Court opinions issued Dec. 8, 2021

AquAlliance v. U.S. Bureau of Reclamation (D.D.C.) -- ruling that agency performed adequate search for summaries of certain 2020 water transfers; rejecting plaintiff’s argument that agency was also required to search for underlying data, because plaintiff expressly limited its request to summaries.

W. Watersheds Project v. Nat'l Park Serv. (D. Idaho) -- granting government’s motion to change venue to Utah notwithstanding plaintiff’s principal place of business in Idaho, because case primarily involves plaintiff’s FOIA requests for documents located in Utah and how agency employees in Utah responded to those requests.

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

Court opinion issued Dec. 7, 2021

Pickering v. DOJ (W.D.N.Y.) -- concluding that FBI performed reasonable search for records pertaining to convicted murderer Leonard Peltier and properly withheld records pursuant to Exemptions 3, 5 (attorney work-product), 6, 7(C), 7(D), and 7(E).

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

FOIA News: FOIA Advisory Committee meeting on Dec. 9, 2021

The Freedom of Information Act Advisory Committee will meet remotely on Thursday, December 9, 2021, from approximately 10am to 1pm. The meeting agenda is available here. A livestream link is here.

FOIA News: Trump Agreements With IRS, But Not Tax Returns, Must Be Released

Trump Agreements With IRS, But Not Tax Returns, Must Be Released

Bloomberg Tax, Dec. 6, 2021

Information tied to any compromise agreements that former President Donald Trump made with the IRS over his personal and business tax returns must be released, even though the underlying returns are protected, a federal court ruled.

The decision included partial wins for both the IRS and the Electronic Privacy Information Center, a nonprofit that requested personal and business tax records tied to Trump under the Freedom of Information Act. The center argued that an exception under tax code Section 6103(k)(1) to the general law protecting tax return privacy applied pertaining to return information that is necessary to allow for an inspection of any accepted offer-in-compromise between a taxpayer and federal tax authorities.

Read more here.

Q&A: Who can I FOIA?

Q. Can the House Committee on Oversight and Reform be the subject of a FOIA request?

A. A congressional committee is not required to respond to a FOIA request (if that’s your question), nor must individual lawmakers. The statute requires compliance only from an “agency,” which includes “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f).

Q. Can I FOIA a federally chartered hospital?

A. Probably not. An institution is not subject to FOIA merely because it was created or is funded by the federal government. It must function as an agency (e.g., under extensive, detailed, and virtually day-to-day government supervision), as opposed to a private sector operation.

FOIA News: DOJ/OIP updates Exemption 9 of FOIA Guide

On December 1, 2021, the Department of Justice’s Office of Information Policy posted an updated version of the Exemption 9 section of the Department of Justice Guide to the Freedom of Information Act. Earlier this year, OIP updated sections Exemption 1 (Mar. 4, 2021), Exemption 3 (June 2, 2021), Exemption 7(B) (June 3, 2021) and Procedural Requirements (Aug. 20, 2021).

Court opinion issued Dec. 3, 2021

Surgey v. EPA (D.D.C.) -- determining that: (1) EPA likely performed reasonable search for records concerning former Administrator’s trip to 2018 Rose Bowl game, but neglected to invoke the “magic words” that it searched all locations likely to contain responsive records; (2) EPA properly relied on Exemption 6 to withhold records about the former Administrator’s family vacation, and reserving judgment as to whether the agency properly withheld records concerning security personnel’s travel and logistical coordination under Exemptions 7(E) and 7(F).

Elec. Privacy Info. Serv. v. IRS (D.D.C.) -- ruling that the IRS improperly relied on Exemption 3 to withhold tax settlement agreements between the agency and Donald Trump and businesses associated with him, and that plaintiff was precluded from accessing copies of tax returns pursuant to the same exemption.

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

FOIA News: DOJ/OIP hiring staff attorney

The Department of Justice’s Office of Information Policy is looking for an attorney to join its litigation staff at the GS-12 salary level. The application deadline is December 26, 2021. See the vacancy announcement here.

Court opinion issued Nov. 30, 2021

Elec. Privacy Info. Ctr. v. DOJ (D.C. Cir.) -- affirming district court’s decision that DOJ properly invoked Exemption 7(C) to redact the identities of third parties investigated but not charged by Special Counsel Mueller, except with respect to “the information relating to individuals investigated for campaign violations, as the factual circumstances surrounding this portion of the investigation are already publicly available in the unredacted portions” of Muller’s report.

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

FOIA News: Lawmaker seeks expedited disclosure of vaccine data

Rep. Norman demands FDA release COVID vaccine data in 100 days

FDA requested 55 years to hand over data relating to coronavirus vaccine

By Caitlin McFall, Fox News, Dec. 2, 2021

South Carolina Republican Rep. Ralph Norman on Thursday introduced legislation that could force the Food and Drug Administration to release all documents relating to the coronavirus vaccine within the next 100 days. 

The legislation is a direct response to a request made last month by the federal agency to prolong releasing data on COVID vaccines for up to 55 years. 

"How does a vaccine that receives approval in 108 days now require 55 years just to release information?" Norman said to Fox News. "It sounds like the beginning of a very bad joke."

Read more here.