Court opinions issued June 20-21, 2023

June 21, 2021

Friends of the River v. U.S. Army Corps of Eng'rs (D.D.C.) -- finding that agency did not justify (and therefore must disclose) most of its withholdings under Exemption 5’s deliberative process privilege because agency failed to articulate foreseeable harm, but that agency properly withheld records pursuant to attorney work-product and attorney-client privileges.

June 20, 2023

Cameron v. BOP (S.D. Ind.) -- dismissing prisoner-plaintiff’s claim as moot because agency released requested documents with some redactions after plaintiff filed suit and plaintiff failed to opposed agency’s motion to dismiss.

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

Court opinion issued June 14, 2023

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of the Army (D.D.C.) -- ruling that communications between South Dakota state officials and the National Guard (a hybrid state-federal entity) did not fall within Exemption 5’s consultant corollary exception because they were not made for purpose of aiding the National Guard’s deliberations; noting that its ruling “produced an odd outcome considering that these discussions would be protected either under Exemption 5 (if wholly federal) and under South Dakota law (if wholly state) . . . and yet the very structure of the National Guard necessitates crossing federal-state lines.”

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

Court opinions issued June 13, 2023

Bloomberg L.P. v. USPS (S.D.N.Y.) -- holding that USPS properly withheld certain anonymized change-of-address data pursuant to Exemption 3 in conjunction with 39 U.S.C. § 410(c)(2), because the requested data relates to a commercial product licensed by the agency.

Bothwell v. DOJ (W.D. Okla.) -- deciding that: (1) DOJ was a proper defendant, but not two DOJ components, and (2) plaintiff exhausted his administrative remedies and properly stated a claim under FOIA.

Rhoades v. U.S. Army Corps of Eng'rs (E.D. Va.) -- concluding that agency performed reasonable search for permitting records and related correspondence from 1983, and that it was not required to ask private land owners if they maintained requested records.

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

Court opinion issued June 9, 2023

Schaerr v. Dep’t of Justice (D.C. Cir.) — affirming district court; concluding, based on circuit precedent, that an agency need not search for responsive records before invoking Glomar and refusing to confirm or deny the existence of records, as such information would itself be exempt under the FOIA; further holding that the defendant agencies had properly invoked Glomar in conjunction with Exemptions One and Three; rejecting requester’s claims of “bad faith” in rebutting agency affidavits because those “allegations [are] either too generalized or too attenuated from the specific classification decisions at issue[.]”

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

Court opinions issued June 1-2, 2023

June 2, 2023

Smolen v. FAA (S.D.N.Y.) -- deciding that: (1) FAA properly relied on Exemption 4 to withhold draft agreement between the agency and the National Air Traffic Controllers Association, and that it demonstrated reasonable foreseeable harm from disclosure; and (2) plaintiff failed to administratively appeal the adequacy of the agency’s search, but even if he had, agency’s search was adequate.

June 1, 2023

Sarama v. DEA (M.D. Fla.) -- concluding that: (1) plaintiff was eligible for attorney’s fees and costs because although DEA commenced search for certain records prior to lawsuit, it failed to process and disclose a mere 5 pages for a significant amount of time; (2) plaintiff was entitled to attorney’s fees and costs despite lack of public benefit on disclosure, because DEA’s response was unreasonable and plaintiff’s interest in disclosure was not commercial.

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

Court opinion issued May 24, 2023

Cause of Action Inst. v. NOAA (D.D.C.) -- concluding that agency’s search was inadequate because agency too narrowly defined what constituted the “agency records” of one of its regional Fishery Management Councils by only including correspondence “submitted to the chair” or “specifically discussed or disseminated at a Council meeting”; ordering agency to conduct a supplemental search of non-federal employee council members’ personal accounts and devices.

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

Court opinions issued May 23, 2023

Anand v. HHS (D.D.C.) -- ruling that the Office of Inspector General properly refused to search for “all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians,” because the search would take the entire FOIA staff more than 9 years to complete (or one full-time employee 28 years at a cost of at least $3.5 million), which was deemed unduly burdensome.

Anthony v. BOP (D.D.C.) -- determining that: (1) plaintiff’s claim was moot with respect to four pages that BOP released in full; (2) plaintiff was not required to administratively appeal BOP’s denial of his expedition request before filing suit; and (3) plaintiff also was not required to administratively appeal BOP’s final decision on the merits, which postdated plaintiff’s lawsuit.

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

Court opinion issued May 16, 2023

Louise Trauma Ctr. v. DHS (D.D.C.) -- determining that plaintiff was both eligible and entitled to attorney’s fees and costs, but reducing requested fee award from $156k to $106k because: (1) plaintiff failed to show that the rate sought by its attorney rate was consistent with the prevailing market rate for similar legal services; (2) much of the attorney’s work was “needless, duplicative, or inefficient,” and the billing records lacked adequate details; and (3) plaintiff’s request for $45k for fees spent on its fee petition was unreasonable and would constitute an “unsupportable windfall.”

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

Court opinion issued May 12, 2023

Lawyers’ Comm. for Civil Rights v. OMB (D.D.C.) -- on renewed summary judgment, ruling that OMB sufficiently established that it properly relied upon Exemption 5’s deliberative process privilege to withhold records concerning its decision to “halt its initiative for the collection of pay data from employers by the [EEOC]”; further finding that OMB satisfied the foreseeable harm standard by linking identifiable harms to specific information, and that it established that it produced all reasonably segregable information.

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

Court opinion issued May 11, 2023

Am. Civil Liberties Union of Mass. v. CIA (D. Mass.) -- concluding that CIA, ODNI, DOD, and NSA improperly issued Exemption 7(A) Glomar responses in connection with plaintiff’s request for President Trump’s alleged standing order declassifying documents taken from the Oval Office; finding that FBI did not sufficiently explain how its criminal investigation would be harmed if defendants searched for responsive records, particularly in light of the fact that three other intelligence agencies had already conducted searches and issued “no records” responses and that President Trump and multiple former Trump administration officials had issued statements on the matter.

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