USDOJ: OIP: FOIA Post
Files moving from File cabinet to Computer


Compiled FOIA Decisions (Received January-June 1998)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of January through June 1998. OIP is preparing additional compilations of decisions received during previous months and years.

Appeals Courts

Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075 (6th Cir. 1998) (Exemption 2 "low": parties are correct that district court granted agency's motion for summary judgment based on inappropriate factors; the judgment of the district court is reversed and remanded; computerized federal tax lien filings do not relate predominantly to agency's internal "rules and practices" for personnel, because disclosure "merely has a potential for shedding light on the practice of collecting and compiling information"; fact that requested information is part of a system designed to be used by agency personnel in carrying out their responsibilities does not alter this conclusion; on remand, the district court may find that particular pieces or types of information contained in the records of tax lien filings or in the Automated Lien System fall within the scope of Exemption 2) (Exemptions 6 and 7(C): remands for district court to take testimony and receive evidence about the exact content of the federal lien filings and the various types of personal information that might be contained in even publicly filed lien documents and then to make a determination regarding the applicability of these two exemptions).

Aguilera v. FBI, No. 98-5035 (D.C. Cir. Mar 18, 1998) (appeal dismissed in this FOIA case where the district court granted plaintiff's motion for a preliminary injunction to compel expedited processing of his FOIA request and awarded attorney fees).

Blazy v. Tenet, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998) (grants government's motion for summary affirmance; district court had ruled that agency properly used Exemptions 1, 3 [50 U.S.C. 403-3(c)(6) and 403g], 5, and 6 to withhold information), reh'g denied (D.C. Cir. July 6, 1998).

Burka v. HHS, 142 F.3d 1286 (D.C. Cir. 1998) (attorney fees: pro se attorney-litigant who has substantially prevailed on his FOIA claim is not entitled to attorney fees under the FOIA; plaintiff's representation of an "undisclosed" client renders him ineligible for attorney fees; pro se attorney-litigant is not entitled to attorney fees for work performed by other attorneys who worked in attorney-litigant's law firm under his direction, because there was no genuine attorney-client relationship) (Wald, J, concurring specially; Randolph, J, concurring).

Catchpole v. Dep't of Transp., No. 97-8058 (11th Cir. Feb. 25, 1998) (Exemption 5: the deliberative process privilege protects redacted portions of memorandum prepared to assist the agency in determining whether to take any further action concerning plaintiff's allegations of FAA wrongdoing; report is predecisional and redacted portions contain author's opinions; trial, rather than summary judgment, is required to determine what, if anything, the author told plaintiff in a telephone conversation to determine whether government waived its right to invoke this privilege).

Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, 133 F.3d 1081 (8th Cir. 1998) ("Reverse" FOIA/Exemption 4: affirms district court's order denying plaintiff's request to enjoin the government from disclosing records concerning a government investigation into accidents related to an airgun manufactured by the plaintiff; disclosure would not damage plaintiff's competitiveness).

Essential Info., Inc. v. United States Info. Agency, 134 F.3d 1165 (D.C. Cir. 1998) (Exemption 3 [22 U.S.C. 1461]: the Smith-Mundt Act is an Exemption 3 statute; agency is not required to disclose overseas program material within the United States for a 12-year period, even though it is available outside the United States) (Henderson, J., concurring (as well as authoring the majority opinion); Tatel, J., dissenting).

Ford v. West, No. 97-1342, 1998 WL 317561 (10th Cir. June 12, 1998) (unpublished order), 149 F.3d 1190 (10th Cir. 1998) (table cite) (Exemption 6: file is "similar" because it contains personal information about a person) (Exemption 7 (threshold): threshold requirement met by information compiled in determining if illegal racial harassment occurred) (Exemptions 6 and 7(C): balancing the public interest in disclosure against the privacy interests at stake, finds that the exemptions protect names, social security numbers, a medical diagnosis, coworkers' thoughts, sentiments, and emotions, and information about the discipline of a coworker; redacted information is insufficient to inform the public about agency's response to a racial harassment claim; incomplete redactions of names and negative opinions do not waive the protection of the exemptions; the fact that some of this information has been received from other channels does not change its protected status under the FOIA) (in camera inspection: district court did not err in failing to conduct in camera inspection; there was no abuse of discretion in relying on agency's declaration).

Gabel v. Comm'r, No. 95-15215, 1998 WL 21992 (9th Cir. Jan. 15, 1998) (unpublished memorandum), 134 F.3d 377 (9th Cir. 1998) (table cite) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 7(C): protects the identities of third parties).

Gaydos v. Mansmann, No. 98-5002, 1998 WL 389104 (D.C. Cir. June 24, 1998) (per curiam) (a FOIA claim may not be brought against the federal judiciary).

Hoffman v. Brown, No. 97-1145, 1998 WL 297575 (4th Cir. May 19, 1998) (unpublished memorandum), 145 F.3d 1324 (4th Cir. 1998) (table cite) (Exemption 7 (threshold): threshold requirement met by records compiled by the VA Inspector General, the VA Police, and the United States Attorney's Office in the course of a criminal investigation) (Exemption 7(C): protects information that would identify third parties) (permanent injunction: there is no right of prospective relief under the FOIA).

Kimberlin v. Dep't of Justice, 139 F.3d 944 (D.C. Cir. 1998) (Exemption 7 (threshold): threshold requirement met by information compiled by the agency in the course of an investigation to determine whether an Assistant United States Attorney (AUSA) had violated any law by revealing certain information to the press) (Exemption 7(C): in the investigation of a staff-level government lawyer for an alleged wrongdoing that was "not so serious," finds that disclosure of the investigative file would be an invasion of privacy "disproportionate to" the insight the public would gain in finding out "what the government is up to"; by acknowledging the investigation and making a vague reference to its conclusion, the AUSA may have "diminished his interest in privacy," but he did not waive all his interest in keeping the contents of the file confidential) ("reasonably segregable": case remanded to the district court to make a specific finding on whether any of the withheld documents contain material that can be segregated and disclosed without compromising the nondisclosable material).

Lehrfeld v. Richardson, 132 F.3d 1463 (D.C. Cir. 1998) (Exemption 3 [26 U.S.C. 6103(b)(2)]: documents IRS receives or creates during its initial investigation of an organization seeking tax-exempt status constitute "return information" and, therefore, are not subject to disclosure).

Mo. ex rel. Shorr v. United States Army Corps of Eng'rs, 147 F.3d 708 (8th Cir. 1998) (Exemption 5: deliberative process privilege protects an intra-agency memorandum on the pallid sturgeon because disclosure would "imperil . . . agency functions by stifling internal debate"; although agency could have provided a "fuller" description of how disclosure would have adversely affected the deliberative process, it was sufficient for agency to conclude that "open and frank intra-agency discussion would be 'chilled'"; memo is "an excellent example of the kind of document Exemption 5 is designed to protect" because it contains "the frank reaction of an individual with significant responsibility to the draft biological opinion, designed to assist agency decisionmakers in formulating final agency policy by candidly critiquing the development of the proposed policy").

Nowak v. IRS, No. 97-55678, 1998 WL 196679 (9th Cir. Apr. 22, 1998) (unpublished memorandum), 142 F.3d 444 (9th Cir. 1998) (table cite) (affirms district court's grant of summary judgment to the agency; IRS demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request).

O'Meara v. IRS, No. 97-3383, 1998 WL 123984 (7th Cir. Mar. 12, 1998) (unpublished order), 142 F.3d 440 (7th Cir. 1998) (table cite) (affirms district court's ruling; this FOIA case became moot when the IRS agreed to produce the documents plaintiff requested; statute allows IRS to collect processing fees and plaintiff does not fit into any of the fee limitation categories; FOIA does not authorize sanctions as a remedy for failure to produce documents; district court properly awarded plaintiff $132 in costs because by filing the lawsuit plaintiff gained access to documents previously denied to him).

Peralta v. United States Attorney's Office, 136 F.3d 169 (D.C. Cir. 1998) (jurisdiction: denies government's motion to have the Justice Department treated as the sole defendant in this action, which would have rendered the district court's order not "final" and thus not appealable; because district court's order effected dismissal of the Executive Office for United States Attorneys (EOUSA), the only defendant, from this case, that order was a final decision and court of appeals has jurisdiction; on remand, the district court must resolve who the defendant or defendants are in this action) (referral of FOIA request: district court made no finding that the requested FBI documents were either subject to or exempt from disclosure under the FOIA; this is reversible error; on remand, the district court must decide, in light of McGehee, Paisley, and Justice Department regulations, whether the EOUSA's referral of FBI documents to the FBI for processing resulted in the "improper withholding" of FBI documents).

Pray v. Dep't of Justice, No. 97-5215 (D.C. Cir. Mar. 2, 1998) (summary affirmance granted where district court found that the FBI's search of its Electronic Surveillance index was adequate in response to plaintiff's FOIA request).

Raulerson v. Reno, No. 98-5112 (D.C. Cir. May 5, 1998) (appeal dismissed in this FOIA case where the district court denied FBI's request for an Open America stay).

Reiter v. DEA, No. 97-5246, 1998 WL 202247 (D.C. Cir. Mar. 3, 1998) (summary affirmance granted; district court properly determined under Exemption 7(D) that the death of various informants did not extinguish their privacy rights, despite the passage of time; under Exemption 7(C), while the privacy interests of the deceased may be reduced, plaintiff has not demonstrated that the public interest merits disclosure; disclosure of information will not shed light on agency's performance of its statutory duties).

S.A. Ludsin & Co. v. SBA, No. 97-7884, 1998 WL 642416 (2d Cir. Mar. 26, 1998) (unpublished order), 162 F.3d 1148 (2d Cir. 1998) (table cite) (affirms district court order denying plaintiff a fee waiver with respect to its FOIA request for real estate appraisals that plaintiff, a commercial entity with a government contract, would use to market and sell SBA properties; plaintiff has not shown that disclosure of this information is likely to contribute to the public understanding of the operations of the federal government).

Sheet Metal Workers Int'l Ass'n, Local Union No. 19 v. VA, 135 F.3d 891 (3d Cir. 1998) (Exemption 6: modifies its earlier decision in International Brotherhood of Electrical Workers, because of the subsequent Supreme Court opinions in DOD v. FLRA and Reporters Committee; privacy interest of employees in the release of names, addresses, and Social Security numbers from certified payrolls records and apprentice registration forms related to a hospital construction project substantially outweighs the slight public interest in disclosure; disclosure "reveals little, if anything, about the operations of the Department of Veterans Affairs"; release of names and addresses of workers "will have no beneficial effect on the union's ability to detect" Davis-Bacon Act violations; ability of the union to detect such violations on the part of private contractors does not mean that unlimited disclosure of payroll records is in the public interest; "[a]fter the decisions in Reporters Committee and Department of Defense, no court of appeals has given much weight to the monitoring function"; there are "significant" privacy concerns attached to the employees' names and home addresses).

Solar Sources, Inc. v. United States,142 F.3d 1033 (7th Cir. 1998) (Exemption 7(A): agency's generic affidavit demonstrates that disclosure of records from an investigation of wide-ranging price fixing in the commercial explosives and ammonium nitrate industries could reasonably be expected to interfere with the ongoing investigation, even though companies in four of the cases had already pleaded guilty; district court's review of documents randomly selected from the millions of pages of records at issue, along with the agency's sworn declaration, gave the district court an adequate factual basis to determine that documents were properly withheld; because it would take the agency 8 work-years to uncover all nonexempt documents in the files, finds that district court did not err in concluding that the small percentage of documents that could be released were not "reasonably segregable" from those that were properly withheld; district court did not err by not requiring government to produce a Vaughn Index; district court did not err by denying plaintiffs a view of the in camera documents).

Sorrells v. United States, No. 97-5586, 1998 WL 58080 (6th Cir. Feb. 6, 1998) (unpublished memorandum), 142 F.3d 436 (6th Cir. 1998) (table cite) (no improper withholding: in this FOIA case where plaintiff received a document with a partially illegible signature, finds that the government did not withhold agency records because plaintiff has not shown that the agency possesses a document bearing a full, legible signature).

Steinberg v. Dep't of Justice, No. 97-5210 (D.C. Cir. Jan. 21, 1998) (affirms district court finding that defendant has demonstrated that it has conducted a "search reasonably calculated to uncover all relevant documents" in response to plaintiff's FOIA request).

Summers v. Dep't of Justice, 140 F.3d 1077 (D.C. Cir. 1998) (in this FOIA case where plaintiff sought the official and confidential records of the late J. Edgar Hoover, remands case to the district court for the development of an adequate explanation of its denial of plaintiff's motion for summary judgment; plaintiff's statement in district court assuming "that the court [would] be issuing a written order" constituted a "reasonable request for clarification" of an adverse summary judgment ruling in a FOIA case under Schwartz; district court's generalized acceptance of the government's exemption claims leaves the appeals court unable to engage in effective appellate review, nor did the district court address the issue of the segregability of nonexempt materials; on remand, under Exemption 6, the court must carefully assess the public interest in misconduct at the highest levels of the FBI against any possible privacy interests; district court must determine whether records were indeed compiled for law enforcement purposes and whether persons protected are "confidential sources" within the meaning of the statute).

Thompson v. Dep't of Navy, No. 97-5292, 1998 WL 202253 (D.C. Cir. Mar. 11, 1998) (grants government's motion for summary affirmance; documents at issue were properly withheld under the deliberative process privilege; collateral estoppel does not apply because the prior proceeding involved civil discovery rather than a FOIA action).

United States v. Schiefen, 139 F.3d 638 (8th Cir. 1998) (publication: Federal Register notice requirements do not apply to federal criminal statutes).

United Transp. Union-Ill. Legislative Bd. v. Surface Transp. Bd., 132 F.3d 71 (D.C. Cir. 1998) (non-FOIA case; agency rule requiring parties to submit lengthy pleadings and computer-generated spread sheets on computer disks containing the document does not violate the FOIA; because the Electronic FOIA Amendments expanded the definition of "record" to include a record maintained in "an electronic format" and to make the record available to the public "in any form or format requested by the person," the agency already has agreed to, upon request, provide a copy of any disk for a standard fee).


District Courts

Accuracy in Media, Inc. v. United States Secret Serv., No. 97-2108, 1998 WL 185496 (D.D.C. Apr. 16, 1998) (in camera inspection: in camera inspection of documents is appropriate here because only 14 pages are at issue and agency's affidavit describes the withheld material in general terms that make it difficult for the court to determine whether the government has properly redacted the information) (Exemption 7(A): "[i]t is enough for present purposes that an Associate Independent Counsel has stated under oath" that the investigation of the events following the death of Vince Foster is still "active and ongoing"; on in camera inspection finds that the release of investigative leads and witness statements from 3 documents could interfere with the ongoing investigation; exemption does not protect 2 pages from one document because the government has provided no description of these pages or explanation of its decision to withhold them; government must submit a further declaration with respect to these 2 pages by May 11, 1998).

Anderson v. United States Postal Serv., 7 F. Supp. 2d 583 (E.D. Pa. 1998) (exhaustion: because agency's "vague" response to plaintiff's FOIA request was outside the statutory time limits, plaintiff is deemed to have "constructively" exhausted his administrative remedies) (Exemption 7(A): disclosure of a report of investigation pertaining to a pending criminal investigation would expose actual or prospective witnesses to undue influence or retaliation and would reveal the focus of the investigative activities) (Exemption 7(C): protects the identities of law enforcement officers, interviewees, and witnesses involved in the criminal investigation).

August v. FBI, No. 97-0769 (D.D.C. June 22, 1998) (Exemption 7 (threshold): requirement met by records concerning an FBI investigation into "Financial Institution Fraud") (Exemption 7(A): defendant's generic affidavit demonstrates that it properly withheld information while plaintiff's appeal of his criminal conviction is pending) (Exemption 7(C): protects names and telephone numbers of FBI personnel and the name of a special agent).

Avondale Indus. v. NLRB, No. 96-1227, 1998 WL 34064938 (E.D. La. Mar. 20, 1998) (Vaughn Index: there is no requirement that the author of the documents at issue prepare the Vaughn Index; agency's Index is sufficient) (fees: because plaintiff seeks documents for purposes of contesting union election results and/or for defending itself in unfair trade practice proceedings, its use of the documents "furthers the commercial, trade or profit interests" of plaintiff as that phrase is used in OMB's FOIA fee guidelines defining "commercial use"; defendant properly classified this request as "commercial" and may assess duplication, search, and review costs).

Bauer v. United States, No. 96-1165, 1998 U.S. Dist. LEXIS 3813 (D.D.C. Mar. 20, 1998) (fees: because plaintiff has failed to pay fees owed with respect to prior FOIA requests to the Justice and Treasury Departments, these agencies properly required that plaintiff make an advance payment of the full amount of estimated fees before they began to process a new FOIA request; grants defendants' motion for summary judgment (case stayed with respect to plaintiff's FOIA request to the FBI)).

Blazy v. Tenet, No. 93-2424 (D.D.C. Apr. 6, 1998) (attorney fees: plaintiff has substantially prevailed because this action was reasonably necessary in order to obtain the records sought; because plaintiff's request for access was personal, disclosure of this information did not benefit the general public; plaintiff's request for his employment records was "wholly personal"; while agency's response to plaintiff's FOIA request was "sluggish," there has been no proof of bad faith; pro se plaintiff who is not an attorney is not entitled to attorney fees under the FOIA; because pro se plaintiff is not eligible and entitled to an award of fees, he may not recover the fees incurred for consulting an outside attorney, for loss of regular income in order to prepare this action, or for general litigation costs; attorney fees denied).

Boyd v. Executive Office of the United States Attorneys, No. 5:97-163 (M.D. Ga. Jan. 20, 1998) (Exemption 7(A): grants defendant's motion to dismiss; documents plaintiff requested under the FOIA were part of an ongoing criminal proceeding and their release would compromise the government's prosecution of its case).

Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153 (D.D.C. Mar. 10, 1998) (attorney fees: plaintiff substantially prevailed because it gained access to substantially all of the requested memorandum only by bringing this action; disclosure of memorandum was in the public interest because it shed light on the agency's interpretation of a "thorny labor law issue"; plaintiff was not motivated primarily by pecuniary interests; agency had "virtually" no reasonable basis for withholding the document; court finds reasonable plaintiff's requests for the amount of time spent for this representation and the allocation of time between senior attorneys, more junior attorneys, and paralegals; hourly rates of $160 per hour for partners, $155 per hour for associates, and $50 per hour for paralegals are reasonable; grants plaintiff $29,161.20 in attorney fees and costs).

Burke v. DEA, No. 96-1739 (D.D.C. Mar. 31, 1998) (duty to search: DEA's affidavit demonstrates that it conducted a reasonable search for records in response to plaintiff's FOIA request) (Exemption 7 (threshold): requirement met by records compiled for the prosecution of plaintiff for RICO violations, conspiracy, murder of a witness, murder for hire, and arson) (Exemption 7(A): disclosure of these records would interfere with plaintiff's appeal in a civil enforcement matter that is based on information from the criminal case) (Exemption 7(C): protects the identities of third parties in law enforcement files when plaintiff had not shown any public interest in disclosure) (Exemption 3 [Rule 6(e)]: protects the name of an individual subpoenaed to testify before a grand jury and information relating to subpoenaed insurance claims) (Exemption 5: the deliberative process privilege protects communications between a postal inspector and an Assistant United States Attorney discussing prosecution strategies before any final decisions were made) (Exemption 7(D): a promise of confidentiality may be inferred in this case because of the nature of the offenses for which plaintiff was convicted) (Exemption 7(E): protects surveillance techniques used by the Postal Service, because the specific details of such techniques are not generally well known to the public) (Exemption 7(F): protects the identities of sources when it is reasonable to assume that disclosure would put their lives or personal safety in jeopardy because of the nature of the offenses for which plaintiff was convicted) (mootness: the Bureau of Alcohol, Tobacco and Firearms's exhaustion argument was mooted when plaintiff paid the fees associated with his FOIA request) (Vaughn Index: plaintiff's request for a Vaughn Index is premature; court's resolution of dispositive motions that might be filed may obviate the need for an Index).

Canning v. Dep't of the Treasury, No. 94-2704 (D.D.C. May 7, 1998) (Exemption 7(C): protects information that could identify an individual interviewed by the FBI; the interviewee's privacy interest is not diminished, because his identity can be "pieced together" through other means and there is little public interest in disclosure; Executive Office for United States Attorneys (EOUSA) must submit a supplemental affidavit to justify withholding 10 documents in their entireties, because its affidavit "sorely" failed to justify withholding under this exemption; with respect to 8 other documents, EOUSA's affidavit demonstrates that it has properly withheld information; Secret Service must release information provided by third parties, because disclosure would not be "an unwarranted invasion of personal privacy"; Secret Service must submit a supplemental affidavit to justify withholding information from 6 documents under this exemption; Secret Service properly withheld information that would identify agents, local police officers, and third parties) (Exemption 7(D): EOUSA and Secret Service must provide supplemental affidavits to demonstrate that sources had received implied promises of confidentiality) (Exemption 5: EOUSA must release reasons for declination to prosecute from a prosecutor's letter to a Secret Service agent because EOUSA has not justified withholding it under the attorney work-product privilege; EOUSA properly withheld information from 7 other documents under the attorney work-product privilege; Secret Service must submit a supplemental affidavit to justify withholding information under the deliberative process privilege because it has "sorely failed to meet its legal burden") (Exemption 2 "low": protects narrative information in an internal document because it "clearly" reflects the "practices of an agency") (Exemption 7(E): without further specification, finds that Secret Service's affidavit demonstrates that this exemption was properly claimed to withhold information from 7 documents; with respect to one document, Secret Service must submit a supplemental affidavit to demonstrate that information was properly withheld under this exemption) (Exemption 3 [Rule 6(e)]: protects transcripts of a third-party interview in a grand jury investigation) (duty to search: Secret Service conducted a search reasonably calculated to uncover all documents relevant to plaintiff's FOIA request).

Chaklos v. Reich, No. 95-1763 (W.D. Pa. Feb. 20, 1998) (mootness: plaintiff's FOIA action is moot because defendant has provided him with all documents responsive to his FOIA request) (agency: a physician who examined plaintiff at the request of the agency is not a federal employee and his files are not subject to the FOIA).

Chicago Tribune Co. v. FAA, No. 97 C 2363, 1998 WL 242611 (N.D. Ill. May 5, 1998) (Exemption 4: exemption does not protect information concerning in-flight medical emergencies on commercial airlines; information is not "commercial" in nature simply because it reflects events that occurred during revenue-producing operations; "in order to constitute 'commercial' information under Exemption 4, the documents must contain information that bears a more direct relationship with the operations of a commercial venture than the information sought here").

Chicago Tribune Co. v. HHS, No. 95 C 3917 (N.D. Ill. Mar. 13, 1998) (denies government's motion for reconsideration of court's March 31, 1997 order because government filed its objections to the magistrate's report and recommendation two days after the deadline, which had already been extended).

Clarkson v. Greenspan, No. 97-2035 (D.D.C. June 30, 1998) ("no records" defense: agency need not create records in response to a FOIA request) (mootness: FOIA case is moot because agency provided plaintiff with all records responsive to his FOIA request) (Exemption 4: protects portions of transcripts from Federal Open Market Committee (FOMC) meetings because this financial or commercial information was provided by foreign governments, central banks, or private individuals in confidence, on a "voluntary" basis, and is of a kind that would not customarily be released to the public) (Exemption 5: the deliberative process privilege protects portions of meeting transcripts and staff analyses prepared for the meeting, because disclosure would inhibit frank discussion of monetary policy actions in financial markets) (personal records: personal notes taken by Reserve Bank employees during FOMC meetings are not "agency records" because they were not taken to be shared with others or filed in the Bank's filing system and the authors were free to dispose of these notes as they saw fit) (Exemption 8: protects examination reports of the Federal Reserve Banks conducted by or for the Board of Governors, because the examinations were done by or for the agency responsible for regulating the Reserve Banks).

Commercial Info. Sys. v. Fed. Bureau of Prisons, No. 97-08-ST (D. Or. Oct. 27, 1997) (magistrate's recommendation) ("not an agency record" defense: disclosure of information concerning all federal inmates maintained in the Bureau of Prison's (BOP) central database would "not require BOP to reconfigure or modify the substantive content of its current records, or create a 'new document'"; BOP must disclose the requested information unless it is exempt from disclosure) (Exemption 6: information contained in BOP's database constitutes a "similar file") (Exemption 7 (threshold): information in the database was not compiled for law enforcement purposes) (Exemptions 6 and 7(C): while public interest in disclosure of this information is "insubstantial at best," this centralized compilation of post-conviction public information concerning BOP inmates cannot be described as "'private' information implicating a 'personal privacy' interest"; information should be disclosed; agency must disclose public information about each inmate: name, sex, race, date of birth, FBI number, BOP Register number, court docket number, offense, sentence term, sentence type, sentencing court, sentencing judge, mandatory release date, location of confinement, and judicial district of release; inmates' Social Security numbers and information concerning participation in the Witness Security Program may be withheld; defendant failed to satisfy both prongs of Exemption 7), adopted (D. Or. Feb. 18, 1998).

Coulter v. Office of Naval Intelligence, No. 96-6309 (D. Or. Nov. 7, 1997) (magistrate's recommendation) (Exemption 7 (threshold): requirement met by records compiled by Naval Investigative Service in the course of its investigation into allegations of lewd and lascivious conduct) (Exemption 7(C): protects the names of victims and witnesses), adopted (D. Or. Jan. 8, 1998).

Council for a Livable World Educ. Fund v. Dep't of State, No. 96-1807 (D.D.C. Jan. 21, 1998) (Exemption 3 [50 U.S.C. App. 2411(c)(1)]: under the Export Administration Act the agency may withhold from export license applications "the precise value, nature, parties to the transaction and shipping dates of exports"; agency must submit another Vaughn Index which shows "specifically and clearly" that the information withheld concerns a license application and not simply an arms transaction) (Exemption 1 [E.O. 12,958]: agency has demonstrated that no portion of 10 telegrams may be released without causing damage to the national defense or foreign policy because they contain confidential source and foreign government information).

Croskey v. Office of Special Counsel, 9 F. Supp. 2d 8 (D.D.C. 1998) (Exemption 5: attorney work-product privilege protects portions of a Report of Investigation because report was prepared at the request of an attorney in anticipation of litigation; disclosure would shed light on the Special Counsel's theory of the case and litigation strategy) (Exemption 7(C): protects the names of witnesses interviewed in the course of an investigation).

Cujas v. IRS, No. 1:97-00741, 1998 U.S. Dist. LEXIS 6466 (M.D.N.C. Apr. 15, 1998) (Exemption 7(C): on in camera inspection, finds that this exemption protects personal information that would identify lower-level IRS employees, sources and potential sources of information, and third-party taxpayers) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party taxpayer information) (Exemptions 3 [26 U.S.C. 6103(e)(7)] and 7(A): disclosure of information obtained or created by investigators in the course of an IRS investigation of plaintiff would seriously impair tax administration and could reasonably be expected to interfere with enforcement proceedings) (Exemption 5: the attorney-client privilege protects notes of a revenue agent who was investigating plaintiff, which reflected the confidential legal advice that the District Counsel gave orally in response to (and in turn reflecting) a proposed course of action in the ongoing collection action against plaintiff, who had not filed a tax return since 1991).

Cullinane v. Arnold, No. 97-779, 1998 U.S. Dist. LEXIS 5575 (C.D. Cal. Mar. 24, 1998) (proper party defendant: dismisses this FOIA action because plaintiff has named individual agency employees as defendants; the only proper defendant to plaintiff's FOIA action is the IRS).

Curry v. DEA, No. 97-1359 (D.D.C. Mar. 30, 1998) (Exemptions 6 and 7(C): protect information concerning 5 individuals who testified at plaintiff's trial, where plaintiff has not provided agency with proofs of death or privacy waivers; privacy interests at stake outweigh any public interest in disclosure).

Davin v. Dep't of Justice, No. 92-1122 (W.D. Pa. Apr. 9, 1998) (Vaughn Index: agency's revised, categorical Vaughn Index and its accompanying affidavits contain specific descriptions of the content of each document, the type of information that has been deleted, and an explanation of why a particular exemption applies) (Exemption 2 "low": protects permanent source symbol numbers, temporary source symbol numbers, and file numbers because they are predominantly internal) (Exemption 7 (threshold): threshold requirement satisfied because the government had a colorable claim that the Workers Alliance of America (WAA) had violated or would potentially violate federal law or was a potential security risk to the United States; threshold requirement met by background investigation concerning an individual's consideration for federal employment) (Exemption 7(C): exemption does not protect the names and addresses of 36 individuals from records of FBI investigations conducted between 1938 and 1964; without the Social Security numbers, which were not recorded, it would be difficult to track down these people because most, if not all, of the addresses are outdated; because it would be "virtually impossible" for the government to demonstrate whether these people are still living or for the plaintiff to locate them, disclosure would not be an "unwarranted invasion of personal privacy"; given the passage of time, the privacy interests of surviving individuals are "weak," and they are outweighed by the public interest in disclosure of possible misconduct by the government in its investigations of the WAA) (Exemption 7(D): government has met its burden of demonstrating that, during the period of time material to this case, it had a practice of assigning code names or source symbol numbers to individuals to whom it had given express promises of confidentiality; in other contemporaneous documents, some individuals were expressly referred to as "confidential sources"; an implied promise of confidentiality may be inferred when an individual being interviewed by an FBI Agent stated that he would not provide information unless his identity remained confidential; government has demonstrated that during the period in question the FBI obtained information from individuals employed by financial institutions and state agencies with the understanding that their identities would be held in confidence).

Dayton Newspapers, Inc. v. Dep't of the Air Force, 35 F. Supp. 2d 1033 (S.D. Ohio 1998) (Exemption 6: within 30 days, defendant must release medical malpractice databases because it has not provided the court with a reason to withhold them; defendant may redact claimants' names, Social Security numbers, home addresses, home/work telephone numbers, and places of employment; if the government's estimate of 51 hours to assemble information from one database is correct, "that is a small price to pay" for the possibility of discovering "medical malpractice information or putting rumors and innuendoes of same to rest"; court is amenable to a supplemental complaint from the plaintiffs sometime in the future should they feel, based on new information in their possession, that the privacy interests of individuals no longer outweigh the public interest in disclosure) (Exemption 3 [10 U.S.C. 1102]: agency's blanket claim of this exemption for the medical quality assurance database was improper; agency must release information that was not created or maintained solely to assess the quality of medical care; within 30 days, defendant must produce a Vaughn Index of items in this database that were not provided to plaintiffs) (Exemptions 5 [deliberative process privilege] and 3 [10 U.S.C. 1102]: do not protect the amounts paid to administrative claimants on medical malpractice claims, the type of injury alleged, and the status of open administrative claims; exemptions protect hospital recommendations on the standard of care and the Air Force Surgeon General's determination on the standard of care).

Feshbach v. SEC, 5 F. Supp. 2d 788 (N.D. Cal. 1998) (attorney fees: plaintiff has not "substantially prevailed" in this litigation; the filing of this lawsuit did not have a substantial "causative effect" on the production of documents; court ultimately upheld the vast majority of the exemptions claimed, compelling the production of only 18 out of 869 records; discovery of 11 boxes, in addition to the 115 initially found, is not sufficient to find that plaintiff "substantially prevailed"; attorney fees denied).

Finkley v. EEOC, No. 97-474 (S.D. Fla. Mar. 30, 1998) (FOIA action dismissed because plaintiff failed to exhaust his administrative remedies).

Franklin v. Dep't of Justice, No. 97-1225 (S.D. Fla. June 15, 1998) (magistrate's recommendation) (Exemption 2 "high": disclosure of NADDIS numbers, G-DEP codes, and Informant Identifier Codes would enable individuals to circumvent agency investigative and law enforcement efforts) (Exemption 7 (threshold): requirement met by records compiled by DEA in the course of a criminal investigation) (Exemption 7(A): release of information requested by plaintiff would interfere with the DEA investigation, with multiple federal appeals, and the murder trials of several co-defendants) (Exemption 7(C): protects information that would identify third parties, accomplices, and co-defendants; privacy interests at stake outweigh the public interest in disclosure) (Exemption 7(D): given the serious nature of the criminal charges being investigated and plaintiff's reputation, it is reasonable to infer that coded and noncoded sources who provided information about plaintiff were given express promises of confidentiality) (Exemption 7(F): agency's affidavit demonstrates that the exemption protects the identities of DEA Special Agents, Supervisory Agents, and other law enforcement officers), adopted (S.D. Fla. June 26, 1998).

Gabel v. IRS, No. C 97-1653, 1998 U.S. Dist. LEXIS 12467 (N.D. Cal. June 25, 1998) (exhaustion: because plaintiff did not receive timely notice of IRS's decision in response to his FOIA request, he was entitled to file a complaint without further pursuing an administrative appeal) (duty to search: agency's search was reasonably calculated to uncover all documents responsive to plaintiff's FOIA request; all responsive documents have been released).

Gasparutti v. United States, 22 F. Supp. 2d 1114 (C.D. Cal. 1998) (jurisdiction: plaintiff may not seek relief under the FOIA, because he failed to make a FOIA request for records before filing this action; court is without jurisdiction with respect to other claims plaintiff made under the FOIA because the remedies plaintiff seeks are not available under the FOIA).

Gilmore v. DOE, 4 F. Supp. 2d 912 (N.D. Cal. 1998) ("not an agency record" defense: federal government lacks "control" over electronic conferencing software technology because, while it owns the nonexclusive license for the technology, the copyright is owned by Sandia National Laboratories, where the technology was developed; release of these records would not shed light on the operations of the federal government; although the technical documentation related to the software was owned by DOE at creation, DOE transferred copyright to Sandia before the date of plaintiff's FOIA request) ("not an agency" defense: Sandia, a privately owned laboratory, is not a government-controlled corporation, because its employees and management are not considered to be employees of the federal government, members of the Board of Directors are not recommended or chosen by DOE, and Sandia receives federal funding but is not subject to the day-to-day supervision of the federal government) (Exemption 4: in the alternative, finds that disclosure of software technology and technical documentation would cause substantial competitive harm to Sandia because there would be no reason for interested parties to license the technology from it and the value of its copyright would be destroyed and would cause government's access to such information to be impaired; disclosure of this information would not shed light on the operations of the federal government) ("exceptional circumstances"/"due diligence": plaintiff has an independent cause of action against DOE for violating the FOIA by failing to respond to his request within the statutory time limits; court orders both parties to develop the factual record with respect to the issue of whether DOE has a "pattern and practice" of late responses to FOIA requests).

Goulding v. IRS, No. 97 C 5628, 1998 WL 325202 (N.D. Ill. June 8, 1998) (duty to search: IRS's search was reasonable, despite the fact that no documents responsive to plaintiff's FOIA request were located) (Exemption 3 [26 U.S.C. 6103(a)]: government is not required to obtain waivers from third parties; protects a third-party tax return; IRS has not demonstrated that "reasonably segregable" portions of return information have been disclosed) (Exemption 3 [26 U.S.C. 6103(a)] and Exemption 7(C): IRS has not shown that the exemptions protect information that would identify taxpayers, IRS employees, or witnesses) (Vaughn Index: IRS must submit the document for in camera inspection and must provide the court with a Vaughn Index by June 18, 1998) (exhaustion: plaintiff "constructively" exhausted his administrative remedies when agency failed to timely respond to his FOIA request before suit was filed) (fees: constructive exhaustion does not relieve plaintiff of his statutory obligation to pay the fees for the direct costs of his request; because government's motion to dismiss for failure to pay statutory fees raises a potentially dispositive issue, court elects to treat the motion as one for summary judgment; government ordered to submit additional filings by June 18, 1998).

Green v. NARA, 992 F. Supp. 811 (E.D. Va. 1998) (no improper withholding: in this FOIA case where agency granted plaintiff access to requested motion picture films for a 6-month period, finds that agency's refusal to grant continuing access to records that are to be disposed of imminently pursuant to the Disposal of Records Act does not constitute "improper withholding" under the FOIA).

Green v. United States, 8 F. Supp. 2d 983 (W.D. Mich. 1998) (Exemption 6: agency properly deleted the names of the borrowers and amount of loans from the Michigan Farm Services Agency (FSA) direct loan funding list for 1997; privacy information "becomes more significant" when it is combined with financial information; "privacy interest in this case is heightened by the fact that FSA is lender of last resort, which may connote a tenuous financial position"; plaintiff has not identified a public interest in disclosure).

Halpern v. FBI, No. 1:94-0036A (W.D.N.Y. Mar. 25, 1997) (magistrate's recommendation) (Exemption 1 [E.O. 12,356]: FBI's affidavit demonstrates that the agency followed proper classification procedures and that disclosure of foreign government information, intelligence sources, intelligence activities or methods, foreign relations or foreign activities, and cryptology could reasonably be expected to cause damage to the national security) (Exemption 2 "low": protects temporary and permanent source symbol numbers because they are purely "internal") (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of its surveillance of the unionization of the meatpacking industry from 1933 to 1954) (Exemption 7(C): protects information that would identify FBI Special Agents and support personnel, non-FBI federal employees, state and local law enforcement officers, informants, third parties, and subjects of investigative interest) (Exemption 7(D): despite the age of the documents, finds that it can be inferred that sources who spoke to the FBI about the Communist sympathies of named individuals had expectations of confidentiality because of the fear of retaliation if their identities were made public), adopted (W.D.N.Y. Jan. 22, 1998).

Horsehead Indus. v. EPA, 999 F. Supp. 59 (D.D.C. 1998) (attorney fees: as a result of this lawsuit, plaintiff "forced disclosure" of an appendix to a draft report and over 10,000 pages of background data; plaintiff has substantially prevailed; EPA did not reasonably believe that the appendix to the draft report was exempt from disclosure; EPA withheld over 10,000 pages of background data that "undisputedly" did not fall within any FOIA exemption; EPA's narrow reading of plaintiff's FOIA request does not rise to the level of bad faith; EPA was not "obdurate or recalcitrant" in its opposition to plaintiff's FOIA request, because it had a legally correct basis for resisting the disclosure of most of the documents; public benefit from the release of information pertaining to hazardous substances found at this Superfund site is minimal because the likelihood that the data will be disseminated is speculative; plaintiff had an obvious interest in obtaining records in that it owns the Superfund site in question; attorney fees denied).

Inst. for Justice & Human Rights v. Executive Office of the United States Attorney, No. C 96-1469, 1998 U.S. Dist. LEXIS 3709 (N.D. Cal. Mar. 18, 1998) (Exemption 7(A): in 1994, at the time the agency denied plaintiff's FOIA request for information relating to the immigration-fraud proceedings against the late Bhagwan Rajneesh, the release of the documents could have interfered with the government's ability to prosecute the defendants in a murder conspiracy case, because the conspirators decided to murder the Assistant United States Attorney in order to end the immigration-fraud proceedings; based on the present circumstances in this case, finds that the government's basis for its Exemption 7(A) withholdings are equally as valid today because there are defendants in both cases who remain fugitives; however, 4 of the 6 categories used by the agency to justify its withholdings under this exemption are too general and not "functional"; to comply with the FOIA, government must "recast" these 4 categories and must submit affidavits explaining why disclosure of each document in the new categories would interfere with enforcement proceedings or would otherwise be exempt from disclosure; government must conduct a document-by-document review of the withheld records and provide affidavits attesting that the review took place) (Vaughn Index: having chosen to provide Vaughn Indexes rather than use the categorical approach, INS now has no choice but to use them to support its Exemption 7(A) withholdings; 2 of INS's 5 indexes are "far out of date and must be revised" so that they reflect current information).

Isley v. Executive Office for United States Attorneys, No. 96-0123 (D.D.C. Feb. 25, 1998) (Exemption 6: protects medical records, autopsy reports, and inmate injury reports pertaining to a murder victim because there is no public interest to outweigh the privacy interests of the surviving family members) (Exemption 7 (threshold): requirement met by records compiled during an investigation of a murder at Lorton Reformatory) (Exemption 7(C): protects the identities of FBI Special Agents and employees, nonfederal law enforcement personnel, third parties, informants, and subjects of investigative interest; "an inmate's interest in the discovery of exculpatory information has no weight on the public interest in disclosure") (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; plaintiff has not met his initial burden of showing that this information is in the public domain).

Johnson v. DEA, No. 97-2231, 1998 U.S. Dist. LEXIS 9802 (D.D.C. June 25, 1998) (Exemption 2 "low": protects NADDIS numbers, G-DEP codes, and informant identifier codes because they are predominantly "internal") (Exemption 7 (threshold): requirement met by records maintained in DEA's Investigative and Filing System) (Exemption 7(C): protects information that would identify plaintiff's accomplices and co-defendants, subjects of investigative interest, third parties, government employees, and federal, state, and local law enforcement personnel) (Exemption 7(D): protects information provided by and the identities of coded informants who have a continuing cooperative relationship with DEA and are assured confidentiality; protects information provided by and the identities of noncoded informants because they were given express promises of confidentiality) (Exemption 7(F): protects the identities of DEA Special Agents and Supervisory Agents).

Kefalos v. IRS, No. C-2-97-117, 1998 U.S. Dist. LEXIS 5974 (S.D. Ohio Apr. 3, 1998) (mootness: some of plaintiff's FOIA requests are moot because the government has released the records to her) (duty to search: IRS has demonstrated that it has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request; agency's search for one item was inadequate; within 10 days, defendant must brief the court on the existence of "missing" documents in this category) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects third-party tax return information).

Kefalos v. IRS, No. C-2-97-117, 1998 U.S. Dist. LEXIS 10432 (S.D. Ohio May 19, 1998) (grants portion of defendant's motion for summary judgment that was held in abeyance in its April 3, 1998 order; there are no "missing" records).

Klunzinger v. IRS, 27 F. Supp. 2d 1015 (W.D. Mich. 1998) (duty to search: agency's declaration demonstrates that it conducted a search reasonably calculated to find documents responsive to plaintiff's FOIA request for records relating to the "three-year deferral election" authorized by the Omnibus Budget Reconciliation Act of 1993) (Vaughn Index: the information provided by the IRS is sufficient to provide an adequate factual basis for the exemptions) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 5: the deliberative process privilege protects documents that were prepared as part of IRS's deliberations and that preceded its decisionmaking regarding possible courses of action to be taken in connection with the three-year deferral election) (Exemption 7(E): information compiled by the IRS in order to determine the point at which IRS would undertake compliance activity would reasonably be expected to be used to circumvent the law) (in camera inspection: denies plaintiff's request for in camera inspection; there were over 3000 pages of responsive documents and IRS's declaration was sufficiently detailed to provide a factual basis for evaluating the claimed exemptions).

LaRouche v. Dep't of Treasury, No. 91-1655 (D.D.C. May 21, 1998) (jurisdiction: court has jurisdiction over this FOIA matter; while plaintiff's FOIA request was not addressed to the proper IRS official, IRS processed and acted on the request without returning it to plaintiff) (adequacy of search: because IRS's affidavit is seriously deficient, finds that the IRS's search of its headquarters was not reasonably calculated to uncover all documents responsive to plaintiff's FOIA request; IRS must submit a supplemental declaration within 30 days; IRS's affidavit demonstrates that its searches of its Baltimore and Richmond District Offices were reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 3 [Rule 6(e)]: IRS must submit a Vaughn Index within 30 days to show that withheld material is protected by Rule 6(e); [26 U.S.C. 6103(a)]: protects tax return information of third parties who are of investigative interest to the IRS) (Exemption 5: the attorney work-product privilege protects two letters written by Assistant United States Attorneys containing the writers' analyses and opinions about investigatory matters; agency has not demonstrated that the attorney work-product or deliberative process privileges protect handwritten notes; notes must be disclosed; the deliberative process privilege protects factual portions of two draft affidavits in support of a search warrant because they are predecisional and reflect the "give and take" of decisionmaking) (Exemption 6: protects personnel reviews of employees working on the investigation of plaintiff) (Exemption 7(C): protects identities and telephone numbers of lower-level IRS employees and state and local law enforcement personnel).

Leitzsey v. Coombe, 998 F. Supp. 282 (W.D.N.Y. 1998) (proper party defendant: FOIA applies to federal agencies only, not to individual defendants).

Ligorner v. Reno, 2 F. Supp. 2d 400 (S.D.N.Y. 1998) (Exemption 7 (threshold): threshold requirement met by complaint letter used by Justice Department's Office of Professional Responsibility (OPR) during an internal investigation; records of OPR should be viewed in the same light as records from the Office of the Inspector General, because both engage in law enforcement activities within the meaning of the FOIA) (Exemption 7(C): disclosure would reasonably be expected to constitute an "unwarranted invasion of personal privacy"; when compared with the privacy interests of the person accused of misconduct, the accuser, and third parties, the public interest in disclosure is de minimus) (Exemption 6: complaint letter is a "similar file"; redaction of the complaint letter, which contains the identity of an individual who accused another of misconduct, the identity of the accused, and the names of other individuals, would be an ineffective method to protect the identities of these individuals; when compared with the privacy interests of the person accused of misconduct, the accuser, and third parties, the public interest in disclosure is de minimus) (in camera inspection: in camera inspection is not necessary because of the sufficiency of the government's declarations).

Lipman v. United States, No. 3:97-667 (M.D. Pa. June 3, 1998) (without clarification, grants government's motion for summary judgment with respect to Exemption 2, and denies the motion with respect to witness names withheld under Exemption 7(C)).

Lodi v. IRS, No. S-96-2095, 1998 U.S. Dist. LEXIS 6414 (E.D. Cal. Apr. 14, 1998) ("reasonably segregable": on in camera inspection, finds that the IRS properly withheld 8 documents in part and 67 pages in their entireties under Exemption 7(D)).

Lynn v. Dep't of Labor, No. 97-0902 (M.D. Pa. Apr. 14, 1998) (duty to search: defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request and that agency did not have the records sought at the time at which the request was made).

Maples v. USDA, No. F 97-5663 (E.D. Cal. Jan. 13, 1998) (exhaustion: in his complaint plaintiff asks for disclosure of information he did not request in his initial request letter; plaintiff has exhausted his administrative remedies with respect to information requested in his initial letter, but not as to the additional information he asked for only in his administrative appeal) (Exemption 6: agency must disclose names and mailing addresses of individuals and closely held corporations contained in the special use and grazing permits for the private use of federal lands; list of names and addresses is a "similar file"; disclosure of mailing list does not constitute a "clearly unwarranted invasion of personal privacy"; the invasion of personal privacy would be "little, if any," given that California law requires that such information be reported to the County Assessor; release of such information would provide the public with an understanding of how the permit process works, showing the types and quantities of permits issued).

McDonnell Douglas Corp. v. NASA, No. 96-2611 (D.D.C. May 1, 1998) ("Reverse FOIA"/Exemption 4: denies plaintiff's motion for reconsideration; release of price information submitted by plaintiff in response to a solicitation for bids is not likely to cause substantial competitive harm to plaintiff; defendant's factual decisions were supported by substantial evidence in the certified administrative record; plaintiff was not denied a meaningful opportunity to contest NASA's decision or its evidence; plaintiff has not presented any newly discovered evidence to the court).

McGhghy v. DEA, No. C 97-0185 (N.D. Iowa May 29, 1998) (Exemption 2 "high": disclosure of NADDIS numbers and G-DEP codes would enable individuals to circumvent agency investigative and law enforcement efforts) (Exemption 7(C): protects information that would identify special agents, law enforcement officers, third parties, and subjects of investigative interest; "mere fact that individuals named in withheld documents may have previously waived their confidentiality interests, either voluntarily or involuntarily, does not mandate disclosure of withheld documents") (Exemption 7(D): agency's affidavits demonstrate that sources were provided with express promises of confidentiality) (Exemption 7(F): agency's affidavit demonstrates that the exemption protects the identities of DEA Special Agents and other law enforcement officers) ("reasonably segregable": agency has demonstrated that all reasonably segregable portions of documents have been released).

McQueen v. United States, 179 F.R.D. 522 (S.D. Tex. 1998) (duty to search: agency's affidavit demonstrates that it has provided a complete accounting of all records that exist pertaining to the criminal investigation of plaintiff for possible tax evasion, regardless of whether or not they can be obtained under the FOIA or through discovery) (Exemption 3 [Rule 6(e)]: protects all matters before a grand jury, even if they are not relevant to the party making a FOIA request or if the materials predate the grand jury investigation) (discovery/FOIA interface: court cannot impose the procedure for asserting privilege against discovery under the Federal Rules of Civil Procedure upon an agency invoking a FOIA exemption from disclosure) (Exemption 7(D): agency's affidavit demonstrates that several informants were given express promises of confidentiality; an implied promise of confidentially can be inferred for the remaining informants, considering plaintiff's relationship to these individuals, the informants' potential criminal liabilities, and plaintiff's ability to harm these individuals, both physically and economically).

Means v. Segal, No. 97-1301 (D.D.C. Mar. 18, 1998) (magistrate's recommendation) (Exemption 5: the deliberative process privilege protects portions of attorney notes and investigation reports that were formulated before the agency decision concerning plaintiff's unfair labor practices charge and used by the agency in making its final decision; factual material is not segregable because the facts "reflect the value placed" on information in the decisionmaking process; the attorney-client privilege protects portions of the investigative report containing legal advice and background information pertaining to plaintiff's charge of unfair labor practices; the attorney work-product privilege protects the investigative report even though the agency ultimately did not issue an unfair labor practice complaint) (Exemption 7 (threshold): the Federal Labor Relations Authority (FLRA) has statutory responsibility for investigating unfair labor practice charges and for issuing and prosecuting unfair labor practices complaints) (Exemption 7(C): protects information that would identify witnesses and low-level agency personnel) (Exemption 7(D): agency has demonstrated that sources had received either express or implied promises of confidentiality, as is consistent with the policy of the FLRA), adopted (D.D.C. Apr. 15, 1998).

Meeropol v. Reno, No. 75-1121 (D.D.C. Mar. 24, 1998) (Vaughn Index: in this FOIA case concerning records of the investigation and prosecution of Julius and Ethel Rosenberg, finds, on in camera inspection of 98 pages, that the FBI's affidavits are "woefully deficient"; orders it to produce an "adequately precise" Vaughn Index by May 8, 1998; even validly claimed exemptions have been used too broadly, so that "reasonably segregable," nonexempt information has not been disclosed; agency has "completely lost sight of the meaning and the goal of the Freedom of Information Act and its corollary Executive Order--which is to release information") (Exemption 7(D): applying Landano, finds that the FBI wrongly seeks to withhold entire pages of information based on only the presumption of confidentiality) (Exemption 1 [E.O. 12,958]: contrary to the objectives of the new Executive Order, the FBI has redacted whole paragraphs and pages, while the identifying information is contained in a single phrase).

Miller Auto Sales v. Casellas, No. 97-0032-H (W.D. Va. Jan. 6, 1998) (Exemption 7(A): agency's affidavit satisfied the "minimal legal requirements" for an Exemption 7(A) claim; because enforcement proceeding has ended, case is remanded to agency for a new FOIA determination; agency has not waived all other FOIA exemptions by failing to raise other exemptions before this time).

Moawad v. Dep't of Justice, No. 97-1361, 1998 WL 185503 (D.D.C. Apr. 7, 1998) (duty to search: agency's affidavits demonstrate that an adequate search was conducted in response to plaintiff's FOIA request and that no responsive records beyond those provided were located).

Nash v. Dep't of Justice, 992 F. Supp. 447 (D.D.C. 1998) (mootness: court sua sponte dismisses this action as moot; all responsive documents have been released to plaintiff by the Bureau of Prisons (BOP), in response to plaintiff's FOIA request addressed only to BOP; the fact that some Executive Office for United States Attorneys (EOUSA) documents were located in BOP files when BOP conducted its search for records does not require EOUSA to conduct a separate search of its own files, absent receipt of a FOIA request) (attorney fees: plaintiff received additional documents after filing this lawsuit because it was only then that plaintiff submitted a privacy waiver for certain third-party records; plaintiff did not make any attempt to prove he is entitled to attorney fees).

Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice, No. 97-372 (D.D.C. June 26, 1998) (attorney fees: grants in part plaintiff's request for an interim award of attorney fees because this litigation has been going on for over a year, it has required intensive work by counsel and is not yet near resolution, the information sought is "unquestionably" in the public interest, plaintiff seeks no private gain from the information, and the litigation has imposed financial hardship on plaintiff's counsel; it was reasonable for plaintiff to believe that the OIG report evaluating the FBI forensic laboratory would not be released to the public without a lawsuit; requester's second amended complaint encompassed the final OIG report "as soon as it was completed"; the pendency of plaintiff's lawsuit and motion for preliminary injunction and the urging of the court caused the release of the OIG report and the expedited release of the working papers; information made public by the release of the OIG report is "vital" to the citizenry; release of the report "has sparked an 'unprecedented' review of the crime laboratory and has led to the hiring of outside experts to review the validity of the lab's work on evidence that contributed to guilty verdicts"; government has made an explicit commitment regarding the position it will take on the statute of limitations for habeas petitions arising from the release of the report; plaintiff has no commercial interest in the release of this information; court has not yet determined whether withholding of draft report under the deliberative process privilege is reasonable so it can award no fees related to that issue; government has stated no reasonable basis for withholding or delaying the release of requested information; court will grant plaintiff fees incurred for the motion for preliminary injunction and the motion for expedited processing; court denies plaintiff fees incurred for the cross-motions for summary judgment (because the court has yet to rule on the merits of those motions) and for preparing for congressional hearings and press briefings; grants plaintiff's counsel an hourly rate of $280; grants plaintiff interim attorney fees and costs of $118,058.95).

Nissei Sangyo Am. v. IRS, No. 95-1019, 1998 U.S. Dist. LEXIS 2966 (D.D.C. Jan. 28, 1998) (Exemption 5: the expert material privilege protects 7 paragraphs from 2 separate documents; the attorney work-product privilege protects 9 paragraphs from those documents).

Or. Natural Desert Ass'n v. Dep't of the Interior, 24 F. Supp. 2d 1088 (D. Or. 1998) (magistrate's recommendation) (Exemptions 6 and 7(C): balancing cattle trespassers' rights not to have their names revealed against the public interest in knowing how the government is enforcing and punishing the violation of land management laws, finds that the names should be disclosed; individuals involved have admittedly violated federal law and are in business relationships with the federal government) (fee waiver: plaintiff is entitled to a full fee waiver; disclosure of raw data in support of an environmental assessment and draft management plan will significantly contribute to the public understanding of the activities of the Bureau of Land Management).

OSHA Data/C.I.H., Inc. v. Dep't of Labor, No. 98-283 (D.N.J. June 11, 1998) ("exceptional circumstances"/"due diligence": grants defendant's motion for a stay of proceedings in this FOIA case, without showing any awareness of the terms of 1996 FOIA Amendments, where plaintiff requested in October 1996 responses by some 75,000 businesses to an OSHA survey and submitted an administrative appeal in January 1997; despite the delay of 14 months, finds that a stay is warranted and that defendant must contact each business to determine whether disclosure of this information would result in substantial competitive harm) (fees: when records are requested for commercial use, notifying submitters and evaluating claims of confidentiality fall within the definition of "review costs"; because the fees associated with this request exceed $250 ($1,554,250 for Count One and $145,063 for Count Two), plaintiff must make an advance payment or a substantial deposit is required).

Payne v. Minihan, No. 97-0266 (D.N.M. Apr. 30, 1998) (exhaustion: because plaintiff Morales is not a FOIA requester, he has no standing to bring this lawsuit; exhaustion of administrative remedies is not a jurisdictional issue in FOIA cases, but is rather "a prudential concern and an issue of whether the Plaintiff has failed to state a claim upon which relief can be granted"; plaintiff waived his right to "constructive" exhaustion when he filed suit after agency's untimely response to his FOIA request; plaintiff has exhausted his administrative remedies because an unsuccessful appeal of any denial to the agency is actual exhaustion of administrative remedies under the FOIA; a reasonable interpretation of the NSA's December 16, 1996 letter to plaintiff would be that his suit was ripe for judicial review) (proper party defendant: agencies, not individuals, are proper party defendants under the FOIA) (Exemption 1 [E.O. 12,958] and Exemption 3 [18 U.S.C. 798, 50 U.S.C. 402, 403-3(c)(6)]: plaintiff has not demonstrated that there has been official government disclosure of the existence of NSA-intercepted Iranian/Libyan messages and translations from June 1, 1980 to June 10, 1996; NSA's affidavit does not provide the court with an adequate factual basis on which to make a decision; within 60 days, NSA must provide an in camera affidavit explaining its "Glomar" response, partial disclosure of redacted messages (if they do exist), the "foreseeable harm" to national security, NSA's intelligence sources or methods, and impairment to NSA's communications intelligence).

Perdue Farms, Inc. v. NLRB, No. 2:96-27 (E.D.N.C. Jan. 20, 1998) (Exemption 5: in this case where plaintiff sought documents concerning the Board's union election fraud investigation finds that the deliberative process privilege protects handwritten notes, draft documents, letters, and e-mails) (Exemptions 7(A) and 7(C): protect information pertaining to and names of individuals allegedly involved in an ongoing criminal investigation regarding forged authorization cards) (attorney fees: plaintiff is not eligible for attorney fees because agency's initial disclosures were discretionary and were made in the regular course of administering a FOIA request; the disclosures mandated by the court in this FOIA action do not satisfy the "substantially prevailed" standard; there was no substantial public benefit; attorney fees denied).

Pons v. United States Customs Serv., Nos. 93-2094, 93-2189, 1998 U.S. Dist. LEXIS 6084 (D.D.C. Apr. 23, 1998) (in camera inspection: denies plaintiff's request for in camera inspection; plaintiff has made unsupported allegations of bad faith on the part of the agency; defendant's affidavits and Vaughn Index adequately describe the documents at issue, which number over 1300 pages) (Exemption 2 "low": protects case numbers, filing codes, distribution codes, and a laboratory file number because they are predominantly internal) (Exemption 5: the attorney work-product privilege protects Customs officials' and agents' thoughts and analyses contained in documents relating to the preparation of pleadings and to forfeiture proceedings; the deliberative process privilege protects officers' comments concerning the direction of the investigation and prosecution of plaintiff) (Exemption 6: protects the identities of lower- and mid-level agency employees who worked on the forfeiture documents) (Exemption 7 (threshold): information compiled during the investigation and prosecution of plaintiff meets the threshold requirement) (Exemption 7(A): protects information that was not used in plaintiff's prior trial that could concern future prosecutions) (Exemption 7(C): protects information that would identify witnesses, informants, third parties, special agents, government employees, and law enforcement personnel who were involved in the investigation and prosecution of plaintiff) (Exemption 7(D): given the sensitive nature of the information provided by the source, the source's probable close relationship with the plaintiff, and plaintiff's drug operation and propensity for violence, it can be inferred that the source was given an implied promise of confidentiality) (Exemption 7(E): disclosure of information concerning the cooperative arrangements between the Customs Service and other agencies could compromise the effectiveness of the agency and facilitate circumvention of the law).

Pray v. DEA, No. 97-0134 (D.D.C. Feb. 3, 1998) (Vaughn Index: agency's Vaughn Index is sufficient) (Exemption 3 [18 U.S.C. 2517]: agency properly withheld information obtained through a wiretap) (Exemption 7(D): agency's affidavit demonstrates that both coded and noncoded sources who provided information about plaintiff were given express promises of confidentiality).

Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56 (D.D.C. 1998) (Exemption 4: both pharmaceutical manufacturers have demonstrated that the release of Investigational New Drug Applications (INDs), containing safety and effectiveness records concerning the pre-clinical and clinical studies for experimental prescription drugs, would cause substantial competitive harm; "mere fact that the drug is available abroad does not, without more, prove that the specific information contained in the IND is in the public domain"; applying 21 U.S.C. 355(1) and FDA regulations, which state that safety and effectiveness data on abandoned INDs must be made public except in "extraordinary circumstances," finds that a showing of competitive harm under Exemption 4 does not qualify as a showing of "extraordinary circumstances"; the first pharmaceutical manufacturer has not adequately demonstrated "extraordinary circumstances," and records concerning its abandoned INDs must be released; because the second pharmaceutical manufacturer has adequately demonstrated in its affidavit that it has not abandoned the drug product that is the subject of the IND, agency does not have to disclose records that have already satisfied Exemption 4) (discovery in FOIA litigation: discovery is not appropriate here because affidavits and declarations were submitted in good faith and demonstrate that disclosure of records would cause competitive harm to the manufacturers).

Raulerson v. Reno, No. 95-2053 (D.D.C. Mar. 30, 1998) ("exceptional circumstances"/"due diligence": denies FBI's motion for a stay until March 31, 2001 to process documents regarding 2 prior criminal cases against plaintiff; the FBI has demonstrated "exceptional circumstances" because its backlog has tripled since 1985 and it is processing requests on a first-in/first-out basis; plaintiff, who awaits the appeal of a life sentence, has made a showing of "exceptional need or urgency"; a delay in processing plaintiff's FOIA request may result in the further loss of plaintiff's freedom and jeopardize his substantial due process rights).

Robinson v. DEA, No. 97-1578 (D.D.C. Apr. 2, 1998) (Exemption 2 "high": release of identifiers, procedures and codes, and other internal markings could risk circumvention of agency law; there is no public interest in disclosure) (Exemption 7 (threshold): requirement met by records compiled in the course of DEA's investigation of plaintiff for alleged drug trafficking) (Exemption 7(C): protects information that would identify third parties, government employees, and subjects of investigative interest, including plaintiff's accomplices and co-defendants) (Exemption 7(D): protects the identities of and information provided by coded and noncoded informants who were given express promises of confidentiality; it is reasonable to infer that sources providing information about the plaintiff to the DEA would fear for their safety and that they were given implied assurances of confidentiality) (Exemption 7(F): protects the identities of DEA Special Agents, Supervisory Agents, and other law enforcement officers).

Roman v. Dailey, No. 97-1164, 1998 U.S. Dist. LEXIS 6708 (D.D.C. May 11, 1998) (duty to search: NASA has demonstrated that it conducted a search reasonably calculated to uncover records concerning any "8x spy satellite program" and satellites able "to read the pulses and patterns of the human brain") (Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C. 403-3(c)(6), 403g]: CIA and the National Reconnaissance Office properly refused to confirm or deny information concerning agency personnel, spy satellites, and their annual budgets for spy satellites).

Rosenberg v. Freeh, No. 97-0476 (D.D.C. May 13, 1998) (Exemption 2: protects temporary source numbers of cooperating individuals, banking codes used to transfer FBI monies, and an FBI code name because they are routine internal matters of no significant public interest and disclosure "would risk circumvention of law") (Exemption 3 [Rule 6(e)]: protects the names of individuals subpoenaed to testify before a grand jury) (Exemption 5: the deliberative process privilege protects oral and written communications between the FBI and the United States Attorney's Office regarding the direction of an investigation) (Exemption 7 (threshold): threshold requirement met by records compiled for an undercover operation investigating corruption by public officials) (Exemption 7(A): disclosure of the code name given to a legitimate criminal law enforcement undercover operation could jeopardize the investigation and the prosecution of criminal activity) (Exemption 7(C): protects the home addresses of 3 Assistant United States Attorneys commended for their work on the undercover operation and information that would identify FBI Special Agents and support personnel, informants and other cooperating individuals, subjects of investigative interest, third parties, and state and local law enforcement officers) (Exemption 7(D): protects the identity of a source who was given an express promise of confidentiality; assertions of implied confidentiality provided by the FBI are too general; by June 15, defendant may supplement its declaration with the required specificity for the court to determine whether the exemption was properly applied) (Exemption 7(E): protects polygraph testing data, FBI investigative techniques, and the use of false identities for FBI undercover agents because the information is unknown to the general public and disclosure would reduce the effectiveness of the techniques).

Rosenglick v. IRS, No. 97-747-18A, 1998 U.S. Dist. LEXIS 3920 (M.D. Fla. Mar. 10, 1998) (Exemption 7 (threshold): threshold requirement satisfied by records compiled by the IRS during its criminal investigation of plaintiff for tax years 1990 through 1996) (Exemption 7(A): since plaintiff is under criminal investigation, earlier access to the information gathered through the investigation could interfere with the enforcement proceeding) (Exemption 7(C): protects the identities of potential witnesses and grand jury witnesses).

Rothschild v. DOE, No. 97-1825, 1998 WL 293251 (D.D.C. May 1, 1998) (duty to search: agency's affidavit demonstrates that it conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 5: plaintiff has not produced specific evidence to show that there has been a waiver of the deliberative process privilege).

Russell v. CIA, No. 95-1234, 1998 U.S. Dist. LEXIS 3014 (D.D.C. Mar. 3, 1998) (duty to search: CIA's declarations demonstrate that it conducted a search "reasonably calculated to uncover all documents" related to plaintiff's FOIA request).

S.A. Ludsin & Co. v. SBA, Nos. 96-5972, 97-784, 1998 WL 355394 (E.D.N.Y. Apr. 2, 1998) (fee waiver: agency properly denied plaintiff's fee waiver request when plaintiff made no showing that disclosure of the information at issue would benefit the public; plaintiff failed to show that the request was not made for commercial purposes) (Exemption 5: documents generated by outside consultants at the request of the agency qualify as "inter-agency" memoranda for purposes of this exemption; the deliberative process privilege protects a report prepared by an outside consultant because the report was commissioned with the specific intention of assisting the agency in evaluating the feasibility of the sale of all or some portion of its assets and a final determination has not yet been made).

Samuel Gruber Educ. Project v. Dep't of Justice, 24 F. Supp. 2d 1 (D.D.C. 1998) (magistrate's recommendation) (Vaughn Index: using a sampling of the first 25 documents, finds that the coded declarations provided by the FBI are insufficient; court should order the defendant to produce an adequate Index) (fee waiver: finds, erroneously, that the court is unable to review the FBI's determination as to the fee waiver because the FBI has provided no written record showing how its determination was made; therefore, concludes that the FBI's justification for denying the fee waiver as to duplicative documents, etc. (yielding only a 70% waiver) is insufficient to permit the de novo review required; FBI must either allow a 100% waiver of copying fees or provide a detailed justification for its denial) (Exemptions 6 and 7(C): the FBI "should, at a minimum, be required to use all of its available resources to ascertain whether a person is dead"; if plaintiff provides the name and date of birth, the FBI will have to ascertain whether that person had a Social Security number, and whether that person is dead or alive; when plaintiff provides only a name, if the FBI cannot ascertain that person's Social Security number, it need not process the file) (adopts the magistrate's February 20, 1998 report and recommendation with modifications (this order presumably supersedes the court's March 3, 1998 order, which was filed prematurely); by March 27, 1998, plaintiff must secure by subpoena from the Social Security Administration additional proofs of death for plaintiff's remaining unprocessed subjects; defendant must promptly process the records of the additional subjects for whom death has been established; approves defendant's grant of a 70% fee waiver; defendant must refund any monies already paid by plaintiff in excess of the amount owed; within 30 days, defendant must provide an adequate Vaughn Index; by agreement of the parties, defendant need not provide additional justification for the withholding of the names of FBI agents, other FBI employees, code names or aliases, permanent source symbol numbers, and the file numbers of numbered sources).

Sangre de Cristo Animal Prot., Inc. v. DOE, No. 96-1059 (D.N.M. Mar. 10, 1998) (agency records: contractor report is not an agency record; while report was not prepared by agency, nor was it in its possession at the time the FOIA request was made, agency must release the report pursuant to a substantive agency rule that is judicially enforceable and that provides for the availability of contractor records) (Exemption 6: protects the identities and faces of DOE employees in the contractor report) (adequacy of search: defendant has demonstrated that it has conducted a "search reasonably calculated to uncover all relevant documents" in response to plaintiff's FOIA request).

Schleeper v. Dep't of Justice, No. 97-0388 (D.D.C. May 15, 1998) (duty to search: FBI has demonstrated that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Schwarz v. Dep't of State, No. 97-1342 (D.D.C. Mar. 20, 1998) (Exemption 6: passport files are "similar files" under the FOIA; protects a third-party address in agency's passport files because disclosure would be a "clearly unwarranted invasion of personal privacy" and would not shed light on agency's performance of its statutory duties).

Schwarz v. FBI, No. 2:97-86C (D. Utah Feb. 26, 1998) (duty to search: agency has conducted a reasonable search for records in response to plaintiff's FOIA request; agency need not search anew based on subsequent "clarifications" by plaintiff).

Schwarz v. Fed. Bureau of Prisons, No. C 98-0010, 1998 WL 241606 (N.D. Cal. May 5, 1998) (in this FOIA case where plaintiff seeks information concerning the whereabouts of a named individual, dismisses plaintiff's FOIA complaint for failure to state a claim; defendant has conducted extensive searches and has failed to find any responsive records).

Schwarz v. IRS, 998 F. Supp. 201 (N.D.N.Y. 1998) (venue: dismisses plaintiff's FOIA action on the basis of improper venue; at the time this action was filed, plaintiff was a resident of Salt Lake City and her FOIA request was mailed to IRS offices in Washington, D.C., where the records are located).

Shell Oil Co. v. Dep't of Labor, No. H-96-3113 (S.D. Tex. Mar. 30, 1998) ("Reverse FOIA"/Exemption 4: applying Critical Mass, enjoins defendant from disclosing a draft report prepared by OSHA officials following its investigation of an explosion at a Shell chemical plant in Ohio; prior to the issuance of any subpoenas or warrants, Shell provided the government with all the information requested and allowed an inspection of its property; Shell may well have provided OSHA with more information than OSHA was entitled to, information that was not of a kind that would be "customarily" released to the public; disclosure would deprive the government of all the advantages gained by a cooperative relationship between agencies and the entities they investigate; OSHA is enjoined from releasing any portion of the draft report reflecting confidential information provided by plaintiff; OSHA must release a redacted version of the draft report, with exempt portions deleted).

Shumaker, Loop & Kendrick v. Commodity Futures Trading Comm'n, No. 3:97-7139 (N.D. Ohio Feb. 27, 1998) (without specification, finds that agency properly withheld 1 document under Exemption 2, properly withheld 7 documents under Exemption 3, properly withheld 85 documents under Exemption 5, and properly withheld 72 documents under Exemption 7).

Sierra Club N. Star Chapter v. Pena, 1 F. Supp. 2d 971 (D. Minn. 1998) (publication: failure to publish agency's interpretation of the term "water resources project" in the Federal Register did not render its construction of the term impermissible, where the National Park Service repeatedly informed the state that it considered a proposed bridge a "water resources project").

Sinito v. Dep't of Justice, No. 87-814 (D.D.C. Mar. 31, 1998) (mootness: a FOIA action does not survive plaintiff's death; neither plaintiff's son nor any other party has an interest in this action; case dismissed as moot).

Sokolow v. FDA, No. 1:97-252 (E.D. Tex. Feb. 19, 1998) (duty to search: agency's search for documents responsive to plaintiff's FOIA request was reasonable) (Exemption 4: release of documents that were part of certain investigational new drug applications would cause the submitters substantial competitive harm; "because this type of information directly relates to the production process, it is the paradigmatic example of trade secret and confidential commercial information"; information is commercially valuable and could be used by competitors to develop clinical studies or other research for a competing product).

Sosa v. FBI, No. 93-1126 (D.D.C. Apr. 9, 1998) (Exemption 7(C): based on in camera review of a random sampling of the approximately 1175 documents withheld, finds that the exemption protects the identities of informants who took part in or provided information during the investigation of the murder-robbery in which plaintiff was involved, the names of federal and state law enforcement officers and federal employees, the identities of third parties, and autopsy information of the deceased police officer) (Exemption 7(D): FBI has demonstrated that various sources furnished information with the understanding that it would be kept confidential, including permanent FBI sources, eyewitnesses, interviewees, state and local law enforcement authorities, and employees of a public corporation) (Exemption 7(E): disclosure of bank security devices, bank robbery techniques, numerical ratings of investigative techniques, and certain questions and the sequencing of questions from a polygraph exam would reveal law enforcement techniques not generally known to the public and would aid criminals in evading law enforcement) (Exemption 2: protects permanent source symbol numbers, FBI Headquarters telephone extensions, National Crime Information Center agency identifiers and message key codes, notes that might reveal the amount of money stolen in the bank robbery, documents that report and account for the unrecovered money, some investigative techniques, bank security devices, bank robbery techniques, and a polygraph worksheet).

Steinberg v. Dep't of Justice, 179 F.R.D. 357 (D.D.C. 1998) (Vaughn Index: by June 1, 1998, defendant must submit a supplemental declaration from the CIA identifying which justification in its previous declaration specifically correlates to each Exemption 1 redaction in 11 documents) (Exemption 1 [E.O. 12,356]: Justice Department's Vaughn Index demonstrates that disclosure of information would reveal the scope and depth of an FBI investigation, would reveal an intelligence source, and (with 3 exceptions) would jeopardize "explicit understandings" with foreign governments; by June 1, 1998, the Justice Department must submit a supplemental declaration stating whether the information is withheld pursuant to an express or implied promise of confidentiality in those 3 instances) (Exemption 7(C): by June 1, 1998, the FBI must submit for in camera review, along with whatever additional justification it cares to offer, 7 documents in which "broad swaths" of information were withheld under Exemption 7(C) because disclosure would identify informants, subjects of investigative interest, or third parties; FBI properly withheld substantial redacted portions that describe an informant's interview with the government about terrorist activities) (Exemption 7(D): government's declaration supports the inference that two principal sources interviewed during its investigation of plaintiff's international terrorism activities were given implied assurances of confidentiality) (summary judgment: to demonstrate that agencies are withholding information that they previously disclosed in public releases, plaintiff presents only "pure conjecture about the possible content of withheld information"; plaintiff fails to meet the threshold for opposing summary judgment).

Stigall v. IRS, No. S-97-1283, 1998 U.S. Dist. LEXIS 2870 (E.D. Cal. Feb. 18, 1998) (mootness: plaintiff's request for injunctive relief was mooted when defendant responded to plaintiff's FOIA request) (attorney fees: filing of this action was "necessary" and had a substantial "causative effect" on the release of the documents; plaintiff has "substantially prevailed"; pro se litigant who is not an attorney is not entitled to attorney fees under the FOIA; plaintiff should be compensated for the costs related to the filing of this action).

Tax Analysts v. IRS, No. 94-923, 1998 U.S. Dist. LEXIS 3935 (D.D.C. Mar. 16, 1998) (attorney fees: in response to defendant's motion for a one-third reduction in the amount of the award of attorney fees granted to plaintiff, reduces the requested attorney fees by 5% to reflect the rulings of the court of appeals, and grants plaintiff's request for costs in its entirety; awards plaintiff $27,061.94 in attorney fees and $705.28 in costs).

Tax Analysts v. IRS, No. 94-923, 1998 WL 419755 (D.D.C. May 1, 1998) (establishes a staged, 6-month period for processing and releasing 1300 Field Service Advice (FSA) memoranda to plaintiff; IRS shall file an appropriate Vaughn Index; IRS may redact "true return information," and attorney work-product and attorney-client information; within 30 days, IRS must explain to the court what redactions should be made from 32 FSAs on the basis of secrecy clauses in governing treaties or international agreements; agency must publish the redacted 1300 FSAs as "reading room" material; each Monday, IRS must place in its reading room all FSAs processed during the proceeding week; it would be helpful, but it is not mandated, that the IRS publish an index to these FSAs).

Tinsley v. Comm'r, No. 3:96-1769-P, 1998 WL 59481 (N.D. Tex. Feb. 9, 1998) (proper service of process: court will not dismiss this action strictly on insufficiency of service of process, because plaintiff was a pro se prisoner at the time suit was filed and, therefore, had to rely on the U.S. Marshals to effectuate proper service) (exhaustion: since plaintiff did not appeal the fee waiver denial, she has not exhausted her administrative remedies).

Trans-Pac. Policing Agreement v. United States Customs Serv., No. 97-2188, 1998 U.S. Dist. LEXIS 7800 (D.D.C. May 14, 1998) (Exemption 4: disclosure of Harmonized Tariff Numbers (HTS) (very specific official characterizations of a ship's cargo provided under penalty of law) linked to a specific shipment of goods would cause substantial competitive harm to the importer; using the HTS codes, a third party could determine information that is not available to the public; disclosure of the HTS codes linked to specific shipments would give competitors "substantial insight" into the company's business, the intended use of the goods, method of manufacture, unit price, profit margin, and other plans) (waiver: isolated, unauthorized release of HTS numbers in the past does not affect the application of Exemption 4 in this case).

Trupei v. Huff, No. 96-2850, 1998 WL 8986 (D.D.C. Jan. 7, 1998) (Exemption 7(C): protects the identities of law enforcement officers and third parties because there is no significant public interest in disclosure; requests for Brady material are "outside the proper role of FOIA") (Exemption 7(D): agency has met its burden of demonstrating that circumstances under which sources provided information create an inference of confidentiality in this case where the sources were third-party individuals and the crimes at issue were narcotics operations, murder conspiracy, and narcotics conspiracy) (Exemption 7(F): defendant did not demonstrate that it properly withheld the identities of individuals based upon a reasonable likelihood of physical harm; these identities were properly withheld under Exemption 7(C)).

United States v. Spain, Crim. No. 82-60-N (E.D. Va. June 19, 1998) ("not an agency" defense: courts of the United States are not "agencies" for purposes of the FOIA).

Wade v. Dep't of Commerce, No. 96-0717 (D.D.C. Mar. 26, 1998) (exhaustion: where only plaintiff's attorney's name appeared on the initial FOIA request and subsequent documents, and litigation was filed under plaintiff's name only, finds that plaintiff has not exhausted his administrative remedies) (displacement of FOIA: IRS electronic filer mail list qualifies as "scientific, technical and engineering information" at the National Technical Information Service and is thus exempted from the FOIA fee schedule pursuant to 15 U.S.C. 1153).

Whitehouse v. Dep't of Labor, 997 F. Supp. 172 (D. Mass. 1998) (Exemption 6: balancing the "attenuated prospect of a public good" against the confidentiality of intimate medical records, finds that the exemption protects medical evaluations of federal employees who filed claims under the Federal Employees' Compensation Act; there is no practical way to redact the reports to effectively eliminate potentially identifying patient information).

Willis v. FBI, No. 96-1455 (D.D.C. Feb. 14, 1998) (adopts magistrate's August 6, 1997 report and recommendations) (Exemption 3 [Rule 6(e)]: plaintiff has not demonstrated that the exemption has been waived because grand jury transcripts were released during his criminal trial; "mere fact that at one time the Plaintiff's counsel may have had a right of access to portions of the transcript for a limited purpose hardly suffices to show that all of the requested transcripts now are a part of the public domain"; [18 U.S.C. 2511]: plaintiff's claim that tapes were not procured pursuant to a lawfully authorized wiretap are conclusory and without factual support).


Go to: Main FOIA Post Page// DOJ FOIA Page // DOJ Home Page