FOIA News: Volkswagen seeks to protect internal investigations records

VW Asks 9th Circ. For Say Over Jones Day Docs In FOIA Suit

Law360, June 7, 2021

Volkswagen has told the Ninth Circuit that it should have a say on whether the U. S. Department of Justice releases confidential documents in response to a Freedom of Information Act lawsuit, saying Jones Day's findings on Volkswagen's internal investigation into the 2015 emissions-cheating scandal are protected. Volkswagen AG insisted in a Friday reply brief that it should be allowed to intervene in Loyola Marymount University professor Lawrence Kalbers' FOIA lawsuit seeking to get the Justice Department to publicly release Jones Day's findings — which have been kept under wraps — on how the "clean diesel" emissions-cheating scandal took shape, as well. . .

Read more here (accessible with a free trial subscription).

Court opinions issued June 3, 2021

Ecological Rights Found. v. EPA (N.D. Cal.) -- after reviewing 30 sample documents in camera, deciding that: (1) EPA improperly relied on Exemption 5’s deliberative process privilege to withhold discussions regarding general personnel matters and hiring plans; records concerning early employee retirement and separation programs; and responses to oversight, investigatory, and media inquiries; (2) EPA demonstrated the applicability of the attorney-client privilege and presidential communications privilege, but the agency neglected to describe any foreseeable harm that would result from disclosure; (3) EPA improperly relied on Exemption 6 to withhold a reporter’s business phone number and the names of restaurants frequented by Administrator Pruitt; the agency properly relied on the exemption to withhold portions of employee resignation letters; and (4) EPA was required to review all remaining responsive documents in accordance with the court’s findings.

Emuwa v. DHS (D.D.C.) -- finding that DHS properly used Exemption 5’s deliberative process privilege to withhold the analyses of asylum officers concerning applications for asylum, consistent with a 2015 D.C. Circuit decision concerning the same type of documents.

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

FOIA News: POGO asks for investigation of DOJ FOIA lawyers

The Project On Government Oversight (POGO) has asked the Department of Justice’s Inspector General to investigate whether four lawyers “committed perjury or other crimes” while defending DOJ in Citizens for Responsibility and Ethics in Wash. v. DOJ, No. 1:19-cv-01552-ABJ (D.D.C. May 3, 2021) (appeal pending), a FOIA case concerning DOJ’s review of Special Counsel Mueller’s report about Russian interference in the 2016 presidential election.

Read the letter here.

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