Court opinion issued July 24, 2020

Am. Ctr. for Law & Justice v. NSA (D.D.C.) -- ruling that: (1) National Security Agency properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of records pertaining to unmasking of Trump campaign official by five Obama Administration officials; (2) State Department’s similar Glomar response was invalid as to unmasking requests from Susan Power regarding Michael Flynn because Office of the Director of National Intelligence officially acknowledged their existence; (3) NSA’s search for certain communications referring to Donald Trump or campaign officials was partially inadequate because search terms used regarding Cheryl Mills were too limited; (4) State Department properly relied on deliberative process privilege to withhold various communications sent or received by Susan Power.

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

Court opinions issued July 22, 2020

Am. Oversight v. U.S. Dep’t of the Treasury (D.D.C.) -- holding that Treasury properly relied on Exemption 5’s deliberative process privilege to withhold communications between Treasury officials and Congress pertaining to potential tax code legislation. Of note, the court found that Treasury had solicited advice from Congress and, therefore, the disputed communications qualified as “inter-agency” or “intra-agency” under consultant corollary doctrine.

Democracy Forward Found. v. U.S. Dep’t of Commerce (D.D.C.) -- ruling that agency was required to search Commerce Secretary’s personal email account for government-related communications because record showed that he used personal email account for official business.

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

Court opinion issued July 20, 2020

Manatt v. DHS (E.D. Pa.) -- finding that: (1) USCIS failed to show that it performed adequate search for records relating to government’s so-called ‘Zero-Tolerance Policy for Criminal Illegal Entry”; (2) plaintiffs did not muster enough evidence to show that USCIS has pattern or practice of violating FOIA, but stating that court “suspects that USCIS does, in fact” have one; (3) agency properly relied on Exemption 5’s deliberative process privilege to withhold deliberations about communications with press, public, and Congress, but that other withholdings were unclear; and (4) ordering senior DHS official to appear before court to explain why agency ignored court’s order to process records by certain date.

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

Court opinions issued July 15, 2020

Philips v. Dep’t of the Navy (D.D.C.) -- concluding that agency performed reasonable search for records pertaining to plaintiff’s murder trial and that it properly withheld records about third parties pursuant to Exemptions 6 and 7(C).

Greenlaw v. Scalia (N.D. Cal.) -- finding that Department of Labor’s properly relied on Exemptions 6 and 7(C) to withhold certain third-party information from documents she maintained on her work computer.

Moujtahid v. USCIS (W.D. Wash.) -- holding that agency properly relied on Exemption 6 to withhold records from A-files of third parties, as well as Exemption 7(C) to withhold names of individuals under investigation, notwithstanding asserted public interest that disclosure would assist in discovering potential plaintiffs in civil RICO action.

Madel v. DOJ (D. Minn.) — ruling that Drug Enforcement Administration’s declaration was “devoid of specificity” and “patently insufficient” to justify agency’s reliance on Exemption 4 to withhold records provided by Cardinal Health about distribution of oxycodone.

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

Court opinion issued July 14, 2020

Price v. DOJ (D.D.C.) - - finding that: (1) Office of Justice Programs conducted adequate searches in response to only three of ten requests related to child pornography investigations and prosecutions; Criminal Division performed reasonable searches for organizational chart and operating manual; (2) ordering agencies to submit ex parte declarations explaining whether they relied on any exclusions, as referenced in their response letters, and to justify their use if so; (3) OJP failed to provide sufficient information for court to evaluate its withholdings under Exemptions 6, 7(E), and 7(F); (4) Criminal Division properly withheld records pursuant to Exemption 6, 7(C), and 7(E), but did not demonstrate that Exemption 2 was properly used.

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

Court opinions issued July 13, 2020

Talley v. DOL (W.D. Mo.) -- concluding that: (1) plaintiff’s claims were barred by res judicata because D.C. Circuit previously held that disputed records were properly withheld and plaintiff was serving as proxy for, and was in privity with, plaintiff in D.C. Circuit case; and (2) even if res judicata did not bar plaintiff’s claims, agency properly withheld records as privileged under Exemption 4.

Campo v. DOJ (W.D. Mo.) -- ruling that: (1) DOJ properly declined to search for third-party records in absence of subject’s written consent or proof of his death because records were protected by Exemptions 6 and 7(C), and plaintiff failed to demonstrate that public interest in disclosure outweighed subject’s privacy interests; (2) even if Exemptions 6 and 7(C) did not apply, requested records were protected as privileged under Exemption 4.

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

Court opinions issued July 9, 2020

Hohner v. DOJ (9th Cir.) (unpublished) -- affirming district court’s decision that Immigration & Customs Enforcement properly withheld records that were subject to a 1998 sealing order issued by federal court.that later clarified that sealing order was intended to prohibit disclosure.

The New York Times v. CIA (2nd Cir.) -- affirming district court’s decision that that CIA properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of records of covert program of arming and training rebel forces in Syria, and that statements by President Trump and a U.S. Special Operations Commander did not undermine agency’s Glomar response.

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

Court opinions issued July 7, 2020

Buffalo Field Campaign v. U.S Dep’t of the Interior (D. Mont.) -- concluding that National Park Service improperly relied on Exemption 5’s deliberative process privilege to redact records pertaining to bison population in Yellowstone Park, except with respect to one draft document that met foreseeable harm requirement.

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

Court opinions issued July 6, 2020

Snarr v. BOP (D.D.C.) -- ruling that: (1) plaintiff, a death row inmate, did not have standing to bring lawsuit for third party records because his legal defense team submitted the requests and failed to identify their client in the request or in any other correspondence with the agency; (2) plaintiff could not amend his complaint to substitute a new party in order to create jurisdiction.

Am. Immigration Council v. DHS (D.D.C.) -- explaining four factors that led court to grant plaintiff’s request for preliminary injunctive release, resulting in timetable for government to process records pertaining to its response to COVID-19 pandemic.

Malone v. U.S. Dep’t of the Treasury (W.D. Ky.) -- dismissing plaintiff’s claims against the IRS because he failed to administratively appeal from any of 15 requests he submitted to IRS.

Ctr. for Investigative Reporting v. DOL (N.D. Cal.) -- concluding that Occupational Safety and Health Administration improperly relied on Exemption 4 to withhold illness and injury data about Amazon, noting that the company actually and customarily treated information as non-confidential and that government did not assure confidentiality at time information was submitted.

Am. Civil Liberties Union of Me. Found v. DHS (D. Me.) -- concluding that U.S. Customs and Border Protection properly invoked Exemption 7(E) to redact most—but not all—records regarding the location, method of operation, and purpose of immigration checkpoints. 

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

Court opinions issued July 2, 2020

Am. Ctr. for Law & Justice v. FBI (D.D.C.) -- concluding that plaintiff failed to show that the FBI had a policy or practice of not complying with plaintiff’s requests until plaintiff filed suit, because the three requests cited by plaintiff were “of strikingly different subject matter and scope” and FBI’s actions across the three requests were not uniform.

Powell v. IRS (D.D.C.) -- ruling that: (1) collateral estoppel or issue preclusion barred plaintiff from litigating certain records and that plaintiff failed to exhaust his administrative remedies with respect to several requests; and (2) IRS performed reasonable search for all but one remaining disputed record.

Shapiro v. DOJ (D.D.C.) -- in 107-page opinion addressing 83 requests submitted to FBI and ATF between 2005 and 2012, determining that: (1) plaintiff failed to demonstrate need for discovery; (2) FBI and ATF performed adequate search for records pertaining to animal rights activism; (3) based on sampling of disputed records, FBI properly withheld records pursuant to Exemptions 1, 3, 5, 7(A), 7(C), 7(D), and 7(E), but improperly relied on Exemption 4 in withholding two pages from a copyrighted book; (4) FBI’s processing error rate of 16 percent was not high enough to justify warrant complete reprocessing of withheld records; (5) ATF failed to demonstrate that it properly relied on Exemption 3 to withhold records submitted to a grand jury or that it properly withheld records pertaining to Macy’s department store pursuant to Exemption 4, but properly withheld records pursuant to Exemptions 5, 7(D), and 7(E).

Swick v. U.S. Dep’t of the Army (D.D.C.) -- deciding that Army did not perform adequate search for plaintiff’s psychological evaluation records or for electronic records associated with plaintiff’s employment file.

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