Court opinions issued May 11, 13, & 14, 2021

May 14, 2021

Kilmer v. U.S Customs & Border Patrol (D.D.C.) -- concluding that: (1) except in one minor respect, CBP performed adequate search for records concerning its interactions with Canadians seeking entry to participate in 2017 Women’s March; and (2) CBP’s broad explanations for its use of Exemptions 5, 6, 7(C), and 7(E) did not permit the court to meaningfully review withholdings.

May 13, 2021

Rutigliano v. DOJ (2nd Cir.) -- summarily affirming district court’s decision that DOJ properly relied on Exemption 5 to withhold a “prosecution declination memorandum.”

May 11, 2021

Xanthopoulos v. IRS (D. Minn.) -- finding that IRS properly invoked Exemption 7(E) to redact agency’s Internal Revenue Manual and declining to decide whether the “foreseeable harm” provision imposes a heightened showing by the government.

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

Court opinion issued May 10, 2021

Pub. Justice Found. v. Farm Serv. Agency (N.D. Cal.) -- determining that: (1) agency properly relied on Exemption 3, in conjunction with 7 U.S.C. § 8791 (Food, Conservation, and Energy Act of 2008), to withhold various records concerning applicants to agency’s farm loan program, except for specific earmarks by FSA for approved loans; (2) Exemption 4 was inapplicable because FSA failed to provide express implied assurance of confidentiality; and (3) agency could not use Exemption 6 to withhold loan payment information, but it properly withheld sensitive personally-identifiable information such as social security numbers, bank account information, personal assets, etc.

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

Court opinions issued May 4 & May 7, 2021

May 7, 2021

Pavement Coatings Tech. Council v. U.S. Geological Survey (D.C. Cir.) -- reversing and remanding district court’s decision that agency properly relied on Exemption 5’s deliberative process privilege to withhold modeling data related to agency’s coal tar sealant studies; affirming district court’s decision that agency properly withheld information concerning study participants pursuant to Exemption 6.

May 4, 2021

Ballow v. DOJ (D.D.C.) -- deciding that EOUSA conducted an adequate search for records concerning plaintiff’s extradition from Mexico and that it properly withheld all records pursuant to Exemptions 5, 7(C), and 7(D).

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

Court opinions issued May 3, 2021

Cincinnati Enquirer v. DOJ (S.D. Ohio) -- determining that: (1) DEA performed adequate search for records organized under “Operation Speakeasy”; and (2) DEA could not rely on Exemption 7(C) to categorically withhold investigatory records pertaining to third party, because privacy interest interest was outweighed by public interest—namely shedding light on DOJ’s decision not to prosecute the highest elected law enforcement official in a Kentucky county for obstruction of justice.

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- ruling that: (1) agency’s denial of plaintiff’s request for expedite processing was moot issue; and (2) DOJ properly relied on Exemption 5’s deliberative process privilege to withhold draft legal analysis prepared by an OLC attorney concerning Special Counsel Mueller’s investigation; and (3) DOJ failed to show that OLC’s signed memorandum to Attorney General Barr was pre-decisional for purposes of Exemption 5’s deliberative process privilege or that it was protected under the attorney-client privilege, noting that DOJ affidavits were “so inconsistent with evidence in the record, they are not worthy of credence.”

Besson v. U.S. Dep’t of Commerce (D.D.C.) -- on renewed summary judgment and following supplemental release of material, concluding that government properly relied on Exemption 4 to withhold remaining disputed portion of agreement between NIH and a private telecommunications company.

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

Court opinions issued Apr. 25-30, 2021

Apr. 30, 2021

Farah v. DOJ (D. Minn.) -- following in camera review of disputed documents concerning plaintiff’s prosecution, ruling that: (1) EOUSA that properly relied on Exemption 5’s deliberative process and attorney work-product privileges, except with respect to portions of two pages that contained non-exempt material; and (2) EOUSA properly redacted correspondence pursuant to Exemption 7(C) in all respects.

Apr. 29, 2021

Prop. of People v. DOJ (D.D.C.) -- following in camera review of FBI documents pertaining to Donald Trump through 2015, deciding that: (1) FBI properly withheld records pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e); intercepted communications could not be withheld under Exemption 3 in conjunction with Title III of the Omnibus Control and Safe Street Act of 1968, but sealing orders issued by another court would prevent disclosure if still in effect; (2) DOJ properly withheld records pursuant to Exemptions 7(A), 7(C), and 7(D), but failed to show that disclosure of surveillance logs from more than 20 years ago would cause harms protected by Exemption 7(E).

Apr. 28, 2021

Nat’l Pub. Radio v. FBI (D.D.C.) -- on reconsideration under Rule 60(b), finding that FBI justified its use of Exemptions 7(E) and 7(F) to withhold videos depicting ballistics tests of certain types of ammunition.

Chavis v. DOJ (D.D.C.) -- determining that: (1) DEA performed reasonable search for records concerning plaintiff’s murder conviction and properly refused to search for records concerning plaintiff’s co-defendants on privacy grounds; and (2) DEA properly withheld records pursuant to Exemptions 6, 7(C), 7(D), 7(E), and 7(F).

Apr. 27, 2021

Stoufer v. FBI (D. Alaska) -- concluding that multiple DOJ components conducted reasonable searches concerning plaintiff and that the Office of Inspector General properly relied on Exemption 7(C) to redact names of employees and third parties who handled plaintiff’s complaints.

Gutierrez v. EOUSA (D.D.C.) -- ruling that EOUSA conducted reasonable search for records concerning plainitf’s conviction for producing child pornography.

Apr. 26, 2021

Sartori v. U.S. Army (11th Cir.) (unpublished) -- granting summary affirmance to Army because plaintiff abandoned his appeal and because the district court’s decision was proper on the merits.

Apr. 25, 2021

NY Times v. Def. Health Agency (D.D.C.) -- denying plaintiff’s request for a preliminary junction to compel production, on an expedited basis and by a date certain, extensive data regarding the government’s effort to distribute coronavirus vaccines.

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

Court opinion issued Apr. 23, 2021

Am. Ctr. for Law & Justice v. U.S. Dep't of State (D.D.C.) -- on renewed summary judgment concerning edited video of press briefing , ruling that: (1) agency justified redaction of one email pursuant to Exemption 5’s deliberative process privilege; (2) agency properly redacted second email pursuant to Exemption 6 and plaintiff conceded agency’s Exemption 5 withholdings; and (3) agency failed to show that email chain about press guidance and strategy related to Iran was properly withheld pursuant to Exemption 5’s presidential communication privilege.

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

Court opinion issued Apr. 21, 2021

Am. Small Bus. League v. OMB (N.D. Cal.) -- granting government’s motion to sever plaintiff’s FOIA claims against OMB and the Small Business Administration because plaintiff’s requests sought different types of records from each agency.

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

Court opinions issued Apr. 20, 2021

Woodward v. USMS (D.D.C.) -- deciding that: (1) U.S. Marshals Service did not adequately justify its reliance on Exemption 7(E) to withhold records regarding agency’s use of cellphone tracking technology during its investigation of plaintiff, and (2) court would review in camera all records withheld pursuant to Exemption 7(C) in light of plaintiff’s status as death row inmate.

Cause of Action Inst. v. U.S. Dep’t of Veterans Affairs (D.D.C.) -- ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold assessments created by agency contractor in preparation for agency’s ”implementation of the congressionally mandated Market Area Health System Optimization . . . analysis, part of a broader national plan to improve the delivery of health care to veterans.”

See related article here.

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

Court opinion issued Apr. 16, 2021

Poulsen v. DOD (9th Cir.) -- in a 2-1 decision, reversing district court’s decision that plaintiff was ineligible for attorney’s fees and remanding case for a determination concerning plaintiff’s entitlement to such fees. Here, the majority concluded that plaintiff substantially prevailed under 5 U.S.C. 552(a)(4)(E)(ii)(I), because the district court issued a scheduling order when the government agreed to process documents following an intervening declassification order from President Trump. The dissent argued that plaintiff was ineligible for fees because he failed to show that his lawsuit “was a substantial cause (or indeed any cause at all) of the relief he obtained.”

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

Court opinion issued Apr. 12, 2021

N.Y. Times v. BOP (S.D.N.Y.) -- ordering in camera review of documents pertaining to the death of Jeffrey Epstein, which BOP withheld under Exemption 7(A).

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