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New FOIA Decisions, January-March 2001

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


Appeals Courts

Hamilton Sec. Group, Inc. v. HUD, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001) (per curiam) (grants government's motion for summary affirmance in this FOIA action where the requester failed to exhaust his administrative remedies by filing its administrative appeal one day after the 30-day regulatory time period had ended).

Lissner v. United States Customs Serv., 241 F.3d 1220 (9th Cir. 2001) (Exemption 7(C): reverses and remands district court ruling in this case where the requester sought records about an incident where the Customs Service arrested two California police officers for drug smuggling activity; the agency must release information about the commission of the crime, details concerning the mitigation of the imposed fine, and general physical descriptions of the two police officers; even though requester did not demonstrate misconduct on the part of the agency, there is a public interest in "determining whether Customs afforded [the two officers] preferential treatment because of their status as law enforcement officers" which outweighs the "somewhat reduced" privacy interests of the two public law enforcement officers) (attorney fees: on remand, the district court must reevaluate whether plaintiff should be awarded attorney fees).

Mays v. DEA, 234 F.3d 1324 (D.C. Cir. 2000) (Exemption 7(C): remands to the district court for a finding as to whether "investigative details" are "inextricably intertwined" with information that would identify a third party or if additional information can be segregated and released) (Exemption 7(D): agency's affidavits demonstrate that express and implied promises of confidentiality protect the reports of informants relating to DEA's investigation of plaintiff for conspiracy to traffic in cocaine; an implied promise of confidentiality may be inferred because of the "violence and risk of retaliation that attend this type of crime"; "an informant is at risk to the extent that the criminal enterprise he exposes is of a type inclined toward violent retaliation").

Robert v. Nat'l Archives, 1 F. App'x 85 (2d Cir. 2001) (district court properly dismissed this FOIA action for lack of jurisdiction; agency did not improperly withhold information from FOIA requester; Exemption 7(C) protects the name of a government employee).

Robinson v. Dep't of Justice, No. 00-11182 (11th Cir. Mar. 15, 2001) (per curiam) (Exemption 7 (threshold): the mere fact that information is contained in an investigatory file does not make it exempt from disclosure; agency has not shown that the threshold requirement is met by some records, most notably the names and addresses of individuals who purchased requester's ship at a government auction) (Exemption 7(A): vacates and remands district court's order where the district court sua sponte denied requester's FOIA suit; while agreeing that a pending appeal of a conviction constitutes an "enforcement proceeding," rejects the government's argument that a law enforcement agency's disclosure of any documents that an individual intends to use in a pending appeal automatically constitutes a per se interference in an enforcement proceeding; because district court ruled before the agency had a chance to file a Vaughn declaration, it lacked an adequate factual basis for determining that the release of the requested information would interfere with a pending law enforcement matter; government must categorize the records and make a minimal showing of why disclosure could interfere with an enforcement proceeding).

Rockwell Int'l Corp. v. Dep't of Justice, 235 F.3d 598 (D.C. Cir. 2001) (subsection (a)(2)(A): a Justice Department report of a voluntarily conducted internal investigation into the propriety of the Rocky Flats prosecution does not qualify as a "final opinion" because the propriety of the prosecution was neither a "case" nor an "adjudication") (Exemption 5: privilege was not waived with respect to the attachments to the report when they were given to Congress to assist them in their deliberations, because disclosure was to subcommittee under subsection (d) of the Act; the attorney work-product privilege was not waived when Justice selectively relied on and quoted from the attachments "in a dispute with a co-equal branch of government and in the ensuing struggle for public opinion," which was not an adversary proceeding).

Sanford v. Executive Office for United States Attorneys, 5 F. App'x 471 (6th Cir. 2001) (Exemption 3 [Rule 6(e)]: protects the transcript of the grand jury testimony of a detective in the proceeding that led to the requester's indictment).

Shantz v. Dep't of Justice, 4 F. App'x 461 (9th Cir. 2001) (district court did not err by granting summary judgment to the government; agency's affidavits describing its search efforts are detailed and nonconclusory).

Sherman v. Dep't of the Army, 244 F.3d 357 (5th Cir. 2001) (waiver: only individuals can waive their privacy interests in their Social Security numbers; though the Army may in the past have released some Social Security numbers of service personnel, these disclosures do not waive the soldiers' privacy interests in them) (Exemption 6: protects the Social Security numbers contained in the Army's post-1968 award orders because disclosure would be a "clearly unwarranted invasion of personal privacy"; requester failed to articulate a public interest in disclosure; because the review fees resulting in the redaction of Social Security numbers are so high, the requester improperly attempted to categorize the disclosure of all information, rather than of merely the Social Security numbers, as promoting the public interest; simultaneous disclosure of an individual's name and Social Security number exposes that person to a heightened risk of identity theft and other forms of fraud).

Times Publ'g Co. v. Dep't of Commerce, 236 F.3d 1286 (11th Cir. 2001) (Exemption 3 [50 U.S.C. app. 2411(c)]: reverses lower court ruling; export license application information is protected from disclosure, because even though this section lapsed in 1994, President Clinton, pursuant to the International Emergency Economic Powers Act, continued operation of this statute by executive order).

United States v. Alcorn, 6 F. App'x 315 (6th Cir. 2001) (Court lacks jurisdiction because federal courts are excluded from the FOIA's definition of "agency").


District Courts

Aldridge v. Comm'r, No. 7:00-131, 2001 WL 196965 (N.D. Tex. Feb. 23, 2001) (Exemption 7(C): protects personal information about IRS employees, including Social Security numbers, home addresses and telephone numbers, dates of birth, and a direct dial telephone number; with respect to IRS information about potential disciplinary actions, finds that there is a public interest in disclosure and the personal privacy of the employees will be protected if this information is released with the names of the individual employees redacted).

Al-Fayed v. CIA, No. 00-2092 (D.D.C. Dec. 11, 2000) (expedited processing: the standard of review for an agency decision not to expedite a FOIA request is the "abuse of discretion" standard and not de novo review; this action is not about whether or not certain documents shall be released, but rather is one about the timing of releasing records) (preliminary injunction: denies plaintiff's motion for a temporary restraining order and preliminary injunction; plaintiff has failed to demonstrate a substantial likelihood of success on the merits, that the public interest would be furthered by this injunction, and has failed to make a showing of irreparable injury) (discovery in FOIA litigation: denies plaintiff's request for discovery in this action where there has been no refusal to release documents and no evidence of agency bad faith).

Al-Fayed v. CIA, No. 00-2092 (D.D.C. Jan. 16, 2001) ("exceptional circumstances"/"due diligence": a motion for a stay is substantially different from a motion for summary judgment, most importantly because a motion for a stay does not evaluate the merits of a case; finds that the CIA, the Department of State, the National Security Agency, and the FBI have each demonstrated that they have an unpredictable workload of FOIA cases and that they are committed to reducing their backlogs; grants the CIA an Open America stay until November 15, 2002, the Department of State until June 18, 2001, the National Security Agency until September 15, 2001, and the FBI until February 28, 2002; "plaintiffs' efforts to modify the scope of their requests are more symbolic than substantive") (discovery in FOIA litigation: denies plaintiffs' request for discovery into the FOIA processing at these 4 agencies at this time).

Amro v. United States Customs Serv., 128 F. Supp. 2d 776 (E.D. Pa. 2001) (Exemption 2 "low": government properly withheld internal codes, case and file numbers, file markings, G-DEP codes and NADDIS numbers, and recordkeeping directions because they are "related solely the internal personnel rules and practices" of the agency) (Exemption 7(C): protects the identities of local law enforcement officers, subjects of investigative interest, agency employees, informants, third parties, and federal agents; within 30 days, DEA must submit a supplemental affidavit to explain its withholding under this exemption of all information described as "investigatory details" pertaining to suspects) (exhaustion: plaintiff has exhausted his administrative remedies with respect to documents the agency discovered after the agency had denied plaintiff's appeal, because plaintiff did not receive these new documents in a timely fashion and they were sent to him after he filed this FOIA action; with respect to another 407 documents that have always been treated as covered by a separate FOIA request, plaintiff must seek an appeal of the agency's initial withholding determinations) (Exemption 3 [Rule 6(e)]: protects "records obtained from a grand jury subpoena") (Exemption 7(F): DEA's affidavit demonstrates that it properly withheld the identities of Supervisory Special Agents and other law enforcement officers because disclosure would endanger their lives) (in camera inspection: denies plaintiff's request for in camera inspection because there is no reason to suspect agency bad faith in the processing of plaintiff's FOIA request).

Baltimore Sun v. United States Marshals Serv., 131 F. Supp. 2d 725 (D. Md. 2001) (Exemption 7 (threshold): requirement met by records compiled by the United States Marshals Service (USMS) for the enforcement of civil and criminal seizure and forfeiture laws) (Exemptions 7(C) and 6: exemption categorically protects information that would identify third parties such as subjects of investigative interest, witnesses, or informants; with respect to information concerning the sale of 5 seized properties, the exemption does not protect the names of the receivers or buyers of this property; these purchasers "voluntarily choose to participate in the purchase of property from the United States government in a wholly legal commercial transaction"; access to this information would "enable the public to assess law enforcement agencies' exercise of the substantial government power to seize property, as well as USMS's performance of its duties regarding the disposal of forfeited property"; information must be disclosed) (Exemption 2 "low": does not protect court case numbers, which are public information).

Berlin Steel Constr. Co. v. VA, No. 95-752 (D. Conn. Sept. 30, 1996) (Exemption 4: defendant's affidavit is conclusory and does not demonstrate how disclosure of line item breakdowns in payment and progress reports relating to a construction project at a VA medical center would cause substantial competitive harm to the contractor; the variables used by the contractor to reach its final bid for this one project are unknown and would have to be shown to be "substantially stable" in order to enable competitors to undercut the contractor's bidding strategy) (attorney fees: plaintiff, a subcontractor for this construction project, has only a pecuniary interest in pursuing payment from the contractor for completed work on the project).

Bilbrey v. Dep't of the Air Force, No. 00-0539 (W.D. Mo. Jan. 30, 2001) (Exemption 5: on in camera inspection, finds that two memoranda prepared to assist decision makers are predecisional; the deliberative process privilege protects redacted portions of one memorandum and some of the redacted portions of the second memoranda that contain advice and recommendations; portions of the second memoranda are factual and must be segregated and released to the plaintiff within 10 days).

Brunskill v. Dep't of Justice, No. 99-3316 (D.D.C. Mar. 19, 2001) (duty to search: agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7(C): protects information that would identify FBI Special Agents and other federal and foreign law enforcement officers where there has been no demonstration of agency wrongdoing) (Exemption 7(D): protects names of and information provided by confidential informants who were given express promises of confidentiality).

Canning v. Dep't of the Treasury, No. 94-2704 (D.D.C. Mar. 15, 2001) (Exemption 5: the deliberative process privilege protects Secret Service Special Agents' predecisional opinions regarding the activities of a group which was of possible interest to the agency where the final opinion has been released to the plaintiff; disclosure "could compromise the agency's ability to complete its protective mission by stifling honest and frank communication within the agency") (Exemption 7(C): protects information that would identify informants and third parties contained in law enforcement records).

City of Chicago v. United States Dep't of Treasury, No. 00 C 3417, 2001 WL 34088619 (N.D. Ill. Mar. 6, 2001) (Exemptions 6 and 7(C): in this FOIA request where the plaintiff sought information in 2 ATF gun-trafficking databases, finds that Exemption 6 protects only information contained in government employees' personnel or medical files; Exemptions 6 and 7(C) do not protect information contained in the 2 ATF databases in 78 categories such as the address where a traced gun was recovered, the names and addresses of the purchasers and possessors of traced weapons, and multiple sales purchasers; even if either exemption protected this type of information, an individual's privacy interest in the secrecy of his gun purchase is "very small" and is "greatly outweighed" by the found public interest in "enabling the City of Chicago to enforce its criminal ordinances") (Exemption 7(A): agency has failed to demonstrate that the release of this information, when pieced together with other disclosed items of information, "could reasonably be expected to interfere with enforcement proceedings") ("reasonably segregable": even if such information were exempt, the identities of persons and the weapons found in the electronic databases are "easily" segregated from the information that the City requests; encryption found by the court to be a "reasonable" and "simple" means of retrieving information in a redacted manner, and to not constitute creation of a new record, where writing a query to recover the desired information in an encrypted format would take a maximum of a few hours).

Cottone v. FBI, No. 94-1598 (D.D.C. Mar. 16, 2001) (attorney fees: grants plaintiff attorney fees; while plaintiff has not demonstrated a public benefit resulting from this FOIA action, his indigency negates a "commercial" interest; plaintiff's pro bono counsel worked on this case for 4 years "tenaciously and tirelessly"; FBI's withholding of the requested information was not unreasonable).

Daley v. Dep't of Justice, No. 00-1750 (D.D.C. Mar. 9, 2001) (duty to search: agency conducted a reasonable search for records in response to plaintiff's FOIA request for records about himself) (Exemptions 6 and 7(C): agency properly refused to confirm or deny the existence of third-party records; plaintiff has not shown that any such information is publicly available).

Dietz v. O'Neill, No. S 00-3440, 2001 U.S. Dist. LEXIS 3222 (D. Md. Feb. 20, 2001) (jurisdiction: a court's remedial power in FOIA cases is limited to compelling the disclosure of improperly withheld records) (proper party defendant: an individual federal employee is not a proper party defendant under the FOIA) ("no records" defense: no agency records were improperly withheld because plaintiff "insisted on" being given an obsolete IRS form) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request).

Duszynski v. Comm'r, No. 4-00-80026 (S.D. Iowa Mar. 19, 2001) (grants defendant's motion for summary judgment because it fully satisfied FOIA requirements with respect to plaintiff's 6 FOIA requests).

Favish v. Office of the Indep. Counsel, No. 97-1479 (C.D. Cal. Jan. 11, 2001) (Exemption 7(C): on remand, balancing the privacy interests of the Foster family against the public interest in disclosure, finds that 5 of the 10 photographs at issue relating to the death of Vincent Foster must be released and 5 may be withheld).

Haddam v. INS, No. 99-3371 (D.D.C. Feb. 15, 2001) (Exemption 5: the attorney-client privilege protects a 5-page memorandum written by the INS General Counsel in response to an internal request for legal advise; this privilege was waived when the document was inadvertently produced in plaintiff's asylum proceeding, where the Magistrate's granted permission to retrieve the document from the production, but suggested in dicta that the privilege had been waived) (exhaustion: plaintiff failed to exhaust his administrative remedies because he did not appeal the agency's untimely determination that it had no records responsive to his FOIA request).

Judicial Watch, Inc. v. Dep't of Justice, No. 00-745, 2001 U.S. Dist. LEXIS 25731 (D.D.C. Feb. 12, 2001) (exhaustion: agency did not demonstrate that Exemptions 6 or 7(C) protected information concerning the commutation of sentences for prisoners from FALN or Los Machertos because it has not demonstrated that the privacy interests involved outweigh the public interest in disclosure; because there is no evidence that plaintiff exhausted its administrative remedies by filing an appeal from the initial denial, plaintiff's claims with respect to these withholdings are dismissed) (fee waiver: in a decision that is internally inconsistent in part, finds that agency did not err in failing to grant plaintiff a fee waiver or a reduced fee arrangement with respect to information about the presidential commutation of prison sentences; plaintiff has not shown that disclosure is in the public interest because "it is likely to contribute significantly to public understanding of the operations or activities of the government"; plaintiff does not qualify as a representative of the news media because it lacks a "firm intent" to publish this information) (duty to search: agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request).

Kiareldeen v. INS, No. 98-4693 (D.N.J. Jan. 9, 2001) (on in camera inspection, finds that the FBI properly withheld information concerning the threat of terrorism to Americans at home and abroad and information related solely to internal personnel rules and practices).

Kruger v. IRS, No. S-00-877, 2001 U.S. Dist. LEXIS 3323 (D. Nev. Feb. 5, 2001) (attorney fees: grants costs to plaintiff in this FOIA action where no documents were released to the plaintiff; plaintiff is the prevailing party because the IRS did not conduct a search for the requested document until after this lawsuit was filed; case dismissed).

Lighter v. IRS, No. 00-00289, 2001 U.S. Dist. LEXIS 3483 (D. Haw. Feb. 27, 2001) (statute of limitations: because the FOIA contains no limitations period, the general federal statute of limitations of 6 years applies to FOIA actions; plaintiff's FOIA suit is untimely because he filed it 8 years after he met the exhaustion requirement).

Lucabaugh v. IRS, No. 00-4479, 2000 U.S. Dist. LEXIS 19993 (E.D. Pa. Dec. 19, 2000) (jurisdiction: affirms bankruptcy court's ruling that the bankruptcy court lacks jurisdiction over FOIA matters; plaintiff did not demonstrate that the agency had improperly withheld records).

Maine v. Dep't of the Interior, 124 F. Supp. 2d 728 (D. Me. 2000) (Exemption 5: in this FOIA action where plaintiff requested information concerning a proposal to list as endangered the Atlantic salmon populations of 8 Maine rivers, finds that agency's affidavits demonstrate that 6 documents were properly withheld under the attorney-client privilege; within 5 days, the agency must disclose 164 documents because they contain only legal analyses and handwritten notes and the agency has not demonstrated that these records contain client-communicated confidential fact exchanged between client and attorney; within 5 days, the court will conduct in camera inspection of 7 documents to determine if they contain information that is segregable from that protected by the attorney-client privilege; agency's affidavit demonstrates that the attorney-work product privilege protects 59 documents; within 5 days, the agency must disclose 158 documents because it has failed to identify the litigation for which each document was prepared, that the documents were prepared primarily in anticipation of litigation (rather than for the underlying administrative proceeding), that the documents were prepared by an attorney or an agent of an attorney, or that they contain anything other than factual material; within 5 days, the court will conduct in camera inspection of 34 documents to determine if they contain information that is segregable from that protected by the attorney work-product privilege; deliberative process privilege protects 2 documents reflecting agency deliberations concerning the Atlantic salmon; within 5 days, the court will conduct in camera inspection of 4 documents to determine if they contain information that is segregable from that protected by the deliberative process privilege) (Exemption 6: protects the names and addresses of individuals who offered public comments on the listing plan).

Maine v. Dep't of the Interior, No. 00-122, 2001 WL 77892 (D. Me. Jan. 29, 2001) (on in camera inspection, finds that each of 4 documents withheld under the deliberative process privilege contains some segregable, nonexempt factual information; these document portions have been filed under seal and the portions noted by the court must be disclosed to the plaintiff within 10 days), stay granted, 2001 WL 98373 (D. Me. Feb. 5, 2001) (grants the Interior Department's motion for a stay of the court's December 26 disclosure order pending the court of appeals' resolution of its appeal; while the government has not demonstrated that it will succeed on the merits of its appeal, a stay pending appeal is appropriate because denial of such a stay would have an irreparably harmful effect on its right to meaningful review of the disclosure order).

McHale v. FBI, No. 99-1628 (D.D.C. Nov. 7, 2000) (grants the FBI's motion to dismiss the complaint pursuant to the "first-filed" rule; plaintiff has not demonstrated special circumstances which would justify departing from the strong presumption in favor of an earlier-filed action pending in another federal district, which involves the same parties and closely related issues).

Meddah v. Reno, No. 98-1444 (E.D. Pa. Dec. 3, 1998) (status of plaintiff: dismisses plaintiff's FOIA claim because, as an escapee from a psychiatric hospital where he was in INS custody, he is a fugitive).

Mells v. IRS, No. 99-2030, 2001 U.S. Dist. LEXIS 1262 (D.D.C. Jan. 23, 2001) (jurisdiction: finds, in suit brought for agency's failure to process records within the statutory time limit, that at the time this complaint was filed the court "appears to have had" subject-matter jurisdiction based on constructive exhaustion of administrative remedies; decides to grant summary judgment to the government on the basis that plaintiff, by not paying the fees associated with his FOIA request, has failed to exhaust his administrative remedies and this action is now "moot").

Morales Cozier v. Dep't of Justice, No. 1:99-0312 (N.D. Ga. Jan. 2, 2001) (Exemption 1 [E.O. 12,958]: on defendant's motion for reconsideration and after in camera review, finds that the FBI properly withheld portions of 14 documents because disclosure would reveal such information as methods of investigation, what specific intelligence had been gathered, internal file numbers and protocol, names of special agents, and confidential sources; disclosure of this information reasonably could be expected to be utilized by foreign intelligence agencies or to reveal the sources of certain foreign intelligence) (Exemptions 7(C) and 7(D): protect information concerning a "dead lead," a citizen whose cooperation was initially thought to be necessary to the investigation).

Nat'l Sec. Archive v. CIA, No. 99-1160 (D.D.C. Feb. 26, 2001) (waiver: denies defendant's motion to amend court's July 30, 2000 order in this FOIA action where plaintiff seeks biographies on certain former Eastern European political leaders; the CIA waived its right to merely confirm or deny the existence of these records in a 1961 Directive, in a 1969 journal article, and in a 1995 recruitment brochure; the court has not yet addressed waiver of FOIA exemptions with respect to these biographies).

Oil, Chem. & Atomic Workers Int'l Union v. DOE, 141 F. Supp. 2d 1 (D.D.C. 2001) (attorney fees: records received by plaintiff under the FOIA "clearly and overwhelmingly add to the growing public body of knowledge concerning the privatization of governmental entities"; the union's concern for its members' health and safety, in this instance, "is substantially identical to a concern for the public interest"; government's withholding of records was not reasonable; finds that while plaintiff's counsel charges pro bono clients at a reduced hourly rate, but has represented corporate clients at or above prevailing market rates, he is entitled to compensation at the Laffey rates; because plaintiff has not demonstrated that 3 other attorneys are entitled to Laffey rates, they will be compensated at the rates offered by defendant; plaintiff cannot be compensated for time spent on an unsuccessful motion for a temporary restraining order; reduces plaintiff's request for costs by two-thirds and grants costs in the amount of $1000; grants plaintiff attorney fees and costs).

Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 2001 U.S. Dist. LEXIS 3492 (W.D. Pa. Feb. 7, 2001) (subsection (a)(2): because the FOIA does not provide the relief plaintiff seeks, requiring HHS to comply with indexing and publication requirements of the FOIA, court will review plaintiff's FOIA claim under the APA and using the inherent equitable powers of a federal court; plaintiff's FOIA claim is ripe for adjudication and plaintiff has standing to assert it; rules that HHS must create, maintain, and publish an indexing system for providing public notice of its policies and interpretations that is consistent with FOIA's requirements; finds that HHS's index for one welfare program is not "current," does not meet the quarterly "publication" and "distribution" requirement, and is "incomplete"; HHS must provide the plaintiff with the indices that were effective at the end of 2 specified quarters in the last 6 years; finds that HHS's index for a second welfare program is "complete"; nothing in the 1996 amendments to the FOIA (requiring agencies to make records available on the Web) alters the basic requirement that agencies must make hard copies of its indices "readily available for public use"; with respect to both welfare programs, rejects defendant's argument that it provided plaintiff with "actual and timely notice"; the issue in this case is whether HHS complied with the FOIA's indexing and publication requirements, not whether it can enforce any particular statements of policy) (exhaustion: plaintiff has exhausted its administrative remedies under the FOIA; HHS mistakenly assumes that its internal audit proceeding of the plaintiff with respect to welfare grants must be exhausted before the FOIA suit can be found to be exhausted).

Peters v. IRS, No. 00-2143 (D.N.J. Feb. 23, 2001) (adequacy of agency affidavit: IRS employees used personal knowledge to prepare affidavits, which contain permissible hearsay as to the currency of certain IRS forms) (summary judgment: grants IRS's motion for summary judgment because its affidavits demonstrate that it produced the records responsive to plaintiff's FOIA request) (jurisdiction: court has no jurisdiction in this case because the IRS did not improperly withhold records responsive to plaintiff's FOIA request).

Piper & Marbury, L.L.P. v. United States Postal Serv., No. 99-2383, 2001 WL 214217 (D.D.C. Mar. 6, 2001) (magistrate's recommendation) (duty to search: because plaintiff narrowed its FOIA request on administrative appeal, the agency properly limited its response to one agency contract) (Exemption 3 [39 U.S.C. 410(c)(2)]: the Postal Reorganization Act is a (b)(3) statute) (focus of the Act on information: in an aberrational decision, finds that the Postal Service may not withhold any portion of a contract under Exemptions 3 or 4 because the material at issue does not qualify as "information," which is a threshold requirement; after noting that many of the contract's "provisions can be found in any form book in a law library," declares that agency's "claim that the disclosure of any of the provisions of the contract, including these innocuous ones, will competitively harm [the submitter] and the [the agency]" is "meritless" and "comes perilously close to insulting the Court's intelligence") ("reasonably segregable": agency should have attempted to release nonexempt portions of a contract agreement between the Postal Service and DHL).

Piron v. Dep't of Justice, No. 00-1287 (W.D. Wash. Jan. 10, 2001) (discovery in FOIA litigation: denies plaintiff's motion to compel discovery; discovery is permissible in FOIA litigation only after the government moves for summary judgment and submits its supporting affidavits).

Ponder v. Reno, No. 98-3097 (D.D.C. Jan. 22, 2001) (Exemption 2 "low": protects source symbol numbers that the FBI assigns to confidential informants who report on an ongoing basis) (Exemption 3 [Rule 6(e)]: protects the identities of witnesses and evidence subpoenaed by a grand jury; [26 U.S.C. 6103(b)(2)]: protects third-party tax return information) (Exemption 7 (threshold): requirement met by records compiled in the course of an FBI investigation of racketeering, money laundering, mail fraud, and tax violations; the fact that the government ultimately decided not to prosecute is irrelevant) (Exemption 7(C): protects the identities of third parties, FBI agents and employees, and other federal agents) (Exemption 7(D): protects the identities of and information provided by informants in an organized crime investigation who were given express promises of confidentiality).

Rae v. Hawk, No. 98-1099 (D.D.C. Mar. 7, 2001) (denies the FBI's motion to dismiss; FBI has not described its search for records, has not explained the omission of 688 pages of responsive records, and has not mentioned the use of exemptions to redact 211 released pages) (jurisdiction: court lacks jurisdiction over HHS because plaintiff did not submit a FOIA request to that agency; court lacks jurisdiction over FDIC because that agency has demonstrated that it conducted an adequate search in response to plaintiff's FOIA request and did not locate any responsive records).

Robinson v. DEA, No. 99-1146 (D.D.C. Mar. 5, 2001) (jurisdiction: court lacks jurisdiction because plaintiff has not exhausted his administrative remedies; plaintiff has not paid $162.40 in processing and copying fees).

Sacco v. FBI, No. 98-1247 (D.D.C. Mar. 19, 2001) (jurisdiction: court lacks jurisdiction because plaintiff has not exhausted his administrative remedies; plaintiff has not paid $102.70 in duplication fees) (duty to search: agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request).

Smith v. Dep't of Justice, No. 99-0784 (D.D.C. Apr. 4, 2000) (Exemption 3 [18 U.S.C. 2517]: protects 4 audiotapes of telephone calls between 2 inmates made on telephones that are routinely monitored by the Bureau of Prisons; because disclosure of the tapes' content is barred by statute, the agency could not segregate and release nonexempt information).

Twomey v. FBI, No. 2:99-113 (W.D. Mich. Mar. 2, 2001) (denies plaintiff's request to alter or amend judgment; information was properly withheld under the FOIA).

Weewee v. IRS, No. 99-475, 2001 U.S. Dist. LEXIS 3230 (D. Ariz. Feb. 13, 2001) (adopts magistrate's finding that the IRS conducted a reasonable search for records in response to 4 of plaintiff's FOIA requests; with respect to 2 FOIA requests submitted by the plaintiff, the IRS must conduct a reasonable search confined to its Washington, D.C. office).

Wiener v. FBI, No. 83-1720 (C.D. Cal. Mar. 5, 2001) (Exemption 1 [E.O. 12,356]: grants FBI's motion for reconsideration of magistrate's Feb. 18, 2000 grant of plaintiff's motion to compel disclosure of information concerning the late Beatle John Lennon; FBI's affidavits demonstrate that the release of 3 documents in redacted form would damage national security by straining relations with a foreign government and identifying intelligence sources; "the originating government would likely recognize the information as material it supplied in confidence" and would thereafter "be reluctant to entrust the handling of its information to the discretion of the United States").   (posted 4/5/01)


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