Court opinions issued Mar. 6-7, 2023

Mar. 7, 2023

S. Envtl. Law Ctr. v. Tenn. Valley Auth. (E.D. Tenn.) -- ruling that agency properly relied on Exemption 4 to redact certain information contained in two contracts negotiated with natural gas pipeline companies; further ruling that foreseeable harm provision was applicable, consistent with Second Circuit’s 2022 decision in Seife v. FDA, and that agency adequately established that disclosure would harm companies’ commercial or financial interests; declining to decide whether disclosure was prohibited by Trade Secrets Act and thus outside reach of foreseeable harm provision.

Mar. 6, 2023

Aguirre v. U.S. Nuclear Regulatory Comm'n (S.D. Cal.) -- finding that: (1) agency failed to perform reasonable search for certain communications between NRC and generating station operators pertaining to incident involving storage of nuclear waste; (2) agency properly withheld identities third parties pursuant to Exemption 7(C); (3) agency properly withheld link to agency computer network pursuant to Exemption 7(F); (4) agency properly relied on Exemption 4 to withhold two “proprietary” documents submitted by private companies under implied promise of confidentiality; not addressing whether foreseeable harm provision applied to Exemption 4; and (5) rejecting plaintiff’s argument that separate Vaughn index was necessary due to alleged deficiencies in agency’s declaration.

Huddleston v. FBI (E.D. Tex.) -- denying plaintiff’s request for interim attorney’s fees and costs in case concerning FBI’s investigation of Seth Rich’s death, but permitting plaintiff to refile same motion after court ruled on pending motions for reconsideration.

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

Court opinions issued Feb. 28, 2023

N.Y. Times. v. U.S. Dep't of Educ. (S.D.N.Y.) -- finding that: (1) agency justified its reliance on Exemption 5’s deliberative process privilege to withhold all but three disputed documents pertaining to a school safety commission, and (2) agency properly invoked Exemption 7(A) to withhold FBI and DHS reports related to ongoing investigations into school safety incidents

Longas-Palacio v. USCIS (S.D. Tex.) -- concluding that USCIS properly withheld certain records pertaining to plaintiff’s removal proceedings pursuant to Exemption 3, in conjunction with 49 U.S.C.§ 114(r) (“No-Fly” list), as well as Exemption 5’s deliberative process privilege and Exemptions 6, 7(C), and 7(E).

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

Court opinion issued Feb. 23, 2023

Jabar v. DOJ (2nd Cir.) -- affirming district court’s decision and rejecting arguments that plaintiff-appellant was entitled to greater access to FBI records concerning his criminal case as a constitutional right under Brady v. Maryland, and that district court erred in declining to review documents withheld in full.

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

Court opinion issued Feb. 22, 2023

Assassination Archives & Research Ctr. v. CIA (D.D.C.) -- determining that: (1) CIA performed adequate search for certain records concerning the Kennedy assassination and it was not required to search its operational files merely because plaintiff speculated that certain individuals should have been targets of government investigations; further rejecting plaintiff’s argument that CIA’s failure to find more material, as well as plaintiff’s perceived importance of those records, undermined the adequacy of agency’s search efforts; and (2) although CIA’s use of Exemption 1 to withhold records over 50 years old was questionable, CIA properly relied on Exemption 3 in conjunction with the National Security Act and the Central Intelligence Agency Act; (3)(a) CIA met its burden to segregate and release non-exempt material; (b) CIA was not required to initiate a new search of the classified records retrieved from former President Trump, who plaintiff asserted “had expressed strong interest” in the subject; (c) plaintiff was not entitled to discovery merely because CIA initially denied having received plaintiff’s request; (d) if plaintiff seeks original (and perhaps more legible) FBI records, as opposed to the “blemished” records the CIA located in its files and referred to FBI, it must submit a request to the FBI.

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

Court opinions issued Feb. 21, 2023

Waterman v. IRS (D.C. Cir.) -- affirming in part and reversing in part district court’s decision and holding that: (1) IRS properly relied on Exemption 5’s deliberative process privilege to withhold “evaluative” facts in an auditor’s memo concerning plaintiff’s suspected misconduct, but that the memo’s chronological collection of plaintiff’s statements was not exempt; (2) IRS improperly invoked Exemption 5 to withhold an auditor’s memo summarizing her telephone calls with plaintiff that, in the majority’s view, reflected no point of view; and (3) IRS properly invoked Exemption 5 to withhold an analysis of plaintiff’s disciplinary referral, including extracted facts pertinent to plaintiff’s alleged misconduct. In a partial dissent, one panelist opined that both memos were deliberative because “(1) their purpose was to assist in a discretionary decision” (whether to further investigate [plaintiff]) and (2) their authors selected facts that reflected a point of view (that plaintiff should be investigated).”

Project on Gov't Oversight v. DHS (D.D.C.) -- ruling that: (1) plaintiff, a sophisticated FOIA party, had expressly waived its right—via email exchanges with opposing counsel and in joint status reports—to contest the sufficiency of agency’s search for certain complaint-related records maintained by the Office of Civil Rights and Civil Liberties; and (2) DHS improperly relied on Exemption 5’s deliberative process privilege to withhold “unverified observations of first impression” contained in expert reports, and it failed to provide sufficient evidence to establish that experts’ analysis, opinions, or recommendations met the foreseeable harm requirement.

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

Court opinion issued Feb. 20, 2023

State of Georgia v. DOJ (D.D.C.) -- holding that: (1) DOJ failed to establish that communications exchanged with private parties concerning joint election-related lawsuits against plaintiff qualified as “intra-agency” communications under the consultant corollary exception to Exemption 5; and (2) even if disputed communications were considered “intra-agency,” DOJ could not rely on the deliberative process and attorney work-product privileges because it failed to show that it had “sufficiently similar legal interest with of the private litigation groups” to invoke the common interest doctrine.

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

Court opinion issued Feb. 17, 2023

Kolbusz v. FBI (D. D.C.) -- adopting magistrate’s recommendation that FBI properly withheld records pertaining to plaintiff pursuant to Exemption 5’s attorney-client and deliberative process privileges, and ruling that magistrate properly denied plaintiff’s motion to supplement his complaint.

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

Court opinion issued Feb. 16, 2023

Am. Soc’y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv. (2d Cir.) — affirming district court dismissal of “policy or practice claim” that alleged APHIS, as a result of its decommissioning of certain databases of proactively disclosed records , was regularly citing “exemptions that do not apply” and engaging in “unreasonable, inexcusable and unexplained delays” while adjudicating requests and appeals for the same records previously hosted on the databases; holding that, “even assuming that a ‘policy or practice’ claim is cognizable [in the Second Circuit], . . . such a claim . . . [fails] because [Congress] . . . reversed the alleged policy or practice . . . [by] direct[ing] the agencies to ‘restore’ each decommissioned database ‘and its contents’ to the status quo ante . . . [and to make those records] available ‘in their entirety without redactions except signatures’”; reasoning that, even if the D.C. Circuit’s decision in Payne Enterprises, Inc. v. United States, were adopted, it would be inapt because the same “extraordinary set of circumstances” is not present here; of especial note, in a concurrence, Judge Menashi opined that the FOIA does not provide for a ‘policy or practice’ claim, and “[t]he proper avenue for challenging the policies and practice of agencies [vis-a-vis the FOIA] is the APA, 5 U.S.C. § 706.”

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

Court opinion issued Feb. 13, 2023

Immigrant Def. Project v. DHS (S.D.N.Y.) -- holding that: (1) ICE’s search was inadequate because it neglected to search its Office of Public Affairs for records pertaining to “Operation Palladium,” an enforcement program initiated during the Trump Administration, and because it omitted “clearly relevant” search terms; (2) ICE failed to sufficiently explain the applicability of the deliberative process and attorney work-product privileges to two disputed emails; and (3) ICE properly relied on Exemption 7(E) to redact a fugitive operations handbook , but it did not demonstrate the propriety of its remaining withholdings using the same exemption.

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

Court opinion issued Feb. 10, 2023

Hooker v. U.S. Dep’t of Veterans Affairs (M.D. Fla.) -- granting agency’s summary judgment motion after finding that agency had properly withheld records pertaining to plaintiff pursuant to Exemption 7(A) and then released all requested records after its law enforcement proceeding against plaintiff had closed.

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