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Reporters Committee reviews Judge Ketanji Brown Jackson’s record on First Amendment, Freedom of Information Act cases

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Judge Jackson authored dozens of FOIA-related opinions while serving on the U.S. District Court for the District of Columbia.
AP photo of Supreme Court nominee Ketanji Brown Jackson
Supreme Court nominee Ketanji Brown Jackson meets with Sen. Patrick Leahy, D-Vt., the senior member of the Judiciary Committee, at the Capitol in Washington, Thursday, March 3, 2022. Judge Jackson's confirmation hearing starts March 21. If confirmed, she would be the court's first Black female justice. (AP Photo/J. Scott Applewhite)

On Feb. 25, President Joe Biden nominated Judge Ketanji Brown Jackson to fill the U.S. Supreme Court seat of retiring Justice Stephen Breyer. In this report, the Reporters Committee surveys Judge Jackson’s decisions in First Amendment and Freedom of Information Act cases from her tenure on the U.S. District Court for the District of Columbia. Although Judge Jackson was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2021, none of the opinions she authored for that court pertains to issues affecting journalists.

Perhaps most noteworthy to journalists is Judge Jackson’s extensive judicial record on FOIA. She has authored dozens of FOIA-related opinions while serving on the district court from 2013 through 2021. In the analysis below, the Reporters Committee has concluded that Judge Jackson’s FOIA rulings demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.

On appeal, Judge Jackson’s FOIA decisions have received mixed treatment from the D.C. Circuit, resulting in both summary affirmances and substantive reversals.

Judge Jackson identified two cases implicating First Amendment interests as among her 10 most important rulings in a questionnaire submitted to the U.S. Senate Judiciary Committee — one dealing with commercial speech, the other concerning FOIA. In the FOIA case, which we highlight in this report, she ruled that the U.S. Justice Department’s Office of Legal Counsel could shield its legal opinions from public disclosure.

In the same questionnaire, Judge Jackson noted that of the 578 opinions that she authored as a district court judge, 10 were reversed by the D.C. Circuit — four of those reversals are discussed in this report. In one case, now-Justice Brett Kavanaugh reversed Judge Jackson’s decision granting summary judgment to a libel plaintiff, finding that Judge Jackson had misapplied the “actual malice” standard.

Two of Judge Jackson’s FOIA decisions concerning the muchabused “deliberative process” privilege were also reversed by the appellate court. In a case involving the Environmental Protection Agency, the court reversed Judge Jackson’s grant of summary judgment to the agency on a deliberative process privilege claim. And in a case involving the U.S. Geological Survey, the court reversed Judge Jackson’s holding in favor of the government, in part, on a finding that the USGS failed to demonstrate that its requested data was predecisional or deliberative, the two requisite prongs for application of the privilege.

This report was compiled by Lisa Zycherman, deputy legal director and policy counsel; Senior Staff Attorney Adam Marshall; and legal fellows Annie Kapnick, Mohsin Mirza, Gillian Vernick and Tiffany Wong.


Libel/Defamation

Kahl v. Bureau of Nat’l Affs., Inc., No. CV 09-0635, 2015 WL 13546450 (D.D.C. Aug. 21, 2015), rev’d, 856 F.3d 106 (D.C. Cir. 2017)

In a defamation suit against the Bureau of National Affairs, Inc. (“BNA”) regarding publication in the Criminal Law Reporter of a summary of a petition for a writ of mandamus that plaintiff filed in the U.S. Supreme Court, Judge Jackson denied BNA’s summary judgment motion, finding that “discrepancies between what [plaintiff’s] Mandamus Petition actually says and what BNA’s ‘summary’ reports are sufficient to create a genuine dispute of material fact” as to whether BNA published its report with actual malice. Judge Jackson thereby concluded that the inaccuracy of BNA’s report sufficed for the plaintiff to overcome summary judgment and obtain a trial on his defamation claim. Judge Jackson subsequently certified the legal question of actual malice for interlocutory appeal, and the D.C. Circuit reversed Judge Jackson’s order in an opinion written by now-Justice Kavanaugh, holding that the inaccuracy of the report, based on an “honest misinterpretation” of plaintiff’s mandamus petition, did not constitute sufficient evidence of actual malice.

Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017)

In a defamation and false light case brought by two professional baseball players against Al Jazeera and the producers of a documentary film about performance enhancing drugs (“PEDs”), Judge Jackson denied Al Jazeera’s motion to dismiss. The documentary featured multiple meetings filmed with hidden cameras wherein a PED supplier made claims about the performance benefits of the drugs he was selling by pointing to the success of the plaintiffs who he claimed were his clients. Upon learning about the film, and that he had been recorded making statements about the plaintiffs, the PED supplier recanted his statements. On their motion to dismiss, the Al Jazeera defendants argued that the complaint failed to plausibly allege actual malice because the supplier’s recantation lacked credibility and the documentary included both the supplier’s recantation and the two baseball players’ denials. Judge Jackson held that, while it was a “close question,” and accepting for purposes of the motion the plaintiffs’ allegations as true, it was plausible for a jury to find that Al Jazeera acted with actual malice in publishing the documentary after learning that the supplier had recanted his statements. Judge Jackson dismissed an additional false light and defamation claim brought against Al Jazeera for a news article it published online about the documentary. The lawsuit is ongoing, with District Court Judge Jia Cobb now presiding over the case.


Retaliation

Ryan v. D.C., 306 F. Supp. 3d 334 (D.D.C. 2018)

Judge Jackson granted summary judgment in favor of defendant as to a claim brought by an employee of the District of Columbia Fire and Emergency Medical Services Department (“FEMS”) who alleged his First Amendment rights were violated by his removal from an oversight position in retaliation for uncovering fraud and mismanagement at FEMS. Judge Jackson held that the plaintiff failed to provide any evidence demonstrating that there was a municipal “policy” or “custom” in place to retaliate against employees raising complaints that would violate the First Amendment. Judge Jackson further found that there was no evidence that the fire chief accused by the plaintiff had policy-making authority or acted in a way to create a policy of retaliating against employees for their speech, and thus the fire chief’s alleged actions could not be imputed to the District for the purpose of municipal liability.


Compelled Speech

Am. Meat Inst. v. U.S. Dep’t of Agric., 968 F. Supp. 2d 38 (D.D.C. 2013), aff’d, 746 F.3d 1065 (D.C. Cir. 2014), reh’g en banc granted, opinion vacated, 35 ITRD 2763 (D.C. Cir. 2014), and judgment reinstated, 760 F.3d 18 (D.C. Cir. 2014)

Meat industry trade associations brought an action against the U.S. Department of Agriculture (“USDA”), challenging a regulation promulgated by the Agricultural Marketing Service (a division of the USDA), which required mandatory “country-of-origin labeling” for certain commodities, including several meat products. The trade associations moved for a preliminary injunction and argued, among other things, that the regulation violated their First Amendment rights by compelling commercial speech. Judge Jackson concluded that “the production step labeling mandated by the Final Rule is the type of disclosure requirement subject to review under Zauderer’s ‘reasonableness’ standard,” because the rule compelled disclosure of “purely factual and uncontroversial information.” Judge Jackson found that the rule satisfied this lenient standard because it was reasonably related to the government’s interest in preventing consumer deception. Judge Jackson accordingly concluded that the trade associations’ First Amendment challenge was unlikely to prevail and therefore denied the request to preliminarily enjoin the rule. A D.C. Circuit panel affirmed Judge Jackson’s order, which was subsequently reheard and reaffirmed en banc.


Viewpoint Discrimination

Z St., Inc. v. Koskinen, 44 F. Supp. 3d 48 (D.D.C. 2014), aff’d sub nom. Z St. v. Koskinen, 791 F.3d 24 (D.C. Cir. 2015)

An Israel policy organization sued alleging the IRS violated the First Amendment by implementing an internal review policy that subjected Israel-focused organizations seeking 501(c)(3) tax exempt status to more rigorous review procedures than other organizations applying for the same status. In what was largely a decision involving issues of subject matter jurisdiction and sovereign immunity, Judge Jackson found that the plaintiff’s claims did not rest on a complaint about tax liability, but rather on whether the IRS unconstitutionally considers the viewpoint of an Israel-focused organization to determine its tax-exempt status. Judge Jackson denied the agency’s motion to dismiss, and certified the order for interlocutory appeal; the order was affirmed by the D.C. Circuit.


Free Speech

Brown v. Gov’t of D.C., 390 F. Supp. 3d 114 (D.D.C. 2019)

Judge Jackson denied the District of Columbia’s request to dismiss a constitutional challenge to its anti-panhandling act, finding that those arrested under the act plausibly alleged that panhandling was expressive conduct protected by the First Amendment. Judge Jackson found the anti-panhandling act to be a content-based restriction subject to strict scrutiny because it prohibited making requests for money in various public areas but did not impose similar restrictions on other speech. Judge Jackson further found that the plaintiffs plausibly alleged that the District had less restrictive, alternative means of achieving its objectives, including enforcement of criminal laws that do not center on speech. The case is still pending, with District Court Judge Jia Cobb now presiding over it.


Newsgathering/National Security

United States v. Wolfe, No. 18-CR-170 (D.D.C. 2019)

Judge Jackson presided over the prosecution of James Wolfe, former director of security for the U.S. Senate Select Committee on Intelligence, who was indicted on three charges of making false statements about his contacts with reporters to the FBI during an investigation into his unlawful disclosure of information. Wolfe pled guilty to one count and Judge Jackson rejected the government’s argument that Wolfe’s relationship with a reporter dating back three years prior was “relevant conduct” to be considered at sentencing. While she found Wolfe’s reporter contacts to be “certainly potentially harmful and entirely inappropriate,” Judge Jackson stated that those actions themselves were not criminal, reasoning that “maintaining relationships with reporters is not a crime. Even giving a reporter nonclassified but sensitive nonpublic information is not a crime.” Ultimately, she held that “the risks associated with [Wolfe’s reporter contacts] should not drive the sentence,” rejecting the government’s request for an upward departure under the sentencing guidelines.


Electronic Records/Surveillance

U.S. v. Fajardo Campos, No. 1:16-cr-00154 (KBJ), 2018 WL 6448633 (D.D.C. Dec. 10, 2018)

In a criminal case alleging participation in a drug distribution conspiracy, Judge Jackson denied the defendant’s motion to suppress electronic communications collected from the defendant’s cell phone pursuant to a wiretap under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The defendant argued that given the success of the government’s traditional investigative techniques, it should have waited for the fruits of those tactics to “ripen” before seeking the defendant’s phone communications records. In denying the motion, Judge Jackson held that “the mere fact that traditional investigative techniques had yielded some evidence against the defendant is insufficient to foreclose a Title III authorization where the affidavit supporting the Title III application establishes that these techniques had failed — and would likely continue to fail — to disclose the full nature and extent of the conspiracy of which the target is alleged to be a part.” In addition, in addressing an issue of first impression for courts in the D.C. Circuit, Judge Jackson applied the “listening post” theory to a wiretap of electronic communications — email and text — to find that an Arizona court had territorial jurisdiction to authorize the wiretap so long as the location that the government sets up to listen to the recording of the tapped calls is within the judicial district where the authorizing judge sits. Finally, Judge Jackson held that the search of the cell phone text messages falls under the plain statutory definition of “intercept” as “aural or other acquisitions.” The case is ongoing and has been reassigned to Senior District Court Judge John D. Bates.

Azima v. RAK Investment Authority, 305 F. Supp. 3d 149 (D.D.C. 2019), rev’d, 926 F.3d 870 (D.C. Cir. 2019)

In a Computer Fraud and Abuse Act (“CFAA”) claim brought by an American businessman against a foreign government commercial entity, Judge Jackson found the court had jurisdiction over the foreign entity under the commercial activity exception of the Foreign Sovereign Immunities Act (“FSIA”) because the plaintiff plausibly alleged the foreign entity hacked his personal computer and thereby caused a direct effect inside the United States. Judge Jackson found there was “no need to resolve the instant parties’ vigorous dispute over the location of the hacking,” as the FSIA’s statutory language, structure and purpose demonstrated that Congress’s primary concern was to provide a legal basis for suing a foreign sovereign acting in a commercial capacity and undertaking a harmful act that occurs in, or impacts, the United States. Judge Jackson concluded that the alleged circumstances met the standard “without making a definitive determination regarding the location” of the hacking. Judge Jackson further concluded that a mandatory forum selection clause in the parties’ settlement agreement did not apply. On appeal, the D.C. Circuit reversed, holding that the forum selection clause encompassed the businessman’s claims and that the businessman failed to establish that transferring the action to England was unwarranted.


Bivens and First Amendment

Patterson v. U.S., 999 F. Supp. 2d 300 (D.D.C. 2013)

In a case brought by a citizen alleging his First and Fourth Amendment rights were violated by U.S. Park Police officers when he was arrested for using profanities in a public park, and seeking damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, Judge Jackson denied the officers’ motion to dismiss, concluding that First Amendment retaliatory arrest claims are cognizable under Bivens. Judge Jackson denied the officers’ qualified immunity defense, finding that the laws governing free speech and permissible arrest were clearly established, and no reasonable officer could have believed that the plaintiff’s use of profanity in the park was disorderly conduct.


Freedom of Information Act

Agencies’ Search for Records

A frequent issue in FOIA litigation is the sufficiency of an agency’s search for records. Judge Jackson has, on numerous occasions, required agencies to conduct additional searches after they move for summary judgment, criticizing them for narrowly interpreting requests and failing to justify their limited efforts.[1] At the same time, she routinely denied plaintiffs’ efforts to engage in discovery on issues related to the sufficiency of an agency’s search.[2]

Application of FOIA Exemptions

In cases involving the application of FOIA exemptions to withhold information, Judge Jackson often held that the government did not provide sufficient information for her to evaluate its claims. For example, in one case where journalist and documentary filmmaker Laura Poitras sued for records regarding herself, Judge Jackson denied the FBI’s motion for summary judgment based on the paucity of its generalized declarations, noting that “such lack of specificity on the agency’s part not only prevents the Court from analyzing the propriety of the exemptions asserted, it also thwarts any effort to make the required specific findings of segregability regarding the documents to be withheld.”[3] In another case involving the FBI, Judge Jackson again chastised the agency, stating that “this Court expects the FBI to be vigilant in its submission of supporting materials, and to provide the Court with documents that will enable review of the agency’s FOIA withholdings in the first instance, rather than waiting to be prompted to do so by Court Order.”[4]

However, Judge Jackson’s opinions rarely require the release of records as a result of a determination that an agency’s exemption claim was improper.[5] Even when finding that an agency failed to carry its burden on an exemption claim, she frequently afforded the agency additional opportunities to supplement the record to support its claims, as opposed to granting judgment for the requester.[6]

In one of the few cases where she did order the release of information, Judge Jackson held that the public interest in the names and addresses of individual participants in water transfer programs, real water determinations, or well ownership, overcame relevant privacy interests under Exemption 6.[7]

Judge Jackson has tended to be deferential to the government’s exemption claims in the national security context, but that is not uncommon in FOIA matters.[8] In a fairly high-profile case involving a request for pornographic material reportedly recovered from Osama Bin Laden’s compound in Pakistan, Judge Jackson held that the CIA properly designated the material as “exempted operational files” under the CIA Information Act, and thus that such material need not be disclosed.[9] In another case seeking historical FBI records about former First Lady Eleanor Roosevelt, Judge Jackson held that the agency was allowed to withhold certain pages under both the National Security Act and Exemption 7(E).[10] Judge Jackson has also repeatedly upheld agencies’ Glomar responses to FOIA requests.[11]

Fees for Records

While most FOIA lawsuits concern the government’s assertion of exemptions to withhold information, administrative or procedural issues can also make their way to court. For example, in Liberman v. Department of Transportation, Judge Jackson addressed competing arguments over whether a blog, run by an industry research firm, that addressed “regulatory developments, consumer litigation, and other recent events in the area of consumer safety” qualified as a “representative of the news media” under FOIA’s fee provision.[12] The Department of Transportation argued that the blog did not qualify because the material it published was not “news” and that what it did publish promoted the firm’s commercial services, taking it outside of FOIA’s fee benefit for news media requesters.[13] Judge Jackson rejected the government’s arguments, holding that the blog and the requester satisfied all of the requirements to be a “representative of the news media” under the statute and D.C. Circuit precedent. In so doing, she noted that although “news-media entities are often businesses — and, in that sense, are inherently commercial — the law has long recognized that such commercial entities can have both corporate and news-dissemination functions. FOIA’s fee-waiver provision is intentionally designed to promote the latter by reducing the costs of information-gathering for journalists and the entities for whom they work[.]”[14]

Another of Judge Jackson’s opinions involved an argument by the Department of Commerce that it could charge a reporter and editor for Quartz more than $173,000 for access to data concerning international travelers.[15] (Reporters Committee attorneys represented the plaintiff in this matter and are currently representing him in an ongoing, related matter.) In that case, the agency argued that the Mutual Educational and Cultural Exchange Act of 1961 and the Consolidated Appropriations Act of 2016 superseded FOIA’s ordinary fee provisions, and thus allowed it to “sell” the data to the public.[16] Judge Jackson disagreed, holding that neither provision “provides for setting the level of fees, nor do they do so for particular types of records,” as required for a statute to supersede FOIA’s ordinary fee schedule.[17] Although she granted the requester’s motion for summary judgment, she later denied a motion to require the agency to actually turn over the requested data,[18] resulting in the plaintiff having to file a new lawsuit that remains pending before a different district court judge.[19]

Appellate Review of Judge Jackson’s FOIA Opinions

Appellate review of Judge Jackson’s FOIA cases is mixed. Several of her decisions holding agencies properly withheld records were summarily affirmed by the D.C. Circuit.[20] But two of her decisions were the subject of substantive reversals. In 2020, in Hall & Associates v. EPA, the Circuit reversed Judge Jackson’s grant of summary judgment to the EPA on a deliberative process claim.[21] The court stated that “the district court misstepped in this case because it granted summary judgment to the EPA by resolving against [the requester a] quintessentially factual dispute concerning the date on which the [agency’s position] was first adopted[,]” which was crucial to determining whether the exemption applied.

The D.C. Circuit also reversed Judge Jackson’s holding in part in another FOIA case in 2020 involving the deliberative process privilege, Pavement Coatings Technology Council v. USGS, which concerned model data related to the agency’s coal tar sealant studies.[22] The court determined that USGS failed to demonstrate that the data was predecisional or deliberative, the two requisite prongs for the privilege.

In a rare case involving Exemption 9, which concerns “geological and geophysical information and data, including maps, concerning wells,” Judge Jackson authored an opinion that was affirmed on appeal by the D.C. Circuit. Although the legislative history of Exemption 9 shows it was enacted to address oil wells, Judge Jackson held that its text equally applied to water wells, as “no distinction is drawn among types of wells, and the text provides no reason to think that water wells would be excluded from the exemption’s purview.”[23]

Selected Summaries of Judge Jackson’s FOIA Opinions

Gawker Media, LLC v. United States Dep’t of State, 266 F. Supp. 3d 152 (D.D.C. 2017)

Concluding that the State Department was not obligated to retrieve and search documents in the possession of its former Deputy Assistant Secretary of State.

Unrow Hum. Rts. Impact Litig. Clinic v. United States Dep’t of State, No. 13-CV-1573 (KBJ), 2014 WL 12810521 (D.D.C. July 25, 2014)

Granting protective order for defendant regarding plaintiff’s discovery requests where the discovery requests would provide the same relief that the plaintiff was seeking in the underlying FOIA action.

Pike v. United States Dep’t of Justice, 306 F. Supp. 3d 400 (D.D.C. 2016)

Concluding that the Justice Department did not improperly withhold the recording and transcript of a conversation between two subjects of a federal fraud investigation under Exemption 7(A) where government declarations demonstrated how disclosure could be reasonably expected to cause articulable harm to the criminal investigation, but requiring the agency to release the portion of the transcript that it placed into the public domain via a complaint and related press release.

Elec. Priv. Info. Ctr. v. United States Dep’t of Justice, 15 F. Supp. 3d 32 (D.D.C. 2014)

Denying EPIC’s motion for preliminary injunction because it did not sufficiently demonstrate that it would suffer irreparable harm if the court did not order the Justice Department to produce responsive records related to the national security program under the Foreign Intelligence Surveillance Act.

Conservation Force v. Jewell, 160 F. Supp. 3d 194 (D.D.C. 2016)

Denying the plaintiff’s motion for attorney fees where plaintiff failed to demonstrate that it substantially prevailed in the action and did not receive court-ordered relief on the merits of its FOIA claims, nor did it receive relief from the agency that it would not have obtained but for the lawsuit.

Conservation Force v. Jewell, 66 F. Supp. 3d 46 (Sept. 2, 2014)

Holding that an agency’s Vaughn index failed to satisfy the burden of establishing that the deliberative process privilege applied to responsive records related to permit applications because it did not establish that withheld records were pre-decisional and deliberative.

Liberman v. U.S. Dep’t of Transp., 227 F. Supp. 3d 1 (D.D.C. 2016)

Holding that the operator of an online blog that focused on automotive and consumer safety issues qualified as a “representative of the news media” within the meaning of FOIA’s fee provision, even though the blog was closely associated with a for-profit consumer advocacy firm.

Yanofsky v. United States Dep’t of Com., 306 F. Supp. 3d 292 (D.D.C. 2018)

Holding that the Mutual Educational and Cultural Exchange Act and Consolidated Appropriations Act did not set a level of fees that displaced FOIA’s fee-setting provisions. (Reporters Committee attorneys represented the plaintiff in this matter and are currently representing him in an ongoing, related matter.)

Bigwood v. United States Dep’t of Def., 132 F. Supp. 3d 124 (D.D.C. 2015)

Granting agency’s motion for summary judgment because the department conducted an adequate search for records and provided a sufficient basis for withholding records under Exemptions 1 and 7(E).

Environmental Integrity Project v. Gen. Servs. Admin., No. 18-CV-0042 (KBJ), 2021 WL 3464337 (D.D.C. Aug. 6, 2021)

Holding that the plaintiff was entitled to attorney fees because it substantially prevailed in the lawsuit insofar as the lawsuit caused GSA to change its position, served a public benefit by contributing to the public’s knowledge of controversies around government officials, the plaintiff did not obtain a commercial benefit from its lawsuit, the lawsuit was motivated by public interest concerns, and GSA did not have a reasonable basis for withholding the requested records.

Conservation Force v. Ashe, 979 F. Supp. 2d 90, 98 (D.D.C. 2013)

Concluding that the agency failed to conduct an adequate search for records because it failed to properly determine the scope of the FOIA request. Plaintiff’s parenthetical statement identifying a subset of the records in the request did not limit the scope of records, but rather clarified the request.

Rodriguez v. Dep’t of Def., 236 F. Supp. 3d 26 (D.D.C. 2017)

Concluding that the Department of Defense failed to demonstrate that it conducted an adequate search for records related to a former Army officer’s unsuccessful petition under the Military Whistleblower Protection Act because it failed to search the deciding official’s own office and did not demonstrate the approach it used to search for the records.

Poitras v. Dep’t of Homeland Sec., No. 15-CV-1091 (KBJ), 2017 WL 7053929, (D.D.C. Mar. 31, 2017)

Denying agency’s motion for summary judgment because the agency’s declarations failed to provide particularized justifications for withholdings.

Willis v. Nat’l Sec. Agency, No. 17-CV-2038 (KBJ), 2019 WL 1924249 (D.D.C. Apr. 30, 2019)

Holding that Exemptions 1 and 3 permitted the National Security Agency to provide a Glomar response to the plaintiff’s request for her own intelligence records.

Leopold v. Nat’l Sec. Agency, No. 14-CV-0919 (KBJ), 2015 WL 12964654  (D.D.C. Feb. 20, 2015)

Concluding that plaintiff was not entitled to discovery because he did not argue that the agency’s declaration was issued in bad faith, and the agency provided sufficient details to describe the search conducted.

Leopold v. Dep’t of Treasury, No. 16-CV-1827 (KBJ), 2017 WL 8222153 (D.D.C. Aug. 1, 2017)

Concluding that defendants were authorized to submit ex parte and in camera versions of their summary judgment filings, as disclosure of the filings would interfere with the FBI’s ongoing investigation into Russian interference in the 2016 presidential election.

Sciacca v. Fed. Bureau of Investigation, 23 F. Supp. 3d 17 (D.D.C. 2014)

Concluding that the FBI was not entitled to summary judgment because it failed to provide sufficient information to permit an assessment of whether it had produced reasonably segregable information, and failed to provide a listing of documents that had been withheld pursuant to a FOIA exemption.

Brustein & Manasevit, PLLC v. United States Dep’t of Educ., 30 F. Supp. 3d 1 (D.D.C. 2013)

Holding that the agency’s decision to release requested records pertaining to a computer program that DOE used to identify state and local education agencies at risk of misusing federal funds did not moot plaintiff’s claim, since plaintiff maintained that there were additional responsive documents; further concluding that the DOE conducted a reasonable and adequate search for responsive documents.

Judicial Watch, Inc. v. Cent. Intel. Agency, 310 F. Supp. 3d 34 (D.D.C. 2018)

Holding that the CIA adequately demonstrated that the responsive records — files containing pornographic materials collected during the Osama Bin Laden military operation — were properly designated as “operational files” exempt from FOIA disclosure under the CIA Information Act.

Love v. U.S. Dep’t of Homeland Sec., 960 F. Supp. 2d 254 (D.D.C. 2013)

Concluding that DHS adequately searched for records related to the requester’s narcotics arrest, even though the requester speculated that responsive documents may exist and another agency, DEA, had located documents in response to a similar FOIA request.

Charles v. Off. of the Armed Forces Med. Exam’r, 979 F. Supp. 2d 35 (D.D.C. 2013)

Concluding that agencies had appropriately determined that preliminary autopsy reports regarding deceased armed forces service members did not contain reasonably segregable, non-exempt information.

Riccardi v. United States Dep’t of Justice, 32 F. Supp. 3d 59 (D.D.C. 2014)

Concluding that multiple declarations demonstrating that the agency had conducted three separate searches of relevant office files sufficiently demonstrated adequacy of the agency’s records search.

Stotter v. United States Agency for Int’l Dev., No. 14-CV-2156 (KBJ), 2020 WL 5878033 (D.D.C. Oct. 3, 2020)

Concluding that the agency properly invoked Exemption 6 to withhold identifying information because violence might befall both individuals and organizations in Pakistan if their ties to the United States were revealed.

Francis v. Fed. Hous. Fin. Agency, 134 F. Supp. 3d 518 (D.D.C. 2015)

Concluding that the FHFA was not required to search for Fannie Mae records sought by the plaintiff, as such records are not under the control of the FHFA.

Brick v. Dep’t of Justice, 293 F. Supp. 3d 9 (D.D.C. 2017)

Finding FBI’s declarations in support of withholdings under Exemptions 3, 6, 7(C) and 7(E) were insufficient, as the declarations consisted only of general and conclusory statements.

AquAlliance v. United States Bureau of Reclamation, 139 F. Supp. 3d 203 (D.D.C. 2015)

Holding that agency was entitled to withhold reports related to the construction of water wells and maps depicting well locations under Exemption 9, but the public interest in the disclosure of participants in the water programs outweighed the de minimis privacy interest under Exemption 6.

Unrow Hum. Rts. Impact Litig. Clinic v. U.S. Dep’t of State, 134 F. Supp. 3d 263 (D.D.C. 2015)

Concluding that diplomatic cables between the U.S. and the UK governments regarding the British Indian Ocean Territory were exempt from disclosure under Exemption 1.

Electronic Privacy Info. Ctr. v. Dep’t of Justice, 296 F. Supp. 3d 109 (D.D.C. 2017)

Concluding that responsive records related to the national security program under FISA were exempt from disclosure under Exemptions 1 and 3 because the records were classified in the interest of national defense or foreign policy, pertained to intelligence methods, and discussed strengths and weaknesses of the FISC process.

Gosen v. USCIS, 296 F. Supp. 3d 109 (D.D.C. 2014)

Concluding that records related to the plaintiff’s asylum application were properly redacted under Exemptions 6 and 7(C), as disclosure would result in the unwarranted invasion of personal privacy of United States Citizenship and Immigration Services and other government employees, and the public interest identified by plaintiff — revealing that USCIS violated its own regulations — would not be served through un-redacting the records.

Brick v. Dep’t of Justice, 358 F. Supp. 3d 37 (D.D.C. 2019)

Concluding that the FBI properly withheld records related to travel to the Soviet Union by the former first lady under Exemptions 3 and 7(E), as FBI’s ex parte declaration sufficiently demonstrated how disclosing the records would result in the disclosure of intelligence sources and methods, as well as law enforcement techniques and procedures.

McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017)

Holding that the FDIC failed to provide sufficient information demonstrating whether records were appropriately withheld under Exemptions 4, 5, and 8.

Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420 (D.D.C. 2016)

Holding that Section 105 of the Animal Drug and User Fee Amendments of 2008 — the statute that the FDA invokes to withhold records concerning the total sales of antimicrobial medications labeled for use in food-producing animals — is not an exemption statute and thus does not exempt records under Exemption 3. Further concluding that disputed material facts precluded summary judgment for either party as to whether records were subject to Exemption 4.

Martin v. U.S. Equal Emp. Opportunity Comm’n, 19 F. Supp. 3d 291 (D.D.C. 2014)

Concluding that the recommendation section of a memorandum from an EEOC investigator recommending closure of the plaintiff’s Title VII discrimination charge was exempt under the deliberative process privilege.

Yanofsky v. United States Dep’t of Com., No. 19-CV-2290 (KBJ), 2020 WL 5944448

Denying summary judgment because genuine issues of material fact remained regarding whether the agency possessed the requested records.

James Madison Project v. Cent. Intel. Agency, No. 18-CV-03112 (KBJ), 2020 WL 5653577 (D.D.C. Sept. 23, 2020)

Concluding that the CIA’s declarations did not provide enough information to allow the Court to evaluate whether the agency had properly invoked Exemption 6 or 7(C), or whether it had released all reasonably segregable information, but holding that the CIA was entitled to partial summary judgment with regard to the adequacy of the CIA’s search, its withholding of records under Exemption 1, and its issuance of a Glomar response.

Williams v. Fanning, 63 F. Supp. 3d 88 (D.D.C. 2014)

Granting agency’s motion for summary judgment because the agency’s search was reasonable and adequate where the agency searched two relevant databases using broad parameters, and used the requester’s full name and social security number, which would have located any responsive records.

Pavement Coatings Tech. Council v. US Geological Survey, 436 F. Supp. 3d 115 (Dec. 19, 2019)

Concluding that USGS could properly withhold responsive records concerning its consideration, regulation, and review of coal tar or asphalt sealant under Exemption 5; holding that the records were pre-decisional and deliberative because they were generated during the process of determining whether or not to publish material. Further concluding that USGS could properly withhold documents containing personally identifiable information of individual volunteers who participated in a study conducted by the agency under Exemption 6.

Campaign for Accountability v. U.S. Dep’t of Justice, 278 F. Supp. 3d 303 (D.D.C. 2017)

Holding that opinions of the Department of Justice’s Office of Legal Counsel, which provided controlling legal advice to executive branch officials and agencies on questions of law, served as precedent within the Office and the executive branch, and served as interpretive guides for the executive branch, were not subject to the affirmative disclosure requirement under FOIA’s reading-room provision.

Sheridan v. U.S. Off. of Pers. Mgmt., 278 F. Supp. 3d 11 (D.D.C. 2017)

Concluding that OPM properly withheld source code and related design and operation manuals for a system used to facilitate background investigations for prospective federal government employees under Exemption 7(E).

Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131 (D.D.C. 2014)

Holding that Exemption 5 did not permit redaction of the names of signatories of a memorandum endorsing a contract because the signatories’ names are facts that do not qualify as pre-decisional. Further concluding that the agency failed to demonstrate that substantial privacy interests are implicated by the disclosure of signatories’ names under Exemption 6.

Muckrock, LLC v. Cent. Intel. Agency, 300 F. Supp. 3d 108 (D.D.C. 2018)

Awarding declaratory relief to requester because the CIA’s policy of categorically refusing to process FOIA requests for email records that did not specify “to” and “from” (senders and recipients), time frame, and subject, violates FOIA; further concluding that the CIA could have conducted a search without the information that the alleged policy delineated.


Endnotes

[1] See, e.g., Conservation Force v. Ashe, 979 F. Supp. 2d 90, 104 (D.D.C. 2013); Rodriguez v. Dep’t of Def., 236 F. Supp. 3d 26, 41 (D.D.C. 2017); Donato v. Exec. Off. for United States Att’ys, 308 F. Supp. 3d 294, 313 (D.D.C. 2018), clarified on denial of reconsideration, No. CV 16-0632 (KBJ), 2018 WL 11241968 (D.D.C. Aug. 15, 2018).

[2] See, e.g., Gawker Media, LLC v. United States Dep’t of State, 266 F. Supp. 3d 152, 154 (D.D.C. 2017); Leopold v. Nat’l Sec. Agency, No. 14-CV-0919 (KBJ), 2015 WL 12964654 (D.D.C. Feb. 20, 2015).

[3] Poitras v. Dep’t of Homeland Sec., No. 15-CV-1091 (KBJ), 2017 WL 7053929, at *2 (D.D.C. Mar. 31, 2017) (internal quotation and citation omitted).

[4] Brick v. Dep’t of Justice, 293 F. Supp. 3d 9, 12 (D.D.C. 2017) (cleaned up).

[5] See infra n. 6; see also Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420 (D.D.C. 2016) (holding Exemption 3 did not apply to withheld documents, but material questions of fact remained as to whether Exemption 4 applied).

[6] See, e.g., Poitras v. Dep’t of Homeland Sec., No. 15-CV-1091 (KBJ), 2017 WL 7053929 (D.D.C. Mar. 31, 2017); Sciacca v. Fed. Bureau of Investigation, 23 F. Supp. 3d 17, 30 (D.D.C. 2014); Donato v. Exec. Off. for United States Att’ys, 308 F. Supp. 3d 294, 313 (D.D.C. 2018), clarified on denial of reconsideration, No. CV 16-0632 (KBJ), 2018 WL 11241968 (D.D.C. Aug. 15, 2018); Brick v. Dep’t of Justice, 293 F. Supp. 3d 9, 12 (D.D.C. 2017); McKinley v. Fed. Deposit Ins. Corp., 268 F. Supp. 3d 234, 238 (D.D.C. 2017); James Madison Project v. Cent. Intel. Agency, No. 18-CV-03112 (KBJ), 2020 WL 5653577 (D.D.C. Sept. 23, 2020); Jud. Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131 (D.D.C. 2014).

[7] See AquAlliance v. United States Bureau of Reclamation, 139 F. Supp. 3d 203, 214 (D.D.C. 2015).

[8] See, e.g., Unrow Hum. Rts. Impact Litig. Clinic v. U.S. Dep’t of State, 134 F. Supp. 3d 263 (D.D.C. 2015); Jud. Watch, Inc. v. Cent. Intel. Agency, 310 F. Supp. 3d 34 (D.D.C. 2018); Elec. Priv. Info. Ctr. v. Dep’t of Justice, 296 F. Supp. 3d 109, 112 (D.D.C. 2017); James Madison Project v. Cent. Intel. Agency, No. 18-CV-03112 (KBJ), 2020 WL 5653577 (D.D.C. Sept. 23, 2020).

[9] Jud. Watch, Inc. v. Cent. Intel. Agency, 310 F. Supp. 3d 34 (D.D.C. 2018).

[10] Brick v. Dep’t of Justice, 358 F. Supp. 3d 37 (D.D.C. 2019).

[11] See, e.g., Donato v. Exec. Off. for United States Att’ys, 308 F. Supp. 3d 294, 308 (D.D.C. 2018), clarified on denial of reconsideration, No. CV 16-0632 (KBJ), 2018 WL 11241968 (D.D.C. Aug. 15, 2018); Willis v. Nat’l Sec. Agency, No. 17-CV-2038 (KBJ), 2019 WL 1924249 (D.D.C. Apr. 30, 2019).

[12] Liberman v. U.S. Dep’t of Transp., 227 F. Supp. 3d 1, 4 (D.D.C. 2016).

[13] Id. at 7–8.

[14] Id. at 14 (D.D.C. 2016).

[15] Yanofsky v. United States Dep’t of Com., 306 F. Supp. 3d 292 (D.D.C. 2018).

[16] Id. at 299.

[17] Id. at 300 (cleaned up).

[18] Yanofsky v. United States Dep’t of Com., No. 1:16-CV-951 (KBJ), 2019 WL 5110502 (D.D.C. Apr. 25, 2019).

[19] See Yanofsky v. United States Dep’t of Com., No. 19-CV-2290 (KBJ), 2020 WL 5944448 (D.D.C. Oct. 6, 2020).

[20] See, e.g., Conservation Force v. Jewell, No. 15-5131, 2015 WL 9309920 (D.C. Cir. Dec. 4, 2015); Pike v. United States Dep’t of Justice, No. 16-5303, 2017 WL 2859559 (D.C. Cir. June 23, 2017).

[21] Hall & Assocs. v. EPA, 956 F.3d 621 (D.C. Cir. 2020).

[22] Pavement Coatings Technology Council v. USGS, 995 F.3d 1014 (D.C. Cir. 2021).

[23] AquAlliance v. United States Bureau of Reclamation, 139 F. Supp. 3d 203, 209–10 (D.D.C. 2015) (emphasis removed).

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