. Whether a reporter for Stars and Stripes (S&S) may submit FOIA requests to federal agencies is an interesting issue, though not a new one. Indeed, the newspaper’s ombudsman addressed the problem in an instructive article published in 2016. In sum, we agree that an agency may reject a FOIA request if it is submitted on behalf of S&S, because the newspaper is a component of a federal agency and federal agencies are precluded from making FOIA requests. No regulation or rule is required to be published for an agency to enforce this statutory limitation.

To circumvent the statute, an S&S reporter might attempt to submit a request in his or her personal capacity or on behalf of a different media organization. But an agency is entitled to inquire, for fee purposes, how a requester intends to use requested records and it need not blanketly accept the requester’s assertions. If, for example, an S&S reporter claims to be working on behalf of a different media outlet, an agency may require evidence to that effect—for example, a copy of an agreement with that outlet. And if an S&S reporter is required to get prior approval to engage in outside reporting activities, the absence of such approval would undermine the reporter’s claim.

FOIA News: Recap of recent DOJ workshops

VIRTUAL BEST PRACTICES WORKSHOPS FOCUS ON FOIA ADMINISTRATION DURING COVID-19 PANDEMIC

DOJ-OIP, FOIA Post, Apr. 28, 2021

The Office of Information Policy (OIP) hosted two virtual workshops last month discussing best practices focused on Freedom of Information Act (FOIA) administration during the pandemic for both Intelligence Community (IC) and non-IC community agencies. 

During the first virtual event, OIP Director Bobby Talebian and Office of Government Information Services (OGIS) Director Alina Semo moderated a panel discussion with seasoned IC and IC-adjacent FOIA officials:  Brent Evitt, Defense Intelligence Agency; Ron Mapp, National Security Agency; Sally Nicholson, Office of the Director of National Intelligence; Michael Seidel, Federal Bureau of Investigation; and Eric Stein, U.S. Department of State.

Read more here.

Court opinion issued Apr. 23, 2021

Am. Ctr. for Law & Justice v. U.S. Dep't of State (D.D.C.) -- on renewed summary judgment concerning edited video of press briefing , ruling that: (1) agency justified redaction of one email pursuant to Exemption 5’s deliberative process privilege; (2) agency properly redacted second email pursuant to Exemption 6 and plaintiff conceded agency’s Exemption 5 withholdings; and (3) agency failed to show that email chain about press guidance and strategy related to Iran was properly withheld pursuant to Exemption 5’s presidential communication privilege.

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

FOIA News: Copyright Office proposes revision to FOIA regulations

On April 26, 2021, the U.S. Copyright Office issued a proposed rule that states, in conformity with the Copyright Alternative in Small-Claims Enforcement Act, only Copyright Claims Board “determinations, records, and information” that are published on the Office’s website and that relate to a CCB final determination are subject to disclosure under FOIA. Written public comments will be accepted through May 26, 2021.