The FOIA blog

EPA Denied Summary Judgment on Pesticide Request

The Environmental Protection Agency has lost its first bid to protect information on the pesticide known as Enlist Duo.  In a FOIA request brought by Center for Biological Diversity, the agency attempted to protect a number of documents under Exemption 5, but the plaintiff fought both the actual search for documents and the use of Exemption 5 to withhold records actually located.  The Court agreed with the plaintiff and sent the case back to the agency for further searches as well as an opportunity to cure the deficiencies in the Vaughn index.  More can be found on the Center Biological Diversity website, including the entire 45 page opinion of Judge Beryl Howell of the U.S. District Court for the District of Columbia.

DOJ Communications To Foreign Governments Fail Ex. 5 Threshhold Test

The Sixth Circuit Court of Appeals has ruled that DOJ communications to foreign governments seeking assistance on investigations fail to meet the threshold test of FOIA Exemption 5.  In the case of Lacaj v. FBI, the court found that the records were neither inter nor intra government records and therefore, they cannot be protected by any of the Exemption 5 privileges.  However, the court remanded the case to see if other exemptions protected the material.

Monday FOIA News Roundup

I've returned from Denver where I participated in the American Society for Access Professional's FOIA Workshop.  The Students were fantastic - I'm always excited to talk to FOIA professionals who want to do their jobs better.  They are more opportunities for ASAP training coming up soon - see ASAP's website for more.

The following happened last week in the FOIA world:

Homeland Security was found to be in "egregious violation" of the FOIA in a lawsuit against it - the Seattle Times has more.

A rare FOIA trial is being held and the FBI had to testify.  As the Reporters Committee for Freedom of the Press writes, current FBI FOIA managers have made it very difficult for the average requester to know exactly what to ask for and where to ask for it. 

Finally, Politico reports that Exemption 5 applies to advise given to the White House on Drone policy.

CIA Torture Review Documents Ruled Deliberative

TechDirt reports on a decision by Judge James Boasberg of the U.S. District Court for the District of Columbia on a FOIA request for documents pertaining to the CIA's review ordered by former agency head Leon Panetta of its detention and interrogation program began after 9/11.  The court has found that the review is protected by the deliberative process privilege of Exemption 5.

 

DOJ Drops "Working Law" Appeal

Courthouse News Service has this report on the Department of Justice's dropping of the appeal in the Ninth Circuit on a decision concerning a Justice memo written about census information and the Patriot act.  A district court judge had previously ruled that the memo did not qualify for exemption 5 protection because the government had adopted it, and therefore it was "working law."  The requester in this case was the Electronic Frontier Foundation.

DOJ Memo On Drone Strikes Released

The New York Times reports on the release of the DOJ memo on drone strikes against American citizens despite the government's ongoing arguments that the material was covered by Exemption 5 of the FOIA. 

Maybe this release will show DOJ that its better to follow the President's policy on FOIA and releasing as much information as possible rather than forcing his administration to fight its own policy. 

Supreme Court Review Sought in DOJ/OLC Phone Records Memo Case

The Electronic Frontier Foundation has filed a petition for writ of certiorari with the Supreme Court asking it to review lower court decisions that allowed the Department of Justice's Office of Legal Counsel to withhold and keep secret OLC's legal opinions on allowing the government to obtain phone records without any legal process. 

Just because the lower court's affirmed the government's position doesn't mean that the case will sail through the Supreme Court and be affirmed.  The last major FOIA case at the Supreme Court concerned the use of Exemption 2 - and overrruled goverment practices that had been in operation for over 25 years.  If the Supreme Court takes the case, it will be interesting to see where that body takes it.

CIA Draft Document on Bay of Pigs Held Exempt

A 2-1 decision by the U.S. Court of Appeals for the District of Columbia has found that the final section of the CIA's report on the Bay of Pigs is a draft document and is therefore withholdable pursuant to FOIA Exemption 5 pursuant to the deliberative process privilge.  Basically the decision boils down to the fact that the Court accepted the report to be a draft document and therefore, under any circumstances under the current FOIA law, an agency may protect the draft under Exemption 5. 

The decision shows why Congress should write two things into the FOIA.  First, Congress should put into the FOIA a requirement for an agency to make a foreseeable harm showing in litigation.  Secondly, Congress should create a time standard for withholding material under Exemption 5.  These documents are approximately 40 years old, and it is not clear what public policy position would be advanced by allowing Exemption 5 material to be protected for such a long period of time.

The decision can be found here.

DOJ Surveillance Memo Found Exempt

Legal Times reports that the United States Court of Appeals for the District of Columbia has ruled that a memo written for the FBI by the DOJ's Office of Legal Counsel about the legality of the FBI's ability to gather phone records without legal process is protected by the deliberative process privilege of FOIA Exemption 5.  The take-away is that the Court ruled that the FBI didn't adopt the memo's findings as its own and therefore, the memo remains a deliberative pre-decisional document.

The Legal Times has more on the case here.

Department of Labor Loses Exemption 5, 7E Case

Judge James R. Spencer of the Federal District Court for the Eastern District of Virginia has ruled against the Department of Labor in a case where the agency had tried to use Exemptions 5 and 7E to withhold portions of responsive records.  The Court found that Exemption 7E did not apply because the component of Labor that created the records, the Office of Foreign Labor Certification did not have law enforcement duties -- thus the OFLC documents could not be withheld purusant to any of the Exemption 7 subprivileges; here Exemption 7(E).  Further, upon in camera review the Court found the records were not deliberative, thus they did not qualify for the deliberative process privilege of Exemption 5. 

The decision can be found here.