The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1999. OIP is preparing additional compilations of decisions received during previous months and years.
Weatherhead v. United States, 528 U.S. 1042 (1999) (writ of certiorari dismissed as moot; Ninth Circuit decision vacated) (Scalia, J., dissenting).
Accuracy in Media v. Nat'l Park Serv., 194 F.3d 120 (D.C. Cir. 1999) (Exemption 7(C): in this case where the requester sought photographs of the body of Vince Foster taken at the scene of his death and at the autopsy, affirms the district court ruling that the personal privacy protected by this exemption may include the interests of the subject's surviving kin; there is a "powerful sense of invasion bound to be aroused in close survivors by wanton publication of gruesome details of death by violence"; the interest against the display of "ghoulish materials" asserted by a "spouse, parents, and children of the deceased is one of privacy--even though the holders of the interest are distinct from the individual portrayed"; requester has not shown "compelling evidence" that the agency was involved in illegal activity and that access to this information was necessary in order to confirm or refute this evidence; photographs need not be disclosed) (district court did not abuse its discretion by refusing to conduct in camera inspection of the photographs and did not abuse its discretion when it refused to conduct further discovery on the search issue).
Ashton v. VA, No. 99-6018, 1999 WL 753331 (2d Cir. Sept. 3, 1999) (unpublished memorandum), 198 F.3d 233 (2d Cir. 1999) (table cite) (affirms district court ruling that agencies' declarations demonstrate that they conducted reasonable searches for records in response to appellant's FOIA request and that they properly withheld information under Exemptions 2, 3 [Rule 6(e)], 5, 6, 7(C), and 7(E); neither a Vaughn Index nor an in camera inspection was necessary).
Coolman v. IRS,
No. 99-3963, 1999 WL 1419039 (8th Cir. Dec. 6, 1999) (summarily affirms
district court ruling that plaintiff had exhausted his administrative remedies,
that third-party tax returns, discriminant function scores, and driver's license
numbers were protected under Exemptions 7(C) and 3 [26 U.S.C.
Cottone v. Reno,
193 F.3d 550 (D.C. Cir. 1999) (Exemption 3 [18 U.S.C.
Dickman v. Mangiaracina, No. 98-2854, 1999 WL 980966 (2d Cir. Sept. 30, 1999) (unpublished order), 199 F.3d 1321 (2d Cir. 1999) (table cite) (not an "agency": the FOIA applies only to federal agencies, not to state agencies).
Fiduccia v. Dep't of Justice, 185 F.3d 1035 (9th Cir. 1999) (expedited processing: an "automatic preference" granted to a plaintiff for no other reason other than the filing of a lawsuit would generate many pointless and burdensome lawsuits) ("exceptional circumstances"/"due diligence": "Congress gave agencies 20 days, not years, to decide whether to comply with" FOIA requests; while the FOIA poses difficulties for federal agencies, the judicial branch cannot repeal a law enacted by Congress by a "construction that vitiates any practical utility it may have"; in this case where plaintiff's FOIA request required the processing of voluminous materials, but had been pending for more than six years, finds that the district court erroneously granted the FBI an Open America stay until 2001, under pre-1996 standards and circumstances; the FBI had not demonstrated that circumstances delaying processing were "'exceptional,' rather than ordinary and expected") (Vaughn Index: three Department of Justice components, DOD, and the IRS need not produce Vaughn Indexes because the redacted documents submitted by the agencies gave the district court an adequate factual basis on which to base its decision; remands to the district court for a finding on whether DOD documents were properly redacted; remands FBI documents to the district court, because the FBI did not provide the district court with an adequate factual basis for its decision) (Exemption 6: the FBI properly withheld information about 2 individuals whose homes were searched about 10 years ago; individuals did not lose their privacy interests by reason of earlier publicity, because information now has "practical obscurity" and their interest in avoiding repeated and enhanced dissemination of law enforcement information about themselves did not disappear).
Franklin v. Dep't of Justice, No. 98-5339 (11th Cir. July 13, 1999) (per curiam) (unpublished memorandum), 189 F.3d 485 (11th Cir. 1999) (table cite) (affirms district court ruling that witness statements were properly withheld under FOIA Exemption 7(A) because disclosure could have reasonably been expected to interfere with requester's federal appeal and state criminal trial).
Isley v. Executive Office for the United States Attorneys, No. 98-5098, 1999 WL 1021934 (D.C. Cir. Oct. 21, 1999) (unpublished memorandum), 203 F.3d 52 (D.C. Cir. 1999) (table cite) (appeal considerations: a notice of appeal that is technically defective should not result in loss of the appeal as long as the intent to appeal can be fairly inferred; both district court orders granting summary judgment to the government are encompassed in this appeal) (waiver: plaintiff has not demonstrated that documents he received from a prior FOIA request have ever been replicated in public documents or in any other "permanent public record"; privilege has not been waived with respect to documents related to trial testimony) (Exemption 7(C): protects information that would identify FBI Special Agents, government employees, local law enforcement officials, witnesses, and third parties; requester did not demonstrate "compelling evidence" of prosecutorial misconduct) (Exemption 7(D): the nature of the crime (murder and conspiracy among prison inmates) and the relation of the sources to the crime support an inference of confidentiality in this case) ("reasonably segregable": even though neither party raised the issue of segregability, district court erred in not making such a finding; case remanded).
Klamath Water Users Protective Ass'n v. Dep't of the Interior, 189 F.3d 1034 (9th Cir. 1999) (Exemption 5: reverses district court ruling that records submitted by Indian Tribes to the federal government in the course of consultation involving the development of a local water-management project meet the threshold requirement of this exemption; even though the government requested the advice of the Tribes, this consultation is not similar to advice from staff members or the exchange of ideas among agency personnel because "the matters with respect to which it sought advice were matters in which the Tribes had their own interest and the communications presumptively served that interest") (Hawkins, J., dissenting).
Lau v. Sullivan County D.A., No. 99-7341, 1999 WL 1069966 (2d Cir. Nov. 12, 1999) (unpublished order), 201 F.3d 431 (2d Cir. 1999) (table cite) (agency: the FOIA applies only to federal agencies, not to local government entities).
Loomis v. DOE, No. 99-6084, 1999 WL 1012451 (2d Cir. Oct. 14, 1999) (unpublished order), 199 F.3d 1322 (2d Cir. 1999) (table cite) (appeal dismissed for lack of appellate jurisdiction; district court's partial grant of summary judgment is not a final, appealable order).
Lumarse, Inc. v. HHS, No. 98-55880, 1999 WL 644355 (9th Cir. Aug. 24, 1999) (unpublished memorandum), 191 F.3d 460 (9th Cir. 1999) (table cite) (exhaustion: plaintiff has not exhausted his administrative remedies because he did not appeal the denial of his FOIA request).
Mace v. EEOC, 197 F.3d 329 (8th Cir. 1999) (affirms district court ruling; the district court, relying on agency's affidavit, properly granted summary judgment to the agency and properly found that Exemption 5 (deliberative process privilege) protected a one-page decision making document).
McDonnell Douglas Corp. v. NASA, No. 98-5251 (D.C. Cir. Oct. 6, 1999) (denies government's petition for rehearing and rehearing en banc of panel's June 25, 1999 order; in an opinion concurring in the denial of rehearing en banc, Judge Silberman observes that government is "overreading" the opinion to hold that disclosure of line item pricing would in all cases violate the Trade Secrets Act; contrary to the holding of the D.C. Circuit's CNA, he observes that "anything that undermines a supplier's relationship with its customers must necessarily aid its competitors").
McGhghy v. DEA, No. 98-2989, 1999 U.S. App. LEXIS 16709 (8th Cir. July 19, 1999) (affirms district court's ruling that information was properly withheld under FOIA Exemptions 2, 7(C), 7(D), and 7(F)).
Nat'l Ass'n of
Criminal Def. Lawyers v. Dep't of Justice, 182 F.3d 981 (D.C. Cir. 1999)
(denies government's appeal of the district court's interim award of attorney
fees to plaintiff; court lacks jurisdiction to review the interim award because
it was neither a final judgment under 28 U.S.C.
O'Harvey v. Comp. Programs Workers, No. 98-35106, 1999 WL 626633 (9th Cir. Aug. 16, 1999) (unpublished memorandum), 188 F.3d 514 (9th Cir. 1999) (table cite) (Exemption 4: disclosure of information in Physician Directory Service would impair the government's ability to purchase software data in the future and its ability to obtain medical information from physicians) (Exemption 6: disclosure of information from medical files would invade the privacy of both doctors and their patients).
Pub. Citizen Health Research Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999) (Exemption 4: disclosure of documents relating to 4 investigational new drug applications (INDs) that had been abandoned for health or safety reasons would cause competitive harm to the manufacturer by providing competitors with valuable research data; Exemption 4 "is intended for the benefit of persons who supply information"; the public interest in disclosure is determined by the nature of the requested document and its relationship to the basic purpose of the FOIA to open agency actions to the light of public scrutiny, rather than the particular purpose for which the document is being requested--in this case, safeguarding the health of people who participate in drug trials; remands the case to the district court for a finding of whether any information in the 4 withheld INDs can be segregated and released; agency has not shown that the release of documents relating to a fifth IND would damage the competitive interests of the manufacturer, so those documents must be disclosed).
Raulerson v. Reno, No. 99-5257 (D.C. Cir. Nov. 23, 1999) (summary affirmance granted to the government in this case where the district court ruled that the agency's search for records responsive to plaintiff's FOIA request was adequate).
Reg'l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457 (4th Cir. 1999) (mootness: affirms district court's ruling that defendant's release of requested information mooted the FOIA complaint) (case or controversy: dismisses plaintiff's "policy and practice" claim because it is not "ripe" for review; it is not yet clear whether defendant has a "fully developed" policy of withholding from third parties information related to an ongoing investigation and the alleged policy has no effect on the plaintiff).
Sealed Appellee #1 v. Sealed Appellant, No. 98-20538 (5th Cir. Oct. 14, 1999) (unpublished memorandum), 199 F.3d 437 (5th Cir. 1999) (table cite) ("Reverse" FOIA/Exemption 4: affirms district court's ruling that all of the information a company provided to the agency about an explosion at its chemical plant is protected by Exemption 4; requiring that the agency release a redacted version of its draft report about the explosion, devoid of any exempt material; because agencies are precluded under the Trade Secrets Act from releasing information that falls under Exemption 4, agency's failure to contest lower court's ruling leads to the conclusion that the Trade Secrets Act prohibits the disclosure of all of the information provided by the company).
Vonderheide v. IRS, No. 98-4277, 1999 WL 1000875 (6th Cir. Oct. 29, 1999) (unpublished order), 194 F.3d 1315 (6th Cir. 1999) (table cite) (affirms district court order dismissing this FOIA action for lack of subject-matter jurisdiction; IRS conducted a reasonable search and did not locate the requested records).
Wishart v. Comm'r, No. 98-17248, 1999 WL 985142 (9th Cir. Oct. 27, 1999) (unpublished memorandum), 199 F.3d 1334 (9th Cir. 1999) (table cite) (affirms district court ruling; district court had an adequate factual basis for finding that the agency's affidavits established that the requested documents were exempt from disclosure under FOIA Exemptions 3, 5, and 7; district court did not abuse its discretion in concluding that in camera review or a Vaughn Index was not necessary or in failing to award litigation costs to the plaintiff).
CIA, No. 98-2107, 1999 U.S. Dist. LEXIS 18135 (D.D.C. Nov. 15, 1999) (Exemption
1 [E.O. 12,958]: CIA properly determined that the release of the total budget
request for fiscal year 1999 for all intelligence and intelligence-related activities
could reasonably be expected to cause damage to the national security and to
reveal "intelligence sources and methods"; the fact that the CIA released the
total intelligence budget in two previous years indicates the CIA Director's
"careful, case-by-case analysis of the impact of each disclosure and his willingness
to accommodate FOIA requests whenever possible"; the fact that the President
encouraged disclosure of similar information in earlier years is not determinative
here, unless the President specifically orders the release of this information
or withdraws his authorization of the CIA to make these classification determinations)
(Exemption 3 [50 U.S.C.
Allnutt v. United States Tr., No. 97-2414 (D.D.C. Aug. 2, 1999) (duty to search: defendant's affidavit demonstrates that its search was reasonably calculated to uncover all records responsive to plaintiff's FOIA request; "objections to the alleged absence of specific documents does not impeach the otherwise valid search") ("not an agency record" defense: records in the possession of a private trustee, who is an agent of the United States Trustee, are not under the control or possession of the United States Trustee and are not "agency records" for purposes of the FOIA) (pro se plaintiff: court "reluctantly" allows pro se plaintiff to amend his complaint to add 6 additional FOIA requests to the agency; in the future plaintiff must file a separate civil action).
Am. Fed'n of Gov't Employees v. HHS, 63 F. Supp. 2d 104 (D. Mass. 1999) (Exemption 5: the deliberative process privilege protects agency records concerning an air quality issue, because release of contractor's draft report, handwritten comments by agency employees, and the memoranda arising from these comments would "discourage candid discussion within the agency and thereby undermine HHS' ability to perform effectively" and provide the public with misleading information).
Anderson v. CIA, 63 F. Supp. 2d 28 (D.D.C. 1999) ("reasonably segregable": in the "highly classified context" of documents related to plaintiff's kidnaping by the Islamic Jihad, finds that the CIA's affidavit shows with reasonable specificity why requested documents cannot be further segregated).
Barrier v. Dep't of Justice, No. 99-0596 (S.D. Fla. Aug. 30, 1999) (mootness: FOIA action was moot when agency (belatedly) produced the requested records) (attorney fees: pro se plaintiff who is not an attorney is not entitled to attorney fees under the FOIA).
Billington v. Dep't of Justice, 69 F. Supp. 2d 128 (D.D.C. 1999) (Exemption 1 [E.O. 12,958]: the provision in the Executive Order that requires automatic declassification of documents that are over 25 years old becomes effective April 17, 2000; "mere speculation" is not sufficient to demonstrate that information is in the public domain; agency's affidavit demonstrates that it properly withheld the identities of intelligence sources, including foreign governments, and the information they provided; agency does not have to meet the requirements of Landano as a basis for confidentiality under Exemption 1; agency need not explain that if information is declassified it may still be withheld under other potentially applicable exemptions) (Exemption 7(C): protects information that would identify FBI informants, FBI agents, federal agency employees, subjects of investigative interest, third parties, commercial employees, and nonfederal law enforcement officers; exemption is not waived as to all information relating to several FBI interview reports that were inadvertently disclosed through administrative error) (Exemption 7(D): protects the identities of foreign entities that requested or received FBI information because these sources have agreed to exchange law enforcement information with the FBI based on express understandings of confidentiality; FBI properly withheld the city of a sender of a teletype and confidential source symbols because this information, when used in combination with other information, could be used to identify sources; when individuals have been publicly disclosed as sources, this exemption has not been waived with respect to all information about them in these files) (Exemption 7(E): protects an FBI law enforcement technique where the technique itself and the circumstances of its use are not widely known and disclosure would compromise the utility of the technique).
Blanton v. Dep't of Justice, 63 F. Supp. 2d 35 (D.D.C. 1999) (duty to search: FBI was not required to search specific informant files in response to plaintiff's request for records about himself, because any information these informant files might contain about plaintiff would have been flagged by the "cross-reference" search performed using plaintiff's name) (Vaughn Index: FBI's Vaughn Index, which covered a representative sampling of approximately 200 documents selected by plaintiff, is adequate to allow the court to rule) (Exemption 2 "low": protects permanent source symbol numbers, informant file numbers, and file numbers and documents pertaining to internal administrative practices and procedures for investigations regarding race crimes because they are matters of internal significance in which the public has no substantial interest) (Exemption 7 (threshold): requirement met by the FBI investigation of a Baptist church bombing in Alabama) (Exemption 7(C): protects the identities of subjects of investigative interest, informants, third parties, FBI employees, and employees of a commercial institute and nonfederal law enforcement agencies contained in FBI files; plaintiff has not shown that specific identities are in the public domain; the fact the names of some FBI agents may have been publicly disclosed does not entitle plaintiff to see where these names appear on documents responsive to his request; the exemption continues to protect those who may be deceased; two sources who have "excessively publicized" their status as informants during the bombing investigation have waived the protection of this exemption) (Exemption 7(D): the exemption protects confidential sources and the information they provided because the FBI gave either express or implied promises of confidentiality when investigating the bombing of an African-American church "during a time of great unrest in the South"; assurances of confidentiality survive one's death; two sources who have "excessively publicized" their status as informants during the bombing investigation have waived the protection of this exemption) (Exemption 7(E): protects the manner and circumstances of various polygraph techniques used by the FBI because they are not generally known to the public and disclosure would enable individuals to "employ counter-measures and circumvent the test").
Boakye-Yiadom v. INS, No. C 98-3580, 1999 WL 782476 (N.D. Cal. Sept. 30, 1999) (attorney fees: pro se plaintiff is not entitled to attorney fees and costs because he has not demonstrated that he incurred any costs in bringing this action under the FOIA).
Bricker v. FBI, 63 F. Supp. 2d 57 (D.D.C. 1999) (denies plaintiff's motion to alter or amend court's May 12, 1999 judgment denying attorney fees; plaintiff has proffered no new evidence and shown no clear error in need of correction).
Burke v. Dep't of Justice, No. 96-1739, 1999 WL 1032814 (D.D.C. Sept. 30, 1999) (Exemption 7(C): FBI properly refused to confirm or deny the existence of third parties' law enforcement investigatory records when plaintiff had not proffered proofs of death or privacy waivers from these individuals and disclosure would not shed light on the operations of the FBI; protects the identities of FBI agents, other federal employees, subjects of investigative interest, informants, third parties, and local law enforcement officers contained in investigatory documents that concern plaintiff) (Exemption 7(D): a promise of confidentiality may be inferred in this case because of "the grave, violent, and planned nature" of the offenses (murder, use of interstate facilities to commit murder for hire, conspiracy to murder a federal witness, and arson) for which the FBI investigated plaintiff) (Exemption 7(E): protects information that could reveal the incidence and manner of use of various FBI investigatory techniques and the assessment of each technique's effectiveness because disclosure would risk circumvention of law) (Exemption 7(F): protects the identities of FBI agents and employees and informants; finds that disclosure would put their personal safety or lives in jeopardy because of the nature of the offenses for which plaintiff is being investigated).
Campaign for Family Farms v. Glickman, No. 99-1165 (D. Minn. Sept. 20, 1999) ("Reverse" FOIA/Exemption 6: prohibiting disclosure of names, addresses, and telephone numbers of 19,000 hog farmers who signed a petition concerning a "controversial program" that was submitted to the government, because the risk of "retaliation and harassment" outweighs the public interest in disclosure) (preliminary injunction: grants plaintiff's motion for a preliminary injunction because plaintiff has shown a likelihood of success on its claim, that it will be irreparably harmed by disclosure, that the balance of harms weighs in favor of nondisclosure, and that the public interest favors nondisclosure).
Codrington v. Anheuser-Busch, Inc., No. 98-2417, 1999 U.S. Dist. LEXIS 19505 (M.D. Fla. Oct. 18, 1999) (in this age discrimination case where the judge inappropriately handles a discovery request as though it were a FOIA request, finds that Exemption 7(C) protects information in closed EEOC files (as if it were a privilege); privacy interests of claimants/informants outweigh plaintiff's need for this information in connection with litigation).
Comer v. IRS, No. 97-76329, 1999 U.S. Dist. LEXIS 16268 (E.D. Mich. Sept. 30, 1999) (Exemption 7(C): agency must provide the court with a declaration justifying the withholding of information from a third party's drivers license) (jurisdiction: court lacks jurisdiction where the defendant produced the only document found when it conducted a good faith-search) (Exemptions 6 and 7(C): protect the identities of lower-level agency employees who may be related to plaintiff or who are known to plaintiff) ("reasonably segregable": agency has demonstrated that segregable information has been released) (exhaustion: plaintiff has not exhausted his administrative remedies where he did not administratively appeal the withholding of documents and the determination that he is a "commercial user," even though he had previously appealed the agency's failure to process the records within the statutory time limit) (fees: exercising its equitable powers, authorizes the Justice Department's Tax Division not to respond to any further FOIA requests from plaintiff unless he pays outstanding fees in the amount of $467.70 and unless he pays in advance any fees likely to be incurred processing his request) (attorney fees: pro se FOIA plaintiffs are entitled to litigation costs only; plaintiff must brief the court with respect to this issue).
Coolman v. IRS,
No. 98-6149, 1999 WL 675319 (W.D. Mo. July 12, 1999) (exhaustion: because plaintiff
made an attempt to comply with agency rules and because his FOIA request was
processed after this complaint was filed, the purposes underlying the exhaustion
doctrine were achieved and plaintiff has exhausted his administrative remedies)
(Exemption 3 [26 U.S.C.
Crompton v. United States Air Force, No. 98-0479 (D.D.C. Sept. 3, 1999) (Exemption 7(C): protects the identities of Air Force Special Agents, other law enforcement officials, and third parties mentioned in an investigation report) (Exemption 7(D): the record is so terse that it is not clear as to whether agency is claiming protection for express or implied sources; within 21 days, agency may either submit a new affidavit or reprocess the document in question to restore information that was redacted on the basis of Exemption 7(D) alone).
Davis v. CIA, No. 4:99-838 (M.D. Pa. Nov. 18, 1999) (adequacy of search: ruling on defendant's unopposed motion for summary judgment, finds that the agency has conducted thorough searches for records in response to FOIA requests made by plaintiff over the last 20 years) (Exemption 7(C): protects the identities of agency employees).
D.C. Technical Assistance Org., Inc. v. HUD, No. 98-0280 (D.D.C. July 29, 1999) (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects documents that are predecisional and contain evaluations and recommendations; factual portions of one document must be released; the attorney-client privilege protects communications between agency counsel and agency staff members (without the involvement of decisonmaking individuals) in which legal advice is requested or given) (Exemptions 4 and 6: protect personal information and financial information).
Domingues v. FBI, No. 98-74612 (E.D. Mich. July 29, 1999) (mootness: to the extent that plaintiff seeks attorney fees, this action is not moot) (duty to search: FBI's failure to search its field offices in response to plaintiff's FOIA request for "all FBI records relating to him" was not unreasonable, it was a "permissible construction of the statute") (adequacy of request: a request directed to an agency's headquarters which does not request a search of field offices, or which requests a blanket search of all field offices, does not "reasonably describe" the records requested) (attorney fees: pro se plaintiff is not entitled to attorney fees, but he may be entitled to costs; plaintiff has not shown that there is a sufficient nexus between this lawsuit and the release of the requested information; plaintiff seeks these records for his personal use in pursuing his criminal appeal; plaintiff has not shown that the FBI's delay in producing his records was unreasonable; costs denied).
Emerson v. CIA, No. 99-0274, 1999 U.S. Dist. LEXIS 19511 (D.D.C. Dec. 16, 1999) (finds that Open America represents the law of the D.C. Circuit and that it has been applied to FOIA cases since the 1996 amendments; without applying amended standards, grants the Department of State a stay until September 6, 2000 because it has been "deluged" with FOIA requests and has been exercising "due diligence" to reduce its backlog).
Folstad v. Bd. of Governors of the Fed. Reserve Sys., No. 1:99-124, 1999 U.S. Dist. LEXIS 17852 (W.D. Mich. Nov. 16, 1999) (adequacy of search: agency has conducted a reasonable search for records requested under the FOIA) ("improperly withheld": documents that were no longer in the possession of the agency at the time at which the FOIA request was made were not "improperly withheld").
Germosen v. Cox, No. 98-1294, 1999 WL 1021559 (S.D.N.Y. Nov. 9, 1999) (proper party defendant: the FOIA authorizes suit against federal agencies only, not individuals) (Exemption 2 "high": disclosure of source symbol numbers and agent identification numbers would risk circumvention of agency law; "low": protects agency computer access codes, telephone and facsimile numbers, and numbers used to denote different categories of counterfeit currency because they are "internal") (Exemption 3 [Rule 6(e)]: protects records relating to the grand jury process) (Exemption 5: the attorney work-product privilege protects correspondence between the Postal Inspection Service and the United States Attorney's Office concerning the strategy of the government's investigation and prosecution of plaintiff) (Exemption 7 (threshold): requirement met by all records of investigation compiled by the FBI) (Exemption 7(C): protects the identities of informants, investigative agents, and third parties) (Exemption 7(D): the FBI has demonstrated that sources were given express promises of confidentiality; the Postal Inspection Service has demonstrated that sources who provided information about a serious crime expected that the government would hold this information and their identities in the strictest confidence) (Exemption 7(E): protects information concerning the use and rating of investigative techniques, counterfeiting designations, and the name of a little-known type of criminal investigation conducted by the Secret Service) (in camera inspection: in camera review is not necessary because the government's Vaughn declarations are sufficient to provide a basis for the court's decision) (discovery in FOIA litigation: discovery is unnecessary in this FOIA litigation because the government's Vaughn declarations provide a sufficient basis for the court's decision).
Goldstein v. Office of Indep. Counsel, No. 87-2028, 1999 WL 570862 (D.D.C. July 29, 1999) (magistrate's recommendation) (waiver: no action should be taken on the FBI's motion for summary judgment until the FBI collects the documents made available in discovery in another case, compares them to the 67 documents withheld in this case, and discloses to plaintiff those documents that were previously released) (Exemption 2 "low": on in camera inspection, finds that the exemption protects permanent source symbols, file numbers, dates, and field office and subject-matter designations because they are "solely internal" and relate to a personnel rule or agency practice; exemption does not protect a request for hotel reservations and requests for courtesy phone calls to officials of a foreign government because they do not relate in any way to an internal rule or practice of the FBI) (Exemption 5: the deliberative process privilege protects 2 letters from the Justice Department to the FBI explaining preliminary opinions and advising on possible criminal investigations because disclosure would inhibit frank discussions of whether to prosecute; protects a letter from private citizen Henry Kissinger to the FBI requesting an FBI investigation because this letter was part of the FBI's deliberative process) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of an investigation of the LaRouche organization for alleged improper use of interstate communications facilities) (Exemption 7(C): categorically protects the identities of FBI agents and support staff, other federal, state, and local government employees, federal law enforcement officers, informants, subjects of investigative interest, and employees of financial or commercial institutions, because there is no compelling evidence of government misconduct; exemption does not protect textual information from 11 documents) (Exemption 7(D): FBI's affidavit did not demonstrate that informants were given express promises of confidentiality; the FBI may either release the documents or renew its motion for summary judgment with a declaration that is other than "'cookie-cutter,' one size fits all") (Exemption 7(E): does not protect a 16-year-old statement of how an interview was conducted nor a memorandum describing an investigative technique used 10 years ago and now generally known to the public) (referred documents: the FBI must contact DOE concerning a letter referred to DOE for processing; if DOE does not state its position within 30 days, summary judgment should be denied as to this document).
Green v. DEA, No. 98-0728 (D.D.C. Sept. 30, 1999) (proper party defendant: a federal agency, not an individual agency employee, is the proper party defendant under the FOIA) (Exemption 2 "high": disclosure of violator identifiers, G-DEP codes, and Cooperating Individual codes would risk circumvention of statutes and agency regulations) (Exemption 7(C): protects information that would identify informants, subjects of investigative interest, DEA Special Agents, DEA Supervisory Special Agents, and other DEA employees) (Exemption 7(D): DEA's affidavit demonstrates that informants had either implied or express promises of confidentiality) (Exemption 7(F): given the nature of the violent, drug-related crimes involved in the investigation, this exemption protects the identities of DEA agents, FBI agents, and other law enforcement personnel; while this investigation began approximately 13 years ago, "revelation of the names of officers might regenerate hostilities and threaten the safety of officers").
Guccione v. Nat'l Indian Gaming Comm'n, No. 98-164, 1999 U.S. Dist. LEXIS 15475 (S.D. Cal. Aug. 5, 1999) (in camera inspection: in camera inspection is unnecessary because agency's affidavits are reasonably detailed) (Exemption 7(D): agency affidavit demonstrates that the source was given an express promise of confidentiality and that if the withheld information were disclosed it would reveal this source) (Exemption 7(C): protects agency employees involved in "suitability investigations for Indian gaming activities").
Hall v. Dep't of Justice, 63 F. Supp. 2d 14 (D.D.C. 1999) (Exemption 7 (threshold): noting difference between Third Circuit and D.C. Circuit case law, holds that FBI has not demonstrated that documents from the 1940s and 1950s relating to the investigation of 3 intellectuals were compiled for law enforcement purposes; grants plaintiff's motion for summary judgment with respect to information withheld under Exemptions 7(C) and 7(D)) (displacement of FOIA: there is no per se rule exempting material protected under a court order from disclosure in response to a FOIA request; orders in camera inspection of documents the FBI withheld under a protective order issued by another court) (duty to search: "mere reference to other files does not establish the existence" of relevant documents).
Hall v. Dep't of Justice, No. 96-2306 (D.D.C. Sept. 10, 1999) (on in camera inspection, finds that the FBI properly withheld documents under the protective order issued in National Lawyers Guild).
Hill v. USDA, 77 F. Supp. 2d 6 (D.D.C. 1999) (Exemption 6: on in camera inspection, finds that information concerning Farmers Home Administration's loans to a closely held family business is "sufficiently personalized" to warrant the application of the exemption; loan applicants did not waive their privacy rights "merely by acknowledging" that the information they were providing was "subject to release" under the FOIA; there is no public interest in this information since there are no allegations of inappropriate agency behavior; loan applicants have a substantial privacy interest in how they used the loans; summary judgment granted to defendant).
Hoffman v. Dep't of Justice, No. 98-1733 (W.D. Okla. Oct. 18, 1999) (denies plaintiff's request for a Vaughn Index in this case where the government is withholding information under Exemption 7(A); "the detailed index required under Vaughn is inconsistent with the categorical approach to disclosure permitted under Exemption 7(A)").
Hoffman v. Dep't of Justice, No. 98-1733-A (W.D. Okla. Dec. 15, 1999) (adequacy of affidavit: agency affiant need not be the individual who actually conducted or supervised the search for records in response to a FOIA request; in this case the affiant was aware of how the searches were conducted by virtue of information provided to him in his official capacity; agency need not disclose the identity and background of the individual who conducted the search) (duty to search: an agency need not conduct a physical search for records if other, more efficient, computer-assisted search procedures are available; FBI's search for information in response to plaintiff's FOIA request was adequate) (Exemption 7(A): the FBI has not demonstrated why the release of all investigative information concerning the April 1995 bombing of the Murrah Federal Building in Oklahoma City would likely harm the continuing federal and state prosecutions against Timothy McVeigh and Terry Nichols; some evidence and the identities of some witnesses have already been disclosed; given the "unique circumstances presented by serial prosecutions for the same alleged criminal conduct, the FBI has failed to group the responsive documents into categories that can be linked to cogent reasons for nondisclosure"; the FBI must "disaggregate its current categories" and provide a supplemental declaration and a renewed motion for summary judgment by January 10, 2000).
Iacoe v. IRS, No. 98-C-0466, 1999 U.S. Dist. LEXIS 12809 (E.D. Wis. July 23, 1999) (duty to search: agency has conducted a reasonable search in response to plaintiff's FOIA request; the absence of affiant's personal knowledge of every aspect of the record search does not invalidate her declaration).
Juda v. United States Customs Serv., No. 98-0533, 1999 U.S. Dist. LEXIS 12536 (D.D.C. Aug. 3, 1999) (duty to search: affidavits from agency's FOIA Officer and a special agent demonstrate that the agency conducted a reasonable search for records responsive to plaintiff's FOIA request) (Exemption 2 "high": protects file numbers, names, and internal investigation notes because they are predominantly "internal" and disclosure would lead to circumvention of agency law) (Exemption 7(C): protects the identities of Customs officers, offices, and clerical personnel, subjects of investigative interest, informants, and third parties) (Exemption 7(E): disclosure of law enforcement techniques used by the Customs Service would allow potential violators to "circumvent the law, avoid detection, and evade apprehension").
Judicial Watch, Inc. v. Comm'n on United States-Pac. Trade & Inv. Policy, No. 97-0099 (D.D.C. Sept. 30, 1999) (Exemption 5: defendant's affidavits demonstrate that the deliberative process privilege protects information in 12 documents that contain advice and recommendations made to the President regarding the nomination process for federal office holders, because disclosure would chill frank, open discussions on trade policy recommendations; defendant has not shown that 6 documents are protected by this privilege; defendant may either submit a supplemental affidavit or disclose the records; defendant must re-examine nomination-related documents withheld under the deliberative process privilege to determine whether any intra-governmental communications regarding nominees contain segregable information about persons ultimately appointed to the Commission; defendant must disclose basic, biographical descriptions of successful candidates and may withhold materials expressing opinions about successful and unsuccessful candidates; defendant has properly withheld information contained in 10 documents under the attorney-client privilege) (Exemption 6: protects information concerning nominees who were considered for but not appointed to serve on the Commission; defendant must re-examine nomination-related documents withheld under this exemption to determine whether any extra-governmental communications regarding nominees contain segregable information about persons ultimately appointed to the Commission; defendant must disclose basic, biographical descriptions of successful candidates) (Exemption 1 [E.O. 12,958]: defendant's affidavit demonstrates that disclosure of information would damage national security) ("reasonably segregable": because defendant has not addressed segregability, remands to defendant to supplement its affidavit by making findings as to the segregability of each document) (discovery in FOIA litigation: denies plaintiff discovery because the court is satisfied that defendant's affidavit and Vaughn Index are sufficient) (in camera inspection: in camera inspection is unnecessary because defendant's affidavits and Vaughn Index are sufficient).
Judicial Watch v. Dep't of Commerce, 83 F. Supp. 2d 105 (D.D.C. 1999) (Exemption 2 "high": protects names and numbers on agency's credit cards because disclosure would create the opportunity for fraud and misuse) (Exemption 4: agency affidavits demonstrate that the release of business information submitted by corporations that wanted to participate in various trade missions would cause substantial competitive harm or would hamper the government's ability to obtain this information in the future; affidavits do not provide sufficient information to support the withholding of some documents in their entireties; defendant must submit supplemental affidavits detailing whether these documents contain any segregable information) (Exemption 5: orders in camera inspection of documents withheld under Exemption 5 because agency's affidavits do not contain sufficient detail for the court to make a determination) (Exemption 6: protects third-party information including home address and telephone number, date of birth, hair and eye color, height and weight, allergies, family information, Social Security number, Visa and passport data, and a performance appraisal).
Kempker-Cloyd v. Dep't of Justice, No. 5:97-253 (W.D. Mich. Apr. 2, 1999) (magistrate's recommendation) (attorney fees: this litigation caused the production of documents that were "long overdue" because defendant did not initially act in good faith or conduct a reasonable and timely search; plaintiff has substantially prevailed; there is a public interest in disclosure of documents relating to plaintiff's sexual harassment and retaliation claim because these documents would potentially have revealed activity by the Justice Department which was of public concern; plaintiff would not benefit "commercially" from the release of these documents in the manner which Congress intended to preclude; defendant did not provide any basis for withholding records until after the initiation of litigation, and numerous documents that were originally called "personal" were later designated as "agency records"; plaintiff's attorney is entitled to only $125 per hour, not $150 as requested; because this litigation ultimately involved documents which may not necessarily have existed at the time of plaintiff's original FOIA request, the court awards her one-half of her requested amount; plaintiff is entitled to recover all expenses related to the issue of "personal" records; plaintiff is not entitled to compensation for "leave time" from her employment; grants plaintiff $9250 in attorney fees and $2008 in costs), adopted (W.D. Mich. Aug. 17, 1999).
Kim v. IRS,
No. 99-2096, 1999 U.S.Dist. LEXIS 20612 (D. Md. Dec. 28, 1999) (Exemption 3
Kruger v. IRS, No. 99-347, 1999 U.S. Dist. LEXIS 15520 (D. Nev. Aug. 19, 1999) (mootness: case is moot because plaintiff has received the records he requested under the FOIA) (attorney fees: pro se plaintiff is not entitled to attorney fees under the FOIA; plaintiff is not entitled to costs because he did not substantially prevail in this action).
Laughlin v. Comm'r, 103 F. Supp. 2d 1219 (S.D. Cal. 1999) ("no records" defense: IRS conducted a reasonable search in response to plaintiff's FOIA request; IRS does not possess the document at issue because it was destroyed in accordance with agency procedures well before this FOIA request was received by the agency; even if the IRS were lax in its document-preservation activities, this would not be a cognizable claim in a FOIA action) (proper party defendant: individual agency officials are not proper defendants under the FOIA).
Lissner v. United States Customs Serv., No. 98-7438 (C.D. Cal. Aug. 19, 1999) (minute order) (attorney fees: plaintiff has not substantially prevailed because no significant information was released as a result of this litigation; there is minimal public interest in the conduct of state and local officials; agency had a reasonable basis in law for withholding information; if the court were to punish the agency for releasing some exempt documents by finding a waiver as to other similar documents, it would "thwart the underlying statutory purpose" of the FOIA).
Los Alamos Study Group v. DOE, No. 99-201 (D.N.M. Oct. 26, 1999) ("exceptional circumstances"/"due diligence": denies defendant's motion for an Open America stay in this case where plaintiff submitted several FOIA requests to DOE's Albuquerque office seeking records pertaining to the activities of the Los Alamos National Laboratory; "exceptional circumstances" does not include the delay engendered by the review of sensitive and classified nuclear information, because when such review is required by the Atomic Energy Act, it is foreseeable and it is part of the normal agency workload; DOE's Albuquerque FOIA Office has not even attempted to show reasonable progress in reducing its backlog, despite requirement of 1996 FOIA amendments; agency must provide complete and timely responses to 3 of plaintiff's FOIA requests within 20 days) (declaratory relief: plaintiff has not shown that it is entitled to a declaration that defendant respond to all future FOIA requests within the statutory time limits due to a pattern and practice of deliberate disregard of FOIA time limits, nor is plaintiff entitled to an investigation by Office of Special Counsel to determine whether disciplinary action is warranted).
Malone v. Freeh, No. 97-3043 (D.D.C. July 13, 1999) (attorney fees: finds that plaintiff has "substantially prevailed" where defendant did not respond to his FOIA request for over a year, not until plaintiff filed this action; grants plaintiff additional costs in the amount of $50).
Martin v. Dep't of Justice, No. 96-2866 (D.D.C. Dec. 16, 1999) (exhaustion: plaintiff has not exhausted his administrative remedies where he did not submit a FOIA request to the appropriate agency component for this information; citing to the Department of Justice's FOIA regulations, finds that the fact that plaintiff did not provide the FBI with a privacy waiver or a proof of death of a third party does not justify the FBI's failure to search for and process these records about the third party; nevertheless rules that "processing of plaintiff's request . . . would not have changed the result because it appears that any responsive records pertaining" to the third party would be protected by Exemption 7(C)) (Exemption 7 (threshold): requirement met by records compiled by the FBI in its investigation of plaintiff for bank fraud and money laundering) (Exemption 7(C): protects information concerning a third party because his privacy interests are not outweighed by plaintiff's public interest argument based on Brady; plaintiff has not proffered specific evidence of waiver) (referred records: the FBI followed proper procedures in referring records to other Department of Justice components and other federal agencies; summary judgment is not appropriate until the processing of the referred records has been completed by the originating agencies) ("reasonably segregable": the FBI released all reasonably segregable information).
May v. IRS,
85 F. Supp. 2d 939 (W.D. Mo. 1999) (duty to search: IRS conducted a reasonable
search in response to plaintiff's FOIA request) (Exemption 7 (threshold): requirement
met by records compiled in the course of an IRS investigation of alleged criminal
violations) (Exemption 7(C): in this case where plaintiff is requesting his
own tax records and there is no public interest in disclosure, finds that the
exemption protects information that would identify informants and special agents)
(Exemptions 3 [26 U.S.C.
Mays v. DEA, No. 98-2496, 1999 U.S. Dist. LEXIS 22595 (D.D.C. Sept. 14, 1999) (Exemption 7(D): protects 3 entire pages of debriefing information and portions of another page concerning the drug- trafficking activities of the plaintiff provided by a coded, confidential informant because such informants are given express promises of confidentiality; it is reasonable to infer that a cooperating individual who provided information about plaintiff's activities to the local sheriff's office had an implied promise of confidentiality because of the "dangers inherent within the world of drug trafficking") ("reasonably segregable": defendant has provided plaintiff all "reasonably segregable" information).
McClain v. Dep't of Justice, No. 97 C 0385, 1999 WL 759505 (N.D. Ill. Sept. 1, 1999) (not an "agency": a state or local entity is not an "agency" for purposes of the FOIA) (statute of limitations: plaintiff's claims against the IRS are barred by the statute of limitations because more than 6 years have elapsed since plaintiff constructively exhausted his administrative remedies) (mootness: plaintiff's claims against 2 agencies are moot because all documents have been released to him, with the exception of one tape recording that will be disclosed once it has been retrieved from storage) (Vaughn Index: plaintiff's motion for a Vaughn Index is premature).
McErlean v. Dep't of Justice, No. 97-7831, 1999 WL 791680 (S.D.N.Y. Sept. 30, 1999) (Exemption 1 [E.O. 12,958]: agency has demonstrated that disclosure of "derivatively classified" information would reveal the scope and depth of an FBI investigation and the identities of components of specific foreign governments and the information provided by them, which would cause serious damage to national security, and would identify an FBI investigative unit that specializes in specific intelligence or counterintelligence operations, which would cause severe damage to the national security) (Exemption 5: the attorney work-product privilege protects information that a trial attorney created in preparation for or during INS's deportation hearing against plaintiff and documents given to her by a confidential source, because disclosure would reveal the trial attorney's thoughts and mental impressions; the attorney-client privilege protects a memorandum from an INS trial attorney to her supervisor and a memorandum created by an INS Special Agent summarizing advice received from an INS trial attorney because they are products of confidential attorney-client relationships) (Exemption 7 (threshold): requirement met by records compiled by INS in the course of an administrative proceeding authorized by the Immigration and Naturalization Act) (Exemption 7(A): disclosure of records would interfere with the deportation proceeding against plaintiff) (Exemption 7(C): protects the identities of third parties, agency employees, and investigating agents from records contained in plaintiff's deportation file) (not an "agency record": documents given to a trial attorney by a confidential source are not "agency records" because the source retained control over these records, their use was limited to 2 trial attorneys, and they were not integrated into the agency's filing system).
McPhillips v. FBI, No. 99-0534 (D.D.C. July 30, 1999) (grants defendant's motion for summary judgment; the FBI conducted a reasonable search in response to plaintiff's FOIA request and it properly withheld the names of FBI Special Agents and support employees under Exemption 7(C)).
McSheffrey v. Executive Office for the United States Attorney, No. 98-0650 (D.D.C. Sept. 9, 1999) (because agency has not stated to which address it mailed plaintiff's denial letter, plaintiff's sworn statement that he never received this letter creates a genuine dispute about a material issue of fact; especially given agency component's failures in another case before the same judge (Jefferson v. Reno), court will not hesitate to apply sanctions for agency's failure to comply with its legal obligations under the FOIA; agency is enjoined from destroying records responsive to plaintiff's FOIA request; within 10 days the agency must submit a sworn statement that it has read this order and must detail the steps taken to make sure that this injunction will be followed; agency must produce all records responsive to plaintiff's FOIA request and a Vaughn Index by October 10, 1999).
Melius v. Nat'l Indian Gaming Comm'n, No. 98-2210, 1999 U.S. Dist. 17537 (D.D.C. Nov. 3, 1999) (Exemption 5: the deliberative process privilege protects 9 documents containing factual summaries that were prepared to enable the Commission to make a determination on plaintiff's suitability for a gaming management contract; these fact summaries show the investigators' deliberation in determining plaintiff's suitability) (Exemption 7 (threshold): requirement met by the Commission's suitability investigations) (Exemption 7(C): protects the identities of Commission employees and third parties contained in investigatory records) (Exemption 7(D): an implied promise of confidentiality reasonably may be inferred between the Commission and a local police department, because of the nature of the criminal investigation; Commission's affidavit demonstrates that a local government entity supplied information under an express promise of confidentiality).
Mueller v. Dep't of the Air Force, 63 F. Supp. 2d 738 (E.D. Va. 1999) (Exemption 7 (threshold): requirement met by Air Force investigation into allegations of prosecutorial misconduct, even though all charges were ultimately dismissed) (Exemption 6: an Air Force record of Nonjudicial Punishment Proceedings and a Courts-Martial Report of Inquiry are personnel records) (Exemptions 6 and 7(C): categorically protect all records in the file of a single individual who was investigated on charges of prosecutorial misconduct that led initially to a recommendation for imposition of nonjudicial punishment, but where all charges were ultimately dismissed; individual's strong privacy interest outweighs the "attenuated" public interest in disclosure).
Murphy v. IRS,
79 F. Supp. 2d 1180 (D. Haw. 1999) (Exemption 3 [26 U.S.C.
Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice, No. 97-372 (D.D.C. Oct. 1, 1999) (Exemption 6: finds that the threshold requirement was not met by an e-mail document because it is not a "personnel file") (Exemption 7(C): agency must disclose the names of 2 FBI employees from an e-mail document, which discussed allegations of misconduct against these 2 individuals, but where both allegations were looked into and closed administratively; the need to ensure the integrity of our criminal justice system is "extraordinarily significant," especially now when "the credibility of the FBI as a law enforcement institution is being called into question more seriously than at any other time in its history"; orders disclosure of the name of the FBI employee accused of misrepresenting facts while testifying under oath because the compelling evidence that serious misconduct has occurred by this individual and possibly other agency employees who were responsible for investigating the allegation outweighs the substantial privacy interest of the individual; "because of serious misrepresentations in the government's briefs," and evidence of possible misconduct in the handling of the investigations, orders disclosure of the name of the FBI employee accused of failing to report misappropriation of government property; the public interest in disclosure "far" outweighs the privacy interest and disclosure will shed light on the FBI's performance of its duties).
Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice, No. 97-372 (D.D.C. Dec. 28, 1999) (grants agency's motion for a stay of the court's October 1, 1999 disclosure order; agency's motion for reconsideration is granted with instructions for a new motion which should be filed by January 15, 2000).
Parola v. IRS, No. 98-7179, 1999 WL 1215557 (E.D.N.Y. Dec. 15, 1999) (proper party defendant: the FOIA authorizes suit against federal agencies, not individuals).
Pease v. Dep't
of Interior, No. 1:99-113 (D. Vt. Sept. 20, 1999) (Exemption 3 [16 U.S.C.
Peck v. Merletti, 64 F. Supp. 2d 599 (E.D. Va. 1999) (dismisses pro se plaintiff's FOIA action because the action is frivolous and without basis in law, and plaintiff's filings can be "accurately described as gibberish or nonsensical rambling"; in an effort to conserve valuable judicial and law enforcement resources, rules that any future filings by plaintiff "in regards to this matter, or similar FOIA requests, must be in strict compliance with Federal Rule of Civil Procedure 8 in regards to 'a short and plain statement of the claim'").
Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 1999 WL 1051963 (W.D. Pa. Oct. 12, 1999) (duty to search: agency's affidavit does not demonstrate that a reasonable search was conducted in response to plaintiff's FOIA request) (subsection (a)(2): the FOIA does not require agencies to "make public" all new policies and interpretations at least 90 days in advance).
IRS, No. 98-6020, 1999 U.S. Dist. LEXIS 12235 (W.D. Mo. July 13, 1999)
(Exemption 3 [26 U.S.C.
Peyton v. Reno, No. 98-1457, 1999 U.S. Dist. LEXIS 12125 (D.D.C. July 19, 1999) (adequacy of request: where plaintiff asked the IRS for "all records concerning me or containing my name," the IRS was obligated to give plaintiff an opportunity to refine his request; IRS has 60 days to conduct a search of its Richmond, Virginia field office for records responsive to plaintiff's FOIA request; IRS is encouraged to worked with plaintiff in an attempt to help refine his request).
Philadelphia Newspapers, Inc. v. HHS, 69 F. Supp. 2d 63 (D.D.C. 1999) (Vaughn Index: defendant has submitted an adequate Vaughn Index) (Exemption 4: charts were prepared by HHS and, therefore, were not "obtained from a person") (Exemption 7 (threshold): requirement met by records of an HHS audit of a university medical clinic because, from the beginning, the audit focused on specific suspected violations of Medicare billing requirements) (Exemption 7(A): because the HHS investigation is over, disclosure of these records would not interfere with an ongoing law enforcement investigation) (Exemption 5: the inter-agency requirement is met by information that originated from a government employee or contractor, even though unprotected information originating from a nongovernment source can be found in the same record; neither the attorney-client privilege nor the attorney work-product privilege protects 22 audit documents that HHS shared with the target of its investigation) (Exemptions 6 and 7(C): protect the names and identification numbers of Medicare beneficiaries and identities of hospital physicians investigated for, but not charged with, Medicare fraud; disclosure would not shed light on agency practices).
Prince v. Schofield, No. 98 CV 1224, 1999 U.S. Dist. LEXIS 16303 (E.D.N.Y. Sept. 23, 1999) (proper party defendant: individual agency employee is not proper party defendant under the FOIA; Secretary of HHS is not the proper party defendant under the FOIA, but court substitutes HHS as the proper defendant) (duty to search: "mere speculation" that a document exists does not undermine the finding that the agency conducted a reasonable search).
Pusa v. FBI, No. 99-04603 (C.D. Cal. Aug. 3, 1999) (exhaustion: plaintiff failed to exhaust his administrative remedies when he failed to comply with the agency's published procedures for obtaining third-party information).
Rivera v. FBI, No. 98-0649 (D.D.C. Aug. 31, 1999) (Exemption 3 [Rule 6(e)]: protects the identity of a grand jury witness) (Exemption 7(C): protects information that would identify FBI agents and employees, other law enforcement officers, informants, and third parties contained in plaintiff's criminal investigatory file, even when those individuals testified at plaintiff's trial or their identities are otherwise known to plaintiff; exemption protects the date of birth, former home address, and Social Security number of plaintiff's co-defendant) (Exemption 7(E): protects information concerning bank security measures) ("reasonably segregable": defendant has provided plaintiff all "reasonably segregable" information).
Rozet v. HUD, 59 F. Supp. 2d 55 (D.D.C. 1999) (fee waiver: agency properly classified plaintiff's FOIA requests as "commercial use" requests; plaintiff, one of the largest owners of HUD-assisted housing in the United States, filed his FOIA requests 5 months after HUD brought a lawsuit against him and his corporations; "the timing of the FOIA requests and their content demonstrates conclusively that the FOIA requests advance Mr. Rozet's commercial interest, rather than the public interest").
Sacco v. FBI, No. 98-1247 (D.D.C. Nov. 30, 1999) (duty to search: applying the Justice Department regulations that were in effect at the time of plaintiff's FOIA request, finds that in response to plaintiff's FOIA request, which specified a search of headquarters and 3 named field offices, the FBI must search all field offices likely to contain records responsive to plaintiff's FOIA request).
Sawyer-El v. Dep't of the Interior, No. 98-2821 (D.D.C. Sept. 28, 1999) (jurisdiction: court lacks jurisdiction; tape recording requested by plaintiff no longer exists because it was properly disposed of by the defendant in accordance with an approved records-retention schedule).
Scheer v. Dep't of Justice, 35 F. Supp. 2d 9 (D.D.C. 1999) (denies defendant's motion for reconsideration under Rule 59(e) because government has not shown that new evidence exists, that it is necessary to correct a clear error, or that it is necessary to prevent manifest injustice; government may not raise new exemptions after cross-motions for summary judgment have been filed and the court has rendered judgment).
Dep't of Justice, 74 F. Supp. 2d 26 (D.D.C. 1999) (Exemption 1 [E.O. 12,958]:
automatic declassification provisions do not take effect until April 17, 2000;
agency's affidavit demonstrates that disclosure of 25-year-old documents containing
information regarding intelligence sources and methods, foreign relations, and
cryptologic systems would damage national security) (Exemption 2 "high": protects
codes and information that would reveal the identities of confidential informants
and the name of the office within the Defense Intelligence Agency that relayed
information to the FBI; agency released all reasonably segregable information)
(Exemption 3 [Rule 6(e)]: protects the identities and addresses of witnesses
and third parties and grand jury testimony; [26 U.S.C.
Snoddy v. Hawke, No. 99-1636 (D. Colo. Dec. 20, 1999) (Exemption 5: without specifying a privilege, finds that Exemption 5 protects e-mail memoranda between attorneys and employees and draft letters to the plaintiff) (Exemption 8: protects records prepared by or for the Office of the Comptroller of the Currency relating to bank examination, operating, or condition reports).
Soghomonian v. United States, 82 F. Supp. 2d 1134 (E.D. Cal. 1999) (exhaustion: plaintiff did not exhaust his administrative remedies when he filed suit before the 20-day time period for agency response to his appeal had elapsed).
Spannaus v. Dep't of Justice, No. 92-0372 (D.D.C. Sept. 30, 1999) (Exemption 5: the attorney work-product privilege protects a draft unexecuted affidavit written by a nonattorney under the direct supervision of an Assistant United States Attorney (AUSA) and a very detailed discussion of the events surrounding the grand jury proceedings in connection with the Lyndon LaRouche cases; the deliberative process privilege protects an inventory of documents prepared by the AUSA in response to the FOIA request in this action because it is predecisional).
Summers v. CIA, No. 98-1682 (D.D.C. July 26, 1999) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until January 1, 2000, under the terms of the 1996 Electronic FOIA amendments; the FBI has demonstrated that exceptional circumstances exist, that it is exercising due diligence in processing a large volume of FOIA requests, and that it is making reasonable progress in reducing its backlog; plaintiff has shown no exceptional urgency).
v. IRS, No. 98-2345, 1999 U.S. Dist. LEXIS 16733 (D.D.C. Aug. 6, 1999)
(Exemption 3 [26 U.S.C.
v. IRS, No. 94-923, 1999 U.S. Dist. LEXIS 14950 (D.D.C. Sept. 3, 1999)
(Exemption 5: the attorney-client privilege does not protect information contained
in a Field Service Advice Memorandum pertaining to a recommendation for additional
documentation that should be sought in connection with the audit of a taxpayer,
but does protect legal advice from the Office of Chief Counsel to field personnel;
the attorney work-product privilege protects a recommendation as to whether
a case should continue to be litigated and a legal opinion as to the reasonableness
of a particular position taken by the IRS, but does not protect a brief outline
of issues discussed) (without specifying an exemption, court finds that the
IRS improperly withheld a reference to a U.S. court of appeals and citations,
discussions, and quotations of state court decisions and statutes, except in
one international case with "worldwide publicity" where disclosure would lead
to identification of the taxpayer) (Exemption 3 [26 U.S.C.
Tax Analysts v. IRS, No. 94-923, 1999 U.S. Dist. LEXIS 19514 (D.D.C. Nov. 3, 1999) (Exemption 7 (threshold): requirement met by 3 nontaxpayer-specific Field Service Advice Memoranda (FSA) that the IRS uses to enforce tax laws) (Exemption 7(E): disclosure of information regarding IRS's methods of ascertaining taxpayers' last known addresses could enable delinquent taxpayers in circumventing tax laws; disclosure of a discussion of the litigating hazards and acceptable settlement terms in employment reclassification cases could not aid a taxpayer in circumventing the law; orders in camera inspection of a third FSA to determine whether disclosure of one sentence would "significantly risk circumvention" of agency law).
Tax Analysts v. IRS, No. 94-923 (D.D.C. Nov. 9, 1999) (Exemption 7(E): on in camera inspection, finds that the IRS's withholding of one sentence from a Field Service Advice Memorandum was improper; IRS's "position borders on the frivolous, if not the absurd").
Utah v. Dep't of the Interior, No. 2:98-380 (D. Utah Nov. 3, 1999) (Exemption 4: protects information related to proceedings concerning a lease between a private company and an Indian tribe because both parties to the lease face competition and would suffer harm if the information were released; there is no balancing of public and private interests in Exemption 4 "beyond the balancing that is inherent in the exemption itself") (exhaustion: even though plaintiff has not exhausted its administrative remedies, court "reluctantly" decides plaintiff's arguments on the merits).
Van Hoy v. Donelson, No. 1:98-1370, 1999 U.S. Dist. LEXIS 12729 (N.D. Ga. July 23, 1999) (grants defendant's unopposed motion for summary judgment; plaintiff has not responded to defendant's motion to dismiss for failure to exhaust administrative remedies).
Vigneau v. O'Brien, No. 99-37 (D.R.I. Aug. 3, 1999) (magistrate's recommendation) (adequacy of agency affidavit: while the FBI did not submit a Vaughn Index, it has provided the plaintiff with sufficient information) (duty to search: FBI has conducted a reasonable search in response to plaintiff's FOIA request).
Welsh v. Dep't of Justice, No. 96-1934 (D.D.C. Sept. 30, 1999) (Exemption 7(C): categorically protects the identities of federal, state, and local law enforcement personnel and investigators, informants, and third parties mentioned in investigative material; because the material plaintiff seeks does not shed light on the agency's performance of its duties, the privacy interests of these individuals is not outweighed; no segregable portions may be disclosed).
Williams v. United States Attorney's Office, No. 96-1367 (D.D.C. Sept. 21, 1999) (duty to search: agency's affidavit does not demonstrate the adequacy of its search in response to plaintiff's FOIA request; agency must file a supplemental affidavit by October 8, 1999).
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