Court opinion issued May 16, 2024

Guarascio v. FBI (D.D.C.) -- on renewed summary judgment uncontested by plaintiff, ruling that: (1) FBI established that it performed a reasonable search for records related to plaintiff’s conviction for manufacturing child pornography, in part, by averring that it “searched all locations and files reasonably likely to contain responsive records, and there is no basis for the FBI to conclude that a search elsewhere would reasonably be expected to locate responsive records subject to the FOIA”; and (2) FBI properly relied on Exemption 7(D) to withheld certain records from a file received from the North Carolina State Bureau of Investigation, which contained “clear indicators,” including express markings, that the material was confidential.

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

Jobs, jobs, jobs: Weekly report 5/20/24

Federal positions closing in the next ten days

Lead Gov’t Info. Specialist, Dep’t of Def./HQ, GS 14, Alexandria, VA, closes 5/20/24 (non-public).

Lead Gov’t Info. Specialist, Dep’t of State, GS 14, Arlington, VA, closes 5/21/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Army, GS 14, Fort Belvoir, VA, closes 5/22/24 (non-public).

Gov’t Info. Specialist, Dep’t of Transportation/FAA, FV H, Washington, D.C., closes 5/23/24 (non-public).

Gov’t Info. Specialist, Dep’t of Transportation/FAA, FV I, Washington, D.C., closes 5/23/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Interior/HQ, GS 14, remote, closes 5/24/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 14, Washington, D.C., closes 5/26/24.

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 14, Washington, D.C., closes 5/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 9-13, Washington, D.C., closes 5/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 9-13, Washington, D.C., closes 5/26/24.

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Redstone Arsenal, AL, closes 5/27/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/OSHA, GS 9, multiple locations, closes 5/27/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Washington, D.C., closes 5/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/IG, GS 9-11, Washington, D.C., closes 5/28/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 14, Washington, D.C., closes 5/28/24.

Sup. Gov’t Info. Specialist, Dep’t of the Treasury, GS 14, Washington, D.C., closes 5/28/24 (non-public).

Federal positions closing on or after 5/31/24

Gov’t Info. Specialist, Dep’t of State, GS 12-13, Washington, D.C., closes 5/31/24 (State employees).

Att’y-Advisor, Office of Mgmt. & Budget, GS 13, Washington, D.C., closes 5/31/24.

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Court opinion issued May 15, 2024

Luthmann v. FBI (M.D. Fla.) -- concluding that: (1) for portion of request concerning third parties, FBI properly used a Glomar response pursuant to Exemptions 6 and 7(C); (2) FBI performed adequate search for records pertaining to plaintiff’s investigation for fraud and extortion; (3) FBI properly relied on Exemption 3 to withhold grand jury records, pen register information, wiretap information, intelligence information, bank records, and export control enforcement information; and (4) government properly withheld other records pursuant to Exemptions 5, 6. 7(C), and 7(E), as well as court-sealed records.

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

Court opinion issued May 14, 2024

Pickering v. DOJ (W.D.N.Y.) -- ruling on disputed portions of magistrate judge’s report and recommendations that: (1) magistrate did not err in finding that ATF failed establish that voices on audiotapes were not reasonably segregable; ordering agency to explain in a sworn declaration what happened to 16 tapes that ATF now claims are missing and two that were destroyed; (2) because FBI did not withhold handwritten notes pursuant to Exemption 5’s deliberative process privilege, magistrate erred in granting summary judgment to plaintiff on this ground; (3) FBI’s failure to identify which pages of 14,000 withheld pages fell within Exemption 7(A), combined with the FBI’s “exceedingly vague and amorphous characterization of any prospective law enforcement proceeding,” made it “impossible” for the court to assess the FBI exemption claim; and (4) magistrate did not err in finding that ATF’s justification for its use of Exemption 7(F) lacked reasonable specificity.

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

Court opinion issued May 10, 2024

Borowski v. U.S. Customs & Border Prot. (W.D.N.Y.) -- finding that: (1) agency failed to adequately explain its search methodology in response to request for records concerning plaintiff; and (2) agency’s Vaughn Index lacked sufficient detail to allow court to evaluate withholdings under Exemptions 6, 7(C), and 7(E); and (3) agency’s withholding claim under Exemption 5’s deliberative process privilege also lacked a sufficient basis, nor did agency meet its foreseeable harm burden.

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

Jobs, jobs, job: Weekly report 5/13/24

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Fed. Deposit Ins. Corp., CG 12, multiple locations, closes 5/13/24 (FDIC only).

Gov’t Info. Specialist, Dep’t of the Navy, GS 12-23, Quantico, VA, closes 5/13/24 (non-public).

Super. Mgmt. Analyst, Dep’t of the Air Force, GS 11, Elmendorf AFB, AK, closes 5/13/24 (non-public).

Gov’t Info. Specialist, Dep’t of Justice/NSD, GS 11-12, Washington, DC, closes 5/15/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 13, multiple locations, closes 5/15/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Army, GS 14, Fort Belvoir, VA, closes 5/15/24 (non-public).

Archives Specialist, Nat’l Archives & Records Admin., GS 9-11, College Park, MD, closes 5/15/24 (non-public).

Records & Info. Mgmt. Specialist, Dep’t of the Army, GG 12, Fort Meade, MD, closes 5/16/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/SOL, GS 12-13, Washington, D.C., closes 5/16/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 9, remote job, closes 5/17/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/Sec’y, GG 11-12, Washington, D.C., closes 5/17/24.

Ass’t Gen. Counsel, Dep’t of Justice/BOP, GS 12-15, Washington, D.C., closes 5/17/24.

Gov’t Info. Specialist, Dep’t of Transportation/FAA, FV H, Washington, D.C., closes 5/23/24 (non-public).

Gov’t Info. Specialist, Dep’t of Transportation/FAA, FV I, Washington, D.C., closes 5/23/24 (non-public).

Federal positions closing on or after 5/24/24

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 14, Washington, D.C., closes 5/26/24.

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 14, Washington, D.C., closes 5/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 9-13, Washington, D.C., closes 5/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/HQ, GS 9-13, Washington, D.C., closes 5/26/24.

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Washington, D.C., closes 5/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/IG, GS 9-11, Washington, D.C., closes 5/28/24 (non-public).

FOIA News: Sunlight for Sale: New Study Exposes Old Flaws in the Freedom of Information Act

Sunlight for Sale: New Study Exposes Old Flaws in the Freedom of Information Act

Was Scalia right about FOIA and its use and misuse?

By JPat Brown, WhoWhatWhy, May 9, 2024

In the March/April 1982 issue of Regulation, the policy periodical then published by the American Enterprise Institute, a 46-year-old University of Chicago law professor (and editor of the magazine) by the name of Antonin Scalia offered his thoughts on the Freedom of Information Act (FOIA). 

* * *

According to a study published this March by journalism professors A.Jay Wagner and David Cuillier, entitled a “Tale of two requesters: How public records law experiences differ by requester types,” much of what Scalia wrote over 40 years ago remains true of both FOIA and its state and local equivalents. 

Read more here.

Court opinion issued May 3, 2024

Boundaoui v. FBI (N.D. Ill.) -- following in camera review of sample documents, deciding that: (1) FBI improperly relied on Exemption 7(C) to redact race, ethnic information, and nationality of people investigated, because disclosure would not increase risk of identification; (2) FBI properly withheld various categories of records pursuant to Exemption 7(E); (3) FBI met its burden to show that the withheld information could not be further segregated and released.

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

Court opinion issued May 1, 2024

VRA Enters. v. CMS (M.D. Fla.) -- denying government’s motion to dismiss and oddly ruling that: (1) HHS Office of Inspector General’s response that it did not maintain requested records (and forwarding request to CMS) was not an adverse determination triggering exhaustion requirement; and (2) OIG's response letter failed to notify plaintiff of its right to seek assistance from a FOIA Public Liaison, and therefore it did not trigger actual exhaustion.

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

Monthly roundup: April 2024

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

Court decisions:

We posted 8 decisions in April, the least active month of the year by far. Of note, in Campaign for Accountability v. DOJ (D.D.C.), the court held that the Office of Legal Counsel’s “formal, written opinions resolving interagency disputes” are subject to FOIA’s reading room provision, 5 U.S.C. § 552(a)(2)(A) because such opinions are “final opinions . . . made in the adjudications of cases.” In reaching its decision, the court rejected the government’s argument that because OLC opinions may not resolve questions of agency policy, they were not “final” opinions for purposes of section 552(a)(2)(A).

In our March roundup, we jumped the gun and omitted a meaningful decision that was issued on Sunday, March 31st, namely Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.). On remand from the D.C. Circuit, the court concluded, in part, that the names of federal contractors who supplied the Federal Bureau of Prisons 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.’”

Top news:

Following a hectic March, which included “Sunshine Week,” April was more sluggish. The Chief FOIA Officers Council met for the first time this year on April 17, 2024, and discussed, among other topics, the U.S. Open Government National Action Plan, highlights of FY 2023 Annual Reports, and GAO’s report on FOIA backlogs.

May events:

May 7, 2024: DOJ course, Procedural Requirements, and Fee and Fee Waivers Training

May 9, 2024: Federal FOIA Advisory Committee meeting

May 14-15, 2024: NexGen FOIA Tech Showcase 2.0

May 21, 2024: DOJ course, Litigation Training

May 23, 2024: DOJ course, Administrative Appeals, FOIA Compliance, and Customer Service Training