FOIA Advisor

Court Opinions (2015-2023)

Court opinions issued May 27, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Hyatt v. U.S Patent & Trade Office (D.D.C.) -- ruling that: (1) agency properly denied plaintiff’s request for waiver of fees arising from request for records concerning plaintiff’s patent applications, because plaintiff failed to show that records would advance public understanding of agency operations; and (2) administrative record did not adequately support agency’s determination that plaintiff’s request fell within commercial use fee category, and remanding to agency for further action; declining to decide whether standard of review should be de novo or “arbitrary and capricious."

Am. Oversight v. HHS (D.D.C.) -- on review of Magistrate Judge’s report and recommendation, holding that: (1) judge did not clearly err in finding that U.S. House committee was a proper defendant-intervenor and that court had subject matter jurisdiction, rejecting plaintiff’s “counter-intuitive theory“ that the Committee was required to seek injunction against government defendants; (2) judge did not clearly err in finding that HHS performed adequate search for records regarding health care reform legislation; (3) agency properly relied on Exemption 5’s consultant corollary to withhold records of communications with Congress, except for certain factual information; (4) HHS was required to submit additional affidavit clarifying with certainty whether or not talking points were adopted as the agency’s position or were later used and shared outside the agency; (5) OMB was required to disclose names of attendees and locations of meetings; and (6) judge did not clearly err in denying plaintiff’s requests for in camera review and discovery.

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

Court opinions issued May 20, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Crow v. IRS (D. Idaho) -- determining that IRS properly relied on Exemption 3 in conjunction with 26 U.S.C. § 6103(a) to withheld certain records concerning its investigation of plaintiff and rejecting plaintiff’s argument that instant FOIA action permitted IRS to release return information under section 6103(h)(4) of the Internal Revenue Code (authorizing release in “judicial or administrative proceeding pertaining to tax administration”).

Khullar v. Rosario (S.D. Fla.) -- finding that U.S Patent and Trademark Office performed reasonable search for disciplinary records concerning plaintiff; rejecting plaintiff’s arguments that agency’s declaration contained inadmissible hearsay, that USPTO's response to a prior FOIA request raised questions about agency’s search, and that USPTO's search was inadequate because it failed to yield three allegedly responsive documents.

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

Court opinion issued May 18, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Schmitz v. DOD Inspector Gen. (E.D. Va.) -- holding that plaintiff’s failure to file administrative appeals from any of his three requests to DOD IG warranted dismissal of his case on exhaustion grounds; rejecting plaintiff’s arguments that appeals would have been futile and that litigation productions by a different DOD component precluded an exhaustion defense.

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

Court opinions issued May 13, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Newman v. BOP (D.D.C.) -- determining that government performed “thorough” searches for records concerning former Cuban exile and inmate Antonio Veciana, whose incarceration and supervision ended in the early 1980s. Of note, the court remarked that this case was “yet another example of the “mismatched incentives” that FOIA creates” because “nonprofit FOIA requestees like [plaintiff] pay little to nothing for their FOIA requests . . . [s]o they do not internalize the costs of a wild goose chase like this one. This case has tasked multiple attorneys at three agencies (including the U.S. Attorney's Office) and several FOIA specialists in the search for decades-old inmate records that by regulation should have been transferred or destroyed years ago. Unsurprisingly, they were. But the cost of this predictably fruitless search is borne by the agencies, and ultimately, American taxpayers.”

Story of Stuff Proj. v, U.S. Forest Serv. (D.D.C.) -- awarding $106,214 in attorney’s fees and costs after thirty-percent reduction for time spent on plaintiff’s unsuccessful claims, and disallowing time invested in case after court hearing on plaintiff’s motion for fees and costs.

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

Court opinions issued May 12, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Transgender Law Ctr. v. Immigration & Customs Enf't (9th Cir.) -- reversing district court and finding that: (1) DHS agencies failed to show “beyond material doubt” that they conducted adequate search for records concerning asylum-seeker's death in federal custody; (2) government’s Vaughn Indices failed to provide sufficient detail to permit review of withholdings; (3) court erred in treating all drafts as necessarily covered by Exemption 5’s deliberative process privilege; (4) agencies improperly withheld email domain addresses of agency employees under Exemptions 6 and 7(C); (5) agencies failed to distinguish whether records withheld under Exemption 7(E) were law enforcement techniques and procedure or guidelines; and (6) agencies failed to provide sufficient detail concerning its segregability analysis.

Synopsys, Inc. v. DOL (9th Cir.) (unpublished) -- affirming district court’s decisions that: (1) company untimely moved to intervene after summary judgment was granted to FOIA requester seeking access to company’s employment data (EEO-1 reports); and (2) DOL was entitled to summary judgment in company’s reverse-FOIA action, finding that APA claim on Exemption 4 grounds was precluded by Supreme Court precedent.

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

Court opinions issued Apr. 28, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Zirvi v. NIH (D.N.J.) -- concluding that: (1) multiple agencies properly relied on Exemption 4 to withhold records concerning a biotechnology company; (2) plaintiff’s belief that withheld documents would show existence of criminal conduct did not undermine exemptions or warrant discovery or in camera review; and (3) plaintiff was neither eligible nor entitled to costs.

Am. Civil Liberties Union v. Fed. Bureau of Prisons (D.D.C.) -- denying plaintiff’s motion to strike agency’s declaration in connection with plaintiff’s requests for COVID-19 data and cost and staffing data related to federal executions.

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

Court opinions issued Apr. 26, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Nat’l Student Legal Def. Net. v. U.S. Dep’t of Educ. (D.D.C.) -- ruling that Department of Education performed adequate search for certain federal student aid-related records received from the Social Security Administration, notwithstanding department’s failure to locate two additional SSA records that the department was required by regulation to request from SSA annually.

100Reporters v. U.S. Dep’t of State (D.D.C.) — finding that: (1) Department failed to adequately search for reports to Congress concerning vetting of foreign security personnel; (2) Department properly withheld some, but not all, vetting records pursuant to Exemption 5’s deliberative process privilege and noting that agencies are not required to trace lineage of each draft document to ensure that it has not been adopted as agency’s final position; (3) Department failed to provide sufficient evidence to show that names of foreign security officials were protected under Exemptions 6 or 7(C); (4) Department properly withheld most, but not all, records pursuant to Exemption 7(E); and (5) Department failed to identify any authority that would authorize Court to order plaintiffs to return inadvertently released records, regardless of whether those records are protected under various exemptions, including Exemption 7(F).

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