Court opinions issued June 26, 2023

The James Madison Project v. NSA (D. Md.) — ruling that NSA properly relied on Exemptions 1 and 3 to withhold intelligence records concerning hostile country’s “high-powered microwave system weapon” that was discussed in agency’s 2014 unclassified memo to a former employee.

Elliott v. U.S. Dept. of Agric. (D. Md.) -- dismissing plaintiff’s claim because he failed to administratively appeal from agency’s “no records” response before filing his lawsuit.

Stonehill v. DOJ (D.D.C.) -- determining, in most relevant part, that plaintiff was a proper party because the FOIA requests at issue—which were submitted by her attorney—all identified plaintiff and referred to an attached power of attorney document that identified plaintiff’s attorney; further noting that agency’s summary judgment motion made clear that agency was aware of attorney’s representation of plaintiff in “this string of related FOIA actions going back decades.”

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

FOIA News: Battle Continues Over Law Firm's VW Emissions Report

DOJ, Prof Spar Over Secret Jones Day VW Emissions Docs

By Linda Chiem, Law360, June 27, 2023

The U.S. Department of Justice, Volkswagen and a Loyola Marymount University professor sparred in California federal court this week over whether a confidential Jones Day report on the German automaker's internal investigation into the 2015 emissions-cheating scandal should be made public.

The DOJ, Volkswagen AG and Lawrence P. Kalbers filed separate briefs Monday in response to questions from a court-appointed special master concerning whether Jones Day's investigative findings are protected from public disclosure under the Freedom of Information Act. The findings were shared with the government as part of grand jury proceedings.

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The case is Kalbers v. U.S. Department of Justice, case number 2:18-cv-08439, in the U.S. District Court for the Central District of California.

Read more here (accessible with free subscription).

FOIA News: DOJ gives keynote remarks at ASAP's FOIA conference

Associate Attorney General Vanita Gupta provided recorded remarks today at the American Society of Access Professionals’ National Training Conference in New Orleans. Ms. Gupta serves as DOJ’s Chief Freedom of Information Act Officer.

Court opinion issued June 22, 2023

Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- concluding that: (1) DEA conducted an adequate search for records related to claims filed against the agency; (2) DEA properly withheld names of claimants pursuant to Exemption 6,; (3) DEA improperly relied on Exemption 6 to withhold names of DEA tortfeasors and various other claim-related information; (3) DEA failed to show that requested claim records were compiled for law enforcement purposes under Exemption 7(C); (4) DEA neglected to submit sufficient information to court concerning withheld court-sealed records; (5) DEA neglected to produce all meaningful, reasonably segregable, non-exempt portions of certain responsive records; and (6) DEA’s untimely, 18-month response was not “egregious.”

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

Court opinions issued June 20-21, 2023

June 21, 2021

Friends of the River v. U.S. Army Corps of Eng'rs (D.D.C.) -- finding that agency did not justify (and therefore must disclose) most of its withholdings under Exemption 5’s deliberative process privilege because agency failed to articulate foreseeable harm, but that agency properly withheld records pursuant to attorney work-product and attorney-client privileges.

June 20, 2023

Cameron v. BOP (S.D. Ind.) -- dismissing prisoner-plaintiff’s claim as moot because agency released requested documents with some redactions after plaintiff filed suit and plaintiff failed to opposed agency’s motion to dismiss.

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

FOIA News: UFO enthusiast discusses FOIA efforts

Why does the government keep obstructing UFO transparency efforts?

By John Greenewald, Wash. Exam’r, June 22, 2023

It's been nearly 27 years since I submitted my first Freedom of Information Act, or FOIA , request on UFOs . I was 15 years old at the time. That request unearthed a four-page Defense Intelligence Agency document detailing a 1976 event in which multiple UFOs shut off the communications and instrumentation panels of two separate Iranian F-4 Phantom jets. The advanced capabilities of these UFOs sparked my interest, and through the FOIA, I quickly discovered the incident was not an isolated one. I learned that there was much more to discover within official files.

My website, The Black Vault, showcases thousands of UFO files I've received from the government. The documents, overall, hint at a mysterious phenomenon the U.S. military and government have struggled to identify adequately for decades. Indeed, they appear to have often kept the public in the dark using various tactics to block legally or at least severely prohibit accessing some of these records that date back to the 1940s.

Read more here.

FOIA News: OGIS releases annual report

On June 21, 2023, the Office of Government Information Services posted its 2023 Report for Fiscal Year 2022. Highlights of OGIS’s activities include handling 4500 requests for assistance and providing a new virtual training program on negotiations for FOIA professionals.

FOIA News: State Dep't considering AI to reduce FOIA backlog

State Department looks to AI for streamlined FOIA workloads

By Jory Heckman, Fed. News Network, June 21, 2023 9:24 am

The State Department is looking at artificial intelligence and automation tools to process Freedom of Information Act (FOIA) requests more quickly and improve its level of service to requesters.

Eric Stein, the department’s deputy assistant secretary for Office of Global Information Services and co-chairman of the Chief FOIA Officers Council’s Technology Committee, said he’s also looking at ways to use these emerging tools to improve FOIA processing governmentwide.

“I think people are afraid of AI, and maybe they should be. Maybe they shouldn’t be, but my take is, we’d like to get people comfortable with the concepts of AI and machine learning,” Stein said.

Read more here.

Court opinion issued June 14, 2023

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of the Army (D.D.C.) -- ruling that communications between South Dakota state officials and the National Guard (a hybrid state-federal entity) did not fall within Exemption 5’s consultant corollary exception because they were not made for purpose of aiding the National Guard’s deliberations; noting that its ruling “produced an odd outcome considering that these discussions would be protected either under Exemption 5 (if wholly federal) and under South Dakota law (if wholly state) . . . and yet the very structure of the National Guard necessitates crossing federal-state lines.”

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

Court opinions issued June 13, 2023

Bloomberg L.P. v. USPS (S.D.N.Y.) -- holding that USPS properly withheld certain anonymized change-of-address data pursuant to Exemption 3 in conjunction with 39 U.S.C. § 410(c)(2), because the requested data relates to a commercial product licensed by the agency.

Bothwell v. DOJ (W.D. Okla.) -- deciding that: (1) DOJ was a proper defendant, but not two DOJ components, and (2) plaintiff exhausted his administrative remedies and properly stated a claim under FOIA.

Rhoades v. U.S. Army Corps of Eng'rs (E.D. Va.) -- concluding that agency performed reasonable search for permitting records and related correspondence from 1983, and that it was not required to ask private land owners if they maintained requested records.

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