Court opinion issued Apr. 8, 2022

Matthews v. EOUSA (5th Cir.) (unpublished) -- affirming district court’s decision that requester’s timeliness claims became moot once agencies responded to his requests.

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

FOIA News: Chief FOIA Officers Council Meeting

The Chief Freedom of Information Act Officers Council will meet virtually on Thursday, April 21, 2022, from 10AM to noon. See the following announcement in the Federal Register for further information.

Court opinions issued Apr. 6, 2022

Knight First Amendment Inst at Columbia Univ. v. USCIS (2nd Cir.) -- reversing district court’s decision in case related to vetting immigrants entering the country and ruling, in most relevant part, that: (1) Department of State properly withheld portions of its Foreign Affairs Manual pursuant to Exemption 7(E); and (2) USCIS properly withheld terrorism-related questions pursuant to Exemption 7(E), rejecting argument that law enforcement techniques or procedures must be “special or technical” to be protected; further finding that requester did not carry its burden to show that the questions at issue were ”publicly available.”

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

FOIA News: 2nd Circuit protects docs related to border screening

Court blocks disclosure of docs on immigrant terrorist screenings

By Daniel Wiessner, Reuters, Apr. 6, 2022

• Field manual, interview questions are related to law enforcement

• Court reversed judge who said docs could not be withheld

• Group sought documents after Trump ordered more vetting

A U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.

A 2nd U.S. Circuit Court of Appeals panel said portions of a U.S. Department of State field manual on reviewing visa applications, and model questions U.S. Citizenship and Immigration Services officers can ask applicants, were created for law enforcement purposes and are shielded from disclosure under the federal Freedom of Information Act.

Read more here.

FOIA News: Another look at SCOTUS nominee's FOIA record

Judge Ketanji Brown Jackson’s FOIA Record

By Stephen Piepgrass & Abby Thornill, Troutman Pepper, Apr. 6, 2022

On February 25, President Biden nominated Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia to fill the vacancy on the Supreme Court created by Justice Stephen Breyer’s retirement. Judge Jackson’s resume includes almost 10 years of service on the bench — she was first nominated by President Obama to the District Court for the District of Columbia in 2012 and served as a federal trial judge until her appointment to the Circuit Court in 2021. Sitting as a judge in the nation’s capital, her docket included an extensive number of cases involving the federal Freedom of Information Act (FOIA), as individuals and business challenged federal agencies’ withholding of requested documents sought under the federal statute. Judge Jackson’s rulings in many of these cases provides insight into where she stands with respect to important FOIA issues. If she is confirmed to the highest court, Judge Jackson’s stance and views on these issues could affect the privacy interests, intellectual property rights, and business interests of all individuals and business who contract and correspond with government agencies.

Read more here.

FOIA News: DOJ post on Senate hearing testimony

OIP DIRECTOR TESTIFIES BEFORE SENATE COMMITTEE

By DOJ/OIP, FOIA Post, Apr. 4, 2022

On March 29, 2022, Office of Information Policy (OIP) Director Bobak Talebian testified in a hearing before the Senate Judiciary Committee entitled, “The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century.”  In his testimony, Director Talebian highlighted the Attorney General’s new FOIA Guidelines, issued during Sunshine Week earlier this month.  He also discussed government-wide FOIA administration and OIP’s role in encouraging compliance with the FOIA, highlighting OIP’s guidance, training, and other resources; efforts to promote agency accountability through reporting; the work of the Chief FOIA Officers Council; and continued development of FOIA.gov and the National FOIA Portal. 

Director Talebian acknowledged the challenges agencies have faced due to the high volume of complex requests and recent events, and reiterated OIP’s commitment to encouraging government-wide compliance with the FOIA. 

Read Director Talebian’s prepared statement to the Committee, or watch a webcast of the entire hearing.

FOIA News: FOIA Advisory Committee convenes on April 7th

The Freedom of Information Act Advisory Committee will host a virtual meeting on April 7, 2022, from 10:00AM to 1:00PM. The purpose of this meeting is to hear updates from and consider any recommendations from the four subcommittees: Classification, Legislation, Process, and Technology.

See more details here.

FOIA News: OIP updates Exemptions 7(A) & 7(C) of FOIA Guide

DOJ’s Office of Information Policy posted an updated version of Exemption 7(A) of the United States Department of Justice Guide to the Freedom of Information Act on March 22, 2022, as well as an updated version of Exemption 7(C) on March 29, 2022.

Court opinions issued Mar. 31, 2022

Khatchadourian v. DIA (D.D.C.) -- in dispute concerning records of task force that reviewed WikiLeaks disclosure, holding that: (1) DIA’s unprompted second-round review and production of records was not evidence of bad faith, as plaintiff asserted, but indication of agency’s commitment to FOIA compliance; (2) DIA properly withheld records pursuant to Exemption 1. Exemption 3 in conjunction with 10 U.S.C. § 424 and 50 U.S.C. § 3024, and Exemption 5 (deliberative process privilege); and (3) agency was not required to unredact names of certain task force members because agency already disclosed that information on the record.

McWatters v. ATF (D.D.C.) - - ruling that ATF properly relied on Exemptions 6 & 7(C) to withhold portions of a recording of a rock concert in which 100 people died by fire, but that it neglected to address whether the last 8 minutes of the recording, when no human voices are audible, was segregable or exempt.

Viola v. DOJ (D.D.C.) -- finding that: (1) plaintiff failed to provide sufficient new or relevant evidence to overturn decision that EOUSA performed adequate search for records concerning plaintiff’s mortgage fraud conviction; and (2) FBI performed adequate search for records concerning plaintiff’s sentencing judge and properly withheld records pursuant to Exemption 3 and 7(A), among others undisputed by plaintiff; and (3) parties were required to file joint status report or proposed briefing schedule as to FBI’s processing of records concerning former government informant.

SE Legal Found. v. DOJ (N.D. Ga.) -- deciding that DOJ performed reasonable search for records of attorney misconduct in connection with Carter Page’s FISA application, explaining that DOJ’s Mail Referral Unit reasonably forwarded request to the National Security Division and that plaintiff “accepted the inherent risk that the MRU [would] send the request to fewer or none of the components that [plaintiff believed were] relevant.”

Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs (D.D.C.) -- finding that: (1) agency did not provide sufficient information to justify its reliance on Exemption 4 to withhold agency’s draft report that included information prepared by the State of Mississippi regarding its proposed flood control project; and (2) agency could not use Exemption 5 to withhold draft report because state agency was not a “quasi-federal” agency nor a consultant.

Jackson v. DOJ (N.D. Ill.) -- concluding that FBI properly invoked Exemption 7(C) to redact faces of third parties and license plate numbers from videos pertaining to plaintiff’s arrest and beating by a Joilet police officer in 2012.

Magassa v. TSA. (D.D.C.) -- determining that: (1) plaintiff exhausted his administrative remedies by filing an administrative appeal that challenged the entirety of TSA’s response, noting that he was not required to “challenge each component of TSA’s responses individually”; (2) TSA conducted adequate search for various records pertaining to plaintiff; (3) TSA properly invoked Exemption 3 in conjunction with 49 U.S.C. § 114(r) to withhold records, as well to refuse to confirm or deny existence of records indicating whether plaintiff’s name appears on a watch list; and (4) TSA properly withheld names of third parties pursuant to Exemption 6.

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

Court opinions issued Mar. 30, 2022

Trotter v. CMS (D.D.C.) -- holding that plaintiff was not entitled to attorneys’ fees because plaintiff failed to identify a public benefit derived from the litigation and agency acted reasonably even though court ultimately ordered minimal disclosures.

Shapiro v. SSA (D. Vt.) -- reducing requested award of attorney fees by fifty percent because plaintiff failed to submit billing records and achieved only limited success in the litigation.

Free Sacred Trinity Church v. IRS (S.D. Cal.) -- ruling that IRS was required to perform search for records pertaining to Treasury Inspector General for Tax Administration inquiry and denying, for lack of good cause, plaintiff’s bid to expedite proceedings.

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