Significant Recent FOIA Court Decisions 1

2 Env't Integrity Project v. EPA, 2016 WL (D.D.C. 2016) (appeal pending) Re: Request for data from surveys designed to collect data about pollution Can FOIA be superseded by a later-enacted disclosure statute? Court finds "that the 'shall be available to the public' language in §1318(b) does not have the effect of displacing or superseding [FOIA]."

3 Kalu v. IRS, 2016 WL (D.D.C. 2016) Re: Request for records concerning whether plaintiff was on a "watch list" "[T]he Court finds that... anything other than a [Glomar] response would tend to disclose at the very least 'guidelines for law enforcement investigations or prosecutions' and that such disclosure 'could reasonably be expected to risk circumvention of the law.'"

4 Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, 2016 WL (D.D.C. 2016) Re: Request for records concerning video discussing growing body of evidence linking "Polar Vortex" to global warming "[H]ere, [the professor] cannot be likened to a government employee whose 'only obligations are to truth and its sense of what good judgment calls for[.]'"

5 Shapiro v. DOJ, No , 2016 WL (D.D.C. Jan. 22, 2016) (Moss, J.) Re: Request for records concerning the processing of prior FOIA requests "[T]he Court cannot conclude that... case evaluation forms relate solely to trivial or minor matters, akin to the use of parking facilities or lunch hours, that are of no public interest."

6 Stein v. DOJ, No , 2015 WL (D.D.C. 2015) (Chutkan, J.) Re: Request for case evaluation forms, among other items "[T]he court finds that the [Work Processing Unit] Case Evaluation Forms sought by Plaintiff relate solely to the FBI’s internal personnel rules and practices, and as such are exempt from disclosure under FOIA." "These are not indicia of the FOIA process, but of the FOIA processor.“

7 Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) Re: Request for records concerning plaintiff "[A] request for an agency to search a particular record system – without more – does not invariably constitute a 'lead' that an agency must pursue.”

8 Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015) The court clarified the applicable standard for a fee waiver. The court also clarified standards for determining “representative of the news media” status. This decision may make it significantly easier for public interest groups to claim that they are representatives of the news media. Guidance is forthcoming

9 Bartko v. DOJ, 128 F. Supp. 3d 62 (D.D.C. 2015) Privacy interest: "Having not been publicly charged... [the AUSA] maintains a significant privacy interest in... the contents of an OPR investigation...." Public interest: "[T]here is no indication that the specific records he sought would reveal anything about the inner workings of DOJ or prosecutorial misconduct generally."

10 Detroit Free Press, Inc. v. DOJ, 2015 WL (6th Cir. Aug. 12, 2015) The three-judge panel ruled against the government because it was bound by its 1994 precedent regarding the withholdability of booking photographs. However, the panel urged the full court to reconsider whether Exemption 7(C) applies to booking photographs.“ On November 20, 2015, en banc rehearing was granted.

EPIC v. DHS, No , 2015 WL (D.C. Cir. Feb. 10, 2015) A victory for the government This was a request for a DHS document concerning the procedures to be followed for the selective shut down of cell phone towers in an emergency The court ruled only on Exemption 7(F) 11

NACDL v. EOUSA, 75 F. Supp. 3d 552 (D.D.C. 2014) (appeal pending) The “Blue Book” was created in the wake of the Ted Stevens prosecution The court allowed the withholding under Exemption 5 (AWP) The court did not reach Exemption 7(E) 12

Ayuda v. FTC, 70 F. Supp. 3d 247 (D.D.C. 2014) Request was made for entire contents of public complaint database maintained by the FTC The court accepted the agency’s argument that making manual redactions to all 20 million complaints would be burdensome Possibly the first time that a D.C. court has made such a holding 13

Questions? 14