Court opinion issued Sept. 11, 2024

Wonder v. Dep’t of the Army Office of Gen. Counsel (D.D.C.) -- concluding that: (1) plaintiff’s failure to exhaust his 2012 and 2014 requests for a legal memo concerning his security clearance did not bar plaintiff’s duplicate 2022 request (which was fully exhausted), rejecting government’s exhaustion position as “a harsh sanction unsupported by statute, precedent, or logic”; and (2) Army properly withheld the disputed memo pursuant to Exemption 5’s attorney-client privilege and it satisfied statute’s foreseeable harm requirement.

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

Court opinions issued Sept. 10, 2024

Corbett v. Transp. Sec. Admin. (9th Cir.) -- vacating district court’s decision and holding that a requester is not required to file an administrative appeal when an agency issues a response after requester has properly filed a lawsuit, following the reasoning of the Fourth Circuit’s 1995 decision in Pollack v. DOJ.

McCarthy v. DOJ (S.D.N.Y.) -- transferring case to the Eastern District of New York because pro se plaintiff’s residence and the requested records are both in that district, thus making the Southern District of New York an improper venue for her FOIA claim under 5 U.S.C. § 552(a)(4)(B).

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

Court opinion issued Sept. 9, 2024

Reclaim the Records v. U.S. Dep’t of State (S.D.N.Y.) -- finding that the agency performed an adequate search for “an extract of all information for deceased passport holders maintained in the passport database,” which the agency was unable to produce because of its computer system’s technical limitations; further finding that compiling the requested abstract would be unduly burdensome for the agency, putting aside the issue of whether such an endeavor would require the creation of “new” records.

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

Court opinion issued Sept. 6, 2024

Clean Air Council v. U.S. Dep't of the Interior (E.D. Pa.) -- determining that: (1) case was not collaterally estopped by state agency’s decision that one company-intervenor’s feasibility studies were confidential under state open records law, because federal FOIA’ standards were different and plaintiff did not have a “full and fair opportunity” to litigate the federal government’s Exemption 4 claims before the state agency; and (2) affidavits submitted by intervenors and federal government to justify Exemption 4 withholdings did not sufficiently describe the steps that company-intervenors “customarily” took to keep the type of information at issue confidential; further noting that parties had not executed a separate confidentiality agreement and that their final contract stated that certain information could be publicly released via statutorily-required compliance reviews; and (3) defendants failed to establish that disputed records were submitted with government’s express or implicit assurance of privacy, rejecting argument that procurement regulations providing confidentiality to “source selection” records applied in this case.

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

Court opinions issued Sept. 4, 2024

Judicial Watch, Inc. v. DOJ (D.D.C.) — in a case concerning the withholding of employee rosters for the office of Special Counsel Jack Smith—and, specifically, the identities of employees at the GS-14 level or higher who had not previously been disclosed to the requester—granting the government’s motion for summary judgment and approving its use of Exemptions 6, 7(A), and 7(C); holding also that the foreseeable-harm standard was satisfied; noting, with respect to Exemption 7(A), that disclosure would expose Special Counsel employees to “threats and harassment,” and otherwise reveal “nonpublic information about the office’s ongoing investigations, including its focus and scope” and “size”; finally, with Exemptions 6 and 7(C), deciding that the public interest in disclose was “weak” given the low-level nature of the unidentified employees.

Walsh v. Dep’t of the Navy (D.S.D.) — holding, in most relevant part, that the Navy’s denial of plaintiff’s duplicative request was improper because the agency failed to cite any applicable exemptions, contrary to Eighth Circuit and U.S. Supreme Court precedent; granting government’s motion to strike portions of complaint that were immaterial to plaintiff’s claim, rejecting plaintiff’s argument that doing so would violate the First and Fourteenth Amendments.

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

Court opinions issued Sept. 3, 2024

Emuwa v. DHS (D.C. Cir.) — affirming district court decision holding the disclosure of USCIS officers’ written asylum recommendations, which are indisputably protected by the deliberative-process privilege under the Circuit’s decision in Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015), would also “foreseeably harm interests” protected by Exemption 5; noting the agency’s declarant demonstrated how disclosure would lead to “reduced candor by line asylum officers,” especially considering other “contextual” factors like the “‘sensitive’ nature of asylum adjudications and the specific concern about facilitating asylum fraud”; of special note, rejecting the requester’s arguments that prior release of asylum recommendations by DHS’s predecessor agency, INS, in past decades foreclosed satisfaction of the foreseeable harm standard in present instances.

Hall & Assocs. v. EPA (D.D.C.) — granting in part and denying in part plaintiff’s fee motion in a case concerning a FOIA request filed in November 2014; awarding $132,531.51 for attorneys’ fees according to the USAO Matrix, and another $18,566.81 for out-of-pocket costs; noting the “fee award represents a significant reduction of the seven-figure award” ($1,514,056.66) sought by the request, but that partial recovery was warranted, notwithstanding insufficient evidence to demonstrate the requester’s proposed market rates or work-hours expended on the lawsuit, because (1) there is no dispute the requester substantially prevailed, (2) the request at issue “had at least some public value in its potential to uncover useful information regarding the management of essential local government services,” and (3) the EPA’s grounds for withholding, which “helped prolong this litigation,” were “not entirely reasonable.”

Ball v. EOUSA (D.D.C.) — ruling that: (1) EOUSA performed adequate search for records concerning plaintiff’s prosecution for child sexual offenses and noting that EOUSA’s consultation with ICE did not obligate ICE to conduct a search of its own records; (2) EOUSA properly withheld records pursuant to Exemption 3 in conjunction with the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d)(1); (3) EOUSA improperly relied on Exemption 5’s attorney work-privilege to withhold “trial preparation material” that consisted entirely of “publicly available documents created by a third party,” which the court could not “fathom” being exempt; (4) EOUSA improperly relied on the deliberative process privilege, as well as Exemptions 6 and 7(C), to withhold a copy of an Eleventh Circuit decision involving a sex offender, remarking that it “beggars belief to assert privacy interests in a published court opinion”; EOUSA was entitled under Exemption 5 to withhold “highlighted annotations” appearing on a few publicly available pages; (5) EOUSA properly invoked the attorney work-product privilege to withhold “internal memoranda and emails” generated in anticipation prosecuting plaintiff, except for one redacted email that was previously released in unredacted form and another that EOUSA failed to defend; (6) EOUSA sufficiently demonstrated foreseeable harm for all the Exemption 5 withholdings on which it prevailed; (7) EOUSA properly withheld certain records pursuant to Exemptions 6 and 7(E).

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

Court opinion issued Sept. 1, 2024

Stevens v. HHS (N.D. Ill.) -- on renewed summary judgment, holding that: (1) government was not required to file a motion under Rule 60(b) seeking relief from court’s prior summary judgment ruling because the court had not entered final judgment; (2)(a) the Executive Office for Immigration Review’s supplemental search for emails about third parties was inadequate because the agency failed to explain why it did not use the subjects’ A-numbers as search terms; and (b) EOIR unreasonably limited its search to a five-year period where plaintiff asked for decade’s worth of records and the agency’s record retention period is seven years; (3) EOIR was not required to release deduplicated records, rejecting plaintiff’s argument that deduplication is a per se FOIA violation; (4) EOIR was not required to produce an “irreparably damaged” audio recording that could not be copied; (5) EOIR’s referral of emails to DHS was not improper; and (6) EOIR’s “short description” of its withholdings under Exemption 5’s deliberative process privilege were insufficient to carry agency’s burden.

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

Court opinion issued Aug. 30, 2024

Stevens v. HHS (N.D. Ill.) -- finding that: (1) U.S. Customs and Border Protection performed adequate search for records concerning Congresswoman’s communications with CBP about electronic health records, and that the agency properly withheld certain records pursuant to Exemption 5 (DPP), 6, and 7(C); (2) CBP unreasonably declined to search for certain “DHS communications and related materials created by or received from other components of DHS”; and (3) CBP failed to sufficiently explain why it limited its search for certain communications with lobbyists and private companies to the recollection of a single employee within the procurement office; and (4) CBP conducted reasonable search for certain records concerning a third party and that CBP properly closed another request in the absence of a signed third party authorization form, which plaintiff failed to prove she submitted.

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

Court opinions issued Aug. 28, 2024

Louise Trauma Ctr. v. USCIS (D. Md.) -- ruling that plaintiff was eligible for attorney’s fees and costs, which the government did not dispute, and that plaintiff also was entitled to an award even though the relevant factors were equally balanced for and against plaintiff; reducing amount of plaintiff’s requested fees by 61 percent because plaintiff’s hourly rate ($620/hr.) and the number of hours billed (88) were “unreasonable.”

Kennedy Human Rights v. ICE (W.D.N.Y.) -- revisiting its order requiring ICE to produce responsive records and a Vaughn Index to plaintiff on a monthly basis and granting government’s motion to use a sample Vaughn Index representing four percent of withheld records due to the “voluminous production” (approximately 17-21k pages).

Tower v. U.S. Customs & Border Prot. (D.D.C.) -- concluding that CPB improperly relied on Exemption 6 in refusing to confirm or deny the existence of communications sent or received by a named employee (who also was an employees’ union president) that mentioned plaintiff, an agency employee and former union member; reasoning that subject’s employment status and “vocal” union activities were already publicly disclosed, and that his “quite weak” private interests were outweighed by public interest in understanding how CBP interacts with its employees’ union.

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

Court opinions issued Aug. 26, 2024

Am. Wild Horse Campaign v. BLM (D.D.C.) — in a case concerning a report on the inhuman treatment of animals under BLM care, denying the requester’s motion for fees and holding that it was neither “eligible” nor “entitled” to such fees and costs; explaining that the requester never “substantially prevailed” because the court never ordered any relief, and the requester failed to meet its burden to demonstrate eligibility under the “catalyst theory”; further explaining that the records received by the requester, which were largely “administrative” and already in the requester’s possession, would not benefit the public by increasing its awareness of government activities, and the agency had not be unreasonable in delaying production.

Reclaim the Records v. U.S. Dep't of State (S.D.N.Y.) — in a case concerning a request for the State Department’s “index” of reports concerning deaths of U.S. citizens abroad, granting the government’s motion for summary judgment and upholding its “no responsive records” response; accepting the agency’s representations that it no longer maintained a searchable index of death reports, but stored them in a system that could only retrieve discrete records “manually and one-at-a-time”; explaining that if the agency were to conduct individual search queries to provide the requester with a list of all death reports, that would entail the creation of records, and other “backend” search efforts would implicate non-responsive materials.

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