Court opinions issued Aug. 10-11, 2022

Aug. 11, 2022

Climate Investigations Ctr. v. U.S. Dep’t of Energy (D.D.C.) -- following five rounds of summary judgment, deciding that: (1) agency performed adequate supplemental search of Secretary’s office; (2) agency properly invoked Exemption 5’s deliberative process privilege to withhold some, but not all, disputed documents, and it met the statute’s foreseeable harm requirement.

Aug. 10, 2022

Protect the People’s Trust v. DHS (D.D.C.) -- deciding that Department’s Privacy Office received plaintiff’s request and was required to search for responsive records, because: (1) the request was addressed to the Privacy Office, among others; and (2) another DHS component referred records to the Privacy Office, as well as a copy of the request; (3) plaintiff repeatedly informed DHS that the Privacy office maintained responsive records'; and (4) DHS regulations did not require plaintiff to resubmit request if misdirected.

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

FOIA News: FOIA Advisory Committee’s upcoming schedule

The 2022-2024 term of NARA’s Freedom of Information Act Committee will meet virtually on eleven dates spanning from September 8, 2022, through June 13, 2024, according to the Committee’s webpage. The Committee’s membership has not yet been announced.

FOIA News: FOIA contest starts today. Win $100!

In fiscal year 2021, the federal government received a total of 838,164 FOIA requests. How many FOIA requests will federal agencies receive in FY 2022? Send us an email with your best guess. We’ll give away a total of $175 to those closest to the mark.

See official rules below. Good luck!

Contest Official Rules

This FOIA contest is open to all legal residents of the United States. Entrants must be 18 years of age or older as of their date of entry in the contest in order to qualify. This contest is subject to federal, state, and local laws and regulations. Void outside the United States and where prohibited by law.

The contest sponsor is FOIA Advisor, located at P.O. Box 17218, Arlington, VA 22216.

No entrance fee or purchase necessary. Submit entries by email to admin@foiaadvisor.com. Entries must include entrant’s full name. One entry per person. FOIA Advisor will not sell, rent, or lease entrants’ contact information or use it to solicit new subscribers.

Entries will be accepted from August 10, 2022, at 9:00am ET to September 30, 2022, at 11:59pm ET. Entries that are late, incomplete, unreadable, unintelligible or otherwise not in compliance with these Official Rules will be disqualified. FOIA Advisor is not responsible for lost or misdirected entries.

Prizes will consist of Amazon eGift cards. First prize, $100; second prize: $50; third prize, $25. No substitutions, exchanges, refunds or other compensation will be made for any reason, including cancellation of the contest. Winners are responsible for all taxes associated with claiming these prizes.

Winning entries will be the closest to the actual number of FOIA requests received by federal agencies in FY 2022, as reported by the U.S. Department of Justice. If two or more entrants tie for first place, the entire prize pool of $175 will be divided evenly among the first-place winners. If there is one first-place winner and two or more entrants tie for second place, the combined $75 prize pool for second and third place will be divided evenly among the second-place winners. If there are no ties for first and second place and two or more entrants tie for third place, the $25 third prize will be divided evenly among the third-place winners.

Winners will be notified by FOIA Advisor by email in 2023, when the U.S. Department of Justice is expected to publish aggregate FOIA data for FY 2022. Winners have sixty (60) days to reply to FOIA Advisor to claim prizes. In FOIA Advisor’s sole discretion, a winner may be required to forfeit a prize and an alternate winner may be selected in accordance with these Official Rules from among the remaining eligible entries for that prize if the winner: (a) is unreachable, (b) declines or cannot accept, receive or use the prize for any reason, or (c) fails to comply with these Official Rules.

By participating in this contest, entrants agree to be bound by these Official Rules and the decisions of FOIA Advisor, which are final and binding in all respects. By entering, each entrant agrees to release, discharge, indemnify and hold harmless FOIA Advisor from and against any claims, damages or liability.

By accepting a prize, a winner agrees and acknowledges that FOIA Advisor may use winner’s name and biographical data in any and all media throughout the universe and in perpetuity for promotional purposes without additional compensation, except where prohibited by law.

This contest is not sponsored, endorsed, administered, or associated with Squarespace, Amazon, or any other commercial or non-profit entity.

FOIA News: CPSC FOIA roundtable

The Consumer Product Safety Commission will host a roundtable FOIA discussion with requesters and agency staff on September 12, 2022. More details are available in CPSC’s Federal Register notice.

Court opinions issued Aug. 5, 2022

Seife v. FDA (2nd Cir.) -- affirming district court’s decision that Exemption 4 protected portions of pharmaceutical company's successful application for accelerated approval of a drug. Of note, concluding that government met statute’s foreseeable harm provision, which the Court held, in the Exemption 4 context, required the government to address “the submitter's commercial or financial interests.”

Pub. Citizen v. USDA (D.D.C.) -- ruling that agency failed to submit any admissible evidence to support its claim that Exemption 4 protected records concerning the operations of certain meat- and poultry-processing facilities during the early months of the COVID-19.

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

FOIA News: Treasury seeks to bounce POGO suit

Treasury Moves To Shut Records Request Case

By Anna Scott Farrell, Law360, Aug. 5, 2022

A federal court should grant summary judgment to the U.S. Department of the Treasury and close a watchdog group's case challenging the department's release of documents related to the group's search for potential government misconduct, Treasury said.

Read more here (accessible with free trial subscription).

See copy of lawsuit here.

Court opinion issued Aug. 3, 2022

Hamad v. Myorkas (S.D. Ohio) -- determining that U.S. Citizenship and Immigration Services properly relied on Exemptions 6, 7(C), and 7(E) to withhold records concerning agency’s investigation of plaintiff for marriage fraud.

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

Court opinions issued Aug. 2, 2022

Fair Lines Am. Found. v. U.S. Dep't of Commerce (D.D.C.) -- ruling that Census Bureau properly withheld certain aggregated data under Exemption 3 in conjunction with 13 U.S.C. § 9(b), because agency plausibly explained that disclosure “would contribute to the ability of a third party to reconstruct the dataset.”

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of the Treasury (D.D.C.) -- following in camera review, deciding that government properly withheld all but one record pursuant to Exemption 5’s deliberative process privilege.

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

Court opinion issued Aug. 1, 2022

Deep Sea Fishermen's Union of the Pac. v. U.S. Dep't of Commerce (W.D. Wash.) -- granting agency’s motion for protective order and denying plaintiff’s request to depose agency declarant, because agency’s declaration already addressed topics raised by plaintiff and plaintiff failed to provide any evidence that declaration was made in bad faith.

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

FOIA News: TIGTA Releases Audit of IRS FOIA Compliance

Fiscal Year 2022 Mandatory Review of Compliance With the Freedom of Information Act

Treasury Inspector General for Tax Administration, July 28, 2022

In May 2021, the IRS completed the transition of processing cases from the Automated Freedom of Information Act System to FOIAXpress. TIGTA reviewed a statistical sample of 83 of the 3,188 Fiscal Year 2021 FOIA requests for which the IRS denied the requested information either partially or fully based on exemption (b)(7), replied that no responsive records were available, or closed the request as imperfect. TIGTA also reviewed all 34 Fiscal Year 2021 I.R.C. § 6103(c) and (e) requests documented in FOIAXpress for which the IRS withheld information from the requestor. While TIGTA determined that information was properly withheld or released in most cases, the Disclosure Office did not follow FOIA requirements when withholding or releasing information for 13 (16 percent) cases. The Disclosure Office properly processed all 34 I.R.C. § 6103(c) and (e) requests.

Read more here.