The Washington Post has this on the DC Circuit's decision that students can qualify for the Educational Institution Fee Status under the FOIA - prior to this decision only professors usually were granted this fee status.
A panel of judges in the Ninth Circuit case, Animal Legal Defense Fund v. FDA, has urged the entire court to go en banc to discuss the standard of review the circuit uses in FOIA cases. Currently, the Ninth Circuit reviews FOIA cases under the "clear error" standard of review. Other circuits, such as the District of Columbia Circuit review under the same de novo standard used by district courts in making summary judgment decisions.
In urging en banc review, The panel explained that because of the Ninth Circuit standard of clear error they had no choice but to affirm the lower court decision, However if the standard of review had been different, they would have reached a different result because each side had presented experts that showed a genuine disputed issue of material fact- under the de novo summary judgment standard of review, the panel said they would have remanded the case for further findings rather than affirm the lower court decision.
Jurist reports on the Second Circuit's decision that the National Security Council, which operates out of the White House, is not an agency subject to FOIA. The DC Circuit had reached this conclusion in 1996 meaning that there is no split in the Circuits that have issued opinions on the matter.
Courthouse News has this on the Class Action FOIA lawsuit brought against the Customs and Border Protection (CBP) FOIA Office. The Judge has postponed a ruling on certifying the class for six (6) months because there has been no proof that the CBP had a pattern and practice of illegally delaying and denying these FOIA requests. However, the Judge did award discovery to the plaintiffs to see if they could gather evidence on this issue.
Its going to be a tough road for the plaintiffs in this one. I'm going to guess that they will find that the agency is underfunded and lacks any type of planning to reduce its backlog rather than having employees willfully blocking and delaying the plaintiffs' requests.
The U.S. Court of Appeals for the District of Columbia Circuit has remanded a case in which the Bureau of Prisons attempted to categorically deny many different types of individuals names and identities under the privacy exemptions of the FOIA (6 and 7(c)). The Court ruled that the categorical denials were too broad and the were not sufficiently weighed against the public interest. The case will go back to the District Court where the government will have to provide a much more detailed Vaughn index and the Court will have to weigh the privacy interests against the public interests in disclosure.
Vice News has this report on its lawsuit against the State Department on the FOIA request for Hilary Clinton's emails. State is seeking a delay until January of 2016 to release the emails.
It's unclear from the article why State can't make rolling releases of the material. Further, the timing is probably not good for Clinton's presidential campaign as the release would come about two weeks before the Iowa Caucuses.
Update: It looks like the Judge had the same idea I did (maybe he was reading the FOIA blog this morning!) State has been ordered to make interim releases of the material according to the AP and former Secretary Clinton has also urged State to move faster.
A lawsuit was filed against the Department of Justice on records of an investigation of the shooting of a woman who failed to heed warnings from law enforcement reports the Washington Post, who also has a request for the records.
The records appear to have been created by the United States Attorney's Office - their FOIA responses are handled by the Executive Office for United States Attorneys (EOUSA). Even though this office has had FOIA problems for years, to my knowledge, Congress has never had any hearings into the structure of the office and its FOIA administration. I believe that, in its oversight role, Congress should really delve into this office and also should have the GAO conduct an investigation of its FOIA program. This may help ease lawsuits in the future.
A federal judge in Minnesota has ruled against industrial farm groups in their attempt to block the EPA's release of information, including the identity of farms in FOIA requests relating to the Concentrated Animal Feeding Operations (CAFO) regulations. More can be found here at Bovinevetonline.com (my favorite web site name in some time!).
For those following the story, you may recall that certain members of congress tried to pass legislation blocking the release - attempting to make the release a great national security threat. It should be noted that the judge in the FOIA case found that the information was already publicly available and no harm had come to any of the farms named in that information.
A federal judge in the Northern District of California has ordered the Department of Defense to release a comprehensive subcontracting plan submitted by Sikorsky. The Blaze has more on the case here.
The order, which states that the documents must be released by Dec. 3 or appealed, shows how the DOD and the submitter failed to understand what the judge wanted them to do. The government asserted exemption 4, the judge gave the agency specific questions for the agency to answer while submitting the documents for in camera review. However, the agency merely submitted the documents in redacted and unredacted form and submitted a declaration from the submitter. The government, however, failed to answer the court's specific questions. The absence of answers to its questions as well as claims that the harms were only probable and not specific led the court found that the exemption 4 claims had not been established by the government.