Court opinions issued Jan. 27-28, 2022

Jan. 28, 2022

Majuc v. DOJ (D.D.C.) -- concluding that with one minor exception, DOJ properly used Exemptions 4, 6, 7(A), and 7(C) to withhold records concerning criminal investigation of BNP Paribas, S.A. and its affiliates for evading economic sanctions against various countries.

Callimachi v. FBI (D.D.C.) -- ruling that: (1) FBI properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny the existence of records concerning certain Romanian politicians; (2) FBI properly invoked Exemptions 1 & 3 in refusing to confirm or deny existence of records concerning Romania’s intelligence service; and (3) FBI performed adequate search for records concerning death of former Romanian ambassador and properly withheld records pursuant to Exemptions 1, 7(D), and 7(E).

Jan. 27, 2022

Cause of Action Inst. v. Export-Import Bank (D.D.C.) -- on renewed summary judgment and following in camera review, determining that: (1) agency improperly withheld email received from Vice President’s staff as non-agency records; (2) agency failed to show that certain information contained in weekly reports was “obtained from a person,” but agency’s remaining Exemption 4 withholdings were proper; (3) agency properly withheld some, but not all, disputed records under Exemption 5’s deliberative process privilege; of note, ordering release of one of three documents sent to GAO because it was created to assist GAO and ultimately Congress and thus not an inter-agency or intra-agency record.

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

Court opinions issued Jan. 25, 2022

Eddington v. DOJ (D.D.C.) -- concluding that DOJ’s National Security Division properly invoked Exemptions 1, 6, 7(A), and 7(C) in refusing to confirm or deny the existence of intelligence and investigative records related to Amir Mohamed Meshal, a U.S. citizen who was detained by both Kenyan and Ethiopian government entities between 2006 and 2007.

Sheppard v. DOJ (W.D. Mo.) -- finding that plaintiff was entitled to $344,122.30 in attorney’s fees out of $444,314 requested and reducing award primarily due to excessive time spent on complaint and duplicative staffing; declining to discount fees merely because plaintiff did not obtain all disputed records.

Yassein v. El Paso Intelligence Ctr. (S.D. Cal.) -- dismissing case because plaintiff did not reasonably describe records sought from Drug Enforcement Administration and agency made good faith attempt to seek clarification, which plaintiff ignored.

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

Court opinion issued Jan. 20, 2022

Harrington v. FDA (D.D.C.) -- denying plaintiff’s motion seeking “immediate” production of agency’s pet-food-related records and finding that FDA’s proposed production schedule was reasonable; noting that agency’s relevant FOIA office had backlog of 336 requests, due “in no small part” to plaintiff’s “staggering 2220+ requests to FDA since 2018.”

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

Court opinions issued Jan. 13-14, 2022

Jan. 14, 2022

Rivera-Rodriguez v. DOJ (D.D.C.) -- concluding that: (1) Executive Office of United States Attorneys properly used Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) to withhold grand jury minutes, voting records, and charging instructions, and (2) agency’s undisputed withholding of grand jury forepersons also were properly withheld under Exemptions 6 and 7(C).

Jan. 13, 2022

Envtl. Def. Fund v. United States v. EPA (D.D.C.) -- ruling that plaintiff was eligible and entitled to attorney’s fees and costs, but reducing requested attorney’s fee award from $151, 322 to 109,413 because of unreasonably high hourly rates and excessive charges.

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

Court opinion issued Jan. 12, 2022

Jabar v. DOJ (W.D.N.Y.) -- adopting magistrate judge’s report and recommendation that agency properly segregated and released non-exempt material from plaintiff’s criminal case file and that FOIA was not proper vehicle to remedy alleged Brady violations.

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

Court opinion issued Jan. 11, 2022

Am. Oversight v. DOT (D.D.C.) -- holding that DOT properly relied on Exemption 5’s deliberative process privilege to withhold communications between Congressional staff and agency staff on proposed and draft legislation, because “the staffers shared a common legislative purpose” and “the communications furthered the agency’s consideration of the particulars of that common legislative purpose.”

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

Court opinion issued Dec. 30, 2021

Akel v. DOJ (D.D.C.) -- concluding that the Executive Office of U.S. Attorneys performed reasonable search for records concerning plaintiff’s prosecution, except for its failure to try to recover and search emails of one former prosecutor who worked on plaintiff’s case.

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

Court opinions issued Dec. 28, 2021

Kalbers v. DOJ (9th Cir.) -- reversing district court’s decision that Volkswagen AG could not intervene as of right in FOIA lawsuit involving the company’s records and holding, in most relevant part, that the factor of delay “is measured from the date the proposed intervenor knew or should have known the parties would no longer adequately protect its interests” as opposed to the date when proposed intervenor learned of the FOIA lawsuit.

Kinnucan v. Nat'l Sec. Agency (W.D. Wash.) -- deciding that: (1) House Appropriations Committee report concerning 1967 attack on U.S. naval intelligence ship was not an “agency record” subject to FOIA, because “the Committee clearly indicated its intent to control the report by marking it ’Not for release unless and until authorized by the Committee’”; (2) CIA failed to carry its burden with respect to its withholdings under Exemptions 1 and 3, necessitating in camera review; and (3) despite age of records, CIA could retain its Exemption 6 withholdings because plaintiff failed to articulate any public interest in disclosure.

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

Court opinion issued Dec. 23, 2021

Property of the People v. DOJ (D.D.C.) -- on renewed summary judgment, concluding that the FBI properly relied on Exemption 7(C) in refusing to confirm or deny existence of investigatory records pertaining to former congressperson, Dana Rohrabacher of California.

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

Court opinions issued Dec. 21, 2021

Hammond v. DOD (D.D.C.) -- finding that: (1) Walter Reed National Military Medical Center performed “reasonable and adequate” searches in response to plaintiff’s multiple requests, noting that plaintiff was not “entitled to a search of his own choosing”; (2) agency properly invoked Exemption 6 to withhold names of individuals who requested their own medical records; (3) plaintiff was not entitled to injunctive relief based on agency’s use of batched FOIA tracking numbers.

Cole v. Copan (D.D.C.) -- adopting in part and denying in part magistrate’s recommendations and holding that: (1) FEMA and NIST did not adequately explain how it searched for requested records concerning the collapse of the World Trade Center buildings on September 11, 2001; (2) plaintiff was entitled to limited discovery from FEMA concerning 490,000 pages of WTC-related records stored at NARA, but that FEMA sufficiently explained discrepancy as to whether certain missing records might be in its regional office’s local archives.

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