Federal courts issue hundreds of decisions in FOIA cases every year. Most do not break new legal ground or attract media attention. Before 2024 gets too far away, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- look back at 2023 and discuss the decisions that stood out to them (in no particular order).

(1) Am. Civil Liberties Union Immigrants’ Rights Project v. ICE (2nd Cir. Jan. 26. 2023) — reversing and remanding district court’s decision that agency was not required to create and substitute unique identifying numbers for FOIA-exempt alien identification numbers. The panel rationalized that alien IDs were merely digital placeholders allowing agency officials to trace immigrants, the value of which outweighed the burden of substituting functionally equivalent, non-exempt placeholders.

AB: Requiring an agency to create identifiers that did not previously exist strikes me as the creation of a “new” record, which is precisely what the estimable Judge Nichols held in Institute for Justice v. IRS (D.D.C. 2021). That simple and logical proposition was too much for this panel to bear, however, because of the societal “value” it perceived in the information at stake (i.e., tracing immigrants). The result: a 40-page remand and a dubious precedent. I’ll save some space for rebuttal.

RM: You may not need the to provide a rebuttal! I appreciate the Circuit’s point that electronic records and, specifically, database-stored records give rise to unique problems. The breaking point here was ensuring the public has the same “person-centric access” that the agency enjoys with use of the A-Numbers. In other words, the Circuit believed the FOIA should require disclosure of records in a way that preserves their functional utility, even if that entails modifying an existing record in some way to protect exempt information. Is the substitution of the A-Number, in light of that principle, an impermissible “creation” of a record? It’s a close call. There should be a limit to the force of any functional-utility principle, but the Circuit acknowledged as much and ICE conceded it wouldn’t be burdensome to swap out the A-Numbers with unique identifiers. The Fifth Circuit addressed a different kind of record-creation question in Rutila v. Dep’t of Transportation, which we also plan to discuss, and there it distinguished ACLU as only involving the “alternation” of a record, rather than “creation” of a new one. It’s a sensible distinction in my opinion, given the facts.

(2) Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of the Army (D.D.C. June 14, 2023) — ruling that communications between South Dakota state officials and the National Guard (a hybrid state-federal entity) did not fall within Exemption 5’s consultant corollary exception because they were not made for purpose of aiding the National Guard’s deliberations; noting that its ruling “produced an odd outcome considering that these discussions would be protected either under Exemption 5 (if wholly federal) and under South Dakota law (if wholly state) . . . and yet the very structure of the National Guard necessitates crossing federal-state lines.”

RM: There has been a lot of discussion about the consultant corollary over the past few years, ever since the Ninth Circuit considered Rojas v. FAA and the Fifth Circuit decided Jobe v. NTSB. This case struck me as factually interesting because the agency—the South Dakota National Guard—has “dual federal-state status.” Notably, the Court rejected the Army’s “joint venture” line of argumentation, which has been accepted by some courts in the DDC, and which depends, in my view, on a misreading and misapplication of the principles in Dep’t of the Interior v. Klamath Water Users Prot. Ass’n. That’s had more of an impact on records reflecting back-and-forth between agencies and Congress, but I’m still glad to see it rejected here.

AB: This result is unfortunate because State governors should be able to receive confidential advice from the armed forces under their command, as the court acknowledged. But the decision was compelled by longstanding precedent. The government’s “joint-venture” argument was denied because of lack of evidence, not on principle, so your good feelings about that aspect of the case might be misplaced.

(3) Citizens for Responsibility & Ethics in Wash. v. DOJ (D.C. Cir. Jan. 31. 2023) — reversing and remanding district court’s decision and concluding, in relevant part, that the agency failed to establish that the names of companies that supply the government with a drug used for lethal injections qualify as “commercial” information under Exemption 4; and Ctr. for Investigative Reporting v. DOL (N.D. Cal. Dec. 22, 2023) — concluding, in relevant part, that DOL improperly withheld EEO-1 reports pursuant to Exemption 4 after deciding—over the objections of six representative federal contractors—that the workforce demographic data contained within those reports did not qualify as “commercial.”

AB: In his last term before retirement, Judge Sentelle showed that he still had the right stuff with his concurring opinion in CREW. Given the circumstances presented, the names of the business contractors seem well within reach of the “commercial” threshold of Exemption 4—which I hope will be borne out on remand. As for the EEO-1 reports in CIR, I was surprised that the court did not alternatively rule on the confidentiality prong and foreseeable harm. I doubt the government would meet the latter test; I am less confident that the reports are non-commercial in nature. Because confidentiality is easier to establish under Exemption 4 after Food Marketing Institute, I suspect we’ll continue to see more of these commercial threshold challenges from plaintiffs .

RM: I agree with your last point, and since you raise the new test for confidentiality, permit me a brief digression. While I could guess why CREW conceded the pentobarbital contractors’ identities were “confidential,” at a more abstract level I’m suspicious that company names should ever qualify as “confidential,” regardless of whether they are “commercial.” To the extent the new “actually and customarily kept private” test leads to a different conclusion . . . well, that just illustrates why it is too malleable and prone to subjective application. As for the “commercial” question, I think this, too, ought to be an objective inquiry. “Commercial information” means “commercial information,” and it can’t simply mean any information held by or concerning a commercial enterprise. I find little persuasive force in Judge Sentelle’s concurrence, and I don’t think his rephrasing of the “relevant question” changes anything. I would wager the agency struggled to defend in its position in the first place precisely because company names are inherently “identifying” and not intrinsically “commercial.” I understand this time around the government is arguing the names are “commercial” because they “uniquely identify” “proprietary” “corporate identities.” We’ll see how things turn out, but color me skeptical the Circuit would think that a winning argument if it came up on appeal again. Turning to CIR, I agree it would have been difficult, on the record, for the agency to prevail on the alternative grounds, or at least on foreseeable harm. The case otherwise strikes me as a commonsense application of the logic of CREW v. DOJ.

AB: And—to steal your line—I agree with your last point. As for CREW, I am sympathetic with the view that the identities of government contractors should generally be known to the public. Not in this case, however. And surely the name of a company itself can have commercial value; it’s called goodwill. I will concede this much, however: just as Congress expressly protected the identities of unsuccessful contract bidders via legislation, it should do so here, too, in order to settle the matter definitively.

(4) Cause of Action Inst. v. Nat’l Oceanic & Atmospheric Admin. (D.D.C. May 24, 2023) — granting requester’s cross-motion for summary judgment; holding that the agency’s search was inadequate because it too narrowly defined what constituted “agency records” of a regional Fishery Management Councils because it only searched for correspondences “submitted to the chair” or “specifically discussed or disseminated at a Council meeting”; noting that guidance purporting to define an “agency record” improperly relied on the Federal Records Act; ordering agency to conduct a search of non-federal employee council members’ and staff’s personal email accounts and devices.

RM: In the interests of full disclosure, this is my case. Quite apart from the FOIA, I think the decision is notable because it deals with regional fishery management councils. Those councils have been in the news a lot with the Supreme Court considering Loper Bright Enterprises v. Raimondo (another case I’m working on) and with the Fifth Circuit likely to hear an Appointments Clause challenge to the whole council system in Arnesen v. Raimondo. But the decision is also an important clarification of two FOIA principles. First, the Federal Records Act (“FRA”) and records-management laws don’t govern disclosure and cannot displace the FOIA. Here, the agency had tried to limit the scope of its “control” over records based on dubious guidance that relied on the FRA’s definition of a “record,” which is narrower than the FOIA’s definition. Second, “control” can extend to records of non-federal employees who are conducting business for the federal government, and an agency can’t end run around the FOIA by denying such non-employees agency-controlled e-mail accounts.

AB: I would tell you to “go fish” if I disagreed about anything, but I do not. Related, and since you co-authored an amicus brief that surveyed state open records laws, you might recall that a number of state legislatures also rely on a narrow definition of public records in considering what legislative records are subject to disclosure. In New Mexico, for example, communications held by individual legislators are not considered public records unless they are used or received by the Senate or House or a committee thereof, because—the argument goes—only those bodies exercise legislative authority, not individual legislators. In sum, good catch here, counselor.

(5) Buzzfeed, Inc. v. DOJ (2nd Cir. June 29, 2023) (summary order) — affirming district court’s decision that DOJ’s Inspector General properly relied on Exemption 7(C) to withhold the identity of a former senior employee from a report concerning that employee’s misconduct; noting that the employee’s rank, seriousness of wrongdoing, and absence of alternative access to the information favored disclosure, but agreeing with district court that disclosure would “do little to advance the public interest identified by [plaintiff]” and that disclosure would impact the privacy of victims, witnesses, and other third parties.

AB: The underlying case was discussed at some length during the American Society of Access Professional’s “Sunshine Week” presentation last year. My feeling then was that it was a close decision, that the district court made no obvious errors, and that—like many NFL replay reviews—the original call (either way) would not be overturned. Interestingly, the Second Circuit took into account that disclosure would create a risk of identifying victims and witnesses, an argument that the requester did not dispute but which the district court had found “speculative.”

RM: Yes, I recall that presentation. And there were similar discussions about the district court’s application of the Perlman factors at the other training events throughout the year. I agree that the balancing was close. Seeing as the Circuit didn’t find the risk to third parties to be “speculative,” it would have been useful to see a bit more explanation for how releasing the name of the retired official could have been used to actually identify victims and witnesses, whose names were otherwise redacted (without objection or challenge from the requester).

(6) Rutila v. DOT (5th Cir. July 10, 2023) — affirming, in relevant part, the district court’s decision that FAA was not required to take screenshots of certain requested information that was displayed to agency system users but could not be exported, because doing so would require the creation of new records; and Stevens v. HHS (N.D. Ill. Oct. 2, 2023) — finding that certain information contained in an agency database was readily reproducible via screenshots and would not impermissibly require the creation of new records.

AB: These cases deal with an issue similar to the one in ACLU v. ICE above, namely whether agency productions would require the creation of new records. To fulfill the request in Rutila, the FAA could not simply query a database; it “would have to open the relevant software, display the requested data, and take a screenshot of the displayed information.” Because the agency did not “actively maintain” the requested information “in any format,” the Circuit held that producing a screenshot would require creating a new record. In Stevens, by contrast, the information sought consisted of database query results. The court concluded that the database results were “readily reproducible” via screenshots and required to be produced pursuant to Section 552(a)(3)(B) of the FOIA. I am not an IT Specialist, but I am satisfied that the different facts of these cases warranted their respective outcomes.

RM: I found the Rutila court’s distinction of ACLU v. ICE to be satisfactory, as I mentioned above. I agree with your evaluation of Stevens, too. As far as I am aware, the outcome is consistent with other cases dealing with undisputed database data that can be reasonably extracted in a disclosable form or format.

(7) Am. Soc’y for the Prevention of Cruelty to Animals v. APHIS (2d Cir. Feb. 16, 2023) — affirming district court dismissal of “policy or practice claim” that alleged APHIS, as a result of its decommissioning certain databases of proactively disclosed records, was regularly citing “exemptions that do not apply” and engaging in “unreasonable, inexcusable and unexplained delays” while adjudicating requests and appeals for the same records previously hosted on the databases; holding that, “even assuming that a ‘policy or practice’ claim is cognizable [in the Second Circuit], . . . such a claim . . . [fails] because [Congress] . . . reversed the alleged policy or practice . . . [by] direct[ing] the agencies to ‘restore’ each decommissioned database ‘and its contents’ to the status quo ante . . . [and to make those records] available ‘in their entirety without redactions except signatures.’”

RM: Let’s start with the per curiam opinion. I’m not too bothered by the Circuit dodging the bullet and declining to definitively accept “policy or practice” claims. The district court decided they were justiciable, older circuit precedent is ambivalent, and other district courts will hopefully do the same in the future. On the merits, Congress had reversed the offending agency action and effectively provided the kind of equitable remedy a court would order by barring the agency from trying to decommission the database again in the future. I’m more worried about Judge Menashi’s concurrence. It’s true the concept of a distinct “policy or practice” claim is a little odd. If you go back and read Payne Enterprises, it was really about mootness, and Judge Edwards used “claim” in an ambiguous way. In truth, it’s quite troublesome for requesters to plead a stand-alone claim about an alleged unlawful “policy or practice” on the front end. And, as it now stands in the D.C. Circuit, a requester can’t even use a traditional “mootness” exception—you basically need to allege the elements of a separate Payne claim in the complaint. See Cause of Action Inst. v. DOJ, 282 F. Supp. 3d 66 (D.D.C. 2017). More broadly, I think Judge Menashi conceives of the court’s remedial authority too narrowly, and in a way that is inconsistent with Supreme Court jurisprudence concerning the broad equitable powers courts enjoy under the FOIA. It is entirely reasonable to characterize an unlawful policy or practice under the FOIA as a constructive withholding. And for that very reason—contrary to the Judge’s suggestion that a policy or practice claim might arise under the APA—courts have tended to reject claims under Section 702, except for narrow instances where the agency is violating its own implementing regulations, rather than the FOIA itself. Probably time for Congress to step in.

AB: I am not troubled by the per curiam opinion, either, for the same reasons you mentioned. I am even less concerned by the concurrence. Forget Congress, which is all-too susceptible to the trial lawyer lobby. Let’s go to the Supreme Court, shall we? Since you were just there, I am sure you would trust its judgment.

RM: Only if it’s my policy-and-practice case, and I get to make the argument, Allan!

HONORABLE MENTIONS (without comment)

Behar v. DHS (2d Cir. July 8 2022), cert denied, No. 22-578 (May 1, 2023) — declining to hear challenge to Second Circuit’s ruling that records obtained by the Secret Service from Donald Trump’s presidential campaign and transition were not “agency records,” or, alternatively, were protected from disclosure under Exemption 7(C).

Waterman v. IRS (D.C. Cir. Feb. 21, 2023) — affirming in part and reversing in part district court’s decision and holding that: (1) IRS properly relied on Exemption 5’s deliberative process privilege to withhold “evaluative” facts in an auditor’s memo concerning plaintiff’s suspected misconduct, but that the memo’s chronological collection of plaintiff’s statements was not exempt; (2) IRS improperly invoked Exemption 5 to withhold an auditor’s memo summarizing her telephone calls with plaintiff that, in the majority’s view, reflected no point of view; and (3) IRS properly invoked Exemption 5 to withhold an analysis of plaintiff’s disciplinary referral, including extracted facts pertinent to plaintiff’s alleged misconduct. In a partial dissent, one panelist opined that both auditor’s memos were deliberative because “(1) their purpose was to assist in a discretionary decision” whether to further investigate [plaintiff]) and (2) their authors selected facts that reflected a point of view (that plaintiff should be investigated).

Project on Gov't Oversight v. DHS (D.D.C. Feb. 20, 2023) — ruling, in relevant part, that DHS improperly relied on Exemption 5’s deliberative process privilege to withhold “unverified observations of first impression” from expert reports.