Court opinion issued Oct. 1, 2024

Mermelstein v. DOJ (E.D.N.Y.) -- holding that the doctrine of res judicata precluded plaintiff’s claim disputing the adequacy of FBI’s search for records concerning plaintiff’s conviction for medical insurance fraud, because plaintiff brought the same claim against the FBI in 2019 and lost before the district court and the Second Circuit; rejecting plaintiff’s suggestion that any new evidence became available between plaintiff’s claims, let alone that such evidence was fraudulently concealed or could not have been discovered with due diligence in the prior action.

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

Court opinions issued Sept. 25-30, 2024

September 30, 2024

Lenz v. CIA (D.D.C.) — in a case involving the same substituted requester as Stonehill v. NARA (see infra), and records related to the U.S. government’s involvement in the 1962 Stonehill raids in the Philippines, granting in part and denying in part each party’s motion for summary judgment; accepting the government’s Glomar response under Exemptions 1 and 3 as to certain portions of the request, and rejecting the requester’s “official acknowledgment” arguments; but also rejecting the adequacy of the government’s search and its segregability review; further rejecting the defendant agencies’ use of Exemptions 1, 3, 5, 6, 7(C), and 7(D) for other parts of the request; noting how the requester “already possess many of the documents that the CIA is now withholding in full” and has even uploaded them to PACER, yet the CIA “does not even address this unusual situation,” but instead relies on an inadequate Vaughn index; noting further that DOJ and IRS were collaterally estopped from asserting Exemption 5 for certain records; ordering the agencies to produce a revised Vaughn index and to begin another round of summary judgment.

Kruglov v. CBP (D.D.C.) — granting CBP’s motion for summary judgment in a case involving records about the requester’s “crossing between the United States and Mexico”; holding that the agency conducted an adequate search, despite not locating certain “fingerprint records” the requester claimed existed; holding further that the agency’s invocation of Exemptions 6 and 7(C)—although unchallenged by the requester—as well as Exemption 7(E) were appropriate; with respect to the latter, noting the scope of “techniques and procedures” must be broadly understood; ruling the agency satisfied its segregability obligations; finally, rejecting the requester’s prayer for declaratory relief regarding the alleged intentional delay of the agency’s determination absent a policy-or-practice claim.

Raw Story v. DOD (D.D.C.) — in a case concerning records about “the investigation of Jordan Duncan, a former Marine and alleged neo-Nazi,” denying the government’s motion for summary judgment and holding its Glomar response under Exemptions 1, 6, and 7(C) to be inappropriate; holding further that the agency too narrowly construed the request at issue; with respect to Exemption 1, noting a “mere reference to classified material does not mean that a record itself is necessarily classified,” and that the agency’s assertion about the potential threat to national security was inadequately supported; with respect to Exemptions 6 and 7(C), concluding the requester’s arguments about the public interest in responsive records was “substantial” and outweighed any individual privacy interests; finally, rejecting the agency’s alternative categorical invocation of Exemptions 6 and 7(C).

Outside Legal Counsel PLC v. Transp. Sec. Admin. (E.D. Mich.) — dismissing the requester’s claim under Rule 12(b)(1) as moot after TSA provided its determination and produced all records; noting, among other things, that the requester “did not move to amend its pleadings to challenge TSA’s production and asserted exemptions after [it] received” a determination letter and records, and its complaint did not otherwise allege a policy-or-practice claim.

Leytman v. United States (E.D.N.Y.) — denying a requester’s motion for reconsideration of the dismissal of his claims due to failure to exhaust administrative remedies; noting the requester “provides no arguments or assertions of fact overlooked by this Court,” and that even considering “new facts” raised in the motion, there is no basis to conclude administrative remedies were properly exhausted.

September 27, 2024

Cizek v. DOD (D.D.C.) — granting in part and denying in part each party’s motion for summary judgment in a case involving a former Air Force chaplain seeking records about an investigation into his claims of reprisal for protected whistleblower communications; holding that the agency’s invocation of Exemption 5 to withhold portions of a memorandum in response to the requester’s request for investigation was appropriate, but that it failed to make the necessary showing under the foreseeable-harm standard; noting the agency’s foreseeable-harm argument was “worthy of the criticism voiced in Reporters Committee,” namely, that it was “wholly generalized and conclusory”; further holding that the withholding of identifying information under Exemption 7(C) was justified.

Leopold v. DOD (D.D.C.) — in a ten-year-old case involving fifty FOIA requests about DOD practices at the Guantanamo Bay detention facility, denying each party’s motion for summary judgment; holding that DOD failed to demonstrate the adequacy of its search for artists’ renderings of detainees, in part because it failed to describe the search terms it employed, the files its searched, and the types of searches (i.e., physical, electronic, or both) its components undertook; holding further that DOD properly searched for other kinds of records, including videos of enteral feedings, but that additional information was needed to determine the reasonableness of the agency reviewing any portion of those videos to determine if they are actually responsive, including whether the videos would be categorically exempt under Exemptions 1 and 3, and possibly also Exemptions 6 and 7(E); with respect to the requester’s “pattern and practice claim” vis-a-vis the failure to provide estimated dates of completion, deferring judgment and asking the parties’ to address the statutory basis for the court enforcing Section 552(a)(7)(B)(ii) as to the requester and others.

September 26, 2024

Mikhashov v. DOD (D.D.C.) — in a case involving two requests for records of investigations into the requester’s continuing eligibility for a security clearance, dismissing one of the requester’s claims under Rule 12(b)(6) for failure to exhaust administrative remedies; also granting summary judgment to the agency with respect to its treatment of the second request and its withholding of “handwritten statements” and “statements from witness,” along with identifying information of military personnel, under Exemption 6.

Zimmer Biomet Holdings, Inc. v. IRS (D.D.C.) — in a case concerning records about tax examinations, rejecting the requester’s partial summary judgment motion challenging the redaction of a 63-page Appeals Case Memorandum (“ACM”); holding that IRS properly protected the ACM under Exemption 5 and the deliberative-process privilege; holding further that the agency satisfied the foreseeable-harm standard, did not waive any privilege, and conducted an adequate segregability review; finally, setting aside consideration of the agency’s Exemption 3 claim under I.R.C. § 6103(e)(7).

Stein v. CIA (D.D.C.) — after a third round of summary judgment in a case involving records about the Trump presidential campaign and transition period, granting the agencies’ motion and holding that (1) after conducting in camera review, the State Department properly withhold portions of Rex Tillerson’s security background investigation under Exemption 7(C); (2) ODNI conducted an adequate segregability review for records referred by the CIA; and (3) the FBI properly withhold portions of records related to the background investigations of Stephen Bannon and Michael Flynn under Exemptions 6 and 7(C).

September 25, 2024

Stonehill v. NARA (D.D.C.) — granting a motion to substitute the now-deceased plaintiff-requester with the co-executor of her husband’s estate, and rejecting the agency’s attempt to introduce a “clearly indicated” standard based in “FOIA [constitutional] standing doctrine” for determining in which capacity the decedent filed the request at issue; rejecting as waived the agency’s other arguments that the estate lacked standing to file a FOIA request, or that the deceased requester was unauthorized to file suit on behalf of the estate; otherwise granting the agency’s motion for summary judgment and holding its search to have been reasonable; noting, among other things, that shipping labels were not agency records, and therefore the agency did not need to search for them to conduct an adequate search.

U.S. Inventor, Inc. v. USPTO (D.D.C.) — granting the agency’s motion for summary judgment in a case concerning inter partes review proceedings involving tribal and state sovereign immunity; holding firstly that the agency’s search was adequate, and that any further search was unnecessary given the proactive provision of additional data identified by the requester; holding also that the agency correctly relied on Exemption 5 and the deliberative-process privilege and rejecting the requester’s contention that certain records reflected improper ex parte communications that could not be exempt; noting the requester’s challenge to other records was either mooted after the agency re-produced without redaction, or conceded; finally, holding that the requester’s Exemption 6 argument was similarly conceded and the agency had satisfied its segregability obligations.

Gardner v. Dep’t of Energy (D.N.M.) — dismissing a pro se requester’s complaint for failure to state a claim because he failed to demonstrate how one of the defendants—a laboratory operated and managed for the Department of Energy’s National Nuclear Security Administration by a private corporation—was a federal agency subject to the FOIA.

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

Court opinions issued Sept. 18-23, 2024

Sept. 23, 2024

First Look Media Works, Inc. v. U.S. Agency for Global Media (D.D.C.) — adopting magistrate judge’s report and recommendation that found plaintiffs ineligible for attorney’s fees because plaintiffs failed to establish that their lawsuit caused agency to change its position; taking into account that plaintiff sued after only 55 days after making its request and that agency’s delay was credibly explained by a sudden spike in requests.

Heritage Found. v. DHS (D.D.C.) — following in camera review of certain immigration records concerning the Duke of Sussex (“Prince Harry”) and associated declarations, deciding that DHS properly withheld records, or refused to confirm or deny their existence, pursuant to Exemptions 6 and 7(C); in reaching its decision, the court found that the Duke had more than a de minimis privacy interest in his immigration material despite being a public figure and that “disclosure of records about a single admission of a foreign national . . . would provide the public, at best, limited information about the Department’s general policy in admitting aliens.”

Wright v. FBI (D.D.C.) — on renewed summary judgment, concluding that it would be unduly burdensome for agency to fulfill a request for certain records concerning mosques because the responsiveness review would take 88,570 hours to 154,526 hours, respectively, and cost millions of dollars

Donahue v. NARA (D.D.C.) — concluding that NARA and the CIA performed adequate searches for records pertaining to plaintiff, a former merchant marine servicing a life sentence for sex crimes, and that the CIA properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of records whose association with the agency was classified.

Sept. 20, 2024

Project on Gov't Oversight v. DOJ (D.D.C.) — holding that DOJ properly relied Exemption 5’s attorney-client privilege to redact certain titles of Office of Legal Counsel opinions and the names of corresponding agency clients from lists of OLC opinions covering 21 years.

Grand Marina Inv'rs v. IRS (D.D.C.) — ruling that plaintiff failed to exhaust its administrative remedies with respect to multiple requests, but allowing a portion of one request to proceed because the IRS discretionarily accepted and fully processed an administrative appeal of an interim response.

Deryck v. DOD (D.D.C.) — finding, in most relevant part, that the Department of the Navy performed a reasonable search for records concerning the revocation of plaintiff’s security clearance.

Am. Civil Liberties Union v. ICE (N.D. Cal.) — concluding that electronic law library materials provided to ICE detainees were controlled by a private company, not ICE, and therefore were not agency records subject to FOIA.

Conley v. ICE (E.D. Tenn.) — determining that ICE performed an adequate search for records related to certain agreements between ICE and the Knox County Sheriff's Office, and that ICE’s processing delays and failure to adjudicate plaintiff’s request for expedition did not entitle plaintiff to any relief.

Brown v. USCIS (D.D.C.) — deciding not to dismiss plaintiff’s claim even though plaintiff filed his suit prematurely, because plaintiff subsequently amended the complaint after agency missed its response deadline; discounting government’s “slippery slope” concern that future litigants would intentionally sue in the same manner.

Sept. 18, 2024

Bierly v. DOD (D.D.C.) — concluding, in relevant part, that: (1) plaintiff failed to exhaust his administrative remedies with respect to three of six requests to the Defense Counterintelligence and Security Agency concerning the loss of his security clearance; (2) agency performed an adequate search and properly withheld certain records pursuant to Exemptions 3 (Bank Secrecy Act), 5 (DPP), 6, and 7(E).

Louise Trauma Ctr. v. DOJ (D.D.C.) — finding that plaintiff was entitled to and eligible for attorney’s fees for only one of its multiple requests, and reducing plaintiff’s proposed award to account for plaintiff’s unsuccessful work, lack of billing judgment, and excessive time spent on its fee motion.

Louise Trauma Ctr. v. Wolf (D.D.C.) — ruling that: (1) plaintiff was eligible for attorney’s fees because its litigation was the “most natural explanation for the sudden movement” on plaintiff’s FOIA requests; (2) plaintiff was also entitled to attorney’s fees, notwithstanding the government’s seemingly valid argument that plaintiff was “a front for the collection of attorney’s fees”; and (3) no award was warranted, however, because plaintiff’s time records were “vague, inadequately descriptive, or made in error,” the request was “grossly out of line with requests in similar cases, reflecting an extraordinary lack of billing judgment,” and plaintiff has been “admonished repeatedly” for engaging in the “same unreasonable and improper billing practices.”

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

Court opinion issued Sept. 13, 2024

Biddle v. DOD (D.D.C.) -- finding that “the overly brief, generalized, and technical (in part) affidavit supplied by the Department” did not enable the Court to rule on the applicability of the Department’s invocation of Exemption 3 in conjunction with 10 U.S.C. § 130e, which protects “critical infrastructure security information”; cautioning the government that it must include all exemptions it seeks to invoke in its renewed summary judgment motion and not “reserve” any of them, as it did here.

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

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.