Court opinions issued Sept. 1, 2023

Wilderness Workshop v. USDA (D.D.C.) -- ruling that: (1) Forest Service performed adequate search for records concerning landowner’s request for access to national forest in Colorado, but USDA’s Office of Information Affairs failed to adequately explain its search methodology; (2) government’s declarations and Vaughn indices did not contain enough information to justify withholdings under the deliberative process privilege; (3) government properly withheld records pursuant to the attorney-client and attorney work-product privileges and the foreseeable harm requirement was met; (4) government properly withheld information about federal employees under Exemption 6; and (5) government produced records in the format plaintiff requested (searchable PDF files), and it was not required to transmit those records via the means plaintiff requested (flash or jump drive).

Martin v. Garland (D.D.C.) -- finding that the Executive Office for United States Attorneys conducted a reasonable search for records concerning the medical leave of an Assistant U.S. Attorney who prosecuted him, and that EOUSA properly withheld records pursuant to Exemption 6.

Polidi v. Mendel (E.D. Va.) -- deciding that U.S. Patent and Trade Office properly relied on Exemptions 6 and 7(C) to redact information pertaining to third parties appearing in records concerning plaintiff’s expulsion from the Patent Bar.

Yadav v. USCIS (D. Md.) -- concluding that agency performed adequate search for records pertaining to agency’s denial of plaintiff’s application to adjust his residency status, and that agency properly withheld records pursuant to Exemptions 7(C) and 7(E).

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

Q&A: What’s in a name?

Q. Are federal credit unions subject to FOIA requests compliance? Where do I file a complaint against a federal credit union that fails to comply with a FOIA request in relation to loan(s) account information?

A. Federal credit unions are not run by the federal government (despite the name “federal”), and therefore are not federal agencies for purposes of FOIA. If you submit a FOIA request to a credit union, it would not be required to respond. The federal government does regulate national credit unions, however. To register a customer complaint, contact the National Credit Union Administration.

Court opinions issued Aug. 30, 2023

Cullen v. DHS (D.D.C.) -- determining that: (1) pro se prisoner waived his right to dispute adequacy of agency’s search for records pertaining to its investigation of plaintiff because he failed to mention the issue in his briefing; (2) agency properly withheld records pursuant to Exemption 7(C), including images of adult pornography that plaintiff failed to establish were commercially produced.

Mountgordon v. U.S. Coast Guard (D.D.C.) -- in case concerning investigatory records generated from plaintiff’s complaint, finding that: (1) agency failed to expressly address the foreseeable harm requirement with respect to the withholding in full of its investigative report under the deliberative process privilege, nor did the agency sufficiently support its segregability analysis; and (2) regarding requested witness statements, the agency properly excluded “UCMJ rights forms” as non-responsive, but that agency’s declaration “conflates Exemptions 5 and 6 and offers too little detail to sustain the withholdings on the present record.” Of note was the court’s criticism of the agency in the opinion’s introduction: “Here, the Coast Guard’s motion for summary judgment is poorly supported and lacking essential detail. Many of its withholdings are likely proper, but the Coast Guard has not taken the time to support its position. That means more work for the Coast Guard, Plaintiff’s counsel, and the Court. And, more importantly, it also means unnecessary delay, which is antithetical to FOIA.”

Buzzfeed, Inc. v. DOJ (D.D.C.) -- ruling that: (1) Federal Bureau of Prisons improperly used Exemption 7(E) to withhold records describing guidelines, techniques and procedures used to obtain lethal injection substance, because those records did not involve agency “investigations” or “prosecutions”; (2) in accordance with recent D.C. Circuit decision, BOP did not sufficiently explain how information that could lead to identify the suppliers of lethal injection substances to the federal government was commercial information for Exemption 4 purposes'; and (3) BOP’s foreseeable harm argument “failed to connect any particular document to the stated harm” or to explain how deliberations would be harmed by disclosure.

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

FOIA News: FCC finds a replacement for FOIAonline

FCC Transitioning to New FOIA Solution on October 1

Benton Broadband, Sept. 1, 2023

The Federal Communications Commission currently relies simultaneously on two online case management solutions: FOIA.gov available at https://www.foia.gov and FOIAonline.gov, available at https://foiaonline.gov/foiaonline/action/public/home. With the planned retirement of FOIAonline.gov by its host agency, the FCC will transition from FOIAonline to a new online case management solution beginning October 1, 2023. "Although there will be a new look, we expect the transition to be seamless," said every government agency ever just before a complete meltdown. For further information, please contact Stephanie Kost, FOIA Public Liaison, at FOIA-Public-Liaison@fcc.gov or 202-418-0440.

Original notice here.

FOIA News: Advisers used Greek letters to avoid Michigan FOIAs

Democrat governor's consultant used email coded with Greek to thwart public records searches: lawsuit

Email to top Whitmer adviser expressed 'some major red flags'

 By Kyle Morris, Fox News, Aug. 31, 2023

A coded email sent by a consultant to a policy adviser for Democrat Michigan Gov. Gretchen Whitmer was used to "conceal" certain information related to the state's handling of a local water crisis from becoming public knowledge, according to a lawsuit filed by residents of Benton Harbor.

Andrew Leavitt, who once served as a consultant to Michigan’s energy department, used letters from the Greek alphabet to send the September 2021 email to Kara Cook, Whitmer's senior energy adviser, the class action lawsuit alleges.

Read more here.

FOIA News: FOIA logs reveal Democratic opposition research strategies

The DNC Goes Fishing – What Will it Catch?

By John A Jenkins, Law Street Media, Aug. 30, 2023

FOIAengine Examines Political Opposition Research

A few weeks ago, Politico’s Florida Playbook ran a story revealing what “hundreds of people, groups, and journalists” in the state were asking for:  “texts, emails, calendars, letters, and receipts” to or from Florida’s governor, presidential candidate Ron DeSantis. 

In Politico’s telling, many of the requesters were affiliated with the Democratic Party,  making demands under the state’s open-records law to get “damning material against political enemies.”  And, in DeSantis’ case, Florida’s public records certainly marked the best starting point to look for muck.  The list that Politico received of requesters targeting DeSantis in his home state was 222 pages long.

“Unsurprisingly, mostly Democratic-aligned groups asked for dirt on DeSantis and his inner circle,” Politico wrote.  “Oddly, no one tied to Trump – or other 2024 candidates – asked for such records, though it’s possible that GOP campaigns used an untraceable proxy to avoid angering a future Republican president.”

Why didn’t the Trump campaign file such requests?  Steven Cheung, a Trump campaign spokesperson, bluntly told Politico:  “We have information that no opposition researcher can ever find.”

Read more here.

FOIA News: USTR finalizes FOIA revision

On July 25, 2023, the U.S. Trade Representative issued an interim amendment to its expedited FOIA processing regulations. Today, the agency adopted that amendment as final after having received no public comments within the 30-day comment period.

FOIA News: FAA grounds FOIA request for VIP flight data

FAA accused of stonewalling demand for Buttigieg private flight data

By Josh Christenson, NY Post, Aug. 30, 2023  

The Department of Transportation is refusing to hand over private flight records for Secretary Pete Buttigieg, according to a conservative watchdog group suing for the files.

Americans for Public Trust (APT) said Wednesday that the Federal Aviation Administration has repeatedly missed deadlines to share Buttigieg’s flight logs and passenger records since the group first sought them this past November.

Fox News first reported the FAA’s foot-dragging.

APT also sent follow-up requests in January for the names of members of Congress and the White House or other Biden administration officials who flew on FAA planes and for a list of the agency’s jets, The Post has confirmed.

Read more here.

Court opinion issued Aug. 29, 2023

Human Rights Def. Ctr. v. U.S. Park Police (D.D.C.) -- finding that: (1) agency properly relied on Exemption 6 to withhold names of tort claimants, and—invoking the court’s inherent powers—ordering plaintiff not to use or disseminate names of claimants that agency inadvertently disclosed; and (2) agency properly relied on Exemption 6 to withhold names of police officers involved in same tort claims, noting that disclosure would reveal “little more about Park Police’s conduct than what has already been disclosed,” e.g., settlement amounts and officers’ employment status.

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

FOIA News: Media requesters tracked in the United Kingdom

UK Ministry of Justice found tracking journalists who make information requests

By Samara Baboolal, Jurist, Aug. 28, 2023

A Times investigation revealed on Saturday that the Ministry of Justice has been tracking journalists who make information requests. In the UK, the right to request and access recorded information held by public authorities is protected under the Freedom of Information Act 2000 (FOIA) and Freedom of Information (Scotland) Act. By law, UK public authorities must respond to any requests for information. According to the Times’ report, a Times reporter made a subject access request and discovered the documents of background profiles on journalists that make freedom of information requests, which was compiled by Ministry of Justice officials.

Read more here.

[Note: The application of extra scrutiny to certain FOIA requests is not uncommon in the United States. See notable examples here.]