Court opinion issued Dec. 9, 2022

Harrington v. HHS (D.D.C.) -- denying plaintiff’s request for attorney’s fees after concluding that plaintiff was ineligible for fees. Specifically, the court found that plaintiff failed to show that “his lawsuit substantially caused HHS to release records. HHS began processing [plaintiff’s] requests before he filed his complaint, and any delays by HHS were fairly attributable to the scope of [plaintiff’s] requests and a substantial backlog of other FOIA requests.”

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

FOIA News: Senators propose expanding FOIA to Federal Reserve Banks

Senators Elizabeth Warren and Pat Toomey unveiled a bill on Friday, December 9, 2022, that would subject all regional Federal Reserve Banks to the Freedom of Information Act. Press release is here. Summary of the bill is here.

Court opinion issued Dec. 1, 2022

Greenspan v. Bd. of Governors of the Fed. Reserve Sys. (D.D.C.) -- finding that: (1) Board properly relied on Exemption 4 to withhold communications received from two private firms that contained their internal economic analyses; and (2) Board properly invoked Exemption 5’s deliberative process privilege to withhold other communications sent and received by Chairman Powell containing the term “bubble” or “taper tantrum.”

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

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part III of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part III)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Dec. 4, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the third in a series of three posts addressing Campaign Legal Center. Having discussed the D.C. Circuit’s dismissive treatment of a potential “government misconduct” exception argument (Part I), and then laid out the caselaw regarding that exception (Part II), this third post will provide my own analysis of the issue at the heart of the case.

Read more here.

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part II of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part II)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 29, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the second in a series of three posts discussing Campaign Legal Center. The first post provided the factual background for Campaign Legal Center and described the D.C. Circuit’s resolution of the issue. This post lays out the history of the “government misconduct” exception to the deliberative process privilege.

Read more here.

FOIA News: FOIA Advisory Committee hosts expert panel to discuss FOIA challenges

NARA’s Federal FOIA Advisory Committee held its most recent meeting on December 1, 2022. As part of the meeting, the Committee hosted a special panel of experts, who discussed complex FOIA requests and litigation. The panelists were Anne Weismann, formerly of Citizens for Responsibility and Ethics in Washington; Katie Townsend, Reporters Committee for Freedom of the Press; and Ryan Mulvey, Americans for Prosperity Foundation (and contributor at FOIA Advisor).

A recording of the meeting is available here on YouTube.

The panel discussion begins roughly at the 18’ 30” mark.

Court opinions issued Nov. 30, 2022

Immerso v. DOL (2nd Cir.) (unpublished) -- affirming district court’s “well-reasoned” decision that plaintiff was not entitled to discovery and concluding that district court did not abuse its discretion by imposing filing sanctions on plaintiff and her attorney.

Berk v. Exec. Office of United States Attorneys (5th Cir.) (unpublished) -- affirming district court’s decision that multiple agencies performed reasonable searches for records concerning plaintiff’s prosecution and properly withheld certain records; further affirming district court’s ruling that plaintiff was not entitled to appointment of counsel.

Farahi v. FBI (D.D.C.) --ruling that: (1) FBI properly relied on Exemption 7(A) to withhold records pertaining to plaintiff’s immigration removal proceedings, but agency’s 2019 ex parte declaration was now outdated on the issue of whether enforcement proceedings remained pending or reasonably anticipated; and (2) for reasons that could not be stated on public record, FBI needed to provide additional information to the court in order to satisfy statute’s segregability requirements.

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

Court opinions issued Nov. 28, 2022

Ryan, LLC v. U.S. Dep't of Interior (5th Cir.) -- in reverse-FOIA case concerning tax adviser’s “formula” for recovering overpaid royalties, vacating and remanding district court’s decision after concluding that district court and agency did not “fully explore the record or the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019).”

Shem-Tov v. DOJ (D.D.C.) -- dismissing case for failure to prosecute because plaintiff, who sought records to defend herself in her criminal trial in Israel, neglected to contact the court for nearly five months and disregarded three court orders during that time period.

Competitive Enter. Inst. v. Podesta (D.D.C.) -- dismissing two defendants from case, John Podesta and the National Climate Task Force, because neither are agencies subject to FOIA.

Accuracy in Media v. DOD (D.D.C.) -- in case involving records related to the 2012 attack on the United States Embassy in Benghazi, Libya, adopting magistrate judge’s report and recommendation finding that: (1) DOD performed adequate search for records and properly withheld 12 pages of maps pursuant to Exemption 1; (2) CIA properly relied on Exemption 3 in conjunction with the CIA Act of 1949 and National Security Act of 1947 to withhold records related to a complaint sent to CIA’s Inspector General; and (3) issue of FBI’s Glomar response was moot because FBI agreed to search for requested records after the magistrate issued his recommendation.

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

FOIA News: New Academic Commentary on Campaign Legal Center v. DOJ

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part I)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 27, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). The case might be described as the Freedom of Information Act (“FOIA”) addendum to Department of Commerce v. New York, —U.S. —, 139 S. Ct. 2551 (2019). This series of posts discusses the rarely referenced “government misconduct” exception to the deliberative process privilege and its applicability to the communications sought in Campaign Legal Center v. DOJ.

Read more here.

Court opinions issued Nov. 22-23, 2022

Nov. 23, 2022

Democracy Forward Found. v. DOJ (D.D.C.) -- adopting magistrate’s report and recommendation finding that EOUSA adequately searched for records of communications with Trump Transition Team, except for agency’s failure to actually search for emails records of certain employees rather than merely asking those employees whether requested communications exist.

Nov. 22, 2022

Wattleton v. DOJ (D.D.C. ) -- determining that EOUSA performed adequate search for records indicating whether any individuals or entities accessed case information from various databases related to plaintiff’s criminal prosecution.

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