On July 21, 2020, FOIA Advisor lawyers Allan Blutstein (AB) and Ryan Mulvey (RM) discussed six FOIA decisions that stood out to them as the most significant of the first half of the year. Today they discuss eight decisions of note that were issued during the second half of 2020. Relatedly, Ryan will be co-teaching an American Society of Access Professionals webinar on FOIA case law developments with the redoubtable Richard Huff on January 26, 2021. (Registration closes on January 22th!)

Ctr. for Investigative Reporting v. DOJ (9th Cir. Dec. 3, 2020) -- in a 2-1 decision, reversing and remanding district court’s decision and holding that data requested from agency’s Firearms Trace System was not protected by a rider to a Consolidated Appropriations Act because it failed to cite to Exemption 3; remanding case for further proceedings to determine whether agency could reasonably search database for requested records; Everytown for Gun Safety Support Fund v. ATF (2nd Cir. Dec. 23, 2020) -- reversing district court’s decision and holding that data requested from agency’s firearms database was protected from disclosure pursuant to a congressional rider even though that rider did not specifically cite Exemption 3.

AB: A pair of split Circuit court decisions within three weeks was an exciting way to end the year. Barring congressional intervention or an en banc reversal by one of the courts, we may be looking at a U.S. Supreme Court clash in 2021. I do not have a strong opinion on how SCOTUS would or should rule on the disputed provision of the Open FOIA Act of 2009, but I lean towards the Second Circuit’s view.

RM: It would be quite something to get three consecutive years of FOIA at the Supreme Court! Apart from the particular issue of the Firearms Trace System, the broader questions of how appropriations riders function, whether they can qualify as withholding statutes, and how or when subsequent riders impliedly repeal their predecessors are all vitally important for understanding the proper operation of 5 U.S.C. § 552(b)(3)(B). (As an aside, I think these cases are a lesson for the imprudence of Congress trying to prohibit disclosure indirectly through appropriations legislation.) That being said, I agree with the Ninth Circuit; I don’t see how the 2008 and 2010/2012 riders at issue are mutually consistent and given the passage of the 2010 rider only two months after the Open FOIA Act, it is difficult to imagine Congress didn’t know what it was doing. The requirement for new withholding statutes to reference Exemption 3 needs to be taken seriously, and the Second Circuit’s decision renders that provision of FOIA entirely nuggatory. (I also think the Ninth Circuit decision offers a useful reminder to agencies that retrieving and producing data stored in a database does not entail creation of a “new” agency record. This has been established in other jurisdictions, but I still see agencies fight against the rule.)

AB: Contrary to your suggestion, it is now entirely unclear whether the “requirement for new withholding statutes to reference Exemption 3 needs to be taken seriously.” We’ll see, as the Zen master in Charlie Wilson’s War was fond of saying. Congress could moot this issue with new legislation, of course, and I hope it would step in if the government ultimately loses.

Machado Amadis v. DOJ (D.C. Cir. Aug. 21, 2020) -- affirming, in most relevant part, district court’s decision that OIP properly relied on Exemption 5’s deliberative process privilege to withhold portions of staff’s appeal recommendation forms, and finding that agency reasonably explained why statute’s foreseeable harm provision was satisfied—i.e., agency had considered "information at issue’” and concluded that disclosure “‘would’ chill future internal discussions.”

RM: The much awaited “foreseeable harm” decision from the D.C. Circuit!  In many ways, I expected this opinion to be much worse (from the requester’s perspective), considering the facts and arguments presented to the court.  I think the decision leaves many questions unanswered.  The good news?  The Circuit appears to recognize that the foreseeable harm standard is not merely a codification of previous practice but imposes some sort of new burden on agencies.  “Generalized” assertions of expected harm—particularly vis-à-vis “chilling” of agency deliberations—are inadequate.  But we still don’t have clarity on the process of identifying interests protected by certain exemptions, or exactly how we should distinguish the harms necessary to establish use of a privilege (e.g., the “technical” requirements under the second part of Exemption 5 to raise the deliberative-process privilege) from further “foreseeable” harm that would result from disclosure of the specific records at issue in any given case.  As other cases work their way up on appeal, including those cases implicating Exemption 4 post-Argus Leader, I think we will see some more useful precedents established.

AB: What would be useful is if Congress amended the ambiguous foreseeable harm provision instead of leaving it to the courts to figure out. Better yet, Congress should repeal it. Agencies have a challenging enough task in determining whether records fall within an exemption. If that burden is met, nothing more should be required; the disclosure of exempt information is inherently harmful. Asking FOIA personnel to become prognosticators like the Oracle at Delphi would be folly and an unwarranted gift to the plaintiff’s bar. Thankfully, the D.C. Circuit set a standard here that doesn’t appear to be all that difficult for agencies to meet.

Whitaker v. Dep’t of Commerce (2nd Cir. Aug. 15, 2020) -- affirming district court’s decision that : (1) the First Responder Network Authority, an independent entity within the Department of Commerce’s (DOC) National Telecommunications and Information Administration (NTIA), was not subject to FOIA; and (2) DOC and NTIA properly declined to search for requested records because such searches would have been futile, adopting D.C. Circuit’s standard.

RM: I’m a little surprised this case was appealed. It’s difficult to argue that FOIA is not part of “chapter 5 of title 5,” notwithstanding the fact that FOIA isn’t “commonly referred to as” the APA. I also didn’t understand the requesters argument that Exemption 3, as amended by the Open FOIA Act of 2009, should apply to Congress’s exclusion of particular entities from the meaning of an “agency,” for FOIA purposes. The only aspect of the Circuit’s opinion which does give me pause is its analysis of futility. At least when an agency is asked to search for records involving communications with a non-agency, I think it’s important to avoid eliding the question of the existence of “records” (NB: not “agency records”) and agency control. Based on the facts here, it seems the Department of Commerce never had copies of the requested records because it wasn’t involved in the relevant aspects of FirstNet’s operations. Fine. I would not, however, want an agency to be able to argue that a search would be futile because all potentially responsive records in its possession would be categorically outside of its legal control. As far as I’m aware, nearly all the case law on congressional and presidential records, for example, contemplates a search and review before arguing over control. But I digress…

AB: The appellants were grasping at straws on the agency issue (the plain meaning of the statutes at issue were against them, as you pointed out), but I do not fault them for doing everything in their power to try to obtain the requested records. The loss on the futility issue will have a more lasting impact on future FOIA requests, and your hypothetical case is an interesting one. But it’s not this case, so I’ll let it go.

Nightingale. v. USCIS (N.D. Cal. Dec. 22, 2020) -- finding that USCIS, ICE, and DHS “have a pattern of unreasonable delay in responses to A-File FOIA requests,” and permanently enjoining defendants from failing to adhere to statutory deadlines for adjudicating A-File FOIA requests; further ordering defendants to make determinations on all A-File FOIA requests in backlog within 60 days.

RM: An interesting decision in a class-action lawsuit certified at the end of 2019.  It used to be, I think, that failure to abide by statutory deadlines, in-and-of-itself, was a non-starter for a policy-or-practice claim.  There have been a few exceptions in recent years, and this is another step in that direction.  I’m sure immigration lawyers are happy!  I am somewhat troubled, though, by the reference to the importance of A-Files for immigration proceedings—true, no doubt—as if that were probative of an ongoing failure to abide by the terms of the FOIA, or somehow justifies the extraordinary injunctive relief ordered by the court.

AB: A number of agencies with longstanding backlog problems might have good cause to be concerned about this decision. For those who are curious, like I was, about the challenges of processing FOIA requests for A-Files, I recommend reading the compliance assessment report issued by the Office of Government Information Services in February 2018. An A-File is typically about 220 pages long and the largest A-File ever processed was approximately 40,000 pages. No wonder USCIS resisted the relief sought here.

Seife v. FDA (S.D.N.Y. Oct. 6, 2020) -- concluding that FDA properly relied on Exemption 4 to withhold records pertaining to its accelerated approval of a muscular dystrophy drug; noting that statute’s foreseeable harm provision applied to Exemption 4 and was met in this case.

AB: This opinion might contain the most extensive analysis of the foreseeable harm requirement in the context of Exemption 4. The court, unfortunately, sidestepped the government’s threshold argument that the disputed information was protected by the Trade Secrets Act and therefore not subject to the foreseeable harm requirement. I eagerly await a decision that adjudicates that issue—hopefully, in the government’s favor.

RM: Before Seife, I don’t think any of the post-Argus Leader cases dealing with the foreseeable harm standard grappled with the interrelation of Exemption 4 and the Trade Secrets Act. But I’m not sure the question is so easily decided in favor of the government. It really depends on which exemptions are actually “discretionary” and whether an agency’s foreseeable harm analysis is extricable from its exemption analysis. There is some caselaw to cast doubt on the government’s claim that Exemption 4 is obviously “non-discretionary.” Further, under current precedent, the Trade Secrets Act should only come into play, if at all, once information is decidedly protected by Exemption 4. (And I think there is honest diversity of opinion on the proper role of 18 U.S.C. § 1905 under FOIA.) If foreseeable harm is part of the exemption analysis, and not a secondary consideration—even though we often speak of it as an “additional burden” on the agency—then the Trade Secrets Act cannot be the legal prohibition on disclosure contemplated by Section 552(a)(8)(A)(i). Relatedly, I think most people tend to read “disclosure is prohibited by law” in this part of the FOIA as effectively referring to Exemption 3. That interpretation would seem to avoid the possibility of agencies gaming the system and defeating the foreseeable harm standard, say, by trying to eliminate the possibility discretionary disclosure by regulation. I recognize, though, that the call is a close one, and certainly the legislative history is mixed in resolving any interpretive ambiguity. The Ninth Circuit is scheduled to deal with foreseeable harm and Exemption 4 in the coming year, in Evans v. Department of Labor. Seife is on appeal, too, so perhaps we’ll see another Second/Ninth split!

WP Co. v. SBA (D.D.C. Nov. 5, 2020) -- ruling that SBA failed to show that Exemptions 4 and 6 protected the names of loan recipients and amounts borrowed from the Paycheck Protection Program and Economic Disaster Loans program. In reaching its decision, the court noted that the SBA had notified loan applicants that such information would be disclosed upon request.

RM: This case, and the underlying issue of confidentiality of PPP applicant data, attracted a lot of attention in the press last summer. That may have been due to the Administration’s changing position throughout the course of the litigation. I think the court’s rejection of Exemption 4 was well-reasoned. The agency failed to offer convincing evidence of a direct link between PPP loan data and actual business payrolls. Even then—and more determinative, in my mind—the agency expressly notified potential borrows that loan information could be disclosed in response to a FOIA request. The subsequent rebuff of the government’s motion for a stay was pretty embarrassing, too.

AB: This decision did not break new legal ground, but I was also impressed by how thoroughly the court dismantled the government’s exemption claims, especially Exemption 4. It makes me wonder whether anyone outside of SBA —e.g., loan recipients, Treasury, or the White House—asked the agency to withhold the requested information.

Campaign for Accountability v. DOJ (D.D.C. Sept. 11, 2020) -- rejecting plaintiff’s allegation that all legal opinions of Office of Legal Counsel must be affirmatively disclosed under FOIA’s “reading-room” provision, but concluding that OLC opinions “that resolve disputes between agencies” plausibly qualify for disclosure.

AB: In 2019, after this lawsuit was brought, the D.C. Circuit opined in a separate case that FOIA’s reading-room provision did not require affirmative disclosure of all of OLC’s legal opinions. As such, the plaintiff had virtually no chance of prevailing on that claim here. It is notable, however, that the plaintiff survived the government’s motion to dismiss on a subset of the OLC’s opinions. We’ll have to wait until 2021 or later to see which party ultimately prevails on summary judgment.

RM: Agreed. I thought the court’s rejection of OLC’s argument that proactive disclosure only applies to records concerning the regulation of private parties to be important. That argument was so removed from the statutory text and attendant caselaw. It’s also refreshing to see OLC taken to task for trying to argue, again, that it merely provides “opinions,” as if OLC’s advice were incapable of becoming an agency’s working law. I’m very interested to see where this case ends up going on the merits.