The FOIA blog

Cert Sought at Supreme Court in Exemption 4 Case

The Scotus Blog reports on an Exemption 4 case that has wound its way through the 8th Circuit and may end up being the next FOIA case to be heard by the Supreme Court.  The case concerns a request by the Argus Leader to the Department of Agriculture for annual SNAP redemption totals for stores that participate in the SNAP program.  The government tried to exempt the information and in a rare FOIA trial attempted to demonstrate that the requested material was protected pursuant to FOIA Exemption 4.  The District Court and eventually the 8th Circuit both ruled that the exemption did not apply and that the material should be disclosed.  A trade group, which was responsible for the appeal of the case, is now pushing for the Supreme Court review of the decision.  Briefing is underway and the Response to the Writ of Certiorari is due on December 14.

 

DC Circuit Rules on Monkey Business FOIA Case

The DC Circuit has ruled in favor of the Department of Health and Human Services (HHS) in a case brought by the People for the Ethical Treatment of Animals (PETA) in which PETA sought information about the importation of non human primates.  After a bit of a tortured procedural history, the Court of Appeals ultimately ruled that the withheld information may be redacted pursuant to FOIA Exemption 4.  The case can be found here.

San Bernardino Phone Hack Information Ruled Classified

Politico has this on the FOIA litigation concerning the information on the phone hack the FBI paid for to unlock the iPhone of the San Bernardino shooter.  The Court ruled that the information was properly classified by the FBI -- the government had attempted to also claim that it was confidential business information but the Court said that it didn't merit Exemption 4 protection.

This illustrates just how hard it is for a requester to defeat a claim of Exemption 1 - The government gets a great deal of deference on classified material and if it meets all the procedural and substantive elements necessary to make something properly classified, it is very unlikely for a court to substitute its judgment. 

Northrop Grumman Files Reverse FOIA Lawsuit Against NASA

Northrop Grumman has filed a reverse FOIA action against NASA saying that NASA's decision to release its subsidiaries contract information violates the trade secrets act and will cause commercial harm to the contractor.  These types of suits are rare these days - they allow for the submitters of government information to sue agencies prior to a FOIA release being made.  LAW360 has more on the suit here.

Non-Profits May Have Exemption 4 Protections

This interesting blog post from two attorneys at Orrick discusses a recent decision from the First Circuit that gave a non-profit (in this case Planned Parenthood) Exemption 4 protection for material it had submitted to the government.

I think the take away is that not only for profit companies have trade secrets or confidential commercial information.  This type of material may be submitted to the government by a number of types of entities including non-profits, solo businesses, trade associations, Native American tribes, and more.  Tax status is very important to the IRS but not so much in the Exemption 4 analysis

DOD Ordered To Release Sikorsky Subcontracting Plan

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.

Dead Birds = Confidential Business Information?

The Minneapolis Star Tribune has this AP article in which a wind energy company has filed a reverse-FOIA case in federal district court arguing that information about bird deaths in its facilities is confidential business information that should be protected pursuant to FOIA Exemption 4.  The government disagrees and wants to release the information.  A court will now have to decide if the material, which the company argues was voluntarily submitted to the government meets the requirements of confidential business information of it needs to be released pursuant to a FOIA request.

GM Seeks to Block Disclosure of Bankruptcy Documents

The Wall Street Journal reports that General Motors has moved to intervene in a FOIA lawsuit brought by the Center for Auto Safety.  GM seeks the intervention so that it can assist the government in the claim that many of the documents that pertain to the GM bankruptcy at issue contain GM's confidential business information.  If the intervention is permitted, GM will back up the government's Exemption 4 withholdings of certain documents with its own declarations supporting the exemption claim. 

FDA Ordered to Release New Drug Records

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. 

Supreme Court Declines to Hear Fed Dispute

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.

The San Diego Reader has more on the case.