Court opinion issued Jan. 22, 2024

Phillips v. U.S. Bureau of the Census (S.D.N.Y.) -- denying plaintiff’s request for attorneys’ fees and costs after finding that: (1) plaintiff was eligible for fees and costs because he obtained partial relief from a judicial order, specifically an agency file comparable to the file he requested by a date certain; and (2) plaintiff was not entitled to fees and costs because the agency was preparing to release records well in advance of plaintiff’s request and lawsuit, and because it reasonably denied plaintiff’s request.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: After years of silence, OGIS publicly torpedoes the term "Glomar"

On January 25, 2024, the Office of Government Information Services launched a stealth attack on the use of the term “Glomar,” posting on its blog, the FOIA Ombudsman, that it hoped agencies would “retire the term” following the federal FOIA Advisory Committee’s recommendation to do so in 2022.

Notably, although OGIS chairs the FOIA Advisory Committee and may comment and vote on proposed recommendations, it said nothing about this issue during the two public committee meetings at which it was discussed: Dec. 9, 2021 (transcript), and Mar. 10, 2022 (transcript with vote). According to the transcript minutes of the former meeting, OGIS reportedly provided input about “Glomar” to the sponsors of the recommendation. The substance of OGIS’s comments has never been officially released, however. By contrast, the Department of Justice was forthright in the meetings about its disagreement with the recommendation, and four committee members—including yours truly—voted against it. DOJ abstained from voting, as is its practice. No vote was recorded for OGIS, whose director missed the March 10, 2022 meeting.

The committee’s non-unanimous recommendation was approved by the Archivist of the United States. It remains pending at the Department of Justice (where it should die).

FOIA News: OIP solicits nominees for Sunshine Week awards

OIP Now Accepting Nominations for the 2024 Sunshine Week FOIA Awards

By DOJ/OIP, FOIA Post, Jan. 23, 2024

The Department of Justice, Office of Information Policy (OIP) is pleased to announce that nominations are open for the 2024 Sunshine Week FOIA Awards, recognizing the contributions of FOIA professionals from around the government.  As the Attorney General recognized in his FOIA Guidelines issued in March 2022, “[t]he federal government could not process the hundreds of thousands of FOIA requests that are received every year without its dedicated FOIA professionals.”  Agency FOIA professionals are at the center of ensuring successful FOIA administration and we look forward to celebrating the work of these individuals from around the government.  For this year’s event, OIP is seeking nominations for five categories of awards:

Read more here.

Court opinions issued Jan. 19, 2024

Bonner v. FBI (S.D.N.Y.) -- (1) denying plaintiff’s motion for reconsideration of court’s decision upholding FBI’s Exemption 3 claims regarding records related to Abu Zubaydah’s detention; (2) CIA properly invoked Exemption 3 in conjunction with the National Security Act to protect information, in whole or in part, within 711 redactions made by the FBI pursuant to Exemptions 6 and 7(C); and (3) FBI properly relied on Exemptions 6, 7(C), and 7(E) to withhold certain information not claimed by the CIA to fall under Exemption 3.

Hernandez, Jr. v. DOJ (D.D.C.) -- granting summary judgment to government after finding that Executive Office for United States Attorneys performed adequate search, plaintiff received all materials responsive to his request (notwithstanding initial miscounting of pages), and plaintiff did not challenge EOUSA’s redactions.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinions issued Jan. 18, 2024

Buzzfeed v. DOJ (D.D.C.) -- granting government’s partial motion for reconsideration after concluding that plaintiff had failed to brief—and thus waived its right to dispute—the issue of whether Exemption 4 protects the identities of contractors that supply lethal injection drugs to the government; noting that plaintiff’s reply brief expressly stated that the only Exemption 4 issue concerned the withholding of other information; further rejecting plaintiff’s argument that a change in controlling law allowed plaintiff to revive the issue.

Gun Owners of America v. FBI (D.D.C.) -- finding that agency properly relied on Exemption 7(E) to withhold aerial-surveillance video of civil unrest in Kenosha, Wisconsin in August 2020, and that no foreseeable harm analysis was necessary because agency had met Exemption 7(E)’s circumvention of law requirement.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued Jan. 16, 2024

Bloomberg v. FTC (D.D.C.) -- ruling that: (1) FTC properly withheld all but three portions of its preconsummation warning letters pursuant to Exemption 3, in conjunction with 15 U.S.C. § 18a(h), specifically the identities of business filers that were already in the public domain, the dates of the warning letter; and boilerplate language; and (2) agency failed to show that Exemption 7(A) protected any of the three portions of the disputed letters set forth above.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: Hear ye! Hear ye!

The U.S. Supreme Court will hear oral arguments today in two companion (non-FOIA) cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, each of which challenge the Chevron doctrine. We mention this because FOIA Advisor’s own Ryan Mulvey represents the appellants in the former case and has a ringside seat at counsel’s table this morning. Congratulations, Ryan!

Listen to the arguments in real time here.

Court opinion issued Jan. 12, 2024

Children’s Health Def. v. FDA (D.D.C.) -- granting six-month Open America stay (with possibility of extension) in case concerning records of safety monitoring of COVID-19 vaccines, because agency faced “exceptional circumstances” from an “extraordinary production obligation” imposed by a Texas federal court—specifically 75,000 pages per month in January 2024 and 180,000 pages per month thereafter in response to a FOIA request related to Moderna’s adult COVID-19 vaccine.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued Jan. 9, 2023

Cato v. FBI (D.D.C.) -- concluding that plaintiff was entitiled to relief from court’s judgment because of “newly discovered evidence” concerning the adequacy of FBI’s search, namely an FBI declaration filed in a 2018 case that contradicted the FBI’s position in the instant case regarding the agency’s Central Records System; reasoning, in part, that the public availability of FBI’s 2018 declaration on PACER was not fatal to plaintiff’s motion, because the declaration was not discoverable by a reasonably diligent search.

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

Court opinion issued Jan. 8, 2024

Kayll v. DHS (D.D.C.) -- ruling that U.S. Customs & Border Protection did not possess or control records in a State Department database relating to visa applications, even though CBP inputted information into that database about plaintiff; in reaching its decision, the court noted its concern that a contrary ruling would allow requester to circumvent the confidentiality provisions of 8 U.S.C. § 1202(f).

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.