FOIA News: Sensationalist FOIA plaintiff called out for “sensationalism” by DOJ

Think Tank Accused of 'Sensationalism' in Prince Harry Drugs Lawsuit

By Jack Royston, Newsweek, July 13, 2023

Lawyers for the Biden administration have accused a conservative think tank of "sensationalism" in the latest salvo of their war of words about Prince Harry's drug use.

Harry described his use of cannabis, magic mushrooms, cocaine and ayahuasca in his memoir Spare, prompting the Heritage Foundation to ask the Department of Homeland Security (DHS) to publish his U.S. visa application.

The foundation wants to determine whether the Duke of Sussex disclosed his experiences with illegal substances in the paperwork and, if so, whether he was treated with favoritism.

However, the administration has declined its requests, made under the Freedom of Information Act (FOIA).

Read more here.

Court opinion issued July 11, 2023

Nat’l Student Legal Def. Network v. U.S. Dep’t of Educ. (D.D.C.) -- following in camera review of emails between Social Security Administration and Department of Education lawyers regarding certain student loan program, determining that government’s Exemption 5 withholdings were properly made under the attorney work-product privilege; noting that privilege was justified by both pending and anticipated litigation, and that government’s shifting arguments did not defeat the exemption claim.

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

Court opinion issued July 10, 2023

Rutila v. DOT (5th Cir.) -- affirming district court decision that: (1) FAA’s fee assessment was timely because FAA had tolled response deadline once in order to clarify time scope of plaintiff’s request; (2) FAA was not required to take screenshots of certain requested information that was displayed to agency system users but could not be exported.

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

Court opinion issued July 7, 2023

Pfeiffer v. U.S. Dep’t of Energy (D.D.C.) -- denying government’s motion for reconsideration of court’s rulings that: (1) plaintiff qualified as an educational institution because he demonstrated that his requests were connected to his scholarly research ; and (2) plaintiff’s potential profit from publishing responsive records on his webpage did not trump plaintiff’s intentions to use records for scholarly purposes, and therefore government improperly denied plaintiff’s fee waiver request.

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

Court opinions issued July 5, 2023

Ecological Rights Found. v. EPA (9th Cir.) (unpublished) -- affirming district court’s decision that: (1) EPA properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold certain records concerning “supplemental environmental projects”; and (2) EPA did not have a pattern or practice of violating FOIA, and therefore plaintiff was not entitled to injunctive or declaratory relief.

Naumes v. Dep’t of the Army (D.D.C.) -- awarding plaintiff costs and $111,415 in attorney’s fees—after reducing plaintiff’s fee request for time spent on unsuccessful issues—in case concerning access to Army’s mental-fitness questionnaire and related records.

Zaid v. DOJ (D. Md.) -- in consolidated cases involving DOJ, IRS, and DHS records about plaintiff’s client, Zackary Sanders, who was convicted of producing child pornography, concluding that: (1) plaintiff was not required to administratively appeal from ICE’s determination that his request was “too broad,” because ICE failed to plaintiff of his appeal rights; (2) four of plaintiff’s requests to ICE were reasonably described, but a fifth request seeking “any records referencing specific term was “overly broad”; (3) U.S. Secret Service performed adequate search for records pertaining to plaintiff’s client; (4) FBI properly withheld records pursuant to Exemptions 5, 6, 7(A), 7(C), and 7(D); (5) IRS properly withheld records pursuant to Exemption 3 in conjunction with 26 U.S.C. § 6103(a); (6) EOUSA properly withheld records pursuant to Exemptions 5 and 7(E); and (7) ICE properly withheld records pursuant to Exemptions 6 and 7(C).

Empower Oversight Whistleblowers & Research v. SEC (E.D. Va.) -- ruling that: (1) plaintiff’s Amended Complaint failed to challenge the SEC’s redactions and plaintiff could not add the claim via briefing; (2) plaintiff’s timeliness claim became moot as soon as the SEC issued a final determination, rejecting plaintiff’s argument that its timeliness claim was '“capable of repetition, yet evading review”; and (3) in response to requests for “all communications” of various SEC employees, the agency unreasonably limited its searches to the specific examples of communications that plaintiff identified.

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

FOIA News: FOIA turns 57

The Freedom of Information Act was enacted on July 4, 1966, and became effective exactly one year later. For those interested in the evolution of the statute, which has been amended seven times, the legislative history is available on the Department of Justice’s website here.

Court opinion issued June 30, 2023

Flyers Rights Education Fund v. FAA (D.C. Cir.) -- affirming district court’s decision that FAA properly relied on Exemption 4 to withhold certain records pertaining to agency’s recertification of Boeing 737; in reaching its decision, the Court rejected four arguments made by appellants and held that: (1) generic promises by FAA to be transparent about the recertification process fell “far short of an explicit representation that FAA would disclose the disputed documents, and Boeing’s similar statements about transparency “hardly amount to an ‘explicit’ commitment to release [its] proprietary documents, let alone an indication that the FAA would do so”; (2) FAA was not required to release certain agency-authored material because FAA demonstrated that disclosure would reveal confidential commercial information obtained from Boeing; and (3) questioning whether prohibition on secret agency law may limit the scope of Exemption 4, but in any event finding that records submitted by Boeing to show compliance with FAA regulations were proprietary to Boeing’s aircraft and did not become part of FAA’s body of law; and (4) FAA carried its burden on segregability with nonconclusory affidavits.

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

Court opinion issued June 29, 2023

Buzzfeed, Inc. v. DOJ (2nd Cir.) (summary order) -- affirming district court’s decision that DOJ’s Inspector General properly relied on Exemption 7(C) to withhold the identity of a former senior employee from a report concerning that employee’s misconduct; noting that the employee’s rank, seriousness of wrongdoing, and absence of alternative access to the information favored disclosure, but agreeing with district court that disclosure would “do little to advance the public interest identified by [plaintiff]” and that disclosure would impact the privacy of victims, witnesses, and other third parties.

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

Court opinions issued June 28, 2023

Hoffman v. U.S. Customs & Border Prot. (E.D. Pa.) -- in case involving records of communications about asylum seekers at certain ports of entry, finding that: (1) CBP failed to adequately explain how it conducted it searched mobile devices for “WhatsApp” chats, and (2) agency used reasonable key phrases to search Shared Drives, but not its email accounts.

Judicial Watch v. DHS (D.D.C.) -- determining that DHS properly relied on Exemption 7(C) to withhold two photographs showing injuries suffered by a Secret Service Agent from President Biden’s dog.

Judicial Watch v. DHS (D.D.C.) -- determining that DHS properly relied on Exemption 7(C) to withhold six photographs showing injuries suffered by Secret Service Agents from President Biden’s dog.

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

Court opinion issued June 27, 2023

Energy Policy Advocates v. U.S. Dep’t of State (D.D.C.) -- concluding that agency properly relied on Exemption 5’s deliberative process and attorney’ client privileges to withhold records related to the Secretary’s approval to enter the Paris Climate Agreement; noting that foreseeable harm requirement was met for both asserted privileges.

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