Court opinions issued Sept. 13, 2023

NY Times v. FBI (S.D.N.Y.) -- ruling that agency properly relied on Exemption 6 to redact limited information from two documents pertaining to FBI shooting incidents, because such information would—in combination with publicly available information—risk revealing the identities of FBI agents and third parties with no overriding public interest.

Stalcup v. FBI (M.D. Fla.) -- dismissing case after determining that plaintiff neglected to properly file administrative appeals with the U.S. Navy and FBI following their pre-litigation responses to his requests for TW Flight 800 records.

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

Court opinion issued Sept. 12, 2023

Osen LLC v. U.S. Dep’t of the Treasury (S.D.N.Y.) -- find that the Office of Foreign Assets Control properly withheld “designation packages” pertaining to three sanctioned, Hamas-related organizations pursuant to Exemption 1 and Exemption 3 in conjunction with 50 U.S.C. § 3024(i)(1).

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

FOIA News: Audit finds IRS errors in FOIA processing

IRS Could Improve FOIA-Requested Document Releases, TIGTA Says

By Caleb Harshberger, Bloomberg Law, Sept. 14, 2023

The IRS should improve its processes to better tackle Freedom of Information Act requests and when it should redact or release information, the Treasury Inspector General for Tax Administration said in a report released Thursday.

TIGTA found IRS staff improperly redacted or released information subject to a FOIA request in 22% of cases out of a statistical sample of responses—a 6% increase in the error rate from last year’s analysis.

The watchdog recommended the IRS update the Internal Revenue Manual “to clarify when third-party information should be redacted or released.”

Read more here (accessible with subscription).

FOIA News: EPA finalizes amendments to FOIA regulations

On September 14, 2023, the Environmental Protection Agency published a final rule in the Federal Register that updates its FOIA regulations following a notice-and-comment period. The rule is effective on November 13, 2023. Of note, the EPA controversially added “environmental justice” as a basis to expedite requests and will now require taxpayers to subsidize the first $250 in fees for every FOIA requester.

Court opinion issued Sept. 11, 2023

Colo. Wild Pub. Lands v. U.S. Forest Service (D.D.C.) -- in case involving records of agency’s evaluation of a proposed land exchange, ruling that: (1) agency improperly withheld disputed records pursuant to Exemption 5, because they were either not deliberative or did not meet the foreseeable harm test; (2) agency properly relied on Exemption 6 to withhold employee’s work cell phone number and contact information of third parties, except for business contact information of real estate agents; and (3)(a) plaintiff adequately alleged that agency had policy and practice of unlawfully withholding land exchange records, (b) its claim was not moot, and (c) declaratory relief was appropriate but that a referral to a Special Counsel was not.

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

Court opinion issued Sept. 8, 2023

Gun Owners of America v, DOJ (D.D.C.) -- concluding that FBI reasonably interpreted the scope of plaintiff’s request regarding website visitor information as seeking “preexisting aggregate records, not each underlying document that would allow it to construct the record itself,” and that FBI performed an adequate search (finding no responsive records); rejecting as irrelevant plaintiff’s arguments that other DOJ components produced individualized records and that DOJ’s counsel understood which records plaintiff was interested in, because the plain meaning of the actual request controlled.

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

FOIA News: Agencies should post more legal material online, reports ACUS advisers

Affirmatively Disclosing Agency Legal Materials

By Bernard W. Bell et al., Regulatory Review, Sept. 11, 2023

Administrative agencies’ law-generating powers have long been recognized, as has the importance of making agency-generated law available to the public. In 1971, the Administrative Conference of the United States (ACUS) recommended that “agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.” Over the years, ACUS has adopted numerous recommendations to that end.

* * *

ACUS commissioned the five of us as a consultant team to craft potential statutory revisions that would ensure greater online accessibility of agency legal materials. As part of our work, we solicited formal input through a series of meetings with a 60-member group of ACUS members and affiliates, including representatives from 50 federal agencies. We also conducted our own research, reviewed more than 30 written comments submitted to us, and deliberated at length among ourselves in more than 20 team meetings held over an 11-month period. The resulting 157-page report thus reflects a well-deliberated consensus that is based on extensive analysis and broad input.

One simple principle animates our entire report: All legal material that agencies must disclose upon request by a member of the public should be affirmatively made available on agency websites.

Read more here.

Court opinion issued Sept. 5, 2023

Am. Oversight v. DHS (D.D.C.) -- holding that: (1) U.S. Immigration and Customs Enforcement did not adequately search for various documents relating to people who had died in ICE’s custody; (2) because ICE did not even attempt to justify its Exemption 3 withholdings (failing to file a promised ex parte declaration), it must release documents withheld solely under that exemption; and (3) ICE’s generalized assertions about foreseeable harm were inadequate to justify its withholdings under the deliberative process privilege.

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

FOIA News: FOIA on the Right

Republicans Playing the Oppo Game

FOIAengine Looks at Opposition Research on the Right

By John A. Jenkins, Law Street Media, Sept. 7, 2023

In the shadowy world of political opposition research, sometimes the game looks like Spy vs. Spy.  That’s particularly true right now, in the run-up to next year’s presidential election.  As more than a dozen Republican hopefuls jockey for position, a raft of newly created research groups with ties to the former Trump Administration have jumped into the fray, blanketing the federal government with thousands of FOIA requests. 

Measured by the sheer number of Freedom of Information Act requests and resultant lawsuits, the new research groups are subsuming work once the purview of the well-established Republican oppo machine, America Rising. 

Read more here.

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.