FOIA News: Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

By Randall Chase, Associated Press, Aug. 6, 2024

A Delaware judge has refused to vacate a ruling denying a conservative media outlet and an activist group access to records related to President Joe Biden’s gift of his Senate papers to the University of Delaware.

Judicial Watch and the Daily Caller News Foundation sought to set aside a 2022 court ruling and reopen a FOIA lawsuit following the release of Special Counsel Robert Hur’s report about Biden’s handling of classified documents.

Read more here.

Court opinions issued Aug. 6, 2024

Connell v. Cent. Intelligence Agency (D.C. Cir.) — in a case concerning the CIA’s “operational control” over detainees at Guantanamo, affirming the agency’s use of a “Glomar response” to refuse to confirm or deny the existence of responsive records lest the CIA reveal classified intelligence sources and methods; rejecting the requester’s argument that the CIA waived its ability to assert Glomar based on a Senate Select Committee on Intelligence report because that report was not “official” and could not be attributed to the agency; further rejecting the requester’s alternative argument that disclosure of records from a database of materials “previously disclosed to the public” foreclosed the use of Glomar as to other potentially responsive records; noting that while the CIA’s supporting declarations “could have provided more detail” to support the use of a Glomar response they were adequate.

Am. Small Business League v. Small Business Admin. (N.D. Cal.) — on a motion for attorney’s fees and costs, granting the motion in part and denying it in part; holding that plaintiff was not “eligible” for fees pertaining to the production of Small Business Administration “PPP loan data” because the relevant “judicial order” ordering production was actually issued in another case (Washington Post Co. v. Small Bus. Admin., No. 20-1240 (D.D.C.)), despite the instant court relying on that order, and therefore there was no “causal nexus” between the agency’s production and plaintiff’s own lawsuit; further holding that plaintiff was eligible for fees pertaining to the production of supplemental data that was discovered after (and independent of) the Washington Post case, as well as certain interbranch communications; as to “entitlement,” ruling that plaintiff should not receive fees for certain records whose production was not unreasonably delayed; reducing the ultimate fee award due to plaintiff’s use of “block billing.”

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

Court opinion issued Aug. 5, 2024

Cox v. DOJ (2nd Cir.) -- affirming district court’s decision that a congressional committee’s report concerning the CIA’s post-9/11 detention and interrogation program was a “congressional” record, not an “agency” record subject to FOIA, even though it was disseminated to various federal agencies; in reaching its decision, the Second Circuit found that because the Committee “manifested a clear intent to control the report at the time of its creation, and because the Committee's subsequent acts did not vitiate that intent,” the agencies that possessed the report did not “control” it under the “intent test” adopted by the Circuit in Behar v. DHS (2nd Cir. 2022).

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

FOIA News: Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

By Nika Schoonover, Courthouse News Service, Aug. 5, 2024

A report produced by Congress on the CIA’s post-9/11 detention and interrogation program is not covered by the federal freedom of information law, a Second Circuit panel found Monday.

In the aftermath of the terrorist attacks of September 11, 2001, the Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the CIA. The committee then transmitted the report to various agencies covered under the federal Freedom of Information Act.

Read more here.

Monthly roundup: July 2024

Below we summarize the notable FOIA court decisions and news from last month, as well as a peek ahead to events in August.

Court decisions:

We identified and posted 15 decisions issued in July, the highest total since the month of March. The government fared well in at the appellate level with two affirmances in the D.C. Circuit—Cabezas v. FBI and Kowal v. DOJ—and one in the Eighth Circuit, Fogg v. IRS. All were fairly routine, however.

In the district courts, Judge McFadden of the D.D.C was faced with an interesting issue in Children’s Health Def. v. CDC, specifically whether executive departments are automatically parties when their components are sued. Based on “text and precedent,” he ruled that they did not.

News:

Congressman Adam Schiff introduced a bill on July 23, 2024, that would extend FOIA to the federal judiciary. FOIA Advisor criticized the bill in a commentary.

The Office of Government Information Services held its annual open meeting on July 24, 2024.

On July 18, 2024, the Office of Information Policy announced that it had added law enforcement records to its FOIA.gov search tool.

Lookahead to August

At some point in August, OGIS is likely to announce the new members of the FOIA Advisory Committee for the 2024-2026 term, whose first public meeting is September 9, 2024.

Aug. 15, 2024: Judge Carl Nichols of the U.S. District Court for the District of Columbia will hold a Motion Hearing in New Civil Liberties Alliance v. SEC, No. 22-cv-3567. The D.C. Circuit will not hear any matters in August.

Aug. 16, 2024: 30 business days before the end of fiscal year 2024. FOIA requests received on or after this date that involve “unusual circumstances” will not be considered backlogged in FY 2024 if unfulfilled.

Aug. 30, 2024: 20 business days before the end of FY 2024. Any FOIA requests received on or after this date will not be considered backlogged in FY 2024 if unfulfilled.

Jobs, jobs, jobs: Weekly report Aug. 5, 2024

Federal positions open for the next 10 days

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, multiple locations, closes 8/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Decatur, GA, closes 8/5/24 (internal to agency).

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, Hansom AFB, MA, closes 8/8/24 (non-public).

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

Gov’t Info. Specialist (TCF Trainee), Dep’t of Veterans Affairs/VHA, GS 9, Tampa, FL, closes 8/9/24 (non-public).

Gov’t Info. Specialist, Dep’t of Education, GS 12-13, Wash., DC, closes 8/12/24 (or 50 applications) (non-public).

Gov’t Info. Specialist, Envtl. Prot. Agency, GS 13, Lenexa, KS, closes 8/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Housing & Urban Dev./IG, GS 12-13, multiple locations, closes 8/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Housing & Urban Dev., GS 12-13, multiple locations, closes 8/13/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 8/14/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GS 9, Fort Meade, MD, closes 8/15/24 (non-public).

Court opinions issued Aug. 1, 2024

Shapiro v. Dep’t of Justice (D.D.C.) — faced with “the latest in a very long series of disputes between the parties,” ordering the FBI to process and produce the potentially responsive contents of the agency’s “Freedom of Information and Privacy Act Document Processing System (‘FDPS’)”; rejecting the FBI’s arguments that “substantive entries” in its FDPS were alternatively (1) outside agency control, (2) lacked “sufficient permanence” to be considered a “record,” or (3) would require “record creation” in order to disclose; similarly rejecting the FBI’s argument that production would “involve a ‘gargantuan’ effort,” as creating screenshots would not be “any different [than] the burden imposed in myriad FOIA cases.”

Reason Found. v. Fed. Bureau of Prisons (D.D.C.) — in a case involving BOP “mortality reviews” of inmate deaths, upholding in part the agency’s use of Exemption 5, in conjunction with the deliberative-process privilege, because mortality reviews are prepared to assist in high-level decisionmaking about inmate care and reflect non-factual opinions about the same; noting, however, that there is “uncertainty” as to whether portions of the reviews concerning administration of emergency care (e.g., CPR) is privileged, and allowing BOP to renew its motion for summary judgment; noting further that BOP waived privilege for a small subset of withholdings applied to “checkbox questions where [the agency] disclosed the narrative response to the same question.”

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

FOIA News: This and that

• A prominent economist has sued the IRS for failing to respond to his FOIA request concerning his failed bank. See Aliss Higham, IRS Sued by Economist After His Bank Was Shut Down, Newsweek, Aug. 1, 2023.

• The U.S. Secret Service has unsurprisingly denied several requests from Judicial Watch pertaining to the attempted assassination of former President Trump. In a press release issued on July 31st, Judicial Watch unsurprisingly threatened to bring suit.

• DOJ’s Office of Information Policy has updated its summary of court decisions through July 3, 2024.

• NARA’s Office of Government Information Services has posted the minutes and transcripts of all the 2024 meetings held by the federal FOIA Advisory Committee.

• The FBI recently posted a 1998 threat assessment pertaining to Justice Ruth Bader Ginsburg, as well as records from its background investigation conducted prior to her 1993 confirmation.

Court opinion issued July 30, 2024

Truesdale v. U.S. Pub. Health Serv. (D.D.C.) -- granting government’s motion for summary judgment after crediting affidavits of various agencies attesting that pro se plaintiff’s requests were never received, whereas plaintiff, a recently released federal inmate, was not able to provide any evidence beyond copies of his requests.

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

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.