Court opinions
2024
Dates of decisions below. Please contact us if any of the links are broken. For additional sources of FOIA case law, see "Federal court cases" in Useful Links.
Nov. 20, 2024
Smartflash LLC v. USPTO (D.D.C.) — granting the agency’s summary judgment motion and upholding its application of Exemption 5 and the deliberative-process privilege to six emails concerning the Patent Trial and Appeal Board’s use of “expanded panels”; concluding the communications at issue were pre-decisional and deliberative since they reflected “communications by subordinate employees . . . discussing how to interpret and respond to a prior FOIA request,” and contained “preliminary impressions, analysis, questions, and recommendations”; holding further that the agency conducted an adequate segregability review and demonstrate foreseeable harm in potential “chilling effect” on the FOIA office’s processing of requests; finally, rejecting the requester’s waiver arguments based on either adoption or public disclosure as unwarranted.
Informed Consent Action Network v. FDA (D.D.C) — granting, in part, the agency’s Open America stay motion; noting, among other things, how “FDA received two court orders [in the past three years] that together compelled it to produce approximately 5.7 million pages of COVID-19 vaccine records within a highly compressed timeframe,” and that these production orders have negatively impacted the processing of other requests; rejecting the agency’s proposal for an eighteen-month stay, and instead staying the case for eight months.
Nov. 19, 2024
Gov’t Accountability & Oversight v. SEC (D.D.C.) — denying requester’s motion for fees after concluding that the requester was not eligible; rejecting the requester’s reliance on the “catalyst theory,” and instead determining that the agency persuasively explained how it had already started processing by the time the lawsuit was filed; concluding further that any “delay was not due to a lack of cooperation, but rather was the result of an email fluke that caused GAO’s FOIA requests to be marked as spam,” and that the agency’s decision to reprocess and release previously withheld portions of records was not compelled by any aspect of the litigation process.
Nov. 12, 2024
Org. for Competitive Mkts. v. USDA-OIG (D.D.C.) — granting summary judgment in favor of the defendant agency and intervenor National Cattlemen’s Beef Association more than 4 1/2 years after briefing ended; holding, first, that USDA-OIG conducted an adequate search, despite the requester not challenging its sufficency; similarly entering judgment in favor of the agency vis-a-vis its use of Exemptions 7(C) and 7(C), despite no opposition from the requester; upholding the agency’s use of Exemption 6, in light of the requester’s abandoned arguments; ruling that the agency properly invoked Exemption 4 to withhold information concerning “Beef Checkoff Contractors” and “Qualified State Beef Councils” assuch information (e.g., “financial reports, accounting ledgers, budgets, and vendor contact information) was “generally treated as private by the owner of the records”; rejecting the requester’s arguments that an assurance of privacy is a “necessary condition” for withholding; ruling further that the agency properly invoked Exemption 5 and the deliberative-process privilege to protect draft audit reports and audit-related communications, and rejecting the requester’s appeal to the “government misconduct exception”; finally, concluding that the agency conducted an adequate segregability review.
Nov. 5, 2024
Stonehill v. IRS (D.D.C.) — in yet another case concerning the 1962 Stonehill raids, granting the plaintiff’s motion to substitute but denying its motion to set aside a 2008 judgment pertaining to search adequacy and certain exemption claims on the theory that the agency lied about missing boxes of responsive documents; holding, firstly, that the plaintiff’s motion, which seemed to arise under Federal Rule of Civil Procedure 60(b)(3), should have been filed within a year from entry of judgment (i.e., in 2009), and that any effort to recharacterize the motion as arising under Rule 60(b)(6) to avoid that time limitation is unavailing; holding further that a motion pursuant to the court’s inherent powers, while timely, cannot satisfy “the extraordinarily high standard for establishing fraud on the court” because allegations of falsely submitted declarations would constitute “fraud between the parties”; noting the plaintiff also had not established any alleged fraud “by clear and convincing evidence,” let alone shown how the court was misled by such fraud in reaching its judgment.
Buckley v. DOJ (W.D.N.Y.) — denying a motion for attorney’s fees and costs because plaintiff neither “substantially prevailed by way of a court order” nor under the so-called “catalyst theory,” if only because the agency “promptly released the records upon receipt of the necessary” Privacy Act consent forms (DOJ-361s) shortly after commencement of the lawsuit.
Nov. 4, 2024
Wash. Blade v. Dep’t of Labor (D.D.C.) — with a very lengthy opinion, granting in part and denying in part each party’s motion for summary judgment in a case concerning records about religious entity exemptions withheld under Exemption 5, in conjunction with the attorney-client and deliberative-process privileges; of most interest: (1) allowing the agency “one more chance” to “meet it burden” with respect to the claimed privileges as applied to certain records, such as draft responses to congressional inquiries; (2) rejecting the agency’s use of privilege with draft press releases “adopted” by decision-makers; (3) clarifying the deliberative-process privilege extends to communications about any “matter within the agency’s managerial, organizational, or administrative ambit,” including the drafting of responses to inquiries from non-profit organizations; (4) also clarifying that Exemption 5 cannot be used to withhold communications providing guidance on how to resolve novel issues in a definitive way, because the “working law” exception applies even to "routine” matters; (5) rejecting the deliberative-process privilege vis-à-vis employee “reactions” to a press release that otherwise involved no “recommendations” about “how best to preserve or promote the Department’s goals or responsibilities”; (6) rejecting the attorney-client privilege as applied to records containing legal advice that were not subsequently kept confidential, or which merely included a lawyer on a communication that did not seem to involve any request for legal advice, or which merely constituted a “summary of verbal communication” from an agency attorney; (7) with respect to foreseeable harm, deciding that some of the agency’s analysis pertaining to records withheld under the deliberative-process privilege was “cursory,” “barely sufficient,” or “just shy of what is required,” and directing the agency to “tak[e] the time to offer more complete explanations” in the future; and, finally, (8) summarizing relevant caselaw and articulating a standard for foreseeable harm in the context of the attorney-client privilege, while also concluding the agency had failed to satisfy that standard in this case due to its “open-ended” and incomplete descriptions of supposed harms that even hinted disclosure “might pose no risk at all.”
Nov. 1, 2024
Documented v. DHS (D.D.C) — denying the government’s motion for reconsideration of an order directing DHS to disclose a memo designating Somalia for Temporary Protected Status (“TPS”) because the agency “failed to articulate, with reasonable specificity, a foreseeable harm that would likely result from its disclosure”; explaining how “the agency's summary judgment briefing and declarations provide no reason to believe that Somalia's TPS designation, or TPS designations in general, are so peculiarly controversial that agency personnel would rather eschew candid discussion than risk public disclosure of their deliberations”; explaining further that, “[i]f the abstract threat that a record may be used in future litigation were enough by itself to satisfy FOIA's foreseeable harm requirement, that requirement would be reduced to a nullity”; finally, admonishing DHS to raise its strongest and most pointed arguments against disclosure from the outset, rather than relying on “boilerplate, unparticularized, and hypothesized” predictions of future harm.
Oct. 31, 2024
Leopold. v. Def. Intelligence Agency (D.D.C.) — in a case involving the redaction of two email messages responsive to a request concerning Michael’s Flynn’s tenure at DIA and as a subject to Special Counsel Mueller’s investigation, denying each party’s motion for summary judgment; holding that the technical requirements for use of Exemption 5 and the deliberative-process privilege were satisfied; yet concluding the DIA’s foreseeable harm analysis was inadequate because the agency did not adequately explain how disclosure would interrupt or chill internal deliberations over official travel decisions; noting how the Court “is hesitant” to order the documents produced, given the potential “impact [on] foreign relations with one this country’s closest allies,” and thus providing DIA with the opportunity to file a supplemental declaration concurrent with in camera review of the email records at issue.
Oct. 29, 2024
Am. First Legal Found. v. FBI (D.D.C.) — granting the government’s motion for summary judgment in a case concerning records of the FBI’s background investigations into DHS Secretary Alejandro Mayorkas; holding, firstly, that the agency’s search was adequate given the detailed nature of the FBI’s “61-page affidavit” and, in so doing, rejecting the requester’s contention that the FBI was required to search email accounts when email correspondence was not specified in the request; relatedly concluding that the agency had not improperly narrowed the timeframe of its search; holding, further, that the FBI properly withheld records on a categorical basis under Exemptions 6 and 7(C), and that the requester offered only “bare suspicion” of why disclosure would serve the public interest by, among other things, demonstrating legal or ethical violations on the part of Secretary Mayorkas or other government officials; finally, holding that the FBI demonstrated compliance with the FOIA’s segregability requirement.
Heritage Found. v. Dep’t of State (D.D.C.) — denying the requesters’ motion for a preliminary injunction requiring expedited processing and completed disclosure of non-exempt records “by October 25, 2024” in a case involving records related to Ukrainian President Volodymyr Zelensky’s visit to an American munitions plant; holding that the requesters “have not established that the records they seek are so central or highly relevant to the electoral choice voters will make . . . or essential to the integrity of the election, that a preliminary injunction is needed to avoid irreparable harm”; holding further that the requesters otherwise “cannot rely only on a statutory entitlement to expedited processing to show [the] irreparable harm” required for preliminary injunctive relief.
Oct. 25, 2024
Sherven v. CIA (W.D. Wis.) — granting the CIA’s motion for summary judgment in a case brought by a pro se requester for records about himself; holding that the agency properly refused to search for records responsive to several items of the request on grounds that responsive records, if they existed, would be exempt under Exemptions 1 and 3; noting that, while “[t]he CIA could have been more specific in its explanation,” “[c]ourts must defer to agencies on issues of national security”; declining to conduct in camera review because, in a searchless Glomar case, that would require the agency to actually “confirm that there are responsive documents.”
Howell v. DHS (D.D.C.) — denying plaintiffs’ motion for a preliminary injunction requiring expedited disclosure of communications between Vice President Harris and Customs & Border Protection related to the “southwest border or illegal immigration”; holding that the “Plaintiffs fall far short of a preliminary injunction’s high bar,” are “unlikely to succeed on the merits,” “failed to exhaust FOIA administrative processes” by failing to respond at the outset to DHS’s request for clarification, and anyway “advance dubious claims of irreparable harm and the public interest”; elaborating that “the Court will not compel DHS to prioritize Plaintiffs’ vague, noncompliant request above the 125,000 FOIA requests in its backlog, or even the smaller number of cases in its expedited processing queue,” particularly since “Plaintiffs have already successfully sought information about the issue they claim is now so urgent, and their premature attempt to return to this Court with a highly similar request borders on the vexatious.”
Oct. 21, 2024
Envtl. Policy Inst. v. TVA (E.D. Tenn.) -- ruling that: (1) in response to request concerning agency’s involvement with a law firm and three outside organization: (a) agency properly withheld certain records pursuant to Exemption 4 and met the foreseeable harm requirement because disclosure would give competitors access to confidential business information; noting that the government was not required to provide a “detailed forecast of every possible harm; rather, the . . . requirement separates information whose disclosure is of little consequence from information whose disclosure could reasonably cause harm”; (b) agency properly withheld names, direct telephone numbers, mobile phone numbers, and email addresses pursuant to Exemption 6; and (2) agency properly redacted agency’s insurance policies for coal-fired power plants pursuant to Exemption 4 and met the foreseeable harm requirement.
Oct. 15, 2024
Jimenez v. DHS (11th Cir.) -- affirming district court’s decision that various DHS components performed adequate searches for records concerning the revocation of plaintiffs’ visa, and that they properly withheld certain records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act, 8 U.S.C. § 1202(f); rejecting plaintiff’s arguments that DHS’s declarations violated the “best evidence rule in Federal Rule of Evidence 1002,” and that several instances of inconsistent processing rebutted the presumption of good faith accorded to those declarations.
Oct. 7, 2024
Stevens v. ICE (N.D. Ill.) -- determining that: (1) plaintiff failed to exhaust her administrative remedies with respect to several requests for immigration-related records to two DHS components; (2) ruling that seven agencies performed adequate searches for immigration-related records, rejecting plaintiff’s contentions that the agencies were required to describe its general file systems and that the government’s declarations failed to specify the search terms used; (3) USCIS properly withheld records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act; ICE properly relied on Exemption 4 to withhold contract pricing information from order for services and supplies; USCIS and the Executive Office for Immigration Review properly withheld records pursuant to Exemption 5; ICE and EOIR properly withheld third-party information pursuant to Exemption 6; ICE properly withheld records pursuant to Exemption 7(C); and the Department of State properly relied on Exemption 7(E) to withhold records related to a passport fraud investigation.
Sept. 30, 2024
Lenz v. CIA (D.D.C.) — in a case involving the same substituted requester as Stonehill v. NARA (see infra), and records related to the U.S. government’s involvement in the 1962 Stonehill raids in the Philippines, granting in part and denying in part each party’s motion for summary judgment; accepting the government’s Glomar response under Exemptions 1 and 3 as to certain portions of the request at issue, and rejecting the requester’s “official acknowledgment” arguments; but also rejecting the adequacy of the government’s search and its segregability review; further rejecting the defendant agencies’ use of Exemptions 1, 3, 5, 6, 7(C), and 7(D) for other parts of the request; noting how the requester “already possess many of the documents that the CIA is now withholding in full” and has even uploaded them to PACER, yet the CIA “does not even address this unusual situation,” but instead relies on an inadequate Vaughn index; noting further that the DOJ and IRS were collaterally estopped from asserting Exemption 5 for certain records; ordering the agencies to produce a revised Vaughn index and to begin another round of summary judgment.
Kruglov v. CBP (D.D.C.) — granting CBP’s motion for summary judgment in a case involving records about the requester’s “crossing between the United States and Mexico”; holding that the agency conducted an adequate search, despite not locating certain “fingerprint records” the requester claimed existed; holding further that the agency’s invocation of Exemptions 6 and 7(C)—although unchallenged by the requester—as well as Exemption 7(E) were appropriate; with respect to the latter, noting that the scope of “techniques and procedures” must be broadly understood; ruling the agency to have satisfied its segregability obligations; finally, rejecting the requester’s prayer for declaratory relief regarding the alleged intentional delay of the agency’s determination absent a policy-or-practice claim.
Raw Story v. DOD (D.D.C.) — in a case concerning records about “the investigation of Jordan Duncan, a former Marine and alleged neo-Nazi,” denying the government’s motion for summary judgment and holding its Glomar response under Exemptions 1, 6, and 7(C) to be inappropriate; holding further that the agency too narrowly construed the request at issue; with respect to Exemption 1, noting a “mere reference to classified material does not mean that a record itself is necessarily classified,” and that the agency’s assertion about the potential threat to national security was inadequately supported; with respect to Exemptions 6 and 7(C), finding that the requester’s arguments about the public interest in responsive records was “substantial” and outweighed any individual privacy interests; finally, rejecting the agency’s alternative categorical invocation of Exemptions 6 and 7(C).
Outside Legal Counsel PLC v. Transp. Sec. Admin. (E.D. Mich.) — dismissing the requester’s claim under Rule 12(b)(1) as moot after TSA provided its determination and produced all records; noting, among other things, that the requester “did not move to amend its pleadings to challenge TSA’s production and asserted exemptions after [it] received” a determination letter and records, and its complaint did not otherwise allege a policy-or-practice claim.
Leytman v. United States (E.D.N.Y.) — denying a requester’s motion for reconsideration of the dismissal of his claims due to failure to exhaust administrative remedies; noting the requester “provides no arguments or assertions of fact overlooked by this Court,” and that even considering “new facts” raised in the motion, there is no basis to conclude administrative remedies were properly exhausted.
Sept. 27, 2024
Cizek v. DOD (D.D.C.) — granting in part and denying in part each party’s motion for summary judgment in a case involving a former Air Force chaplain seeking records about an investigation into his claims of reprisal for protected whistleblower communications; holding that the agency’s invocation of Exemption 5 to protect portions of a memorandum in response to the requester’s request for investigation was appropriate, but that it failed to make the necessary showing under the foreseeable-harm standard; noting that the agency’s foreseeable harm standard was “worthy of the criticism voiced in Reporters Committee,” namely, that it was “wholly generalized and conclusory”; further holding that the withholding of identifying information under Exemption 7(C) was justified.
Leopold v. DOD (D.D.C.) — in a ten-year-old case involving fifty FOIA requests about DOD practices at the Guantanamo Bay detention facility, denying each party’s motion for summary judgment; holding that DOD failed to demonstrate the adequacy of its search for artists’ renderings of detainees, in part because it failed to describe the search terms it employed, the files its searched, and the type of searches (i.e., physical, electronic, or both) its components undertook; holding further that DOD properly searched for other kinds of records, including videos of enteral feedings, but that additional information was needed to determine the reasonableness of the agency reviewing any portion of those videos to determine if they are actually responsive, including whether the videos would be categorically exempt under Exemptions 1 and 3, and possibly also Exemptions 6 and 7(E); with respect to the requester’s “pattern and practice claim” vis-a-vis the failure to provide estimated dates of completion, deferring judgment and asking the parties’ to address the statutory basis for the court enforcing Section 552(a)(7)(B)(ii) as to the requester and others.
Sept. 26, 2024
Mikhashov v. DOD (D.D.C.) — in a case involving two requests for records of investigations into the requester’s continuing eligibility for a security clearance, dismissing one of the requester’s claims under Rule 12(b)(6) for failure to exhaust administrative remedies; also granting summary judgment to the agency with respect to its treatment of the second request and its withholding of “handwritten statements” and “statements from witness,” along with identifying information of military personnel, under Exemption 6.
Zimmer Biomet Holdings, Inc. v. IRS (D.D.C.) — in a case concerning records about tax examinations, rejecting the requester’s partial summary judgment motion challenging the redaction of a 63-page Appeals Case Memorandum (“ACM”); holding that IRS properly protected the ACM under Exemption 5 and the deliberative-process privilege; holding further that the agency satisfied the foreseeable-harm standard, did not waive any privilege, and conducted an adequate segregability review; finally, setting aside consideration of the agency’s Exemption 3 claim under I.R.C. § 6103(e)(7).
Stein v. CIA (D.D.C.) — after a third round of summary judgment in a case involving records about the Trump presidential campaign and transition period, granting the defendant agencies’ motion and holding that (1) after conducting in camera review, the State Department properly withhold portions of Rex Tillerson’s security background investigation under Exemption 7(C); (2) ODNI conducted an adequate segregability review for records referred by the CIA; and (3) the FBI properly withhold portions of records related to the background investigations of Stephen Bannon and Michael Flynn under Exemptions 6 and 7(C).
Sept. 25, 2024
Stonehill v. NARA (D.D.C.) — granting a motion to substitute the now-deceased plaintiff-requester with the co-executor of her husband’s estate, and rejecting the agency’s attempt to introduce a “clearly indicated” standard based in “FOIA [constitutional] standing doctrine” for determining in which capacity the decedent filed the request at issue; rejecting as waived the agency’s other arguments that the estate lacked standing to file a FOIA request, or that the deceased requester was unauthorized to file suit on behalf of the estate; otherwise granting the agency’s motion for summary judgment and holding its search to have been reasonable; noting, among other things, that shipping labels were not agency records, and therefore the agency did not need to search for them to conduct an adequate search.
U.S. Inventor, Inc. v. USPTO (D.D.C.) — granting the agency’s motion for summary judgment in a case concerning inter partes review proceedings involving tribal and state sovereign immunity; holding firstly that the agency’s search was adequate, and that any further search was unnecessary given the proactive provision of additional data identified by the requester; holding also that the agency correctly relied on Exemption 5 and the deliberative-process privilege and rejecting the requester’s contention that certain records reflected improper ex parte communications that could not be exempt; noting the requester’s challenge to other records was either mooted after the agency re-produced without redaction, or conceded; finally, holding that the requester’s Exemption 6 argument was similarly conceded and the agency had satisfied its segregability obligations.
Gardner v. Dep’t of Energy (D.N.M.) — dismissing a pro se requester’s complaint for failure to state a claim because the requester failed to demonstrate how one of the defendants—a laboratory operated and managed for the Department of Energy’s National Nuclear Security Administration by a private corporation—was a federal agency subject to the FOIA.
Sept. 23, 2024
First Look Media Works, Inc. v. U.S. Agency for Global Media (D.D.C.) — adopting magistrate judge’s report and recommendation that found plaintiffs ineligible for attorney’s fees because plaintiffs failed to establish that their lawsuit caused agency to change its position; taking into account that plaintiff sued after only 55 days after making its request and that agency’s delay was credibly explained by a sudden spike in requests.
Heritage Found. v. DHS (D.D.C.) -- following in camera review of certain immigration records concerning the Duke of Sussex (“Prince Harry”) and associated declarations, deciding that DHS properly withheld records, or refused to confirm or deny their existence, pursuant to Exemptions 6 and 7(C); in reaching its decision, the court found that the Duke had more than a de minimis privacy interest in his immigration material despite being a public figure and that “disclosure of records about a single admission of a foreign national . . . would provide the public, at best, limited information about the Department’s general policy in admitting aliens.”
Wright v. FBI (D.D.C.) -- on renewed summary judgment, concluding that it would be unduly burdensome for agency to fulfill a request for certain records concerning mosques because the responsiveness review would take 88,570 hours to 154,526 hours, respectively, and cost millions of dollars
Donahue v. NARA (D.D.C.) -- concluding that NARA and the CIA performed adequate searches for records pertaining to plaintiff, a former merchant marine servicing a life sentence for sex crimes, and that the CIA properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of records whose association with the agency was classified.
Sept. 20, 2024
Project on Gov't Oversight v. DOJ (D.D.C.) -- holding that DOJ properly relied Exemption 5’s attorney-client privilege to redact certain titles of Office of Legal Counsel opinions and the names of corresponding agency clients from lists of OLC opinions covering 21 years.
Grand Marina Inv'rs v. IRS (D.D.C.) -- ruling that plaintiff failed to exhaust its administrative remedies with respect to multiple requests, but allowing a portion of one request to proceed because the IRS discretionarily accepted and fully processed an administrative appeal of an interim response.
Deryck v. DOD (D.D.C.) -- finding, in most relevant part, that the Department of the Navy performed a reasonable search for records concerning the revocation of plaintiff’s security clearance.
Am. Civil Liberties Union v. ICE (N.D. Cal.) -- concluding that electronic law library materials provided to ICE detainees were controlled by a private company, not ICE, and therefore were not agency records subject to FOIA.
Conley v. ICE (E.D. Tenn.) -- determining that ICE performed an adequate search for records related to certain agreements between ICE and the Knox County Sheriff's Office, and that ICE’s processing delays and failure to adjudicate plaintiff’s request for expedition did not entitle plaintiff to any relief.
Brown v. USCIS (D.D.C.) -- deciding not to dismiss plaintiff’s claim even though plaintiff filed his suit prematurely, because plaintiff subsequently amended the complaint after agency missed its response deadline; discounting government’s “slippery slope” concern that future litigants would intentionally sue in the same manner.
Sept. 18, 2024
Bierly v. DOD (D.D.C.) -- concluding, in relevant part, that: (1) plaintiff failed to exhaust his administrative remedies with respect to three of six requests to the Defense Counterintelligence and Security Agency concerning the loss of his security clearance; (2) agency performed an adequate search and properly withheld certain records pursuant to Exemptions 3 (Bank Secrecy Act), 5 (DPP), 6, and 7(E).
Louise Trauma Ctr. v. DOJ (D.D.C.) -- finding that plaintiff was entitled to and eligible for attorney’s fees for only one of its multiple requests, and reducing plaintiff’s proposed award to account for plaintiff’s unsuccessful work, lack of billing judgment, and excessive time spent on its fee motion.
Louise Trauma Ctr. v. Wolf (D.D.C.) -- ruling that: (1) plaintiff was eligible for attorney’s fees because its litigation was the “most natural explanation for the sudden movement” on plaintiff’s FOIA requests; (2) plaintiff was also entitled to attorney’s fees, notwithstanding the government’s seemingly valid argument that plaintiff was “a front for the collection of attorney’s fees”; and (3) no award was warranted, however, because plaintiff’s time records were “vague, inadequately descriptive, or made in error,” the request was “grossly out of line with requests in similar cases, reflecting an extraordinary lack of billing judgment,” and plaintiff has been “admonished repeatedly” for engaging in the “same unreasonable and improper billing practices.”
Sept. 13, 2024
Biddle v. DOD (D.D.C.) -- finding that “the overly brief, generalized, and technical (in part) affidavit supplied by the Department” did not enable the Court to rule on the applicability of the Department’s invocation of Exemption 3 in conjunction with 10 U.S.C. § 130e, which protects “critical infrastructure security information”; cautioning the government that it must include all exemptions it seeks to invoke in its renewed summary judgment motion and not “reserve” any of them, as it did here.
Sept. 11, 2024
Wonder v. Dep’t of the Army Office of Gen. Counsel (D.D.C.) -- concluding that: (1) plaintiff’s failure to exhaust his 2012 and 2014 requests for a legal memo concerning his security clearance did not bar plaintiff’s duplicate 2022 request (which was fully exhausted), rejecting government’s exhaustion position as “a harsh sanction unsupported by statute, precedent, or logic”; and (2) Army properly withheld the disputed memo pursuant to Exemption 5’s attorney-client privilege and it satisfied statute’s foreseeable harm requirement.
Sept. 10, 2024
Corbett v. Transp. Sec. Admin. (9th Cir.) -- vacating district court’s decision and holding that a requester is not required to file an administrative appeal when an agency issues a response after requester has properly filed a lawsuit, following the reasoning of the Fourth Circuit’s 1995 decision in Pollack v. DOJ.
McCarthy v. DOJ (S.D.N.Y.) -- transferring case to the Eastern District of New York because pro se plaintiff’s residence and the requested records are both in that district, thus making the Southern District of New York an improper venue for her FOIA claim under 5 U.S.C. § 552(a)(4)(B).
Sept. 9, 2024
Reclaim the Records v. U.S. Dep’t of State (S.D.N.Y.) -- finding that the agency performed an adequate search for “an extract of all information for deceased passport holders maintained in the passport database,” which the agency was unable to produce because of its computer system’s technical limitations; further finding that compiling the requested abstract would be unduly burdensome for the agency, putting aside the issue of whether such an endeavor would require the creation of “new” records.
Sept. 6, 2024
Clean Air Council v. U.S. Dep't of the Interior (E.D. Pa.) -- determining that: (1) case was not collaterally estopped by state agency’s decision that one company-intervenor’s feasibility studies were confidential under state open records law, because federal FOIA’ standards were different and plaintiff did not have a “full and fair opportunity” to litigate the federal government’s Exemption 4 claims before the state agency; and (2) affidavits submitted by intervenors and federal government to justify Exemption 4 withholdings did not sufficiently describe the steps that company-intervenors “customarily” took to keep the type of information at issue confidential; further noting that parties had not executed a separate confidentiality agreement and that their final contract stated that certain information could be publicly released via statutorily-required compliance reviews; and (3) defendants failed to establish that disputed records were submitted with government’s express or implicit assurance of privacy, rejecting argument that procurement regulations providing confidentiality to “source selection” records applied in this case.
Sept. 4, 2024
Judicial Watch, Inc. v. DOJ (D.D.C.) — in a case concerning the withholding of employee rosters for the office of Special Counsel Jack Smith—and, specifically, the identities of employees at the GS-14 level or higher who had not previously been disclosed to the requester—granting the government’s motion for summary judgment and approving its use of Exemptions 6, 7(A), and 7(C); holding also that the foreseeable-harm standard was satisfied; noting, with respect to Exemption 7(A), that disclosure would expose Special Counsel employees to “threats and harassment,” and otherwise reveal “nonpublic information about the office’s ongoing investigations, including its focus and scope” and “size”; finally, with Exemptions 6 and 7(C), deciding that the public interest in disclose was “weak” given the low-level nature of the unidentified employees.
Walsh v. Dep’t of the Navy (D.S.D.) — holding, in most relevant part, that the Navy’s denial of plaintiff’s duplicative request was improper because the agency failed to cite any applicable exemptions, contrary to Eighth Circuit and U.S. Supreme Court precedent; granting government’s motion to strike portions of complaint that were immaterial to plaintiff’s claim, rejecting plaintiff’s argument that doing so would violate the First and Fourteenth Amendments.
Sept. 3, 2024
Emuwa v. DHS (D.C. Cir.) — affirming district court decision holding the disclosure of USCIS officers’ written asylum recommendations, which are indisputably protected by the deliberative-process privilege under the Circuit’s decision in Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015), would also “foreseeably harm interests” protected by Exemption 5; noting the agency’s declarant demonstrated how disclosure would lead to “reduced candor by line asylum officers,” especially considering other “contextual” factors like the “‘sensitive’ nature of asylum adjudications and the specific concern about facilitating asylum fraud”; of special note, rejecting the requester’s arguments that prior release of asylum recommendations by DHS’s predecessor agency, INS, in past decades foreclosed satisfaction of the foreseeable harm standard in present instances.
Hall & Assocs. v. EPA (D.D.C.) — granting in part and denying in part plaintiff’s fee motion in a case concerning a FOIA request filed in November 2014; awarding $132,531.51 for attorneys’ fees according to the USAO Matrix, and another $18,566.81 for out-of-pocket costs; noting the “fee award represents a significant reduction of the seven-figure award” ($1,514,056.66) sought by the request, but that partial recovery was warranted, notwithstanding insufficient evidence to demonstrate the requester’s proposed market rates or work-hours expended on the lawsuit, because (1) there is no dispute the requester substantially prevailed, (2) the request at issue “had at least some public value in its potential to uncover useful information regarding the management of essential local government services,” and (3) the EPA’s grounds for withholding, which “helped prolong this litigation,” were “not entirely reasonable.”
Ball v. EOUSA (D.D.C.) — ruling that: (1) EOUSA performed adequate search for records concerning plaintiff’s prosecution for child sexual offenses and noting that EOUSA’s consultation with ICE did not obligate ICE to conduct a search of its own records; (2) EOUSA properly withheld records pursuant to Exemption 3 in conjunction with the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d)(1); (3) EOUSA improperly relied on Exemption 5’s attorney work-privilege to withhold “trial preparation material” that consisted entirely of “publicly available documents created by a third party,” which the court could not “fathom” being exempt; (4) EOUSA improperly relied on the deliberative process privilege, as well as Exemptions 6 and 7(C), to withhold a copy of an Eleventh Circuit decision involving a sex offender, remarking that it “beggars belief to assert privacy interests in a published court opinion”; EOUSA was entitled under Exemption 5 to withhold “highlighted annotations” appearing on a few publicly available pages; (5) EOUSA properly invoked the attorney work-product privilege to withhold “internal memoranda and emails” generated in anticipation prosecuting plaintiff, except for one redacted email that was previously released in unredacted form and another that EOUSA failed to defend; (6) EOUSA sufficiently demonstrated foreseeable harm for all the Exemption 5 withholdings on which it prevailed; (7) EOUSA properly withheld certain records pursuant to Exemptions 6 and 7(E).
Sept 1, 2024
Stevens v. HHS (N.D. Ill.) -- on renewed summary judgment, holding that: (1) government was not required to file a motion under Rule 60(b) seeking relief from court’s prior summary judgment ruling because the court had not entered final judgment; (2)(a) the Executive Office for Immigration Review’s supplemental search for emails about third parties was inadequate because the agency failed to explain why it did not use the subjects’ A-numbers as search terms; and (b) EOIR unreasonably limited its search to a five-year period where plaintiff asked for decade’s worth of records and the agency’s record retention period is seven years; (3) EOIR was not required to release deduplicated records, rejecting plaintiff’s argument that deduplication is a per se FOIA violation; (4) EOIR was not required to produce an “irreparably damaged” audio recording that could not be copied; (5) EOIR’s referral of emails to DHS was not improper; and (6) EOIR’s “short description” of its withholdings under Exemption 5’s deliberative process privilege were insufficient to carry agency’s burden.
Aug. 30, 2024
Stevens v. HHS (N.D. Ill.) -- finding that: (1) U.S. Customs and Border Protection performed adequate search for records concerning Congresswoman’s communications with CBP about electronic health records, and that the agency properly withheld certain records pursuant to Exemption 5 (DPP), 6, and 7(C); (2) CBP unreasonably declined to search for certain “DHS communications and related materials created by or received from other components of DHS”; and (3) CBP failed to sufficiently explain why it limited its search for certain communications with lobbyists and private companies to the recollection of a single employee within the procurement office; and (4) CBP conducted reasonable search for certain records concerning a third party and that CBP properly closed another request in the absence of a signed third party authorization form, which plaintiff failed to prove she submitted.
Aug. 28, 2024
Louise Trauma Ctr. v. USCIS (D. Md.) -- ruling that plaintiff was eligible for attorney’s fees and costs, which the government did not dispute, and that plaintiff also was entitled to an award even though the relevant factors were equally balanced for and against plaintiff; reducing amount of plaintiff’s requested fees by 61 percent because plaintiff’s hourly rate ($620/hr.) and the number of hours billed (88) were “unreasonable.”
Kennedy Human Rights v. ICE (W.D.N.Y.) -- revisiting its order requiring ICE to produce responsive records and a Vaughn Index to plaintiff on a monthly basis and granting government’s motion to use a sample Vaughn Index representing four percent of withheld records due to the “voluminous production” (approximately 17-21k pages).
Towers v. U.S. Customs & Border Prot. (D.D.C.) -- concluding that CPB improperly relied on Exemption 6 in refusing to confirm or deny the existence of communications sent or received by a named employee (who also was an employees’ union president) that mentioned plaintiff, an agency employee and former union member; reasoning that subject’s employment status and “vocal” union activities were already publicly disclosed, and that his “quite weak” private interests were outweighed by public interest in understanding how CBP interacts with its employees’ union.
Aug. 26, 2024
Am. Wild Horse Campaign v. BLM (D.D.C.) — in a case concerning a report on the inhuman treatment of animals under BLM care, denying the requester’s motion for fees and holding that it was neither “eligible” nor “entitled” to such fees and costs; explaining that the requester never “substantially prevailed” because the court never ordered any relief, and the requester failed to meet its burden to demonstrate eligibility under the “catalyst theory”; further explaining that the records received by the requester, which were largely “administrative” and already in the requester’s possession, would not benefit the public by increasing its awareness of government activities, and the agency had not be unreasonable in delaying production.
Reclaim the Records v. U.S. Dep't of State (S.D.N.Y.) — in a case concerning a request for the State Department’s “index” of reports concerning deaths of U.S. citizens abroad, granting the government’s motion for summary judgment and upholding its “no responsive records” response; accepting the agency’s representations that it no longer maintained a searchable index of death reports, but stored them in a system that could only retrieve discrete records “manually and one-at-a-time”; explaining that if the agency were to conduct individual search queries to provide the requester with a list of all death reports, that would entail the creation of records, and other “backend” search efforts would implicate non-responsive materials.
Aug. 25, 2024
Am. First Legal Found. v. FTC (D.D.C.) — in a case involving a request for records about the FTC’s regulation of Twitter, granting the government’s partial motion to dismiss; rejecting the requester’s first alternative disclosure claim under the APA for failure to state a claim because the FOIA provides an adequate remedy; also rejecting a second alternative claim under the Mandamus Act for lack of subject-matter jurisdiction; allowing the requester’s challenge under FOIA to the FTC’s use of Exemption 7(A) to proceed.
Aug. 23, 2024
Mullane v. DOJ (1st Cir.) — affirming district court’s decision that DOJ performed adequate search for records concerning its termination of plaintiff as a law student intern in 2018.
Holmes-Hamilton v. FBI (D.D.C.) — in a case involving multiple requests from survivors of three American vacationers who mysteriously died at a Dominican Republic resort, granting the FBI’s motion for summary judgment and upholding its withholding of toxicology reports, and other related records, under Exemption 7(E), which protects against the disclosure of law enforcement techniques and procedures; rejecting the FBI’s appeal to Exemption 7(D) because Dominican law enforcement authorities were not a “confidential source” and their collaboration with the FBI was never a secret; also concluding the FBI satisfied the foreseeable-harm standard and FOIA’s segregability requirement.
Judicial Watch, Inc. v. HHS (D.D.C.) — in a case concerning a request for the identity of two NIH employees involved with a research grant involving the use of human fetal tissue, granting HHS’s motion for summary judgment and upholding its use of Exemption 6 given the “sensitivity” and controversy of research into fetal tissue; noting also that the requester failed to articulate a public interest sufficient to outweigh the substantial privacy interests at stake because the identities of these employees would not shed light on official agency activities; otherwise concluding the agency satisfied the foreseeable-harm standard and rejecting the requester’s motion for limited discovery.
Aug. 21, 2024
Libarov v. ICE (N.D. Ill.) -- determining that agency performed a reasonable search for records concerning its investigation of plaintiff for entering into a sham marriage, and that it properly withheld an investigatory report pursuant to Exemption 7(A), except for portions that set forth “basic personal information” regarding plaintiff.
Aug. 20, 2024
Citizens for Responsibility & Ethics In Wash. v. DOJ (D.D.C.) -- in case seeking records about unprosecuted individuals who might have been involved in campaign finance violations committed by Michael Cohen on behalf of Donald Trump, ruling that: (1) portions of portions of DOJ’s declarations related to correspondence between the U.S. Attorney’s Office for the Southern District of New York and DOJ headquarters were “too conclusory and vague” to justify withholdings under Exemptions 5, 6, or 7(C); (2) DOJ properly relied on Exemptions 6 and 7(C) to withhold search warrant records; and (3) DOJ properly relied on Exemption 5’s attorney-work product privilege to withhold reports and notes of interviews conducted during the SDNY’s investigations into potential campaign finance violations and obstruction of justice.
Pretzman v. Mayorkas (D.D.C.) -- dismissing plaintiff’s FOIA claim concerning the Secret Service’s disclosure of plaintiff’s cellular number to entities investigating the attack on the U.S. Capitol on January 6, 2021, because plaintiff’s request—which the agency processed as a request for an accounting of disclosures under the Privacy Act -- sought answers to questions rather than documents and, alternatively, was not reasonably described.
Aug. 19, 2024
Citizens for Responsibility & Ethics in Wash. v. DOJ -- following in camera review of records related to DOJ’s monitoring of certain elections, finding that: (1) DOJ properly withheld some but not all records pursuant to Exemption 5’s deliberative process privilege, and all of DOJ’s attorney work-product privilege withholdings were proper; (2) DOJ’s single-sentence justification of foreseeable harm was insufficient, but not fatal for withheld information whose sensitivity was “obvious in context”; and (3) DOJ failed to show that records withheld under Exemption 7(A) concerned pending proceedings or that disclosure would interfere with such proceedings.
Buzzfeed v. DOJ (D.D.C.) -- concluding that: (1) Executive Office for United States Attorneys performed adequate search for communications of named U.S. Attorneys pertaining to a criminal case, but it failed to sufficiently specify search terms used to locate communications of named Assistant U.S. Attorneys; (2) granting EOUSA’s withholdings under Exemptions 7(A), 7(D), and 7(F) as conceded by plaintiff, but denying agency’s categorical withholdings under Exemptions 5, 6, and 7(C) because agency offered only “broad explanations supporting the applicability of [the exemptions] to generalized categories of documents.”
Abhyanker v. USPTO (N.D. Cal.) -- determining that: (1) Patent & Trade Office performed reasonably searches for specific records that plaintiff requested concerning agency’s disciplinary case against him; (2) agency properly withheld certain records pursuant to Exemption 5’s attorney work-product and deliberative process privilege, as well as Exemptions 6, 7(A), and 7(C).
Rolling Stone LLC v. DOJ (S.D.N.Y.) -- denying plaintiff’s motion to compel DOJ to apply for an Open America stay because the motion was “really just a veiled request” to expedite DOJ’s ongoing production of documents and no “compelling need” for expedition existed.
Aug. 16, 2024
Brodsky v. FBI (N.D. Ill.) -- finding after in camera review that: (1) FBI properly relied on Exemptions 3, 5, 6, 7(C), 7(D), and 7(E) to withhold records pertaining to plaintiff; and (2) FBI properly refused to confirm or deny the existence of records concerning specific third parties pursuant to Exemptions 6 and 7(C).
Organized Cmtys. Against Deportations v. ICE (N.D. Ill.) -- following in camera review of sample documents concerning agency’s “Citizens Academy,” ruling that Agency properly withheld records pursuant to Exemptions 6 and 7(E).
Aug. 15, 2024
Huddleston v. FBI (E.D. Tex.) -- ruling that FBI could not categorically withhold hundreds of thousands of laptop records of Seth Rich pursuant to Exemption 7(A) without first conducting a document-by document review, and ordering agency to produce Vaughn Indices or to file a summary judgment motion by February 7, 2025.
Huddleston v. FBI (E.D. Tex.) -- denying plaintiff’s “corrected” summary judgment motion and concluding that: (1) plaintiff’s use of news articles as summary judgment evidence was inappropriate under the Federal Rules of Evidence; (2) adequacy of FBI’s search was not undermined by plaintiff’s speculation about the existence of unproduced records; and (3) plaintiff was not entitled to discovery regarding FBI’s search because he failed to establish agency acted in bad faith.
Aug. 13, 2024
Pomares v. U.S. Dep’t of Veterans Affairs (9th Cir.) -- affirming in part and reversing in part district court’s decision regarding the agency’s search for and processing of records concerning possible misconduct investigated by agency’s Inspector General; finding that: (1) the VA performed a reasonable search for responsive records, rejecting plaintiff’s argument that FOIA prohibits manual review of records for responsiveness; (2) the VA properly relied on Exemption 4 to withhold records obtained from consulting company pursuant to IG’s subpoena, rejecting plaintiff’s objections to the form of company’s objection letter and its incorporation by reference in agency’s Vaughn Index; (3) agency properly redacted names and contact information of employees and third parties under Exemption 6, except for names of third parties who lobbied Congress or the VA; and (4) agency failed to sufficiently explain how Exemption 7(E) applied to withheld interview transcripts generated by agency’s IG investigation.
Aug. 9, 2024
Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- denying government’s motion to amend court’s prior judgment that the Drug Enforcement Administration improperly relied on Exemption 6 to withhold names of alleged agency tortfeasors from settlement claims records; finding that DEA did not present new evidence or show that the court’s analysis of the private and public interest at stake resulted in “manifest injustice.”
Aug. 7, 2024
Reclaim the Records v. U.S Dep’t of State (S.D.N.Y.) -- finding that the State Department performed adequate search for pre-existing index or list of birth and death records for residents of the Panama Canal Zone between 1904 and 1979, and that the agency’s computer system was unable to generate the requested records; further finding that fulfilling plaintiff’s request would involve creating new records via extraordinary manual measures, which the agency was not required to do.
Aug. 6, 2024
Connell v. Cent. Intelligence Agency (D.C. Cir.) — in a case concerning the CIA’s “operational control” over detainees at Guantanamo, affirming the agency’s use of a “Glomar response” to refuse to confirm or deny the existence of responsive records lest the CIA reveal classified intelligence sources and methods; rejecting the requester’s argument that the CIA waived its ability to assert Glomar based on a Senate Select Committee on Intelligence report because that report was not “official” and could not be attributed to the agency; further rejecting the requester’s alternative argument that disclosure of records from a database of materials “previously disclosed to the public” foreclosed the use of Glomar as to other potentially responsive records; noting that while the CIA’s supporting declarations “could have provided more detail” to support the use of a Glomar response they were adequate.
Am. Small Business League v. Small Business Admin. (N.D. Cal.) — on a motion for attorney’s fees and costs, granting the motion in part and denying it in part; holding that plaintiff was not “eligible” for fees pertaining to the production of Small Business Administration “PPP loan data” because the relevant “judicial order” ordering production was actually issued in another case (Washington Post Co. v. Small Bus. Admin., No. 20-1240 (D.D.C.)), despite the instant court relying on that order, and therefore there was no “causal nexus” between the agency’s production and plaintiff’s own lawsuit; further holding that plaintiff was eligible for fees pertaining to the production of supplemental data that was discovered after (and independent of) the Washington Post case, as well as certain interbranch communications; as to “entitlement,” ruling that plaintiff should not receive fees for certain records whose production was not unreasonably delayed; reducing the ultimate fee award due to plaintiff’s use of “block billing.”
Aug. 5, 2024
Cox v. DOJ (2nd Cir.) -- affirming district court’s decision that a congressional committee’s report concerning the CIA’s post-9/11 detention and interrogation program was a “congressional” record, not an “agency” record subject to FOIA, even though it was disseminated to various federal agencies; in reaching its decision, the Second Circuit found that because the Committee “manifested a clear intent to control the report at the time of its creation, and because the Committee's subsequent acts did not vitiate that intent,” the agencies that possessed the report did not “control” it under the “intent test” adopted by the Circuit in Behar v. DHS (2nd Cir. 2022).
Aug. 1, 2024
Shapiro v. Dep’t of Justice (D.D.C.) — faced with “the latest in a very long series of disputes between the parties,” ordering the FBI to process and produce the potentially responsive contents of the agency’s “Freedom of Information and Privacy Act Document Processing System (‘FDPS’)”; rejecting the FBI’s arguments that “substantive entries” in its FDPS were alternatively (1) outside agency control, (2) lacked “sufficient permanence” to be considered a “record,” or (3) would require “record creation” in order to disclose; similarly rejecting the FBI’s argument that production would “involve a ‘gargantuan’ effort,” as creating screenshots would not be “any different [than] the burden imposed in myriad FOIA cases.”
Reason Found. v. Fed. Bureau of Prisons (D.D.C.) — in a case involving BOP “mortality reviews” of inmate deaths, upholding in part the agency’s use of Exemption 5, in conjunction with the deliberative-process privilege, because mortality reviews are prepared to assist in high-level decisionmaking about inmate care and reflect non-factual opinions about the same; noting, however, that there is “uncertainty” as to whether portions of the reviews concerning administration of emergency care (e.g., CPR) is privileged, and allowing BOP to renew its motion for summary judgment; noting further that BOP waived privilege for a small subset of withholdings applied to “checkbox questions where [the agency] disclosed the narrative response to the same question.”
July 30, 2024
Truesdale v. U.S. Pub. Health Serv. (D.D.C.) -- granting government’s motion for summary judgment after crediting affidavits of various agencies attesting that pro se plaintiff’s requests were never received, whereas plaintiff, a recently released federal inmate, was not able to provide any evidence beyond copies of his requests.
July 29, 2024
Bermudez v. DOJ (W.D. La.) -- denying attorney’s fees in connection with plaintiff’s request for immigration court case file after determining that: (1) plaintiff was ineligible for an award because he did not obtain relief through judicial order, and the Executive Office for Immigration Review initiated the processing of plaintiff’s request “well before” the lawsuit was filed; and (2) even if plaintiff had substantially prevailed, he would not have been entitled to fees because his request was motivated by personal and commercial interests and EOIR did not deny the request or withhold any records.
Daniels v. Raimondo (N.D. Ill.) -- concluding that U.S. Census Bureau, plaintiff’s former employer, clearly established that its search was reasonably designed to find plaintiff’s personnel records, even if two items plaintiff sought ultimately were not found; rejecting plaintiff’s argument that the agency released several fake documents and noting that plaintiff would not be entitled to any relief under FOIA even if such fabrication had occurred.
July 26, 2024
Cabezas v. FBI (D.C. Cir.) -- affirming district court’s decision that: (1) FBI conducted a reasonable search for records concerning plaintiff’s child pornography-related conviction; and (2) FBI properly withheld information pursuant to Exemptions 5, 6, 7(C), and 7(E).
Louise Trauma Ctr. v. USCIS (D. Md.) -- dismissing, as moot, lawsuit seeking records related to the training and performance of asylum officers, because the complaint challenged only the agency’s failure to timely produce records and the agency subsequently produced records, albeit with redactions; ruling that plaintiff could not amend its original complaint via a responsive filing and that it “must first challenge the redactions by appealing to the head of the agency before it seeks a judgment from this Court.”
July 25, 2024
Inst. for Energy Research v. FERC (D.D.C.) -- concluding that FERC properly relied on the deliberative process privilege and Exemption 6 to redact communications exchanged between agency lawyers and White House counsel as part of FOIA consultation process; further finding that foreseeability requirement was met for both exemptions, specifically the “chilling effect” that disclosure would entail, as well as “annoyance, threats, embarrassment” to agency employees.
July 24, 2024
Children's Health Def. v. CDC (D.D.C.) -- in dispute concerning COVID-19 vaccine safety-monitoring records sent to FDA for consultation, ruling that: (1) HHS was not a party to the case by operation of law, but allowing it to move for a stay as an intervenor; and (2) granting stay for six months because several judges in same district had already issued stays affecting access to the same documents, and because FDA was burdened by an “extraordinary production” schedule imposed by a federal court in Texas.
July 22, 2024
Cole v. Locascio (D.D.C.) -- on renewed summary judgment, adopting magistrate’s report and recommendation finding that: (1) Federal Emergency Managment Agency performed an adequate search for records concerning agency’s study of the collapse of the World Trade Center in 2001, rejecting plaintiff’s objections that FEMA failed to produce specific, non-exempt documents or that it was obligated to search 490,000 pages maintained by the National Archives and Records Administration; (2) plaintiff’s claim against the National Institute of Standards and Technology was moot because plaintiff received all the records he sought.
July 16, 2024
Kowal v. DOJ (D.C. Cir) -- affirming district court’s 2022 decisions—following multiple rounds of summary judgment—that: (1) the FBI, DEA, and ATF justified the adequacy of their searches for records concerning plaintiff’s client, Daniel Troya, who was sentenced to death for murder in 2009; and (2)(a) defendant agencies properly withheld third-party information pursuant to Exemption 7(C); (b) FBI properly relied on Exemption 3 in conjunction with 18 U.S.C. §§ 2510–12, to withhold a narrative summary of a wiretap conversation; (c) FBI and DEA properly withheld source information pursuant to Exemption 7(D), noting that “grisly nature” of the crime “easily” supported inference of confidentiality for each source.
July 11, 2024
Franklin v. Wormuth (D. Md.) -- determining that: (1) Department of the Army established that it performed adequate search for three of four categories of records pertaining to agency’s response to plaintiff’s EEO complaint, but denying summary judgment for one category because agency’s search description was “remarkably thin”; and (2) Army properly relied on Exemptions 6 and 7(C) to redact identifying information about third parties from Army police report.
July 9, 2024
Lovelace v. DOJ (D. Utah) -- recommending that court dismiss pro se plaintiff’s claim concerning FBI’s 2016 FOIA response, because plaintiff failed to file an administrative appeal with DOJ’s Office of Information Policy.
July 8, 2024
Rolling Stone, LLC v. DOJ (S.D.N.Y.) -- deciding that FBI properly denied plaintiff’s bid to expedite its request for “all FBI records about Henry Kissinger,” because plaintiff “offered no reasons and no evidence why the documents it requested could bear on government integrity but rather itself simply parroted the statute.”
July 3, 2024
Heritage Found. v. DOJ (D.D.C.) -- ruling that government reasonably searched for records pertaining to Robert Hunter Biden and did not act in bad faith, rejecting plaintiff’s argument that agency custodians were inappropriately tasked with searching their own records about their own alleged misconduct.
July 2, 2024
Fogg v. IRS (8th Cir.) -- following in camera inspection, affirming district court’s decision that agency properly relied on Exemption 7(E) to withhold portions of section 21.1.3.3 of the Internal Revenue Manual, because the contents concerning third-party authentication are “techniques and procedures for law enforcement investigations and their disclosure could reasonably be expected to risk circumvention of the law”; further concluding that the agency met the heightened foreseeable harm standard, which the district court neglected to address.
July 1, 2024
Louise Trauma Ctr. v. DHS (D.D.C.) -- deciding that plaintiff was eligible and entitled to award of attorney’s fees, fees on fees, and costs regarding its requests for asylum-related records; for both factors, taking into account agency’s unexplained failure to produce any records in the year or more before litigation began; reducing plaintiff’s requested award for billing “some improper and excessive tasks,” and because “many of the time-keeping records lack sufficient detail to assure the Court that time was reasonably expended.”
Empower Oversight Whistleblowers & Research v. U.S. Dep't of Veterans Affairs (E.D. Va.) -- ruling that: (1) plaintiff’s claims regarding agency’s lack of timeliness were moot, plaintiff had no right to declaratory relief or attorney’s fees on those claims, and plaintiff failed to properly allege a “policy-or-practice” claim; (2) multiple components performed adequate searches for requested records related to inquiry by U.S. Senator Grassley about a senior-level agency employee; and (3) agency properly redacted certain information pursuant to Exemption 5 (DPP) and Exemption 6.
June 25, 2024
Radar Online LLC v. FBI (S.D.N.Y.) -- on renewed summary judgment, ruling that FBI properly relied on Exemption 7(A) to withhold certain records pertaining to Jeffrey Epstein because disclosure could reasonably be expected to interfere with related prosecution of Ghislaine Maxwell, whose case is on appeal.
June 21, 2024
Mayor of Baltimore v. ATF (D.D.C.) -- denying renewed motion of the National Sporting Sports Foundation (NSSF) to intervene in case involving certain firearm trace records because NSSF lacked standing. The court noted, among other things, that NSSF failed to explain “why the ATF has not adequately represented its interests with respect to Exemption 3,” that NSSF had been permitted to file an amicus brief, and that NSSF would be permitted to be heard at any oral argument.
June 20, 2024
Nat'l Pub. Radio v. U.S Cent. Command (9th Cir.) (unpublished) -- in a partially split decision, affirming in part and reversing in part the district court’s decision that agency adequately searched for records pertaining to a 2004 friendly-fire incident during the Iraq War. The majority held, in part, that plaintiff pointed to clear leads of overlooked records that were “likely created to investigate one of the worst friendly-fire incidents in Marine Corps’ modern history.” The partial dissent opined that the search was adequate “beyond a reasonable doubt” because the agency’s good-faith declarations were reasonably detailed, and no genuine evidence indicated that a different database also should have been searched.
June 17, 2024
Malone v. USPTO (E.D. Va.) -- ruling that: (1) agency properly relied on Exemption 5’s deliberative process privilege to withhold communications between certain panelists and non-panelists—all agency employees—about draft decisions, and declining to conclude that those communications were unconstitutional or violated the Administrative Procedures Act; and (2) plaintiff was ineligible for an award of attorney’s fees because he failed to establish that his lawsuit had any more than a minimal impact on the agency’s responses to his requests.
June 7, 2024
Nat’l Sec. Archive v. CIA (D.C. Cir.) -- affirming district court’s district decision that the CIA properly invoked Exemption 1 to withhold a 1989 report drafted by Leonard Peroots concerning a 1983 nuclear crisis with the Soviet Union; rejecting plaintiff’s argument that the CIA was precluded from withholding the memo because the State Department previously published a version of the memo with the CIA’s blessing.
June 6, 2024
Proj. for Privacy & Surveillance Accountability v. DOJ (D.D.C.) -- deciding that FBI properly relied on Exemption 3 in conjunction with the National Security Act of 1947, as well as Exemptions 7(D) and 7(E), to partially redact its “Intelligence Program Policy Guide” and an email summarizing counterterrorism investigations.
Williams v. DOJ (D.D.C.) -- ruling that: (1) U.S. Marshals Service properly relied on Exemption 7(C) in refusing to confirm or deny the existence of certain third-party information relating to plaintiff’s criminal case'; and (2) USMS performed adequate search for certain records the agency did not locate pertaining to plaintiff’s criminal case.
May 31, 2024
Biear v. DOJ (M.D. Pa.) -- denying plaintiff’s motion to reopen his FOIA case, which sought investigatory records about himself, because agency components complied with the court’s previous order regarding the re-processing of records.
May 23, 2024
Cohodes v. DOJ (N.D. Cal.) -- following in camera review, finding that DOJ could not rely on Exemptions 6 and/or 7(C) to redact the following information originating from a dispute between plaintiff, a Wall Street short-seller, and biotech company MiMedx, specifically: (1) name of email author sent under a pseudonym to an attorney; (2) name and email address of attorney who forwarded email to FBI; (3) names of MiMedx witnesses interviewed by the government in 2018; and (4) anonymous email address from a person who sent an email to a witness offering to provide information about the plaintiff.
May 21, 2024
Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- on renewed summary judgment, concluding that: (1) DEA improperly relied on Exemption 6 in redacting “publicly available dates and attorney contact information connected to civil lawsuits”; (2) DEA properly invoked Exemption 6 to withhold names and identifying information of individuals who filed administrative claims against DEA, but that in camera review was required to evaluate certain records containing block redactions; and (3) DEA properly withheld remaining disputed information under Exemption 6, but failed to provide sufficient information to allow the court evaluate whether redacted information about a former DEA Academy trainee was truly identifying.
Driggs v. CIA (E.D. Va.) -- denying plaintiffs’ motion to compel a search of the CIA's operational files for records concerning Americans allegedly held as prisoners of war following the Korean War; finding that the requested records—if they exist—were protected by Exemption 3 in conjunction with the CIA Information Act, 50 U.S.C. § 3141, and that plaintiffs failed to show that any exceptions to the CIA Information Act applied.
May 17, 2024
Am. Oversight v. HHS (D.C. Cir.) -- reversing the district court’s decision granting judgment to the government and ruling: (1) in a unanimous opinion, that HHS failed to perform an adequate search for records concerning healthcare reform because it omitted “obvious alternative terms,” such as the unabbreviated names of the ACA and AHCA statutes, “without a detailed explanation”; and (2) in a 2-1 opinion, that communications between agencies and Congress (or their staffs) did not fall within the Exemption 5’s consultant corollary doctrine, as interpreted by the U.S. Supreme Court in Klamath, because “each side had an independent stake in the potential healthcare reform legislation under discussion”; the dissent contended that FOIA’s “text, purpose, structure, and legislative history” supported withholding under Exemption 5, notwithstanding Klamath, and that “the ramifications of the majority’s contrary interpretation of FOIA are actually quite breathtaking.”
May 16, 2024
Guarascio v. FBI (D.D.C.) -- on renewed summary judgment uncontested by plaintiff, ruling that: (1) FBI established that it performed a reasonable search for records related to plaintiff’s conviction for manufacturing child pornography, in part, by averring that it “searched all locations and files reasonably likely to contain responsive records, and there is no basis for the FBI to conclude that a search elsewhere would reasonably be expected to locate responsive records subject to the FOIA”; and (2) FBI properly relied on Exemption 7(D) to withheld certain records received from the North Carolina State Bureau of Investigation, which contained “clear indicators,” including express markings, that the material was confidential.
May 15, 2024
Luthmann v. FBI (M.D. Fla.) -- concluding that: (1) for portion of request concerning third parties, FBI properly used a Glomar response pursuant to Exemptions 6 and 7(C); (2) FBI performed adequate search for records pertaining to plaintiff’s investigation for fraud and extortion; (3) FBI properly relied on Exemption 3 to withhold grand jury records, pen register information, wiretap information, intelligence information, bank records, and export control enforcement information; and (4) government properly withheld other records pursuant to Exemptions 5, 6. 7(C), and 7(E), as well as court-sealed records.
May 14, 2024
Pickering v. DOJ (W.D.N.Y.) -- ruling on disputed portions of magistrate judge’s report and recommendations that: (1) magistrate did not err in finding that ATF failed establish that voices on audiotapes were not reasonably segregable; ordering agency to explain in a sworn declaration what happened to 16 tapes that ATF now claims are missing and two that were destroyed; (2) because FBI did not withhold handwritten notes pursuant to Exemption 5’s deliberative process privilege, magistrate erred in granting summary judgment to plaintiff on this ground; (3) FBI’s failure to identify which pages of 14,000 withheld pages fell within Exemption 7(A), combined with the FBI’s “exceedingly vague and amorphous characterization of any prospective law enforcement proceeding,” made it “impossible” for the court to assess the FBI exemption claim; and (4) magistrate did not err in finding that ATF’s justification for its use of Exemption 7(F) lacked reasonable specificity.
May 10, 2024
Borowski v. U.S. Customs & Border Prot. (W.D.N.Y.) -- finding that: (1) agency failed to adequately explain its search methodology in response to request for records concerning plaintiff; and (2) agency’s Vaughn Index lacked sufficient detail to allow court to evaluate withholdings under Exemptions 6, 7(C), and 7(E); and (3) agency’s withholding claim under Exemption 5’s deliberative process privilege also lacked a sufficient basis, nor did agency meet its foreseeable harm burden.
May 3, 2024
Boundaoui v. FBI (N.D. Ill.) -- following in camera review of sample documents, deciding that: (1) FBI improperly relied on Exemption 7(C) to redact race, ethnic information, and nationality of people investigated, because disclosure would not increase risk of identification; (2) FBI properly withheld various categories of records pursuant to Exemption 7(E); (3) FBI met its burden to show that the withheld information could not be further segregated and released.
May 1, 2024
VRA Enters. v. CMS (M.D. Fla.) -- denying government’s motion to dismiss and oddly ruling that: (1) HHS Office of Inspector General’s response that it did not maintain requested records (and forwarding request to CMS) was not an adverse determination triggering exhaustion requirement; and (2) OIG's response letter failed to notify plaintiff of its right to seek assistance from a FOIA Public Liaison, and therefore it did not trigger actual exhaustion.
Apr. 29, 2024
Heritage Found. v. DOJ (D.D.C.) -- in case concerning various communications about Timothy Thibault, a former Assistant Special Agent in Charge of the FBI’s Washington Field Office, determining that: (1) DOJ properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny the existence of records compiled for law enforcement purposes, but not for administrative records that plaintiff’s request conceivably sought; and (2) DOJ properly withheld—on a categorical basis—records of communications containing the terms “Thibault” and “Grassley” pursuant to Exemptions 6 and 7(C), except as to any responsive administrative records.
Apr. 26, 2024
Accuracy in Media v. DOD (D.D.C.) -- holding that FBI properly relied on Exemption 7(A) to categorically withhold certain FBI interview reports and corresponding handwritten notes of interviews conducted with American personnel who were present during the 2012 Benghazi attacks.
Henderson Parks v. Fed. Bureau of Prisons (N.D. Ill.) -- finding that BOP properly withheld certain records pertaining to the death of plaintiff’s former client while imprisoned pursuant to Exemptions 5, 7(C), (7(E), and 7(F); denying plaintiff’s request for in camera review and for “attorney’s eyes-only” access to withheld records.
Apr. 23, 2024
Juul Labs v. FDA (D.D.C.) -- in case concerning agency’s denial of market approval for plaintiff’s e-cigarette products, concluding that: (1) agency properly relied on Exemption 5’s deliberative process privilege to withhold certain review memos drafted by agency scientists, as well as one “Technical Project Lead” review memo, but ordering FDA to review records submitted in camera that appeared to contain “purely descriptive” material; and (2) FDA established that disclosure would cause foreseeable harm by confusing the public and chilling agency deliberations.
Apr. 19, 2024
Campaign for Accountability v. DOJ (D.D.C.) -- holding that the Office of Legal Counsel’s “formal, written opinions resolving interagency disputes” are subject to FOIA’s reading room provision, 5 U.S.C. § 552(a)(2)(A) because such opinions are “final opinions . . . made in the adjudications of cases.” In reaching its decision, the court rejected the government’s argument that because OLC opinions may not resolve questions of agency policy, they were not “final” opinions for purposes of section 552(a)(2)(A).
Apr. 10, 2024
Malone v. USPTO (E.D. Va.) -- ruling that: (1) plaintiff could not in litigation expand scope of his original request, which sought certain information about patent cases in which expanded panels were used or in which panels were advised by agency personnel to change their decisions; (2) plaintiff’s request would impermissibly require the agency to conduct research and create new records; and (3) agency was required to process one document concerning expanded panels that was partially responsive to plaintiff’s request.
Col. Wild Pub. Lands v. U.S. Forest Serv. (D.D.C.) -- dismissing case as moot, except with respect to matters relating to attorney’s fees and costs, because agency complied with court’s earlier decision to release certain records to plaintiff; refusing to consider plaintiff’s belated argument that agency has a “systemic policy of delaying the release of records”; and rejecting plaintiff’s various protests about how agency released records, remarking that “[b]y continuing to litigate, it seems [plaintiff] is having a hard time accepting ‘yes’ for an answer.”
April 4, 2024
Abissi. v. USCIS (D. Md.) -- granting government’s motion to transfer case involving asylum records to the U.S. District Court for the District of Columbia because only two of seven plaintiffs reside in Maryland and the responsive records are maintained in Missouri; rejecting plaintiff’s argument that venue could be established in Maryland based on the Maryland location of the agency’s Asylum Division headquarters.
Mar. 31, 2024
Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- on remand from the D.C. Circuit, holding that: (1) the names of federal contractors who supplied the Federal Bureau of Prisons (BOP) with pentobarbital qualified as commercial information under Exemption 4 because disclosure would reveal that “the contractors have sold a product and/or service to the government, thereby ‘actually reveal[ing] basic commercial operations” of the contractors’”; (2) BOP established that the disputed contract terms were confidential under Exemption 4 by “showing how the contract terms at issue could be cross-referenced with public information to identify the contractors”; (3).BOP established that foreseeable harm would result from disclosure of the contractors’ names and contract terms by explaining that identified companies are “‘commonly subject to harassment, threats, and negative publicity leading to commercial decline’”; and (4) certain records needed to be reviewed in camera review to resolve whether DOJ had publicly shared withheld information.
Mar. 29, 2024
McKathan v. DHS (D.D.C.) -- deciding that: (1) plaintiff’s request to DHS for all records mentioning his “name, address, phone number, the investigation number listed in a seizure custody receipt, or subscriber or identifying information about U.S.-based users of ‘imgsrc.ru’” was not reasonably described, and plaintiff failed to exhaust his administrative remedies; (2) State Department conducted an adequate search in response to plaintiff’s similarly broad request; and (3) denying plaintiff’s request for discovery from DHS and the State Department; denying his request for Vaughn indices from DOJ and EOSUA, which were still processing plaintiff’s requests; and denying an expedited summary judgment schedule.
Mar. 28, 2024
Clay v. Dep’t of the Navy (M.D. Fla.) -- dismissing case as moot after determining that agency had released all previously withheld records disputed by plaintiff.
Staszak v. DOJ (D.D.C.) -- finding that plaintiff failed to exhaust his administrative remedies with respect to his requests to EOUSA and FBI pertaining to his son’s criminal conviction, noting that plaintiff obtained his son’s express written consent for those agencies to search for and process responsive records only after filing suit.
Mar. 27, 2024
Groenendal v. EOUSA (D.D.C.) -- ruling that (1) EOUSA and ICE performed adequate searches for various records pertaining to plaintiff’s imprisonment on child pornography-related charges; and (2) EOUSA properly withheld certain records pursuant to Exemptions 3, 5, 7(C), and 7(E), and met any applicable foreseeable harm requirement.
Mar. 26, 2024
James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C.) -- on renewed summary judgment, concluding that the government properly redacted a report containing ODNI’s intelligence assessment regarding the source of Havana Syndrome” pursuant to Exemptions 1, 3, and 7(E); stating further that the government “would easily satisfy” the foreseeable harm requirement if plaintiffs had contested it, noting that reasonable foreseeable harm “is always present when the Government properly invokes exemption 1, because significant harm from disclosure is a requirement for classification in the first place.”
Mar. 25, 2024
Zaid v. DOJ (4th Cir. ) -- affirming district court’s decision that FBI properly relied on Exemption 7(A) to withhold records concerning the criminal investigation of plaintiff’s client, who was charged with production and possession of child pornography; remarking that “to hold against the government in this case would set the burden so high as to risk writing the exemption out of the statute.”
Mar. 22, 2024
Hettena v. CIA (D.D.C.) -- ruling that agency’s Office of Inspector General properly relied on Exemptions 1 and 3 to redact information from its report concerning the death of Manadel al-Jamadian, an Iraqi national who was detained for carrying out an October 27, 2003, terrorist attack on Red Cross offices in Baghdad.
Phillips v. DHS (D.D.C.) -- finding that U.S, Customs and Border Protection properly withheld two videos of detainees pursuant to Exemptions 6 and 7(C) and that it could not reasonably segregate and release non-exempt portions; noting that even if a video “that blurred the individuals’ faces and muted the audio might still convey the detainees’ emotional state, it is unclear that that information would be responsive to the FOIA request—and in any event, that marginal information would be substantially outweighed by the excessive costs of redaction.”
Mar. 21, 2024
Judicial Watch v. DOJ (D.D.C.) -- holding that DOJ properly relied on Exemption 5’s attorney work-product privilege to withhold handwritten notes taken by two Assistant U.S. Attorneys during meetings regarding the potential criminal activity of Paul Manafort, as well an email exchanged by the same attorneys on the same subject.
Mar. 19. 2024
Def. of Freedom Inst. for Policy Studies v. U.S. Dep’t of Education (M.D. Fla.) -- dismissing case on grounds of improper venue after finding that plaintiff did not reside in the Middle District of Florida, but rather was incorporated in Virginia and had its principal place of business in Washington, D.C.; rejecting plaintiff’s argument that venue was proper because plaintiff had “substantial contact” with the district and was registered to do business in Florida.
Def. of Freedom Inst. for Policy Studies v. U.S. Dep’t of Education (M.D. Fla.) -- dismissing case on grounds of improper venue after finding that plaintiff did not reside in the Middle District of Florida, but rather was incorporated in Virginia and had its principal place of business in Washington, D.C.; rejecting plaintiff’s argument that venue was proper because plaintiff had “substantial contact” with the district and was registered to do business in Florida.
Castillo v. U.S. Customs & Border Prot. (N.D. Cal.) -- denying plaintiff’s request for an award of attorney’s fees and costs because even if he were eligible, which the court doubted, plaintiff did not meet the entitlement prong because his interest in obtaining agency records “relevant to a tort claim he is considering filing does not implicate any significant public interests . . . .”
Project on Gov't Oversight, Inc. v. U.S. Office of Special Counsel (D.D.C.) -- determining that OSC properly invoked Exemption 7(C) to withhold the names and identifying information of three Trump administration officials who were investigated for Hatch Act violations, but not the subject of any further law enforcement action.
Mar. 14, 2024
NY Times v. DOJ (2nd Cir.) (unpublished) -- affirming district court’s decision that: (1) DOJ properly relied on Exemption 5’s deliberative process privilege to withhold factual material that was "inextricably intertwined" with independent monitor’s subjective analysis; and (2) agency’s declarations described with "reasonably specific detail" how disclosure would result in harm to its deliberative processes, namely, “its ability to ensure candor between the agency and an independent monitor, so that DOJ can enter and effectively enforce plea agreements with companies like VW.”
Ctr. for Inquiry v. HHS (D.D.C.) -- deciding that: (1) FDA did not perform adequate search for communications between certain employees and the Homeopathic Convention of the United States (HPCU); and (2) FDA properly found that entire copies of draft HPUS monographs were “commercial” under Exemption 4 because they are “the very product from which HPCU derives most of its income,” but the agency failed to sufficiently describe remaining withheld material to permit evaluation of its “commercial” nature and it failed to establish that any records were confidential.
Mar. 13, 2024
Inst. for Energy Research v. FERC (D.D.C.) -- concluding that: (1) agency conducted adequate search for records, noting that agency reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms; (2) FERC properly withheld records pursuant to Exemption 5’s deliberative process privilege, but failed to show foreseeable harm for all but one withholding; and (3) FERC properly relied on Exemption 6 to withhold name of a prospective agency employee and all cellphone numbers (and that the foreseeable harm test was met), but it improperly withheld the names of two employees.
Mar. 12, 2024
Project South v. USCIS (S.D.N.Y.) -- regarding disputed responses from ICE, DHS, and State Department to requests about the removals of Cameroonian and other African migrants in 2020 and early 2021, finding that: (1) State established that it conducted an adequate search, but not that it properly withheld draft talking points pursuant to Exemption 5’s deliberative process privilege; (2)(a) ICE did not perform an adequate search for records; (b) ICE did not show that Exemption 3, in conjunction with 8 U.S.C. § 1367(a)(2), applied to detainees' travel documents and immigration proceedings, but such information was properly withheld pursuant to Exemptions 6 and 7(C); and (c) ICE properly relied on the deliberative process privilege to withhold internal discussions about logistics for removal flights; (d) ICE properly withheld an intelligence report, information on removal operations, and negotiations with a foreign government under Exemption 7(E); and (3) DHS failed to prove as a matter of law that they conducted an adequate search
Mar. 11, 2024
Delgado v. DOJ (D.D.C.) -- dismissing plaintiff’s claim against DOJ and ATF because he never submitted a request to either of them, and determining that USDA performed an adequate search for records concerning ATF’s contributions to plaintiff’s pension (and finding no records).
Mar. 10, 2024
Wash. Lawyers' Comm. For civil Rights & Urban Affairs v. DOJ (D.D.C.) -- ruling that: (1) plaintiff was not required to exhaust administrative remedies to maintain a pattern-or-practice claim alleging delays in responses by the Federal Bureau of Prisons to counsel requests for client records; (2) government was entitled to summary judgment on plaintiff’s pattern-or-practice claim because plaintiff failed to rebut defendant’s evidence that it did not have a policy or practice of violating FOIA; and (3) in the interest f judicial economy, plaintiff’s 39 individual FOIA requests would severed (with one exception), requiring plaintiff to refile them as separate actions.
Mar. 8, 2024
Maritime Documentation Ctr. Corp. v. U.S. Coast Guard (9th Cir.) (unpublished) -- affirming district court’s decision granting summary judgment to agency with respect to its Exemption 6 redactions of personally identifiable information of owners of Coast Guard-registered vessels.
Stevens v. Broad. Bd. of Governors (N.D. Ill.) -- denying plaintiff an award of attorney’s fees because: (1) the court’s supervision of agencies’ search, review, and production of responsive documents occurred while plaintiff was pro se; and (2) documents produced after plaintiff’s attorney filed an appearance were not produced pursuant to court order, all but two of 12 agencies produced all of their records before the attorney’s appearance, and plaintiff’s appearance did not prompt production of records from those two agencies.
Jordan v. DEA (D.D.C.) -- concluding that agency properly relied on Exemption 7(C) to withhold the names of agency agents involved in plaintiff’s criminal investigation.
Mar. 7, 2024
WP Co. v. CIA (D.D.C.) -- finding that: (1) CIA failed to adequately explain how it searched for 56 “CIA Histories,” and it failed to perform a promised supplemental search; (2) CIA properly withheld certain records pursuant to Exemption 1, but did not establish “how the apparently innocuous information that [plaintiff] has identified could cause the harms that the CIA asserts; (3) CIA failed to show how release of information withheld under Exemption 3 in conjunction with the National Security Act could harm national security; (4) CIA properly withheld information pursuant to Exemption 3 in conjunction with the CIA Act, as well as identifying information of third parties pursuant to Exemption 6.
Mar. 6, 2024
United for FBI Integrity v. DOJ (D.D.C.) -- ruling that: (1) DOJ improperly issued Exemption 6 and 7(C) Glomar responses as to the existence of records that concern former FBI employee’s role in the loss of plaintiff’s security clearance and any records about allegations that the SAC violated plaintiff’s constitutional rights; and (2) DOJ properly issued Exemption 6 and 7(C) Glomar responses as to the existence of various records concerning sexual misconduct allegedly committed by the same former FBI employee.
Scarlett v. OIG (D.D.C.) -- on renewed summary judgment, deciding that National Science Foundation’s Office of Inspector General reasonably described its search for records pertaining to plaintiff or her company.
Mar, 1, 2024
Leopold v. DOJ (D.C. Cir.) -- reversing and remanding district court’s decision because neither the agency nor the lower court fully addressed whether the disclosure of information withheld from an independent monitor’s report under Exemption 8 met the statute’s foreseeable harm test.
Tobias v. U.S. Dep't of the Interior (D.D.C.) -- ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold internal agency communications concerning how to respond to arguments in a permit applicant’s white paper, and that the agency adequately demonstrated foreseeable harm.
Feb. 29, 2024
US Right to Know v. Nat'l Nuclear Sec. Admin. (D.N.M.) -- determining that agency performed reasonable search for records pertaining to the origin of COVID-19 and/or SARS-CoV-2.
Feb. 27, 2024
Nat’l Assoc. of Minority Veterans v. Dep’t of Veterans Affairs (D.D.C.) -- following in camera review, ruling that: (1) agency did not forfeit right to invoke exemptions on renewed summary judgment, because the only issue argued on initial briefing was adequacy of the agency’s search (which located no records); (2) “most—but not all—of the information redacted by the VA could create “a reasonably expected risk” of circumvention of the law if released,” thus warranting agency’s Exemption 7(E) claims; (3) agency’s survey questions and responses fell within the deliberative process privilege, but agency’s general contentions that disclosure would ”stifle” communications and cause “public confusion” failed to meet the foreseeable harm test.
Feb. 21, 2024
AMA Sys. v. FDA (D. Md.) -- concluding that: (1) with exception of one email authored by FDA, agency properly invoked Exemption 4 to withhold its file concerning company’s unsuccessful application to produce single-use surgical masks as personal protective equipment during COVID pandemic; (2) agency was not required to meet foreseeable harm test because all information protected under Exemption 4 was barred from disclosure under the Trade Secrets Act.
Feb. 20, 2024
Louise Trauma Ctr. v. DHS (D.D.C.) -- dismissing remaining portion of plaintiff’s case after holding that plaintiff’s request for “all records concerning” a DHS research unit was “too amorphous to constitute a valid FOIA request.”
McWatters v. ATF (D.D.C.) -- on renewed summary judgment, finding that ATF properly relied on Exemption 7(C) to withhold portion of a tape recording made by one of the 100 victims of a Rhode Island nightclub fire in 2003; crediting ATF declaration that faint human voices could be heard on the recording and that surviving family of the deceased had privacy interests even if voices could not be attributed to specific victims; further, rejecting plaintiff’s asserted public interest as nothing more “than having the information for its own sake,” similar to case involving the recording of the last minutes of NASA’s Challenger shuttle.
Feb. 16, 2024
Insider, Inc. v.. GSA (D.C. Cir.) -- affirming district court’s decision that GSA properly invoked Exemption 6 to withhold the names of several low-level members of President Trump’s and Vice President Pence’s outgoing transition teams; reasoning that such individuals were not government employees, disclosure would not shed light on GSA activities, and the mere possibility that such individuals might be aware of government conduct was too speculative to qualify as a public interest.
US Inventor, Inc. v. USPTO (D.D.C.) -- ruling that Patent & Trade office performed reasonable searches for various records concerning a vacant Director’s position.
Geddis v. DHS (D.D.C.) -- determining that plaintiff failed to rebut evidence that agency never received his request, which was indisputably sent but misaddressed.
Protect the Public’s Trust v. IRS (D.D.C.) -- holding that: (1) plaintiff was eligible for attorney’s fees because IRS thrice refused to search for requested records and it changed its position only after plaintiff filed suit and the court ordered the filing of a dispositive motion; rejecting agency’s argument that a plaintiff cannot substantially prevail without obtaining responsive records, and (2) plaintiff was entitled to fees and its requested fee amount was reasonable, especially given the “interesting legal questions” raised by the request for fees.
Feb. 14, 2024
Sherven v. Nat’l Reconnaissance Office (D.D.C.) -- granting government’s summary judgment motion after finding that NRO performed reasonable search for records pertaining to plaintiff, including records of any use of spy satellites against him.
Feb. 13, 2024
Am. for Prosperity Found. v. CMS (D.D.C.) -- deciding that: (1) all of D.C. Circuit’s requirements for relying on an ex parte declaration had been met; and (2) agency sufficiently demonstrated that three-decades old information protected by the attorney-client privileged met the foreseeable harm test.
Anthony v. Fed. Bureau of Prisons (D.D.C.) -- concluding that: (1) BOP properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny the existence of records concerning correctional officer’s misconduct; and (2) BOP properly redacted the names of employees from plaintiff’s administrative complaints pursuant to Exemption 6.
Black Hills Clean Water All. v. United States Forest Serv. (D.S.D.) -- in consolidated cases involving motions for attorney’s fees, ruling that: (1) plaintiff was both eligible and entitled to attorney’s fees in first case, which the agency did not contest; and (2) plaintiff’s lawsuit was unnecessary to obtain requested records in second case, and thus plaintiff was ineligible for attorney’s fees.
Feb. 12, 2024
Inst. for Energy Research v. FERC (D.D.C.) -- holding that: (1) FERC conducted an adequate search for calendars of two Commissioners; (2) with respect to FERC’s deliberative process privilege claims, the agency “failed to provide any details or explanation as to why each (or any) of the policy proposals, internal meetings, and external meetings redacted from the calendar concern predecisional material or what sort of “definable decision-making process” the agency aims to protect”; and (3) FERC properly withheld some records pursuant to Exemption 6, but it did not justify withholding the names of “lower-level staff” on a categorical basis.
Feb. 7, 2024
Bahrampour v. Nat'l Sec. Agency (D. Md.) -- ruling that: (1) NSA properly relied on Exemptions 1 and 3 in refusing to confirm or deny whether it maintained intelligence records about plaintiff; and (2) plaintiff failed to reasonably describe his request for 50 year’s worth of five categories of records unrelated to agency’s work, such as electromagnetic radiation and microwave pulses.
Feb. 5, 2024
Frost Brown Todd LLC v. Ctr. for Medicare & Medicaid Serv. (D.D.C.) -- deciding that: (1) of six requests, only the portion of one request reasonably described the records sought, resulting in dismissal of all claims based on the deficient requests; rejecting plaintiff’s arguments that two agency regulations precluded dismissal; and (2) plaintiff’s allegation that CMS had a pattern or practice of unreasonably delaying the release of non-exempt documents was sufficient to survive a motion to dismiss.
Jan. 29, 2024
Wilson v. FBI (2nd Cir.) -- affirming district court’s decision denying plaintiff attorney’s fees after finding no “abuse of discretion” in lower court’s analysis of relevant “entitlement” factors; noting that although plaintiff was “eligible” for fees because district court had ordered FBI to conduct an additional search for records concerning plaintiff, FBI’s original decision not to search a particular database was reasonable given that no responsive records were located.
Schubert v. FBI (D.D.C.) -- (1) denying plaintiff’s motion to amend his complaint, because plaintiff impermissibly sought to expand the time scope of his request from nine months to 10 years; (2) FBI properly relied on Exemption 7(C) in refusing to confirm or deny records showing who accessed plaintiff’s criminal history; (3) FBI’s search for first-party records was not required by the request, but nevertheless finding that FBI’s voluntary search was adequate; and (4) Federal Bureau of Prisons performed adequate search despite also finding no records.
N.Y. Times v. FBI (S.D.N.Y.) -- following in camera review of report about “Havana Syndrome,” deciding that: (1) FBI properly redacted information concerning third parties pursuant to Exemption 7(C); and (2) FBI properly relied on Exemption 7(E) to redact certain portions of report, but it could not withhold the report in full using that exemption because one law enforcement technique was known to the public and the report’s introduction and conclusion did not reveal any techniques, procedures, or guidelines at all.
Jan. 25, 2024
Hensley v. DOJ (E.D. Ark.) -- concluding that FBI performed reasonable search for an alleged recording or transcript of agency’s interview of plaintiff prior to his indictment.
Jan. 22, 2024
Phillips v. U.S. Bureau of the Census (S.D.N.Y.) -- denying plaintiff’s request for attorneys’ fees and costs after finding that: (1) plaintiff was eligible for fees and costs because he obtained partial relief from a judicial order, specifically an agency file comparable to the file he requested by a date certain; and (2) plaintiff was not entitled to fees and costs because the agency was preparing to release records well in advance of plaintiff’s request and lawsuit, and because it reasonably denied plaintiff’s request.
Jan. 19, 2024
Bonner v. FBI (S.D.N.Y.) -- (1) denying plaintiff’s motion for reconsideration of court’s decision upholding FBI’s Exemption 3 claims regarding records related to Abu Zubaydah’s detention; (2) CIA properly invoked Exemption 3 in conjunction with the National Security Act to protect information, in whole or in part, within 711 redactions made by the FBI pursuant to Exemptions 6 and 7(C); and (3) FBI properly relied on Exemptions 6, 7(C), and 7(E) to withhold certain information not claimed by the CIA to fall under Exemption 3.
Hernandez, Jr. v. DOJ (D.D.C.) -- granting summary judgment to government after finding that Executive Office for United States Attorneys performed adequate search, plaintiff received all materials responsive to his request (notwithstanding initial miscounting of pages), and plaintiff did not challenge EOUSA’s redactions.
Jan. 18, 2024
Buzzfeed v. DOJ (D.D.C.) -- granting government’s partial motion for reconsideration after concluding that plaintiff had failed to brief—and thus waived its right to dispute—the issue of whether Exemption 4 protects the identities of contractors that supply lethal injection drugs to the government; noting that plaintiff’s reply brief expressly stated that the only Exemption 4 issue concerned the withholding of other information; further rejecting plaintiff’s argument that a change in controlling law allowed plaintiff to revive the issue.
Gun Owners of America v. FBI (D.D.C.) -- finding that agency properly relied on Exemption 7(E) to withhold aerial-surveillance video of civil unrest in Kenosha, Wisconsin in August 2020, and that no foreseeable harm analysis was necessary because agency had met Exemption 7(E)’s circumvention of law requirement.
Jan. 16, 2024
Bloomberg v. FTC (D.D.C.) -- ruling that: (1) FTC properly withheld all but three portions of its preconsummation warning letters pursuant to Exemption 3, in conjunction with 15 U.S.C. § 18a(h), specifically the identities of business filers that were already in the public domain, the dates of the warning letter; and boilerplate language; and (2) agency failed to show that Exemption 7(A) protected any of the three portions of the letters set forth above.
Jan. 12, 2024
Children’s Health Def. v. FDA (D.D.C.) -- granting six-month Open America stay (with possibility of extension ) in case concerning records of safety monitoring of COVID-19 vaccines, because agency faced “exceptional circumstances” from an “extraordinary production obligation” imposed by a Texas federal court—specifically 75,000 pages per month in January 2024 and 180,000 pages per month thereafter in response to a FOIA request related to Moderna’s adult COVID-19 vaccine.
Jan. 9, 2024
Cato v. FBI (D.D.C.) -- concluding that plaintiff was entitiled to relief from court’s judgment because of “newly discovered evidence” concerning the adequacy of FBI’s search, namely an FBI declaration filed in a 2018 case that contradicted the FBI’s position in the instant case regarding the agency’s Central Records System; reasoning, in part, that the public availability of FBI’s 2018 declaration on PACER was not fatal to plaintiff’s motion, because the declaration was not discoverable by a reasonably diligent search.
Jan. 8, 2024
Kayll v. DHS (D.D.C.) -- ruling that U.S. Customs & Border Protection did not possess or control records in a State Department database relating to visa applications, even though CBP inputted information into that database about plaintiff; in reaching its decision, the court noted its concern that a contrary ruling would allow requester to circumvent the confidentiality provisions of 8 U.S.C. § 1202(f).
Jan. 5, 2024
Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex.) -- determining that plaintiff’s request for 7.8 million free-text responses to agency’s COVID-19 vaccine safety monitoring system would not be unreasonably burdensome for agency to process, because: (1) the volume of the responsive texts would yield between as little as 83 thousand pages and at most 650 thousand pages; (2) CDC conceded that 93 percent of the responses would require no redaction at all; and (3) any necessary redactions of personal identifying information pursuant to Exemption 6 would be “simple” and “capable of automated assistance.”
Project for Privacy & Surveillance Accountability. v. NSA (D.D.C.) -- deciding that: (1) agencies were permitted to issue Glomar responses before conducting searches for requested records of the intelligence community’s acquisition and use of commercially available information pertaining to named Congressmen and former Congressmen; (2) agencies properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of “operational documents,” but were required to conduct a search for “policy documents.”
Jan. 2, 2024
Checksfield v. IRS (N.D.N.Y.) -- concluding that agency properly invoked Exemption 3, in conjunction with 26 U.S.C. § 6103, in response to plaintiff’s request for personal and business tax returns of third party.
Curry v. FBI (D.D.C.) -- ruling that FBI’s supplemental briefing adequately justified the agency’s withholdings pursuant to Exemptions 3 (Bank Secrecy Act), 7(A), and 7(E), which pro se plaintiff did not oppose.