FOIA News: SCOTUS to consider "consultant corollary" petition

On Friday, January 7, 2022, the U.S. Supreme Court will consider whether to grant a petition for a writ of certiorari to the Fifth Circuit case Jobe v. NTSB,. The petition asks the Court to reject the “consultant corollary” doctrine outright or, alternatively, to hold that a “self-interested party helping an agency to investigate its own conduct cannot possibly create “intra-agency” communications.” The docket material is available on SCOTUSblog here.

Court opinion issued Dec. 30, 2021

Akel v. DOJ (D.D.C.) -- concluding that the Executive Office of U.S. Attorneys performed reasonable search for records concerning plaintiff’s prosecution, except for its failure to try to recover and search emails of one former prosecutor who worked on plaintiff’s case.

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

FOIA News: Backlog of requests worsened at DOD, DOE, HHS, DOJ, and State in FY 2021; improved at Education; steady at Interior

Backlogged FOIA requests increased by double digits in fiscal year 2021 at the Department of Defense; Energy; Health & Human Services; Justice; and State, according to quarterly data available on FOIA.gov. The Department of Education, by contrast, was able to reduce its backlog by double digits, while Interior’s backlog increased by only single digits. Here is a breakdown of the preliminary data:

• Defense: 11% increase, from 16,000 backlogged requests in 2020 to 17,774 in 2021.

• Education: 19% decrease, from 819 backlogged requests in 2020 to 693 in 2021.

• Energy: 22.7% increase, from 554 backlogged requests in 2020 to 680 in 2021.

• HHS: 14% increase, from 8817 backlogged requests in 2020 to 10,053 in 2021

• Interior: 4% increase, from 4100 backlogged requests in 2020 to 4267 in 2021.

• DOJ: 38% increase, from 36,018 backlogged requests in 2020 to 50,017 in 2021.

• State: 15.8% increase, from 13,798 backlogged requests in 2020 to 15,984 in 2021.

Other cabinets agencies have not yet entered data in FOIA.gov for all four quarters of FY 2021. Agencies were required to provide their FY 2021 annual reports to DOJ’s Office of Information Policy for review by November 15, 2021, and they must post their annual reports online by March 1, 2021.

Court opinions issued Dec. 28, 2021

Kalbers v. DOJ (9th Cir.) -- reversing district court’s decision that Volkswagen AG could not intervene as of right in FOIA lawsuit involving the company’s records and holding, in most relevant part, that the factor of delay “is measured from the date the proposed intervenor knew or should have known the parties would no longer adequately protect its interests” as opposed to the date when proposed intervenor learned of the FOIA lawsuit.

Kinnucan v. Nat'l Sec. Agency (W.D. Wash.) -- deciding that: (1) House Appropriations Committee report concerning 1967 attack on U.S. naval intelligence ship was not an “agency record” subject to FOIA, because “the Committee clearly indicated its intent to control the report by marking it ’Not for release unless and until authorized by the Committee’”; (2) CIA failed to carry its burden with respect to its withholdings under Exemptions 1 and 3, necessitating in camera review; and (3) despite age of records, CIA could retain its Exemption 6 withholdings because plaintiff failed to articulate any public interest in disclosure.

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

Court opinion issued Dec. 23, 2021

Property of the People v. DOJ (D.D.C.) -- on renewed summary judgment, concluding that the FBI properly relied on Exemption 7(C) in refusing to confirm or deny existence of investigatory records pertaining to former congressperson, Dana Rohrabacher of California.

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

Court opinions issued Dec. 21, 2021

Hammond v. DOD (D.D.C.) -- finding that: (1) Walter Reed National Military Medical Center performed “reasonable and adequate” searches in response to plaintiff’s multiple requests, noting that plaintiff was not “entitled to a search of his own choosing”; (2) agency properly invoked Exemption 6 to withhold names of individuals who requested their own medical records; (3) plaintiff was not entitled to injunctive relief based on agency’s use of batched FOIA tracking numbers.

Cole v. Copan (D.D.C.) -- adopting in part and denying in part magistrate’s recommendations and holding that: (1) FEMA and NIST did not adequately explain how it searched for requested records concerning the collapse of the World Trade Center buildings on September 11, 2001; (2) plaintiff was entitled to limited discovery from FEMA concerning 490,000 pages of WTC-related records stored at NARA, but that FEMA sufficiently explained discrepancy as to whether certain missing records might be in its regional office’s local archives.

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

FOIA News: FERC wins Exemption 6 case at D.C. Circuit

DC Circ. Sides With FERC Over Nonprofit's FOIA Suit

By Clark Mindock, Law360, Dec. 20, 2021

The D. C. Circuit has said the Federal Energy Regulatory Commission need not provide more than the initials and street names of property owners potentially impacted by a now-discontinued pipeline project, rejecting a nonprofit's claims that full names were necessary. A three-judge panel said Friday that the Niskanen Center had failed to identify an overriding public interest that would compel the federal agency to disclose the full names and addresses of landowners who own property along the pipeline's path since the nonprofit would've been able to figure out those contacts from the offered information. While the Niskanen Center had argued the Freedom. . .

Read more here (accessible with free 7-day trial)

Copy of decision here.

Court opinions issued Dec. 17, 2021

Niskanen Ctr. v. FERC (D.C. Cir.) -- affirming district court’s decision that agency properly invoked Exemption 6 to withhold the full names and addresses of property owners along the route of a proposed pipeline and that only the property owners’ initials and street names could be released.

Pub. Emps. for Envtl. Responsibility v. DHS (D.D.C.) -- finding that DHS properly relied on Exemption 5’s deliberative process privilege to withhold records pertaining to Federal Emergency Management Agency’s 2015 Strategic National Risk Assessment and that the agency met its statutory burden to show foreseeable harm.

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

Court opinion issued Dec. 16, 2021

Picardi v. U.S. Attorney's Offices (D.S.D.) -- determining that Executive Office for U.S. Attorney’s Office performed reasonable search for records concerning plaintiff’s criminal and civil tax trials in South Dakota, and that it properly withheld grand jury material pursuant to Exemption 3 and third party information pursuant to Exemptions 6 and 7(C).

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

FOIA News: DOJ updates Exemptions 4 and 7(F) of FOIA Guide

On December 16, 2021, the Department of Justice’s Office of Information Policy issued updated versions of Exemption 4 and Exemption 7(F) of the Guide to the Freedom of Information Act.