FOIA Advisor

FOIA News: Gov't defends Glomar response re Trump's alleged declassification order

FOIA News (2015-2023)Allan BlutsteinComment

Gov't Seeks Toss Of FOIA Suit Over Trump Docs Tied To Raid

By Ivan Moreno, Law360, Feb. 7, 2023

The U. S. government asked a Massachusetts federal judge to toss a lawsuit seeking records regarding former President Donald Trump's purported standing declassification order for documents he took from the Oval Office, saying merely acknowledging whether such materials exist would compromise an ongoing investigation. . . .

Read more here (access with free trial subscription)

A copy of the complaint in ACLU v. CIA, No, 22-cv-11532 (D. Mass) is here.

Court opinions issued Feb. 6, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

Adams v. CIA (D.D.C.) -- on renewed summary judgment, ruling that CIA properly relied on Exemption 1 and 3 in refusing to confirm or deny the existence of records pertaining to plaintiff in its classified databases.

WP Co. v. DHS (D.D.C.) -- determining that plaintiff was eligible for and entitled to attorney’s fees and costs in case concerning agency payments to Donal Trump-owned properties, but reducing requested award from $91k requested to $55k for excessive and unproductive hours billed.

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

FOIA News: Yale Journal on Regulation Highlights D.C. Circuit FOIA Decision

FOIA News (2015-2023)Ryan MulveyComment

D.C. Circuit Review - Reviewed: Who Needs Deference?

Yale J. on Reg., Notice & Comment, Feb. 6, 2023

[. . .] Last, but certainly not least for those who support access to government information: The court rejected (for now) the government’s attempt to withhold certain records related to its procurement of pentobarbital for lethal injections. In brief, the main issue before the court in Citizens for Responsibility and Ethics in Washington v. DOJ, No. 21-5276 (D.C. Cir. Jan. 31, 2023), was whether the suppliers’ names and certain contract terms (like the drugs’ prices and quantities, unconnected to supplier names) qualified under Exemption 4, which covers trade secrets and confidential commercial information. With Judge Pillard writing (joined by Judge Childs), the court held that the government had not shown (at the summary judgment stage) that the names themselves were “commercial” (though the parties agreed the names were confidential) or that the contract terms were confidential because their disclosure would necessarily reveal the suppliers’ names. The government gets an opportunity to try again on remand. Judge Sentelle concurred in the judgment, agreeing that the government had not yet met its burden, but expressing some skepticism of the panel’s interpretation of the word “commercial.”

Read more here.

FOIA News: Communicate plainly (but not like a child)

FOIA News (2015-2023)Allan BlutsteinComment

FOIA Communication: Keep it Simple!

Office of Gov’t Info. Serv., FOIA Ombudsman, Feb. 1, 2023

Plain language has long been an interest of ours as we have observed that clear, concise and well-organized correspondence smoothes the FOIA process for all. After we put plain language on our 2022 holiday wish list, we’re pleased that the Center for Plain Language included FOIA webpages in its 11th annual Report Card on how well agencies follow the 2010 Plain Writing Act. 

The nonprofit group graded the “contact us” and main FOIA request pages for 21 agencies, including all 15 Cabinet-level departments.

Read more here.

Court opinions issued Jan. 31, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.C. Cir.) -- reversing and remanding district court’s decision and concluding that: (1) agency failed to establish that the names of companies that supply the government with a drug used for lethal injections qualify as “commercial” information under Exemption 4; and (2) agency failed to show how certain “key contract terms” were “confidential” under Exemption 4.

Sherven v. Privacy & Civil Liberties Oversight Bd. (D.D.C.) -- dismissing case because plaintiff neglected to file an administrative appeal with agency after receiving agency’s final determination.

Sabra v. U.S. Customs & Border Prot. (D.D.C.) -- granting government’s renewed summary judgment motion after finding that CBP conducted adequate search for records concerning plaintiff and that it properly withheld records pursuant to Exemptions 5 (attorney work product), 6, 7(C), 7(E), and 7(F).

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

FOIA News: DC Circ. Revives FOIA Suit Seeking Execution Drug Info

FOIA News (2015-2023)Kevin SchmidtComment

DC Circ. Revives FOIA Suit Seeking Execution Drug Info

By Micah Danney, Law360, Jan. 31, 2023

The D.C. Circuit found Tuesday that the U.S. Bureau of Prisons wrongly refused to reveal the names of suppliers of a lethal injection drug to the nonprofit group Citizens for Responsibility and Ethics in Washington, reversing a lower court's ruling that their identities were protected commercial information.

Read more here (subscription).

FOIA News: More annual reports

FOIA News (2015-2023)Allan BlutsteinComment

On January 24, 2023, we posted more than two dozen agency FOIA reports for fiscal year 2022. Below are several more reports that we have located over the past week.