DC Circuit issues two notable FOIA decisions
By Gabe Rottman, Reporters Committee for Freedom of the Press, Aug. 30, 2021
Last week, the U.S. Court of Appeals for the District of Columbia Circuit issued decisions in two cases involving the government’s withholding of records or information under the Freedom of Information Act. While the government’s asserted rationale for withholding in each of the two cases differed, in both instances the appellate court affirmed holdings in the U.S. District Court for the District of Columbia finding that the information in question could be withheld.
In the first of the decisions, issued last Tuesday, the appellate court upheld the National Security Agency’s withholding of a 2017 memorandum memorializing a conversation between former President Donald Trump and NSA Director Michael Rogers in a FOIA lawsuit brought by Protect Democracy. The court found the memo properly withheld under the FOIA exemption incorporating executive privilege, and refused to recognize a “misconduct” exception advanced by plaintiffs.
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