FOIA News: Billionaires use FOIA, too (but presumably can afford to pay all fees)

Billionaire Koch Brother Files FOIA Against FBI in Crusade Against Counterfeit Wine

Am. L. Media, May 31, 2022

Bond, Schoeneck & King filed a Freedom of Information Act lawsuit against the FBI Saturday in New York Southern District Court on behalf billionaire and collector Bill Koch and wine commentator Bradley Goldstein.

The complaint, which arises from Koch’s attempts to expose alleged fraud within the international rare wine market, seeks records related to wine distributor Royal Wine Merchants and deceased wine counterfeiter Meinhard Gorke a/k/a ‘Hardy Rodenstock’ and ‘Meinhard Lehner.’

The case is 1:22-cv-04421, Koch et al v. Federal Bureau Of Investigation.

A copy of the complaint is here.

Court opinions issued May 27, 2022

Hyatt v. U.S Patent & Trade Office (D.D.C.) -- ruling that: (1) agency properly denied plaintiff’s request for waiver of fees arising from request for records concerning plaintiff’s patent applications, because plaintiff failed to show that records would advance public understanding of agency operations; and (2) administrative record did not adequately support agency’s determination that plaintiff’s request fell within commercial use fee category, and remanding to agency for further action; declining to decide whether standard of review should be de novo or “arbitrary and capricious."

Am. Oversight v. HHS (D.D.C.) -- on review of Magistrate Judge’s report and recommendation, holding that: (1) judge did not clearly err in finding that U.S. House committee was a proper defendant-intervenor and that court had subject matter jurisdiction, rejecting plaintiff’s “counter-intuitive theory“ that the Committee was required to seek injunction against government defendants; (2) judge did not clearly err in finding that HHS performed adequate search for records regarding health care reform legislation; (3) agency properly relied on Exemption 5’s consultant corollary to withhold records of communications with Congress, except for certain factual information; (4) HHS was required to submit additional affidavit clarifying with certainty whether or not talking points were adopted as the agency’s position or were later used and shared outside the agency; (5) OMB was required to disclose names of attendees and locations of meetings; and (6) judge did not clearly err in denying plaintiff’s requests for in camera review and discovery.

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

FOIA News: OGIS releases annual report

On May 26, 2022, the Office of Government Information Services released a report of its activities for fiscal year 2021, which included handling approximately 4,200 requests for assistance. OGIS also made four recommendations to Congress to improve the administration of FOIA.

Court opinions issued May 20, 2022

Crow v. IRS (D. Idaho) -- determining that IRS properly relied on Exemption 3 in conjunction with 26 U.S.C. § 6103(a) to withheld certain records concerning its investigation of plaintiff and rejecting plaintiff’s argument that instant FOIA action permitted IRS to release return information under section 6103(h)(4) of the Internal Revenue Code (authorizing release in “judicial or administrative proceeding pertaining to tax administration”).

Khullar v. Rosario (S.D. Fla.) -- finding that U.S Patent and Trademark Office performed reasonable search for disciplinary records concerning plaintiff; rejecting plaintiff’s arguments that agency’s declaration contained inadmissible hearsay, that USPTO's response to a prior FOIA request raised questions about agency’s search, and that USPTO's search was inadequate because it failed to yield three allegedly responsive documents.

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

FOIA News: Final meeting of the 2020-2022 FOIA Advisory Committee

FOIA Advisory Committee meets June 9 for final meeting of 2020-2022 term

OGIS, The FOIA Ombudsman Blog, May 23, 2022

The final meeting of the 2020-2022 term of the Freedom of Information Act (FOIA) Advisory Committee is Thursday June 9, from 10 a.m. to 1 p.m. EDT. This virtual meeting is open to the public and registration is required for those wishing to make oral public comments. Please register here by 11:59 p.m. ET on Tuesday June 7, to receive an email with instructions for accessing the meeting via WebEx. We also will livestream the meeting on the National Archives YouTube channel (with a slight transmission delay). We will monitor the chat function via WebEx and YouTube

Read more here.

FOIA News: Panel discussion on FOIA

On Friday, May 20, 2022, the National Press Club’s Journalism Institute hosted a remote panel discussion entitled “My First FOIA: Open records are for everyone.” The three panelists were: (1) Kirsten Mitchell, the compliance team lead for the Office of Government Information Services, which is the federal FOIA ombudsman, and designated federal officer for the U.S. National Archives and Records Administration’s FOIA Advisory Committee; (2) Lulu Ramadan, an investigative reporter at The Seattle Times and a distinguished fellow with ProPublica's Local Reporting Network; and (3) Mark Walker, an investigative reporter for The New York Times, where he previously was its FOIA coordinator, and the president of Investigative Reporters & Editors.

The 58-minute video is here.

Court opinion issued May 18, 2022

Schmitz v. DOD Inspector Gen. (E.D. Va.) -- holding that plaintiff’s failure to file administrative appeals from any of his three requests to DOD IG warranted dismissal of his case on exhaustion grounds; rejecting plaintiff’s arguments that appeals would have been futile and that litigation productions by a different DOD component precluded an exhaustion defense.

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

FOIA News: 2nd Circuit hears argument in Exemption 5 case

On May 18, 2022, the U.S. Court of Appeals for the Second Circuit entertained oral argument in American Oversight v. DOJ, which concerns the propriety of DOJ’s use of Exemption 5 to withhold FBI interviews related to campaign finance investigation of Michael Cohen.

The lower court’s decision is available here.

Court opinion issued May 17, 2022

Campaign Legal Ctr. v. DOJ (D.C. Cir.) -- reversing in part and remanding in part district court’s decision and concluding that draft letters and certain associated emails concerning the addition of citizenship question to 2020 Census fell within the ambit of Exemption 5’s deliberative process privilege.

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

FOIA News: Progress report at Interior Dep't

Interior seeks FOIA reinforcements amid mixed backlog progress

The agency has cut down on the number of outstanding public records requests for the secretary's office and some other agencies. Other divisions haven't seen progress.

By Michael Doyle, Politico Pro, May 16, 2022

The Interior Department’s latest Freedom of Information Act report reveals both progress and slippage on the persistent backlogs that officials hope to whittle down with the help of a budget proposal coming before Congress this week.

The progress:

In the second-quarter report of 2020, the backlogged FOIA requests at Interior’s Office of the Secretary numbered 1,863. That particular backlog has since been cut to 1,252, according to the new fiscal 2022 quarterly report published this month.

FOIA request backlogs likewise fell compared to a comparable period two years ago at Interior agencies including the Fish and Wildlife Service, Bureau of Indian Affairs, and U.S. Geological Survey, among others

Read more here.