Court opinions issued Nov. 1-5, 2024

Nov. 5, 2024

Stonehill v. IRS (D.D.C.) — in yet another case concerning the 1962 Stonehill raids, granting the plaintiff’s motion to substitute but denying its motion to set aside a 2008 judgment pertaining to search adequacy and certain exemption claims on the theory that the agency lied about missing boxes of responsive documents; holding, firstly, that the plaintiff’s motion, which seemed to arise under Federal Rule of Civil Procedure 60(b)(3), should have been filed within a year from entry of judgment (i.e., in 2009), and that any effort to recharacterize the motion as arising under Rule 60(b)(6) to avoid that time limitation is unavailing; holding further that a motion pursuant to the court’s inherent powers, while timely, cannot satisfy “the extraordinarily high standard for establishing fraud on the court” because allegations of falsely submitted declarations would constitute “fraud between the parties”; noting the plaintiff also had not established any alleged fraud “by clear and convincing evidence,” let alone shown how the court was misled by such fraud in reaching its judgment.

Buckley v. DOJ (W.D.N.Y.) — denying a motion for attorney’s fees and costs because plaintiff neither “substantially prevailed by way of a court order” nor under the so-called “catalyst theory,” if only because the agency “promptly released the records upon receipt of the necessary” Privacy Act consent forms (DOJ-361s) shortly after commencement of the lawsuit.

Nov. 4, 2024

Wash. Blade v. Dep’t of Labor (D.D.C.) — with a very lengthy opinion, granting in part and denying in part each party’s motion for summary judgment in a case concerning records about religious entity exemptions withheld under Exemption 5, in conjunction with the attorney-client and deliberative-process privileges; of most interest: (1) allowing the agency “one more chance” to “meet it burden” with respect to the claimed privileges as applied to certain records, such as draft responses to congressional inquiries; (2) rejecting the agency’s use of privilege with draft press releases “adopted” by decision-makers; (3) clarifying the deliberative-process privilege extends to communications about any “matter within the agency’s managerial, organizational, or administrative ambit,” including the drafting of responses to inquiries from non-profit organizations; (4) also clarifying that Exemption 5 cannot be used to withhold communications providing guidance on how to resolve novel issues in a definitive way, because the “working law” exception applies even to "routine” matters; (5) rejecting the deliberative-process privilege vis-à-vis employee “reactions” to a press release that otherwise involved no “recommendations” about “how best to preserve or promote the Department’s goals or responsibilities”; (6) rejecting the attorney-client privilege as applied to records containing legal advice that were not subsequently kept confidential, or which merely included a lawyer on a communication that did not seem to involve any request for legal advice, or which merely constituted a “summary of verbal communication” from an agency attorney; (7) with respect to foreseeable harm, deciding that some of the agency’s analysis pertaining to records withheld under the deliberative-process privilege was “cursory,” “barely sufficient,” or “just shy of what is required,” and directing the agency to “tak[e] the time to offer more complete explanations” in the future; and, finally, (8) summarizing relevant caselaw and articulating a standard for foreseeable harm in the context of the attorney-client privilege, while also concluding the agency had failed to satisfy that standard in this case due to its “open-ended” and incomplete descriptions of supposed harms that even hinted disclosure “might pose no risk at all.”

Nov. 1, 2024

Documented v. DHS (D.D.C) — denying the government’s motion for reconsideration of an order directing DHS to disclose a memo designating Somalia for Temporary Protected Status (“TPS”) because the agency “failed to articulate, with reasonable specificity, a foreseeable harm that would likely result from its disclosure”; explaining how “the agency's summary judgment briefing and declarations provide no reason to believe that Somalia's TPS designation, or TPS designations in general, are so peculiarly controversial that agency personnel would rather eschew candid discussion than risk public disclosure of their deliberations”; explaining further that, “[i]f the abstract threat that a record may be used in future litigation were enough by itself to satisfy FOIA's foreseeable harm requirement, that requirement would be reduced to a nullity”; finally, admonishing DHS to raise its strongest and most pointed arguments against disclosure from the outset, rather than relying on “boilerplate, unparticularized, and hypothesized” predictions of future harm.

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

Court opinions issued Oct. 29-31, 2024

Oct. 31, 2024

Leopold. v. Def. Intelligence Agency (D.D.C.) — in a case involving the redaction of two email messages responsive to a request concerning Michael’s Flynn’s tenure at DIA and as a subject to Special Counsel Mueller’s investigation, denying each party’s motion for summary judgment; holding that the technical requirements for use of Exemption 5 and the deliberative-process privilege were satisfied; yet concluding the DIA’s foreseeable harm analysis was inadequate because the agency did not adequately explain how disclosure would interrupt or chill internal deliberations over official travel decisions; noting how the Court “is hesitant” to order the documents produced, given the potential “impact [on] foreign relations with one this country’s closest allies,” and thus providing DIA with the opportunity to file a supplemental declaration concurrent with in camera review of the email records at issue.

Oct. 29, 2024

Am. First Legal Found. v. FBI (D.D.C.) — granting the government’s motion for summary judgment in a case concerning records of the FBI’s background investigations into DHS Secretary Alejandro Mayorkas; holding, firstly, that the agency’s search was adequate given the detailed nature of the FBI’s “61-page affidavit” and, in so doing, rejecting the requester’s contention that the FBI was required to search email accounts when email correspondence was not specified in the request; relatedly concluding that the agency had not improperly narrowed the timeframe of its search; holding, further, that the FBI properly withheld records on a categorical basis under Exemptions 6 and 7(C), and that the requester offered only “bare suspicion” of why disclosure would serve the public interest by, among other things, demonstrating legal or ethical violations on the part of Secretary Mayorkas or other government officials; finally, holding that the FBI demonstrated compliance with the FOIA’s segregability requirement.

Heritage Found. v. Dep’t of State (D.D.C.) — denying the requesters’ motion for a preliminary injunction requiring expedited processing and completed disclosure of non-exempt records “by October 25, 2024” in a case involving records related to Ukrainian President Volodymyr Zelensky’s visit to an American munitions plant; holding that the requesters “have not established that the records they seek are so central or highly relevant to the electoral choice voters will make . . . or essential to the integrity of the election, that a preliminary injunction is needed to avoid irreparable harm”; holding further that the requesters otherwise “cannot rely only on a statutory entitlement to expedited processing to show [the] irreparable harm” required for preliminary injunctive relief.

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

Court opinions issued Oct. 25, 2024

Sherven v. CIA (W.D. Wis.) — granting the CIA’s motion for summary judgment in a case brought by a pro se requester for records about himself; holding that the agency properly refused to search for records responsive to several items of the request on grounds that responsive records, if they existed, would be exempt under Exemptions 1 and 3; noting that, while “[t]he CIA could have been more specific in its explanation,” “[c]ourts must defer to agencies on issues of national security”; declining to conduct in camera review because, in a searchless Glomar case, that would require the agency to actually “confirm that there are responsive documents.”

Howell v. DHS (D.D.C.) — denying plaintiffs’ motion for a preliminary injunction requiring expedited disclosure of communications between Vice President Harris and Customs & Border Protection related to the “southwest border or illegal immigration”; holding that the “Plaintiffs fall far short of a preliminary injunction’s high bar,” are “unlikely to succeed on the merits,” “failed to exhaust FOIA administrative processes” by failing to respond at the outset to DHS’s request for clarification, and anyway “advance dubious claims of irreparable harm and the public interest”; elaborating that “the Court will not compel DHS to prioritize Plaintiffs’ vague, noncompliant request above the 125,000 FOIA requests in its backlog, or even the smaller number of cases in its expedited processing queue,” particularly since “Plaintiffs have already successfully sought information about the issue they claim is now so urgent, and their premature attempt to return to this Court with a highly similar request borders on the vexatious.”

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

Court opinion issued Oct. 21, 2024

Envtl. Policy Inst. v. TVA (E.D. Tenn.) -- ruling that: (1) in response to request concerning agency’s involvement with a law firm and three outside organization: (a) agency properly withheld certain records pursuant to Exemption 4 and met the foreseeable harm requirement because disclosure would give competitors access to confidential business information; noting that the government was not required to provide a “detailed forecast of every possible harm; rather, the . . . requirement separates information whose disclosure is of little consequence from information whose disclosure could reasonably cause harm”; (b) agency properly withheld names, direct telephone numbers, mobile phone numbers, and email addresses pursuant to Exemption 6; and (2) agency properly redacted agency’s insurance policies for coal-fired power plants pursuant to Exemption 4 and met the foreseeable harm requirement.

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

Court opinion issued Oct. 17, 2024

Energy Policy Advocates v. SEC (D.D.C.) -- ruling that: (1) agency performed an adequate search for SEC communications with two organizations regarding the agency’s proposed climate rulemaking, an issue that plaintiff did not dispute; (2) agency properly relied on Exemption 4 to withhold organizations’ billing rates, labor categories, project structure information, strategic development goals, and plans concerning product costs; SEC concretely explained how disclosure would provide an advantage to organizations’ competitors, which satisfied foreseeable harm requirement; and (3) SEC properly withheld certain information under Exemption 5’s deliberative process privilege, and it provided “focused and concrete” explanations how disclosure would chill future agency deliberations and cause “harmful confusion” to the public.

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

Court opinion issued Oct. 15, 2024

Jimenez v. DHS (11th Cir.) -- affirming district court’s decision that various DHS components performed adequate searches for records concerning the revocation of plaintiffs’ visa, and that they properly withheld certain records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act, 8 U.S.C. § 1202(f); rejecting plaintiff’s arguments that DHS’s declarations violated the “best evidence rule in Federal Rule of Evidence 1002,” and that several instances of inconsistent processing rebutted the presumption of good faith accorded to those declarations.

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

Court opinion issued Oct. 7, 2024

Stevens v. ICE (N.D. Ill.) -- determining that: (1) plaintiff failed to exhaust her administrative remedies with respect to several requests for immigration-related records to two DHS components; (2) ruling that seven agencies performed adequate searches for immigration-related records, rejecting plaintiff’s contentions that the agencies were required to describe its general file systems and that the government’s declarations failed to specify the search terms used; (3) USCIS properly withheld records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act; ICE properly relied on Exemption 4 to withhold contract pricing information from order for services and supplies; USCIS and the Executive Office for Immigration Review properly withheld records pursuant to Exemption 5; ICE and EOIR properly withheld third-party information pursuant to Exemption 6; ICE properly withheld records pursuant to Exemption 7(C); and the Department of State properly relied on Exemption 7(E) to withhold records related to a passport fraud investigation.

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

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.