DC Circ. Dubious DOJ Could Block Trump Obstruction Memo
By Khorri Atkinson, Law360, Dec. 1, 2021
The D.C. Circuit appeared unconvinced Wednesday by the U.S. Department of Justice's justification for blocking a legal memo concerning whether former President Donald Trump illegally obstructed justice during former special counsel Robert Mueller's investigation into Russian interference in the 2016 election.
Read more here (subscription).
IRS Releases Asset Forfeiture Docs To Libertarian Law Firm
By Theresa Schliep, Law360, Dec. 1, 2021
The Internal Revenue Service released documents on its asset forfeiture program to a nonprofit libertarian law firm that has sought information on the agency's property seizures, according to joint filings in D.C. federal court.
Read more here (subscription).
Nat. Res. Def. Council v. EPA (2nd Cir.) -- reversing in part and vacating in part district court’s decision and holding that: (1) “messaging documents”— i.e., records relating to agency’s decision about how to communicate its policies to people outside the agency—merit protection under Exemption 5’s deliberative process privilege unless they reflect “merely descriptive discussions”; and (2) “briefing documents”—i.e., records “created to brief senior agency staff about various topics”—could qualify under the deliberative process privilege even if they did not relate to a specific decision facing the agency.”
Bolze v. EOUSA (D.D.C.) -- granting summary judgment to government after determining that EOUSA and FBI performed adequate searches for records concerning plaintiff and that plaintiff declined to challenge any withholdings.
Brennan Ctr. for Justice v. ICE (S.D.N.Y.) -- deciding that ICE did not perform adequate search for certain handbooks and training material and that agency properly withheld some portions, but not all, of its National Security Investigation Handbook pursuant to Exemption 7(E).
Summaries of all published opinions issued since April 2015 are available here.
Am. Civil Liberties Union v. CIA (D.D.C.) -- in case concerning the names of current or former government employees who had been granting exemptions from prepublication process, ruling that CIA properly withheld certain names pursuant to Exemptions 1 and 3 but not Exemption 6.
Nat'l Pub. Radio v. Int'l Dev. Fin. Corp. (C.D. Cal.) -- ruling that: (1) agency improperly relied on the deliberative privilege process to withhold three categories of records concerning proposed $756 million loan to the Eastman Kodak, noting that the record constituted public messaging, not substantive policy decisions; and (2) two of three remaining disputed emails fell within the deliberative process and met the foreseeable harm standard.
Summaries of all published opinions issued since April 2015 are available here.
The University of Virginia’s law review has published a Note that argues that “courts must consider derivative benefits as part of the public interest” when employing Exemptions 6 and 7(C) of the FOIA. Read the article here.
The FAA accidentally disclosed more than 2,000 flight records associated with Jeffrey Epstein's private jets
By Angela Wang, Business Insider, Nov. 29, 2021
Insider requested all flight-history data associated with four planes owned by Jeffrey Epstein. The FAA rejected the request but later provided the records in response to an unrelated request. The new FAA records include hundreds of previously unknown flights made by Epstein's jets.
Read more here.
Am. Civil Liberties Union v. DHS (S.D.N.Y.) -- finding that government’s proposed processing rate of 500 pages monthly was reasonable and ordering DHS to refer plaintiff’s request to two components that might have potentially responsive records.
Chavis v. EOUSA (D.D.C.) -- on renewed summary judgment, ruling that EOUSA performed adequate search for records pertaining to plaintiff’s criminal case and that Exemption 5 issue was moot because agency released disputed records.
Summaries of all published opinions issued since April 2015 are available here.
Buckley v. DOJ (W.D.N.Y.) -- ruling that: (1) FBI performed reasonable search for records concerning plaintiff and third parties, (2) FBI failed to provide enough information to justify withholding records pursuant to Exemption 3 in conjunction with the Pen Register Act; (3) FBI properly withheld records pursuant to Exemption 7(C), 7(D), and 7(F).
Summaries of all published opinions issued since April 2015 are available here.
Wait what? FDA wants 55 years to process FOIA request over vaccine data
By Jenna Greene, Reuters, Nov. 18, 2021
Freedom of Information Act requests are rarely speedy, but when a group of scientists asked the federal government to share the data it relied upon in licensing Pfizer’s COVID-19 vaccine, the response went beyond typical bureaucratic foot-dragging.
As in 55 years beyond.
That’s how long the Food & Drug Administration in court papers this week proposes it should be given to review and release the trove of vaccine-related documents responsive to the request. If a federal judge in Texas agrees, plaintiffs Public Health and Medical Professionals for Transparency can expect to see the full record in 2076.
Read more here.
Tech Improvements That Can Help Gov't Tackle FOIA Backlog
By Ken Koch & Erica Spector, Law360, Nov. 17, 2021
As the number of Freedom of Information Act requests submitted to the federal government continues to grow, so does the cost to the government. The Congressional Research Service notes that current prioritization of pandemic-related requests, remote work, and an inability to coordinate requests have increased existing backlog, and caused federal agencies to process significantly fewer FOIA requests in longer times in fiscal year 2020 than in fiscal year 2019.
Read more here (accessible with free trial).