Court opinion issued Aug. 25, 2024

Am. First Legal Found. v. FTC (D.D.C.) — in a case involving a request for records about the FTC’s regulation of Twitter, granting the government’s partial motion to dismiss; rejecting the requester’s first alternative disclosure claim under the APA for failure to state a claim because the FOIA provides an adequate remedy; also rejecting a second alternative claim under the Mandamus Act for lack of subject-matter jurisdiction; allowing the requester’s challenge under FOIA to the FTC’s use of Exemption 7(A) to proceed.

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

Court opinions issued Aug. 23, 2024

Mullane v. DOJ (1st Cir.) — affirming district court’s decision that DOJ performed adequate search for records concerning its termination of plaintiff as a law student intern in 2018.

Holmes-Hamilton v. FBI (D.D.C.) — in a case involving multiple requests from survivors of three American vacationers who mysteriously died at a Dominican Republic resort, granting the FBI’s motion for summary judgment and upholding its withholding of toxicology reports, and other related records, under Exemption 7(E), which protects against the disclosure of law enforcement techniques and procedures; rejecting the FBI’s appeal to Exemption 7(D) because Dominican law enforcement authorities were not a “confidential source” and their collaboration with the FBI was never a secret; also concluding the FBI satisfied the foreseeable-harm standard and FOIA’s segregability requirement.

Judicial Watch, Inc. v. HHS (D.D.C.) — in a case concerning a request for the identity of two NIH employees involved with a research grant involving the use of human fetal tissue, granting HHS’s motion for summary judgment and upholding its use of Exemption 6 given the “sensitivity” and controversy of research into fetal tissue; noting also that the requester failed to articulate a public interest sufficient to outweigh the substantial privacy interests at stake because the identities of these employees would not shed light on official agency activities; otherwise concluding the agency satisfied the foreseeable-harm standard and rejecting the requester’s motion for limited discovery.

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

Court opinion issued Aug. 21, 2024

Libarov v. ICE (N.D. Ill.) -- determining that agency performed a reasonable search for records concerning its investigation of plaintiff for entering into a sham marriage, and that it properly withheld an investigatory report pursuant to Exemption 7(A), except for portions that set forth “basic personal information” regarding plaintiff.

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

Court opinions issued Aug. 20, 2024

Citizens for Responsibility & Ethics In Wash. v. DOJ (D.D.C.) -- in case seeking records about unprosecuted individuals who might have been involved in campaign finance violations committed by Michael Cohen on behalf of Donald Trump, ruling that: (1) portions of portions of DOJ’s declarations related to correspondence between the U.S. Attorney’s Office for the Southern District of New York and DOJ headquarters were “too conclusory and vague” to justify withholdings under Exemptions 5, 6, or 7(C); (2) DOJ properly relied on Exemptions 6 and 7(C) to withhold search warrant records; and (3) DOJ properly relied on Exemption 5’s attorney-work product privilege to withhold reports and notes of interviews conducted during the SDNY’s investigations into potential campaign finance violations and obstruction of justice.

Pretzman v. Mayorkas (D.D.C.) -- dismissing plaintiff’s FOIA claim concerning the Secret Service’s disclosure of plaintiff’s cellular number to entities investigating the attack on the U.S. Capitol on January 6, 2021, because plaintiff’s request—which the agency processed as a request for an accounting of disclosures under the Privacy Act -- sought answers to questions rather than documents and, alternatively, was not reasonably described.

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

Jobs, jobs, jobs: Weekly report Aug. 26, 2024

Federal positions closing in the next ten days

Gov’t Info. Specialist, Dep’t of Def./DCSA, GG 12, Fort Meade, MD, closes 8/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VBA, GS 13, Overland, MO, closes 8/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 7-11, multiple locations, closes 8/26/24 (non-public).

Info. Mgmt. Specialist, Permitting Council, GS 13, remote, closes 8/27/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GG 13, Fort Meade, MD, closes 8/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, White City, OR, closes 8/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11-12, Asheville, NC, closes 9/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 13, nationwide, closes 9/5/24 (non-public).

Court opinions issued Aug. 19, 2024

Citizens for Responsibility & Ethics in Wash. v. DOJ -- following in camera review of records related to DOJ’s monitoring of certain elections, finding that: (1) DOJ properly withheld some but not all records pursuant to Exemption 5’s deliberative process privilege, and all of DOJ’s attorney work-product privilege withholdings were proper; (2) DOJ’s single-sentence justification of foreseeable harm was insufficient, but not fatal for withheld information whose sensitivity was “obvious in context”; and (3) DOJ failed to show that records withheld under Exemption 7(A) concerned pending proceedings or that disclosure would interfere with such proceedings.

Buzzfeed v. DOJ (D.D.C.) -- concluding that: (1) Executive Office for United States Attorneys performed adequate search for communications of named U.S. Attorneys pertaining to a criminal case, but it failed to sufficiently specify search terms used to locate communications of named Assistant U.S. Attorneys; (2) granting EOUSA’s withholdings under Exemptions 7(A), 7(D), and 7(F) as conceded by plaintiff, but denying agency’s categorical withholdings under Exemptions 5, 6, and 7(C) because agency offered only “broad explanations supporting the applicability of [the exemptions] to generalized categories of documents.”

Abhyanker v. USPTO (N.D. Cal.) -- determining that: (1) Patent & Trade Office performed reasonably searches for specific records that plaintiff requested concerning agency’s disciplinary case against him; (2) agency properly withheld certain records pursuant to Exemption 5’s attorney work-product and deliberative process privilege, as well as Exemptions 6, 7(A), and 7(C).

Rolling Stone LLC v. DOJ (S.D.N.Y.) -- denying plaintiff’s motion to compel DOJ to apply for an Open America stay because the motion was “really just a veiled request” to expedite DOJ’s ongoing production of documents and no “compelling need” for expedition existed.

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

FOIA News: DOJ training dates for FY25

OIP Announces New FOIA Training Dates for Fiscal Year 2025

DOJ/OIP, FOIA Post, Aug. 21, 2024

Today, the Office of Information Policy (OIP) announces new dates for FOIA training during for the first half of Fiscal Year 2025.  As part of its responsibility to encourage agency compliance with the FOIA, OIP offers numerous training opportunities throughout the year for agency FOIA professionals and individuals with FOIA responsibilities. 

These courses are designed to offer training opportunities for personnel from all stages of the FOIA workforce, from new hires to the experienced FOIA professionals or FOIA managers.  OIP will continue to offer virtual training sessions that will be taught in real-time by OIP instructors.  We will announce more training opportunities for the spring and summer at a later date.  As Fiscal Year 2025 quickly approaches, we are excited to announce our upcoming virtual training courses. You can find these courses, listed on OIP’s Training page.

Read more here.

Court opinions issued Aug. 16, 2024

Brodsky v. FBI (N.D. Ill.) -- finding after in camera review that: (1) FBI properly relied on Exemptions 3, 5, 6, 7(C), 7(D), and 7(E) to withhold records pertaining to plaintiff; and (2) FBI properly refused to confirm or deny the existence of records concerning specific third parties pursuant to Exemptions 6 and 7(C).

Organized Cmtys. Against Deportations v. ICE (N.D. Ill.) -- following in camera review of sample documents concerning agency’s Citizens Academy, ruling that Agency properly withheld records pursuant to Exemptions 6 and 7(E).

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

FOIA News: OGIS officially announces first two advisory committee meetings

The Office of Government Information Services has announced that the federal FOIA Advisory Committee for the 2024-2026 term will hold its first two meetings on Monday, September 9, 2024, from 10 a.m. to 1 p.m. EDT, and Friday, September 13, 2024, from 10 a.m. to 1 p.m. EDT. The first meeting will be held in person; the second will be virtual only. See more details in the Federal Register notice.

FOIA News: FOIA requests do not confer standing in constitutional case against CPSC, opines professor

Supreme Court Should Not Review Phony Separation of Powers Case

By Alan B. Morrison, Regulatory Rev., Aug. 19, 2024

At the U.S. Supreme Court’s September conference, it will be asked, in Consumers’ Research v. Consumer Product Safety Commission, to grant review and decide an important separation of powers question: whether the statutory provision that protects the five Consumer Product Safety Commission (CPSC) commissioners from being removed from office at-will by the President, except for neglect of duty or malfeasance in office, is constitutional. However, because the petitioners lack standing, the Court should deny review and await a case in which the issue is properly presented.

* * *

To begin, the petitioners, including Consumers’ Research, are not manufacturers or sellers of a product that the CPSC regulates; they are not subject to any CPSC regulations; and they have not had any enforcement actions brought against them. They also do not allege that the CPSC has, for example, failed to regulate toys such that their children are placed in danger. Instead, they are two educational organizations that often submit requests for CPSC records under the Freedom of Information Act (FOIA), and they did so here.

Read more here.