FOIA Advisor

Court opinions issued Mar. 31, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Khatchadourian v. DIA (D.D.C.) -- in dispute concerning records of task force that reviewed WikiLeaks disclosure, holding that: (1) DIA’s unprompted second-round review and production of records was not evidence of bad faith, as plaintiff asserted, but indication of agency’s commitment to FOIA compliance; (2) DIA properly withheld records pursuant to Exemption 1. Exemption 3 in conjunction with 10 U.S.C. § 424 and 50 U.S.C. § 3024, and Exemption 5 (deliberative process privilege); and (3) agency was not required to unredact names of certain task force members because agency already disclosed that information on the record.

McWatters v. ATF (D.D.C.) - - ruling that ATF properly relied on Exemptions 6 & 7(C) to withhold portions of a recording of a rock concert in which 100 people died by fire, but that it neglected to address whether the last 8 minutes of the recording, when no human voices are audible, was segregable or exempt.

Viola v. DOJ (D.D.C.) -- finding that: (1) plaintiff failed to provide sufficient new or relevant evidence to overturn decision that EOUSA performed adequate search for records concerning plaintiff’s mortgage fraud conviction; and (2) FBI performed adequate search for records concerning plaintiff’s sentencing judge and properly withheld records pursuant to Exemption 3 and 7(A), among others undisputed by plaintiff; and (3) parties were required to file joint status report or proposed briefing schedule as to FBI’s processing of records concerning former government informant.

SE Legal Found. v. DOJ (N.D. Ga.) -- deciding that DOJ performed reasonable search for records of attorney misconduct in connection with Carter Page’s FISA application, explaining that DOJ’s Mail Referral Unit reasonably forwarded request to the National Security Division and that plaintiff “accepted the inherent risk that the MRU [would] send the request to fewer or none of the components that [plaintiff believed were] relevant.”

Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs (D.D.C.) -- finding that: (1) agency did not provide sufficient information to justify its reliance on Exemption 4 to withhold agency’s draft report that included information prepared by the State of Mississippi regarding its proposed flood control project; and (2) agency could not use Exemption 5 to withhold draft report because state agency was not a “quasi-federal” agency nor a consultant.

Jackson v. DOJ (N.D. Ill.) -- concluding that FBI properly invoked Exemption 7(C) to redact faces of third parties and license plate numbers from videos pertaining to plaintiff’s arrest and beating by a Joilet police officer in 2012.

Magassa v. TSA. (D.D.C.) -- determining that: (1) plaintiff exhausted his administrative remedies by filing an administrative appeal that challenged the entirety of TSA’s response, noting that he was not required to “challenge each component of TSA’s responses individually”; (2) TSA conducted adequate search for various records pertaining to plaintiff; (3) TSA properly invoked Exemption 3 in conjunction with 49 U.S.C. § 114(r) to withhold records, as well to refuse to confirm or deny existence of records indicating whether plaintiff’s name appears on a watch list; and (4) TSA properly withheld names of third parties pursuant to Exemption 6.

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

Court opinions issued Mar. 30, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Trotter v. CMS (D.D.C.) -- holding that plaintiff was not entitled to attorneys’ fees because plaintiff failed to identify a public benefit derived from the litigation and agency acted reasonably even though court ultimately ordered minimal disclosures.

Shapiro v. SSA (D. Vt.) -- reducing requested award of attorney fees by fifty percent because plaintiff failed to submit billing records and achieved only limited success in the litigation.

Free Sacred Trinity Church v. IRS (S.D. Cal.) -- ruling that IRS was required to perform search for records pertaining to Treasury Inspector General for Tax Administration inquiry and denying, for lack of good cause, plaintiff’s bid to expedite proceedings.

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

FOIA News: Obama Library bombarded with FOIA requests

FOIA News (2015-2023)Allan BlutsteinComment

The Obama FOIA timebomb

By Alex Thompson, Josh Gerstein & Max Tani, Politico, Mar. 31, 2022 

For JOE BIDEN, there have been a lot of advantages to having once served as vice president: familiarity with the office, established relationships with powerful people, and a team of advisers with relevant experience.

But there is also a distinct disadvantage: People can dig through the archives of your prior work.

Starting on January 20, 2022 — five years since BARACK OBAMA left office — inquisitive journalists, opposition researchers, and amateur conspiracy theorists began filing a barrage of Freedom of Information Act requests (also known as “FOIAs”) to the Obama library.

Read more here.

Court opinions issued Mar. 28, 2022

Court Opinions (2015-2023)Allan BlutsteinComment

Neese v. DOJ (D.D.C.) -- determining that: (1) Office of Professional Responsibility performed adequate search for records concerning its investigation of plaintiff for professional misconduct, and (2) OPR and/or FBI properly withheld records pursuant to Exemptions 3 (grand jury material), 5 (deliberative process privilege), and 6 & 7(C), but FBI failed to meaningfully explain applicability of Exemption 7(E)

Cabezas v. FBI (D.D.C.) -- finding that FBI conducted adequate search for records concerning plaintiff’s criminal case and that it properly withheld records pursuant to Exemptions 5, 6, 7(C) and 7(E).

Informed Consent Action Network v. FDA (S.D.N.Y.) -- concluding that plaintiff’s request for certain clinical trial records was not reasonably described because it contained several latent ambiguities, and that FDA’s willingness to process broader set of records satisfied agency’s obligation to assist plaintiff.

Judicial Watch v. DOJ (D.D.C.) -- ruling that multiple components of DOJ performed reasonable searches for records concerning a 2018 meeting with Associated Press reporters, but that DOJ failed to ask EOUSA to search email account of one Assistant United States Attorney who had attended meeting at issue.

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

FOIA News: Recap of Senate FOIA hearing

FOIA News (2015-2023)Allan BlutsteinComment

'There is a big problem': Senators unite to slam FOIA compliance

The premier transparency law is hobbled by backlogs and mountains of electronic data, lawmakers are told.

By Josh Gerstein, Politico, Mar. 29, 2022

The often bitterly divided Senate Judiciary Committee had little difficulty Tuesday finding consensus that the nation’s premier transparency law, the Freedom of Information Act, isn’t working well.

“My conclusion from this is: there is a big problem,” Sen. Dianne Feinstein (D-Calif.) said during an oversight hearing on the federal government’s ongoing struggle to implement the records-access law in a timely way.

Sen. Jon Ossoff (D-Ga.) said he believes the half-century-old statute allowing journalists, advocacy groups and members of the public to request federal agency records appears to be failing to live up to its original ambitions.

Read more here.

FOIA News: Opening statements of Senate FOIA witnesses

FOIA News (2015-2023)Allan BlutsteinComment

The Department of Justice and Government Accountability Office have released the prepared remarks of their witnesses who appeared before the Senate Judiciary Committee on March 29, 2022.

Here are the prepared remarks of Bobak Talebian, Director, Office of Information Policy.

Here is the testimony of James R. McTigue, Jr., Director, Strategic Issues, Government Accountability Office.

Here is the testimony of Alina Semo, Director of the Office of Government Information Services.

FOIA News: Senate FOIA hearing on March 29, 2022

FOIA News (2015-2023)Allan BlutsteinComment

On Tuesday, March 29, 2022, the Senate Judiciary Committee will hold a hearing entitled “The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century.” Witnesses include Bobak Talebian, Director, Office Of Information Policy; Alina M. Semo, Director, Office Of Government Information Services, and James R. McTigue, Jr., Director, Strategic Issues, Government Accountability Office. Live video will be available at 10:00 AM here.