Court opinions issued Mar. 8, 2021

Glennborough Homeowners Ass'n v. USPS (E.D. Mich.) -- dismissing FOIA claim for lack of subject matter jurisdiction because requests were submitted by another party and made no reference to plaintiff.

Mich. Immigrant Rights Ctr. v. DHS (E.D. Mich.) -- finding that plaintiff was eligible and entitled to attorney’s fees and costs in case concerning records of agency searches and seizures in Michigan, but requiring parties to confer on recoverable amount based on court’s conclusion that certainly hourly rates and billing entries were improper.

Shapiro v. SSA (D. Vt.) -- ruling that: (1) plaintiff’s clarified request was unreasonably broad and burdensome because it contained no time limitations or custodian limitations (among other things) and implicated approximately 1.5 million responsive pages, which would take the agency at least 193,211 hours of work to process; (2) agency improperly charged fees for its untimely initial response; and (3) plaintiff’s request for costs was “a close call” and could not be adjudicated until agency justified its withholdings in connection with its initial response.

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

Court opinion issued Mar. 5, 2021

Berryhill v. Bonneville Power Admin. (D. Or.) -- denying plaintiff’s request for attorney’s fees because plaintiff was unable to show that agency’s discretionary disclosure of additional material was triggered by his lawsuit, and because agency properly withheld records pursuant to Exemption 5’s deliberative process privilege.

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

Court opinions issued Mar. 4, 2021

U.S. Fish & Wildlife Serv. v. Sierra Club (U.S.) -- in 7-2 decision, ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold draft biological opinions that were prepared by lower-level staff and never approved by decisionmakers or sent to EPA as it requested per Endangered Species Act.

Rocky Mountain Wild, Inc. v. U.S. Forest Serv. (D. Colo.) -- finding that agency performed reasonable for records pertaining to Village at Wolf Creek project and that it properly withheld records pursuant to Exemptions 4, 5, and 6. Of note, agency telephone conference line numbers and access codes were held to be protected under Exemption 5’s “commercial” privilege.

Farmworker Justice v. USDA (D.D.C.) -- in case involving records of agency’s H-2A visa program, determining that: (1) agency improperly relied on Exemption 4 to withhold company CEO’s views on proposed legislation, because the same information was shared with an organization with membership of 265,000 people; (2) agency’s declaration and brief were too conclusory to justify Exemption 5 claims, and agency failed to articulate a specific foreseeable harm connected to the redacted records.

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

Court opinions issued March 2, 2021

Rojas v. FAA (9th Cir.) (en banc) -- holding that: (1) “consultant corollary” doctrine applied to documents prepared for agency by outside consulting firm and affirming district court’s decision that two of three disputed documents were protected by Exemption 5’s attorney work-product privilege; (2) agreeing with three-judge panel that FAA was not required to search outside consultant’s files and that agency did not adequately justify the adequacy of search of its own files.

Sabra v. U.S Customs & Border Prot. (D.D.C.) -- ruling that plaintiff was not entitled to any declaratory or injunctive relief where agency failed to meet statute’s response deadlines, and deferring decision as to whether agency performed adequate search or properly withheld records.

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

Court opinions issued Feb. 26, 2021

Sierra Club v. U.S. Fish & Wildlife (D.D.C.) -- rejecting agency’s deliberative process privilege claims, ordering release of final agency’s final scientific report pertaining to status of certain deer on endangered-species list, and permitting agency to renew its arguments for withholding draft reports and related commentary.

Citizens for Responsibility & Ethics in Wash. v. GSA (D.D.C.) -- ordering in camera review of certain communications pertaining to renovation of FBI headquarters that GSA had withheld under Exemptions 5 and 7(E), and requiring agency to file supplemental Vaughn Index addressing portion of those records.

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

Court opinion issued Feb. 23, 2021

Cause of Action Inst. v. Export-Import Bank (D.D.C.) — following in camera review, (1) affirming an agency’s use of the deliberative-process privilege to withhold certain internal records, such as property risk-management reports and communications with the Executive Office of the President about political nominees; (2) rejecting the use of the deliberative-process privilege to withhold portions of senior staff reports and materials provided to GAO; (3) rejecting the use of the deliberative-process and attorney-client communication privileges to withhold an internal email concerning the requester’s blog activity; (4) affirming the use of Exemption 6 to withhold White House email addresses; (5) remanding the majority of records to the agency for renewed motion on summary judgment, including portions of an email chain withheld as “non-agency records,” other records provided to GAO, and cybersecurity recommendations; (6) postponing consideration of the agency’s Exemption 4 claims; and (7) warning agency that in camera review called into question “whether the Bank has adequately complied with FOIA’s segregability mandate,” and otherwise highlighting multiple times the agency’s failure to account for records in its Vaughn index and its inaccurate description of records in its submissions.

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

Court opinion issued Feb. 22, 2021

Gellman v. DHS (D,D.C.) -- in case involving plaintiff’s request for records about himself, finding on renewed summary judgment that: (1) Office of the Director of National Intelligence properly relied on Exemption 5’s deliberative process privilege to redact records and noting that agency was not required to disprove that redacted language was not later adopted as agency policy; (2) Office of Information Policy properly withheld draft statements to the media pursuant to Exemption 5, as well as email from public affairs official about how to respond to news article; and (3) OIP properly withheld certain news clips as “unresponsive” to plaintiff’s request even though they were were contained in compilations that included responsive items.

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

Court opinion issued Feb. 18, 2021

Ctr. for Investigative Reporting v. FBI (N.D. Cal.) -- finding that the FBI properly relied on Exemption 7(A) to withhold certain records pertaining to death of two American citizens in Papua Province, Indonesia, noting that the government has secured an arrest warrant and intends to prosecute the murder suspect once he is released from foreign prison.

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

Court opinion issued Feb. 9, 2021

Leopold v. Cent. Intelligence Agency (D.C. Cir.) -- reversing district court’s order that the CIA confirm or deny the existence of records concerning “payments to Syrian rebels,” and rejecting the requester’s argument that a tweet from President Trump “officially acknowledged” the “government’s intelligence interest in the broader categories of records
. . . requested” because that tweet was “subject to several plausible interpretations,” may have “fabricated facts,” and did not actually “reveal the existence of Agency records about the alleged [payment] program.”

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

Court opinion issued Feb. 8, 2021

Trotter v. Ctr. for Medicare & Medicaid Serv. (D.D.C.) -- deciding that CMS properly relied on Exemption 6 to withhold domain portions of email addresses associated with registered healthcare providers, except for domain names that CMS already releases for participants in a digital records-sharing program.

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