Federal courts have adjudicated numerous FOIA cases since the beginning of 2020. FOIA Advisor lawyers Allan Blutstein (AB) and Ryan Mulvey (RM) select the decisions that have stood out to them (in no particular order). Please note in this context that Ryan will be co-teaching a course with Richard Huff about recent FOIA court rulings at ASAP’s annual training conference on July 29, 2020.

Doyle v. DHS (2nd Cir.) — affirming district court’s decision that visitor logs for White House and President Trump’s Mar-a-Lago home are not “agency records” of the U.S. Secret Service, relying on D.C. Circuit’s 2013 opinion in Judicial Watch v. U.S. Secret Service.

AB: I agreed with the result, though I would have enjoyed a Supreme Court showdown had plaintiff prevailed. Query whether any plaintiff will try to forum shop in the Ninth Circuit or elsewhere; it would be an uphill battle.

RM: In my mind, there was never any serious chance the Second Circuit would hold these visitor logs to be agency records. The D.C. Circuit addressed the control question for presidential visitor logs in a fairly persuasive way, both under its modified control test and “regular” Burka test. There have been a couple of attempts to get Trump visitor logs, and similar records; they strike me more as efforts to score political points in the press rather than serious FOIA challenges. Your comment about forum shopping is interesting. The Ninth Circuit has given us some unique FOIA decisions in recent years—think of Rojas v. Federal Aviation Administration, which is scheduled for rehearing en banc after a panel rejected the consultant corollary for Exemption 5’s threshold requirement. I concur it’d be an uphill battle.

Cause of Action Inst. v. DOJ (D.D.C.) — concluding that: (1) DOJ properly withheld certain questions to and responses of congressional witnesses as “non-responsive” even though all material appeared in a single document, but that agency could not treat sub-questions and responses thereto as distinct records; and (2) plaintiff did not have standing to challenge legality of Office of Information Policy’s guidance on definition of a “record.”

RM: I must disclose that my colleagues and I brought this case, and we’re currently on appeal to the D.C. Circuit.  I think it’s time the Circuit cleaned up the mess it created in 2016 with American Immigration Lawyers Ass’n v. Executive Office for Immigration Review.  By itself, AILA is an important decision, and it correctly ended the pernicious practice of using “non-responsive”/”outside the scope” as an effective tenth exemption.  But the panel left unanswered the antecedent question of what qualifies as a “record”!  It only offered dicta mentioning the Privacy Act and suggesting that agencies could use their understanding of the subject-matter of a request as a basis for segmenting “records.”

OIP latched on to this dicta when it created guidance on defining a “record” in early 2017.  I believe that guidance conflicts with the statutory language, as well as long-standing principles of FOIA law (e.g., records must pre-exist any given request) and canons of statutory interpretation.  In terms of application of the guidance in this case, I’m not sure why Judge Jackson didn’t think that QFRs maintained as a single PDF file, under one title, and with consecutive pagination qualified as a unified record.  The court’s sua sponte dismissal of the policy-and-practice claim for lack of standing was even more bizarre.  At the least, on the definition of a “record,” we’ve been seeing the district courts go different ways, so it’d be nice to get some clarity.

AB: As I have previously stated in this forum, I have little enthusiasm for the position that requesters should receive more information than they have asked for. I understand that the statute concerns “records” not “information.” I also understand that it might be more attractive to make a federal case out of the issue than to simply make a follow-up FOIA request for the non-responsive material. If clarity is needed, I’d prefer Congress to act; the courts are winging it.

Grand Canyon Trust v. Bernhardt (D.C. Cir.) — affirming district court’s decision that requester was ineligible for attorney’s fees because its lawsuit did not cause a voluntary or unilateral change in agency’s position; further ruling that the proper standard of review for causation was “clear error,” not de novo. In a concurring opinion, Judge Randolph stated that FOIA’s 2007 amendment did not restore the “catalyst theory” because the amended provision “requires only correlation not causation.”

AB: What piqued my interest here is the concurring opinion, which in my view makes a reasonable case for interpreting the statute more favorably for plaintiffs. I wonder whether any district courts within the Circuit will adopt it. I candidly would prefer requiring judicial relief on the merits as the sole criterion of fee award eligibility, but I am not holding my breath for Congress to re-amend the statute at plaintiffs’ expense.

RM: Judge Randolph’s exposition of the word “unilateral” makes his theory of “correlation not causation” particularly persuasive.  I have not had an opportunity to explore the legislative history.  Judge Randolph did not appeal to it, and he should have if it provided any clue about Congress trying to reverse the Supreme Court on the “catalyst theory,” as opposed to simply liberalizing the standard for fee eligibility.

Ctr. for Investigative Reporting v. DOL (N.D. Cal.) — ruling that Department of Labor improperly relied on Exemption 4 to withhold certain work-related injury form received by OSHA from employers, because agency failed to show that records were both customarily and actually treated as private by owners and provided to the government under an assurance of privacy.

RM:  This is an important decision because it carefully distinguishes whether a submitter of information merely “considered” information to be confidential or actually “kept and treated” the information as confidential.  As I have expressed in previous commentary here and elsewhere, I have problems with the new FMI standard as it seems to open the door to submitters trying to game the system and force a subjective standard for confidentiality.  Policing the factual basis for confidentiality claims is a good step towards avoiding that result.  I was glad to see the court take the agency’s assurances of confidentiality (or lack thereof), as well as relevant OIP guidance, so seriously.  The Supreme Court did not resolve the question of whether assurances either way were a necessary part of the (b)(4) analysis.

AB: I agree with you. Although the court sidestepped the parties’ arguments as to whether the foreseeable harm was satisfied (or even applied) in this case, that issue inevitably will reach the Circuit courts in the near future.

RM:  Since we’re talking about Exemption 4, and you’ve mentioned foreseeable harm, I want to reference another lawsuit brought by the same requester: Center for Investigative Reporting v. Customs & Border Protection (D.D.C. 2019), which was decided at the very end of last year.  I find two aspects of the decision intriguing.  First, the court treated the new FMI standard—i.e., (1) “customarily and actually treated as private” and, perhaps also (2) provided “under an assurance of privacy”—as effectively interchangeable with the D.C. Circuit’s longstanding test from Critical Mass for voluntarily submitted information—i.e., “of a kind that would customarily not be released to the public.”  I’m not convinced that FMI and Critical Mass articulate the same test, but I understand why a court would draw on Critical Mass and its progeny as useful guidance. 

Second, and more importantly, the court’s decision to extend FOIA’s “foreseeable harm” standard to Exemption 4 is groundbreaking, and it will be interesting to see if other courts join the bandwagon.  I suspect most agencies assume that Exemption 4 is a mandatory exemption and, accordingly, foreseeable harm analysis is unnecessary.  This court’s attempt to reintroduce a National Parks-like “competitive harm” requirement really tends to undo what I think the Supreme Court sought to do in FMI.  Exemption 4 and “foreseeable harm” are percolating up to both the Ninth and D.C. Circuits.  So we need to see how things turn out!

Mabie v. EOUSA (S.D. Ill.) — dismissing plaintiff’s FOIA claims as sanction for using profane, belligerent, and abusive language when speaking to opposing counsel, leveling unfounded accusations and threatening opposing counsel, insulting the judge and Court employees, and impugning the integrity of judicial proceedings.

AB: This opinion left me slack-jawed. I do not recall ever seeing a FOIA case dismissed because of a litigant’s misbehavior, but if anyone ever deserved it, Mr. Mabie did.

RM: Indeed. It seems that Mr. Mabie is a troubled individual with a track record of frivilous litigation. The recent opinion out of the Eastern District of Pennsylvania in Manatt v. Department of Homeland Security, which ordered senior agency officials to testify at a special hearing concerning repeated failure to comply with court deadlines, left me similarly astonished, albeit for different reasons. I think there has been an noticeable uptick of judges willing to hold intransigent agencies to task—consider orders earlier this year for in camera review of the Mueller report and deposition of former Secretary of State Hillary Clinton.

AB: Since you mentioned this week’s decision in Manatt, it bears mentioning that the senior DHS official who was berated by name in this case is the former director of the Office of Government Information Services.

Sai v. TSA (D.D.C.) — on renewed summary judgment, concluding that: (1) agency demonstrated that it properly withheld records pursuant to Exemptions 3 and 5 (deliberative process privilege); (2) agency failed to demonstrate that it searched all reasonable locations or employed reasonable search terms and proper time frame; (3) agency was not required to organize records into discrete PDF files,but that agency failed to show how it would be unduly burdensome to create “irreversible redactions within fully digital, non-rasterized PDFs” outside of FOIAExpress program that agency typically used.

RM: I always enjoy opinions from cases filed by Sai. They often touch on the intersection of FOIA and technology, and this case is no different. I appreciated Judge Moss’s discussion of the E-FOIA amendments and the meanings of “form” and “format.” I was somewhat surprised that he held the agency to such a stringent standard for demonstrating that it was unduly burdensome or technically impossible to process and disclose fully digital non-rasterized PDF files outside of FOIAXpress. This could be a helpful precedent for requesters.

AB: I rarely enjoy his cases, or at least the opinions, because they are lengthy and highly technical. Feel free to write the summaries of his cases going forward. Curious that the court relied upon a Ninth Circuit ruling in evaluating the “unduly burdensome” standard (are there no D.C. Circuit cases?), but it was reasonable for the court to give the agency another opportunity to fill in the perceived gaps.