Jewish Legal News, Inc. v. U.S. Department of Education

Background

Jewish Legal News, Inc. (JLN), described in the opinion as an online news magazine, submitted a Freedom of Information Act (FOIA) request to the U.S. Department of Education (DOE) on August 28, 2023. The request sought records concerning the DOE’s handling of allegations of antisemitism at colleges and universities, complaints and related investigations, the agency’s strategy for addressing campus antisemitism, and how Title VI should protect Jewish students from discrimination. The request covered records from August 1, 2021, to August 1, 2023, with the request for antisemitism complaints narrowed to April 1, 2023, through May 30, 2023.

The DOE assigned the request a number, asked JLN to clarify the date range, and told JLN on September 28, 2023, that the request was still being processed and had been forwarded for a search for responsive records. The DOE completed production of documents it believed were responsive on March 11, 2024. JLN’s amended complaint asserted four causes of action, including failure to meet FOIA deadlines, a pattern and practice of violating FOIA, improper use of exemptions, and failure to reasonably segregate nonexempt material. The parties filed cross-motions for summary judgment. After a hearing, they stipulated to narrow some disputes, and the court granted that stipulation.

Legal standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. In FOIA cases, an agency generally must provide a sufficiently detailed explanation of the records withheld, the exemptions invoked, and why each exemption applies. The court also considered the agency’s declarations and Vaughn index, which is an itemized description of withheld records and the claimed exemptions.

Rulings on FOIA exemptions

The court held that JLN lacked standing to challenge redactions and withholdings that had originally been made in response to earlier FOIA requests and were included in the production responsive to JLN’s request. The court therefore granted summary judgment in favor of the DOE as to those redactions and withholdings.

Under FOIA Exemption 5, the court granted summary judgment in favor of the DOE for pages 56–59 of a March 8, 2024, interim production. The records were an internal draft containing edits and comments by the DOE’s Office for Civil Rights concerning a response about implementing Executive Order 13899. The court found that the draft was predecisional and deliberative, so the DOE had met its burden to withhold it. A separate challenge to a draft “Dear Colleague” letter was resolved as moot after the parties stipulated to withdraw that challenge, subject to specified exceptions.

For emails on pages 1–8 of the DOE’s March 11, 2024, final production, the court granted in part JLN’s cross-motion for summary judgment as to redacted emails sent or received from nongovernmental email addresses. The court denied in part JLN’s cross-motion as to emails sent or received from governmental email accounts or addresses, including White House email addresses. The DOE had not provided enough information to establish that all challenged communications were within the deliberative-process privilege, but the court accepted that communications through governmental accounts were within the scope of the dispute that JLN did not challenge on the record presented.

Under FOIA Exemption 6, the court granted summary judgment in favor of the DOE for redactions of complainants’ and witnesses’ private identifying information, including names, addresses, phone numbers, and similar information. JLN had stated that it was not seeking identifying information about specific complainants or witnesses. The court also granted summary judgment in favor of the DOE for the complete redaction of a private email address associated with the author of a social-media post, finding that a personal email address was personally identifying information and that JLN’s request to reveal the domain was speculative.

The court granted summary judgment in favor of JLN concerning the redacted body text of an email describing a social-media post. The DOE had not provided evidence that the post was private or that access to it had been limited, and the record indicated that the author had retweeted the post. The court found that the DOE had not met its burden to show that withholding the text was justified under Exemption 6. The court granted summary judgment in favor of the DOE concerning redacted handwritten signatures of university administrators because those redactions had been made in response to a separate FOIA request and JLN therefore lacked standing to challenge them.

The court granted summary judgment in favor of the DOE for all Exemption 7(A) redactions and withholdings. That exemption protects information whose disclosure could reasonably be expected to interfere with law-enforcement proceedings. The court credited the declaration of Heather Gunnarson, a DOE Office for Civil Rights director, which stated that the records concerned pending or prospective civil-rights enforcement proceedings and that disclosure could create risks including retaliation against victims or witnesses, destruction or alteration of evidence, and disclosure of investigative strategies. Another dispute concerning whether disclosure could cumulatively reveal complainants’ identities was moot because the court granted summary judgment under Exemption 7. The court also granted summary judgment in favor of the DOE as to Exemption 7(A) redactions in Exhibit H because those redactions arose from a separate FOIA request that was not at issue.

Pattern-and-practice claim

The court granted summary judgment in favor of the DOE on JLN’s claim that the DOE had a pattern and practice of failing to make timely FOIA determinations. The court held that the September 28, 2023, letter was a determination that the DOE would comply with the request because it stated that the request had been sent to appropriate personnel to search for responsive records. The letter was sent 20 working days after the request was received, which the court found satisfied the applicable deadline. The court distinguished the deadline for making a determination from the later production of records.

Statutory-deadline and reasonable-search claims

The court granted summary judgment in favor of the DOE on JLN’s First Cause of Action alleging failure to comply with statutory deadlines. It relied on two grounds: the DOE’s September 28, 2023, letter satisfied the determination and notification requirements of 5 U.S.C. § 552(a)(6)(A), and the DOE’s later production of all nonexempt material alternatively made the claim moot.

The court denied with prejudice JLN’s cross-motion for summary judgment on the First Cause of Action to the extent JLN argued that the DOE had not conducted a reasonable search. The court held that the amended complaint did not plead an inadequate-search theory as part of that cause of action. It also found that JLN had agreed to the search terms used by the DOE and therefore had waived, or was prevented from asserting, that those agreed-upon terms were unreasonable. The court did not grant summary judgment to JLN on this theory.

Reasonable segregation

The court denied with prejudice JLN’s cross-motion for summary judgment on the Fourth Cause of Action alleging failure to reasonably segregate nonexempt information. The court found that the DOE’s declarations and Vaughn index individually identified the withheld documents, described the withheld material, and identified the claimed exemptions. JLN did not show that no genuine dispute existed or that it was entitled to judgment as a matter of law.

Disposition

The court concluded that it grants-in-part and denies-in-part both the DOE’s motion for summary judgment and JLN’s cross-motion for summary judgment, as detailed in the order. The order resolves Dockets 35 and 36.