September 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, 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 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 the scope of “techniques and procedures” must be broadly understood; ruling the agency 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), concluding 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.

September 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 withhold 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 the agency’s foreseeable-harm argument 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 types 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.

September 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 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).

September 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 he 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.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.