FOIA News: FOIA turns 57

The Freedom of Information Act was enacted on July 4, 1966, and became effective exactly one year later. For those interested in the evolution of the statute, which has been amended seven times, the legislative history is available on the Department of Justice’s website here.

Court opinion issued June 30, 2023

Flyers Rights Education Fund v. FAA (D.C. Cir.) -- affirming district court’s decision that FAA properly relied on Exemption 4 to withhold certain records pertaining to agency’s recertification of Boeing 737; in reaching its decision, the Court rejected four arguments made by appellants and held that: (1) generic promises by FAA to be transparent about the recertification process fell “far short of an explicit representation that FAA would disclose the disputed documents, and Boeing’s similar statements about transparency “hardly amount to an ‘explicit’ commitment to release [its] proprietary documents, let alone an indication that the FAA would do so”; (2) FAA was not required to release certain agency-authored material because FAA demonstrated that disclosure would reveal confidential commercial information obtained from Boeing; and (3) questioning whether prohibition on secret agency law may limit the scope of Exemption 4, but in any event finding that records submitted by Boeing to show compliance with FAA regulations were proprietary to Boeing’s aircraft and did not become part of FAA’s body of law; and (4) FAA carried its burden on segregability with nonconclusory affidavits.

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

Court opinion issued June 29, 2023

Buzzfeed, Inc. v. DOJ (2nd Cir.) (summary order) -- affirming district court’s decision that DOJ’s Inspector General properly relied on Exemption 7(C) to withhold the identity of a former senior employee from a report concerning that employee’s misconduct; noting that the employee’s rank, seriousness of wrongdoing, and absence of alternative access to the information favored disclosure, but agreeing with district court that disclosure would “do little to advance the public interest identified by [plaintiff]” and that disclosure would impact the privacy of victims, witnesses, and other third parties.

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

Court opinions issued June 28, 2023

Hoffman v. U.S. Customs & Border Prot. (E.D. Pa.) -- in case involving records of communications about asylum seekers at certain ports of entry, finding that: (1) CBP failed to adequately explain how it conducted it searched mobile devices for “WhatsApp” chats, and (2) agency used reasonable key phrases to search Shared Drives, but not its email accounts.

Judicial Watch v. DHS (D.D.C.) -- determining that DHS properly relied on Exemption 7(C) to withhold two photographs showing injuries suffered by a Secret Service Agent from President Biden’s dog.

Judicial Watch v. DHS (D.D.C.) -- determining that DHS properly relied on Exemption 7(C) to withhold six photographs showing injuries suffered by Secret Service Agents from President Biden’s dog.

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

Court opinion issued June 27, 2023

Energy Policy Advocates v. U.S. Dep’t of State (D.D.C.) -- concluding that agency properly relied on Exemption 5’s deliberative process and attorney’ client privileges to withhold records related to the Secretary’s approval to enter the Paris Climate Agreement; noting that foreseeable harm requirement was met for both asserted privileges.

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

Court opinions issued June 26, 2023

The James Madison Project v. NSA (D. Md.) — ruling that NSA properly relied on Exemptions 1 and 3 to withhold intelligence records concerning hostile country’s “high-powered microwave system weapon” that was discussed in agency’s 2014 unclassified memo to a former employee.

Elliott v. U.S. Dept. of Agric. (D. Md.) -- dismissing plaintiff’s claim because he failed to administratively appeal from agency’s “no records” response before filing his lawsuit.

Stonehill v. DOJ (D.D.C.) -- determining, in most relevant part, that plaintiff was a proper party because the FOIA requests at issue—which were submitted by her attorney—all identified plaintiff and referred to an attached power of attorney document that identified plaintiff’s attorney; further noting that agency’s summary judgment motion made clear that agency was aware of attorney’s representation of plaintiff in “this string of related FOIA actions going back decades.”

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

FOIA News: Battle Continues Over Law Firm's VW Emissions Report

DOJ, Prof Spar Over Secret Jones Day VW Emissions Docs

By Linda Chiem, Law360, June 27, 2023

The U.S. Department of Justice, Volkswagen and a Loyola Marymount University professor sparred in California federal court this week over whether a confidential Jones Day report on the German automaker's internal investigation into the 2015 emissions-cheating scandal should be made public.

The DOJ, Volkswagen AG and Lawrence P. Kalbers filed separate briefs Monday in response to questions from a court-appointed special master concerning whether Jones Day's investigative findings are protected from public disclosure under the Freedom of Information Act. The findings were shared with the government as part of grand jury proceedings.

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The case is Kalbers v. U.S. Department of Justice, case number 2:18-cv-08439, in the U.S. District Court for the Central District of California.

Read more here (accessible with free subscription).

FOIA News: DOJ gives keynote remarks at ASAP's FOIA conference

Associate Attorney General Vanita Gupta provided recorded remarks today at the American Society of Access Professionals’ National Training Conference in New Orleans. Ms. Gupta serves as DOJ’s Chief Freedom of Information Act Officer.

Court opinion issued June 22, 2023

Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- concluding that: (1) DEA conducted an adequate search for records related to claims filed against the agency; (2) DEA properly withheld names of claimants pursuant to Exemption 6,; (3) DEA improperly relied on Exemption 6 to withhold names of DEA tortfeasors and various other claim-related information; (3) DEA failed to show that requested claim records were compiled for law enforcement purposes under Exemption 7(C); (4) DEA neglected to submit sufficient information to court concerning withheld court-sealed records; (5) DEA neglected to produce all meaningful, reasonably segregable, non-exempt portions of certain responsive records; and (6) DEA’s untimely, 18-month response was not “egregious.”

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

Court opinions issued June 20-21, 2023

June 21, 2021

Friends of the River v. U.S. Army Corps of Eng'rs (D.D.C.) -- finding that agency did not justify (and therefore must disclose) most of its withholdings under Exemption 5’s deliberative process privilege because agency failed to articulate foreseeable harm, but that agency properly withheld records pursuant to attorney work-product and attorney-client privileges.

June 20, 2023

Cameron v. BOP (S.D. Ind.) -- dismissing prisoner-plaintiff’s claim as moot because agency released requested documents with some redactions after plaintiff filed suit and plaintiff failed to opposed agency’s motion to dismiss.

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