Court opinions issued Aug. 6, 2024

Connell v. Cent. Intelligence Agency (D.C. Cir.) — in a case concerning the CIA’s “operational control” over detainees at Guantanamo, affirming the agency’s use of a “Glomar response” to refuse to confirm or deny the existence of responsive records lest the CIA reveal classified intelligence sources and methods; rejecting the requester’s argument that the CIA waived its ability to assert Glomar based on a Senate Select Committee on Intelligence report because that report was not “official” and could not be attributed to the agency; further rejecting the requester’s alternative argument that disclosure of records from a database of materials “previously disclosed to the public” foreclosed the use of Glomar as to other potentially responsive records; noting that while the CIA’s supporting declarations “could have provided more detail” to support the use of a Glomar response they were adequate.

Am. Small Business League v. Small Business Admin. (N.D. Cal.) — on a motion for attorney’s fees and costs, granting the motion in part and denying it in part; holding that plaintiff was not “eligible” for fees pertaining to the production of Small Business Administration “PPP loan data” because the relevant “judicial order” ordering production was actually issued in another case (Washington Post Co. v. Small Bus. Admin., No. 20-1240 (D.D.C.)), despite the instant court relying on that order, and therefore there was no “causal nexus” between the agency’s production and plaintiff’s own lawsuit; further holding that plaintiff was eligible for fees pertaining to the production of supplemental data that was discovered after (and independent of) the Washington Post case, as well as certain interbranch communications; as to “entitlement,” ruling that plaintiff should not receive fees for certain records whose production was not unreasonably delayed; reducing the ultimate fee award due to plaintiff’s use of “block billing.”

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued Aug. 5, 2024

Cox v. DOJ (2nd Cir.) -- affirming district court’s decision that a congressional committee’s report concerning the CIA’s post-9/11 detention and interrogation program was a “congressional” record, not an “agency” record subject to FOIA, even though it was disseminated to various federal agencies; in reaching its decision, the Second Circuit found that because the Committee “manifested a clear intent to control the report at the time of its creation, and because the Committee's subsequent acts did not vitiate that intent,” the agencies that possessed the report did not “control” it under the “intent test” adopted by the Circuit in Behar v. DHS (2nd Cir. 2022).

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinions issued Aug. 1, 2024

Shapiro v. Dep’t of Justice (D.D.C.) — faced with “the latest in a very long series of disputes between the parties,” ordering the FBI to process and produce the potentially responsive contents of the agency’s “Freedom of Information and Privacy Act Document Processing System (‘FDPS’)”; rejecting the FBI’s arguments that “substantive entries” in its FDPS were alternatively (1) outside agency control, (2) lacked “sufficient permanence” to be considered a “record,” or (3) would require “record creation” in order to disclose; similarly rejecting the FBI’s argument that production would “involve a ‘gargantuan’ effort,” as creating screenshots would not be “any different [than] the burden imposed in myriad FOIA cases.”

Reason Found. v. Fed. Bureau of Prisons (D.D.C.) — in a case involving BOP “mortality reviews” of inmate deaths, upholding in part the agency’s use of Exemption 5, in conjunction with the deliberative-process privilege, because mortality reviews are prepared to assist in high-level decisionmaking about inmate care and reflect non-factual opinions about the same; noting, however, that there is “uncertainty” as to whether portions of the reviews concerning administration of emergency care (e.g., CPR) is privileged, and allowing BOP to renew its motion for summary judgment; noting further that BOP waived privilege for a small subset of withholdings applied to “checkbox questions where [the agency] disclosed the narrative response to the same question.”

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 30, 2024

Truesdale v. U.S. Pub. Health Serv. (D.D.C.) -- granting government’s motion for summary judgment after crediting affidavits of various agencies attesting that pro se plaintiff’s requests were never received, whereas plaintiff, a recently released federal inmate, was not able to provide any evidence beyond copies of his requests.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinions issued July 29, 2024

Bermudez v. DOJ (W.D. La.) -- denying attorney’s fees in connection with plaintiff’s request for immigration court case file after determining that: (1) plaintiff was ineligible for an award because he did not obtain relief through judicial order, and the Executive Office for Immigration Review initiated the processing of plaintiff’s request “well before” the lawsuit was filed; and (2) even if plaintiff had substantially prevailed, he would not have been entitled to fees because his request was motivated by personal and commercial interests and EOIR did not deny the request or withhold any records.

Daniels v. Raimondo (N.D. Ill.) -- concluding that U.S. Census Bureau, plaintiff’s former employer, clearly established that its search was reasonably designed to find plaintiff’s personnel records, even if two items plaintiff sought ultimately were not found; rejecting plaintiff’s argument that the agency released several fake documents and noting that plaintiff would not be entitled to any relief under FOIA even if such fabrication had occurred.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinions issued July 25-26, 2024

July 26, 2024

Cabezas v. FBI (D.C. Cir.) -- affirming district court’s decision that: (1) FBI conducted a reasonable search for records concerning plaintiff’s child pornography-related conviction; and (2) FBI properly withheld information pursuant to Exemptions 5, 6, 7(C), and 7(E).

Louise Trauma Ctr. v. USCIS (D. Md.) -- dismissing, as moot, lawsuit seeking records related to the training and performance of asylum officers, because the complaint challenged only the agency’s failure to timely produce records and the agency subsequently produced records, albeit with redactions; ruling that plaintiff could not amend its original complaint via a responsive filing and that it “must first challenge the redactions by appealing to the head of the agency before it seeks a judgment from this Court.”

July 25, 2024

Inst. for Energy Research v. FERC (D.D.C.) -- concluding that FERC properly relied on the deliberative process privilege and Exemption 6 to redact communications exchanged between agency lawyers and White House counsel as part of FOIA consultation process; further finding that foreseeability requirement was met for both exemptions, specifically the “chilling effect” that disclosure would entail, as well as “annoyance, threats, embarrassment” to agency employees.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 24, 2024

Children's Health Def. v. CDC (D.D.C.) -- in dispute concerning COVID-19 vaccine safety-monitoring records sent to FDA for consultation, ruling that: (1) HHS was not a party to the case by operation of law, but allowing it to move for a stay as an intervenor; and (2) granting stay for six months because several judges in same district had already issued stays affecting access to the same documents, and because FDA was burdened by an “extraordinary production” schedule imposed by a federal court in Texas.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 22, 2024

Cole v. Locascio (D.D.C.) -- on renewed summary judgment, adopting magistrate’s report and recommendation finding that: (1) Federal Emergency Managment Agency performed an adequate search for records concerning agency’s study of the collapse of the World Trade Center in 2001, rejecting plaintiff’s objections that FEMA failed to produce specific, non-exempt documents or that it was obligated to search 490,000 pages maintained by the National Archives and Records Administration; (2) plaintiff’s claim against the National Institute of Standards and Technology was moot because plaintiff received all the records he sought.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 16, 2024

Kowal v. DOJ (D.C. Cir) -- affirming district court’s 2022 decisions—following multiple rounds of summary judgment—that: (1) the FBI, DEA, and ATF justified the adequacy of their searches for records concerning plaintiff’s client, Daniel Troya, who was sentenced to death for murder in 2009; and (2)(a) defendant agencies properly withheld third-party information pursuant to Exemption 7(C); (b) FBI properly relied on Exemption 3 in conjunction with 18 U.S.C. §§ 2510–12, to withhold a narrative summary of a wiretap conversation; (c) FBI and DEA properly withheld source information pursuant to Exemption 7(D), noting that “grisly nature” of the crime “easily” supported inference of confidentiality for each source.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 11, 2024

Franklin v. Wormuth (D. Md.) -- determining that: (1) Department of the Army established that it performed adequate search for three of four categories of records pertaining to agency’s response to plaintiff’s EEO complaint, but denying summary judgment for one category because agency’s search description was “remarkably thin”; and (2) Army properly relied on Exemptions 6 and 7(C) to redact identifying information about third parties from Army police report.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.