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Analyses Last Updated: Aug 7, 2018 - 9:30:49 AM


Special Report on Supreme Court Nominee Brett M. Kavanaugh
By Reporters Committee For Freedom of the Press 2/8/12
Aug 6, 2018 - 8:41:39 AM

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On July 9, 2018, President Donald J. Trump nominated Judge Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia to fill the vacancy that will be left by Justice Anthony Kennedy when he retires at the end of July. Given the D.C. Circuit’s role as the court that hears appeals stemming from challenges to the federal government, Judge Kavanaugh’s record tends to be heavier on press freedom issues as they relate to things like national security, access to government information, and federal regulations, and relatively lighter on “traditional” First Amendment press issues like libel or the privacy torts.

Of particular note for the news media, Judge Kavanaugh has written favorably with respect to the “actual malice” standard as articulated in New York Times v. Sullivan, which sets him apart from the late Justice Scalia, who famously disagreed with the unanimous decision in that 1964 civil rights era case.

He has also repeatedly applied the Court’s Miami Herald v. Tornillo decision in case involving cable and telecommunications regulations, and has written expansively that the First Amendment protection of editorial discretion recognized in that 1974 case applies to internet service providers and cable companies. For instance, in his dissent from the D.C. Circuit’s decision to uphold net neutrality regulations, he wrote that, absent a showing of market power, the government may not tell ISPs which data they must carry any more than it “can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry . . . .” A departure by Judge Kavanaugh in a content-discrimination case under a different context would be inconsistent with the ground he has staked out on Tornillo.

He has also taken a number of positions that may put him at odds with journalists. In an area of increasing relevance to the news media and free press issues, Judge Kavanaugh took a permissive approach to government authority in the national security context. In one case, for instance, Judge Kavanaugh wrote separately to argue that counter-terrorism, broadly construed, constitutes a “special need” justifying suspicion-less searches under the Fourth Amendment.

He also found that the D.C. “anti-SLAPP” statute—which provides protections for individuals facing frivolous suits based on First Amendment-protected rights—is “procedural” in nature and inapplicable in federal court, a blow to press and free speech advocates.

Judge Kavanaugh also has issued a number of important Freedom of Information Act decisions. Of particular note, he took a broad approach to the “deliberative process” privilege with respect to a CIA history of the Kennedy-era Bay of Pigs invasion. His decision in that case would permit the withholding of material that should likely not qualify under the deliberative process privilege which is only meant to shield “pre-decisional” and deliberative materials from public view to protect candid decision-making in government. But he has also written an important, and helpful, decision defining what qualifies as a “determination” under FOIA.

Finally, Judge Kavanaugh has issued a smattering of other general First Amendment opinions, including several on campaign finance matters and a concurrence in a case upholding the District of Columbia’s defacement statute as applied to prevent a sidewalk chalk demonstration.

We are not aware of any instance where Judge Kavanaugh has written an opinion in a case involving the unauthorized disclosure of classified information or the issuance of subpoenas or other legal process against reporters to compel them to disclose confidential sources. We are likewise unaware of any academic work by Judge Kavanaugh on the subject or a case during his clerkships touching on the issue.

We survey his relevant opinions below in four sections:

defamation, anti-SLAPP, and privacy torts
Freedom of Information Act and government transparency
criminal procedure and national security
general free speech cases (including campaign finance and net neutrality)

Where relevant, we also look at his academic writings and cases that he may have been involved in as a law clerk (in particular his service as a clerk for the justice he will be replacing if confirmed, Justice Anthony Kennedy).

Please note that we continue to review Judge Kavanaugh’s extensive record, and may supplement this list as needed. We included a full list of cases described in this analysis below.

This research and analysis were compiled and written by Technology and Press Freedom Project Director Gabe Rottman, Legal Intern Kelsey Fraser, Google Policy Fellow Victoria Noble, Jack Nelson/Dow Jones Legal Fellow Michael Shapiro, Ethics and Excellence in Journalism Fellow Josh Moore.

Defamation, Anti-SLAPP, and the Other Privacy Torts

Anti-SLAPP in Federal Courts

In an important 2015 decision for the D.C. Circuit, Kavanaugh found that D.C.’s anti-SLAPP law—meant to deter lawsuits aimed at silencing activity protected by the First Amendment—does not apply in federal court. (“SLAPP” stands for “strategic lawsuit against public participation.”)

In Abbas v. Foreign Policy Group, LLC, Yasser Abbas, a son of Palestinian Authority President Mahmoud Abbas, sued Foreign Policy for defamation for an article that asked whether Abbas and his brother were “growing rich off their father’s system.” The district court had dismissed the suit under D.C.’s anti-SLAPP statute, which makes it easier for defendants to toss out meritless lawsuits consisting of “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.” In cases with those types of claims, the plaintiff must show that “the claim is likely to succeed on the merits” or face dismissal.

Kavanaugh wrote that the statute was a procedural rule that conflicts with the rules of federal courts, which do not require a plaintiff to show a likelihood of success on the merits. In the face of that conflict, Kavanaugh found that the federal rules govern, not the D.C. anti-SLAPP statute.

The First, Fifth, and Ninth Circuits had previously held that state anti-SLAPP law applied in federal court. Kavanaugh’s Abbas decision created a circuit split, and just this year, the 10th Circuit joined the D.C. Circuit in holding that state anti-SLAPP laws do not apply in federal court.

While Kavanaugh’s holding on the applicability of the anti-SLAPP law was a significant setback to free press interests (the Reporters Committee joined an amicus brief in the case supporting the use of such statutes in federal court), Foreign Policy ultimately won its motion to dismiss in Abbas. Kavanaugh noted that the article asked if the brothers were benefiting off their father’s system, and found that “questions are questions” and thus not actionable defamation. He acknowledged that reporters must be able to ask questions and warned that extending defamation liability to questions would bring a “severe infringement on free speech.”

Under that theory, Kavanaugh upheld the dismissal of Abbas’ defamation claims with prejudice, under federal rules for failure to state a claim rather than D.C.’s anti-SLAPP statute.

Libel

In a 2017 opinion authored by Kavanaugh, the D.C. Circuit dismissed a prisoner’s defamation case against the Bureau of National Affairs (“BNA”) for its reporting on another filing in his case. Kavanaugh found in Kahl v. Bureau of National Affairs, Inc. that the prisoner, convicted of murdering two U.S. marshals, was a limited purpose public figure under D.C. law for the purposes of the news media’s reporting on his case, as the trial received a lot of public scrutiny and the prisoner had continued to seek press coverage. Thus, the prisoner faced the additional burden of proving BNA acted with actual malice.

Kavanaugh also found that alleging falsity alone was not enough to allege actual malice. Instead, he found that BNA had not acted with actual malice and directed the district court, which had denied BNA’s motion for summary judgment, to dismiss the defamation claims.

In the opinion, Kavanaugh recognized that “[c]ostly and time-consuming defamation litigation can threaten” the “essential freedoms” of speech and of the press. He wrote: “[t]o preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.”

Privacy Torts

As far as we can tell, Judge Kavanaugh has not issued a significant opinion in a case involving the traditional privacy torts: invasion of privacy, false light, public disclosure of private facts, or rights to publicity. Such cases are comparatively rare in the D.C. Circuit given its limited geographic jurisdiction.

FOIA and Government Transparency

If Judge Kavanaugh replaces Justice Kennedy on the Supreme Court, possibly the last opinion he will have joined on the D.C. Circuit involves the Freedom of Information Act (“FOIA”)—more specifically when a records requester who successfully obtains records through litigation is entitled to recover attorney’s fees. Kavanaugh was part of a 2-1 per curiam (“for the court”) decision issued on July 9, 2018, denying fees to a records requester who sought and received certain documents from the CIA about John F. Kennedy’s assassination.

In a concurring opinion issued five years earlier in the same case, Morley v. CIA, Kavanaugh criticized the D.C. Circuit’s use of a test to determine whether FOIA plaintiffs are entitled to attorney’s fees because it favored media groups over commercial businesses who seek records. Since 1977, the court has considered four factors when deciding whether to grant fees to a requester who succeeded in getting records through the court system. One of those factors places at a disadvantage requesters who derive a commercial benefit from their access to public records. As an example, the factor would disfavor a for-profit company that obtains government records through a FOIA lawsuit, organizes those records in a database, and then sells access to the database to other businesses. On the other hand, news organizations are not similarly penalized. Kavanaugh takes exception to the court’s preference, however: “[O]ne of the broad purposes of FOIA was to enable all citizens to directly access government information without having to rely on filters. So why penalize non-media businesses that directly seek more information about how the government is carrying out its responsibilities?”

In National Security Archive v. Central Intelligence Agency, Kavanaugh wrote that the CIA could withhold a draft volume of a book describing the CIA’s attempted invasion of Cuba at the Bay of Pigs. The agency had argued the volume was exempt under the “deliberative process privilege” of Exemption 5 to FOIA because it would expose the agency’s decision-making process. Four other volumes of the same book had already been released without such harmful effects. Kavanaugh wrote that drafts of various government documents, such as speeches, regulations, and agency histories, are protected from disclosure under Exemption 5 even when they are not followed by a finalized document. This is the case, he said, even when the same agency has released similar documents (the CIA had released four other draft volumes from the same book); even when the agency cannot point to any concrete harm other than general harm to candor of present and future decision-making; and even when a long amount of time has passed. After the decision, Congress amended FOIA’s Exemption 5 to include a 25-year sunset provision. The Bay of Pigs volume was released following passage of these amendments under the new 25-year rule.

In Citizens for Responsibility & Ethics in Washington v. Federal Election Commission, Kavanaugh, writing for a unanimous panel, fleshed out what agencies are required to provide when they issue a “determination” in response to a FOIA request. Such determinations are important because if they are not issued by certain statutory deadlines, a FOIA requester can sue in federal court for the records at issue without going through the sometimes lengthy administrative appeals process. Kavanaugh wrote that while an agency “need not actually produce the documents” as part of a determination, it “must at least indicate . . . the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.”

Judge Kavanaugh has written a series of other FOIA opinions, which we list with parenthetical explanations in the list of cases below.

Criminal Procedure and National Security

Judge Kavanaugh dissented in the denial of rehearing for United States v. Jones, in which the D.C. Circuit held that investigators needed a warrant to collect roughly four weeks of a criminal defendant’s GPS location data, because law enforcement could use the GPS data to reconstruct the defendant’s movements over an entire month. The panel reasoned that, in the pre-digital era, investigators would not have been able to follow the defendant continuously for a month –– something the Fourth Amendment would allow, if it were possible –– but in aggregate, months of GPS data allows investigators to reconstruct a complete picture of defendant’s movements over an entire month. The Supreme Court affirmed.

Judge Kavanaugh's dissent from the denial of en banc review viewed with skepticism the D.C. Circuit’s “aggregation approach,” where one’s reasonable expectation of privacy in otherwise public movements increases along with the volume of data collected (because the larger the volume of data, the more revelatory it is about private movements or other information). He did, however, say that even absent “aggregation,” the government should not necessarily prevail in the case because the physical installation of the GPS device on his property may have independently violated the Fourth Amendment. He said the issue is an “important and close question, and one that the en banc Court should consider . . . .”

In Klayman v. Obama, the D.C. Circuit case involving a challenge to the National Security Agency’s program to collect telephone metadata in bulk under the “business records” provision of the Foreign Intelligence Surveillance Act, Judge Kavanaugh wrote separately concurring in the denial of a rehearing en banc of the court’s decision to stay the lower court’s injunction against the program. Judge Kavanaugh wrote that, under the “third party doctrine” (where one does not have a reasonable expectation of privacy in records that are voluntarily shared with, for instance, the telephone company), the Fourth Amendment did not even apply. He went further, and suggested that counter-terrorism, broadly construed, could constitute a “special need” permitting suspicionless searches under the Fourth Amendment.

With respect specifically to national security and the First Amendment, Judge Kavanaugh wrote a concurrence in al Bahlul v. United States, a case in which Osama Bin Laden’s public relations aide challenged several terrorism convictions in a military commission arguing that, with respect to certain videos he produced, they violate the First Amendment. The majority affirmed his conviction on several different grounds (with different judges adopting different positions). Judge Kavanaugh wrote separately on a number of issues, and found, without detailed analysis, that the various videos in question in al Bahlul’s case constitute incitement under the Supreme Court’s Brandenburg opinion (which requires that the speech be intended to incite imminent lawless activity, and that it be likely to do so). And he caps that discussion with the coda: “[t]he Constitution is not a suicide pact.”

General Free Speech Cases

Campaign Finance

Judge Kavanaugh’s decision in Republican National Committee v. Federal Election Commission upheld against a First Amendment challenge a campaign finance law (the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold) that limited contributions to national, state, and local political parties.

These limitations, known as “soft money bans,” had been previously upheld by the Supreme Court in McConnell v. FEC, 540 U.S. 93 (2003) and Kavanaugh’s opinion rejected the RNC’s arguments that their intended uses of soft money fell outside the McConnell precedent. He wrote: “McConnell rejected this approach; indeed, this was the whole point of BCRA’s soft-money ban and of the McConnell decision upholding it. This particular argument is another way of asking us to overrule McConnell’s holding with respect to the ban on soft money contribution to national political parties. As a lower court, we of course have no authority to do so” (citations omitted). Judge Kavanaugh’s decision in RNC was determined largely, according to his opinion, by the D.C. Circuit’s obligation to follow Supreme Court precedent, and his elevation to the Supreme Court would of course give him freer rein to depart from precedent.

Kavanaugh also upheld additional restrictions on campaign funds in his opinion in Bluman v. Federal Election Commission, a campaign finance case in which the D.C. Circuit found that a government ban on spending by foreign nationals on election-related speech did not violate the First Amendment. Judge Kavanaugh held that the statute limiting foreign nationals’ campaign spending “passes muster even under strict scrutiny” because the “government may exclude foreign citizens from activities ‘intimately related to the process of democratic self-government’” (citations omitted). Thus, the U.S. “has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” The D.C. Circuit’s opinion in this case was summarily affirmed by a unanimous Supreme Court 9-0.

In contrast, Judge Kavanaugh struck down FEC regulations restricting how non-profits spend and raise money to advance policy positions and candidates in his opinion in Emily’s List v. Federal Election Commission. The Court determined that non-profits were to be treated more like individual citizens than corporations, refusing to apply the McConnell standard and holding that “[n]onprofit entities that only make expenditures for political activities such as advertisements, get-out-the-vote efforts, and voter registration drives, like individual citizens, are constitutionally entitled under the First Amendment to raise and spend unlimited money in support of candidates for elected office” because “[u]nder the First Amendment, contributions to political committees can be limited only if those contributions implicate the governmental interest in preventing actual or potential corruption.”

Finally, in Independence Institute v. Federal Election Commission, Judge Kavanaugh held that the Independence Institute was permitted to take advantage of a provision in the McCain-Feingold campaign finance law that allows entities to bring constitutional challenges to McCain-Feingold to a special three-judge federal district court panel. The Independence Institute, a non-profit 501(c)(3) organization, wished to run ads during an election supporting Colorado’s Democratic senators without disclosing its donors.

Right to Record

Judge Kavanaugh has not been involved in any significant “right to record” cases as the D.C. Circuit has not yet taken up the question of whether citizens have a First Amendment right to record police in the performance of their duties in public.

Cable Regulation

In several cases involving FCC restrictions on cable operators and cable providers, Judge Kavanaugh wrote separately to emphasize the First Amendment interests present in each of these cases, even as the majority denied or touched only briefly upon them.

Judge Kavanaugh’s dissent in Cablevision Systems Corporation v. Federal Communications Commission found that a ban on exclusivity contracts by cable providers violated the First Amendment despite the majority’s denial that the issue implicated the First Amendment. The case involved an extension of the prohibition of the Cable Television Consumer Protection and Competition Act of 1992 (the 1992 Cable Act) against exclusive contracts between cable operators and cable affiliated programming networks. In his dissenting opinion, Judge Kavanaugh argued the ban implicated the First Amendment because it “dampens [cable operators’] incentives to invest in new or existing programming networks” and “the resulting reduction in speech (compared to what otherwise would occur) implicates First Amendment interests.” Further, the prohibition forces cable programming networks to sell to video programming distributors and this “forced-sharing mandate poses a First Amendment issue because the right of a First Amendment-protected editor or speaker not to speak and associate ‘serves the same ultimate end as freedom of speech in its affirmative aspect’ and is entitled to similar constitutional protection” (citations omitted). Because the ban was content-neutral, Judge Kavanaugh applied intermediate scrutiny to conclude the ban violated the First Amendment because it “no longer serves an important government interest and it burdens more speech than essential to achieve its aims.”

Judge Kavanaugh similarly found a First Amendment issue in Agape Church, Inc. v. Federal Communications Commission, another case involving the 1992 Cable Act. In his concurrence to the majority’s denial of a petition for review of an FCC rule allowing cable operators to provide conversion equipment to analog customers as a means of ensuring must-carry broadcast signals are viewable on all television receivers, Kavanaugh again highlighted that restrictions on cable providers implicate First Amendment interests. He wrote separately to note, “[t]he Commission was right to see the First Amendment problem in this case – and further cases like this no doubt loom on the horizon.”

He further highlighted First Amendment issues related to a regulation that barred video programming distributors from discriminating against unaffiliated programming networks in decisions about content distribution in his concurrence in Comcast Cable Communications, LLC v. Federal Communications Commission. Judge Kavanaugh wrote separately to emphasize that “applying [the regulation] to a video programming distributor that lacks market power would raise serious First Amendment questions.” The constitutional avoidance canon thus supported his and the majority’s conclusion that the regulation applied to video programming distributors who possess market power.

Net Neutrality

Following on the cable regulation cases, Judge Kavanaugh issued an important dissent in the denial of rehearing en banc (i.e., by the full court) in United States Telecom Ass’n v. Federal Communications Commission, the 2016 D.C. Circuit decision upholding the Obama-era rules that classified broadband providers as telecommunications services, subject to certain common carrier rules (commonly known as “net neutrality”). Judge Kavanaugh invoked the Supreme Court’s decision in Miami Herald Publishing Co. v. Tornillo, which invalidated a law requiring that newspaper editorial pages who editorialize on behalf of a candidate or provide space for a candidate to promote their candidacy to provide equal space to opposing candidates. He found that broadband providers are likewise protected in their exercise of editorial discretion when determining which services can transmit data over their networks (and whether some are permitted to transmit data to end users faster). Judge Kavanaugh would have held that the net neutrality rules in the Open Internet Order constituted impermissible content regulation, violating ISPs’ rights to play an editorial role in determining what content their customers see.

Kavanaugh notably wrote: “[A]bsent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor.”

Protesters Rights

Judge Kavanaugh concurred in Mahoney v. Doe, a case involving a First Amendment challenge to the D.C. Defacement Statute. Kavanaugh agreed with the majority’s finding that the defacement statute was constitutional as applied to prevent a protestor from executing a sidewalk chalk demonstration regarding abortion in front of the White House because the prohibition was a reasonable time, place, and manner restriction. Kavanaugh wrote separately “because [he did] not want the fog of First Amendment doctrine to make this case seem harder than it is” and to emphasize that “[n]o one has a First Amendment right to deface government property. . . When, as here, the Government applies a restriction on defacement in a content-neutral and viewpoint-neutral fashion, there can be no serious First Amendment objection.”

Government Speech

Judge Kavanaugh wrote a concurrence in Bryant v. Gates, in which a D.C. Circuit panel denied an advertiser’s claim that the Department of Defense’s refusal to allow his advertisements to be published in its civilian enterprise newspapers violated his rights under the First Amendment. He argued that the military-run newspapers were “not forums for First Amendment purposes but instead are the Government’s own speech.” Because government speech was involved, Kavanaugh argued that “forum analysis does not apply and the Government may favor or espouse a particular viewpoint.”

Commercial and Compelled Speech

Judge Kavanaugh wrote a concurrence in the D.C. Circuit’s en banc decision in American Meat Institute v. USDA, in which the court rejected a challenge to a Department of Agriculture rule requiring meat products to carry labels identifying the country of origin. Kavanaugh applied the Supreme Court’s commercial speech test articulated in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, which will uphold a commercial speech restriction so long as it serves a substantial interest and is tailored in a reasonable manner to do so.

Judge Kavanaugh found a substantial interest in “supporting American farmers and ranchers against their foreign competitors,” thus satisfying the first Central Hudson prong. With regard to the second prong – “tailored in a reasonable manner” – Kavanaugh agreed with the majority’s application of the Zauderer test, which he interpreted as an application of Central Hudson rather than a separate test, to conclude that the country-of-origin labeling was “purely factual, is not unduly burdensome, and . . . is reasonably related the Government’s longstanding interest in supporting American farmers and ranchers.”

Intermediary Liability

Judge Kavanaugh joined the panel in Bennett v. Google, which held that Section 230 of the Communications Decency Act (“CDA”) immunized Google from liability under claims for defamation, tortious interference with a business relationship, and intentional infliction of emotional distress for content posted by its user. The majority decision highlighted the speech-protective function of Section 230, noting that “the CDA recognizes that the internet offers ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’”

First Amendment Retaliation

Judge Kavanaugh wrote in dissent on rehearing in Moore v. Hartman, a case involving the long-standing question of what a plaintiff needs to prove that an arrest or prosecution was in retaliation for speech protected by the First Amendment. One of the thorniest questions in these First Amendment retaliation cases is whether the existence of probable cause (meaning that even without retaliation, the authorities would have had an independent reason to take action) precludes a legal claim of retaliation. There are a series of cases that go back and forth on whether the plaintiff in such a case needs to actually prove that there was no probable cause. In this case, Moore v. Hartman, Judge Kavanaugh wrote that because First Amendment law was not clear, to his mind, on whether the plaintiff in a retaliatory prosecution claim needs to show the absence of probable cause supporting the prosecution, the government actors could be immune from suit (they had “qualified immunity”).

Cases Described Above

Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015).

Agape Church, Inc. v. Fed. Commc’ns Comm’n, 738 F.3d 397 (D.C. Cir. 2013).

al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).

American Meat Inst. v. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014).

Bennett v. Google, 882 F.3d 1163 (D.C. Cir. 2018).

Bluman v. Fed. Election Comm’n, 800 F.Supp.2d 281 (D.C. Cir. 2011).

Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008).

Cablevision Systems Corp. v. Fed. Commc’ns Comm’n, 597 F.3d 1306 (D.C. Cir. 2010).

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180 (D.C. Cir. 2013).

Comcast Cable Commc’ns, LLC v. Fed. Commc’ns Comm’n, 717 F.3d 982 (D.C. Cir. 2013).

Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009).

Independence Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016).

Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir. 2017).

Klayman v. Obama, 805 F.3d 1148 (2015).

Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011).

Moore v. Hartman, 704 F.3d 1003 (D.C. Cir. 2012).

Morley v. Cent. Intelligence Agency, 719 F.3d 689, 691–92 (D.C. Cir. 2013).

Nat’l Sec. Archive v. Cent. Intelligence Agency, 752 F.3d 460 (D.C. Cir. 2014).

Republican Nat’l Comm. v. Fed. Election Comm’n, 698 F.Supp.2d 150 (D.C. Cir. 2010).

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).

Other FOIA Opinions of Note

Envtl. Integrity Project v. Envtl. Prot. Agency, 864 F.3d 648, 649 (D.C. Cir. 2017) (to the extent that FOIA is more protective of commercial and financial information submitted to the government than the Clean Water Act, FOIA governs so as to block disclosure).


Sack v. U.S. Dep’t of Def., 823 F.3d 687 (D.C. Cir. 2016) (holding that reports about polygraph exams are exempt from disclosure under the law enforcement exemption for techniques and procedures but that a request from a student-researcher engaged in coursework counts as a request made by an educational institution thus making the student-FOIA requester eligible for reduced fees).

Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895 (D.C. Cir. 2015) (holding assessment of an asylum seeker is exempt under FOIA’s Exemption 5 for inter-agency memos covered by the deliberative process privilege).


Pub. Employees for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195 (D.C. Cir. 2014) (holding that emergency action plans and inundation maps are compiled for law enforcement purposes and fall within exemption for documents disclosing law enforcement guidelines while inundation maps fell within exemption for records that could reasonably be expected to endanger the life or physical safety of any individual).


Nat’l Sec. Archive v. C.I.A., 752 F.3d 460 (D.C. Cir. 2014) (discussed in report above).

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180 (D.C. Cir. 2013) (discussed in report above).

Hodge v. F.B.I., 703 F.3d 575 (D.C. Cir. 2013) (the fact that the FBI found additional responsive documents following its initial production of documents under FOIA does not render the response inadequate).

Judicial Watch, Inc. v. Soc. Sec. Admin., 701 F.3d 379 (D.C. Cir. 2012) (holding Social Security Administration’s list of employers who had received the most “no-match” letters over a period of time is exempt under FOIA exemption for records protected from disclosure by another statute).

Blackwell v. F.B.I., 646 F.3d 37 (D.C. Cir. 2011) (holding that unsubstantiated allegations of governmental misconduct are insufficient to overcome FOIA Exemption 7; FBI documents with details about procedures used during forensic examination of requester’s computer are within scope of the exemption; and methods of data collection, organization and presentation contained in contractor’s reports fell within scope of FOIA exemption).

Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (holding that the department conducted an adequate search for records; that the commercial information exemption applied to letters sent by lumber companies to the government; and Baker & Hostetler, despite being the named plaintiff in the case, was eligible for attorney’s fees).



Source:Ocnus.net 2018

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