Court opinion issued Dec. 17, 2019

Eakin v. DOD (W.D. Tex.) -- finding that: (1) Department of Defense properly declined to produce as “non-responsive” copies of FOIA requests embedded within thousands of Individual Deceased Personnel files of World War II soldiers; (2) agency properly relied on Exemption 6 to withhold information about individuals who are alive; (3) court lacked jurisdiction to order disclosure of digital records that did not exist at time plaintiff submitted his request.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Dec. 16, 2019

Pendell v. U.S. Secret Serv. (N.D.N.Y.) -- finding that agency performed adequate search for records concerning plaintiff’s criminal conviction and that it properly redacted records pursuant to Exemption 6, 7(C), and 7(E).

Inter-Coop. Exch. v. U.S. Dep't of Commerce (D. Alaska) -- ruling that: (1) government performed reasonable search for records concerning proposed crab price arbitration system standards, which included search of official’s social media and personal cell phone for texts and voicemail; (2) government properly redacted information from emails pursuant to the attorney-client privilege.

Smith v. U.S. Immigration & Customs Enf't. (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).

Blixseth v. U.S. Coast Guard (D.D.C.) -- concluding that the Coast Guard’s search for records concerning the interception of his yacht in 2010 was “impressive in its comprehensiveness” and that the agency “should be commended for . . . diligent efforts.”

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Dec. 10, 2019

Ctr. for Investigating Reporting v. DOL (N.D. Cal.) -- finding that Department of Labor improperly relied on Exemption 4 to withhold federal contractors' employment diversity reports (known as EEO-1 reports) because: (1) records did not meet threshold of “commercial or financial” information; (2) agency did not carry burden to show that all withheld records were confidential, as certain information was in public domain; and (3) agency did not demonstrate that statute’s foreseeable harm standard was satisfied.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Dec. 9, 2019

Williams v. DOJ (D. Utah) -- concluding that: (1) Office of Professional Responsibility properly withheld in full certain documents concerning plaintiff’s whistleblower retaliation claim pursuant to deliberative process privilege, but other documents included segregable non-exempt information; (2) OPR properly relied on Exemption 6 to withhold the names of “unnoteworthy individual witnesses, low-level governmental employees, and other obscure individuals,” but improperly withheld in full all “outlines, notes, and transcripts related to those individuals”; (3) FBI properly relied on Exemptions 6 and 7(C) to withhold records about third parties who were subjects of criminal investigation and ultimately not prosecuted; (4) dismissing as moot plaintiff’s request for Criminal Division’s records about Thomas Pickard because plaintiff did not dispute adequacy of agency’s search, which yielded no records.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Dec. 6, 2019

Khine v, DHS (D.C. Cir.) -- affirming district court’s decision to dismiss suit because plaintiff failed to file an administrative appeal with DHS before filing its lawsuit.

Climate Investigation Ctr. v. U.S. Dep’t of Energy (D.D.C.) -- finding that: (1) agency’s search for records concerning a clean-coal technology power plant should have included the Office of the Secretary; and (2) agency properly relied on deliberative process privilege to withhold seven documents, but it neglected to perform segregability review.

DocuFreedom Inc. v. DOJ (D. Kan.) -- determining after in camera review that: (1) DOJ properly relied on attorney work-product privilege to withhold agency briefing papers, practice guides, training manuals, and commentaries on a variety of litigation issues'; and (2) DOJ properly withheld names and telephone numbers of Civil Division employees pursuant to Exemption 6.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Dec. 4, 2019

Buzzfeed, Inc. v. DOJ (D.D.C.) -- concluding that: (1) draft financial disclosure forms of former Acting Attorney General Matthew Whitaker were not protected by the deliberative process privilege, and (2) Exemption 6 protected certain financial information that Mr. Whitaker disclosed but which was not required to be reported.

Summaries of all published opinions issued since April 2015 are available here.

First court opinion on Exemption 4 post-Argus Leader

On November 24, 2019, Judge William Alsup of the U.S. District Court for the Northern District of California issued the first post-Argus Leader decision on the use of Exemption 4. In American Small Business League v. Department of Defense, No. 18-01979, 2019 WL 6255353 (N.D. Cal. Nov. 24, 2019), the court found that Lockheed Martin had “customarily” and “actually” kept secret “in the ordinary course of business” various records concerning “comprehensive subcontracting plans, program reports, and related correspondence.” The court, however, allowed certain information “generated by the government” to be disclosed.

The court further found that DOD and DOJ had “sufficiently shown that the government made an implied assurance” of privacy upon submission of the information at issue, but it did not decide whether the “‘assurance of privacy’ requirement applies” necessarily—a question left unanswered by the Supreme Court.

Finally, the court rejected arguments that the 2016 FOIA Improvement Act’s “foreseeable harm” standard could be used to reintroduce a sort of “competitive harm” standard into the Exemption 4 analysis. “[T]he plain and ordinary meaning of Exemption 4 indicates that the relevant protected interest is that of the information’s confidentiality—that is, its private nature. Disclosure would necessarily destroy the private nature of the information, no matter the circumstance.”

Interestingly, in dicta, Judge Alsup expressed “sympathy” for the requesting community’s “steep uphill battle under the new Exemption 4 standard.” “Under Food Marketing, it appears that defendants need merely invoke the magic words—”customarily and actually kept confidential”—to prevail. And, unless plaintiff can show that the information is in fact publicly available or possibly point to other competitors who release the information, defendants can readily ward off disclosure. . . . [T]he result seems ‘at odds with’ FOIA’s purpose[.]” Judge Alsup, citing his “twenty-five years of practice and twenty years as a judge,” noted “how prolifically companies claim confidentiality'“; “[n]evertheless, [he was] not writing on a clean slate. Food Marketing mandates this result.”

Court opinions issued Dec. 3, 2019

Elec. Privacy Info. Ctr. 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 the Department of Defense.

Ctr. for Investigative Reporting v. U.S. Immigration & Customs Enf't (D.D.C.) -- ruling that ICE properly relied on Exemption 7(C) to withhold names of detainees from ICE arrest records on categorical basis.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Dec. 2, 2019

Satterlee v. Comm'r (W.D. Mo.) -- granting Treasury Department’s motion for reconsideration and dismissing lawsuit because plaintiff failed to present any evidence contradicting Treasury’s declaration that it never received plaintiff’s FOIA request.

Nat'l Res. Def. Council v. EPA (S.D.N.Y.) -- denying EPA’s motion for reconsideration of court’s decision of August 30, 2019, because EPA sought to relitigate issues already carefully considered and decided.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Nov. 27, 2019

Smith v. Nat’l Archives & Records Admin. (D.D.C.) -- determining that: (1) Presidential Records Act precluded judicial review of NARA’s Glomar response to plaintiff’s FOIA request for letters from President George W. Bush to Israel regarding the Nuclear Non-Proliferation Treaty; and (2) NARA’s properly relied on Exemption 1 in refusing to confirm or deny existence of letters sent by President Clinton to Israel regarding the Nuclear Non-Proliferation Treaty.

Democracy Forward Found. v. Ctr. for Medicaid Serv. (D.D.C.) -- rejecting agency’s deliberative process privilege claims to withhold three categories of records about agency’s Affordable Care Act outreach efforts, because agency failed to demonstrate that it released all segregable information or that certain communications fell within consultant corollary principle.

Mattachine Soc.of Wash. D.C. v. DOJ (D.D.C.) -- awarding plaintiff $178,448 in attorney’s fees and costs in connection with its litigation against FBI for records concerning Executive Order 10450, noting that FBI’s search was “highly unreasonable and extremely suspicious.”

Summaries of all published opinions issued since April 2015 are available here.