Court opinions issued July 29, 2024

Bermudez v. DOJ (W.D. La.) -- denying attorney’s fees in connection with plaintiff’s request for immigration court case file after determining that: (1) plaintiff was ineligible for an award because he did not obtain relief through judicial order, and the Executive Office for Immigration Review initiated the processing of plaintiff’s request “well before” the lawsuit was filed; and (2) even if plaintiff had substantially prevailed, he would not have been entitled to fees because his request was motivated by personal and commercial interests and EOIR did not deny the request or withhold any records.

Daniels v. Raimondo (N.D. Ill.) -- concluding that U.S. Census Bureau, plaintiff’s former employer, clearly established that its search was reasonably designed to find plaintiff’s personnel records, even if two items plaintiff sought ultimately were not found; rejecting plaintiff’s argument that the agency released several fake documents and noting that plaintiff would not be entitled to any relief under FOIA even if such fabrication had occurred.

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

Jobs, jobs, jobs: Weekly report July 29, 2024

Federal positions closing in the next ten days

Gov’t Info. Specialist, Dep’t of Veterans Affairs, VHA, GS 12, Fresno, CA, closes 7/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Def., GS 13, Pentagon, Arlington, VA, closes 7/30/24.

Gov’t Info. Specialist, Dep’t of Homeland Sec./CIS, GS 12, remote, closes 7/31/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 12, Air Force Academy, CO, closes 8/1/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Maxwell AFB, AL, closes 8/2/24.

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Wash., DC, closes 8/6/24.

Att’y-Advisor, Dep’t of Justice/NSD, GS 13-15, Wash., DC, closes 8/7/24.

Gov’t Info. Specialist, Dep’t of the Treasury/OCC, NB 5, Wash., DC, closes 8/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Hanscom AFB, MA, closes 8/8/24 (non-public).

Federal positions closing on or after August 9, 2024

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, Wash., DC, closes 8/9/24 (non-public).

Court opinions issued July 25-26, 2024

July 26, 2024

Cabezas v. FBI (D.C. Cir.) -- affirming district court’s decision that: (1) FBI conducted a reasonable search for records concerning plaintiff’s child pornography-related conviction; and (2) FBI properly withheld information pursuant to Exemptions 5, 6, 7(C), and 7(E).

Louise Trauma Ctr. v. USCIS (D. Md.) -- dismissing, as moot, lawsuit seeking records related to the training and performance of asylum officers, because the complaint challenged only the agency’s failure to timely produce records and the agency subsequently produced records, albeit with redactions; ruling that plaintiff could not amend its original complaint via a responsive filing and that it “must first challenge the redactions by appealing to the head of the agency before it seeks a judgment from this Court.”

July 25, 2024

Inst. for Energy Research v. FERC (D.D.C.) -- concluding that FERC properly relied on the deliberative process privilege and Exemption 6 to redact communications exchanged between agency lawyers and White House counsel as part of FOIA consultation process; further finding that foreseeability requirement was met for both exemptions, specifically the “chilling effect” that disclosure would entail, as well as “annoyance, threats, embarrassment” to agency employees.

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

Court opinion issued July 24, 2024

Children's Health Def. v. CDC (D.D.C.) -- in dispute concerning COVID-19 vaccine safety-monitoring records sent to FDA for consultation, ruling that: (1) HHS was not a party to the case by operation of law, but allowing it to move for a stay as an intervenor; and (2) granting stay for six months because several judges in same district had already issued stays affecting access to the same documents, and because FDA was burdened by an “extraordinary production” schedule imposed by a federal court in Texas.

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

FOIA News: Interior-BLM responds to backlog complaints

Stone-Manning says BLM trying to reduce FOIA backlog

But a leader with PEER said the agency isn’t taking sufficient steps to provide information more quickly.

By Scott Streater, E&E News, July 24, 2024

The head of the Bureau of Land Management acknowledged in a recent letter to a conservation group that the agency has a problem responding to open records requests, but said officials are taking substantive steps to resolve the issue.

BLM Director Tracy Stone-Manning, in a letter sent last week to Public Employees for Environmental Responsibility, wrote that the bureau this year has implemented a series of moves designed to whittle down a Freedom of Information Act backlog of nearly 1,600 requests.

But PEER Rocky Mountain Director Chandra Rosenthal wrote Wednesday in a blog post on the watchdog group’s website that the moves outlined in Stone-Manning’s letter are “equivalent to trying to reduce an iceberg one ice cube at a time.”

Read more here (subscription required).

FOIA Commentary: "Your Honor, May It Please the Court . . . I'd like to file a FOIA request!"

As FOIA Advisor reported yesterday, Adam Schiff, a prominent Democrat in the U.S. House of Representatives, has introduced a bill that would make the judicial branch subject to the Freedom of Information Act (“FOIA”). That legislation is called the “Judicial FOIA Expansion Act.” A copy of the congressman’s press release is available here. FOIA Advisor’s “legal eagles,” Ryan Mulvey and Allan Blutstein, offer their thoughts on Rep. Schiff’s proposal.

RM: I am not opposed to expanding the FOIA to cover parts of the legislative and judicial branches. In a 2019 article published in The Journal of Civic Information, my co-author and I suggested that Congress should consider making legislative branch agencies subject to the FOIA. (That scholarship was cited in the 2020-2022 FOIA Advisory Committee Final Report to support just such a recommendation.) The same logic cuts in favor of extending the FOIA to judicial support offices and agencies, such as the Administrative Office of the Courts. The Schiff bill, however, goes far beyond any modest attempt to make administrative agencies of the judicial branch subject to the FOIA. It would make the courts themselves, and the judges who fill their benches, “agencies.” I think that reform is ill-considered.

I’ll highlight what I think are the two biggest problems with this legislation.

First, the re-definition of an “agency” is awkwardly accomplished with a series of changes to Section 551. The bill would create a carve-out to the current exclusion of “courts” from the general APA definition of “agency,” as well as add a lengthy definition for “court of the United States.” This latter definition would perplexingly include non-court entities like the Sentencing Commission and Federal defenders. That’s a bizarre approach. The more natural change would be to modify the FOIA’s definition of “agency” at Section 552(f)(1), which is already different than Section 551(1), and then call it a day.

More troublingly, the proposed re-definition of “court of the United States” is extraordinarily expansive. It would include basically the entire federal judiciary, save the Foreign Intelligence Surveillance Court. It would even include “security or protective service[s]” that contract with the judicial branch, without regard for whether they are non-governmental vendors. On this last point, it may be possible to quibble with what it means to “use[] funds appropriated,” but allowing for such ambiguity is dangerous. It seems unnecessary to make security companies subject to the FOIA tout court, as opposed to ensuring agency control (through a governmental entity) over records concerning the performance of their contracted duties.

Second, the scope of this bill has been perhaps misleadingly described by Rep. Schiff on Twitter/X and in his office’s press release. We’re not just talking about access to “administrative records,” or materials under the control of the “administrative apparatus of the judicial branch.” Plainly read, this bill would make courts themselves (i.e., judges) into “agencies.” To be sure, there would be new, special exemptions, including for “[a]ny matter related to an ongoing case.” But that sort of provision presents its own problems. What happens when a case is no longer “ongoing”? The FOIA’s current exemptions would still be available, but do in-chambers deliberations qualify for withholding under Exemption 5? Under the deliberative-process privilege? Under what one article has called the “obscure doctrine” of judicial privilege? There is a lot of unknown territory here that hasn’t been well thought out. And don’t get me started on the proposed exemption for “[a]ny information not in the possession of the courts.” We’ve long moved past physical possession as determinative for legal control in FOIA jurisprudence. This kind of language has the potential to muck things up.

Let’s be honest. If this bill were ever to pass—and the chances are admittedly quite low—judges would be inundated with requests for their email and text messages. At a purely practical level, and setting other legal objections (even constitutional), if legislators aren’t willing to make themselves, let alone the President, subject to the kind of public scrutiny those comes with the FOIA, why should federal judges be treated differently?

AB: “Ill-considered” is a politer term than I would used to describe the Judicial FOIA Expansion Act, so it is probably for the best that you led off. This bill “cannot be taken seriously”—to borrow a phrase from Justice Scalia—for all of the reasons you mentioned, Ryan, particularly access to judicial communications. And if that possibility wasn’t apparent from the bill’s text or Congressman Schiff’s press release, Newsweek cleared things up with this headline: Supreme Court's Private Emails Could Be Made Public Under New Bill.

Since you mentioned the federal FOIA Advisory Committee, I’ll add that a champion of this bill, Michael Lissner of the Free Law Project, argued for greater judicial transparency in a March 3, 2021 presentation to the Committee (on which I served at the time). To his credit, Lissner recognized that a request model would raise problems, such as requests for voluminous records, establishing a workable appeal process, and the prospect of judges souring on FOIA oversight. Congressman Schiff’s bill does not overcome any of those problems. Notably, Lissner did not in 2021 suggest that communications to and from judicial chambers should be available, and I doubt many Committee members would have been receptive to that idea. Indeed, Lissner’s presentation engendered only one direct reaction, specifically from Villanova University professor Tuan Samahon, who recommended enacting a separate, affirmative disclose statute for certain judicial records instead of FOIA’s request model. Professor Samahon was right.

FOIA News: Reminder of OGIS open meeting

The Office of Government Information Services is hosting its annual Open Meeting virtually at 10AM on Wednesday, July 24, 2024. An agenda is available here. A livestream is available here.

FOIA News: House bill seeks to extend FOIA to the judiciary

Adam Schiff, a Democrat who serves on the U.S. House Judiciary Committee, has introduced a bill—the Judicial FOIA Expansion Act—that would subject the judicial branch to unlimited FOIA requests.

Read Congressman Schiff’s press release here.

Court opinion issued July 22, 2024

Cole v. Locascio (D.D.C.) -- on renewed summary judgment, adopting magistrate’s report and recommendation finding that: (1) Federal Emergency Managment Agency performed an adequate search for records concerning agency’s study of the collapse of the World Trade Center in 2001, rejecting plaintiff’s objections that FEMA failed to produce specific, non-exempt documents or that it was obligated to search 490,000 pages maintained by the National Archives and Records Administration; (2) plaintiff’s claim against the National Institute of Standards and Technology was moot because plaintiff received all the records he sought.

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

Jobs, jobs, jobs: Weekly report July 22, 2024

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of the Army, Nat’l Guard, GS 9, Frankfort, KY, closes 7/22/24 (non-public).

Gov’t Info. Specialist, Dep’t of Def./DCSA, GG 9, Boyers, PA, closes 7/22/24.

Info. Release Specialist, Dep’t of the Army,, GS 9-12, Quantico, VA, closes 7/22/24 (non-public).

Att’y Advisor, Dep’t of Justice/EOIR, GS 13-14, Falls Church, VA, closes 7/24/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GG 7-11, Fort Belvoir, VA, closes 7/24/24.

Sup. Gov’t Info. Specialist, Dep’t of Housing & Urban Dev., GS 14, Wash., DC, closes 7/24/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Air Force, GS 13, Kelly AFB & Lackland AFB, TX, closes 7/25/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, Langley AFB, VA, GS 9, closes 7/25/24 (non-public).

Gov’t Info. Specialist, Envt’l Prot. Agency, GS 12-13, Durham, NC, closes 7/26/24 (non-public).

Gov’t Info. Specialist (trainee), Dep’t of Veterans Affairs/VHA, GS 9, Madison, WI, closes 7/26/24 (internal agency).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, VHA, GS 12, Fresno, CA, closes 7/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Def., GS 13, Pentagon, Arlington, VA, closes 7/30/24.

Gov’t Info. Specialist, Dep’t of the Air Force, GS 12, Air Force Academy, CO, closes 8/1/24 (non-public).

Federal positions closing on or after August 2, 2024

Att’y-Advisor, Dep’t of Justice/NSD, GS 13-15, Wash., DC, closes 8/7/24.

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, Wash., DC, closes 8/9/24 (non-public).