Court opinions issued May 21, 2024

Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- on renewed summary judgment, concluding that: (1) DEA improperly relied on Exemption 6 in redacting “publicly available dates and attorney contact information connected to civil lawsuits”; (2) DEA properly invoked Exemption 6 to withhold names and identifying information of individuals who filed administrative claims against DEA, but that in camera review was required to evaluate certain records containing block redactions; and (3) DEA properly withheld remaining disputed information under Exemption 6, but failed to provide sufficient information to allow the court evaluate whether redacted information about a former DEA Academy trainee was truly identifying.

Driggs v. CIA (E.D. Va.) -- denying plaintiffs’ motion to compel a search of the CIA's operational files for records concerning Americans allegedly held as prisoners of war following the Korean War; finding that the requested records—if they exist—were protected by Exemption 3 in conjunction with the CIA Information Act, 50 U.S.C. § 3141, and that plaintiffs failed to show that any exceptions to the CIA Information Act applied.

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

FOIA News: NIH advisor evaded FOIA with agency's help, says House report

Explosive emails show top NIH adviser deleted records, used ‘secret’ back channels to help Fauci evade COVID transparency

By Josh Christenson, NY Post, May 22, 2024

A top adviser at the National Institutes of Health (NIH) deleted records critical to uncovering the origins of COVID-19 — and used a “secret back channel” to help Dr. Anthony Fauci and a federal grantee that funded gain-of-function research in Wuhan, China, evade transparency.

NIH senior adviser Dr. David Morens improperly conducted official government business from his private email account and solicited help from the NIH’s Freedom of Information Act (FOIA) office to dodge records requests, according to emails revealed in a memo by the House Select Subcommittee on the Coronavirus Pandemic, which The Post obtained Wednesday.

“[I] learned from our foia [sic] lady here how to make emails disappear after I am foia’d [sic] but before the search starts,” Morens wrote in a Feb. 24, 2021, email. “Plus I deleted most of those earlier emails after sending them to gmail [sic].”

Read more here.

Court opinion issued May 17, 2024

Am. Oversight v. HHS (D.C. Cir.) -- reversing the district court’s decision granting judgment to the government and ruling: (1) in a unanimous opinion, that HHS failed to perform an adequate search for records concerning healthcare reform because it omitted “obvious alternative terms,” such as the unabbreviated names of the ACA and AHCA statutes, “without a detailed explanation”; and (2) in a 2-1 opinion, that communications between agencies and Congress (or their staffs) did not fall within the Exemption 5’s consultant corollary doctrine, as interpreted by the U.S. Supreme Court in Klamath, because “each side had an independent stake in the potential healthcare reform legislation under discussion”; the dissent contended that FOIA’s “text, purpose, structure, and legislative history” supported withholding under Exemption 5, notwithstanding Klamath, and that “the ramifications of the majority’s contrary interpretation of FOIA are actually quite breathtaking.”

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

FOIA News: Heritage asks court to speed up Biden-Hur audio case

Conservative group tries to accelerate court fight over Biden-Hur audio

Democrats contend that Republicans want to use the recording as clips for campaign ads.

By Josh Gerstein, Politico, May 17, 2024

A conservative organization is urging a federal judge to speed up a court battle over access to audio recordings of five hours of interviews President Joe Biden had with a special prosecutor who later chose not to recommend criminal charges over allegations Biden mishandled classified information.

Lawyers for the Heritage Foundation argue in a new court filing that Biden’s invocation Thursday of executive privilege in response to a House subpoena for the audio adds urgency to three pending Freedom of Information Act lawsuits seeking the recordings.

Read more here.

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).