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New FOIA Decisions, July-September 2001

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of July through September 2001.


Supreme Court

Maydak v. Dep't of Justice, 533 U.S. 950 (2001) (denies government's petition for certiorari in this FOIA case where the government, after withdrawing its reliance on Exemption 7(A) when underlying law enforcement proceedings concluded, was not permitted to raise other FOIA exemptions on remand in the district court).


Appeals Courts

Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001) (standard of review: in this FOIA case, finds that district court erroneously applied an "arbitrary and capricious" standard when it reviewed the agency denial of plaintiff's request for a preliminary injunction directing the agency to expedite the processing of his FOIA request; district courts must review agency denials of expedited processing requests de novo if request is based on one of the two statutory bases, rather than give deference to agency determinations as would be appropriate for agency-initiated regulatory bases; this court need not decide whether its review of the district court's decision should be deferential or de novo; because the district court did not conduct a de novo review, this court will conduct a de novo review as the statute requires) (expedited processing: agency properly denied plaintiff's request for expedited processing; plaintiff has not demonstrated a "compelling need" for this information because there is no evidence that events connected to the deaths of Princess Diana and Dodi Al-Fayed are matters of "current exigency" to the American public, a standard properly applied on the basis of this statutory provision's underlying legislative history).

Contract Freighters, Inc. v. Sec'y of Dep't of Transp., 260 F.3d 858 (8th Cir. 2001) (on petition for review of an order of the Bureau of Transportation Statistics, applying a statute that unambiguously incorporates the standards of FOIA Exemption 4, finds that motor carrier has not shown that disclosure of certain financial records will result in substantial competitive harm; order affirmed).

Daniel v. Dep't of Justice, No. 01-5119, 2001 WL 1029156 (D.C. Cir. Aug. 28, 2001) (summary affirmance granted in this FOIA case where the district court ruled that the agency properly refused to confirm or deny the existence of records relating to an alleged investigation of a named Assistant United States Attorney and that plaintiff had not exhausted his administrative remedies because he did not pay an assessed fee).

Dietz v. United States, 15 F. App'x 42 (4th Cir. 2001) (affirms district court ruling that agency conducted a reasonable search in response to plaintiff's FOIA request and that no agency records were improperly withheld).

Doe v. Glickman, 256 F.3d 371 (5th Cir. 2001) ("Reverse" FOIA/Exemption 6: in this "reverse" FOIA action brought by farmers and ranchers who have entered into cooperative agreements with the federal government regarding the use of an anti-wolf livestock protection collar and who seek to protect their identities, the court rules that the requester, an animal-rights organization, is entitled to intervene as a matter of right).

Gonzalez v. FBI, 14 F. App'x 916 (9th Cir. 2001) (Exemptions 6 and 7(C): protect information about low-level FBI and DEA employees, an Assistant United States Attorney, and an informant) (adequacy of search: defendant conducted a reasonable search in response to plaintiff's FOIA request).

Klamath Water Users Protective Ass'n v. Dep't of the Interior, 18 F. App'x 473 (9th Cir. 2001) (attorney fees: denies attorney fees; disclosure of records concerning a long-term water-allocation project had "marginal" public interest; association comprised mostly of nonprofit organizations nonetheless had a "commercial" interest in vigorously advocating its members' interests against the Tribes' interests in the limited water resources; the government's position that communications between it and the Tribes qualified as "inter- or intra-agency" communications, even though accepted by neither the Ninth Circuit Court of Appeals nor the Supreme Court, was plausible and not unreasonable).

Looney v. FDIC, 2 F. App'x 8 (D.C. Cir. 2001) (affirms district court ruling that the agency conducted a reasonable search and that the FOIA does not require agencies to create records in response to a FOIA request).

McClain v. United States Dep't of Justice, 17 F. App'x 471 (7th Cir. 2001) (affirms district court ruling; plaintiff has not shown that there is a genuine issue of triable fact regarding his FOIA claim).

Reisman v. Bullard, 14 F. App'x 377 (6th Cir. 2001) (exhaustion: plaintiff's failed to exhaust his administrative remedies because he did not request specific information under the FOIA in accordance with published administrative procedures).

Rugiero v. United States Dep't of Justice, 257 F.3d 534 (6th Cir. 2001) (in camera inspection: district court properly denied plaintiff's request for in camera inspection of documents because there was no evidence of agency bad faith) (FOIA as a discovery tool: a FOIA request is not a substitute for the ordinary process of discovery in civil and criminal cases) (duty to search: agencies conducted reasonable searches in response to plaintiff's FOIA request for records about himself) (Exemption 7(C): protects third-party names contained in a document that previously had been provided to plaintiff's counsel; protects the identities of DEA agents, DEA personnel, and third parties) (Exemption 3 [Rule 6(e)]: protects, in full, grand jury materials containing transcripts of witness testimony, exhibits, and other materials identifying witnesses) (Exemption 2: protects DEA violator identifiers) (Exemption 7(F): without specification, finds that the exemption protects information about DEA agents) (Exemption 7(D): protects identities of and information provided by DEA sources who were given express promises of confidentiality; on remand, DEA must demonstrate that sources had implied assurances of confidentiality in satisfaction of Landano standard) (adequacy of affidavit: affidavits demonstrate that the defendant properly withheld information under Exemptions 2, 3 (Rule 6(e)), 5 (deliberative process privilege), 6, 7(C), 7(D), 7(E), and 7(F)) ("reasonably segregable": remands to the district court for a determination as to whether all "reasonably segregable," nonexempt portions of documents were released to plaintiff).

Schrecker v. United States Dep't of Justice, 254 F.3d 162 (D.C. Cir. 2001) (adequacy of search: reverses district court's ruling and remands with respect to the adequacy of agency's search; when a requester asks for "ticklers" and agency's search reveals that "ticklers" once existed, then a search for "ticklers" is necessary, absent evidence that the documents were destroyed or that the search would be unduly burdensome) (Exemption 1 [E.O. 12,958]: affirms district court ruling that the FBI's affidavit demonstrates that it considered each source and determined in each case that the release of identifying information would damage national security by dissuading current and future sources from cooperating) (Exemption 7(C): reverses district court's decision and remands concerning the privacy of individuals who may be deceased; "the death of the subject of personal information does diminish to some extent the privacy interest in that information, though it by no means extinguishes that interest; one's own and one's relations' interests in privacy ordinarily extend beyond one's death"; "The fact of death, therefore, while not requiring the release of information, is a relevant factor to be taken into account in the balancing decision whether to release information"; without confirmation that the FBI conducted an adequate investigation to ascertain whether individuals were dead or alive, court cannot determine whether the government reasonably balanced the interest in personal privacy against the public interest in disclosure; remanded in order for FBI to document what "other readily available information" it consulted, perhaps the Social Security database, in addition to Who Was Who, and its own institutional knowledge that an individual was deceased or would have been over 100 years of age; FBI adequately weighed the private and public interests at stake with respect to individuals it assumed were alive).

Sneed v. United States Dep't of Labor, 14 F. App'x 343 (6th Cir. 2001) ("no improper withholding": since the documents plaintiff requested under the FOIA do not exist, the government did not "improperly withhold" agency records).

Struck v. Principi, 15 Vet. App. 213 (2001) (jurisdiction: compliance with the FOIA by the Secretary of Veterans Affairs is not a matter within the jurisdiction of the Court of Appeals for Veterans Claims).

Students Against Genocide v. Dep't of State, 257 F.3d 828 (D.C. Cir. 2001) (waiver: district court properly found that plaintiff waived its right to challenge the adequacy of defendant's search when it failed to raise the issue before the magistrate judge; at the appeals level, plaintiff waived this issue because it first made this argument in its reply brief) (Exemptions 1 [E.O. 12,958, E.O. 12,951] and 3 [50 U.S.C. 403-3(c)(6)]: exemptions were not waived with respect to certain photographs when the State Department released 14 similar photographs that show possible human rights violations in Bosnia; the fact that some "information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods and operations"; the CIA has demonstrated that the release of the withheld reconnaissance imagery in combination with other known information would risk intelligence sources and methods; exemptions were not waived when the withheld photographs were displayed (but not distributed) by then-U.N. Ambassador Madeleine Albright during a presentation to the United Nations Security Council; agency properly withheld information that would reveal intelligence sources and methods) (not an "agency record" defense: agency is not required to produce photographs in a new "format" at a different resolution in order to mask the capabilities of the reconnaissance systems that produced them) (duty to search: the State Department conducted a reasonable search in response to plaintiff's FOIA request for all documents that contained the allegedly sensitive information that Albright shared with the Security Council; the fact that the agency gave plaintiff more documents than it requested does not undermine the adequacy of the agency's search) (mootness: action is moot with respect to one category of documents that has been released to the plaintiff) (case remanded to address the issue of attorney fees).

Utah v. Dep't of the Interior, 256 F.3d 967 (10th Cir. 2001) (Exemption 4: protects provisions of a lease between a private company and an Indian Tribe because both parties to the lease face actual competition and would suffer harm if the information were released; declines to rule whether a "public interest" balancing test exists under Exemption 4 because in this case, while the public interest in disclosure of information about the storage and disposal of spent nuclear fuel is high, the competitive disadvantages to the parties to the lease are "overwhelming").


District Courts

Beech v. Comm'r, 190 F. Supp. 2d 1183 (D. Ariz. 2001) (mootness: plaintiff's FOIA action is moot because he has received all of the records that he requested) (adequacy of search: agency conducted a reasonable search in response to plaintiff's FOIA request).

Blackman v. United States Dep't of Justice, No. 00-3004 (D.D.C. July 5, 2001) (duty to search: in this FOIA case where the plaintiff requested deposition transcripts of one expert witness, finds that the agency's search of a partial depository of expert depositions and a pay records search were adequate; agency regulations specify that a requester seeking records about court cases must provide the title of the case, the court in which the case was filed, and the nature of the case; case files are not indexed by the name of experts; agency need not conduct a manual search that would involve 3,000 aviation cases and as many as 37 million pages; by July 20, 2001, agency must respond to requester's proposal to modify her request to require a search of all aviation cases where air traffic control is blamed; while locating other responsive records is "not reasonable and is unduly burdensome," requester should indicate whether she is interested in receiving transcripts from the 60 court cases where the expert witness received payments from the agency) (mootness: action cannot be considered moot because there may well be existing documents that have been neither located nor provided to the plaintiff).

Callahan v. Executive Office for United States Attorneys, No. 98-1826 (D.D.C. Sept. 4, 2001) (summary judgment: grants FBI's motion for summary judgment with respect to information withheld from its own documents; the FBI has 30 days to submit a summary judgment motion for the 37 pages referred to the State Department) (in camera inspection: denies DEA's renewed motion for summary judgment due to the inadequacies of its second Vaughn Index; DEA must submit the 17 documents at issue for in camera inspection).

Colon v. Huff, No. 1:CV-00-0201 (M.D. Pa. June 2, 2000) (where plaintiff, a former inmate, failed to notify the court of his new address, dismisses this FOIA action for failure to prosecute).

Darrow v. IRS, No. 6:01-37 (M.D. Fla. Aug. 24, 2001) (plaintiff's FOIA action dismissed for insufficient service of process).

Davis v. United States Dep't of Justice, No. 00-2457 (D.D.C. June 12, 2001) (exhaustion: even though the FBI did not substantively respond to plaintiff's FOIA request within 20 days, plaintiff has not exhausted his administrative remedies because he did not administratively appeal the FBI's partial grant of his FOIA request; plaintiff may reinstate this action after exhausting his administrative remedies and may include in his complaint the FBI's responses to 8 other FOIA requests filed by plaintiff, if he has exhausted his administrative remedies with respect to those requests).

Falwell v. Executive Office of the President, 158 F. Supp. 2d 734 (W.D. Va. 2001) (in camera inspection: in camera inspection is not necessary because the FBI's Vaughn Index sufficiently describes each redaction, providing as much detail as possible without revealing the information that FOIA is designed to protect) (Exemption 1 [E.O. 12,958]: disclosure would damage national security because the document withheld contains information specific to a particular FBI intelligence source) (Exemptions 6 and 7(C): protect the names of FBI agents, other federal and local government employees, subjects of investigative interest, and third parties because there is "virtually no public interest" in their names and "any information bearing on the FBI's performance of its statutory duties has been disclosed").

Forest Guardians v. United States Forest Serv., No. 99-615 (D.N.M. Jan. 29, 2001) (standard of review: in this "reverse" FOIA case where 3 groups of intervenors seek to prevent the agency from releasing their escrow waiver forms to a FOIA requester, finds that because of the agency's insufficient administrative record, its lack of a final decision about whether to release information, and its refusal to release information absent a court order, the court must review plaintiff's FOIA action de novo, rather than proceeding under the Administrative Procedure Act (APA); ruling on intervenors' cases under the APA on the prior release of personal and business information without proper submitter notification, court oddly concludes that these claims are not moot because the agency may "convert the practices into an on-going unlawful approach to FOIA requests"; whether the court rules using de novo review or the APA's "arbitrary and capricious" standard, the result would be the same disposition of the issues) (Exemption 4: escrow waivers that are available in "a multitude of county clerk's offices throughout the Western United States" are "practically obscure"; the Forest Service "has no real interest in escrow waiver information" that is provided "voluntarily" in order to qualify for a bank loan; from the information provided, it is impossible to determine whether release of this information contained in escrow waivers would cause substantial competitive harm) (Exemption 6: protects personal and financial information contained on escrow waivers, including name and residential address, loan amount, due date, date mortgaged, and a description of the property, because disclosure would not shed light on the agency's performance of its statutory duties) (Exemption 8: does not protect information contained on escrow waiver forms) (regulations: "without doubt," the Forest Service's failure to comply with USDA FOIA regulations concerning required fact-finding procedures was "arbitrary and capricious"; court is unable to determine whether the Forest Service failed to follow its procedures for discretionary release).

Giles v. United States Dep't of Justice, No. 00-1497 (D.D.C. June 4, 2001) (Exemption 7 (threshold): requirement met by records concerning DEA's analysis of a suspected controlled substance sold by the requester, which resulted in his prosecution and conviction) (Exemption 7(C): protects the names of a supervisor and a chemist who conducted tests on the controlled substance) (duty to search: even though the released documents may be "unreadable," agency provided plaintiff with the "best available copies" of responsive records; agency must demonstrate that it conducted reasonable searches in response to plaintiff's requests for certain records) (jurisdiction: when plaintiff broadens his FOIA request during litigation, the court lacks jurisdiction because plaintiff has not exhausted his administrative remedies).

Givner v. Executive Office for United States Attorneys, No. 99-3454 (D.D.C. Mar. 1, 2001) (Exemption 7(A): agency's categorical Vaughn Index demonstrates that the disclosure of prosecutorial information concerning requester would interfere with the impending trial of 2 indicted co-conspirators and the habeas action of a convicted co-conspirator and could potentially jeopardize the law enforcement personnel involved) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts, including witness names and questions asked by the prosecutor) (Exemption 5: the attorney work-product privilege protects in their entireties 188 pages, including handwritten notes, trial preparation materials, trial research, directives between government attorneys, witness-related notes and materials, and draft pleadings and letters) (Exemption 6: threshold requirement met by the names and personal information concerning particular individuals; protects the identities of grand jurors and government witnesses at plaintiff's criminal trial, when plaintiff's co-defendants are either still fugitives or seeking a new trial) (Exemption 7(C): categorically protects information that would identify law enforcement officers and informants connected to the investigation of plaintiff) (Exemption 7(D): protects the names of confidential informants and other materials that would identify them because promises of confidentiality can be inferred due to the nature of plaintiff's crime (drug trafficking) and the "inherent danger" in the release of confidential information) ("reasonably segregable": all "reasonably segregable," nonexempt information has been released).

Goff v. United States Treasury Dep't, No. 98 Civ. 3874, 2001 U.S. Dist. LEXIS 11184 (S.D.N.Y. Aug. 6, 2001) (exhaustion: plaintiff, who never filed a FOIA request with the IRS, has not exhausted his administrative remedies).

Gonser v. United States, No. 00CV2983, 2001 WL 721818 (N.D. Ga. May 17, 2001) (proper party defendant: FOIA does not authorize suit against individual agency employees) (exhaustion: plaintiff did not exhaust his administrative remedies by submitting an administrative appeal as required).

Grace v. Dep't of Navy, No. C 99-4306, 2001 WL 940908 (N.D. Cal. Aug. 13, 2001) (duty to search: in this FOIA case where plaintiff seeks his father's World War II records, finds that a reasonable search has been conducted where the Navy has apparently misplaced the father's personnel records, but has released his medical records).

Halpern v. FBI, No. 94-CV-365 (W.D.N.Y. Aug. 31, 2001) (magistrate's recommendation) (Exemption 1 [E.O. 12,958]: protects FBI and CIA information concerning the unionization of the American meatpacking industry from 1933 to 1954; government has properly not granted plaintiff an historical researcher waiver under E.O. 12,958; government's affidavits demonstrate that disclosure of the redacted information that is over 25 years old could be expected to cause serious damage to the national security by impairing relations between the United States and foreign governments, by undermining ongoing diplomatic activities, by negatively impacting the ability to recruit sources, and by revealing the locations of 2 foreign CIA intelligence posts) (Exemption 3 [50 U.S.C. 403-3(c)(6)]: protects the locations of 2 foreign CIA intelligence posts) (Exemption 6: information gathered by a CIA program to intercept and open mail sent between the United States and the former Soviet Union meets the "similar files" requirement; protects the identities of living individuals who were suspected at one time of cooperating with members of the Soviet Communist Party) (Exemption 7(D): the FBI has demonstrated that information was provided by regular sources with the understanding that the FBI would protect their identities) (in camera inspection: in camera inspection is unwarranted because the government's affidavits are sufficiently detailed).

Helmon v. United States Dep't of Justice, No. 1:00-141 (W.D. Ky. July 28, 2001) (duty to search: FBI's affidavits demonstrate that it conducted a reasonable search for records in response to the plaintiff's FOIA request).

Ho v. Dir., Executive Office for United States Attorneys, No. 00-1759 (D.D.C. Sept. 17, 2001) (adequacy of search: agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7(C): protects 4 pages in their entireties because, due to the personal nature of the information, disclosure would expose third parties and subjects of investigative interest to "harassment, harm, or exposure to unwanted and/or derogatory publicity").

Hoffman v. United States Dep't of Justice, No. 98-1733 (W.D. Okla. July 10, 2001) (after an in camera review that compared the list of documents responsive to plaintiff's FOIA request for records concerning the bombing of the Murrah Federal Office Building in Oklahoma City against the list of trial exhibits used in the federal criminal prosecution, finds that one additional document must be provided to plaintiff; "were it not for the lengthy procedural history of this case and defendant's shoddy conduct in the litigation," court would be inclined to grant defendant's motion for summary judgment; defers ruling on defendant's motion for summary judgment until August 20, 2001 because the federal criminal case is nearing its end and this will give plaintiff the opportunity to seek from the federal judge an alteration in the existing restrictions on the FBI's disclosure of these investigatory records).

Isley v. Executive Office for United States Attorneys, No. 96-0123 (D.D.C. May 22, 2001) (on remand, after in camera inspection, finds that all "reasonably segregable," nonexempt portions of responsive documents have been provided to the plaintiff).

Joyce v. FBI, 152 F. Supp. 2d 32 (D.D.C. 2001) (Exemption 7(C): protects the identities of an FBI Special Agent and a local law enforcement officer contained in investigatory records) (summary judgment: the FBI conducted a reasonable search and provided plaintiff with all reasonably segregable, nonexempt information).

Judicial Watch, Inc. v. United States Dep't of Commerce, 201 F.R.D. 265 (D.D.C. 2001) (denies government's motion for a protective order; plaintiff may retrieve from the court draft declarations, notes, and the log prepared by agency officials in the course of this FOIA action).

Judicial Watch, Inc. v. United States Dep't of Justice, 159 F. Supp. 2d 763 (D.D.C. 2001) (plaintiff's failure to respond to INS's request that it narrow its document request, its failure to prosecute this case, and its "forked-tongue" response to the court's order seem to have been done "deliberately," and with such "malicious glee," that these actions are "sanctionable").

Judicial Watch, Inc. v. United States Dep't of Justice, No. 99-1039 (D.D.C. Sept. 13, 2001) (Exemptions 6 and 7(C): FBI properly refused to confirm or deny the existence of records on 2 named individuals because plaintiff had provided neither proof of death nor a privacy waiver for such individuals).

Judicial Watch, Inc. v. United States Naval Observatory, 160 F. Supp. 2d 111 (D.D.C. 2001) (jurisdiction: court lacks jurisdiction in this FOIA case where agency did not respond to plaintiff's request for expedited processing within the 10-day time limit required by its regulations, but has since provided a "no records" response; this failure to respond to the request for expedited processing did not constructively exhaust administrative remedies with respect to plaintiff's request for documents, because the statutory provision concerning expedited processing "in no way alters or repeals the time period for an agency's substantive determination of a request for records"; court lacks jurisdiction over plaintiff's claim that the agency did not conduct an adequate search in this case, because the agency responded to plaintiff's FOIA request within the 20-day statutory time period).

Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17 (D.D.C. 2001) (referring to this "titanic FOIA war between Judicial Watch and the Justice Department" where plaintiff seeks records concerning Elian Gonzalez, finds that the INS must supplement its submissions and demonstrate that 5 documents were prepared in anticipation of litigation and that a sixth document is protected by the deliberative process privilege).

Kulbicki v. FBI, No. 1:01-43 (D. Md. June 13, 2001) (attorney fees: plaintiff substantially prevailed in this FOIA action where the agency's response came after a lengthy delay and after initiation of this lawsuit; the public benefit from this action is "bringing the agency into compliance with the law, but this can be said of any successful FOIA action"; records that may support plaintiff in a collateral challenge to his conviction are essentially personal; government's delay in responding to plaintiff was unreasonable; plaintiff must be reimbursed the filing fee paid in pursuit of this action, but not for typing costs, postage, and xeroxing).

Kurzon v. HHS, No. 00-395, 2001 WL 821531 (D.N.H. July 17, 2001) (Exemption 6: orders disclosure of the names of unsuccessful applicants for National Institute of Mental Health extramural grants and those business addresses that would reveal the names of the unsuccessful applicants; unsuccessful applicants "have something more than a de minimus privacy interest in that information," even though it is not "significantly stigmatizing"; the public interest in obtaining other information about the application process is a derivative use that is of "questionable value," thereby making the "weight of the identified public interest [in scrutinizing the peer review process of awarding grants] uncertain"; therefore, defendant has not shown that disclosure "constitutes a clearly unwarranted invasion of personal privacy") (adequacy of agency affidavit: strikes certain portions of defendant's affidavits because affiants lack personal knowledge and experience).

LaRouche v. United States Dep't of Justice, No. 90-2753 (D.D.C. Nov. 17, 2000) (Exemption 5: the inter- or intra-agency requirement is not met by a Justice Department letter, written by an attorney, who was seeking information for a criminal trial, to Pan American Airways because the airlines is not an agency of the federal government; the inter- or intra-agency requirement is met by memoranda between the Justice Department and agencies of the federal government and one unidentified law enforcement agency because these documents were prepared for a criminal trial in which the law enforcement agencies were involved; memoranda are protected by the attorney work-product privilege because they contain an attorney's thoughts, impressions, and legal strategy and they were prepared in anticipation of litigation) (Exemption 7(D): protects identities of and information provided by sources who were given express promises of confidentiality; with respect to records compiled during the investigation of plaintiff for possible financial crimes, the IRS has demonstrated that a promise of confidentiality may be inferred for individuals who had business dealings with plaintiff because of the possibility of reprisals; the Postal Service did not demonstrate that sources had implied promises of confidentiality, but no information need be released because the information was properly withheld under Exemption 7(C); the Justice Department did not demonstrate that sources had implied promises of confidentiality and it must release 3 documents; the Justice Department has demonstrated that it properly withheld 3 letters containing information from alleged victims of the LaRouche organization because of the understandable fear of retaliation; disclosure at trial does not vitiate the exemption; information released in a prior FOIA request must be released here) (Exemption 7(C): protects the names and addresses of law enforcement agents, informants, and third parties to the investigation; disclosure at trial does not vitiate the exemption; information released in a prior FOIA request must be released here) (Exemption 7(E): protects information on techniques for undercover work because disclosure would have a negative impact on future investigations) (Exemption 3 [Rule 6(e)]: protects the names of grand jury witnesses and jurors) (Exemption 6: a personal letter written to a Justice Department official by an acquaintance containing sensitive family information, some of which has been publicized, is exempt from disclosure because of the strong privacy interest in nondisclosure) (waiver: IRS must release 3 documents that it neglected to include in its declarations) ("reasonably segregable": all "reasonably segregable," nonexempt portions of responsive documents have been provided to the plaintiff).

LaRouche v. United States Dep't of Justice, No. 90-2753, 2001 U.S. Dist. LEXIS 25416 (D.D.C. July 5, 2001) (duty to search: the FBI has made a "consistent determined effort" to find documents responsive to plaintiff's FOIA request for records about himself; because of the large number of documents involved, the age of the documents, and the number of times they have been handled during 11 years of litigation, "it is reasonable" that the FBI might not be able to locate some documents known to the plaintiff; defendant is not obligated to release a record located in the FBI's Boston Field Office because plaintiff's request was directed to FBI Headquarters and 20 field offices, but not the Boston Field Office) ("referred" records: FBI must release to plaintiff records referred for processing to 2 other Justice Department components and the BATF because they have not been properly accounted for) (Exemptions 1 and 3 [50 U.S.C. 403(d)(3)]: protect 7 documents in their entireties because disclosure would reveal an intelligence source, intelligence methods, the location of a CIA installation, or internal organizational data) (Exemption 7(C): categorically protects the identities of witnesses who testified at trials against 3 other defendants, even though plaintiff claims to know their identities and alleges government misconduct; protects drawings of office space with handwritten annotations by informants, because the handwriting could be identified and the very content of the drawings might reveal the informant) (Exemption 7(D): protects information provided by sources, including foreign governments and financial and commercial institutions, under express promises of confidentiality; defendant must release 22 documents where, because the crimes were white-collar offenses and there was no showing of implied promises of confidentiality, it has not shown that the informants feared retaliation) (waiver: the inadvertent release of similar information in another FOIA case does not warrant disclosure of otherwise properly exempted information).

MCI Worldcom, Inc. v. GSA, 163 F. Supp. 2d 28 (D.D.C. 2001) ("Reverse" FOIA/Exemption 4: while an agency's interpretation of its regulations is normally entitled to considerable deference by the courts, its interpretation of the Federal Acquisition Regulations (FAR) is entitled to minimal deference because the FAR is a joint product of several agencies; enjoins agency from releasing pricing schedules (B-Tables) that were submitted in connection with plaintiffs' contracts to provide telecommunications services to the federal government; agency's proposed action was arbitrary and capricious because B-Tables were not "unit prices" and, in any event, their disclosure would cause competitive harm due to competitors underbidding and customers "ratcheting down" their prices; the FAR prohibits disclosure of the B-Tables because they constitute "confidential" information under the FOIA and the Trade Secrets Act; disclosure of the B-Tables would provide competitors with detailed pricing information that would permit underbidding for government contracts and would allow commercial customers to "ratchet down" prices once they knew that government customers were receiving more favorable rates; agency acted "arbitrarily and capriciously" by failing to follow its submitter-notice practices).

Perlman v. United States Dep't of Justice, No. 00 CIV. 5842, 2001 WL 910406 (S.D.N.Y. Aug. 13, 2001) (Exemption 7 (threshold): requirement met by Inspector General report on the handling of the Alien Entrepreneur program that examined alleged improprieties by a former senior official at INS) (Exemption 6: report is a "similar file" because it contains information concerning the alleged misconduct of a particular individual and information that would identify certain alien investors) (Exemptions 6 and 7(C): on in camera inspection, finds that agency properly withheld information that would identify the government official, informants, and third parties from 2 e-mail messages and from portions of report contained in the Synopsis, the Subject of Investigation, the List of Exhibits, and various Memoranda of Investigation because the privacy interests of these individuals outweigh the public interest in disclosure; agency has not properly withheld information contained in 6 exhibit documents attached to the memoranda of investigation; this information does not have similar "privacy value" and disclosure would shed light on the agency's performance of its statutory duty; these documents must be released in full with only information that would identify alien investors redacted).

Rashid v. United States Dep't of Justice, No. 99-2461 (D.D.C. June 12, 2001) (Exemption 5: the attorney work-product privilege applies to 40 documents relating to a settlement agreement reached between several federal and state government entities and the requester who had been investigated for possible violation of federal medical fraud statutes; court declines to infer "legal misbehavior" because a state court found that one state entity was not bound by the agreement; privilege was properly applied to 3 documents prepared in the course of the criminal investigation by nonattorneys "at the direction of and for the guidance of" attorneys; defendant must make a showing of segregability with respect to these 40 records and release all "reasonably segregable," nonexempt portions; the privilege does not apply to 3 documents that were shared with a third party with no demonstrated common interest; the privilege does not apply to 2 documents that were written after the settlement agreement was executed; defendant must release "reasonably segregable," nonexempt portions of documents withheld under the deliberative process privilege) (Exemption 6: protects documents containing third-party names, patient names, and descriptions of patients' medical situations in their entireties because plaintiff has not shown a public interest in disclosure; deletion of personal identifying information "may not be adequate to provide the necessary privacy protection") (Exemption 7(C): protects the identities of individuals who participated in the investigation of plaintiff, including witnesses, patients, employees, and law enforcement and government personnel; defendant must make a showing of segregability with respect to these records and release any "reasonably segregable," nonexempt portions) (Exemption 7(D): implied promises of confidentiality may be inferred for sources who provided sensitive, privileged medical information in the course of a law enforcement investigation for fraudulent medical practices; defendant must make a showing of segregability with respect to these records and release all "reasonably segregable," nonexempt portions).

Redding v. Christian, 161 F. Supp. 2d 671 (W.D.N.C. 2001) (jurisdiction: court lacks jurisdiction because plaintiff has not exhausted his administrative remedies).

Schwarz v. USDA, No. 01-1464 (D.D.C. June 29, 2001) (on plaintiff's typed complaint, which comprises no fewer than 2370 pages and names 3087 individual federal employees, rules that within 30 days plaintiff must show why she should not be enjoined from filing further civil actions raising the same claims as previously filed or seeking the same types of records under the FOIA; the "evidence of harassment is overwhelming"; plaintiff has engaged in a "pattern constituting harassment" by persisting in filing FOIA claims against more and more federal agencies and employees, seeking records about a third party without a privacy waiver).

Schwarz v. USDA, No. 01-1464 (D.D.C. Aug. 3, 2001) (because of her history of frivolous claims and litigation abuses, plaintiff is enjoined from filing any further civil actions without first obtaining leave of court; the motion for leave to file must certify that her complaint raises matters that have never previously been litigated in federal court and the complaint may not exceed in length 10 pages single-spaced or 20 pages double-spaced; finding that the right to request records is at the core of the FOIA and the Privacy Act, plaintiff may seek records about herself, but she may not file actions that name individual federal employees as defendants or that seek records about third parties unless they are accompanied by proof of death or a privacy waiver).

Sephton v. FBI, No. 00-30121 (D. Mass. Aug. 29, 2001) (duty to search: the FBI conducted a reasonable search in response to plaintiff's FOIA request for records concerning its investigation of the crash of Trans World Airlines Flight 800) (Exemption 3 [Rule 6(e)]: protects an FBI summary of the documents subpoenaed by the grand jury because disclosure would violate the secrecy of the grand jury proceedings; plaintiff was provided with all "reasonably segregable," nonexempt portions of the summary).

Voinche v. FBI, Nos. 96-2307, 97-2788 (D.D.C. May 22, 2001) (on in camera inspection, finds that documents withheld in their entireties under Exemption 7(C) could not be segregated and released in redacted form; by June 15, 2001, defendant must file a renewed motion for summary judgment explaining why the second declaration is sufficient to address the court's earlier concerns about withholding information regarding the investigation of certain Louisiana politicians under Exemption 7(C)).   (posted 10/23/01)


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