Court opinions issued Nov. 6, 2023

Contreras & Metelska v. ICE (D. Minn.) -- ruling that agency properly relied on Exemptions 3, 5, 6, and 7(C) to redact emails of ICE’s local chief counsel regarding his “no contact” policy with plaintiffs; rejecting plaintiff’s claims that agency’s alleged discriminatory conduct or its release of previously withheld records constituted bad faith warranting additional review of disputed documents.

NY Times v. DOJ (S.D.N.Y.) -- granting government’s motion for reconsideration in case involving records of FBI’s “use of spyware and other digital surveillance products from the Israeli technology company”; finding that government’s supplemental declaration regarding Exemptions 1, 3, and 7(E) was sufficient to sustain withholdings. but cautioning that “this ruling should in no way be construed as approving the Government's failure to effectively support its litigation positions in its summary judgment briefing.”

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

Court opinion issued Nov. 1, 2023

Guarascio v. FBI (D.D.C.) -- in case concerning records of plaintiff’s conviction for manufacturing child pornography, concluding that: (1) although FBI processed and released requested records, FBI failed to show that plaintiff lacked standing to challenge his FOIA/Privacy Act waiver; (2) FBI’s search was inadequate “because it did not aver that it searched all files that are likely to contain responsive materials”; (3) plaintiff was not entitled to a waiver due to indigency or any alleged improprieties in his criminal case, and he failed to show that public interest would be served by disclosure; and (4) FBI properly withheld records pursuant to Exemptions 3, 6, and 7(C), but it did not establish that Exemption 7(D) protected all investigatory records received from a state law enforcement agency.

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

FOIA News: Reminder of Chief FOIA Officers Council meeting

The Chief FOIA Officers Council will meet on Thursday, November 9, 2023, from 10:00 AM to 12:30 PM. To present oral comments during the meeting, the public must register by Tuesday at 11:59 PM. The meeting will also be livestreamed. See more details here.

FOIA News: Air Force FOIA requests may be limited to "clearly releasable" information

First Amendment Advocates Say Air Force Tweak to Public Records Request Process 'Very Troubling'

By Thomas Novelly, Military.com, Oct. 27, 2023

A new change to the Air Force's Freedom of Information Act submission portal, asking whether individuals seeking public information from the service would agree to accept only "clearly releasable" information, is alarming First Amendment advocates and government watchdogs.

Military.com discovered the change to the service's portal this month when submitting what's called a FOIA request for government documents that could be used for news reporting and are legally required to be made public upon request. A newly added question asks the filer to check "yes" or "no" and agree in advance to potential redactions of information before submitting their form online.

Read more here.

[P.S. At least two components of the U.S. Navy also employ the same process, namely the the Office of Naval Research and the Naval Sea Systems Command.]

Court opinion issued Oct. 24, 2023

Vidal-Martinez v, DHS (7th Cir.) -- using “clear error” standard, affirming district court’s decision that ICE properly redacted records concerning plaintiff pursuant to Exemptions 5, 6, and 7(C), and that plaintiff was not entitled to attorney’s fees because he did not substantially prevail.

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

FOIA News: MuckRock & POGO archive 34k docs from FOIAonline

Here’s why MuckRock and POGO had to archive FOIAonline

Transparency organizations publish nearly 34,000 documents after officials failed to ensure information would remain accessible.

By Freddy Martinez, MuckRock, Oct. 25, 2023

Last month, the Environmental Protection Agency (EPA) dismantled a vital tool for transparency when it decommissioned FOIAonline.gov, an online resource that allowed the public to make and track Freedom of Information Act (FOIA) requests to over 20 federal agencies, and to view responsive documents. The EPA, which oversaw FOIAonline on behalf of participating agencies, claims to have fulfilled over 1.5 million requests and attracted 34,000 active registered users over the decade-plus that the portal was operating. But while the decommissioning of FOIAonline has been in the works for several years, it still remains unclear when the public can expect access to these records to be restored by government agencies, if ever. In the interim, POGO and MuckRock have partnered to host a publicly available archive of nearly 34,000 documents captured before FOIAonline was shuttered.

Read more here.

Court opinion issued Oct. 23, 2023

Energy Policy Advocates v. SEC (D.D.C.) -- determining that: (1) agency performed an adequate search for various electronic communications, and (2) agency properly relied on Exemption 5’s deliberative process privilege to withhold in full five pages discussing the “nuts and bolts of proposed rulemaking”; further noting that the agency met the “deliberative process privilege’s ‘foreseeable harm’ requirement” with a concrete and focused declaration (albeit brief), which was supported by the “context and purpose” of the withheld records.

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

FOIA News: FOIA.gov adds a search tool

New Search Tool Improves FOIA.gov User Experience

By DOJ/OIP, FOIA Post, Oct. 24, 2023

FOIA.gov, the government’s central resource for information about the Freedom of Information Act (FOIA), was updated today with a new Search Tool that helps the public more quickly locate commonly requested information.  This update reflects one of the most significant improvements to the site since the release of the National FOIA Portal in 2018 and fulfills one of the Department of Justice’s commitments made in the United States Fifth Open Government National Action Plan.

Read more here.

FOIA News: Gov’t FOIA jobs

• Gov’t Info. Specialist, Dep’t of Education, GS-14, Washington, D.C., closes 11/6/2023.

• Supervisory Gov’t Info. Specialist, DOJ/ATF, GS-14, Washington, D.C., closes 11/6/2023.

• Gov’t Info. Specialist, Dep’t of the Interior, GS-14, multiple locations, closes 11/3/2023.

• Attorney-Adviser, FDIC, CG-14, Washington, D.C., closes 11/2/2023.

• Gov’t Info. Specialist, NARA/OGIS, GS-11, College Park, MD, closes 10/30/2023.

Court opinion issued Oct. 17, 2023

BuzzFeed v, DOJ (D.D.C.) -- deciding that: (1) FBI properly relied on Exemption 4 to withhold certain emails discussing DNA forensic assistance for pending FBI investigations, noting that agency demonstrated that disclosure could cause foreseeable financial harm to genetic testing companies; (2) FBI properly invoked Exemption 7(A) to withhold records about reasonably anticipated enforcement proceedings that, if disclosed, would reasonably likely to interfere with future criminal cases; (3) FBI properly relied on Exemption 7(C) to withhold the identities of law enforcement personnel and third parties; and (4) FBI’s properly used Exemption 7(E) to withhold companies’ forensic law enforcement capacities and forensic genealogy testing innovations and advancements, as well as details on evidence collection and evidence gathered for pending investigations.

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