FOIA News: FOIA Advisor staff in the public eye

Although the staff of FOIA Advisor is focused on reporting new FOIA developments, we occasionally make the news ourselves in connection with our other FOIA (and non-FOIA) activities. Below is a list of our appearances in the news media during the first quarter of calendar year 2023.

• Ryan Mulvey & Kevin Schmidt, “Federal officials keep using personal emails for government duties,” NY Post, Mar. 18, 2023, Op-ed.

• Sara Fischer, “Government struggles with record FOIA boom,” Axios, Media Trends, Mar. 14, 2023 (quoting Allan Blutstein).

• Kevin Schmidt & Thomas Kimbrell, “Covid Exposed the Damage Done by Certificate-of-Need Rules,” Wall St. J., Feb. 24, 2022, Op-ed.

• Chris Brennan, “Top GOP researcher probing mayoral race,” Philadelphia Inquirer, Feb. 17, 2023 (discussing Allan Blutstein’s public records requests).

• Kevin Bogardus, “EPA shutters public records portal,” Greenwire, Feb. 13, 2023 (quoting Allan Blutstein) (full article here).

  Kevin Bogardus, “EPA eyes FOIA tweaks to boost environmental justice,” Greenwire, Jan. 20, 2023 (quoting Allan Blutstein) (full article here).

Court opinions issued Mar. 29, 2023

Gannett Satellite Info. Network v. DOJ (D.D.C.) -- in case apparently of first impression, holding that DOJ could not rely on Exemption 3, in conjunction with Omnibus Crime Control and Safe Streets Act of 1968, to withhold statistics concerning deaths of individuals in custody that were reported by states to DOJ in compliance with the Death in Custody Reporting Act of 2013.

Hand v. DOJ (D.D.C.) -- determining that FBI properly relied on Exemption 7(C) in refusing to confirm or deny existence of communications between a retired FBI Special Agent and DOJ personnel concerning the criminal investigation and prosecution of plaintiff.

Connell v. CIA (D.D.C.) -- concluding that CIA properly relied on Exemption 1 and 3 in issuing Glomar response to request for certain records concerning Guantanamo Bay detention facility, rejecting plaintiff’s argument that declassified records constituted a public acknowledgment of existence of requested records.

Scarlett v. Nat’l Sci. Found. (D.D.C.) -- ruling that: (1) Office of Inspector General’s declaration did not adequately explain agency’s search methodology in response to request for complaints concerning plaintiff’s company; and (2) OIG’s declaration did not sufficiently address whether responsive records withheld under Exemptions 7(A) and 7(C) were compiled for law enforcement purposes; and (3) agency properly invoked Exemption 6 to withhold employee names, email addresses, and signatures, but it did not adequately explain what “identifying information” it withheld from the body of a responsive complaint.

Black Hills Clean Water Alliance v. U.S. Forest Serv. (D.S.D.) -- finding that: (1) agency performed reasonable search for records pertaining to exploratory gold mining in Clack Hills National Forest and that agency was not required to extend its initial search cut-off date for supplemental searches; (2) agency properly withheld records pursuant to Exemption 5’s attorney-client and deliberative process privileges and Exemption 6; and (3) agency’s transmittal of responsive records via file-sharing website was compliant with plaintiff’s formatting request, which allowed for “‘other electronic media’ in whatever way was ‘most expeditious.’”

Yim v. NIH (D.N.J.) (unpublished) -- deciding that: (1) agency’s recitation of its “standard review process” for handling FOIA requests was sufficient to establish adequacy of its search for COVID Guideline updates that agency had posted on its website; and (2) plaintiff could not expand scope of his request in litigation.

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

FOIA News: Momentum building to extend FOIA to Fed reserve banks

By Zach C. Cohen, Bloomberg, Mar. 30, 2023

Senate’s Push for Fed Transparency Gains Support After Bank Failures

Support is growing in Congress for imposing greater transparency requirements on the Federal Reserve as the central bank faces increasing scrutiny for its response to recent bank failures.

Senators Thom Tillis, a Republican from North Carolina and Elizabeth Warren, a Democrat from Massachusetts, plan to introduce legislation that would subject the Fed to the Freedom of Information Act. A copy of the bill was obtained by Bloomberg News.

“Because of the SVB failure, more people have seen the direct consequences of regulators who take their eye off the ball, and work for the industry instead of on behalf of the public,” Warren said in a brief interview on Capitol Hill.

The Fed’s 12 regional branches are currently exempt from public records requests because they are quasi-private. The proposal would remove that barrier by having them considered federal agencies for the purposes of a FOIA request from a member of Congress

Read more here.

Court opinions issued Mar. 28, 2023

Blevins v. ATF (W.D. Wash.) -- ruling that ATF performed adequate search for plaintiff’s initial request for records concerning plaintiff’s criminal case and use of a firearm, and therefore the agency was justified in declining to perform a duplicative search in response to plaintiff’s subsequent request for narrower set of duplicative records.

Schaefer v. EPA (D.D.C.) -- finding that EPA performed reasonable search for records concerning plaintiff’s criminal case and that it properly redacted record pursuant to Exemptions 5 (DPP), 6, and 7(C).

Louise Trauma Ctr. v. DOJ (D.D.C.) -- on renewed summary judgment in case concerning Office of Immigration Litigation training materials for appellate lawyers, concluding that: (1) with minor exceptions, agency properly relied on Exemption 5’s attorney work-product privilege to withold records, the vast majority of which were “training materials discussing arguments or strategies that DOJ attorneys adopt or consider in particular situations”; further concluding that agency met foreseeable harm requirement; (2) agency’s attorney-client privilege claims were deficient because agency failed to explain on how communications rested on “confidential information obtained from the clients”; and (3) agency did not justify its use of the deliberative process privilege, which in any event the agency deemed a “superfluous” claim.

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

Court opinions issued Mar. 27, 2023

Vanda Pharm. v. FDA (D.D.C.) -- concluding that even if agency’s clinical review of pending new drug application fell within Exemption 5’s deliberative process privilege, agency failed to meet statute’s foreseeable harm requirement; reasoning that: (1) disclosure would not likely chill deliberations because underlying reviews are required to be published in NDA is ultimately approved; and (2) FDA’s concern that drug manufacturer might use records to mislead public and medical practitioners was too speculative to meet foreseeable harm requirement.

Carpezzi v. DOJ (M.D. Fla.) -- determining that: (1) FBI performed reasonable search for records concerning plaintiff, who believed his email was hacked by the government (among other things); and (2) FBI properly withheld identities of employees under Exemption 7(C), as well as sensitive investigation number and database identifier under Exemption 7(E).

Anand v. HHS (D.D.C.) -- determining that: (1) DEA performed adequate search for records underlying co-plaintiff’s indictment for health care fraud and distribution of controlled substances, and (2) criticizing pro se plaintiffs for repeatedly violating numerous rules and Court orders with respect to their litigation filings.

Annand v. HHS (D.D.C.) determining that HHS OIG performed adequate search for records underlying co-plaintiff’s indictment for health care fraud and distribution of controlled substances; (2) even though portion of co-plaintiff’s request was too vague, HHS failed to follow agency regulation requiring agency to clarify request; and (3) criticizing pro se plaintiffs for repeatedly violating numerous rules and Court orders with respect to their litigation filings.

Immigrant Legal Advocacy Project v. ICE (D. Me.) -- finding that agency performed adequate search for various records concerning agency’s use of a county jail, except for certain policy documents.

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

Court opinions issued Mar. 23, 2023

Americans for Fair Treatment v. USPS (D D.C.) -- concluding that: (1) plaintiff lacked standing to challenge FOIA regulation that did not allow an appeal to the head of the agency himself, because plaintiff did not allege sufficient risk of future harm; (2) USPS did not perform adequate search for records concerning a COVID-related “Privacy Statement” on its website; (3) USPS failed to delineate its Exemption 5 withholdings, failed in part to adequately explain its attorney-client privilege withholdings, and failed to provide specific foreseeable harm justifications.

Pickering v. DOJ (W.D.N.Y.) -- (1) adopting magistrate’s report and recommendation (“R&R”) that ATF and FBI performed adequate searches, and that FBI properly withheld disputed records; and (2) rejecting R&R’s conclusion that plaintiff improperly sued DHS rather than its component agencies and remanding for further proceedings.

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

Court opinions issued Mar. 22, 2023

Ghinis v. USCIS (M.D. Fla.) -- determining that agency’s search was deficient because it provided “undetailed and conclusory” explanation for why it believes plaintiff’s Alien file is lost; noting that plaintiff provided documentary evidence that requested records could be in two field offices that agency did not search.

Kurzban v NSA (S.D. Fla.) -- finding that: (1) DIA and FBI performed adequate searches for records concerning plaintiffs; (2) NSA and CIA properly refused to confirm or deny the existence of certain records pursuant to Exemption 1 and 3; and (3) FBI properly withheld certain record pursuant to Exemptions 1, 3, 6, 7(A), 7(D), and 7(E).

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

Court opinions issued Mar. 21, 2023

Energy Policy Advocates v. Dep’t of the Interior (D.D.C.) -- deciding that: (1) agency performed adequate search for calendar and meeting records of agency senior advisor, noting that agency was not required to search for in-meeting chats on Zoom, which the agency did not control; (2) agency properly relied on Exemption 6 to withhold personal email addresses, email addresses of White House, EOP, DOD, and DHS employees, and a cell phone number; and (3) agency’s generic, boilerplate explanations for its deliberative process privilege claims did not “even come close” to meeting its burden, nor did agency’s justifications for relying on the presidential communications privilege.

Akel v. DOJ (D.D.C.) -- ruling that Executive Office for U.S. Attorneys performed adequate supplemental search for certain archived emails pertaining to plaintiff’s criminal case, but that it neglected to adequately explain its search methods in response to broader, second request.

Gatore v. DHS (D.C. Cir.) (unpublished) -- affirming district court’s decision to deny class certification under Rule 23(b)(3), principally because agency had rescinded its policy of withholding “Assessment to Refer” documents in full, rendering case moot.

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

Court opinions issued Mar. 17, 2023

Mar. 17, 2023

Boundy v. U.S. Patent & Trademark Office (E.D. Va.) -- ruling that: (1) agency performed reasonable search for guidance documents concerning acceptable signatories, even though it did not use plaintiff’s long list of preferred search terms or uncover “secret rules” plaintiff believed existed; and (2) following in camera review, agency properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold all but two images that it previously disclosed to plaintiff.

Richardson Bay Envtl. Prot. Ass'n v. FAA (D.D.C.) -- concluding that: (1) FAA did not sufficiently explain why, in “this day and age,” it searched for certain potentially responsive records only in a physical filing cabinet and not electronically; and (2) agency properly invoked Exemption 7(A) to withhold certain records concerning plaintiff’s complaints about third party.

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

FOIA News: DOL office laboring to handle submitter notice process

Tiny Labor Agency Struggles to Meet Huge Diversity Data Request

• FOIA includes thousands of company diversity reports

• Agency has made errors on non-objector list

By J. Edward Moreno, Bloomberg Law, Mar. 16, 2023

Federal contractors have until March 17 to object to their diversity data being disclosed by the Labor Department as part of an open-records request process that has now taken over six months and has been riddled with delays and errors.

The DOL’s Office of Federal Contract Compliance Programs has struggled to produce an accurate list of contractors who don’t object to their workforce diversity data being disclosed in response to a massive Freedom of Information Act request from a journalism nonprofit.

The small subagency that enforces antidiscrimination laws and standards on companies that do business with the government has released lists of non-objectors that contained errors and has rolled over the deadline to object several times. Information from companies that don’t object—such as Oracle Inc. and Laboratory Corp.—will be released first, then the agency will make a call on whether the objections submitted are valid or not.

Read more here.