Court opinion issued July 21, 2023

Harvard Immigration & Refugee Clinical Program v. DHS (D. Mass. 2023) -- determine that: (1) government neglected to adequately search for records concerning ICE's use of solitary confinement in immigration detention centers; (2) government failed to show that certain redacted emails and memoranda were pre-decisional under Exemption 5 or that factual materials in expert reports were Inextricably Intertwined with policy making recommendations; and (3) government properly relied on Exemption 7(E) to withhold four types of records concerning detainees.

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

Court opinion issued July 20, 2023

Rocky Mountain Wild v. BLM (D. Colo.) -- finding that: (1) Bureau of Land Management’s supplemental filings established that agency had properly relied on Exemption 5’s deliberative process privilege and met the foreseeable harm standard with respect to withheld records concerning a field office’s amendment of its “Resource Management Plan”; (2) BLM’s supplemental search, which yielded additional responsive records, was adequate; and (3) BLM properly relied on Exemption 6 to redact two newly discovered pages, but it failed to explain how Exemption 5 redactions on one page met the foreseeable harm standard.

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

Court opinion issued July 18, 2023

Am. First Legal Found. v. U.S. Dep't of Agric. (D.D.C.) -- holding that 14 agencies properly relied on Exemption 5’s presidential communications privliege to withhold in full strategic plans each agency had prepared “in response to an Executive Order regarding promoting access to voting Assistant to the President for Domestic Policy and head of the Domestic Policy Council within the White House”; further holding that White House Special Counsel adequately showed foreseeable harm by identifying potential chilling effects on confidential and canid presidential decision-making, consistent with other rulings withun the Circuit.

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

FOIA News: Co-founder of OIP pens memoir

Daniel J. Metcalfe, who in 1981 co-founded the Department of Justice’s Office of Information and Privacy (now Office of Information Policy), has authored a 792-page book entitled Inside Justice: Secrecy at Work. Available this October, the book is described by its publisher as “at once a candid, highly readable memoir infused with sly humor, a deeply researched and argued call to action, and an unprecedented history of government secrecy that only one person could provide.”

Mr. Metcalfe left DOJ/OIP in 2007 after serving as its co-director for 24 years and as its sole director after Richard Huff retired in 2005. He shortly thereafter joined American University’s Washington College of Law and ran the school's Collaboration on Government Secrecy, which was an educational project devoted to openness in government.

FOIA News: Sensationalist FOIA plaintiff called out for “sensationalism” by DOJ

Think Tank Accused of 'Sensationalism' in Prince Harry Drugs Lawsuit

By Jack Royston, Newsweek, July 13, 2023

Lawyers for the Biden administration have accused a conservative think tank of "sensationalism" in the latest salvo of their war of words about Prince Harry's drug use.

Harry described his use of cannabis, magic mushrooms, cocaine and ayahuasca in his memoir Spare, prompting the Heritage Foundation to ask the Department of Homeland Security (DHS) to publish his U.S. visa application.

The foundation wants to determine whether the Duke of Sussex disclosed his experiences with illegal substances in the paperwork and, if so, whether he was treated with favoritism.

However, the administration has declined its requests, made under the Freedom of Information Act (FOIA).

Read more here.

Court opinion issued July 11, 2023

Nat’l Student Legal Def. Network v. U.S. Dep’t of Educ. (D.D.C.) -- following in camera review of emails between Social Security Administration and Department of Education lawyers regarding certain student loan program, determining that government’s Exemption 5 withholdings were properly made under the attorney work-product privilege; noting that privilege was justified by both pending and anticipated litigation, and that government’s shifting arguments did not defeat the exemption claim.

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

Court opinion issued July 10, 2023

Rutila v. DOT (5th Cir.) -- affirming district court decision that: (1) FAA’s fee assessment was timely because FAA had tolled response deadline once in order to clarify time scope of plaintiff’s request; (2) FAA was not required to take screenshots of certain requested information that was displayed to agency system users but could not be exported.

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

Court opinion issued July 7, 2023

Pfeiffer v. U.S. Dep’t of Energy (D.D.C.) -- denying government’s motion for reconsideration of court’s rulings that: (1) plaintiff qualified as an educational institution because he demonstrated that his requests were connected to his scholarly research ; and (2) plaintiff’s potential profit from publishing responsive records on his webpage did not trump plaintiff’s intentions to use records for scholarly purposes, and therefore government improperly denied plaintiff’s fee waiver request.

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

Court opinions issued July 5, 2023

Ecological Rights Found. v. EPA (9th Cir.) (unpublished) -- affirming district court’s decision that: (1) EPA properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold certain records concerning “supplemental environmental projects”; and (2) EPA did not have a pattern or practice of violating FOIA, and therefore plaintiff was not entitled to injunctive or declaratory relief.

Naumes v. Dep’t of the Army (D.D.C.) -- awarding plaintiff costs and $111,415 in attorney’s fees—after reducing plaintiff’s fee request for time spent on unsuccessful issues—in case concerning access to Army’s mental-fitness questionnaire and related records.

Zaid v. DOJ (D. Md.) -- in consolidated cases involving DOJ, IRS, and DHS records about plaintiff’s client, Zackary Sanders, who was convicted of producing child pornography, concluding that: (1) plaintiff was not required to administratively appeal from ICE’s determination that his request was “too broad,” because ICE failed to plaintiff of his appeal rights; (2) four of plaintiff’s requests to ICE were reasonably described, but a fifth request seeking “any records referencing specific term was “overly broad”; (3) U.S. Secret Service performed adequate search for records pertaining to plaintiff’s client; (4) FBI properly withheld records pursuant to Exemptions 5, 6, 7(A), 7(C), and 7(D); (5) IRS properly withheld records pursuant to Exemption 3 in conjunction with 26 U.S.C. § 6103(a); (6) EOUSA properly withheld records pursuant to Exemptions 5 and 7(E); and (7) ICE properly withheld records pursuant to Exemptions 6 and 7(C).

Empower Oversight Whistleblowers & Research v. SEC (E.D. Va.) -- ruling that: (1) plaintiff’s Amended Complaint failed to challenge the SEC’s redactions and plaintiff could not add the claim via briefing; (2) plaintiff’s timeliness claim became moot as soon as the SEC issued a final determination, rejecting plaintiff’s argument that its timeliness claim was '“capable of repetition, yet evading review”; and (3) in response to requests for “all communications” of various SEC employees, the agency unreasonably limited its searches to the specific examples of communications that plaintiff identified.

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

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.