The Heritage Foundation et al v. U.S. Department of Justice and 12 other new FOIA lawsuits, plus case descriptions

We have added 77 documents from 11 FOIA cases filed between August 27, 2023 and September 2, 2023. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

1. The Heritage Foundation et al v. U.S. Department of Justice (filed Aug 30, 2023)
   The Heritage Foundation submitted a FOIA request to the Department of Justice and the Office for the U.S. Attorney for the District of Delaware for records concerning its policy of the use of pretrial diversion to Justice Manual 9-22,010. The Heritage Foundation also requested a fee waiver and expedited processing. The agency acknowledged receipt of the request. After hearing nothing further from the agency, the Heritage Foundation filed suit.
   Issues: Failure to respond within statutory time limit, Litigation – Attorney’s fees, Adequacy – Search, Expedited processing, Litigation – Vaughn index
2. Southeastern Legal Foundation, Inc. v. National Archives and Records Administration (filed Aug 28, 2023)
   Southeastern Legal Foundation submitted a FOIA request to the National Archives and Records Administration for records concerning emails for Joe Biden while he was vice president for three listed email addresses, which were alleged to have been used by Joe Biden while he was vice president to transmit official information to his son Hunter Biden. SLF also requested expedited processing and a fee waiver. The agency acknowledged receipt of the request but after hearing nothing further from the agency, SLF filed suit.
   Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Vaughn index, Litigation – Attorney’s fees
3. RAW STORY v. U.S. DEPARTMENT OF DEFENSE et al (filed Aug 29, 2023)
   Raw Story, an American news website, submitted a FOIA request to the Department of Navy for records concerning classified materials found on the hard drive of Jordon Duncan, following his arrest in Boise, Idaho in October 2020. The agency acknowledged receipt of the request. The issue issued a Glomar response neither confirming nor denying the existence of records Raw Story filed an administrative appeal of the decision. The agency upheld the denial and Raw Story filed suit.
   Issues: Adequacy – Search, Litigation – Attorney’s fees
4. EBAN v. U.S. DEPARTMENT OF DEFENSE et al (filed Aug 29, 2023)
   Katherine Eban, a contributing editor at Vanity Fair, submitted a FOIA request to the Department for the Army for records concerning Operation Whitecoat. Eban also submitted the request to the National Archives and Records Administration. NARA acknowledged receipt of the request and told Eban responsive records were probably still in the custody of the Army. The Army then acknowledged receipt of the request and told Eban that the records were at NARA but under the custody of the Army. The Army told Eban that it had referred the request to Army Medical Research of Infectious Diseases for response. After hearing nothing further from the agencies, Eban filed suit.
   Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees
5. MAGASSA v. TRANSPORTATION SECURITY ADMINISTRATION (filed Aug 29, 2023)
   Lassana Magassa submitted a FOIA request to the Transportation Security Administration for records concerning why his Security Identification Display Area badge was revoked by the agency, causing Magassa to lose his job with Delta. The agency acknowledged receipt of the request. After hearing nothing further from the agency, Magassa filed suit.
   Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees
6. CENTER FOR WATER SECURITY AND COOPERATION v. U.S. ENVIRONMENTAL PROTECTION AGENCY (filed Aug 29, 2023)
   The Center for Water Security and Cooperation submitted a FOIA request to the EPA for records concerning its decisions to allow seven municipalities to disregard their obligations under the Clean Water Act for years. The agency acknowledged receipt of the request. The agency denied most of the request under Exemption 5 (privileges) and Exemption 7(A) (interference with ongoing investigation or proceeding). CWSC filed an administrative appeal. The agency ruled in favor of CWSC, which resulted in disclosure of 1,048 additional pages. Believing that the agency had not disclosed all responsive records, CWSC filed suit.
   Issues: Litigation – Attorney’s fees
7. SCHMITZ v. DEPARTMENT OF DEFENSE (filed Aug 30, 2023)
   Joseph Schmitz submitted a FOIA request to the Department of Defense for records concerning a memo written by the contracting officer in the Joint Enterprise Defense Infrastructure Cloud procurement. The agency acknowledged the receipt. The agency located 11 responsive pages. The agency withheld the 11 pages under Exemption 5 (privileges). Schmitz filed an administrative appeal. After hearing nothing further from the agency, Schmitz filed suit.
   Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees
8. DEMIR v. FEDERAL BUREAU OF INVESTIGATION (filed Aug 30, 2023)
   Hajil Demir submitted two FOIA requests to FBI for records concerning himself. The agency acknowledged receipt of the request. The agency withheld records under Exemption 7(A) (interference with ongoing investigation or proceeding). Demir filed an administrative appeal with the Office of Information Policy. OIP upheld the FBI’s denial. Demir then submitted a FOIA request for his records online. The agency acknowledged receipt of that request and told Demir that it would still invoke Exemption 7(A). Demir filed a second administrative appeal to OIP, which again upheld the FBI’s denial. Demir then filed suit.
   Issues: Adequacy – Search, Litigation – Attorney’s fees
9. Center for Constitutional Rights v. United States Department of Defense et al (filed Aug 30, 2023)
   The Center for Constitutional Rights submitted FOIA requests to the Department of Defense, Department of State, and Department of Homeland Security for records concerning the number and demographic information of Afghan evacuees detained at identified sites. The agencies acknowledged receipt of the requests but after hearing nothing further from the agencies, CCR filed suit.
   Issues: Failure to respond within statutory time limit, Expedited processing – Compelling Need, Litigation – Attorney’s fees
10. AMERICA FIRST LEGAL FOUNDATION v. FEDERAL BUREAU OF INVESTIGATION et al (filed Aug 31, 2023)
    America First Legal Foundation submitted a FOIA request to FBI for records concerning communications to or from the National Election Command Post referencing the Twitter accounts that were flagged for additional action due to the accounts being utilized to spread misinformation. AFL provided 24 search terms based on the Twitter accounts. The agency acknowledged receipt of the request. The FBI told AFL that its request was too broad for search purposes. AFL filed an administrative appeal but after hearing nothing further from the agency, AFL filed suit.
    Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees
11. FUNCTIONAL GOVERNMENT INITIATIVE v. U.S. FOOD AND DRUG ADMINISTRATION (filed Aug 31, 2023)
    Functional Government Initiative submitted a FOIA request to the FDA for records concerning calendars from March 2022 to March 2023 for the listed FDA Centers. FGI submitted a second FOIA request for calendars from March 2022 to March 2023 for two listed officials. FGI then submitted a third FOIA request for text messages sent or received from the listed FDA officials’ accounts. The agency acknowledged receipt of the requests but after hearing nothing further from the agency, FGI filed suit.
    Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees

In addition, we have added 13 documents from 2 cases, with earlier filing dates, that have recently appeared on PACER.

• CODREA v. DEPARTMENT OF JUSTICE (filed Aug 25, 2023)
  David Codrea, a journalist who writes about Second Amendment issues, submitted a FOIA request to the Department of Justice for records concerning the phrase “consent to a permanent entry in the National Instant Background Check System. The agency acknowledged receipt of the request but after hearing nothing further from the agency, Codrea filed suit.
  Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Vaughn index, Litigation – Attorney’s fees
• Town of Lac Du Flambeau v. U.S. Department of the Interior et al (filed Aug 24, 2023)
  The Town of Lac du Flambeau in Wisconsin submitted 26 FOIA requests to the Bureau of Indian Affairs for records concerning property records on Annie Sunn Lane, which was on a nearby Indian reservation. The agency acknowledged receipt of the request. The agency and the Town had some discussions about fees but after hearing nothing further from the agency, the Town of Lac du Flambeau filed suit.
  Issues: Failure to respond within statutory time limit, Adequacy – Search, Litigation – Attorney’s fees