FOIA Advisor

Court Opinions (2024)

Court opinions issued Nov. 20, 2024

Court Opinions (2024)Ryan MulveyComment

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.

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

Court opinion issued Nov. 19, 2024

Court Opinions (2024)Ryan MulveyComment

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.

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

Court opinion issued Nov. 12, 2024

Court Opinions (2024)Ryan MulveyComment

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.

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

Court opinions issued Nov. 1-5, 2024

Court Opinions (2024)Ryan MulveyComment

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.

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

Court opinions issued Oct. 29-31, 2024

Court Opinions (2024)Ryan MulveyComment

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.

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

Court opinions issued Oct. 25, 2024

Court Opinions (2024)Ryan MulveyComment

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.”

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

Court opinion issued Oct. 21, 2024

Court Opinions (2024)Allan BlutsteinComment

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.

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

Court opinion issued Oct. 17, 2024

Court Opinions (2024)Allan BlutsteinComment

Energy Policy Advocates v. SEC (D.D.C.) -- ruling that: (1) agency performed an adequate search for SEC communications with two organizations regarding the agency’s proposed climate rulemaking, an issue that plaintiff did not dispute; (2) agency properly relied on Exemption 4 to withhold organizations’ billing rates, labor categories, project structure information, strategic development goals, and plans concerning product costs; SEC concretely explained how disclosure would provide an advantage to organizations’ competitors, which satisfied foreseeable harm requirement; and (3) SEC properly withheld certain information under Exemption 5’s deliberative process privilege, and it provided “focused and concrete” explanations how disclosure would chill future agency deliberations and cause “harmful confusion” to the public.

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

Court opinion issued Oct. 15, 2024

Court Opinions (2024)Allan BlutsteinComment

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.

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

Court opinion issued Oct. 7, 2024

Court Opinions (2024)Allan BlutsteinComment

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.

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