FOIA News: FOIA Advisory Committee hosts expert panel to discuss FOIA challenges

NARA’s Federal FOIA Advisory Committee held its most recent meeting on December 1, 2022. As part of the meeting, the Committee hosted a special panel of experts, who discussed complex FOIA requests and litigation. The panelists were Anne Weismann, formerly of Citizens for Responsibility and Ethics in Washington; Katie Townsend, Reporters Committee for Freedom of the Press; and Ryan Mulvey, Americans for Prosperity Foundation (and contributor at FOIA Advisor).

A recording of the meeting is available here on YouTube.

The panel discussion begins roughly at the 18’ 30” mark.

Court opinions issued Nov. 30, 2022

Immerso v. DOL (2nd Cir.) (unpublished) -- affirming district court’s “well-reasoned” decision that plaintiff was not entitled to discovery and concluding that district court did not abuse its discretion by imposing filing sanctions on plaintiff and her attorney.

Berk v. Exec. Office of United States Attorneys (5th Cir.) (unpublished) -- affirming district court’s decision that multiple agencies performed reasonable searches for records concerning plaintiff’s prosecution and properly withheld certain records; further affirming district court’s ruling that plaintiff was not entitled to appointment of counsel.

Farahi v. FBI (D.D.C.) --ruling that: (1) FBI properly relied on Exemption 7(A) to withhold records pertaining to plaintiff’s immigration removal proceedings, but agency’s 2019 ex parte declaration was now outdated on the issue of whether enforcement proceedings remained pending or reasonably anticipated; and (2) for reasons that could not be stated on public record, FBI needed to provide additional information to the court in order to satisfy statute’s segregability requirements.

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

Court opinions issued Nov. 28, 2022

Ryan, LLC v. U.S. Dep't of Interior (5th Cir.) -- in reverse-FOIA case concerning tax adviser’s “formula” for recovering overpaid royalties, vacating and remanding district court’s decision after concluding that district court and agency did not “fully explore the record or the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019).”

Shem-Tov v. DOJ (D.D.C.) -- dismissing case for failure to prosecute because plaintiff, who sought records to defend herself in her criminal trial in Israel, neglected to contact the court for nearly five months and disregarded three court orders during that time period.

Competitive Enter. Inst. v. Podesta (D.D.C.) -- dismissing two defendants from case, John Podesta and the National Climate Task Force, because neither are agencies subject to FOIA.

Accuracy in Media v. DOD (D.D.C.) -- in case involving records related to the 2012 attack on the United States Embassy in Benghazi, Libya, adopting magistrate judge’s report and recommendation finding that: (1) DOD performed adequate search for records and properly withheld 12 pages of maps pursuant to Exemption 1; (2) CIA properly relied on Exemption 3 in conjunction with the CIA Act of 1949 and National Security Act of 1947 to withhold records related to a complaint sent to CIA’s Inspector General; and (3) issue of FBI’s Glomar response was moot because FBI agreed to search for requested records after the magistrate issued his recommendation.

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

FOIA News: New Academic Commentary on Campaign Legal Center v. DOJ

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part I)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 27, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). The case might be described as the Freedom of Information Act (“FOIA”) addendum to Department of Commerce v. New York, —U.S. —, 139 S. Ct. 2551 (2019). This series of posts discusses the rarely referenced “government misconduct” exception to the deliberative process privilege and its applicability to the communications sought in Campaign Legal Center v. DOJ.

Read more here.

Court opinions issued Nov. 22-23, 2022

Nov. 23, 2022

Democracy Forward Found. v. DOJ (D.D.C.) -- adopting magistrate’s report and recommendation finding that EOUSA adequately searched for records of communications with Trump Transition Team, except for agency’s failure to actually search for emails records of certain employees rather than merely asking those employees whether requested communications exist.

Nov. 22, 2022

Wattleton v. DOJ (D.D.C. ) -- determining that EOUSA performed adequate search for records indicating whether any individuals or entities accessed case information from various databases related to plaintiff’s criminal prosecution.

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

FOIA News: FOIA Advisory Committee meeting Dec. 1, 2022

The FOIA Advisory Committee will meet remotely on Thursday, December 1, 2022, from 10am to 12:30pm. Meeting materials and registration details are available here.

Court opinions issued Nov. 21, 2022

Clemente v. FBI (D.D.C.) -- granting FBI’s unopposed motion for summary judgment after finding that: (1) FBI performed adequate search for records related to Jeffrey Epstein and his alleged criminal activities; and (2) FBI properly withheld records pursuant to Exemptions 1, 3, 5, 7(A), 7(C), 7(D), and 7(E), and that it also properly withheld records previously sealed by court order.

Dalal v. DOJ (D.D.C.) -- in case concerning records of plaintiff’s antisemitic crimes, ruling that: (1) FBI’s search was not entirely adequate because it failed to explain why it would be unduly burdensome to search Special Agent’s informant files; (2) FBI properly withheld records pursuant to Exemptions 1, 3, 7(C), 7(D), 7(E), and Exemption 5’s attorney work-product and attorney-client privileges, but it improperly relied on Exemption 5’s deliberative process privilege and Exemption 7(A); (3) EOUSA conducted an adequate search, properly withheld records pursuant to Exemption 3 and attorney work-product privilege, and failed to show that Exemption 7(C) protected a search warrant application in full; and (3) FEMA conducted an adequate search, properly withheld records pursuant to Exemption 6, and failed to establish the applicability of Exemption 7(E).

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

Court opinion issued Nov. 18, 2022

Nat'l Ass'n of Minority Veterans v. U.S. Dep't of Veterans Affairs (D.D.C.) -- ruling that correspondence between the parties after litigation commenced concerning the scope of plaintiff’s request was not an improper attempt by plaintiff to expand request, and therefore the agency was required to justify the withholdings that it had made in the course of processing plaintiff’s modified request.

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

FOIA News: DOJ unveils redesigned website for OIP

The Office of Information Policy has an updated website as of November 15, 2022, which includes a version in Spanish.

FOIA News: Trouble at the Park Service?

Park Service Lack of Transparency Created Its Huge FOIA Backlog

By Jeff Ruch, Pub. Employees for Envtl. Responsibility, Nov. 18, 2022

The National Park Service is drowning in unanswered Freedom of Information Act requests. According to the Interior Department’s latest quarterly report, NPS led all other Interior agencies in both new requests and in its backlog of 1,421 unprocessed requests.

This backlog has nearly doubled during the past two years while both the number of requests the Park Service received and its backlog continue to spiral up with each passing month.

By contrast, the Fish & Wildlife Service, which manages more than 500 wildlife refuges and has significant regulatory and enforcement responsibilities (e.g., administering the Endangered Species Act), currently has a backlog of only 347 requests, less than a quarter that of NPS, and that backlog is shrinking while the Park Service’s continues to swell.

What explains the difference?

Read more here.