FOIA Advisor

Court opinions issued July 2, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Platsky v. FBI (S.D.N.Y.) -- determining that FBI properly relied on Exemption 7(E) in refusing to confirm or deny the existence of records indicating whether plaintiff appeared on watch list.

Reporters Comm. for Freedom of the Press v. FBI (D.C. Cir.) -- affirming in part, reversing in part, and dismissing in part district court’s decision concerning records of FBI’s impersonation of the media, and concluding that: (1) the government “properly withheld the emails in which FBI leadership deliberated about appropriate responses to media and legislative pressure to alter the FBI’s undercover tactics, as well as internal conversations about the implications of changing their undercover practices going forward;” and (2) the government “did not satisfy its burden to show either that the other documents at issue in this case were deliberative or that their disclosure would cause foreseeable harm.”

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

FOIA News: Happy Birthday, FOIA

FOIA News (2015-2024)Allan BlutsteinComment

Saluting FOIA on its birthday

By Michael R. Lemov, The Hill, July 4, 2021

For 12 years, Rep. John Moss of California fought for passage of an astonishing new concept: a law that would make all government records available to any “person.”

In this year of government and public division, history shows that this great legislative achievement was accomplished by Democrats and Republicans working together. Moss was a Democrat. President Lyndon Johnson was a Democrat. But, FOIA was enacted only with last minute Republican help.

Read more here.

Court opinion issued July 1, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Brennan Ctr. for Justice at NYU Sch. of Law v. DOJ (D.D.C.) -- granting part and denying in part DOJ’s motion for reconsideration and holding that Exemption 7(C) protected only the docket numbers of cases that were accidentally designated as terrorism-related, involved terrorism-related investigations but not terrorism-related prosecutions, or were categorized as terrorism-related for agency’s internal purposes with no public connection to terrorism.

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

Court opinions issued June 30, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Schoenberg v. FBI (9th Cir.) -- in case concerning FBI’s search warrant to recover Hillary Clinton’s emails, affirming district court’s decision that plaintiff was not entitled to attorney’s fees because FBI’s redactions were legally reasonable and that factor outweighed all other factors.

Murder Accountability Proj. v. DOJ (D.D.C.) -- ruling that: (1) plaintiff failed to administratively appeal FBI’s response to his request for certain unreported crime data; (2) National Park Service performed adequate and reasonable search for unreported crime data; (3) Bureau of Indian Affairs failed to explain why it did not search for records requested prior to 2014; (4) Army, Navy, and Air Force did not demonstrate the adequacy of their search, but they properly relied on Exemption 6 to redact third party names, social security numbers, and alien registration numbers.

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

DOJ, ACLU Spar Over Redacted Documents In Social Media FOIA Case

FOIA News (2015-2024)Allan BlutsteinComment

DOJ, ACLU Spar Over Redacted Documents In Social Media FOIA Case

  • Dispute over FOIA Exemptions 7(E) and (b)(5)

  • Judge ordered in camera document review

By David McAfee, Bloomberg Law, July 2, 2021, 5:01 PM

The Department of Justice and the American Civil Liberties Union Foundation sparred in federal court Friday over how much disclosure is warranted in a Freedom of Information Act case brought in California over social media monitoring programs.

The ACLU filed the suit in January of 2019, and is seeking records that relate to the U.S. government’s collection and monitoring of social media information for various purposes. In November 2019, Judge Edward M. Chen of the U.S. District Court for the Northern District of California ruled that the FBI couldn’t refuse to confirm or deny the existence of records pertaining to ...

See full article here (subscription required).

See district court’s 2019 decision here.

FOIA News: Ninth Circuit Affirms Denial of Fees re Clinton emails

FOIA News (2015-2024)Allan BlutsteinComment

Ninth Circuit Denies Fees in Hillary Clinton Emails Case

Los Angeles Lawyer Who Was Plaintiff in Seeking Unredacted Documents Is Denied Recompense for Moneys Spent on Legal Representation; Opinion Cites Reasonableness of FBI’s Initial Partial Denial of FOIA Request

MetNews, July 1, 2021

The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order denying attorney fees to a Los Angeles lawyer who successfully challenged the FBI’s refusal to provide an Oct. 30, 2016 search warrant and related documents in its investigation into Hillary Clinton’s email practices while secretary of state from 2009-13.

She allegedly discussed classified documents using her personal email account—which emerged as an issue in the 2016 presidential campaign in which she was the Democratic nominee.

Seeking the fees is E. Randol Schoenberg, best known for his litigation efforts to recover artworks looted by the Nazis under Hitler’s regime.

Read more here.

FOIA News: Railroad Retirement Board amending FOIA regulations

FOIA News (2015-2024)Ryan MulveyComment

The Railroad Retirement Board published an interim final rule with request for comments in this morning’s edition of the Federal Register. Among other things, the proposed amendments are being introduced to comply with the FOIA Improvement Act of 2016, as well as to reflect developments in fee caselaw. The interim rule is effective immediately; public comments are due by August 2, 2021.

Court opinions issued June 28, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Withey v. FBI W.D. Wash.) -- denying attorney’s fees to attorney plaintiff who pursued records in order to further his personal interests and awarding only $21,015 of$69,680 requested for other attorneys’ fees because plaintiff obtained no post-complaint relief.

Ferrera v. DHS (D.N.M.) -- determining that Exemption 6 applied to a letter that plaintiff’s ex-wife sent to USCIS withdrawing her previous immigration petition, but that agency could segregate and release information from the letter that agency had described, i.e., date, author, and withdrawal of petition.

Humane Soc’y of the U.S. v. USDA (D.D.C.) -- ruling that Farm Service Agency improperly relied on Exemptions 3, 4, and 6 to withhold loan recipient names, addresses, and operation types; the intended use of loans; and documents FSA created during its environmental review of loans.

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

FOIA News: ATF's FOIA program assailed by media requesters

FOIA News (2015-2024)Allan BlutsteinComment

The ATF's failure to produce public records keeps the gun industry in the shadows

By Alain Stephens & Daniel Nass, The Trace, June 25, 2021

One gun store had hundreds of firearms missing from its inventory. Another transferred a weapon to a convicted felon in a parking lot. Many more sold guns to prohibited buyers or without properly conducting background checks

The sweeping analysis that uncovered these law-breaking gun dealers was possible only because the gun control organization Brady waged a years-long legal fight to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives to produce records that by law should be public.

Read more here.