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New FOIA Decisions, April-June 2001

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


Appeals Courts

Allnutt v. Handler, 8 F. App'x 225 (4th Cir. 2001) (affirms district court rulings that agency conducted a reasonable search for records, that records in the possession of the private trustee are not "agency records" under the FOIA, and that records compiled in connection with plaintiff's civil bankruptcy litigation are protected by Exemption 7(E)).

Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144 (D.C. Cir. 2001) (Exemption 4: district court properly found that 33 items of information concerning air bags were provided to the agency "voluntarily" under the Critical Mass standard because the agency violated the Paperwork Reduction Act when it failed to get clearance from OMB for its Information Request and, therefore, the manufacturers did not have to respond to it; "actual legal authority, rather than parties' beliefs or intentions, governs judicial assessments of the character of submissions"; because the information was provided "under false pretenses" and the "agency essentially 'flashed its badge' to gain entrance to a private sphere," the court ruled, "this misrepresentation must tip the balance of interests in favor of the private parties" and does so even if the parties reasonably believed the Information Requests were mandatory at the time of submission; accordingly, court will treat the information as having been voluntarily submitted; district court improperly found that 10 items of information concerning the physical and performance characteristics of air bags qualify as "trade secrets" because these items do not relate to the production process; the mere selling of cars with air bags to the general public and the fact that air bags may be dismantled to obtain this information does not means that these 33 items of information concerning every air bag produced over many years is "customarily disclosed"; district court erred in holding that information must be disclosed if it were shown to be "identical" to information already in the public domain, when the test is whether the party opposing disclosure can show that the information is "of a kind" that would customarily not be disclosed to the public; remands for a determination of whether intervenor-defendants customarily disclosed the information at issue).

Coalition on Political Assassinations v. DOD, 12 F. App'x 13 (D.C. Cir. 2001) (affirms district court's ruling that defendant's affidavit demonstrates that it has conducted a search reasonably calculated to uncover all documents relating to any surveillance of Dr. Martin Luther King, Jr.; while defendant may have once possessed records responsive to plaintiff's request, plaintiff has put forth no evidence demonstrating that such records remain in defendant's possession).

Davis v. Dep't of Justice, No. 00-5414 (D.C. Cir. May 4, 2001) (partially grants the government's motion for summary affirmance in this FOIA case where the district court found that the agency conducted a good-faith search and released all reasonably segregable information; consideration of the motion for summary affirmance with respect to Exemption 7(C) issues held in abeyance pending the disposition of the appeal in Schrecker v. Department of Justice, No. 00-5033, D.C. Cir., argued Jan. 19, 2001).

Drake v. FAA, No. 00-5328, 2001 WL 410463 (D.C. Cir. Mar. 16, 2001) (jurisdiction in the first instance to review agency determinations under the FOIA lies in the district court).

Heeney v. FDA, 7 F. App'x 770 (9th Cir. 2001) (Exemption 4: affirms district court's ruling that the exemption protects information concerning a heart electrode catheter that had been submitted by the distributor to the FDA for approval and subsequently withdrawn; disclosure of the name and manufacturer of the catheter and its design, testing, and materials specifications would cause competitive harm to the distributor; plaintiff has not shown that the privilege has been waived) (in camera inspection: district court is not required to review the documents at issue in camera when agency's affidavits are sufficient).

Marin Inst. for the Prevention of Drug & Other Alcohol Problems v. HHS, No. 98-17345, 2000 WL 964620 (9th Cir. July 11, 2000) (unpublished memorandum), 229 F.3d 1158 (9th Cir. 2000) (table cite) (mootness: "surreptitious" disclosure of a draft document does not render FOIA case moot, because there is a dispute over the authenticity of the document) (in camera inspection: district court need not conduct in camera inspection where there has been no showing of agency bad faith) (Exemption 5: the deliberative process privilege protects a draft document where the agency has not yet approved its content because disclosure could impair the deliberative process).

Schwarz v. United States Dep't of the Treasury, No. 00-5453 (D.C. Cir. May 10, 2001) (per curiam) (summary affirmance granted to the government in this FOIA case where the district court granted summary judgment to 79 federal entities because it was shown that no records exist, that all responsive documents had been produced, or that the documents sought were exempt from disclosure under Exemptions 2, 5, 6, 7(C), and 7(E)).

Sheridan v. Dep't of the Navy, 9 F. App'x 55 (2d Cir. 2001) (affirms district court's finding that the agency conducted a proper search for records under the FOIA and has released all responsive documents in its possession).

Sinito v. Dep't of Justice, No. 00-5321 (D.C. Cir. Apr. 11, 2001) (per curiam) (grants in large part government's motion for summary affirmance; parties must address in their briefs to the appellate court whether all segregable information has been released under Exemption 3 [18 U.S.C. 2518] or whether specific information in the public domain duplicates that being withheld).

Smith v. Dep't of Justice, 251 F.3d 1047 (D.C. Cir. 2001) (Exemption 3 [18 U.S.C. 2517]: reverses district court's ruling; statute does not prohibit disclosure of tapes of telephone calls plaintiff made on a monitored prison telephone because the recordings were not the product of an "interception" governed by it) (waiver: denies government's request that the case be remanded to the district court in order to raise other exemptions for the first time).

Snoddy v. Hawke, 13 F. App'x 768 (10th Cir. 2001) (affirms district court ruling that records prepared by or for the Office of the Comptroller of the Currency are protected by Exemptions 5 and 8).

Stoianoff v. Comm'r of the Dep't of Motor Vehicles, 12 F. App'x 33 (2d Cir. 2001) (agency: the FOIA applies to federal agencies, not to state agencies).

Voinche v. FBI, No. 00-30505 (5th Cir. Nov. 30, 2000) (affirms district court's grant of defendant's motion for summary judgment; defendant conducted a reasonable search and was unable to locate any records responsive to plaintiff's FOIA request).

Warren v. Soc. Sec. Admin., 10 F. App'x 20 (2d Cir. 2001) (affirms district court's ruling that the agency conducted a reasonable search and that the FOIA's Exemptions 5 and 6 protect job applicant information; remands for a calculation of the litigation costs owed to the plaintiff, because the agency concedes she has "substantially prevailed").


District Courts

Aldridge v. Comm'r, No. 7:00-131 (N.D. Tex. Apr. 27, 2001) (dismisses this FOIA action; defendant has released to the plaintiff the one remaining document in dispute).

Allnut v. United States, No. 00-2571, 2001 U.S. Dist. LEXIS 7004 (D. Md. May 8, 2001) (grants defendant's unopposed motion for summary judgment; all responsive documents have been released to the plaintiff, with the exception of those documents adjudicated by this court in a previous lawsuit and found exempt from disclosure; pro se plaintiff is not entitled to attorney fees).

Boyd v. United States Marshals Serv., No. 99-2712 (D.D.C. Mar. 30, 2001) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts, subpoenas, and "similar records" because disclosure would reveal some aspect of the grand jury investigation) (Exemption 5: the attorney work-product privilege protects one page of attorney notes) (Exemption 7(C): protects information that would identify law enforcement officials and informants, even those who testified at plaintiff's criminal trial; agency properly refused to search for records on an informant because the records would not shed light on the conduct of the federal agency) (referred records: agency's referral of records to the originating agencies was done in accordance with its published regulations).

Bratton v. FBI, No. 00-8591 (S.D. Fla. Mar. 30, 2001) (duty to search: FBI has conducted a reasonable search in response to plaintiff's FOIA request).

Camp v. Dep't of Justice, No. 99-2213 (D.D.C. Mar. 5, 2001) (grants defendant's unopposed motion for summary judgment; agency properly withheld information that would identify government agents, confidential sources, and third parties; all reasonably segregable, nonexempt information has been released).

City of Chicago v. Dep't of Treasury, No. 00 C 3417 (N.D. Ill. Mar. 21, 2001) (scope of request: information plaintiff may receive as a result of this judgment is limited to only the databases referenced in its March 3, 2000 FOIA request; a general reference to a database is inclusive of all subparts of that database) (duty to search: when plaintiff requested information dated from "1992 to the present," the cut-off date for searching was not the date of the FOIA request, but rather the date of the actual document production).

Claudio v. Soc. Sec. Admin., No. H-98-1911 (S.D. Tex. Mar. 14, 2001) (attorney fees: court finds eligibility where plaintiff prevailed on his request for production of a Vaughn Index, but was unsuccessful in obtaining the disclosure of any requested document; this was an incomplete success which requires a downward adjustment in the overall fees awarded; "the complete absence of documentation in this case forces this court to conclude that the fee award should be substantially reduced"; grants plaintiff attorney fees and costs in the amount of $7539.15).

Coates v. Dep't of Labor, 138 F. Supp. 2d 663 (E.D. Pa. 2001) (exhaustion: in an unusual ruling in this case where plaintiff requested records from the agency on two occasions before getting a response, and then subsequently appealed three separate responses by the agency, court finds that because plaintiff ultimately failed to appeal the agency's final response after an appeal remand, he did not exhaust his administrative remedies; when the agency responded to plaintiff's FOIA request, he was obligated to "completely exhaust" the administrative remedies available to him; because it is the Labor Department's "standard policy to provide appeal rights on all correspondence dealing with FOIA requests," the plaintiff is obligated "to again engage in this process" and "follow through").

Daniel v. Dep't of Justice, No. 99-2423 (D.D.C. Mar. 30, 2001) (proper party defendant: the Department of Justice, not its components, is the proper party defendant under the FOIA) ("no records" defense: summary judgment is granted as to records requested from two Justice components that conducted reasonable searches and were unable to uncover records responsive to plaintiff's FOIA request) (Exemption 7(C): agency properly refused to confirm or deny the existence of records relating to an alleged investigation of a named Assistant United States Attorney) (exhaustion: because plaintiff did not pay an assessed fee after his request for a fee waiver was denied, he has not exhausted his administrative remedies) (Exemption 7(D): a promise of confidentiality may be inferred with respect to records concerning plaintiff because he "has been characterized" as a cocaine trafficker; informants' testimony at plaintiff's trial does not waive the exemption; release of this information would jeopardize future investigations in which the cooperation of these or similar individuals might be needed).

Dixie Fuel Co. v. Callahan, 136 F. Supp. 2d 659 (E.D. Ky. 2001) (attorney fees: plaintiff substantially prevailed in this FOIA action because only 2 regional offices of the Social Security Administration partially responded to its FOIA request after 6 months and because the agency released a significant amount of material a few weeks after suit was filed and released more information in response to a court order; there is a "distinct" public benefit "in the enforcement and vindication of the FOIA" and in ensuring the integrity of the fund that provides health care coverage to unassigned retired miners; plaintiff did benefit commercially from this FOIA request because it hoped to substantiate its position that it was not liable for more than 60 assigned beneficiaries; agency's withholding had no reasonable basis in law; grants plaintiff's counsel an hourly rate of $125 and finds that 75.6 hours is a reasonable amount of time to expend for this FOIA case; grants plaintiff attorney fees in the amount of $9450).

Doolittle v. United States Dep't of Justice, 142 F. Supp. 2d 281 (N.D.N.Y. 2001) (duty to search: agency has not shown that it conducted a reasonable search for records pertaining to DEA's alleged second search of plaintiff's home; plaintiff is not required to provide the dates of the documents he seeks; orders agency to produce these records or explain why these documents have not been produced) (Exemption 7(D): disclosure of an informant's identity during plaintiff's sentencing hearing does not waive the government's promise to keep the informant's identity confidential) (Vaughn Index: the "practice of submitting legal arguments through the declaration of a paralegal is improper" (emphasis in original)).

Fish v. IRS, No. S-00-1047, 2001 WL 505307 (E.D. Cal. May 2, 2001) (adopts magistrate's ruling that because the IRS cured its failure to respond to plaintiff's FOIA request within the statutory time period by responding to it before suit was filed, the plaintiff must exhaust his administrative remedies before seeking judicial review).

Gray v. FBI, No. 4:00-945 (E.D. Mo. Apr. 9, 2001) (FBI's coded Vaughn Index does not adequately describe the information withheld from records requested by plaintiff under the FOIA; FBI must submit a revised Vaughn Index by May 10).

Hidalgo v. Bureau of Prisons, No. 00-1229 (D.D.C. June 6, 2001) (adequacy of search: agency has conducted a reasonable search in response to plaintiff's FOIA request) ("reasonably segregable": all reasonably segregable information has been provided to the plaintiff) (Exemption 7 (threshold): requirement met by records compiled by the Bureau of Prison in the course of an investigation as to whether there had been a violation of internal rules regarding fighting among inmates) (Exemption 7(C): protects information that would identify other inmates, including their names, register numbers, personal information, an Injury Assessment Form, photographs and other medical information, an incident report, and information about inmates who have been separated from plaintiff; plaintiff's "self-serving reasons do not come close to satisfying the public interest" in disclosure needed to outweigh third-party privacy interests) (Exemption 7(F): finds, without discussion, that defendant's reliance on Exemption 7(F) to withhold this information was "equally appropriate").

Hoffman v. Dep't of Justice, No. 98-1733-A (W.D. Okla. June 14, 2001) (in this FOIA case where the plaintiff seeks investigatory records concerning the bombing of the Murrah Federal Office Building in Oklahoma City, finds that defendant has not established that these records remain subject to a continuing injunction against disclosure issued by the criminal trial court judge; because of the volume of records involved, orders defendant to submit under seal a list of the withheld documents and tapes and a list of trial exhibits and evidence so that the case can be adjudicated through a comparison of the 2 lists; in the course of this litigation, court finds, defendant's efforts have been "disappointing" and "unacceptable, to the point that one might question whether the FBI views its FOIA obligations seriously").

Holguin v. United States Dep't of the Treasury, No. 99-1244 (D.D.C. Mar. 30, 2001) (exhaustion: incarcerated plaintiff has not exhausted his administrative remedies because he has neither paid the duplication fee nor applied for a fee waiver) (Exemption 2 "high": protects violator identifiers and other internal agency codes) (Exemption 7(C): protects the identities of law enforcement personnel and private individuals) (Exemption 7(D): agency has demonstrated that informants provided information under either express or implied promises of confidentiality) (duty to search: DEA has not demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request because its declarations merely describe its record systems and do not expressly state that these files were searched or that these were the only files likely to contain information responsive to plaintiff's FOIA request; DEA must file a renewed motion for summary judgment within 45 days).

Judicial Watch, Inc. v. FBI, No. 00-745, 2001 U.S. Dist. LEXIS 25732 (D.D.C. Apr. 20, 2001) (duty to search: agency's detailed affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of an ongoing domestic terrorism and security investigation) (Exemption 7(A): exemption protects information concerning the ongoing domestic terrorism and security investigation even though no enforcement proceedings are currently pending, because the FBI attests that "such proceedings may become necessary as the investigation progresses"; exemption protects information in three "functional categories": investigative file numbers, investigative case captions, and source information) (Exemption 7(C): protects information that would identify FBI Agents and third parties because plaintiff has not shown that disclosure of this information would shed light on the FBI's conduct of its statutory responsibilities) (Exemption 7(D): protects "singular," "very specific" information provided to the FBI by active sources under implied promises of confidentiality because disclosure of the information would result in the disclosure of the sources' identities, causing retaliation and possibly even death of the sources, and would impair the FBI's ability to obtain such information in the future of this ongoing investigation) (Exemption 7(E): protects 2 types of records that are often checked by the FBI concerning prison inmates and the contacts that they make) ("reasonably segregable": the FBI has made "every effort" to release all segregable information) (Vaughn Index: a Vaughn Index is unnecessary because the FBI's affidavit provides a clear explanation of the exemptions claimed and the basis for each withholding) (in camera inspection: denies plaintiff's motion for in camera review because the FBI has provided the court with a detailed and thorough explanation of its withholdings) (fee waiver: the "constructive" exhaustion rule does not relieve the requester of its obligation to pay fees which the agency is authorized to collect for the processing and duplication of 1750 pages; when plaintiff failed to pay $175 in assessed fees within 30 days of notice, the agency properly administratively closed plaintiff's FOIA request; even though plaintiff has now paid the assessed fees, this case is dismissed, but plaintiff may refile this action against the FBI with respect to the outstanding documents, if necessary, after the FBI has responded to the substance of plaintiff's request).

Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811 (D.D.C. Mar. 30, 2001) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request for information concerning Elian Gonzalez; with respect to agency's "allegedly slow response," finds that "it would be counterproductive to punish agencies for reviewing more, not less, paper in their attempt to locate responsive documents") (Exemption 5: denies plaintiff's request for a blanket production of all records created after the decision was made to return Elian to Cuba, because these records may contain deliberative, protectible information concerning different types of continuing and follow-up issues; the deliberative process privilege protects documents which contain subordinates' recommendations on how best to negotiate with the Miami community and Elian's father, drafts, notes, and e-mail messages from INS, notes taken by the INS director concerning her meeting with Elian's grandmothers, draft letters from the State Department on international child abduction cases, and draft letters from the Justice Department on immigration issues because they are predecisional and deliberative; agency must provide the name of the author of each of 7 documents withheld under the attorney work-product privilege or release those records; the attorney work-product privilege protects 2 pages that were "clearly" prepared in anticipation of litigation; the omission of the words "prepared in anticipation of litigation" is a "trivial omission" when the meaning is clear; agency must either release 3 documents or clarify their withholding under this privilege; the attorney-client privilege protects communications between an attorney and a nonattorney) (Exemption 6: protects the names of private citizens, biographical information about Elian's father, names and telephone numbers of meeting attendees who were not federal employees, and the asylum application filed on behalf of Elian; in each instance there is a strong privacy interest and plaintiff has offered only "hypothetical public benefits") (Exemption 7 (threshold): requirement met by records compiled by INS in the course of an investigation of a possible terrorist threat against its Miami District Office) (Exemption 7(C): protects the identity of a law enforcement agent) (Exemption 7(D): protects the identity of an individual who reported the possible terrorist attempt because investigations into "domestic terrorism have been recognized as a sort of criminal investigation where an implicit grant of confidentiality will be found") ("reasonably segregable": finds that all reasonably segregable portions of documents have been disclosed) (fee waiver: denies plaintiff's request for a fee waiver of $231.70 in duplication fees for publicly available documents and letters from the public because it has not shown that the release of these documents would shed light on the operations of the government).

Kendrick v. Executive Office for United States Attorneys, No. 00-1809 (D.D.C. June 14, 2001) (adequacy of search: ruling on defendant's unopposed motion for summary judgment, finds that agency conducted a reasonable search in response to plaintiff's FOIA request for records about himself) (Exemption 3 [Rule 6(e)]: protects 233 pages of grand jury transcripts; [18 U.S.C. 2511-2518(8)]: protects 127 pages of intercepted communications resulting from court-ordered wiretaps; protects attorney notes compiled in part from wiretaps materials in preparation for grand jury proceedings) (Exemption 5: the attorney work-product privilege protects 91 pages of handwritten and typed notes prepared by an attorney in anticipation of plaintiff's grand jury proceedings, indictment, and criminal trial) (Exemption 7(C): protects the identities of witnesses, informants, co-defendants, and third parties contained in law enforcement records) (Exemption 7(D): protects information provided by confidential informants and witnesses) ("reasonably segregable": all reasonably segregable information has been released).

Kenemore v. United States Dep't of Justice, No. 99-0500 (D.D.C. Mar. 27, 2001) (duty to search: defendant has conducted reasonable searches in response to plaintiff's FOIA request) (Exemption 5: protects documents covered by the attorney work-product (handwritten notes), attorney-client, and deliberative process privileges) (Exemption 7(C): protects information that would identify witnesses, suspects, law enforcement officers, and third parties) (Exemption 7(D): protects the identities of confidential sources) (Exemption 6: protects the names of third parties (duplicative with Exemption 7(C)) and the name and telephone number of an attorney not connected to plaintiff's case) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to one Department of Justice component because he has neither paid the duplication fee nor applied for a fee waiver).

Legal & Safety Employer Research, Inc. v. United States Dep't of the Army, No. S-00-1748, 2001 WL 34098652 (E.D. Cal. May 7, 2001) (Exemption 3 [41 U.S.C. 423(a)(1)]: the Procurement Integrity Act qualifies as an Exemption 3 statute because it "refers to particular types of matters to be withheld"; however, the "construction performance evaluations prepared pursuant to 48 C.F.R. 36.201" in this case are not protected because they are not expressly listed in the statute as "source selection information," and because the agency official who determined their "disclosure would jeopardize the integrity or successful completion of the federal procurement to which the information relates" under 41 U.S.C. 423(f)(2)(J) did not make the determination on a "case-by-case" basis nor identify the procurement at issue) (Exemption 5: the deliberative process privilege held inapplicable to these construction performance evaluations, even if they are considered predecisional, because "the decision they would precede is not a 'policy decision,' as required [sic] by Exemption 5").

Leveto v. IRS, No. 98-285 E, 2001 U.S. Dist. LEXIS 5791 (W.D. Pa. Apr. 10, 2001) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 5: the deliberative process privilege protects investigatory records that contain an agent's opinions and analyses) (Exemption 7 (threshold): requirement met by IRS records compiled during the course of its ongoing criminal investigation of the plaintiff) (Exemption 7(A): the release of these records would interfere with the enforcement proceedings) (Exemptions 6 and 7(C): protect information that would identify IRS agents, including Social Security numbers, birth dates, maiden names, educational background, and performance ratings) (Exemption 7(D): protects the identities of informants who provided information to the IRS under express promises of confidentiality) (Exemption 7(E): the disclosure of the amount of money the IRS was authorized to expend in its investigation of the plaintiff would allow "similarly situated taxpayers to learn the monetary limitations on certain types of IRS investigations, and to undermine the economic viability of those types of investigations in the future").

Malak v. Tenet, No. 01-C-3996, 2001 WL 664451 (N.D. Ill. June 12, 2001) (exhaustion: plaintiff failed to exhaust his administrative remedies because he did not reasonably describe records he sought from the CIA).

Merit Energy Co. v. Dep't of the Interior, 180 F. Supp. 2d 1184 (D. Colo. 2001) (Vaughn Index: in dicta, the court states that it has "severe reservations" as to whether the documents comprising agency's coded Vaughn Index are described in sufficient detail or whether the exemptions claimed were properly applied) (Exemption 4: information concerning oil and gas leases, prices, quantities, and reserves is "commercial"; information was obtained from a "person" where the compilation of the information was directed by a government agency on an Indian reservation; royalty information from oil and gas lessees on the reservation collected jointly by the Tribe and the federal government pursuant to a cooperative agreement cannot be said to be "confidential" because, if not for the cooperative agreement, this information would otherwise be submitted directly to the federal government) (Exemption 5: applying Klamath in a specific factual context in which the putative consultant would be advantaged at the expense of the requester, finds that information shared between the federal government and an Indian tribe is not akin to information acquired from outside consultants because the Indian tribe was not independent, but rather represented its own interests--which as noted above was at the expense of others; documents are not protected from disclosure).

Mermell v. Dep't of Justice, No. 00-1431 (S.D. Fla. Apr. 13, 2001) (even though the FBI through its affidavits clearly established that information is exempt from disclosure, by April 25 the FBI must submit for in camera inspection a specified sample of the documents to "ensure that the Court has an adequate basis" on which to make its decision).

Miller v. United States Attorney, No. 99-2193 (D.D.C. May 21, 2001) (dismisses FOIA action because pro se plaintiff has failed to respond to government's renewed motion for summary judgment).

Navigator Publ'g, L.L.C. v. Dep't of Transp., 146 F. Supp. 2d 68 (D. Me. 2001) (Exemption 6: protects the home addresses of all licensed merchant mariners; mariners have "some nontrivial privacy interest" in their home addresses that is "far from insignificant" and disclosure would not contribute to a meaningful assessment of the Coast Guard's screening practices for license applicants (a hypothetical "derivative use")).

Parker v. Bureau of Land Mgmt., 141 F. Supp. 2d 71 (D.D.C. 2001) (Exemption 4: agency properly withheld information that was "voluntarily" submitted to the Bureau of Land Management by pipeline companies in their right-of-way applications; withheld information is not "customarily" disclosed to the public because to do so would give a competitor knowledge of the company's business strategies and plans and its market analysis and pricing; distribution within the company was on a limited, need-to-know basis; plaintiff has not shown that the identical information is publicly available, because while the underlying facts may be "readily available from public or commercial sources," the compilation and analyses of those facts are not; plaintiff has demonstrated that the withheld portion of an e-mail message is identical to information publicly available and, therefore, an unredacted copy of this document must be released; finds, in the alternative, that if agencies cannot maintain the confidentiality of proprietary information that has been submitted to it, the government's ability to obtain such information in the future would be impaired; defendant has also demonstrated actual competition in the markets at issue).

Piron v. Dep't of Justice, No. C00-1287 (W.D. Wash. May 9, 2001) (Exemption 5: without specification, finds that the exemption protects redacted portions of a Trial Attorney Worksheet) (Exemption 7(C): protects the name of the Asylum Officer who denied plaintiff's request for asylum) (Exemption 6: protects third-party information inadvertently filed in plaintiff's INS file).

Pusa v. FBI, No. 00-12384 (C.D. Cal. May 3, 2001) (Exemptions 6 and 7(C): absent a privacy waiver or proof of death, FBI properly refused to confirm or deny the existence of records pertaining to certain named third parties; third-party information in law enforcement files is categorically exempt from disclosure).

Reed v. Gonzalez, No. 4:99-603, 2001 WL 640788 (N.D. Tex. June 8, 2001) (agency: the Texas Attorney General's Office is not an agency for purposes of the FOIA).

Robert v. Dep't of Justice, No. 99-CV-3649, 2001 WL 34077473 (E.D.N.Y. Mar. 22, 2001) (pro se plaintiff: plaintiff is not entitled to special treatment as a pro se plaintiff because he is a licensed attorney) (jurisdiction: court lacks jurisdiction with respect to 4 FOIA requests submitted by the plaintiff because the agency did not have any responsive documents; court lacks jurisdiction with respect to 4 FOIA requests submitted by plaintiff because the agency provided plaintiff with all nonexempt materials responsive to these requests) (Exemption 2 "high": withholding of internal case numbers is necessary to protect against unauthorized access to agency computer system) (Exemption 7 (threshold): requirement met by records compiled by Justice Department's Office of Professional Responsibility) (Exemption 7(C): protects the identities of Justice Department attorneys and low-level employees from investigatory records concerning possible departmental wrongdoing because plaintiff has demonstrated no substantial public interest in disclosure) (Exemption 5: the deliberative process privilege protects notes of a telephone conversation concerning a Justice Department investigation) (Exemption 6: protects the identities of FBI Special Agents and lower-level agents who were not in policy- or decision-making positions) (res judicata: the doctrine of res judicata prohibits the court from considering whether plaintiff may have access to documents sealed in another proceeding) (exhaustion: 4 of plaintiff's requests are not "proper" FOIA requests because the requests were not submitted to the proper components of the Justice Department).

Schrecker v. Dep't of Justice, No. 95-0026 (D.D.C. Mar. 28, 2001) (attorney fees: plaintiff has substantially prevailed because this lawsuit caused the release of 15,429 additional pages from 20,000 pages responsive to her FOIA request and the release of additional information from 10,888 of those pages; court rejects defendant's argument that plaintiff did not receive any documents as a result of this lawsuit that she would not otherwise have received; grants attorney fees in the amount of $51,329.09).

Sinito v. Dep't of Justice, No. 87-0814 (D.D.C. Mar. 23, 2001) (attorney fees: since the settlement of his claim for interim attorney fees in 1995, plaintiff has lost on the merits of every FOIA claim asserted; plaintiff's victory in successfully substituting himself as plaintiff in this lawsuit in place of his deceased father was strictly a procedural victory; plaintiff is not entitled to attorney fees).

Summers v. CIA, No. 98-1682 (D.D.C. June 6, 2001) (ruling on defendant's unopposed motions, finds that it has conducted reasonable searches in response to plaintiff's FOIA request for information about Mrs. Anna Chennault, Vietnam, and the Paris Peace talks, has properly withheld information under Exemptions 1, 2, 3, 6, 7(C), and 7(D), and has released all reasonably segregable information).

Tax Analysts v. IRS, 152 F. Supp. 2d 1 (D.D.C. 2001) (Exemption 3 [26 U.S.C. 6105]: 6105 is a (b)(3) statute that protects in its entirety taxpayer-specific information exchanged pursuant to a tax convention) (Exemption 7 (threshold): the IRS, a "mixed-function" agency, met the threshold requirement with respect to 8 documents that "focus directly on specifically alleged illegal acts of a particular identified case or individual"; IRS must disclose 8 other documents that do not meet the threshold requirement and for which it failed to claim other exemptions) (Exemption 7(E): disclosure of summaries of how a certain tax avoidance scheme is carried out "could reasonably be expected to risk circumvention of the law") (Exemption 5: the attorney work-product privilege protects 6 records in their entireties that were prepared in anticipation of litigation, even those portions containing agency's working law; the deliberative process privilege does not protect 5 memoranda to program managers that contain answers to legal questions submitted to the national office because these documents are treated as final opinions; these 5 records must be disclosed; the deliberative process privilege protects 21 memoranda because they are part of a larger deliberative process reflecting give-and-take discussions on tax matters) (waiver: in the interests of judicial economy, court rules that having once abandoned an exemption, the agency cannot resurrect it as applied to 2 particular documents) (Exemption 5: the attorney work-product privilege protects agency working law in its entirety) (Exemption 7 (threshold): on motion for reconsideration of its holding that Exemption 7(E) was inapplicable to agency's "technical assistance" letters, finds that the court properly applied the two-part analysis in Rural Housing Alliance when it determined that a mixed-function agency had failed to satisfy the threshold requirement in a post-1986 amendments FOIA action) (in camera inspection: the court's ruling on a representative sampling of documents submitted for in camera inspection will apply respectively to all the documents at issue).

Trans Union LLC v. FTC, 141 F. Supp. 2d 62 (D.D.C. 2001) (duty to search: agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request; the attorney responsible for responding to FOIA requests was qualified to conduct this search; agency's failure to locate every single document responsive to a FOIA request "does not render an otherwise diligent search unreasonable") (Exemption 5: the deliberative process privilege protects predecisional documents reflecting the authors' opinions, comments, and recommendations that were prepared for supervisors; there is no evidence that these recommendations were expressly adopted by the agency; on in camera inspection, finds that no additional factual information is reasonably segregable).

Twomey v. FBI, No. 2:99-113 (W.D. Mich. Mar. 26, 2001) (denies plaintiff's motion for reconsideration; information was properly withheld under the FOIA).

United States v. Kipta, No. 97 CR 638-1, 2001 WL 477153 (N.D. Ill. May 3, 2001) (citing the Supreme Court's decision in Julian, finds that an individual cannot be granted access to a third party's Presentence Investigation Report).

Walker v. Dep't of Justice, No. 00-0995 (D.D.C. Apr. 5, 2001) (duty to search: FBI has conducted a reasonable search for records in response to plaintiff's FOIA request) (Exemption 7(C): protects the identities of law enforcement officers and third parties) (Exemption 7(D): protects identities of and information provided by informants who provided information to the FBI under conditions from which assurances of confidentiality could reasonably be inferred) (Exemption 7(E): protects portions of FBI forms FD-430 and FD-515 because disclosure "could suggest a technique for circumventing the law in future bank robberies").   (posted 7/3/01)


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