U.S. District Court Judge Charles R. Breyer has just issued an an opinion and order in Gordon v. FBI, which involves a Freedom of Information Act request for information about the government’s transportation watch lists, including the so-called “no fly” list. The order seems to be mostly a victory for the plaintiffs; here’s the Conclusion:
The Court’s preliminary review of the voluminous material demonstrates that in many instances the government has not come close to meeting its burden, and, in some instances, has made frivolous claims of exemption. The appropriate remedy is to have defendants review all of the withheld material to determine whether they believe in good faith that the material is in fact exempt and, if defendants contend it is exempt, to provide a detailed affidavit that explains why the particular material is exempt. General statements that, for example, the information is sensitive security information, are inadequate to satisfy the government’s burden. That material which is not exempt shall be promptly disclosed to plaintiffs in response to their FOIA request.
The Court has not reviewed every piece of withheld information and every claimed exemption. Accordingly, that this Order does not mention a particular exemption or particular piece of withheld information does not mean that the Court agrees the information should be withheld. Defendants are directed to review all withheld material and reconsider whether it is exempt from disclosure, keeping in mind that it is defendants’ burden to prove that an exemption applies and that exemptions are to be construed narrowly.
Once defendants’ review is complete, and a further production has been made to plaintiffs, defendants shall file a further motion for summary judgment that addresses the remaining material. Defendants shall be careful to specify which exemption is being applied to particular information on any given document. Defendants need not address the classified material as the Court has reviewed that information in camera and determined that it is exempt. The motion for summary judgment shall be accompanied by a certification from government counsel attesting that counsel has personally reviewed all of the withheld information and in counsel’s good faith opinion the withheld material is exempt from disclosure.
The parties shall meet and confer with regard to a schedule for defendants’ further production and revised motion for summary judgment.
I’m not enough of a FOIA expert to comment on it, but the opinion seemed important enough to pass along.
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