Court opinion issued Sept. 13, 2024

Biddle v. DOD (D.D.C.) -- finding that “the overly brief, generalized, and technical (in part) affidavit supplied by the Department” did not enable the Court to rule on the applicability of the Department’s invocation of Exemption 3 in conjunction with 10 U.S.C. § 130e, which protects “critical infrastructure security information”; cautioning the government that it must include all exemptions it seeks to invoke in its renewed summary judgment motion and not “reserve” any of them, as it did here.

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

Court opinions issued Sept. 10, 2024

Corbett v. Transp. Sec. Admin. (9th Cir.) -- vacating district court’s decision and holding that a requester is not required to file an administrative appeal when an agency issues a response after requester has properly filed a lawsuit, following the reasoning of the Fourth Circuit’s 1995 decision in Pollack v. DOJ.

McCarthy v. DOJ (S.D.N.Y.) -- transferring case to the Eastern District of New York because pro se plaintiff’s residence and the requested records are both in that district, thus making the Southern District of New York an improper venue for her FOIA claim under 5 U.S.C. § 552(a)(4)(B).

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

FOIA News: This and that

• On September 13, 2023, the federal FOIA Advisory Commitee for the 2024-2026 term held its second meeting of the week. See meeting materials here.

• On September 23, 2024, “Management Concepts” will begin a three-day FOIA and Privacy Act course.

• Have complaints about television’s football coverage? Join the club. The Government Attic has posted complaints filed with the FCC here.

• The FBI has recently posted records concerning Larry Flynt, George (Gordon) Liddy, and the Knight of Malta in The Vault.

FOIA News: OIP updates list of Exemption 3 statutes

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.

FOIA News: FOIA suit for Prince Harry’s visa records is over; orders sealed

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.

FOIA News: Recap of OIP's July workshop

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.

FOIA News: Defense agency finalizes FOIA revisions

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.

FOIA News: Federal FOIA Advisory Committee meets today at 10:00AM

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.

FOIA News: Recap of D.C. Cir. argument on voter access plans

Judges grill Trump allies on bid for voting plans from EPA, other agencies

The Biden administration and a lower court have said the deliberative plans are exempt from disclosure under the Freedom of Information Act.

By Pamela King, E&E News, Sept. 5, 2024

A conservative legal group wants to know what agencies like EPA and the Interior Department said to President Joe Biden after he asked for help in identifying ways the government can promote voting access.

A panel of federal judges appeared skeptical of an attempt by a conservative legal group to get access to strategic plans developed by EPA, the Interior Department and a swath of other agencies to help the Biden administration promote voting access.

During oral arguments Thursday, judges of the U.S. Court of Appeals for the District of Columbia Circuit questioned the challengers on why they are entitled to see the plans, which the government says constitute deliberations within or between agencies subject to exemption under the Freedom of Information Act.

The America First Legal Foundation argued that if President Joe Biden had wanted to keep the plans under lock and key, he should not have solicited them through a publicized executive order. But the judges pressed the group on why it could not instead ask the agencies through FOIA about any actions that resulted from their conversations with the White House.

Read more here.

FOIA News: DC Circuit to hear FOIA case

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in America First Legal Foundation v. USDA, No. 23-5173 on Thursday, September 5, 2024, at 9:30am. The issue on appeal is whether multiple agencies properly relied on Exemption 5, including the presidential communications privilege, to withhold strategic plans prepared in response to an Executive Order regarding promoting access to voting. The district court ruled in the government’s favor.

Livestream audio is available here.