FOIA News: DOJ gives up FOIA fight, releases advisory memo re: Trump

Justice Department releases Mueller-era memo on Trump prosecution

Two top aides to then-Attorney General William Barr said Trump’s acts wouldn’t have merited obstruction charges even if he were not immune as president.

By Josh Gerstein & Kyle Cheney, Politico, Aug. 24, 2022

The Justice Department has released a long-sought legal memo arguing that then-President Donald Trump’s actions during special counsel Robert Mueller’s Trump-Russia investigation did not warrant prosecution for obstruction of justice, even if a president was susceptible to criminal charges while in office.

In the nine-page memo disclosed Wednesday, two of the most senior officials in the Justice Department advised then-Attorney General William Barr that Trump’s threats to fire Mueller and his various public and private outbursts against witnesses he viewed as hostile or unhelpful to him didn’t amount to the sort of case prosecutors would bring under their established standards.

Read more here.

Court opinion issued Aug. 23, 2022

Scoville v. U.S. Dep’t of State (E.D. Wis.) -- ruling that plaintiff’s Complaint alleged sufficient facts to state plausible “policy and practice” claim, noting that agency allegedly failed to comply with plaintiff’s FOIA requests on six occasions from 2014 to 2021.

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

FOIA News: Using FOIA to Compel Federal Agencies to Prove Claims

Using FOIA to Compel Federal Agencies to Prove Claims

Siri & Glimstad LLP, Bloomberg Law, Aug. 23, 2022

A group of scientists and medical researchers successfully sued the FDA under FOIA to force the release of documents related to licensing of the Pfizer-BioNTech Covid-19 vaccine earlier this year. Siri & Glimstad attorneys, who represent the plaintiffs in the lawsuit, discuss how FOIA can be used to compel government authorities to release data the public can then use to evaluate the veracity of government claims.

Read more here.

FOIA News: OIP updates Exemption 6 of FOIA Guide

On August 19, 2022, the Department of Justice’s Office of Information Policy posted an updated version of Exemption 6 of its Guide to the Freedom of Information Act.

FOIA News: Appointments made to 2022-2024 FOIA Advisory Committee

The National Archives and Records Administration has announced the names of the government and non-government members who will serve on the 2022-2024 term of the Freedom of Information Act Advisory Committee. See the 20-person roster here.

Court opinions issued Aug. 19, 2022

Transgender Law Ctr. v. ICE (9th Cir.) -- holding that: (1) agencies must prove adequacy of search “beyond material doubt” and that district court erred in finding that DHS adequately searched or records pertaining to asylum-seeker’s death from HIV in federal custody; (2) district court should not have “essentially treated all drafts as necessarily covered by the deliberative process privilege”; (3) district court erred in permitting government to withhold email domain addresses under Exemptions 6 and 7(C); (4) government’s use of Exemption 7(E) was overbroad and district court neglected to analyze whether withheld records were techniques and procedures, and not guidelines; and (5) district court failed to ensure that government’s Vaughn Index entries were non-conclusory, that government explained why documents were not segregable, and that government properly designated certain documents as non-responsive or duplicates.

Citizens for Responsibility & Ethics in Wash v. DOJ (D.C. Cir.) -- affirming district court’s decision that DOJ failed to adequately explain how agency memorandum to Attorney General Barr concerning Mueller Report fell within Exemption 5’s deliberative process privilege; declining to decide whether “a purely hypothetical, academic discussion among agency personnel could qualify under the . . . privilege”; refusing to allow DOJ to present a new argument that memorandum was drafted “for the purpose of determining the content of a possible public statement regarding the report.”

Asian Am. Advancing Justice v. DHS (N.D. Cal.) -- determining that Immigration and Customs Enforcement properly relied to on Exemption 7(E) to redact memorandum of understanding concerning Vietnam’s acceptance of certain Vietnamese citizens.

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

Court opinion issued Aug. 17, 2022

Occupational Safety & Health Law Proj. v. DOL (D.D.C.) -- in case involving request for company’s settlement agreement, ruling the government met its burden for the "commercial" and "obtained from a person" requirements of Exemption 4, but that had not carried burden as to the confidentiality prong of Exemption 4, foreseeable harm, or segregability.

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

FOIA News: Legal status of the Smithsonian

WHY SENATOR GRASSLEY’S SMITHSONIAN FOIA (Freedom of Information Act) REFORM BILLS FAILED

By Julian Raven, EIN News, Aug. 18, 2022

On the floor of the Senate in 2007, Senator Grassley proclaimed that ‘Many people would naturally think that the Smithsonian is subject to FOIA (the Freedom of Information Act) and must comply with requests. I know that I believed it was, especially given that taxpayer funds make up 70 percent of its budget.” Grassley’s confession is the first step in admitting that there is a glaring problem with the Smithsonian Institution. That problem is a crisis of identity, a confusion as to what the Smithsonian Institution’s entity status is. As a result, a legal dilemma has been left untamed, bewitching even the esteemed Senator Grassley and others.

Read more here.

FOIA News: Contractors notified about FOIA request for EEO-1 data

FOIA request prompts feds to ask: Should contractors’ EEO-1 data be made public?

Affected contractors have until Sept. 19 to object to the release of Type 2 Consolidated EEO-1 reports between 2016 and 2020, OFCCP said.

By Ryan Golden, HRDive, Aug. 18, 2022

Federal contractors that would object to the public release of Type 2 Consolidated EEO-1 reports filed between 2016 and 2020 will have 30 days to submit comments to the Office of Federal Contract Compliance Programs, the agency said in a notice released Thursday.

The agency said the notice, scheduled to be published in The Federal Register on Friday, is in response to a Freedom of Information Act request seeking a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” from 2016 to 2020.

Read more here.

FOIA News: State Dep't withholds names of Kerry's staff

John Kerry’s office redacted every staffer name in FOIAed correspondence

Kerry's office has been secretive in its operation

The office of Special Presidential Envoy for Climate John Kerry redacted each of the names and emails of their staffers in emails obtained through a Freedom of Information Act (FOIA) request.

Fox News Digital obtained the documents from government watchdog Protect the Public’s Trust (PPT), which revealed the correspondence between Kerry’s office and several recipients, including nearly 20 climate change groups.

PPT was only able to obtain the documents after suing Kerry’s office over unfulfilled FOIA requests. However, the emails have every staffer’s name and email redacted.

Read more here.