FOIA News: Ninth Circuit shields the NRC from premature lawsuit

9th Circ. Tosses FOIA Suit Seeking Nuclear Energy Plant Docs

Law360, Aug. 24, 2021 -- The Ninth Circuit affirmed a lower court's string of decisions in favor of the U. S. Nuclear Regulatory Commission in Freedom of Information Act lawsuits over an incident at the San Onofre Nuclear Generating Station, holding that the lawsuits were filed prematurely. In a 15-page published opinion, a three-judge panel found on Monday that a lower court got it right when it determined that attorney Michael Aguirre failed to exhaust all remedies at hand in his records pursuit before suing the Nuclear Regulatory Commission a number of times. The panel noted in an issue of first impression for the circuit that those requesting. . .

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See the post below for a copy of the opinion.

Court opinion issued August 23, 2021

Aguirre v. NRC (9th Cir.) -- affirming district court’s decision that plaintiff failed to exhaust his administrative remedies with respect to his four requests concerning the San Onofre Nuclear Generating Station, and notably joining other circuits in holding that “a requestor must exhaust his administrative remedies under FOIA so long as an agency properly responds before suit is filed.”

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

FOIA News: SEC amends FOIA regulations

The Securities and Exchange Commission issued a final rule on August 23, 2021, which removes a regulatory requirement to provide a computer terminal in the Commission’s Public Reference Room for persons who cannot access electronic records that the agency proactively publishes pursuant to FOIA.

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.