FOIA Advisor

Court Opinions (2019)

Court opinions issued June 24-25, 2019

Court Opinions (2019)Allan BlutsteinComment

June 25, 2019

Nikaj v. U.S. Dep't of State (W.D. Wash.) -- concluding that agency properly withheld certain records concerning plaintiff’s unsuccessful visa applications pursuant to Exemptions 3 (Immigration & Nationality Act), 6, and 7(C).

Judicial Watch v. DOJ (D.D.C.) -- finding that FBI properly relied on attorney-work product privilege to withhold agent interviews of President Obama and his advisors concerning former Illinois governor Rod Blagojevich.

June 24, 2019

Food Marketing Institute v. Argus Leader Media (S.Ct.) -- reversing Eighth Circuit’s decision and holding that commercial and financial information is “confidential” under Exemption 4 when it is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy,

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

Court opinions issued June 21, 2019

Court Opinions (2019)Allan BlutsteinComment

Whittaker v. DOJ (D.D.C.) -- ruling that FBI failed to explain with reasonable specificity how Exemption 7(E) categorically protects the results of its “National Agency Check.”

Poulsen v. DOD (N.D. Cal.) -- determining that plaintiff was ineligible for attorney’s fees notwithstanding government’s partial withdrawal of Glomar responses following two intervening public acknowledgments relevant to plaintiff’s request.

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

Court opinions issued June 18, 2019

Court Opinions (2019)Allan BlutsteinComment

McGehee v. DOJ (D.D.C.) -- denying plaintiff’s motion to reconsider summary judgment ruling in case concerning FBI’s investigation of Jonestown massacre, because plaintiff failed to show change of controlling law, availability of new evidence, or clear error or manifest injustice, as required by FRCP 59(e).

Wolk Law Firm v. NTSB (E.D. Pa.) -- holding that agency properly relied on Exemptions 2, 3, 4, 5, and 6 to withhold records concerning multiple accident investigations, including cell phone video of airplane’s cockpit. The court further held that FOIA did not compel production of actual airplane wreckage, as it falls outside meaning of “agency record.”

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

FOIA News: Interior's FOIA process under scrutiny

Court Opinions (2019)Allan BlutsteinComment

Interior's internal FOIA policy gives political appointees sign-off on document releases, raising concerns

By Ellie Kaufman, CNN, June 18, 2019

The Interior Department has developed a second, undisclosed internal Freedom of Information Act review policy, which requires certain political appointees to sign off on documents before releasing them publicly, according to internal emails and documents reviewed by CNN.

This extra layer of review, established in a draft memo in May 2018 that CNN has viewed, requires the deputy chief of staff, director of communications and the deputy solicitor to be copied on documents that mention politically appointed staff members before they are released in response to a FOIA request, a process critics say is injecting politics into what is supposed to be a nonpolitical process.

Read more here.

[ALB comment: Newsworthy, but not groundbreaking. Treasury, for example, established a sensitive review process during the Obama Administration. See https://www.nationalreview.com/2015/06/obama-administrations-newly-political-approach-foias-eliana-johnson/. Many other agencies have employed similar processes. See https://causeofaction.org/tag/sensitive-review/].

Court opinions issued June 14, 2019

Court Opinions (2019)Allan BlutsteinComment

DiBacco v. U.S. Dep’t of the Army (D.C. Cir.) — affirming district court’s decision that: (1) U.S. Army performed adequate search for records concerning Nazi general Reinhard Gehlen; and (2) agency properly withheld records pursuant to Exemption 3 in conjunction with National Security Act of 1947 and CIA Act of 1949.

Sluss v. DOJ (D.D.C.) -- ruling that: (1) DOJ failed to provide sufficient information for court to determine whether deliberative process privilege applied to memoranda concerning plaintiff’s request to be transferred to Canadian prison; (2) with respect to Exemption 7(F) withholdings, DOJ failed to show that disclosure would reasonably endanger plaintiff’s life, as agency alleged, but ordering documents to be released to and maintained by plaintiff’s counsel only; (3) DOJ properly relied on Exemption 7(C) to withhold information pertaining to third parties; and (4) DOJ failed to demonstrate that it performed adequate search for records concerning penal treaty between Canada and the United States.

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

Court opinions issued June 12, 2019

Court Opinions (2019)Allan BlutsteinComment

AquAlliance v. Nat'l Oceanic & Atmosphereric Admin. (D.D.C.) -- denying plaintiff’s request for $41,000 in fees and costs because agency acted reasonably in processing “massive amount” of documents once the lawsuit was filed.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- granting in part and denying in part agency’s use of attorney-client and deliberative process privileges to withhold records concerning agency’s use of personal email by or under Secretary Clinton.

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

Court opinions issued June 7, 2019

Court Opinions (2019)Allan BlutsteinComment

Cable News Network v. FBI (D.D.C.) -- ruling that: (1) agency properly relied on Exemption 3, in conjunction with the National Security Act of 1947, to redact information from James Comey’s memos concerning his meeting with President Trump; (2) agency properly relied on Exemption 1 with respect to 12 of 20 redactions from Comey’s memos.

Daily Caller News Found. v. FBI (D.D.C.) -- denying FBI’s request for an Open America stay because agency failed to show “exceptional circumstances” or that it made sufficient progress in reducing its backlog; denying plaintiff’s request for FBI to process 1200 pages per month instead of FBI’s usual rate of 500 pages per month.

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

Court opinion issued June 3, 2019

Court Opinions (2019)Allan BlutsteinComment

Humane Soc'y of U.S. v. Animal & Plant Health Inspection Serv. (D.D.C.) -- finding that: (1) agency improperly relied on Exemptions 6 and 7(C) to withhold narrative portion of inspection reports, among other items, noting that privacy exemptions do not protect “details about a business’s compliance with regulations and statutes;” further noting that government failed to demonstrate that disclosure would likely invite harassment and stigma; and (2) agency properly relied on Exemptions 6 and 7(C) to withhold licensee addresses and contact information from the inspection documents, as well third-parties’ names, images, and personally identifying information.

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