FOIA News: Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

By Nika Schoonover, Courthouse News Service, Aug. 5, 2024

A report produced by Congress on the CIA’s post-9/11 detention and interrogation program is not covered by the federal freedom of information law, a Second Circuit panel found Monday.

In the aftermath of the terrorist attacks of September 11, 2001, the Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the CIA. The committee then transmitted the report to various agencies covered under the federal Freedom of Information Act.

Read more here.

Monthly roundup: July 2024

Below we summarize the notable FOIA court decisions and news from last month, as well as a peek ahead to events in August.

Court decisions:

We identified and posted 15 decisions issued in July, the highest total since the month of March. The government fared well in at the appellate level with two affirmances in the D.C. Circuit—Cabezas v. FBI and Kowal v. DOJ—and one in the Eighth Circuit, Fogg v. IRS. All were fairly routine, however.

In the district courts, Judge McFadden of the D.D.C was faced with an interesting issue in Children’s Health Def. v. CDC, specifically whether executive departments are automatically parties when their components are sued. Based on “text and precedent,” he ruled that they did not.

News:

Congressman Adam Schiff introduced a bill on July 23, 2024, that would extend FOIA to the federal judiciary. FOIA Advisor criticized the bill in a commentary.

The Office of Government Information Services held its annual open meeting on July 24, 2024.

On July 18, 2024, the Office of Information Policy announced that it had added law enforcement records to its FOIA.gov search tool.

Lookahead to August

At some point in August, OGIS is likely to announce the new members of the FOIA Advisory Committee for the 2024-2026 term, whose first public meeting is September 9, 2024.

Aug. 15, 2024: Judge Carl Nichols of the U.S. District Court for the District of Columbia will hold a Motion Hearing in New Civil Liberties Alliance v. SEC, No. 22-cv-3567. The D.C. Circuit will not hear any matters in August.

Aug. 16, 2024: 30 business days before the end of fiscal year 2024. FOIA requests received on or after this date that involve “unusual circumstances” will not be considered backlogged in FY 2024 if unfulfilled.

Aug. 30, 2024: 20 business days before the end of FY 2024. Any FOIA requests received on or after this date will not be considered backlogged in FY 2024 if unfulfilled.

Jobs, jobs, jobs: Weekly report Aug. 5, 2024

Federal positions open for the next 10 days

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, multiple locations, closes 8/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Decatur, GA, closes 8/5/24 (internal to agency).

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Wash., DC, closes 8/6/24.

Att’y-Advisor, Dep’t of Justice/NSD, GS 13-15, Wash., DC, closes 8/7/24.

Gov’t Info. Specialist, Dep’t of the Treasury/OCC, NB 5, Wash., DC, closes 8/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Hansom AFB, MA, closes 8/8/24 (non-public).

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, Wash., DC, closes 8/9/24 (non-public).

Gov’t Info. Specialist (TCF Trainee), Dep’t of Veterans Affairs/VHA, GS 9, Tampa, FL, closes 8/9/24 (non-public).

Gov’t Info. Specialist, Dep’t of Education, GS 12-13, Wash., DC, closes 8/12/24 (or 50 applications) (non-public).

Gov’t Info. Specialist, Envtl. Prot. Agency, GS 13, Lenexa, KS, closes 8/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Housing & Urban Dev./IG, GS 12-13, multiple locations, closes 8/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Housing & Urban Dev., GS 12-13, multiple locations, closes 8/13/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 8/14/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GS 9, Fort Meade, MD, closes 8/15/24 (non-public).

Court opinions issued Aug. 1, 2024

Shapiro v. Dep’t of Justice (D.D.C.) — faced with “the latest in a very long series of disputes between the parties,” ordering the FBI to process and produce the potentially responsive contents of the agency’s “Freedom of Information and Privacy Act Document Processing System (‘FDPS’)”; rejecting the FBI’s arguments that “substantive entries” in its FDPS were alternatively (1) outside agency control, (2) lacked “sufficient permanence” to be considered a “record,” or (3) would require “record creation” in order to disclose; similarly rejecting the FBI’s argument that production would “involve a ‘gargantuan’ effort,” as creating screenshots would not be “any different [than] the burden imposed in myriad FOIA cases.”

Reason Found. v. Fed. Bureau of Prisons (D.D.C.) — in a case involving BOP “mortality reviews” of inmate deaths, upholding in part the agency’s use of Exemption 5, in conjunction with the deliberative-process privilege, because mortality reviews are prepared to assist in high-level decisionmaking about inmate care and reflect non-factual opinions about the same; noting, however, that there is “uncertainty” as to whether portions of the reviews concerning administration of emergency care (e.g., CPR) is privileged, and allowing BOP to renew its motion for summary judgment; noting further that BOP waived privilege for a small subset of withholdings applied to “checkbox questions where [the agency] disclosed the narrative response to the same question.”

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: This and that

• A prominent economist has sued the IRS for failing to respond to his FOIA request concerning his failed bank. See Aliss Higham, IRS Sued by Economist After His Bank Was Shut Down, Newsweek, Aug. 1, 2023.

• The U.S. Secret Service has unsurprisingly denied several requests from Judicial Watch pertaining to the attempted assassination of former President Trump. In a press release issued on July 31st, Judicial Watch unsurprisingly threatened to bring suit.

• DOJ’s Office of Information Policy has updated its summary of court decisions through July 3, 2024.

• NARA’s Office of Government Information Services has posted the minutes and transcripts of all the 2024 meetings held by the federal FOIA Advisory Committee.

• The FBI recently posted a 1998 threat assessment pertaining to Justice Ruth Bader Ginsburg, as well as records from its background investigation conducted prior to her 1993 confirmation.

Court opinion issued July 30, 2024

Truesdale v. U.S. Pub. Health Serv. (D.D.C.) -- granting government’s motion for summary judgment after crediting affidavits of various agencies attesting that pro se plaintiff’s requests were never received, whereas plaintiff, a recently released federal inmate, was not able to provide any evidence beyond copies of his requests.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinions issued July 29, 2024

Bermudez v. DOJ (W.D. La.) -- denying attorney’s fees in connection with plaintiff’s request for immigration court case file after determining that: (1) plaintiff was ineligible for an award because he did not obtain relief through judicial order, and the Executive Office for Immigration Review initiated the processing of plaintiff’s request “well before” the lawsuit was filed; and (2) even if plaintiff had substantially prevailed, he would not have been entitled to fees because his request was motivated by personal and commercial interests and EOIR did not deny the request or withhold any records.

Daniels v. Raimondo (N.D. Ill.) -- concluding that U.S. Census Bureau, plaintiff’s former employer, clearly established that its search was reasonably designed to find plaintiff’s personnel records, even if two items plaintiff sought ultimately were not found; rejecting plaintiff’s argument that the agency released several fake documents and noting that plaintiff would not be entitled to any relief under FOIA even if such fabrication had occurred.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Jobs, jobs, jobs: Weekly report July 29, 2024

Federal positions closing in the next ten days

Gov’t Info. Specialist, Dep’t of Veterans Affairs, VHA, GS 12, Fresno, CA, closes 7/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Def., GS 13, Pentagon, Arlington, VA, closes 7/30/24.

Gov’t Info. Specialist, Dep’t of Homeland Sec./CIS, GS 12, remote, closes 7/31/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 12, Air Force Academy, CO, closes 8/1/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Maxwell AFB, AL, closes 8/2/24.

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Wash., DC, closes 8/6/24.

Att’y-Advisor, Dep’t of Justice/NSD, GS 13-15, Wash., DC, closes 8/7/24.

Gov’t Info. Specialist, Dep’t of the Treasury/OCC, NB 5, Wash., DC, closes 8/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Hanscom AFB, MA, closes 8/8/24 (non-public).

Federal positions closing on or after August 9, 2024

Gov’t Info. Specialist, Dep’t of Transp./FAA, FV 1, Wash., DC, closes 8/9/24 (non-public).

Court opinions issued July 25-26, 2024

July 26, 2024

Cabezas v. FBI (D.C. Cir.) -- affirming district court’s decision that: (1) FBI conducted a reasonable search for records concerning plaintiff’s child pornography-related conviction; and (2) FBI properly withheld information pursuant to Exemptions 5, 6, 7(C), and 7(E).

Louise Trauma Ctr. v. USCIS (D. Md.) -- dismissing, as moot, lawsuit seeking records related to the training and performance of asylum officers, because the complaint challenged only the agency’s failure to timely produce records and the agency subsequently produced records, albeit with redactions; ruling that plaintiff could not amend its original complaint via a responsive filing and that it “must first challenge the redactions by appealing to the head of the agency before it seeks a judgment from this Court.”

July 25, 2024

Inst. for Energy Research v. FERC (D.D.C.) -- concluding that FERC properly relied on the deliberative process privilege and Exemption 6 to redact communications exchanged between agency lawyers and White House counsel as part of FOIA consultation process; further finding that foreseeability requirement was met for both exemptions, specifically the “chilling effect” that disclosure would entail, as well as “annoyance, threats, embarrassment” to agency employees.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Court opinion issued July 24, 2024

Children's Health Def. v. CDC (D.D.C.) -- in dispute concerning COVID-19 vaccine safety-monitoring records sent to FDA for consultation, ruling that: (1) HHS was not a party to the case by operation of law, but allowing it to move for a stay as an intervenor; and (2) granting stay for six months because several judges in same district had already issued stays affecting access to the same documents, and because FDA was burdened by an “extraordinary production” schedule imposed by a federal court in Texas.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.