FOIA News: Browsing histories are not agency records, rules D.C. Cir.

DC Circ. Says Internet Browsing History Not Subject To FOIA

Law360, Aug. 23, 2021 -- The D. C. Circuit rejected a watchdog group's bid to obtain the web browsing histories of several senior government officials, including the director of the Office of Management and Budget and secretary of the U. S. Department of Agriculture, ruling that they are not considered agency records subject to disclosure under the Freedom of Information Act. A three-judge panel issued this holding Friday in a FOIA case brought by Cause of Action Institute, affirming a D. C. federal judge's November 2019 summary judgment order that said federal agencies lacked the requisite control over the history of all webpages to which a person has navigated,. . .

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See opinion in post below.

Court opinion issued August 20, 2021

Cause of Action Inst. v. OMB (D.C. Cir.) — affirming district court’s decision that Internet browsing histories of OMB and USDA officials did not qualify as “agency records,” because “the agencies’ retention and access policies for browsing histories, along with the fact that they did not use any of the officials’ browsing histories,” indicated that the agencies did not control the requested records.

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

Court opinion issued Aug. 18, 2021

Pickard v. DOJ (N.D. Cal.) -- deciding, in most relevant part, that plaintiff’s challenge to authenticity of a document released by the Drug Enforcement Agency was beyond the court’s jurisdiction and remedial powers to address.

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

Court opinions issued Aug. 17, 2021

Citizens for Responsibility & Ethics in Wash. v. USPS (D.D.C.) -- finding that: (1) agency improperly invoked Exemption 3, in conjunction with the Postal Reorganization Act, to withhold Postmaster General Louis DeJoy’s financial disclosures, recusal and divestiture obligations, and related communications with the Office of Government Ethics; (2) Exemption 5’s attorney-client privilege did not apply to records exchanged between DeJoy or USPS and OGE’s ethics counsel; and (3) agency improperly relied on Exemptions 5’s deliberative process privilege, as well as Exemption 6, to withhold recusal memoranda.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold records pertaining to CrowdTangle, a social media monitoring program, and that statute’s foreseeable harm standard was met despite agency’s generic explanations for certain redactions.

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

Court opinions issued Aug. 16, 2021

King v. DHS (D.D.C.) -- concluding that ICE performed adequate search for audio recording made by an informant in 2003 in connection with an agency investigation of a murder.

Kovalevich v. DOJ (D.D.C.) -- ruling that: (1) case was moot because plaintiff conceded that EOUSA has fulfilled its obligation to provide him with records about himself, notwithstanding redactions; and (2) pro se plaintiff was ineligible for attorney’s fees and the parties failed to adequately brief plaintiff’s request for litigation costs.

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

Court opinion issued Aug. 12, 2021

Hawkinson v. ICE (D. Mass.) -- finding that: (1) ICE and DOJ’s Executive Office for Immigration Review properly withheld certain training material and related communications pursuant to Exemptions 5 and 7(C); (2) plaintiff had standing to bring pattern-and-practice claim against ICE and DHS for allegedly failing to timely provide accurate estimated completion dates, but that plaintiff’s claim failed on the merits; and (3) plaintiff did not have standing to bring pattern-and-practice claim against ICE and DHS for allegedly failing to properly report their FOIA response times; and (4) DHS complied with section 552(j)(1) by publicizing the identity and contact information of its Deputy Chief FOIA Officer, who “could be readily inferred” as serving as Acting Chief FOIA Officer while the Chief FOIA Officer position was vacant.

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

Court opinion issued Aug. 10, 2021

Seife v. FDA (S.D.N.Y.) -- ruling that with the exception of a few documents, FDA properly relied on Exemption 5’s deliberative process privilege to withhold records pertaining to news embargoes between 2010 and 2014; stating that statute’s “foreseeable harm” provision did not apply to requests made before 2016, but that in any event FDA “met any applicable burden.”

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

Court opinions issued Aug. 6, 2021

Envtl. Integrity Proj. v. GSA (D.D.C.) -- rejecting magistrate’s recommendation that plaintiff was ineligible for attorney’s fees and litigation costs, and ruling that plaintiff was both eligible and entitled to an award in case involving reports of travel by EPA and Department of the Interior officials.

Selgjekaj v. EOUSA (D.D.C.) -- finding that: (1) agency did not demonstrate that it performed reasonable search for certain records pertaining to plaintiff’s indictment; (2) agency properly withheld certain records pursuant to Exemption 3 (Fed. R. Crim. P. 6(e), Exemption 5 (attorney work-product), and Exemption 7(C), but it did not carry its burden regarding withheld orders reflecting the commencement, termination, and extensions of the grand jury.

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

Court opinions issued Aug. 5, 2021

Brown v. EOUSA (D.D.C.) -- deciding that agency conducted adequate search for records concerning plaintiff’s criminal case and properly withheld certain records pursuant to Exemptions 3, 5, and 7(C).

Zynovieva v. U.S. Dep’t of State (D.D.C.) -- stating that some or all of requested visa records were likely protected by Exemption 3 in conjunction with 8 U.S.C. § 1202(f), but that agency’s refusal to disclose the number or specific nature of each withheld record precluded summary judgment.

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

FOIA News: Law firm issues Exemption 4 alert

Multiple Post-Argus Decisions Hold No “Assurance of Confidentiality” Required for FOIA Exemption 4

By Crowell Moring, Aug.6, 2021

In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information in response to an information request made under the Freedom of Information Act (FOIA).  (Crowell & Moring previously wrote about the new test instituted by Argus Leader here.) 

Read more here.