FOIA Friday News Dump
Good News: Cool Stuff Still Exists
Happy FOIA Friday to all who celebrate, even when celebrating feels like a Hawaiian-Shirt-and-Jeans work function.
Some quick-hit FOIA and immigration news for your Friday afternoon:
Human Rights Defense Center v. U.S. Park Police (D.C. Circuit)
A unanimous D.C. Circuit held boilerplate agency assertions of privacy interests for federal law enforcement officials aren’t enough to justify withholding their names from FOIA releases under Exemption 6. This is really important, because it reinforces the need for agencies to specifically justify withholdings they normally apply categorically, making a particularized showing that something more than a de minimis privacy interest exists. In a world where secret police aren’t the stuff of dystopian sci-fi, but rather, the content pumping across many of our screens, this ruling should help out some of the wrongdoers more easily, or at least make the agencies pay for refusing to do so. Importantly, the court also held federal judges don’t have the inherent authority to issue clawback orders when agencies inadvertently release records they wish they hadn’t. A host of amici from all sides of the political spectrum chimed in to show why such orders constitute an unconstitutional prior restraint on speech. The panel didn’t reach those questions because it concluded inherent authority doesn’t go that far. It’s there to ensure the court can function, not to fill gaps the agency and the court might wish Congress filled when it created the court’s jurisdiction to hear the case. These are good outcomes that will help everyone. Hats off to Deb Golden and Jim Davy, HRDC’s FOIA counsel in this matter! Consider supporting HRDC’s work with a PLN subscription. It will help HRDC inform more than ten thousand imprisoned readers of the 30-year old newspaper founded and published by incarcerated writers and those who escape U.S. cages alive.
America First Legal Foundation v. FDA (D.C. Circuit)
In less good FOIA news, the D.C. Circuit handed down a FOIA loss to America First Legal Foundation that translates into an immediate win for its founders, who are now back in charge of the Executive Branch. Using FOIA, AFLF sought the Biden Administration’s strategic plans for increasing voter participation after the previous president issued an Executive Order requiring agencies to formulate them. The court held such communications are exempt under the presidential communications privilege, which Congress incorporated into FOIA Exemption 5. President Biden and those who previously ran the U.S. administrative state could have avoided this ruling by complying with the request. They elected not to. So America First got the D.C. Circuit to establish precedent protecting that decision. Now America First gets to benefit from it, and the DOJ has scant chance of seeking Supreme Court review overturning it. A perfect one-way ratchet for the secret government that allows smart people to win by losing. Well played, Stephen. On a process note - I was privileged to attend the oral argument and take in the expert oral advocacy of Jim Davy, who’s been going to bat at courts of appeal on behalf of migrants, refugees, and incarcerated people for a long time. If you are in need of a great appellate lawyer, Jim’s someone you should have in your Rolodex.
Irwin Lawsuit Settlements
More than four years after filing a Oldaker v. Giles, the massive lawsuit filed in 2020 by survivors of medical abuse and neglect at the Irwin County Detention Center, settled yesterday. The terms of the settlement are not public. But the dismissal describes an “agreement” that the Plaintiffs may enforce. That seems like a win to me.
Roxsana Hernandez Wrongful Death Suit Settlement against U.S.
A docket entry in Youngers v. Management and Training Corporation suggests the parties in the Estate of Roxsana Hernandez’s civil damages suit against the United States reached a resolution that resulted in the dismissal of the United States. The case has been pending in the District of New Mexico since the first Trump administration. Transgender Law Center has led the fight for justice on behalf of Roxsana’s family and trans migrants since Roxy died.
An NLRB win for Detained Immigrant Workers
The L.A. Times has a piece about what I believe is the first-ever action in the history of the National Labor Relations Board (NLRB) protecting the rights of incarcerated workers to organize, withhold their labor, and be free from retaliation when doing so. This work has been in the making for years, and supported by some of the smartest, most creative organizers and advocates alive today. It will likely be wiped away by the new regime. However, it exposes the fundamental contradictions in the contractors’ justifications for the labor program. Specifically, GEO and ICE collaborated to remove incarcerated worker organizers from a California facility and send them to the El Paso area after they led what they described as a labor strike. GEO’s spokesman explains to the L.A. Times its rationale for what happened next:
“Participation in the Voluntary Work Program by persons detained and housed at the Center by the federal government does not make such persons ‘employees,’” Ferreira said. “We believe that the decision by a non-employee to discontinue his or her participation in a voluntary work program cannot and does not constitute a ‘labor strike.’”
If they’re not employees, and if it’s all voluntary, why were they removed from the facility?
Finally, for the old school law nerds in the audience who want become subscribers, I’ve included an email former Seventh Circuit judge Richard Posner sent me about this theory almost seven years ago behind the paywall below.
No regrets on ignoring this advice.
Have a great weekend, friends!