Key FOIA Resources: 2024 Updates to Exemption 3 Statute Resources
DOJ/OIP, FOIA Post, Sept. 12, 2024
The Office of Information Policy (OIP) has posted updates to its compilation of Exemption 3 resources, intended to assist agencies in their administration of the Freedom of Information Act (FOIA) and to increase public understanding of the use of Exemption 3. These materials are located on the FOIA Resources page of OIP's site.
Read more here.
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.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
Prince Harry Visa Drugs Case Closed After Secret Ruling
By Jack Royston, Newsweek, Sept. 10, 2024
A lawsuit brought over Prince Harry's visa status by conservative think tank The Heritage Foundation has been terminated, Newsweek can reveal.
The Duke of Sussex wrote in his memoir, Spare, how he had taken drugs including cocaine, marijuana and magic mushrooms. Heritage filed a Freedom of Information Act lawsuit against the Department of Homeland Security demanding the publication of Harry's visa documents, arguing that his use of narcotics should have barred him from living and working in America.
However, court records show that the case was terminated on September 9, when several sealed orders were filed in the case, heard in Washington D.C. before Judge Carl J. Nichols.
Read more here.
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.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
OIP Posts FOIA Best Practices Discussed at Recent Workshop
DOJ/OIP, FOIA Post, Sept. 10, 2024
On July 31, 2024, the Office of Information Policy (OIP) hosted a Freedom of Information Act (FOIA) Best Practices Workshop for agency FOIA professionals on creating and implementing backlog reduction plans. A summary of the best practices discussed is now available on OIP’s Best Practices Workshop Series page.
Read more here.
The Defense Nuclear Facilities Safety Board has finalized amendments to certain fee provisions in its FOIA regulations, as set forth in a final rule published in the Federal Register. Among other things, DNFSB replaced the words “employee” and “employees” with the word “personnel” to ensure that it is able to recover the cost of document search and review time spent by contract workers as well as federal employees. The amendments become effective on October 10, 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.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
The meeting materials and livestream link for the Committee’s inaugural meeting of 2024-2026 term are available here. The agenda for the first meeting will follow a standard script: remarks from the Archivist and the director of the Office of Government Information Services; introduction of new appointees; review of Committee rules and procedures; and pointers from several returning members to freshman members.
Federal positions closing in the next ten days
Sup. Gov’t Info. Specialist, Dep’t of the Army, GS 13, Fort Meade, MD, closes 9/9/24.
Gov’t Info. Specialist, Dep’t of the Air Force, GS 11-12, remote job, closes 9/9/24 (non-public).
Gov’t Info. Specialist, Dep’t of Educ., GS 7, Wash., DC, close 9/12/24 (non-public).
Gov’t Info. Specialist, Dep’t of the Army, GS 12, Stuttgart, Germany, closes 9/13/24 (non-public).
Gov’t Info. Specialist, Dep’t of Homeland Sec./OIG, location negotiable, closes 9/19/24 (non-public).
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).
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.