A Fourth Circuit anti-exhaustion ruling

John Coleman filed a FOIA request seeking some information from the DEA. The DEA eventually denied the request. But it took a really long time to do so. And when the DEA finally responded, they blamed Coleman because he did not prepay a certain fee. When Coleman sued the DEA in federal court to get the information he requested under FOIA, the DEA said he should lose because he had not exhausted his administrative remedies. The district court agreed with the DEA. Today, the Fourth Circuit decided Coleman’s appeal. The first sentence of the second paragraph of Judge Wilkinson’s opinion for the court in Coleman v. DEA states: “Having exhausted the litigant, the DEA proceeded to argue that it was Coleman who had failed to pay its fee request for a preliminary search of the documents and to exhaust his administrative remedies.” Who do you think won the appeal?

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Fourth Circuit untangles knot regarding FOIA, lawyers’ solicitation of potential clients, and the litigation exception in DPPA

The Fourth Circuit yesterday issued a decision in a messy dispute among plaintiffs’ lawyers, car dealers, and car purchasers over the use of South Carolina’s FOIA law to obtain personal information about car purchasers for use in litigation against car dealers. Judge Davis wrote the opinion for the Court in Maracich v. Spears, in which Judge Duncan and Judge Wynn joined.

The court’s summary of its holding:

[W]e hold that the district court erred in ruling that the Lawyers did not engage in solicitation. Yet, the Lawyers indisputably made permissible use of the Buyers’ personal information protected by the DPPA, here, for use “in connection with [litigation],” including “investigation in anticipation of litigation.” 18 U.S.C. §2721(b)(4). Ultimately, the Buyers’ damages claims asserted under the DPPA fail as a matter of law, notwithstanding the fact that the Buyers can identify a distinct prohibited use (mass solicitation without consent) that might be supported by evidence in the record. In short, where, as a matter of settled state law and practice, as here, solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable by persons to whom the personal information pertains.

The opinion notes that its decision in favor of the lawyers largely tracks the approach of the Eleventh Circuit in Rine v. Imagitas, 590 F.3d 1215, 1226 (11th Cir. 2009). The buyers relied on the Third Circuit’s decision in Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008), but the court thought that decision to be “plainly distinguishable.”

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Virginia FOIA survives constitutional challenge under the Privileges and Immunities Clause and the dormant Commerce Clause

Virginia’s FOIA allows “citizens of the Commonwealth” access to certain government records. A citizen of Rhode Island and a citizen of California tried to use the law to get records, but they were rebuffed because they were not Virginians. They sued, contending that Virginia’s FOIA violates the Privileges and Immunities Clause in Article IV and the dormant Commerce Clause. They lost.

Judge Agee wrote the opinion in McBurney v. Young, in which Judge Niemeyer and Judge Gregory joined.

The challenge relied heavily on a Third Circuit ruling, Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), that held unconstitutional a similar Delaware law. Judge Agee wrote that the decision in Lee extended the Privileges and Immunities Clause beyond what the Supreme Court has staked out, and that, in any event, the right at issue in that case was different from the right at issue in the Fourth Circuit case.

(Note: This is the second time that the case has been to the Fourth Circuit. The first appeal centered on standing. See McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010).)

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FOIA, e-discovery, and the Palin e-mails

Does anyone else think it wasteful that the Palin e-mails released today pursuant to a long-pending FOIA request were distributed in hard copy? Here’s the Washington Post:

“The promise of potential news about Palin drew a deluge of reporters and other media employees to Alaska’s picturesque, isolated capital of Juneau, where state officials Friday prepared six sealed boxes of printed messages for each news organization that paid for the documents. Reporters fought for elevators in a mad rush out of the building to begin converting the documents into electronic form for perusal and publication.”

It used to be in litigation that discovery was kind of like today’s document dump. More senior lawyers still talk about how many documents are at issue in terms of how many “bankers’ boxes” of documents need to be reviewed. But more junior lawyers are accustomed to electronic review. Bankers’ boxes are largely a thing of the past in civil litigation. Why not in FOIA?

One difference between native-format disclosure and hard-copy disclosure is that native-format disclosure carries with it metadata (i.e., data about the data). Even if there were concerns about metadata (not sure what they might be, and not sure whether metadata is excluded from disclosure under FOIA), wouldn’t it have made more sense to scan the relevant e-mails and distribute electronic files? Sometimes it might make tactical sense to increase transaction costs for disclosures. But the costs here will not deter news organizations, so why not avoid the waste of so much paper and time?

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