Archives for 2021

Federal Judge Rejects Export-Import Bank’s Arguments for Refusing to Disclose Public Records

Judge James Boasberg of the U.S District Court for the District of Columbia ruled this week that the Export-Import Bank (“EXIM Bank”) must produce a variety of records it initially withheld in response to two FOIA requests from Cause of Action Institute (“CoA Institute”). CoA Institute’s September 20, 2018 FOIA request sought all communications to or from EXIM leadership regarding key EXIM stakeholders and beneficiaries. The May 2019 FOIA request sought information after a Government Accountability Office (“GAO”) report found EXIM potentially provided billions in financing to companies with delinquent federal debt by failing to use a readily available federal database.

EXIM attempted to shield the records from disclosure under FOIA Exemption 5 and the deliberative-process privilege (a.k.a., the “withhold it because you want to” exemption). After reviewing the withholdings and unredacted versions of the records in camera, the Court issued a forceful opinion that describes numerous instances where the agency either inappropriately withheld public records or failed to adequately defend its refusal to disclose them.

Page 13 regarding cybersecurity documents:

“[T]he agency’s Vaughn Index omits all mention of one of the two withheld memoranda.  The Court only because privy to its existence by way of in camera review, finding it tucked within a different record marked for other purposes. It need scarcely be said that the Court cannot affirm Defendant’s withhold of a record it never even acknowledges. . . . [I]t is painful enough for the Court to laboriously pore over all of these in camera records even without errors.”

Pages 17–18 regarding media outreach and marketing documents, events and conference documents, and high-level statistics:

“Instead of discussing (or even alluding to) these parts of the senior staff reports, Defendant simply approaches the documents from a generic, 30,000-foot view while ever so briefly narrowing in on a few unrepresentative portions . . . . [M]uch material in the reports hardly qualifies as ‘advisory opinions, recommendations and deliberations,’ nondisclosure of which is necessary to “protect[] the decision making processes of government agencies. . . . [T]he agency bears the burden of establishing that the withheld information is both predecisional and deliberative, such that it comes within the privilege. It has not discharged that obligation with respect to the excerpts examined here.”

Pages 19–20 regarding meeting documents:

“[R]eprising its earlier oversight, Defendant neglects to include in its Vaughn Index one of the three sets of meeting minutes, as well as one of the two meeting agendas.  The Court, once again, only discovered their existence during its in camera review.  Such repeated carelessness only undermines the Court’s confidence in the attention the Government has devoted to its responsibilities here.  The second problem is perhaps worse: notwithstanding its near-complete withholdings, Defendant in its submissions completely ignores all six records, declining even to mention them in its declaration and briefing.  That lapse is all the more glaring where [CoA Institute] explicitly flagged the deficiency in its Cross-Motion.”

Page 23 regarding an e-mail from EXIM’s Assistant General Counsel:

“The Court could go on — for instance, Defendant never establishes . . . that the underlying information was kept confidential. . . . This record must see the light of day.”

Pages 30–31 regarding EXIM communications with the GAO:

“Even the briefest in camera review reveals that this description is plainly overbroad and — at least with respect to some of the withheld documents — seemingly inaccurate, as their content has nothing to do with ‘fraud[] that had been committed against the agency.’”

Page 33 regarding a single EXIM e-mail to the GAO:

“In addition to thus appearing to flunk Exemption 5’s threshold requirement . . . in no fashion may the document be deemed deliberative. . . . Defendant has pointed to no foreseeable harm from its disclosure, the agency must release it to Plaintiff.”

Page 41 regarding efforts to segregate and release non-exempt portions of records:

“[CoA Institute] has highlighted several red flags undermining the ‘presumption’ that Defendant has disclosed all reasonably segregable material, including the basic reality that a number of the records the Government claims were only redacted in part appear to have been redacted in full.  The Court’s own in camera review, moreover, causes it further [to] question whether the Bank has adequately complied with FOIA’s segregability mandate.”

Read more of CoA Institute’s work on EXIM: