Court opinions issued June 3, 2022

Eddington v. DOD (D.C. Cir.) -- affirming district court’s decision that requester failed to present sufficient evidence to overcome agency’s declaration that it did not receive any of his requests emailed to 14 DOD components and rejecting appellant’s argument that district court abused its discretion in failing to order discovery.

Barnes v. FBI (D.C. Cir.) -- affirming district court’s decision that requester’s criminal plea bargain precluded requester from seeking government records pertaining to his case, because government identified legitimate criminal-justice interest in enforcing waiver provision.

Fogg v. IRS (8th Cir.) -- reversing district court’s decision that IRS properly withheld portions of Internal Revenue Manual pursuant to Exemption 7(E) and remanding for in camera review, because agency’s declaration erroneously characterized the IRS solely as a law enforcement agency.

Am. Civil Liberties Union of Mass. v. ICE (D. Mass.) -- deciding that: (1) agency did not perform adequate search for records concerning a Massachusetts state judge and court security officer who helped a criminal defendant evade ICE arrest; (2) agency properly relied on Exemption 7(A) to withhold records related to pending criminal prosecution of the judge and court officer.

Reporters Comm. for Freedom of the Press v. FBI (D.D.C.) -- on remand from D.C. Circuit, finding that agency properly relied on Exemption 5’s deliberative process privilege and met foreseeable harm requirement in withholding portions of draft OIG report regarding agency’s impersonation of a journalist in 2007.

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

Court opinion issued June 2, 2022

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of State (D.D.C.) -- deciding that: (1) agency properly relied on Exemption 5’s deliberative process privilege to withhold some, but not all, disputed records regarding a 2019 telephone conference call on international religious freedom; and (2) agency properly withheld email username of former Secretary Pompeo, but that agency improperly withheld government email domain address of former Deputy Secretary and the private email domain address of an agency employee.

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

FOIA News: GSA withholding names of Trump and Pence staffers

Trump staffer records should remain secret, Biden administration lawyers argue

Dave Levinthal, Insider, June 3, 2022

• Insider filed a Freedom of Information Act request seeking records about Trump and Pence's post-presidency transition offices.

• General Services Administration officials refused to release some records, and Insider sued.

• The lawsuit is pending in federal district court.

There is "no discernible public interest" in disclosing the identities of six taxpayer-funded staffers who worked for former President Donald Trump or Vice President Mike Pence after they left office, Biden administration lawyers told a federal district court Wednesday. 

Releasing the Trump and Pence staffers' names would "constitute a clearly unwarranted invasion of their privacy," according to a motion filed by Department of Justice attorneys, including US Attorney Matthew Graves, who President Joe Biden nominated. 

Read more here.

FOIA News: FOIA training for NPR

National Public Radio will provide a free FOIA training session on June 15, 2022, from 3pm to 4pm.

Court opinion issued May 31, 2022

Am. Civil Liberties Union of Me. Found. v. USCIS (D. Me.) -- concluding that: (1) agency reasonably declined to search thousands of A-Files for certain requested documents because search would be too burdensome, and that agency’s search for other records was adequate; (2) agency properly withheld records pursuant to Exemption 5’s deliberative process privilege and Exemption (7C); (3) agency properly relied on Exemption 6 to withhold asylum applicant names, addresses, names of relatives, and addresses of relatives, but improperly withheld citizenship information, country of origin, political affiliation, roles in political elections, and religious affiliation; and (4) agency properly invoked Exemption 7(E) to withhold certain records related to detecting fraudulent asylum applications, but ordering disclosure or in camera review for other withheld records.

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

FOIA News: Billionaires use FOIA, too (but presumably can afford to pay all fees)

Billionaire Koch Brother Files FOIA Against FBI in Crusade Against Counterfeit Wine

Am. L. Media, May 31, 2022

Bond, Schoeneck & King filed a Freedom of Information Act lawsuit against the FBI Saturday in New York Southern District Court on behalf billionaire and collector Bill Koch and wine commentator Bradley Goldstein.

The complaint, which arises from Koch’s attempts to expose alleged fraud within the international rare wine market, seeks records related to wine distributor Royal Wine Merchants and deceased wine counterfeiter Meinhard Gorke a/k/a ‘Hardy Rodenstock’ and ‘Meinhard Lehner.’

The case is 1:22-cv-04421, Koch et al v. Federal Bureau Of Investigation.

A copy of the complaint is here.

Court opinions issued May 27, 2022

Hyatt v. U.S Patent & Trade Office (D.D.C.) -- ruling that: (1) agency properly denied plaintiff’s request for waiver of fees arising from request for records concerning plaintiff’s patent applications, because plaintiff failed to show that records would advance public understanding of agency operations; and (2) administrative record did not adequately support agency’s determination that plaintiff’s request fell within commercial use fee category, and remanding to agency for further action; declining to decide whether standard of review should be de novo or “arbitrary and capricious."

Am. Oversight v. HHS (D.D.C.) -- on review of Magistrate Judge’s report and recommendation, holding that: (1) judge did not clearly err in finding that U.S. House committee was a proper defendant-intervenor and that court had subject matter jurisdiction, rejecting plaintiff’s “counter-intuitive theory“ that the Committee was required to seek injunction against government defendants; (2) judge did not clearly err in finding that HHS performed adequate search for records regarding health care reform legislation; (3) agency properly relied on Exemption 5’s consultant corollary to withhold records of communications with Congress, except for certain factual information; (4) HHS was required to submit additional affidavit clarifying with certainty whether or not talking points were adopted as the agency’s position or were later used and shared outside the agency; (5) OMB was required to disclose names of attendees and locations of meetings; and (6) judge did not clearly err in denying plaintiff’s requests for in camera review and discovery.

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

FOIA News: OGIS releases annual report

On May 26, 2022, the Office of Government Information Services released a report of its activities for fiscal year 2021, which included handling approximately 4,200 requests for assistance. OGIS also made four recommendations to Congress to improve the administration of FOIA.

Court opinions issued May 20, 2022

Crow v. IRS (D. Idaho) -- determining that IRS properly relied on Exemption 3 in conjunction with 26 U.S.C. § 6103(a) to withheld certain records concerning its investigation of plaintiff and rejecting plaintiff’s argument that instant FOIA action permitted IRS to release return information under section 6103(h)(4) of the Internal Revenue Code (authorizing release in “judicial or administrative proceeding pertaining to tax administration”).

Khullar v. Rosario (S.D. Fla.) -- finding that U.S Patent and Trademark Office performed reasonable search for disciplinary records concerning plaintiff; rejecting plaintiff’s arguments that agency’s declaration contained inadmissible hearsay, that USPTO's response to a prior FOIA request raised questions about agency’s search, and that USPTO's search was inadequate because it failed to yield three allegedly responsive documents.

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

FOIA News: Final meeting of the 2020-2022 FOIA Advisory Committee

FOIA Advisory Committee meets June 9 for final meeting of 2020-2022 term

OGIS, The FOIA Ombudsman Blog, May 23, 2022

The final meeting of the 2020-2022 term of the Freedom of Information Act (FOIA) Advisory Committee is Thursday June 9, from 10 a.m. to 1 p.m. EDT. This virtual meeting is open to the public and registration is required for those wishing to make oral public comments. Please register here by 11:59 p.m. ET on Tuesday June 7, to receive an email with instructions for accessing the meeting via WebEx. We also will livestream the meeting on the National Archives YouTube channel (with a slight transmission delay). We will monitor the chat function via WebEx and YouTube

Read more here.