Court opinions issued Apr. 10, 2024

Malone v. USPTO (E.D. Va.) -- ruling that: (1) plaintiff could not in litigation expand scope of his original request, which sought certain information about patent cases in which expanded panels were used or in which panels were advised by agency personnel to change their decisions; (2) plaintiff’s request would impermissibly require the agency to conduct research and create new records; and (3) agency was required to process one document concerning expanded panels that was partially responsive to plaintiff’s request.

Col. Wild Pub. Lands v. U.S. Forest Serv. (D.D.C.) -- dismissing case as moot, except with respect to matters relating to attorney’s fees and costs, because agency complied with court’s earlier decision to release certain records to plaintiff; refusing to consider plaintiff’s belated argument that agency has a “systemic policy of delaying the release of records”; and rejecting plaintiff’s various protests about how agency released records, remarking that “[b]y continuing to litigate, it seems [plaintiff] is having a hard time accepting ‘yes’ for an answer.”

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

FOIA News: Peace Corps finalizes amendments to regulations

The Peace Corps published a final rule in the Federal Register on April 11, 2024, which reflect amendments to the agency’s FOIA regulations. The agency considered public comments, adopting several and rejecting others. The amendments are effective May 13, 2024.

FOIA News: D.C. Circuit argument on Tuesday, April 9

As we noted in our most recent monthly roundup, the D.C. Circuit will hear argument in the FOIA case in Connell v. CIA on April 9, 2024. The ACLU, which is representing the appellant, has issued a press release about the case. A live audio stream is available here.

Jobs, jobs, jobs: Weekly report, 4/8/24

Federal positions closing in the next 10 days

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24.

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24 (non-public).

Sup. Gov’t Info Specialist, Dep’t of Def./DCSA, GS 14, Boyers, PA, closes 4/8/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Liberty, NC, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of the Treasury/IRS, GS 14, closes 4/10/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 12, Offut AFB, NE, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Meade, MD, closes 4/11/24.

Gov’t Info Specialist, Dep’t of Veterans Affairs/VBA, GS 13, location negotiable, closes 4/11/24 (non-public).

Gov’t Info. Specialist, DHS/FEMA, GS 9-11, Washington, D.C., closes 4/11/24 (non-public).

Gov’t Info. Specialist, DHS/FEMA, GS 9-11, Washington, D.C., closes 4/11/24.

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Asheville, NC, closes 4/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VBA, GS 13, Overland, MO, closes 4/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Shreveport, LA, closes 4/12/24 (non-public).

Sup. Atty-Advisor, Dep’t of Justice/NSD, GS 15, Washington, D.C., closes 4/12/24.

Gov’t Info. Specialist, Dep’t of Justice/DEA, GS 7-9, Arlington, VA, closes 4/14/24 (non-public).

Gov’t Info. Specialist, Dep’t of Energy/WAPA, GS 12-13, various locations, closes 4/15/24.

Gov’t Info. Specialist, Dep’t of Energy/WAPA, GS 12-13, various locations, closes 4/15/24 (non-public).

Sup. Gov’t Info. Specialist, DHS/FEMA, GS 14, Washington, D.C., closes 4/15/24 or first 100 applications.

Sup. Gov’t Info. Specialist, DHS/FEMA, GS 14, Washington, D.C., closes 4/15/24 or first 100 applications (non-public)

Attorney Advisor, Dep’t of Justice/OIP, GS 12-15, Washington, D.C., closes 4/18/24.

Federal positions closing on or after April 19, 2024

Attorney Adviser Int’l, Dep’t of State, GS 12-13, Washington, D.C., closes 4/22/24.

Attorney Advisor Int’l, Dep’t of State, GS 14-15, Washington, D.C., closes 4/22/24.

Court opinion issued Apr. 4, 2024

Abissi. v. USCIS (D. Md.) -- granting government’s motion to transfer case involving asylum records to the U.S. District Court for the District of Columbia because only two of seven plaintiffs reside in Maryland and the responsive records are maintained in Missouri; rejecting plaintiff’s argument that venue could be established in Maryland based on the Maryland location of the agency’s Asylum Division headquarters.

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

Court opinion issued Mar. 31, 2024

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- on remand from the D.C. Circuit, holding that: (1) the names of federal contractors who supplied the Federal Bureau of Prisons (BOP) with pentobarbital qualified as commercial information under Exemption 4 because disclosure would reveal that “the contractors have sold a product and/or service to the government, thereby ‘actually reveal[ing] basic commercial operations” of the contractors.’”; (2) BOP established that the disputed contract terms were confidential under Exemption 4 by “showing how the contract terms at issue could be cross-referenced with public information to identify the contractors”; (3).BOP established that foreseeable harm would result from disclosure of the contractors’ names and contract terms by explaining that identified companies are “‘commonly subject to harassment, threats, and negative publicity leading to commercial decline’”; and (4) certain records needed to be reviewed in camera review to resolve whether DOJ had publicly shared withheld information.

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

FOIA News: CNN sues DOJ for Biden interview recordings

CNN sues for access to tape of Biden’s interview with investigators in classified docs probe

By Katelyn Polantz & Hannah Rabinowitz, CNN, Apr. 4, 2024

CNN has sued for access to recordings of federal investigators’ interview with President Joe Biden in the now-closed probe over his handling of classified documents.

The interview has become one of the most notable and politically controversial parts of special counsel Robert Hur’s investigation, which concluded there wasn’t enough evidence to charge Biden with criminal mishandling of records after his vice presidency. In a final report, Hur called Biden, 81, “a sympathetic, well-meaning, elderly man with a poor memory.”

The Justice Department released transcripts of Biden’s interview after Hur’s report was made public in February, but the department also has recordings.

Read more here.

Monthly Roundup: March 2024

Below is our roundup of FOIA court decisions and FOIA news from March 2024, as well as a peek ahead to April.

Court decisions:

We posted 27 decisions in March, the most active month of the year thus far. Of note, the D.C. Circuit’s decision in Leopold v. DOJ (Mar. 1, 2024) reminded agencies that they must sequentially analyze exemptions and foreseeable harm, which in this Exemption 8 case the agency failed to do. Although the Circuit stated in passing that the foreseeable harm requirement applied to “all exemptions, except Exemption 3,” a more recent district court opinion correctly pointed out that foreseeable harm would “always” be present when the government properly invokes Exemption 1. James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C. Mar. 26, 2024).

In the interval between the above two cases, the court in Inst. for Energy Research v. FERC (D.D.C. Mar. 13) found that FERC had reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms. In reaching its decision, the court relied on DOJ/OIP’s 1995 guidance on determining the scope of a FOIA request.

Top news:

On March 4, 2024, the Department of Justice’s Office of Information Policy (DOJ/OIP) announced that federal agencies received more than 1.1 million FOIA requests in fiscal year 2023, surpassing the government’s previous year’s total by nearly 30 percent. As FOIA Advisor reported the day before, the government’s backlog of requests increased slightly from 206,720 to 208,282.

The government released two major reports during ‘Sunshine Week,” which was observed from March 10, 2024, to March 16, 2024. First, on March 12, 2024, DOJ/OIP issued its annual FOIA Litigation and Compliance Report, which indicated among other things that 834 FOIA lawsuits had been filed in calendar year 2023. On the next day, March 13, 2024, the U.S. Government Accountability Office released an 80-page report entitled Freedom of Information Act: Additional Guidance and Reliable Data Can Help Address Agency Backlogs. In sum, GAO recommended that DOJ/OIP develop new guidance to ensure FOIA backlog reduction plans include clear goals, milestones, and timelines.

April lookahead:

April 3: DOJ training, Introduction to the Freedom of Information Act.

April 4: Meeting of the federal FOIA Advisory Commitee.

April 9: D.C. Circuit oral argument in Connell, III v. CIA, 23-5118. The lower court’s decision is here.

April 10: DOJ training, Processing a Request from Start to Finish.

April 17: Meeting of the Chief FOIA Officers Council.

Jobs, jobs, jobs: Weekly report, 4/1/24

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Justice, OIG, GS 11-12, Washington, D.C., closes 4/2/24 (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Washington, D.C., closes 4/2/24.

Gov’t Info Specialist, Dep’t of State, GS 9-11. Washington, D.C., closes 4/2/24 (non-public).

Gov’t Info. Specialist, EPA, GS 13, Lenexa, KS, closes 4/3/24 (non-public).

Paralegal Specialist, Dep’t of Def./USMC, GS 12, Quantico, VA, closes 4/3/24.

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Seattle, WA, closes 4/3/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, South Dakota, closes 4/3/24.

Gov’t Info Specialist, Dep’t of the Interior/BLM, GS 12, Remote, closes 4/5/24 or first 30 applications (non-public).

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24.

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24 (non-public).

Sup. Gov’t Info Specialist, Dep’t of Def./DCSA, GS 14, Boyers, PA, closes 4/8/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Liberty, NC, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of the Treasury/IRS, GS 14, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Meade, MD, closes 4/11/24.

Gov’t Info Specialist, Dep’t of Veterans Affairs/VBA, GS 13, location negotiable, closes 4/11/24 (non-public).

Federal positions closing on or after 4/12/24

Sup. Atty-Advisor, Dep’t of Justice/NSD, GS 15, Washington, D.C., closes 4/12/24.

Attorney Adviser Int’l, Dep’t of State, GS 12-13, Washington, D.C., closes 4/22/24.

Attorney Advisor Int’l, Dep’t of State, GS 14-15, Washington, D.C., closes 4/22/24.

Court opinions issued Mar. 26-March 29, 2024

Mar. 29, 2024

McKathan v. DHS (D.D.C.) -- deciding that: (1) plaintiff’s request to DHS for all records mentioning his “name, address, phone number, the investigation number listed in a seizure custody receipt, or subscriber or identifying information about U.S.-based users of ‘imgsrc.ru’” was not reasonably described, and plaintiff failed to exhaust his administrative remedies; (2) State Department conducted an adequate search in response to plaintiff’s similarly broad request; and (3) denying plaintiff’s request for discovery from DHS and the State Department; denying his request for Vaughn indices from DOJ and EOSUA, which were still processing plaintiff’s requests; and denying an expedited summary judgment schedule.

Mar. 28, 2024

Clay v. Dep’t of the Navy (M.D. Fla.) -- dismissing case as moot after determining that agency had released all previously withheld records disputed by plaintiff.

Staszak v. DOJ (D.D.C.) -- finding that plaintiff failed to exhaust his administrative remedies with respect to his requests to EOUSA and FBI pertaining to his son’s criminal conviction, noting that plaintiff obtained his son’s express written consent for those agencies to search for and process responsive records only after filing suit.

Mar. 27, 2024

Groenendal v. EOUSA (D.D.C.) -- ruling that (1) EOUSA and ICE performed adequate searches for various records pertaining to plaintiff’s imprisonment on child pornography-related charges; and (2) EOUSA properly withheld certain records pursuant to Exemptions 3, 5, 7(C), and 7(E), and met any applicable foreseeable harm requirement.

Mar. 26, 2024

James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C.) -- on renewed summary judgment, concluding that the government properly redacted a report containing ODNI’s intelligence assessment regarding the source of Havana Syndrome” pursuant to Exemptions 1, 3, and 7(E); stating further that the government “would easily satisfy” the foreseeable harm requirement if plaintiffs had contested it, noting that reasonable foreseeable harm “is always present when the Government properly invokes exemption 1, because significant harm from disclosure is a requirement for classification in the first place.”

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