Court opinion issued Sept. 11, 2023

Colo. Wild Pub. Lands v. U.S. Forest Service (D.D.C.) -- in case involving records of agency’s evaluation of a proposed land exchange, ruling that: (1) agency improperly withheld disputed records pursuant to Exemption 5, because they were either not deliberative or did not meet the foreseeable harm test; (2) agency properly relied on Exemption 6 to withhold employee’s work cell phone number and contact information of third parties, except for business contact information of real estate agents; and (3)(a) plaintiff adequately alleged that agency had policy and practice of unlawfully withholding land exchange records, (b) its claim was not moot, and (c) declaratory relief was appropriate but that a referral to a Special Counsel was not.

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

Court opinion issued Sept. 8, 2023

Gun Owners of America v, DOJ (D.D.C.) -- concluding that FBI reasonably interpreted the scope of plaintiff’s request regarding website visitor information as seeking “preexisting aggregate records, not each underlying document that would allow it to construct the record itself,” and that FBI performed an adequate search (finding no responsive records); rejecting as irrelevant plaintiff’s arguments that other DOJ components produced individualized records and that DOJ’s counsel understood which records plaintiff was interested in, because the plain meaning of the actual request controlled.

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

FOIA News: Agencies should post more legal material online, reports ACUS advisers

Affirmatively Disclosing Agency Legal Materials

By Bernard W. Bell et al., Regulatory Review, Sept. 11, 2023

Administrative agencies’ law-generating powers have long been recognized, as has the importance of making agency-generated law available to the public. In 1971, the Administrative Conference of the United States (ACUS) recommended that “agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.” Over the years, ACUS has adopted numerous recommendations to that end.

* * *

ACUS commissioned the five of us as a consultant team to craft potential statutory revisions that would ensure greater online accessibility of agency legal materials. As part of our work, we solicited formal input through a series of meetings with a 60-member group of ACUS members and affiliates, including representatives from 50 federal agencies. We also conducted our own research, reviewed more than 30 written comments submitted to us, and deliberated at length among ourselves in more than 20 team meetings held over an 11-month period. The resulting 157-page report thus reflects a well-deliberated consensus that is based on extensive analysis and broad input.

One simple principle animates our entire report: All legal material that agencies must disclose upon request by a member of the public should be affirmatively made available on agency websites.

Read more here.

Court opinion issued Sept. 5, 2023

Am. Oversight v. DHS (D.D.C.) -- holding that: (1) U.S. Immigration and Customs Enforcement did not adequately search for various documents relating to people who had died in ICE’s custody; (2) because ICE did not even attempt to justify its Exemption 3 withholdings (failing to file a promised ex parte declaration), it must release documents withheld solely under that exemption; and (3) ICE’s generalized assertions about foreseeable harm were inadequate to justify its withholdings under the deliberative process privilege.

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

FOIA News: FOIA on the Right

Republicans Playing the Oppo Game

FOIAengine Looks at Opposition Research on the Right

By John A. Jenkins, Law Street Media, Sept. 7, 2023

In the shadowy world of political opposition research, sometimes the game looks like Spy vs. Spy.  That’s particularly true right now, in the run-up to next year’s presidential election.  As more than a dozen Republican hopefuls jockey for position, a raft of newly created research groups with ties to the former Trump Administration have jumped into the fray, blanketing the federal government with thousands of FOIA requests. 

Measured by the sheer number of Freedom of Information Act requests and resultant lawsuits, the new research groups are subsuming work once the purview of the well-established Republican oppo machine, America Rising. 

Read more here.

Court opinions issued Sept. 1, 2023

Wilderness Workshop v. USDA (D.D.C.) -- ruling that: (1) Forest Service performed adequate search for records concerning landowner’s request for access to national forest in Colorado, but USDA’s Office of Information Affairs failed to adequately explain its search methodology; (2) government’s declarations and Vaughn indices did not contain enough information to justify withholdings under the deliberative process privilege; (3) government properly withheld records pursuant to the attorney-client and attorney work-product privileges and the foreseeable harm requirement was met; (4) government properly withheld information about federal employees under Exemption 6; and (5) government produced records in the format plaintiff requested (searchable PDF files), and it was not required to transmit those records via the means plaintiff requested (flash or jump drive).

Martin v. Garland (D.D.C.) -- finding that the Executive Office for United States Attorneys conducted a reasonable search for records concerning the medical leave of an Assistant U.S. Attorney who prosecuted him, and that EOUSA properly withheld records pursuant to Exemption 6.

Polidi v. Mendel (E.D. Va.) -- deciding that U.S. Patent and Trade Office properly relied on Exemptions 6 and 7(C) to redact information pertaining to third parties appearing in records concerning plaintiff’s expulsion from the Patent Bar.

Yadav v. USCIS (D. Md.) -- concluding that agency performed adequate search for records pertaining to agency’s denial of plaintiff’s application to adjust his residency status, and that agency properly withheld records pursuant to Exemptions 7(C) and 7(E).

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

Q&A: What’s in a name?

Q. Are federal credit unions subject to FOIA requests compliance? Where do I file a complaint against a federal credit union that fails to comply with a FOIA request in relation to loan(s) account information?

A. Federal credit unions are not run by the federal government (despite the name “federal”), and therefore are not federal agencies for purposes of FOIA. If you submit a FOIA request to a credit union, it would not be required to respond. The federal government does regulate national credit unions, however. To register a customer complaint, contact the National Credit Union Administration.

Court opinions issued Aug. 30, 2023

Cullen v. DHS (D.D.C.) -- determining that: (1) pro se prisoner waived his right to dispute adequacy of agency’s search for records pertaining to its investigation of plaintiff because he failed to mention the issue in his briefing; (2) agency properly withheld records pursuant to Exemption 7(C), including images of adult pornography that plaintiff failed to establish were commercially produced.

Mountgordon v. U.S. Coast Guard (D.D.C.) -- in case concerning investigatory records generated from plaintiff’s complaint, finding that: (1) agency failed to expressly address the foreseeable harm requirement with respect to the withholding in full of its investigative report under the deliberative process privilege, nor did the agency sufficiently support its segregability analysis; and (2) regarding requested witness statements, the agency properly excluded “UCMJ rights forms” as non-responsive, but that agency’s declaration “conflates Exemptions 5 and 6 and offers too little detail to sustain the withholdings on the present record.” Of note was the court’s criticism of the agency in the opinion’s introduction: “Here, the Coast Guard’s motion for summary judgment is poorly supported and lacking essential detail. Many of its withholdings are likely proper, but the Coast Guard has not taken the time to support its position. That means more work for the Coast Guard, Plaintiff’s counsel, and the Court. And, more importantly, it also means unnecessary delay, which is antithetical to FOIA.”

Buzzfeed, Inc. v. DOJ (D.D.C.) -- ruling that: (1) Federal Bureau of Prisons improperly used Exemption 7(E) to withhold records describing guidelines, techniques and procedures used to obtain lethal injection substance, because those records did not involve agency “investigations” or “prosecutions”; (2) in accordance with recent D.C. Circuit decision, BOP did not sufficiently explain how information that could lead to identify the suppliers of lethal injection substances to the federal government was commercial information for Exemption 4 purposes'; and (3) BOP’s foreseeable harm argument “failed to connect any particular document to the stated harm” or to explain how deliberations would be harmed by disclosure.

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

FOIA News: FCC finds a replacement for FOIAonline

FCC Transitioning to New FOIA Solution on October 1

Benton Broadband, Sept. 1, 2023

The Federal Communications Commission currently relies simultaneously on two online case management solutions: FOIA.gov available at https://www.foia.gov and FOIAonline.gov, available at https://foiaonline.gov/foiaonline/action/public/home. With the planned retirement of FOIAonline.gov by its host agency, the FCC will transition from FOIAonline to a new online case management solution beginning October 1, 2023. "Although there will be a new look, we expect the transition to be seamless," said every government agency ever just before a complete meltdown. For further information, please contact Stephanie Kost, FOIA Public Liaison, at FOIA-Public-Liaison@fcc.gov or 202-418-0440.

Original notice here.

FOIA News: Advisers used Greek letters to avoid Michigan FOIAs

Democrat governor's consultant used email coded with Greek to thwart public records searches: lawsuit

Email to top Whitmer adviser expressed 'some major red flags'

 By Kyle Morris, Fox News, Aug. 31, 2023

A coded email sent by a consultant to a policy adviser for Democrat Michigan Gov. Gretchen Whitmer was used to "conceal" certain information related to the state's handling of a local water crisis from becoming public knowledge, according to a lawsuit filed by residents of Benton Harbor.

Andrew Leavitt, who once served as a consultant to Michigan’s energy department, used letters from the Greek alphabet to send the September 2021 email to Kara Cook, Whitmer's senior energy adviser, the class action lawsuit alleges.

Read more here.