The National Law Review has this article on the U.S. District Court for the Central District of California's recent decision ordering the FDA to release new drug records even though the FDA had argued that they were protected pursuant to Exemption 4 of the FOIA. The article is authored by two attorneys from Mintz Levin.
The Supreme Court has denied a petition for writ of certiori by the Clearing House Association seeking to overturn a lower court decision that the Federal Reserve has to turn over the names of banks who took emergency loans during the financial crisis of 2008. Both Bloomberg, the requester and the government had opposed the Supreme Court hearing the case.
A case that had worked its way to the U.S. Supreme Court on procedural issues has finally been decided on its merits. United States District Court Judge Ricardo M. Urbina has decided that design information on the 1930's vintage Fairchild F-45 aircraft was not a trade secret. The courts ruling found that the designs were not secret (via letter from 1955 until a FOIA request in 1997 the aircraft's producer had allowed the Federal Aviation Administration to freely give the material out to anyone who sought it) and that the designs were not a trade secret because they had no commercial viability.
AOPA Online has more background on the case here. AOPA is the Aircraft Owners and Pilots Association.
The Blog of the Legal Times reports that Menlo Worldwide Government Services has filed a reverse-FOIA action enjoining the military from releasing a majority of its winning proposal on a $1.5 billion contract addressing logistics issues. We will see how this one turns out.
Bloomberg News reports that the Federal Reserve will not appeal the decision in a case brought by Bloomberg News that the government must release details of emergency loans it made to large banks in 2007 when the U.S. economy was crashing. However, the banks, the recepient of the taxpayer aid, have asked the Supreme Court to review the decision and bar the Federal Reserve from making the release of the information.
If the Supreme Court accepts the case, it will be an uprecendented fourth FOIA case to go before the Supreme Court this session.
In March of 2010, a three-judge panel of the United States Court of Appeals for the Second Circuit ordered the Federal Reserve ("Fed") to release to Bloomberg, plaintiff in the FOIA lawsuit, details of its emergency lending program it used in 2008. The Fed appealed to the entire court (for non lawyers, this is called an en banc appeal). The decision of the full court was recently made, and it affirmed the earlier decision of the three judge panel. Reporters Committee for Freedom of the Press has more on the decision here.
The Fed asked for a stay from release so that it could consider whether or not to appeal the matter to the Supreme Court. According to Bloomberg, the Fed received a 60 day stay to make its decision. If the appeal is taken by the Supreme Court, it would be the third active FOIA matter before it.
One individual, Stephen Foley writes in from England in the Independent that he believes the decision ordering release of the information should be fought and that disclosure of this material is not warranted.
According to Bloomberg News, the Federal Reserve has sought full en banc review by the Second Circuit of a Circuit panel's decision that the Fed must disclose the identities of banks that took taxpayer money through its emergency lending window during the banking panic of the closing months of the Bush administration.
Seeking en banc review is the final step the case can take before it is before the Supreme Court. The Fed continues to argue that disclosing the identities of these banks will deter the banks from using the emergency provisions the Fed set up to help them during financial crisises. Of course, it could also be said that avoiding financial crisises by bad decision making in the first place would save everyone time, money and jobs; disclosure of the identities of these banks to stockholders and the public (who funded the loans in the first place) would go a long way to achieve better ran banks.
Last month a court ruled that the FAA could not withhold the list of jets that didn't want to be publicly known. ProPublica has now received the list and the USA Today has this report on it.
The National Business Aviation Association had tried to claim that the identities were covered by Exemption 4 of the FOIA. Following litigation, a court ruled that the material was not confidential business informaiton and may be released by the government.
The Small Business Administration("SBA") has been sued by the American Small Business League ("ASBL") in the U.S. District Court in Northern California over its refusal to turn over contracts the SBA had concerning public relations. The ASBL has sued the SBA in the past over its reluctance to turn over documents.
The ASBL wants to know what the contracts are really for, they suspect that they were to hire consultants to help them obscure the SBA's role in diverting billions of dollars a month in federal small business contracts to Fortune 500 firms and other large businesses around the world.
The SBA cited exemption 4 as its reason for withholding the information; however, as the documents attached to the complaint show, the SBA really provided no real answers as to what is in these contracts; nor is their explanation for the contracts to the ASBL very detailed. Obviously, they didn't learn much from the public relations tutoring they contracted for.
The United States Court of Appeals for the District of Columbia has remanded lower court decisions for further agency review. The Department of Defense had found that information sought in two FOIA requests was not exempt under FOIA exemption 4; the submitters of the information filed Reverse-FOIA actions and the district court agreed with the DOD. The submitters (Sikorsky and Pratt and Whitney) appealed. The Court of Appeals found that the government's response that the material would not cause the submitters confidential harm was insufficient and remanded the case for further proceedings.