Federal courts issue hundreds of decisions in FOIA cases every year.  Most do not break new legal ground or attract significant media attention.  As 2019 draws to a close, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- identify the decisions that stood out to them (in mostly chronological order).

(1) Rogers v. EOUSA (D.D.C. Apr. 9, 2019) -- ruling that plaintiff’s civil forfeiture settlement agreement with IRS barred FOIA plaintiff’s request to Executive Office for U.S. Attorneys for records related to his case; declining to extend D.C. Circuit’s 2017 holding regarding the validity of FOIA waivers in criminal plea agreements.

AB comment: Those who remember our commentary on the D.C. Circuit’s 2017 decision will not be surprised to read that I was pleased as punch by this year’s district court ruling. Sanity prevails! Hopefully another Circuit will split from D.C.and set up a SCOTUS case in my lifetime.

RM comment: One of my concerns coming out of DOJ v. Price was that the D.C. Circuit’s standard, and its analysis of relevant public policy concerns, would be used to foreclose FOIA waivers ever being included in a plea agreement. Call it “sanity,” if you like, but Rogers at least indicates that the near-unanimous approach of other jurisdictions in permitting waivers will continue to be followed, at least to some extent, in the D.D.C.

(2) Food Marketing Institute v. Argus Leader Media (S.Ct. June 24, 2019) -- reversing the Eighth Circuit’s decision and holding that commercial and financial information is “confidential” under Exemption 4 when it is customarily and actually treated as private by its owner.

AB comment: Any FOIA-related SCOTUS decision will qualify as a “top” decision, and this one had a monumental impact on the landscape of Exemption 4. Stay tuned as to whether Congress reverses it in 2020.

RM comment: I don’t have much to add, but I agree that this decision had a “monumental impact.” I also think the Court got it wrong! There is indeed active bi-partisan legislation to restore the National Parks competitive harm standard, and even expand it slightly by eliminating the distinction between compelled and voluntary disclosures. (This legislation also would codify the D.C. Circuit’s decision in AILA v. EOIR, 830 F.3d 667 (D.C. Cir. 2016))

(3) Animal Legal Def. Fund v. USDA (9th Cir. Aug. 29, 2019) -- in 2-1 decision, holding that statute authorized courts to order agencies to comply with “reading room” provisions -- in this instance, the online posting of “frequently requested” records generated by the Animal Plant Health Inspection Service.

AB comment: FOIA plaintiffs had been losing these cases forever until this breakthrough.

RM comment: Agreed. The Ninth Circuit has been good to the FOIA requester community lately!

(4) Rojas v. FAA (9th Cir. Oct. 22, 2019) -- reversing district court’s opinion and finding that:“consultant corollary” principle relied upon by FAA was “contrary to Exemption 5’s text and FOIA’s policy of broad disclosure, and its legal foundation . . . is tenuous at best.”

AB comment: This matter seems ripe for SCOTUS review now that the 9th Circuit has officially split with seven other Circuits.

RM comment: The Sixth Circuit has rejected the “consultant corollary,” too, in Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017). The two circuits, however, adopted different views of the implications of DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001), and whether the Supreme Court’s analysis of Exemption 5’s “threshold” requirement actually forecloses use of the doctrine. Personally, I think the meaning of “inter-agency or intra-agency” is ripe for revisiting. In light of Argus Leader and Milner, a strict text-based reading of the FOIA would seem likely to prevail. At the same time, abandoning the broad interpretation fashioned (mostly) by the D.C. Circuit would have tremendous consequences not just for “consultants,” but also for records exchanged with Congress, the President, and non-FOIA-subject agencies. So perhaps a very limited opinion is likely, if the issue were ever taken up by the Court.

(5)(a) Nat. Res. Def. Council v. EPA (S.D.N.Y. July 25, 2019) -- holding that statute’s “foreseeable harm” standard “does impose an independent and meaningful burden on agencies” in case involving the deliberative process privilege; and

(5)(b) Ctr. for Investigating Reporting v. DOL (N.D. Cal. Dec. 10, 2019 ) -- declaring that statute’s foreseeable harm standard applied to all exemptions, including Exemption 4.

AB comment:: A pair of pro-requester decisions breathe life into an ambiguous statutory provision that should have died before birth.

RM comment: You and I do not see eye-to-eye on the “foreseeable harm” standard, Allan! I’m pleased to see courts start to flesh out the meaning of “foreseeable harm” and the increased burden that the FOIA Improvement Act of 2016 imposes on agencies. NRDC v. EPA builds on a string of pro-requester decisions in the S.D.N.Y. and the D.D.C. this year, including Judicial Watch, Inc. v. DOJ (D.D.C. Sept. 24, 2019) and Judicial Watch, Inc. v. DOC (D.D.C. Mar. 22, 2019). The D.C. Circuit is expected to hear oral argument next month in Machado Amadis v. DOJ—so that is something to look forward to on the “foreseeable harm” front.

With respect to the decision coming out of California, in American Small Business League v. DOD, another judge in the same district rejected the idea that “foreseeable harm” disrupted the Exemption 4 standard adopted in Argus Leader. Maybe something will percolate up to the Ninth Circuit. Some agencies have argued that Exemption 4 is exempt from “foreseeable harm” insofar as it prohibits disclosure “by law.” At the least, we need clarity on what “interests” are actually underlying Exemption 4. Post-Argus Leader, is it confidentiality as such?

(6) Smith v. ICE (D. Colo.) -- permanently enjoining ICE from applying its standard operating procedure for denying FOIA requests of fugitive aliens, rejecting agency’s argument that such withholdings are justified by Exemption 7(A).

RM comment: Notably, this wasn’t a “policy or practice” claim, and the court adopted a reading of the FOIA’s relief provision that is squarely at odds with the D.C. Circuit. There have been some interesting developments this year with the more theoretical aspects of the FOIA, including subject-matter jurisdiction (e.g., Cause of Action Inst. v. IRS). This is one such development. If the Tenth Circuit were to adopt the same reading, then we would see a potential SCOTUS opportunity!

AB comment: The procedural issue here is notable, but it’s a shame that the agency (and, in turn, the court) retreated from an interesting issue raised by plaintiff -- that is, whether the fugitive disenfranchisement doctrine, which the D.C. Circuit adopted in 1981, is still viable after the D.C. Circuit’s 2016 decision in AILA v. EOIR (ruling that once responsive records are identified, the agency can withhold them only if an exemption applies).

Honorable mentions:

Story of Stuff Project v. U.S. Forest Serv. (D.D.C.) -- determining that records pertaining to the company’s “boreholes” constituted “wells” for purposes of Exemption 9

AB comment: Exemption 9 decisions are rare enough to warrant a nod.

Nightingale v. USCIS (N.D. Cal.) -- granting class certification to plaintiffs seeking access to immigration files, specifically Alien Registration files, citing government’s “systematic failure of making timely determinations” on their FOIA requests.

RM comment: I’ve never heard of a class action FOIA lawsuit. If this sort of approach is approved by other courts, there could be a huge shift in how “policy or practice” lawsuits are used.

AB comment: The class action approach has been attempted before, but this might be the first successful attempt?

EPIC v. Nat'l Sec. Comm'n (D.D.C.) -- holding that the National Security Commission on Artificial Intelligence is an “agency” subject to FOIA, and denying government’s motion to dismiss plaintiff’s expedition claim against DOD.

RM comment: It isn’t everyday that we add an agency to the list of government entities subject to the FOIA, especially when the “agency” is designed to close within a year’s time. Here, most of the members on the Commission on Artificial Intelligence are appointed by Congress; only three of the fifteen are appointed by the Executive Branch. This decision provides interesting discussion of the scope of Section 552(f)(1), including legislative history and the two types of “tests” that have developed in the D.C. Circuit for handling the “agency” question.

AB comment: These “agency” questions irritate me because Congress easily could have included a provision about the accessibility of the Commission’s records. And what are the chances that Congress funds the Commission to process all of its “agency” records? In the spirt of the holidays, I’ll answer that question in Yiddish: bubkis!