Court opinions issued June 2, 2021

Advocates for the West v. Bonneville Power Admin. (D. Or.) -- granting partial summary judgment to plaintiff because agency violated statutory response deadlines, and ordering agency to release 5,000 responsive pages per month.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- ruling that: (1) agency conducted adequate search for records concerning President Obama and Secretary Clinton after case was reopened due to the Secretary’s use of a private email server; and (2) plaintiff was precluded from re-raising issues that had been settled before case was reopened.

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

FOIA News: Commentary on D.C. Circuit's decision in Cause of Action v. DOJ

Towards a Definition of a FOIA “Record”: The D.C. Circuit’s Decision in Cause of Action Institute v. Department of Justice

By Ryan P. Mulvey & James Valvo, III, Yale J. on Reg. June 3, 2021

The Freedom of Information Act (“FOIA”) provides the public with access to “records” of the Executive Branch.  It does not provide for disclosure of “information” in the abstract.  Surprisingly, however, the definition of a “record” has never been established, despite the seeming inclusion of such a definition at Section 552(f)(2)(A).  And although there is no shortage of caselaw on the distinct question of the meaning of an “agency record,” the antecedent question of what a “record” is has only recently started working its way through the courts.  The D.C. Circuit’s recent opinion in Cause of Action Institute v. Department of Justice provides helpful, if incomplete, insight.  The major takeaway from that decision is that agencies should no longer be permitted to break records into small pieces after receiving a FOIA request in order to avoid disclosure.

See more here.

Court opinions issued June 1, 2021

Cause of Action Inst. v. DOJ (D.C. Cir.) -- reversing district court’s decision and concluding that: (1) DOJ improperly segmented one large electronic file into separate records and withheld portions as non-responsive; (2) plaintiff had standing to challenge agency’s practice and policy of segmenting records, but issue was unripe for adjudication.

Corley v. DOJ (D.C. Cir.) -- affirming district court’s decision that FBI properly withheld records concerning plaintiff’s trafficking and child pornography convictions pursuant to Exemption 3 in conjunction with the Child Victims’ and Child Witnesses’ Rights Act,” 18 U.S.C. § 3509.

Ecological Rights Found. v. EPA (D.D.C.) -- granting agency’s request for reconsideration of court’s decision that Exemption 7(C) did not protect names of agents tasked with providing protection to former EPA Administrator Andrew Wheeler as part of his Personnel Security Detail.

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

FOIA News: D.C. Circuit Opinion on Non-Responsive Records Case

D.C. Circuit rules DOJ violated #FOIA when it segmented records to avoid disclosure, but declines to invalidate DOJ guidance advising agencies to do just that. A partial solid win in an ongoing battle. @CauseofActionDC @RPMulvey #appellatetwitter https://t.co/TLhDyPalfu

— James Valvo (@JamesValvo) June 1, 2021

Court opinion issued May 28, 2021

Pitts v, DOJ (D.D.C.) -- ruling that Federal Bureau of Prisons was not required to create records indicating the cost of keeping plaintiff in its custody (data that BOP did not maintain), and that BOP fully discharged its FOIA obligation by releasing cost data related to the institution in which plaintiff is held.

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

FOIA News: Advanced FOIA Litigation for gov't employees

DOJ’s Office of Information Policy has updated its handouts for its Advanced FOIA Litigation course. Query whether Handout D pertaining to non-responsive records will survive Cause of Action v. DOJ, 20-5182 (D.C. Cir.) unscathed.

FOIA News: Gov't FOIA jobs available in DC/MD/VA

Gov’t Info. Specialist, Dep’t of Agriculture/FSIS, GS 12-13, Washington DC, closes June 1, 2021

Gov’t Info. Specialist (FOIA appeals), Dep’t of Def./Sec’y, GS 11-12, Alexandria, VA, closes June 1, 2021

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 12-13, Washington DC, closes June 2, 2021

Gov’t Info. Specialist, Dep’t of Defense/Sec’y, GS 13, Alexandria, VA, closes June 3, 2021

Gov’t Info. Specialist, Dep’t of Health & Human Serv./IHS, GS 14, Rockville, MD, closes June 7, 2021

Attorney-Advisor, Dep’t of Justice/OIP, GS 12, Washington DC, closes June 17, 2021

FOIA News: Get your OIP FOIA training

A reminder that federal employees and contractors can remotely attend FOIA training provided by DOJ’s Office of Information Policy on June 3, 2021 (Exemption 4 and Exemption 5) and one June 10, 2021 (Exemption 1 and Exemption 7).

FOIA News: Three, two, one . . . CREW criticizes DOJ for seeking appeal

Watchdog group suing for Trump obstruction memo blasts DOJ for trying to block release

By Harper Neidig, The Hill, May 25, 2021

The liberal watchdog group that has been fighting in court to obtain internal Department of Justice (DOJ) documents from the Trump era criticized the Biden administration on Tuesday for trying to block the release of a legal memo that was used to clear the former president of wrongdoing after the Mueller investigation.

Read more here.

Court opinions issued May 24, 2021

Scott v. IRS (S.D. Fla.) -- denying agency’s motion for reconsideration of court’s ruling that certain records were not properly withheld as “return information” pursuant to Exemption 3 and 26 U.S.C. § 6103(a); declining to consider agency’s new argument that disputed records were also protected under 26 U.S.C. § 6103(b)(2)(A).

Leopold v. DOJ (D.D.C.) -- denying government’s motion to consolidate three cases concerning records about the attack on the U.S Capitol on January 6, 2021, because the overlap in agencies and documents was limited and consolidation would not necessarily be more efficient.

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