Court opinion issued May 24, 2023

Cause of Action Inst. v. NOAA (D.D.C.) -- concluding that agency’s search was inadequate because agency too narrowly defined what constituted the “agency records” of one of its regional Fishery Management Councils by only including correspondence “submitted to the chair” or “specifically discussed or disseminated at a Council meeting”; ordering agency to conduct a supplemental search of non-federal employee council members’ personal accounts and devices.

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

Court opinions issued May 23, 2023

Anand v. HHS (D.D.C.) -- ruling that the Office of Inspector General properly refused to search for “all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians,” because the search would take the entire FOIA staff more than 9 years to complete (or one full-time employee 28 years at a cost of at least $3.5 million), which was deemed unduly burdensome.

Anthony v. BOP (D.D.C.) -- determining that: (1) plaintiff’s claim was moot with respect to four pages that BOP released in full; (2) plaintiff was not required to administratively appeal BOP’s denial of his expedition request before filing suit; and (3) plaintiff also was not required to administratively appeal BOP’s final decision on the merits, which postdated plaintiff’s lawsuit.

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

FOIA News: FOIA Advisory Committee meets on June 8, 2023

The 2022-2024 term of the Federal FOIA Advisory Committee will hold its fifth meeting on Thursday, June 8, 2023, at 10:00am. Meeting materials and registration information are available here.

FOIA News: DOJ argues DEA not an "agency"

DOJ Tells Court DEA Is Not An “Agency” For FOIA Purposes

By Sam Reisman, Law360, May 23, 2023

The U.S. Department of Justice on Monday told a Texas federal judge that the Drug Enforcement Administration is not an agency for the purposes of the Freedom of Information Act.

Read more here (accessible with free 7-day trial).

FOIA News: Academic explores FOIA decisions of SCOTUS

A professor at the University of Georgia explores the U.S. Supreme Court’s FOIA decision-making in a forthcoming work entitled “Government Transparency and Judicial Deference: An Outcomes-Based Overview of Freedom of Information Act Litigation in the U.S. Supreme Court.” The author, Gbemende Johnson, summarizes her work in an abstract recently posted by SSRN:

This chapter explores U.S. Supreme Court decision-making in Freedom of Information Act Litigation. While few FOIA requests result in litigation, the Supreme Court plays a central role in providing guidance to agencies and requesters regarding executive branch autonomy over disclosure decisions, and the scope of transparency afforded by the Freedom of the Information Act. Overall, I find that the U.S. Supreme Court exhibits a substantial degree of deference to agency interpretations of the FOIA.

See full abstract here.

Court opinion issued May 16, 2023

Louise Trauma Ctr. v. DHS (D.D.C.) -- determining that plaintiff was both eligible and entitled to attorney’s fees and costs, but reducing requested fee award from $156k to $106k because: (1) plaintiff failed to show that the rate sought by its attorney rate was consistent with the prevailing market rate for similar legal services; (2) much of the attorney’s work was “needless, duplicative, or inefficient,” and the billing records lacked adequate details; and (3) plaintiff’s request for $45k for fees spent on its fee petition was unreasonable and would constitute an “unsupportable windfall.”

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

FOIA News: Federal Court Rejects FBI’s Attempt To Glomar Its Way Out Of A Trump-Related FOIA Lawsuit

Federal Court Rejects FBI’s Attempt To Glomar Its Way Out Of A Trump-Related FOIA Lawsuit

By Tim Cushing, Techdirt, May 16, 2023

The Massachusetts branch of the ACLU decided to ask around to see if any of the many agencies generating classified documents had a copy of this supposed standing order from the President. It sent FOIA requests to the CIA, Defense Department, Office of the Director of National Intelligence (ODNI), NSA, DHS, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency (NGA). It also made the same request to the FBI, shortly after it performed its raid on Trump’s residence.

The DHS, NRO, and NGA told the ACLU they had no responsive documents. Other recipients apparently decided to let the FBI and its legal counseI answer for them. And that “answer” came in the form of a Glomar response: a refusal to confirm or deny the existence of this standing order. The ACLU sued.

And it has won, at least in terms of the FBI’s non-response response. The federal court handling the FOIA litigation says the FBI can’t play dumb here. Either the order exists (it doesn’t) or it doesn’t (it doesn’t), and the FBI — answering for other agencies — needs to tell the ACLUM whether or not the order exists. (It doesn’t.)

Read more here.

See also Court Opinions Issued May 11, 2023.

Court opinion issued May 12, 2023

Lawyers’ Comm. for Civil Rights v. OMB (D.D.C.) -- on renewed summary judgment, ruling that OMB sufficiently established that it properly relied upon Exemption 5’s deliberative process privilege to withhold records concerning its decision to “halt its initiative for the collection of pay data from employers by the [EEOC]”; further finding that OMB satisfied the foreseeable harm standard by linking identifiable harms to specific information, and that it established that it produced all reasonably segregable information.

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

Court opinion issued May 11, 2023

Am. Civil Liberties Union of Mass. v. CIA (D. Mass.) -- concluding that CIA, ODNI, DOD, and NSA improperly issued Exemption 7(A) Glomar responses in connection with plaintiff’s request for President Trump’s alleged standing order declassifying documents taken from the Oval Office; finding that FBI did not sufficiently explain how its criminal investigation would be harmed if defendants searched for responsive records, particularly in light of the fact that three other intelligence agencies had already conducted searches and issued “no records” responses and that President Trump and multiple former Trump administration officials had issued statements on the matter.

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

FOIA News: New OGIS post on portal communications

Ensuring Effective Portal Communication with Requesters: Even When They’re on Vacation!

By Kimberlee N. Ried, FOIA Ombudsman, May 10, 2023

OGIS has observed recently that agencies are increasingly using portals to send response letters and records to requesters. OGIS applauds this approach as portals are faster than U.S. postal mail and more secure than email. However, OGIS encourages agencies to consider the length of time requesters have to access these letters and responsive records. We recently heard from a requester who was on vacation and when they returned, they were unable to access the agency’s FOIA response letter and responsive records which had been available in the portal for 10 days.

Read more here.