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Compiled FOIA Decisions (Received July-December 1998)

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 1998. OIP is preparing additional compilations of decisions received during previous months and years.


Appeals Courts

Campbell v. Dep't of Justice, 164 F.3d 20 (D.C. Cir. 1998) (duty to search: the FBI must search its Central Records System, as well as its separate electronic surveillance (ELSUR) index and "tickler" files, in response to general FOIA requests where references to ELSUR or "tickler" files were contained in the records processed in the Central Records System--the requester need not expressly ask for these searches; district court erred in finding that the FBI conducted a reasonable search in this case) (Exemption 1 [E.O. 12,356]: applies the Executive Order in effect at the time the documents were classified because the new E.O. 12,958 does not permit FOIA plaintiffs to reopen classification decisions finalized before the Order's effective date; because the FBI's affidavit is inadequate, orders the district court on remand either to conduct an in camera review of the withheld information or require that the FBI submit a new declaration) (Exemption 7 (threshold): FBI has not demonstrated that records compiled about the late author and civil rights activist James Baldwin were compiled for law enforcement purposes; remands to the district court for further development of the record) (Exemption 7(C): on remand, the FBI must provide additional information about the relative weight of the competing public and private interests at stake in this case, including possible privacy interests of deceased persons; each party may document its position on the extent to which the FBI must investigate to determine whether "putative beneficiaries" of Exemption 7(C) are alive or dead) (Exemption 7(D): on remand, the FBI must demonstrate that sources were provided express promises of confidentiality) (fee waiver: on remand, the district court must reconsider its fee waiver analysis where it previously allowed the FBI to grant plaintiff a 60% fee waiver of copying charges; the fact that a scholar profits from his scholarly endeavors is insufficient to render his actions "primarily ... commercial"; district court must reconsider its ruling that 40% of the releasable material was not new material or material already in the public domain and that fees may be charged for copying repetitive information or information that is not responsive to the FOIA request).

Coulter v. Reno, No. 98-35170, 1998 WL 658835 (9th Cir. Sept. 17, 1998) (unpublished memorandum), 163 F.3d 605 (9th Cir. 1998) (table cite) (Exemption 7 (threshold): requirement met by records compiled by the Naval Criminal Investigative Unit in the course of an investigation into allegations of lewd and lascivious criminal conduct and threats of rape) (Exemption 7(C): protects the names of the accusers and some witnesses).

Cujas v. IRS, No. 98-1641, 1998 WL 539686 (4th Cir. Aug. 25, 1998) (unpublished order), 162 F.3d 1154 (4th Cir. 1998) (table cite) (affirms district court's ruling that agency properly withheld information under FOIA Exemptions 3 [26 U.S.C. 6103(a), 6103(e)(7)], 5, 7(A), and 7(C)).

Davis v. Dep't of Justice, No. 98-5080, 1998 WL 545422 (D.C. Cir. July 31, 1998) (partially grants government's motion for summary affirmance; agency made a good-faith effort to search for requested tapes and transcripts of tapes, even though some of these items were not located; case remanded to the district court to determine whether any material in the 5 tapes withheld in their entireties may be released).

GMRI, Inc. v. EEOC, 149 F.3d 449 (6th Cir. 1998) (attorney fees: district court did not err in concluding that plaintiff substantially prevailed because the prosecution of this lawsuit caused the agency to produce a printout of the computer database used to track a discrimination charge; remands case to the district court for a determination of entitlement).

Green v. United States, No. 98-1568 (6th Cir. Aug. 11, 1998) (appeal dismissed because plaintiff failed to prosecute).

Jernigan v. Dep't of the Air Force, No. 97-35930, 1998 WL 658662 (9th Cir. Sept. 17, 1998) (unpublished memorandum), 163 F.3d 606 (9th Cir. 1998) (table cite) (duty to search: since agency found all documents requested by plaintiff, its search was adequate) (Vaughn Index: agency's Index sufficiently described the information withheld, the exemption applied, and explained how disclosure would damage the interest protected by the exemption) (Exemption 6: protects the identities of Air Force personnel working overseas because of the increased threat of terrorism) (Exemption 7(C): protects the identities of witnesses, witnesses' opinions, and summaries of witness statements in agency's Social Actions Report) (Exemption 5: the deliberative process privilege protects the Investigating Officer's opinions and recommendations; the attorney-client privilege protects the legal review portion of the Social Actions Report which was prepared by an attorney in order to provide an independent review of the investigation).

Johnston v. Dep't of Justice, No. 97-2173, 1998 WL 518529 (8th Cir. Aug. 10, 1998) (unpublished memorandum), 163 F.3d 602 (8th Cir. 1998) (table cite) (Exemptions 7(C) and 7(F): disclosure of records related to third parties in DEA's files would be an "unwarranted invasion of personal privacy"; protects information that would identify Special Agents, DEA personnel, and local law enforcement personnel; fact that an agent testified in court does not waive the protection of the exemption) (duty to search: DEA has demonstrated that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Kay v. FCC, 172 F.3d 919 (D.C. Cir. 1998) (table cite) (affirms district court's ruling which held that Exemption 7(A) protects information concerning an ongoing FCC investigation of the plaintiff for alleged violation of FCC rules and regulations).

King v. Reich, No. 97-35568, 1998 WL 483007 (9th Cir. Aug. 12, 1998) (unpublished memorandum), 156 F.3d 1237 (9th Cir. 1998) (table cite) (subsection (a)(2): agency need not publish all of its opinions; it must make available for public inspection and copying all final opinions made in the adjudication of cases, unless the materials are promptly published or offered for sale).

McDonald Douglas Corp. v. NASA, No. 98-5251 (D.C. Cir. Oct. 15, 1998) (summary affirmance denied in this "reverse" FOIA case where the district court found that release of unit prices submitted by plaintiff in response to a solicitation for bids was not likely to cause substantial competitive harm to plaintiff).

Means v. Segal, No. 98-5170 (D.C. Cir. Oct. 6, 1998) (summarily affirms district court ruling that agency properly withheld information under FOIA Exemptions 5, 7(C), and 7(D)).

Nash v. Dep't of Justice, No. 98-5096 (D.C. Cir. July 20, 1998) (summary affirmance granted in this FOIA action where the district court dismissed the case as moot and denied attorney fees to the plaintiff), reh'g en banc denied (D.C. Cir. Oct. 9, 1998).

Owens v. Fed. Bureau of Prisons, No. 97-2901, 1998 WL 777756 (2d Cir. Oct. 29, 1998) (unpublished order), 165 F.3d 14 (2d Cir. 1998) (table cite) (plaintiff's claim that the warden failed to produce documents on April 24, 1990 is dismissed as time-barred).

Pray v. DEA, No. 98-5072 (D.C. Cir. Nov. 24, 1998) (summary affirmance granted with respect to information withheld under Exemptions 7(D) and 3 [18 U.S.C. 2517]; summary affirmance denied and case remanded with respect to information withheld under Exemption 7(C) because the district court has not made a finding as to segregability).

Schwarz v. Dep't of State, No. 98-5101, 1998 U.S. App. LEXIS 20690 (D.C. Cir. July 29, 1998) (Exemption 6: affirms district court ruling; passport files are "similar files" under the FOIA; protects a third-party address from agency's passport files because there is a privacy interest at stake and plaintiff has not demonstrated a public interest in disclosure).

Schwarz v. FBI, 31 F.3d 540 (N.D. W. Va. 1998) (exhaustion: because plaintiff failed to submit legible fingerprints, she has not exhausted her administrative remedies with respect to records she requested under the FOIA about herself) (Exemption 7(C): protects third-party information where plaintiff has not provided a waiver from that third party), aff'd, No. 98-2347, 1998 WL 801850 (4th Cir. Nov. 18, 1998) (unpublished order), 166 F.3d 334 (4th Cir. 1998) (table cite) .

Schwarz v. FBI, No. 98-4036, 1998 WL 667643 (10th Cir. Sept. 17, 1998) (unpublished order), 161 F.3d 18 (10th Cir. 1998) (table cite) (affirms district court's ruling that agency conducted a reasonable search for records in response to plaintiff's FOIA request).

Schwarz v. NARA, No. 98-4070, 1998 WL 703318 (10th Cir. Oct. 7, 1998) (unpublished order), 162 F.3d 1174 (10th Cir. 1998) (table cite) (affirms district court ruling that agency demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request).

Schwarz v. Nat'l Inst. of Corrections, No. 98-1230, 1998 WL 694510 (10th Cir. Oct. 6, 1998) (unpublished order), 161 F.3d 18 (10th Cir. 1998) (table cite) (doctrine of res judicata bars this action, because plaintiff's lawsuit in District of Maryland, which involved the same parties and the same claim, was dismissed).

Spirko v. United States Postal Serv., 147 F.3d 992 (D.C. Cir. 1998) (in camera inspection: when district court decided to conduct in camera inspection without first requiring a more detailed Vaughn Index, it did not abuse its discretion; in camera inspection provided plaintiff with an expeditious and fair resolution of his FOIA request) (Exemption 7(C): protects information that would identify witnesses, suspects, and law enforcement officers; documents are unrelated to plaintiff's claims of government misconduct).

Tax Analysts v. IRS, No. 98-5252 (D.C. Cir. Aug. 11, 1998) (on consideration of government's unopposed motion, appeal dismissed in this FOIA case where the district court granted attorney fees to the plaintiff and established a staged, 6-month period for processing and releasing 1300 Field Service Advice (FSA) memoranda to plaintiff).

Weatherhead v. United States, 157 F.3d 735 (9th Cir. 1998) (Exemption 1 [E.O. 12,958]: government has not provided a particularized explanation of how disclosure of a letter relating to the extradition and prosecution of two women would damage relations between the United States and the United Kingdom and, therefore, harm national security; "it is clear that all information exchanged between foreign governments is not exempt from FOIA disclosure"; government has failed to prove that the narrower category of international extradition material is protected by the exemption; panel majority creates new Ninth Circuit rule that for there to be any deference to agency expertise, an agency must make "an initial showing which would justify deference by the district court"; on in camera inspection finds that disclosure of what it termed this "innocuous" letter at this time would not harm national security) (Silverman, J., dissenting).


District Courts

Abraham & Rose, P.L.C. v. United States, 36 F. Supp. 2d 955 (E.D. Mich. 1998) (Exemption 7 (threshold): on remand, finds that the requirement is met by records compiled by the IRS as part of its effort to collect outstanding tax debts) (Exemption 7(C): protects list of individuals who have outstanding tax liabilities, including name, address, and amount of tax liability; this information is "public" because it is filed in the county in which the taxpayer resides; there is a strong privacy interest at stake and disclosure will not shed any light on the IRS's collection procedures).

Accuracy in Media, Inc. v. Nat'l Park Serv., No. 97-2109, 1998 U.S. Dist. LEXIS 18373 (D.D.C. Nov. 13, 1998) (adequacy of affidavit: although in one instance the redacted information does not precisely fit the description given by defendant, this does not amount to tangible evidence of agency bad faith) (Exemption 7(C): balancing the Foster family's "legitimate and substantial privacy interest" against the public interest in "monitoring the government's administration of justice," finds that the exemption protects Park Police photographs of former White House Deputy Counsel Vincent Foster taken at the autopsy) (Exemption 7(A): release of witness statements and evidence in the Office of Independent Counsel's ongoing investigation into events following Mr. Foster's death could interfere with the ongoing inquiry concerning the handling of his papers after his death) (in camera inspection: denies plaintiff's request for in camera inspection because the issues have all been resolved without this procedure) (discovery in FOIA litigation: denies plaintiff's motion for discovery because affidavits submitted by the agency sufficiently detail the search conducted in response to plaintiff's FOIA request).

Ballard v. IRS, No. 4:97-071 (N.D. Tex. Oct. 21, 1998) (proper party defendant: the IRS, and not its Commissioner, is the proper party defendant in this FOIA action) (summary judgment: grants defendant's motion for summary judgment because all nonexempt records have been provided to plaintiff).

Barmes v. IRS, 60 F. Supp. 2d 896 (S.D. Ind. 1998) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 5: the attorney-client and attorney work-product privileges protect an IRS attorney's memorandum written in response to a request by a revenue officer that applies case law to the facts of the collection action against plaintiff, prepared in anticipation of litigation; the deliberative process privilege protects portions of memorandum discussing and analyzing various options of collecting tax liabilities owed by plaintiff because memorandum was prepared during the decisionmaking process) (Exemption 7(D): agency has demonstrated that the source was given an express promise of confidentiality).

Beneville v. Dep't of Justice, No. 98-6137 (D. Or. Dec. 14, 1998) ("exceptional circumstances"/"due diligence": Hodes declaration demonstrates that the FBI has exercised due diligence in responding to plaintiff's FOIA request and that exceptional circumstances exist which prevent the FBI from processing it within the statutory time limits; FBI places FOIA requests in one of three queues depending on the number of pages involved, requests in each queue are processed on a "first-in/first-out" basis, and reasonable progress has been made in reducing the backlog of requests; while declining to grant the FBI the length of stay it requested under (impliedly) the new statutory provisions, grants a stay of until June 30, 2000, at which time the FBI must file a status report with the court; court encourages plaintiff to work with the FBI to modify the scope of his request in order to place it in a smaller queue; plaintiff, a news reporter, is denied expedited treatment of his request because under (impliedly) the new statutory provisions, he has not demonstrated that life, personal safety, or substantial due process will be jeopardized if his request is not processed immediately).

Billington v. Dep't of Justice, 11 F. Supp. 2d 45 (D.D.C. 1998) (Exemption 1 [E.O. 12958]: in this FOIA case involving over 40,000 documents, finds that while agency may have previously disclosed case characters, which represent intelligence activities and categories of information, if they were disclosed in this case the aggregate result would reveal foreign government information, intelligence activities, or foreign relations activities and thus damage national security; plaintiff has not demonstrated that information about the FBI's surveillance efforts, its case numbers, and specific intelligence investigations are in the public domain; FBI's affidavit demonstrates that it properly withheld foreign government information) (Exemption 2 "low": routing information is purely internal and was properly withheld; two small examples of information improperly withheld under this exemption does not warrant a complete review of all Exemption 2 redactions; "When documents are released within two years of their original exemption claims, a district court must examine closely the initial claims.") (Exemption 7(C): protects identities of third parties interviewed and identifying information about them, including file numbers, addresses, telephone numbers, and criminal-record information; individuals' privacy interests outweigh the public interest in disclosure, even where informant appeared in court or was interviewed by the media; privilege is not waived merely just because plaintiff had access to unredacted versions of the documents at issue; agency properly withheld names of 2 individuals who provided privacy waivers to plaintiff, because release of their names would allow plaintiff to uncover the identity of the person who provided the information; agency must disclose information about one individual for whom plaintiff has provided the appropriate death certificate, if the public interest merits disclosure; agency must release information which it had previously disclosed to another FOIA requester who provided the FBI with general privacy waivers) (waiver of exemption: an agency is not compelled to release information just because it may have been disclosed previously or because plaintiff might be able to determine withheld information) (Exemption 7(D): affidavits submitted by FOIA Specialists assigned to review FOIA requests are sufficient in invoking Exemption 7(D); FBI demonstrated that some sources were given express promises of confidentiality; in FOIA cases involving the processing of a large number of documents, the court will not find that the agency acted in bad faith when one document was incorrectly redacted; agency demonstrated that for some sources an implied promise of confidentiality could be inferred because of the violent nature of the group under investigation; an implied confidential relationship can be established between the FBI and foreign governments that solicit information from it, but in this instance the FBI must demonstrate that this foreign government is a "confidential source"; FBI properly withheld information from sources who were confidential at the time, even if they later testified) (in camera inspection: in camera inspection is not necessary because the FBI's affidavits are sufficient; Department of State must submit interview notes for in camera inspection because it has not demonstrated that information was properly withheld under Exemption 6) (referral of request to another agency: FBI must submit an affidavit reporting on the status of documents referred to other agencies for processing, in order to ensure that the referral agencies are complying on a timely basis) (discovery in FOIA litigation: plaintiff's request for discovery is denied because the CIA has shown good faith in its processing and its search) (Vaughn Index: CIA's Index is reasonably specific and provides sufficient information about the documents and the information withheld; CIA must submit an affidavit disclosing the review status of one document; FBI must submit a Vaughn Index within 20 days for specified documents in its internal security files).

Boyle v. Comm'r, No. 98-0716 (D. Ariz. Dec. 7, 1998) (dismisses FOIA action because of plaintiff's failure to prosecute).

Bryce v. Overseas Private Inv. Corp., No. A-96-595 (W.D. Tex. Sept. 28, 1998) (Vaughn Index: an agency may submit a revised Index at any time prior to the summary judgment hearing) (exhaustion: plaintiff has not exhausted his administrative remedies; agency responded to his FOIA request after expiration of the statutory time period, but before plaintiff filed suit; since plaintiff limited his appeal to Exemption 5 issues, he has not exhausted his administrative remedies with respect to information withheld under Exemption 4; where plaintiff's appeal did not claim that any exemption was wrongly invoked, plaintiff failed to preserve any issues for this lawsuit) (Exemption 5: portions of factfinding report prepared by an outside consultant are not deliberative and must be released; within 60 days, defendant may submit information to the court so that it can determine if Exemption 4 is applicable; photographs of an Indonesian mine are factual and must be disclosed).

Buckner v. IRS, 25 F. Supp. 2d 893 (N.D. Ind. 1998) (adequacy of agency affidavit: IRS's detailed affidavits provide the court with an adequate factual basis to rule on the summary judgment motion) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects third-party tax return information) (Exemptions 3 [26 U.S.C. 6103(b)(2)] and 7(E): release of 17-year-old DIF scores "could compromise the integrity of the IRS and its regulatory function by allowing individuals to manipulate their DIF scores and possibly avoid a well-deserved audit") (Exemption 7(E): the disclosure of another IRS investigative technique would reveal a vulnerability in IRS procedures) (Exemption 5: the attorney work-product privilege protects documents created, received, or collected by the IRS in anticipation of litigation with the plaintiff; IRS affidavits demonstrate that the attorney-client privilege protects records that are communications among attorneys or between IRS personnel and agency attorneys).

Bureau of Nat'l Affairs, Inc. v. IRS, 24 F. Supp. 2d 90 (D.D.C. 1998) (orders in camera inspection of advanced pricing agreements, where agency has apparently attempted to uphold the application of exemptions without a Vaughn Index; court will then decide whether to allow parties to brief the issues resulting from this examination).

Campos v. INS, 32 F. Supp. 2d 1337 (S.D. Fla. 1998) (jurisdiction: plaintiff, who alleges that defendant violates the FOIA by using "secret standards," must first have submitted a FOIA request with the agency; defendant may again move to dismiss this case after discovery has been conducted as to whether plaintiff submitted such a request).

Carlton v. Dep't of the Interior, No. 97-2105 (D.D.C. Sept. 3, 1998) (Exemption 5: agency's Vaughn Index does not adequately explain why 271 documents were withheld in whole or in part under the deliberative process privilege; government does not meet its burden of showing that segregable portions have been released; documents must be released within 20 days; agency's Vaughn Index does not adequately explain why 12 documents were withheld under the attorney-client privilege; documents must be released within 20 days) (Vaughn Index: government has been given more than ample opportunity to provide an adequate Vaughn Index; the procedural history of this case demonstrates "intransigence and an ongoing pattern of delay on the part of the government").

Chiron Corp. v. NTSB, 27 F. Supp. 2d 257 (D.D.C. 1998) (jurisdiction: because plaintiff never requested information under the FOIA, and the FAA treated its petitions as generalized requests for public disclosure, the FOIA does not apply here).

Coleman v. FBI, 13 F. Supp. 2d 75 (D.D.C. 1998) (Exemption 2 "low" and "high": on in camera inspection, finds that the exemption protects source symbols and file numbers because they are "predominantly internal" and disclosure could potentially help criminals avoid legal intervention) (Exemption 7(C): protects the identities of FBI agents, FBI investigative and support personnel, federal government employees, subjects of investigative interest, informants, nonfederal law enforcement officials, third parties, commercial and state or local government employees, and informants and autopsy records and photographs of the victims; an individual who testifies at trial does not waive his privacy interests beyond the scope of the trial record) (Exemption 7(D): given the violent nature of the crimes for which plaintiff has been convicted (murder, rape, and kidnapping), it is reasonable to assume that individuals who were willing to disclose information to the FBI about him had implied assurances of confidentiality; an individual who testifies at trial does not waive his privacy interests beyond the scope of the trial record; information that confidential sources provided to nonfederal agencies that was released to the FBI maintains its confidential status to the extent that there was initially an implied assurance of confidentiality) (Exemption 7 (threshold): threshold requirement met by information compiled by the FBI that relates directly to its law enforcement responsibilities) (Exemption 7(E): protects the "manner and circumstances" of various techniques that are not generally known to the public, including behavioral science analysis, the use and rating of investigative techniques, and polygraph examinations) ("reasonably segregable": "reasonably segregable," nonexempt information has been released).

Colon v. Executive Office for United States Attorneys, No. 98-0180, 1998 WL 695631 (D.D.C. Sept. 29, 1998) (exhaustion: plaintiff did not exhaust his administrative remedies with respect to the Executive Office for United States Attorneys or the BATF because he did not file administrative appeals and the agencies responded to his FOIA request within the statutory time period) (Exemption 2 "low": protects G-DEP codes and NADDIS numbers) (Exemption 7(C): protects the identities of informants, subjects of investigative interest, third parties, and federal and state employees, including DEA employees and Special Agents) (Exemption 7(D): protects information provided to DEA by confidential informants under express promises of confidentiality) (Exemption 7(F): protects the names of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers).

Cooley v. Comm'r, No. C-98-20150 (N.D. Cal. Sept. 22, 1998) (attorney fees: the FOIA does not provide for the recovery of damages; pro se litigants may not recover attorney fees under the FOIA in the Ninth Circuit; grants plaintiff $182 in litigation costs because he has substantially prevailed).

Cottone v. FBI, No. 94-1598 (D.D.C. July 22, 1998) (Exemption 3 [18 U.S.C. 2510-2521]: protects wiretapped recordings) (waiver: a prosecutor's disclosure of electronic surveillance tapes to plaintiff and his counsel during trial does not constitute waiver of Exemption 3), reconsideration denied (D.D.C. Oct. 7, 1998) (Exemption 3 [18 U.S.C. 2510-2521]: protects wiretapped recordings) (waiver: to obtain tapes recorded by the FBI under Title III and introduced into evidence at trial, plaintiff must demonstrate that the tapes were actually played in the courtroom, thus constituting waiver of Exemption 3).

Council for a Livable World v. Dep't of State, No. 96-1807 (D.D.C. Nov. 23, 1998) (waiver: the court's January 21, 1998 ruling that under the Export Administration Act the government may withhold only information that specifically concerns a license application represents an interim change in the applicable legal doctrine and allows the agency to raise Exemption 1 for this information for the first time at this stage of the litigation; agency may not use Exemption 7, because it did not to show that it failed to raise this exemption "through pure mistake" or that disclosure of this information would compromise the national security) (Exemption 1 [E.O. 12,958]: State Department's Information and Privacy Coordinator and Director of the Office of Information Resources Management Programs and Services does not have the authority to classify documents under E.O. 12,958; an agency may classify information for which it has already received a FOIA request only "with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official" delegated this authority; documents must be disclosed) (Exemption 3 [50 U.S.C. App. 2411(c)]: agency must explain why 3 documents are incomplete; agency must specifically describe information withheld from 12 documents and 6 telegrams, while being cognizant of the fact that it appears to have withheld more information than it described; agency must disclose information from 2 documents because agency's descriptions do not justify the withholdings; because it is impossible to tell whether agency has withheld more information than it described from 36 telegrams and one report, court will review in camera a random sample of these telegrams and predicate report within 10 days).

F&H Barge Corp. v. D&H Corp., 46 F. Supp. 2d 453 (E.D. Va. 1998) (discovery/FOIA interface: plaintiff cannot invoke the FOIA as a barrier to relevant discovery requests for information in the possession of the United States Coast Guard).

Felsen v. HHS, No. 95-975 (D. Md. Sept. 30, 1998) (Exemption 6: disclosure of the identities of employee-complainants, witnesses, and authors of letters to the government and information regarding employees' job performance will not let citizens know "what their government is up to") (Exemption 5: the deliberative process privilege protects a noncomplainant employee's opinion of a hotline complaint investigation) (duty to search: agency has conducted a reasonable search in response to plaintiff's FOIA request).

Gansterer v. Dep't of Justice, No. 95-1614 (C.D. Cal. July 6, 1998) (magistrate's recommendation) (Exemption 3 [Rule 6(e)]: protects grand jury materials which contain the names of witnesses who testified, the substance of the grand jury testimony, the exhibits presented, and the strategy and direction of the investigation of plaintiff) (Exemption 5: the attorney work-product privilege protects witness lists, evaluations and opinions, analyses of evidence, and trial strategy because they were all prepared in anticipation of the prosecution of plaintiff; the deliberative process privilege protects predecisional discussions among Assistant United States Attorneys and FBI agents regarding the decision to prosecute plaintiff) (Exemption 7 (threshold): requirement met by the Executive Office for United States Attorneys because it has a law enforcement function in that it is charged with enforcing the laws of the United States and prosecuting those who violate those laws) (Exemption 7(C): protects information that would identify FBI personnel and other law enforcement personnel who participated in the investigation and prosecution of plaintiff and third parties and informants) (Exemption 7(D): agency has shown that due to the nature of the crimes being investigated (narcotics trafficking and money laundering), sources provided information under circumstances from which an expectation of confidentiality can be inferred; FBI has demonstrated that other sources were given express promises of confidentiality), adopted (C.D. Cal. Aug. 24, 1998).

Garren v. Dep't of the Interior, No. 97-273 (D. Or. Nov. 17, 1997) (magistrate's recommendation) (Exemption 4: defendant has failed to demonstrate that the release of information concerning commercial rafting trips through the Grand Canyon will cause substantial competitive harm; because the Grand Canyon rafting concessions is a strictly limited market, the existing 16 concessioners have little reason to fear involuntarily replacement or a loss of market share; existing concessioners have 7-year contracts with the Park Service which provide exclusive rights to offer commercial rafting in the Grand Canyon; disclosure of information would not diminish a concessioner's chance of renewing its contract; most of the withheld information is available from other sources; sales prices for concessions that were sold during the past 7 or 8 years must be released; inappositely applying DOD v. FLRA to this Exemption 4 case, finds that the disclosure of this information would contribute significantly to the public understanding of the operations of the federal government), adopted (D. Or. Jan. 8, 1998).

Gen. Elec. Co. v. EPA, 18 F. Supp. 2d 138 (D. Mass. 1998) (Exemption 5: the deliberative process may not have been waived when federal agency and 2 state agencies shared information in the course of a coordinated regulatory effort; federal agency was obligated to consult with the state agencies and to the extent that the information was part of the federal deliberative process and did not merely inform the states of the status of the regulatory efforts, that agency may withhold the information; in order to apply this ruling, agency may wish to make certain disclosures or to further supplement its Vaughn) (Exemption 7 (threshold): the decision whether or not to list the Housatonic River as a Superfund site is not a law enforcement action; agency has a reasonable expectation that enforcement actions will ultimately ensue from this listing).

Gilmore v. DOE, 33 F. Supp. 2d 1184 (N.D. Cal. 1998) (jurisdiction: court has jurisdiction over plaintiff's claim that DOE has a pattern and practice of delay in processing FOIA requests; plaintiff has an independent cause of action even though the requested documents were ultimately found properly withheld, because an agency's failure to comply with the time limits of the FOIA "is, by itself, a violation of the FOIA"; plaintiff has standing because DOE's failure to timely respond is an "injury"; grants plaintiff's expedited motion for discovery).

Goff v. Dillon, No. 98-2042, 1998 U.S. Dist. LEXIS 11130 (S.D.N.Y. July 23, 1998) (not an "agency" defense: the FOIA does not apply to state or local agencies, individuals, or private companies).

Goulding v. IRS, No. 97 C 5628 (N.D. Ill. July 30, 1998) (on in camera inspection of documents together with agency's Vaughn Index, finds that IRS properly withheld information under Exemption 3 [26 U.S.C. 6103(a)] and Exemption 7(C)).

Grecco v. Dep't of Justice, No. 97-0419 (D.D.C. Aug. 24, 1998) (under the amended FOIA, partially grants the FBI an Open America stay until December 31, 2000; the FBI has shown that "exceptional circumstances" exist and that it is processing FOIA requests with "due diligence").

Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3 (D.D.C. 1998) (Exemption 1 [E.O. 12,356]: court will evaluate the propriety of agencies' withholdings under E.O. 12,356; if these withholdings are determined to be improper, on remand the agency will be ordered to evaluate the documents under E.O. 12,958; CIA's and FBI's Vaughn Indices are insufficient to allow the court to evaluate their Exemption 1 claims; within 21 days, parties must submit a schedule for the filing of supplemental Vaughn Indices) (Exemption 3 [Rule 6(e)]: FBI has demonstrated that release of transcripts of taped conversations would show the "substance of testimony" and "direction and strategy" of the grand jury investigation) (Exemption 5: the deliberative process privilege protects a series of questions and issues which were to be addressed by agency decisionmakers, but which were never used, and a note discussing a policy issue, because disclosure would stifle candid discussion; the deliberative process privilege does not protect a document that merely mentions a proposed draft; CIA must submit a supplemental affidavit to demonstrate that a discussion of legal actions being considered and factual information about negotiations can properly be withheld under the deliberative process privilege) (Exemption 7(C): FBI properly refused to confirm or deny the existence of records linking named individuals with the taking of American hostages in Iran because disclosure would not shed light on agency's performance of its statutory duties and it would associate the individuals named with criminal activity; because plaintiff has not offered evidence that the FBI has "ready access" to data banks indicating whether individuals mentioned in its records are dead or alive, he may not attack FBI's Exemption 7(C) redactions on that ground; when plaintiff supplemented his initial FOIA request with privacy waivers, the FBI was not obligated to re-review its redactions under this exemption; protects the identities of third parties from FBI surveillance tapes) (Exemption 7(D): Customs Service has met its burden under Landano because its sources either expressly requested confidentiality or told Customs agents that they had been threatened) (referral of request to another agency: agencies must submit declarations to justify redactions from the referred documents; Customs Service must produce a Vaughn Index for all the missing referred documents; Justice Department must submit a new Vaughn Index that accounts "in a comprehensible fashion" for 8,737 pages referred to other agencies) (Vaughn Index: Justice Department must submit a new Vaughn Index that describes information withheld in sufficient detail to allow meaningful review by the court and plaintiff) (duty to search: the CIA and the State Department have demonstrated that they have conducted searches reasonably calculated to uncover all documents responsive to plaintiff's FOIA request, even though they did not uncover certain records that plaintiff believes exist; because the Customs Service has not demonstrated that it conducted a reasonable search, it must either perform a new search for documents or submit a new Vaughn Index that describes its search in sufficient detail) (exhaustion: because the administrative proceeding in this case occurred before Oglesby, plaintiff is given 30 days from the date of this order to appeal its FOIA request to FBI Headquarters) (discretionary disclosure: an agency should not be penalized by a ruling that it waived its exhaustion defense where it makes a discretionary disclosure after the time for an administrative appeal has expired).

Greene v. Wieking, No. C 98-01393, 1998 U.S. Dist. LEXIS 11714 (N.D. Cal. July 31, 1998) (agency: dismisses plaintiff's FOIA claim against the Clerk of the United States District Court for the Northern District of California; courts are not "agencies" for purposes of the FOIA).

Hale v. Dep't of Justice, No. 89-1175-T (W.D. Okla. Aug. 20, 1998) (Exemption 7(D): in this FOIA case concerning investigatory records that relate to a violent crime committed in a small community, on remand court examined defendant's in camera submissions, accompanied by a Vaughn Index, and issues a public opinion and also issues a more detailed opinion under seal; finds that an implied promise of confidentiality can be inferred for plaintiff's friends and relatives, the victim's friends and relatives, witnesses, law enforcement personnel, prison inmates, and bank officials, given the nature of the information related to the crime).

Hall v. Dep't of Justice, 26 F. Supp. 2d 78 (D.D.C. 1998) (Exemption 1 [E.O. 12,958]: FBI was not required to take steps to exempt documents from the 1940s and 1950s relating to the investigation of 3 intellectuals from automatic declassification pursuant to the new Executive Order; FBI has until the year 2000 to make the necessary determinations) (Exemption 7 (threshold): citing Third Circuit's decision in Davin v. Department of Justice, finds that the FBI has not demonstrated that these records were compiled for law enforcement purposes) (Exemption 7(D): FBI's generalized assertion that crimes relate to Communist Party activities is insufficient to support an inference of confidentiality; FBI has until October 28, 1998 to supplement the record) (Exemption 2 "low" and "high": protects informant symbol numbers because they are internal and disclosure would risk circumvention of agency law) (Exemption 7(C): if 50 years have passed since the date of the document or the event it describes, it will be presumed that the informant is dead; FBI has until October 28, 1998 to supplement the record).

Hayes v. Dep't of Labor, No. 96-1149, 1998 U.S. Dist. LEXIS 14120 (S.D. Ala. June 18, 1998) (magistrate's recommendation) (exhaustion: plaintiff has not exhausted his administrative remedies because he did not appeal defendant's untimely response to his FOIA request) (Exemption 7 (threshold): requirement met by records compiled by OSHA safety compliance officers investigating work conditions at a work site where a death had occurred) (Exemptions 7(C) and 7(D): on in camera inspection, finds that these exemptions protect the identities of employee-witnesses, with the exception of 2 documents which should be released) (Exemption 5: the deliberative process privilege protects documents that contain predecisional opinions and where disclosure would reveal agency's internal decisionmaking process), adopted (S.D. Ala. Aug. 10, 1998) (adopts, with modifications, magistrate's June 10, 1998 recommendation, which held that the agency properly withheld information under Exemptions 5, 7(C), and 7(D)).

Hazel v. Dep't of Justice, No. 95-01992 (D.D.C. July 2, 1998) (Exemption 2 "low": protects a confidential-source file number, a confidential-source symbol number, and a file number of a third party because they are "predominantly internal") (Exemption 7 (threshold): requirement met by records compiled during an FBI investigation into the murder of an inmate at Lorton Reformatory) (Exemption 7(C): protects the identities of FBI Special Agents and support personnel, informants, subjects of investigative interest, local law enforcement officers and employees, third parties, and D.C. Detention Center officers) (Exemption 7(D): based on the brutality of the crime and the close relation that inmates and staff personnel had to the crime, finds that individuals who volunteered information to the FBI would have done so only with an expectation of confidentiality) (Exemption 7(F): protects the identities of inmates and staff members who assisted the FBI's investigation) ("reasonably segregable": because the FBI failed to describe documents withheld under Exemptions 7(C) and 7(F) with reasonable specificity, orders the FBI to file with the court a supplemental Vaughn Index by August 1, 1998), subsequent opinion (D.D.C. Oct. 16, 1998) ("reasonably segregable": defendant has released all "reasonably segregable," nonexempt portions with the exception of four pages withheld in their entireties) (Exemptions 7(C) and 7(F): do not protect the names of Corrections Officers from the D.C. Department of Corrections Officer's Lunch Log Sheet; do protect the names of officers contained in the Department of Corrections Dorm Log Book; do not protect descriptions of activities from the Dorm Log Book).

Hillman v. Comm'r, No. 1:97-760, 1998 U.S. Dist. LEXIS 12431 (W.D. Mich. July 10, 1998) (discovery in FOIA litigation: grants defendant's motion for a protective order because none of plaintiff's interrogatories and requests for information pertain to the specific issues in this FOIA action) (summary judgment: defendant is entitled to summary judgment on all plaintiff's FOIA claims because its affidavits demonstrate that it has provided plaintiff with all documents responsive to his FOIA requests) (not an agency record: FOIA provides the public access to information in the control of the agency at the time a FOIA request is made; agency is not required to reconstruct documents; agency need not answer questions or create explanations of underlying agency action).

Hronek v. DEA, 16 F. Supp. 2d 1260 (D. Or. 1998) (adequacy of agency affidavit: affiants for both DEA and Executive Office for the United States Attorneys (EOUSA) have had personal involvement in processing plaintiff's FOIA request and meet the personal knowledge requirement of Rule 56) (duty to search: DEA has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request) ("reasonably segregable": DEA has failed to explain the process by which it made segregability determinations; for the most part, EOUSA has explained the process by which it made its determinations; further documentation must be submitted to the court within 30 days) (referral of request to another agency: because the court has not received declarations from 2 of the 3 referral agencies, orders the defendant agencies to ensure that the court receives the necessary attestation) (Exemption 2: protects G-DEP numbers and NADDIS codes, which plaintiff does not challenge) (Exemption 7(C): in the absence of evidence of government wrongdoing, finds that the exemption would protect information that would identify informants, government employees, third parties, and subjects of investigative interest, if agency's declarations were sufficient and specific; further documentation must be submitted to the court within 60 days) (Exemption 7(D): agency has not provided enough information to support its claim that express or implied promises of confidentiality were given to sources; further documentation must be submitted to the court within 60 days) (Exemption 7(F): protects identities of DEA Special Agents, Supervisory Agents, and other law enforcement officers, as long as this information is not presently in the public domain) (Exemption 3 [Rule 6(e)]: protects grand jury transcript; with respect to 20 pages of subpoenas EOUSA seeks to withhold, further documentation must be submitted to the court within 60 days; [18 U.S.C. 2510]: protects wiretap information, which plaintiff does not challenge) (Exemption 5: without specification, finds that EOUSA properly withheld 4 documents under the attorney-client and deliberative process privileges; EOUSA's remaining Exemption 5 claims are insufficient and further documentation must be submitted to the court within 60 days) (Exemption 6: EOUSA properly used this exemption to protect the names, addresses, and telephone numbers of third parties; in some instances, the agency must better explain its segregability determinations) (waiver: agency must explain whether prior disclosures made in connection with plaintiff's criminal case may have waived its claims of exemption).

Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., No. 98-4608, 1998 U.S. Dist. LEXIS 15333 (S.D.N.Y. Sept. 30, 1998) (duty to search: "measured by any standard," agency's search for records responsive to plaintiff's FOIA request was "thorough and accurate") (Vaughn Index: with respect to information withheld under Exemption 4, court finds that "it would be difficult to imagine a more detailed analysis of the information without revealing the information itself") (personal records: notes taken by Associate General Counsel during a telephone conference call are "personal" records; notes were taken on his own initiative and were not shared with any other agency employee nor placed in an agency file).

Jones v. Runyon, 32 F. Supp. 2d 873 (N.D. W. Va. 1998) (duty to search: agency conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) ("no records" defense: agency need not create documents or "make explanations" in response to a FOIA request).

Judicial Watch, Inc. v. Dep't of Commerce, 34 F. Supp. 2d 47 (D.D.C. 1998) (discovery in FOIA litigation: in this FOIA case where the requester sought records concerning an alleged campaign-finance scandal, denies government's motion for summary judgment against itself; because the "record of misconduct in this case is so egregious and so extensive," by "merely granting" agency's motion for summary judgment and ordering a new search, the agency would not be held "fully accountable for the serious violations that it appears to have deliberately committed" "in knowing violation of the FOIA"; orders commencement of a new, legally adequate document search and allows further discovery "under the rigorous supervision of a Magistrate Judge" concerning the Department of Commerce's "illegal" destruction of records and "illegal" removal of documents in its custody).

Judicial Watch, Inc. v. Dep't of Justice, No. 97-2089 (D.D.C. July 14, 1998) (jurisdiction: because Justice Department's FOIA regulations state that a request not addressed to the appropriate component will not be deemed to have been received until that component has actually received it, plaintiff filed its complaint before the statutory time had lapsed for 8 Justice components to respond; because plaintiff has not exhausted its administrative remedies, complaint dismissed for lack of jurisdiction with respect to these 8 Justice components) (fee waiver: disclosure of information concerning Ruby Ridge, Waco, and the Atlanta, Georgia bombings would educate the public about the operations of the Justice Department; plaintiff has not demonstrated that it has the "ability and intention to effectively convey information to the general public" or the ability to disseminate information to the general public; mere status as a "public interest" group does not entitle plaintiff to a fee waiver; fee waiver denied).

Judicial Watch, Inc. v. Dep't of Justice, No. 97-2869 (D.D.C. Aug. 25, 1998) (fee waiver: information characterized by the court as generally concerning Attorney General Janet Reno's decision not to appoint an independent counsel to investigate President Clinton's campaign finance activities is "not necessarily all new information," but it has "high potential" for contribution to the public's understanding of government operations and will "enhance the public's understanding by shedding light on the Attorney General's decision"; "by requesting the records for the purpose of litigation, the plaintiff serves the public interest by exposing government actions through litigation and increasing the public's knowledge of government activities"; fee waiver granted) ("exceptional circumstances"/"due diligence": without clearly applying new statutory standards, finds that FBI has demonstrated "due diligence" by assigning and processing all requests on a "first in/first out" basis; grants FBI an Open America stay of proceedings until June 2000) (expedited processing: the fact that plaintiff seeks documents that are of public importance and that arguably require public dissemination while the Clinton Administration is still in office is not a proper basis for expedited processing).

Judicial Watch v. HHS, 27 F. Supp. 2d 240 (D.D.C. 1998) (duty to search: plaintiff's "bare suspicion" is insufficient to call into question the adequacy of agency's search and the truthfulness of its affidavit; agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 5: the deliberative process privilege protects documents that agency has shown to be both predecisional and deliberative) ("reasonably segregable": on in camera inspection, finds that "reasonably segregable" material was released from all documents withheld under Exemption 5, with one exception; as a result of in camera inspection defendant must release 4 paragraphs from one document to plaintiff; agency released all segregable information from the documents withheld under Exemptions 4 and 6 (uncontested); opining that submission of disclosed records with small redactions should be sufficient to show no segregable nonexempt material withheld, but otherwise a "burdensome" affidavit would be required).

Judy Diamond Assocs. v. IRS, No. 96-02700, 1998 U.S. Dist. LEXIS 19534 (D.D.C. Oct. 21, 1998) (duty to search: defendant conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).

Kansi v. Dep't of Justice, 11 F. Supp. 2d 42 (D.D.C. 1998) (fee waiver: fee waiver denied; plaintiff did not raise this issue in his complaint, and in his original FOIA request he did not explain what public interest would be served by a fee waiver) (Exemption 7 (threshold): documents compiled before the commission of a crime and documents compiled by a federal agency with no law enforcement authority meet the threshold requirement because they were assembled by the FBI when it investigated plaintiff with respect to the murder of 2 CIA agents in Virginia) (Exemption 7(A): even though plaintiff has already been convicted of this crime, his case is still on appeal in state court and the "potential for interference with witnesses and highly sensitive evidence" still exists; disclosure from a federal law enforcement agency to a state prosecutor is not waiver).

Kern v. FBI, No. 94-0208 (C.D. Cal. Sept. 14, 1998) (proper party defendant: individuals are not proper party defendants under the FOIA) (Exemption 1 [E.O. 12,356]: FBI's Vaughn Index fails to demonstrate that the release of information concerning intelligence activities would cause damage to the national security; FBI must submit a supplemental Vaughn within 120 days under the criteria of E.O. 12,958) (Exemption 7(C): FBI's Vaughn Index fails to demonstrate that the exemption protects the identities of FBI Special Agents and support personnel, subjects of investigative interest, informants, and third parties; FBI must submit a supplemental Vaughn Index within 120 days) (Exemption 7 (threshold): Index fails to adequately explain the law enforcement purpose behind an FBI investigation involving espionage and a Soviet defector) (Exemption 2 "low": protects permanent source symbol numbers, temporary source symbol numbers, and file numbers) (Exemption 7(D): FBI has established that some sources received express promises of confidentiality, "except for the lack of specificity that such information was compiled for law enforcement purposes"; FBI has not demonstrated that some sources received implied promises of confidentiality; FBI must submit a supplemental Vaughn within 120 days).

Kirk v. United States, No. 96-1415, 1998 U.S. Dist. LEXIS 14005 (D. Ariz. Aug. 14, 1998) (Exemption 3 [26 U.S.C. 6130(a)]: protects third-party tax return information) (duty to search: defendant has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Kirk v. United States, No. 97-648, 1998 U.S. Dist. LEXIS 18534 (D. Ariz. Oct. 29, 1998) (because plaintiff has failed to respond, grants IRS's motion for summary judgment under a local rule).

Kyles v. FDIC, No. 3:97-622 (D. Conn. Sept. 3, 1998) (mootness: case dismissed as moot because plaintiff has received all documents he requested under the FOIA).

LaRouche v. Dep't of Treasury, No. 91-1655 (D.D.C. Aug. 24, 1998) (duty to search: IRS has conducted searches reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Law Firm of Tidwell Swain & Assocs. v. Herrmann, No. 3:97-2097, 1998 WL 740765 (N.D. Tex. Oct. 16, 1998) (Exemption 5: "Court is not inclined to rule on the privileged status" of 5 withheld documents "based on a single affidavit"; defendant must submit the withheld records for in camera inspection) (duty to search: a material fact issue exists as to whether the defendant uncovered all documents responsive to plaintiff's FOIA request).

Leebove v. Dep't of Justice, No. 96-72463, 1998 U.S. Dist. LEXIS 12364 (E.D. Mich. July 13, 1998) (duty to search: FBI has demonstrated that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request, even though it did not find 3 documents identified by plaintiff).

Local 32B-32J, Serv. Employees Int'l Union v. GSA, No. 97-8509, 1998 WL 726000 (S.D.N.Y. Oct. 15, 1998) (jurisdiction: court has subject-matter jurisdiction here where agency could find no documents responsive to plaintiff's FOIA request only because its reading of plaintiff's FOIA request was too narrow) (Exemption 3 [Rule 6(e)]: protects grand jury exhibits and the identities of grand jury witnesses) (Exemption 7 (threshold): requirement met by records compiled by GSA's Inspector General in connection with an investigation into possible violations of law) (Exemption 7(A): applying D.C. Circuit precedent in Bonner, finds that agency's generic affidavit demonstrates that agency properly withheld records where a law enforcement proceeding was pending at the time of the request, even though it no longer is contemplated at this time) (Exemption 7(C): categorically protects the identities of third parties, subjects of investigative interest, informants, and law enforcement officers) (in camera inspection: in camera inspection is unnecessary because agency's affidavit is sufficiently detailed).

Long v. Dep't of Justice, 10 F. Supp. 2d 205 (N.D.N.Y. 1998) (Vaughn Index: by August 7, 1998, defendant must provide plaintiff with a Vaughn Index that adequately describes each record and record portion that has been withheld and details the agency's claims for withholding the information) (discovery in FOIA litigation: denies plaintiff's motion for discovery in part, even though agency's affidavits do not provide sufficient information for the court to determine the adequacy of its searches; after the Vaughn Index has been prepared and plaintiff's interrogatories have been answered, plaintiff will be in a better position to respond to defendant's motion for summary judgment).

Looney v. Walters-Tucker, 20 F. Supp. 2d 70 (D.D.C. 1998) (exhaustion: plaintiff failed to exhaust his administrative remedies because he did not appeal the initial FOIA responses of the Office of Thrift Supervision) (mootness: plaintiff's FOIA request is not moot because the FDIC, after searching for records for the wrong bank, failed to demonstrate that it did not have any records concerning the bank of interest to plaintiff; agency must file a renewed dispositive motion and affidavit by October 24, 1998).

Los Alamos Study Group v. DOE, No. 97-1412 (D.N.M. July 22, 1998) (agency records: records are "agency records" within the meaning of the FOIA; contract under which the University of California manages Los Alamos National Laboratory provides that all records acquired or generated in the performance of the contract are the property of the government and are to be disposed of as the government directs; government must provide final responses to plaintiff's FOIA requests within 20 days).

Lowe v. FBI, No. 96-512-B (E.D. Okla. July 31, 1998) (where agency found no records in its search, which was based on information provided by plaintiff, finds that agency did not "improperly withhold" any records from plaintiff).

Melton v. Orange County Democratic Party, No. 1:96-517, 1998 U.S. Dist. LEXIS 17299 (M.D.N.C. Aug. 5, 1998) (agency: neither the Orange County Democratic Party nor the Orange County Board of Elections is an "agency" for purposes of the FOIA).

Narducci v. FBI, No. 98-0130 (D.D.C. July 17, 1998) (in accordance with the proceedings at the status conference on this date and in one of the first stays clearly granted under the new statutory standards, grants the defendant an Open America stay of proceedings until May 2001, because it has made "reasonable progress in reducing its backlog" of pending requests), reconsideration denied (D.D.C. Aug. 17, 1998).

Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice, No. 97-372 (D.D.C. July 22, 1998) (Exemption 5: draft Inspector General's (OIG) report on the state of the FBI forensic laboratory and its employees meets the "inter- or intra-agency requirement," despite the fact that it was circulated to persons not in the government for review and comment as part of the deliberative process; "the fact that portions of the Draft Report were released to defendants in criminal cases in compliance with the government's constitutional obligations under Brady and Giglio does not make the Draft Report 'available by law' to parties in litigation with the agency for purposes of Exemption 5 protection" and does not constitute waiver; draft report, which contains investigative findings and recommendations, is a "quintessential predecisional document" because it was "generated before the adoption of the OIG's position in order to assist it in arriving at its final decision"; the deliberative process privilege protects this draft report because its disclosure would reveal the process by which the agency arrived at its final statement and the final report will provide a basis for future public policy decisions; release of those portions of the draft report, which are factual and which were not included in the final report, would disclose OIG's judgmental process; disclosure of some comments from outside parties and agency's replies in the final report does not waive the exemption's protection for the remaining comments and replies; the unauthorized, accidental disclosure of a portion of the draft report does not constitute a waiver of Exemption 5 protection).

Neely v. FBI, No. 97-0786 (W.D. Va. July 27, 1998) (expedited processing: grants plaintiff's motion for expedited processing; plaintiff has alleged, and has laid the groundwork for proving, that a witness at his criminal trial gave false testimony that was instrumental in convicting him; plaintiff has a pending motion for a new trial; plaintiff has made specific allegations that relate to documents in the FBI's files; without even referencing the expedited processing provisions of EFOIA amendments, orders FBI to begin processing plaintiff's FOIA request by August 31, 1998).

Nowak v. IRS, No. 97-930 H, 1998 U.S. Dist. LEXIS 12461 (S.D. Cal. July 20, 1998) (duty to search: agency has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request) (Exemption 7(E): disclosure of portions of the Internal Revenue Manual and portions of agency's Automated Data Processing and Integrated Data Retrieval System Information Handbook "would significantly hamper defendant's tax collection and law enforcement functions, and facilitate taxpayer circumvention" of tax laws).

Ortiz v. Dep't of Justice, No. 97-140 (M.D. La. Aug. 25, 1998) (magistrate's recommendation), adopted (M.D. La. Oct. 1, 1998) (Exemption 7(C): protects personal information (including names, initials, telephone numbers, and other identifying information) about FBI personnel, local and foreign law enforcement officers, informants, subjects of investigative interest, and third parties; plaintiff, who wants this information for use in a collateral challenge to his criminal conviction, has not identified a "FOIA-recognized" public interest in disclosure) (Exemption 7(D): without mentioning or applying Landano, finds that the exemption protects information provided by, and that would identify, individuals who provided information to the FBI on a confidential basis, because a promise of confidentiality can be assumed).

Pray v. FBI, No. 95-0380, 1998 WL 440843 (S.D.N.Y. Aug. 3, 1998) (Vaughn Index: defendant's coded Vaughn, while it "may not be a model of clarity," is adequate for plaintiff and the court to assess the applicability of the exemptions to the withheld material; within 60 days, defendant must produce a supplemental Index with respect to withholding 8 audiotapes and one videotape in their entireties) (Exemption 7(C): plaintiff has not demonstrated that defendant improperly withheld entire pages of information under this exemption) (Exemption 7(D): defendant has demonstrated that, in the course of an investigation into the sale and distribution of illegal narcotics, sources provided information to the FBI with expectations of confidentiality).

Prince v. Comm'r, No. C-98-20188 (N.D. Cal. Sept. 23, 1998) (attorney fees: pro se plaintiff who is not an attorney is not entitled to attorney fees; since plaintiff has not substantially prevailed, he may not recover litigation costs).

Pub. Citizen v. Lew, No. 97-2891 (D.D.C. July 14, 1998) (denies agency's motion to dismiss plaintiff's claim for relief concerning agency's failure to comply with certain provisions of the Paperwork Reduction Act and the FOIA that require agencies to maintain directories of their "major information systems"; plaintiff has a right of action under the Administrative Procedure Act).

Quinault Indian Nation v. Gover, No. C97-5625 (W.D. Wash. Oct. 19, 1998) (transcript) (Exemption 6: with respect to information contained in records that are up to 80 years old, finds that an individual's privacy interest in his/her age, date of birth, marital status, and degree of Native American blood and lineage outweighs the public interest in understanding the operations of the Bureau of Indian Affairs when deciding whether a group should be recognized as a Native American tribe; disclosure of this "most private of information" would be a "clearly unwarranted invasion of personal privacy") ("reasonably segregable": because of the privacy issues involved, there is no "reasonably segregable," nonexempt information).

Raulerson v. Reno, No. 95-2053 (D.D.C. Sept. 11, 1998) (on motion for reconsideration, grants defendant an Open America stay of until March 15, 2001 in order to process 19,000 pages responsive to plaintiff's FOIA request).

Reed v. Dep't of Justice, No. 97-2150 (D. Ariz. Nov. 10, 1998) ("exceptional circumstances"/"due diligence": without mentioning the amended FOIA, grants defendant an Open America stay of until May 1, 2000; the FBI has been deluged with a volume of requests for information that is vastly in excess of that anticipated by Congress, and its existing resources are inadequate to meet this demand).

Reg'l Mgmt. Corp. v. Legal Servs. Corp., 10 F. Supp. 2d 565 (D.S.C. 1998) (mootness: defendant's release of requested information mooted the FOIA complaint) (case or controversy: since plaintiff has not shown that it will be harmed by defendant's "policy and practice" of failing to comply with the requirements of the FOIA, no case or controversy exists for the court to decide).

Rivera v. FBI, No. 98-0649 (D.D.C. Dec. 31, 1998) (Exemptions 7(C) and 7(E): finds that information concerning plaintiff's co-defendants was properly withheld because plaintiff has not shown any significant public interest in its release) (duty to search: FBI conducted a reasonable search of its Headquarters; in accordance with the Justice Department's 1998 regulations, the FBI did not search for responsive records in its Miami Field Office and did not inform plaintiff that he would have to submit a separate FOIA request for each field office that he would like searched for records responsive to his FOIA request; because court finds that defendant's form notice implies that a much broader search had been conducted, orders the FBI, within 45 days, to search its Miami Field Office and file a renewed motion).

Rugiero v. Dep't of Justice, 35 F. Supp. 2d 977 (E.D. Mich. 1998) (in camera inspection: denies plaintiff's motion for in camera inspection in those instances where the Vaughn Indices and supporting affidavits are sufficient) (Vaughn Index: agency is required to re-release 31 partially redacted pages with page numbers; pages had been released without page numbers, making it very difficult for plaintiff to compare the documents to the Vaughn Index) (Exemption 3 [Rule 6(e)]: protects transcripts of grand jury testimony) (Exemption 7(C): on in camera inspection, finds that because agency previously released copy of a letter to plaintiff's criminal trial counsel, the agency must now provide an unredacted copy of this letter to plaintiff, because the privacy interests at stake "do not outweigh plaintiff's right to the information") (Exemption 5: the attorney work-product privilege protects factual material contained in a letter written by a government attorney) (duty to search: defendant conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (adequacy of request: because plaintiff can verify that he sent the Tax Division a FOIA request and a verification of identity, the Tax Division is ordered to process plaintiff's FOIA request immediately).

Russell v. Barr, No. 92-2546, 1998 U.S. Dist. LEXIS 14515 (D.D.C. Aug. 28, 1998) (duty to search: FBI has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request; agency "need only exhaust those leads that are 'both clear and certain' from the initial request") (Exemption 2 "high": protects source numbers, since disclosure could identify confidential sources, facilitate unauthorized access to sensitive information, and impede investigatory efforts) (Exemption 7(C): protects information that would identify non-FBI federal employees, informants, state and local officials, and third parties) (Exemption 7(D): because the nature of the crime investigated (first-degree murder) and the witnesses' close ties to plaintiff support an inference of confidentiality, finds that the FBI has demonstrated that the sources had implied promises of confidentiality) (Exemption 7(F): protects the identities of cooperating third parties given plaintiff's reputation for violent behavior).

Rzeslawski v. Dep't of Justice, No. 97-1156 (D.D.C. July 23, 1998) (referred records: to the extent that the Justice Department's referral of records was permissible, those referrals are properly considered separate FOIA requests; defendant must provide evidence sufficient for this court to make findings as to whether the referral process used was appropriate) (Exemption 3 [Rule 6(e)]: defendant has not shown that 13 pages of grand jury testimony are protected by this exemption; defendant must either produce the 13 pages or provide an adequately detailed explanation of its position) (Exemption 5: the attorney work-product privilege protects one page of handwritten notes prepared by an attorney involved in the prosecution of a criminal action).

Schlabach v. IRS, No. 98-0075, 1998 U.S. Dist. LEXIS 19579 (E.D. Wash. Nov. 12, 1998) (Exemption 7(C): protects information provided to the IRS by plaintiff's clients, because disclosure could reasonably be expected to subject these individuals to harassment or intimidation by plaintiff and could affect the continued cooperation of these individuals with the government; even though some of the information may be about plaintiff himself, the information is of "an inherently private nature which could be quite embarrassing to other individuals if exposed").

Schrecker v. Dep't of Justice, 14 F. Supp. 2d 111 (D.D.C. 1998) (summary judgment: denies agency's motion for summary judgment; court seriously questions the FBI's disclosure procedures here where the FBI admitted that "a significant portion" of its withholdings may have been inappropriate; in this case involving 18,000 pages, orders that the FBI reprocess all withholdings and submit appropriate affidavits regarding any future withholdings) (Exemptions 1, 7(C), and 7(D): an agency may redact identities of individuals under Exemptions 1 and 7(D) regardless of whether that person is dead or alive; in this case where the documents are about 40 years old, the court will not require agency to further search sources to determine whether certain individuals are deceased because the public interest in disclosure under Exemption 7(C) would not be sufficient to warrant disclosure; court believes that FBI sufficiently considered and researched the age of the individuals who might be deceased in order to determine whether to release information) (duty to search: FBI's search must clarify the process by which it retains "ticklers," explain the absence of certain ticklers, and, if necessary, search for more ticklers; FBI's search of its electronic surveillance indices was adequate).

Schwarz v. NSA, No. 98-0066 (D.D.C. July 20, 1998) (duty to search: agency has conducted a search reasonable calculated to uncover all documents responsive to plaintiff's FOIA request).

Stanley v. DOD, No. 93-4247 (S.D. Ill. July 28, 1998) (jurisdiction: court lacks jurisdiction where a FOIA request was mailed to an agency, but returned unopened because of an improper address; court lacks jurisdiction where plaintiff did not commit to pay estimated fees; by failing to commit to pay applicable fees, plaintiff did not meet the procedural requirements of a "perfected" FOIA request) (exhaustion: failure to notify plaintiff of his right to appeal a fee estimate or an initial response constitutes constructive exhaustion; agency's failure to respond to plaintiff's request for a fee estimate within the statutory time period constitutes constructive exhaustion).

Steinberg v. Dep't of Justice, 179 F.R.D. 366 (D.D.C. 1998) (Exemption 1 [E.O. 12,356]: FBI's affidavit demonstrates that its relationship with the country at issue is based upon an express promise that the relationship itself and the information provided will be classified "Secret"; disclosure of the withheld information would jeopardize "foreign relations or foreign activities of the United States") (Exemption 7(C): protects information that would identify informants and witnesses contained in documents concerning an FBI investigation of alleged counterterrorist activities; government must release certain segments of these documents because it has not demonstrated that disclosure of this information would reveal the identity of an informant; especially because there is a substantial public interest at stake, the FBI cannot protect the identities of and information provided by informants whose identities are known to plaintiff).

Steinberg v. Dep't of Justice, No. 93-2409 (D.D.C. July 23, 1998) (denies plaintiff's motion for reconsideration of court's July 2, 1998 order; nothing revealed in camera undermines the conclusion that the vast majority of the FBI's Exemption 7(C) withholdings are appropriate).

Students Against Genocide (SAGE) v. Dep't of State, No. 96-667, 1998 WL 699074 (D.D.C. Aug. 24, 1998) (magistrate's recommendation) (duty to search: the Department of Defense and the Defense Intelligence Agency have demonstrated that they have conducted reasonable searches and found no usable documents) (Exemption 3 [50 U.S.C. 403-3(c)(6), 431]: protect satellite and aerial photographs, if they exist, in the possession of the CIA) (Exemption 1 [E.O. 12,958]: protects 32 documents withheld in part by the Department of State because they contain foreign government information, intelligence sources or methods, and foreign relations or activities of the United States; protects CIA's satellite imagery because it constitutes "intelligence sources or methods" and its very existence is a classified fact; protects aerial photographs because they constitute "intelligence sources or methods"; protects the number of aerial photographs from Bosnia because that information, together with other released information, might confirm or deny the existence of satellite imagery) (Exemptions 1 and 3: "the threat of indirect disclosure of important information regarding the capabilities of U.S. satellite systems flows plausibly from the release of such imagery or the confirmation or denial that such imagery exists") (Exemption 5: the deliberative process privilege protects 47 handwritten pages "ripped from a spiral notebook" containing notes of conversations with refugees and local officials and analyses and recommendations of the author, most likely a U.S. official in the field in Bosnia) (Vaughn Index: CIA's Index contains a reasonable specificity of detail; CIA described the nature of the risk posed by release of the requested information, but refused to confirm or deny the existence of the information) ("reasonably segregable": both the CIA and the Department of State released all "reasonably segregable," nonexempt portions of documents), adopted (D.D.C. Sept. 29, 1998).

Tel. Publ'g Co. v. Dep't of Justice, No. 95-521 (D.N.H. Aug. 31, 1998) (Exemption 7(C): although the defendant engages in "categorical" Exemption 7(C) withholding, the court finds that it needs additional detail to justify withholding this information; the identity of a FOIA requester is irrelevant to the Exemption 7(C) balancing process and the nature of the requested information is critical; in this case involving the prosecution of 3 local aldermen, finds that plaintiff has "spent little effort" developing the public interest in disclosure; protects 32 cover letters in their entireties because they contain financial information and telephone records of the 3 aldermen; protects "compiled" information that could identify various individuals because privacy interests cannot be protected by redaction; protects notes about grand jury subpoenas and a chronology of events and statements because they are "sufficiently private"; protects information about witnesses, informants, and subjects of investigative interest) (Exemption 3 [Rule 6(e)]: protects the identities of grand jury witnesses and information about grand jury proceedings) (Exemption 5: the attorney work-product privilege protects notes about grand jury subpoenas and a chronology of events and statements and evidence notebooks made by agents working at the direction of an Assistant United States Attorney (AUSA); protects an AUSA's notes (mostly handwritten) about grand jury matters and letters about the investigation) (Exemption 7(D): protects the identities of and information provided by confidential sources) (in camera inspection: court will not conduct in camera review because the agency's fourth supplemental affidavit and other supporting materials are sufficient, "although in some cases minimally so").

Thompson v. Dep't of Justice, No. 96-1118 (D. Kan. July 14, 1998) (Exemption 7(C): protects portions of documents that contain third-party names, arrest information about third parties, the names and initials of FBI personnel, the name and room number of an employee-informant, the name of and information provided by an informant, and information that would identify a complainant and a subject of investigative interest) (Exemption 2 "high": applying Audubon Society and Hale, finds that the proper inquiry under Exemption 2 is whether information relates to "personnel practices" of the agency and whether it is of such a trivial nature that disclosure would be of no public interest or would risk circumvention of agency law; agency must disclose Office of Professional Responsibility's and OIG's internal routing or filing numbers because they do not relate to "personnel practices") (Exemption 5: the deliberative process protects handwritten notes concerning an investigation, an Investigation Work Plan, an internal report evaluating evidence of criminal violation in connection with a matter being investigated, a Memorandum of Investigation, handwritten notes concerning a discovery request, and a recommendation concerning new management procedures, because "disclosure would discourage candid discussion within the agency").

TRIFID Corp. v. Nat'l Imagery & Mapping Agency, 10 F. Supp. 2d 1087 (E.D. Mo. 1998) ("reverse FOIA"/ Exemption 4: agency's decision to release unit price information contained in a contract between plaintiff and defendant does not represent a "clear error of judgment"; plaintiff was given notice of its right to object to disclosure under the FOIA; because a "reverse" FOIA action is an "adjudicatory action" under the APA, the relevant inquiry is whether agency's "factfinding procedures were adequate"; agency's factfinding procedures were adequate because agency provided a sufficient explanation of why plaintiff's objection to disclosure was not sustained; the lack of an appeal mechanism and a formal mechanism to provide agency with additional information do not render agency's procedures defective; plaintiff failed to establish prejudice resulting from agency noncompliance with procedural regulations; "litigation affidavits" filed by submitter will not be considered because they were not submitted to agency during the administrative process; the National Parks test applies because the "financial and commercial information contained in government contracts is uniformly held to be 'required' in the context of" Exemption 4; plaintiff has offered only conclusory and generalized assertions that disclosure of this information would result in substantial competitive harm; submitter's objections were largely in the form of "detailed measures it took to guard and protect its pricing information," and as such were "simply not relevant to the National Parks analysis"; the possibility that future option years of the contract may be rebid does not demonstrate that disclosure will cause plaintiff substantial competitive harm).

United States v. Ford, Crim. No. 96-00271-01, 1998 U.S. Dist. LEXIS 16438 (E.D. Pa. Oct. 21, 1998) (agency: Clerk of the Court, as part of the judicial branch, is not an "agency" for purposes of the FOIA).

Varville v. Rubin, No. 3:96-00629, 1998 U.S. Dist. LEXIS 14006 (D. Conn. Aug. 18, 1998) (Exemption 5: the deliberative process privilege protects 28 predecisional documents because disclosure would reveal the decisionmaking process) (Exemption 7 (threshold): requirement not met by records compiled during defendant's inquiry into plaintiff's alleged misconduct, since this inquiry more closely resembles an employer supervising its employees than a law enforcement investigation; report at issue did not focus directly on "specifically alleged illegal acts," which, if proved, could expose plaintiff to civil or criminal sanctions) (proper party defendant: agency head is the proper party defendant because plaintiff's complaint was brought under the FOIA, the Privacy Act, and the Age Discrimination in Employment Act).

Wheeler v. IRS, 37 F. Supp. 2d 407 (W.D. Pa. 1998) (attorney fees: pro se plaintiff is not entitled to attorney fees in the Third Circuit; denies plaintiff's motion for litigation costs; if plaintiff had not filed this lawsuit, the documents would not have been released to him; disclosure in this case benefitted plaintiff by enabling him to contest his personal tax liability and did not benefit the public; IRS did not have a reasonable basis in law for the delay in the disclosure of the records; finds that while "it is troubling that it took the filing of a complaint" for the IRS to respond to plaintiff's FOIA request, the government did not "engage in recalcitrant or obdurate behavior and was not in bad faith").

Wishart v. Comm'r, No. 97-20614, 1998 U.S. Dist. LEXIS 13306 (N.D. Cal. Aug. 6, 1998) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 7 (threshold): requirement met by information compiled by the IRS in its civil or criminal investigations) (Exemptions 7(A) and 3 [26 U.S.C. 6103(e)(7)]: disclosure of evidence obtained during IRS's investigation of plaintiff would interfere with the enforcement proceeding) (Exemption 7(C): protects the identities of witnesses contacted by the IRS) (Exemptions 5 and 6: the attorney-client privilege protects correspondence between IRS employees being sued by plaintiff and the Justice Department; finds that the disclosure of these documents would be an invasion of personal privacy by exposing the individuals to whom they refer to potential harassment) (Exemptions 7(E) and 3 [26 U.S.C. 6103(b)(2)]: protect information disclosing how the IRS selects tax returns for examination) (attorney fees: pro se litigants are not entitled to attorney fees under the FOIA; applying the entitlement factors to plaintiff's request for costs, finds that plaintiff is not entitled to an award of costs; this action benefitted plaintiff only and the agency did not improperly withhold any records from him).   (posted 9/28/01)

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