FOIA Advisor

Court opinions issued May 6, 2015

Court Opinions (2015-16)Allan BlutsteinComment

Bartko v. DOJ (D.D.C.) -- Ruling that redactions made by the Executive Office of United States Attorneys under Exemption 5 were proper because pro se prisoner-plaintiff did not contest them.  The court further ruled that the agency properly denied plaintiff's request for a waiver of duplication fees, because the "incidental public-interest benefits to be gained . . . are minimal in comparison to the unavoidably obvious personal purpose for which the records are sought" -- namely, to challenge plaintiff's criminal conviction.  Lastly, the court rejected plaintiff's allegation that the agency manifested bad faith by, among other things, delaying its processing of records by several months, denying plaintiff's requests to waive fees or to pay fees in installments, and producing public source documents despite his request to exclude them.

Pelligrino v. TSA (E.D. Pa.) -- Upholding in part and rejecting in part the agency's witholdings under Exemption 5 and Exemption 6 after conducting an in camera review, and ordering agency to submit a more-detailed search affidavit. Search:  The court found that TSA's affidavit identified the offices that had been tasked to conduct searches, but contained "no actual information on how these searches were conducted."  There was "no information about what the tasking forms said, what records were searched, what search terms were used, or what procedures were followed." Exemption 5, Attorney Work-Product Privilege:  The court rejected TSA's argument that the mental processes used by an attorney to collect documents in a case file triggered the privilege.  The vast majority of the documents were found to qualify, however, because they were "created in anticipation of litigation."  Attorney-Client Privilege: The court ruled that communications from an attorney to clients providing confidential legal advice qualified for the attorney-client privilege.  Further, the court rejected plaintiff's contention TSA's attorneys commited crimes or misconduct so as to preclude the agency's withholding of documents based on attorney work-product or attorney-client privileges.  Deliberate Process Privilege:  The court found that an  "EIR Offical Recommended Action form" did not qualify under the privilege because it merely showed "the officials' concurrence with a recommended action" and did not reflect or reveal "anything about the agency officials' thought processes or discussions that led to their decision." Exemption 6:  The court found that TSA properly invoked Exemption 6  to withhold the names and identifying information of TSA employees, but improperly  withheld the time-stamp from a cover email and the title of an email attachment that had been released.  

List of all cases since April 2015 here.