O'Brien v. DOJ (3rd Cir.) -- summarily affirming district court’s decision concerning FBI’s investigatory records concerning plaintiff (a former physician convicted of multiple drug-related charges), noting that source’s trial testimony did not waive government’s ability to withhold records pursuant to Exemption 7(D).
Summaries of all published opinions issued since April 2015 are available here.
CFPB Says MoneyGram Can't Sue Over FOIA Its Atty Filed
By Jon Hill, Law360, Apr. 4, 2023
The Consumer Financial Protection Bureau has moved for dismissal of a MoneyGram International Inc. lawsuit accusing the agency of stonewalling a potentially damaging public records request, telling a D.C. federal court that the money services giant can't sue over a request that it didn't itself file.
Read more here (subscription).
See copy of complaint here.
See copy of the request here.
Virtual meeting of the Chief FOIA Officers Council
DOJ/OIP, FOIA Post, Mar, 28, 2023
The Office of Information Policy (OIP) is pleased to announce that the Chief FOIA Officers (CFO) Council will hold a virtual meeting on Tuesday, April 25, 2023 from 10:00 AM to 11:30 PM EST.
The CFO Council meeting is open to all agency FOIA professionals and members of the public. Time will be provided for members of the public to address the Council. Registration is required on Eventbrite if you wish to provide oral comments. All attendees must register by 11:59pm (EST) on Sunday, April 23, 2023. The meeting will also be livestreamed on the National Archives' YouTube channel.
In accordance with the FOIA Improvement Act of 2016, the Chief FOIA Officers Council is tasked with developing recommendations, sharing best practices, and developing and coordinating initiatives to improve agency FOIA administration. The Council is co-chaired by the Directors of OIP and OGIS and is comprised of each agency Chief FOIA Officer and the Deputy Director for Management of the Office of Management Budget.
Do you have ideas for future meeting topics and potential panelists? Please email us at DOJ.OIP.FOIA@usdoj.gov.
Am. Immigration Council. v. U.S. Customs & Border Patrol (D.D.C.) -- on renewed summary judgment, finding that some (but not all) remaining disputed documents concerning “credible fear interviews” were properly withheld pursuant to Exemption 5’s deliberative process privilege.
Summaries of all published opinions issued since April 2015 are available here.
Deep Sea Fishermen's Union of the Pac. v. U.S. Dep't of Commerce (W.D. Wash.) -- in most relevant part, finding that agency demonstrated the adequacy of its search for records located on personal devices and agency cell phones by searching agency’s email accounts to which employees were required to send them by existing policy.
Am. Civil Liberties Union v. DHS (D.D.C.) -- determining that plaintiff was not required to submit a separate request to the agency’s Office of Inspector General concerning COVID measures in immigration facilities (including complaints and grievances), but rather that agency’s Privacy Office should have forwarded plaintiff’s request to OIG based on nature of the request or, at the very least, after clear leads developed during agency’s search that OIG likely maintained responsive records.
Summaries of all published opinions issued since April 2015 are available here.
Gandhi v. Ctrs. for Medicare & Medicaid Servs. (D.D.C.) -- ruling that: (1) agency improperly relied on Exemption 4 to withhold employer identification numbers (EINs) of health care organization and taxpayer identification numbers (TINs) of their parent organizations, noting that SEC and Department of Labor release EINs to the public and that EINs are available through “pay-for-subscription” services; further noting that CMS failed to offer providers any assurances of confidentiality for their EINs or TINs, and that CMS offered no competent evidence that a foreseeable harm would occur if the requested records were released; and (2) agency’s reliance on Exemption 6 to withhold the same information was likewise improper, because Exemption 6 did not protect privacy interests of business entities.
Del Cid v. EOIR (D.D.C.) -- concluding that plaintiff was ineligible for award of attorney’s fees and costs because he did not prove that his lawsuit was the catalyst behind EOIR’s production of his immigration records; pointing out that agency demonstrated that it had started to process plaintiff’s request before plaintiff filed his lawsuit and that agency’s FOIA backlog and the COVID-19 pandemic delayed its final response.
Summaries of all published opinions issued since April 2015 are available here.
Although the staff of FOIA Advisor is focused on reporting new FOIA developments, we occasionally make the news ourselves in connection with our other FOIA (and non-FOIA) activities. Below is a list of our appearances in the news media during the first quarter of calendar year 2023.
Ryan Mulvey & Kevin Schmidt, “Federal officials keep using personal emails for government duties,” NY Post, Mar. 18, 2023, Op-ed.
Sara Fischer, “Government struggles with record FOIA boom,” Axios, Media Trends, Mar. 14, 2023 (quoting Allan Blutstein).
Kevin Schmidt & Thomas Kimbrell, “Covid Exposed the Damage Done by Certificate-of-Need Rules,” Wall St. J., Feb. 24, 2022, Op-ed.
Chris Brennan, “Top GOP researcher probing mayoral race,” Philadelphia Inquirer, Feb. 17, 2023 (discussing Allan Blutstein’s public records requests).
Kevin Bogardus, “EPA shutters public records portal,” Greenwire, Feb. 13, 2023 (quoting Allan Blutstein) (full article here).
Kevin Bogardus, “EPA eyes FOIA tweaks to boost environmental justice,” Greenwire, Jan. 20, 2023 (quoting Allan Blutstein) (full article here).
Gannett Satellite Info. Network v. DOJ (D.D.C.) -- in case apparently of first impression, holding that DOJ could not rely on Exemption 3, in conjunction with Omnibus Crime Control and Safe Streets Act of 1968, to withhold statistics concerning deaths of individuals in custody that were reported by states to DOJ in compliance with the Death in Custody Reporting Act of 2013.
Hand v. DOJ (D.D.C.) -- determining that FBI properly relied on Exemption 7(C) in refusing to confirm or deny existence of communications between a retired FBI Special Agent and DOJ personnel concerning the criminal investigation and prosecution of plaintiff.
Connell v. CIA (D.D.C.) -- concluding that CIA properly relied on Exemption 1 and 3 in issuing Glomar response to request for certain records concerning Guantanamo Bay detention facility, rejecting plaintiff’s argument that declassified records constituted a public acknowledgment of existence of requested records.
Scarlett v. Nat’l Sci. Found. (D.D.C.) -- ruling that: (1) Office of Inspector General’s declaration did not adequately explain agency’s search methodology in response to request for complaints concerning plaintiff’s company; and (2) OIG’s declaration did not sufficiently address whether responsive records withheld under Exemptions 7(A) and 7(C) were compiled for law enforcement purposes; and (3) agency properly invoked Exemption 6 to withhold employee names, email addresses, and signatures, but it did not adequately explain what “identifying information” it withheld from the body of a responsive complaint.
Black Hills Clean Water Alliance v. U.S. Forest Serv. (D.S.D.) -- finding that: (1) agency performed reasonable search for records pertaining to exploratory gold mining in Clack Hills National Forest and that agency was not required to extend its initial search cut-off date for supplemental searches; (2) agency properly withheld records pursuant to Exemption 5’s attorney-client and deliberative process privileges and Exemption 6; and (3) agency’s transmittal of responsive records via file-sharing website was compliant with plaintiff’s formatting request, which allowed for “‘other electronic media’ in whatever way was ‘most expeditious.’”
Yim v. NIH (D.N.J.) (unpublished) -- deciding that: (1) agency’s recitation of its “standard review process” for handling FOIA requests was sufficient to establish adequacy of its search for COVID Guideline updates that agency had posted on its website; and (2) plaintiff could not expand scope of his request in litigation.
Summaries of all published opinions issued since April 2015 are available here.
By Zach C. Cohen, Bloomberg, Mar. 30, 2023
Senate’s Push for Fed Transparency Gains Support After Bank Failures
Support is growing in Congress for imposing greater transparency requirements on the Federal Reserve as the central bank faces increasing scrutiny for its response to recent bank failures.
Senators Thom Tillis, a Republican from North Carolina and Elizabeth Warren, a Democrat from Massachusetts, plan to introduce legislation that would subject the Fed to the Freedom of Information Act. A copy of the bill was obtained by Bloomberg News.
“Because of the SVB failure, more people have seen the direct consequences of regulators who take their eye off the ball, and work for the industry instead of on behalf of the public,” Warren said in a brief interview on Capitol Hill.
The Fed’s 12 regional branches are currently exempt from public records requests because they are quasi-private. The proposal would remove that barrier by having them considered federal agencies for the purposes of a FOIA request from a member of Congress
Read more here.
Blevins v. ATF (W.D. Wash.) -- ruling that ATF performed adequate search for plaintiff’s initial request for records concerning plaintiff’s criminal case and use of a firearm, and therefore the agency was justified in declining to perform a duplicative search in response to plaintiff’s subsequent request for narrower set of duplicative records.
Schaefer v. EPA (D.D.C.) -- finding that EPA performed reasonable search for records concerning plaintiff’s criminal case and that it properly redacted record pursuant to Exemptions 5 (DPP), 6, and 7(C).
Louise Trauma Ctr. v. DOJ (D.D.C.) -- on renewed summary judgment in case concerning Office of Immigration Litigation training materials for appellate lawyers, concluding that: (1) with minor exceptions, agency properly relied on Exemption 5’s attorney work-product privilege to withold records, the vast majority of which were “training materials discussing arguments or strategies that DOJ attorneys adopt or consider in particular situations”; further concluding that agency met foreseeable harm requirement; (2) agency’s attorney-client privilege claims were deficient because agency failed to explain on how communications rested on “confidential information obtained from the clients”; and (3) agency did not justify its use of the deliberative process privilege, which in any event the agency deemed a “superfluous” claim.
Summaries of all published opinions issued since April 2015 are available here.