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New FOIA Decisions, October-December 2001

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of October through December 2001. Note: These decisions are fewer in number than those received by OIP during comparable periods in recent years, due largely to the disruptions in mail delivery experienced during most of the fourth quarter of 2001. See FOIA Post, "Anthrax Mail Emergency Delays FOIA Correspondence" (posted Nov. 30, 2001). OIP encourages all agencies to make use of telefax transmission -- to (202) 514-1009 -- in forwarding recent FOIA decisions for timely compilation in FOIA Post.


Appeals Courts

Bilbrey v. United States Dep't of the Air Force, 20 F. App'x 597 (8th Cir. 2001) (per curiam) (affirms district court ruling that redacted information is properly protected under Exemption 5 (deliberative process privilege) because it is both predecisional and deliberative).

Citizens Against UFO Secrecy, Inc. v. DOD, 21 F. App'x 774 (9th Cir. 2001) (affirms district court ruling that agency conducted a reasonable search in response to plaintiff's FOIA request for records concerning a triangular aerial object).

Davis v. Dep't of Justice, No. 00-5414, 2001 WL 1488882 (D.C. Cir. Oct. 17, 2001) (per curiam) (Exemption 7(C): denies, in part, agency's motion for summary affirmance, and reverses and remands portion of district court judgment with respect to Exemption 7(C); FBI must document for the district court the sources that it consulted in ascertaining whether individuals are alive or dead).

Landmark Legal Found. v. IRS, 267 F.3d 1132 (D.C. Cir. 2001) (Exemption 3 [26 U.S.C. 6103(b)(2)]: affirms district court ruling that statute protects tax-return information concerning nonprofit organizations, including organization's identity and information submitted in opposition to claims of tax-exempt status) (Vaughn Index: IRS's Vaughn Index is sufficient; "a Vaughn Index is not a work of literature; agencies are not graded on the richness or evocativeness of their vocabularies") (discovery in FOIA litigation: district court's limitation on discovery in this case was not unreasonable).

Lepelletier v. FDIC, 23 F. App'x 4 (D.C. Cir. 2001) (mootness: plaintiff's request is moot because he has received the information he requested under the FOIA).

Loomis v. DOE, 21 F. App'x 80 (2d Cir. 2001) (Exemption 1 [E.O. 12,958]: affirms district court ruling that a containment layout plan for a nuclear site and a manual concerning radiological controls were properly classified).

Perales v. DEA, 21 Fed. Appx. 473 (7th Cir. 2001) (affirms district court ruling that an "implementing regulation" for Title 21, U.S.C. 841 does not exist and, if it did exist, it would be made available in the Federal Register and, therefore, would not be subject to disclosure under the FOIA).

Pineiro v. Pension Benefit Guar. Corp., 22 Fed. Appx. 47 (2d Cir. 2001) (dismisses interlocutory appeal; consideration of the FOIA issue on appeal would be premature because of the lack of a full factual record).

Tavakoli-Nouri v. CIA, No. 00-3620, 2001 U.S. App. LEXIS 24676 (3d Cir. Oct. 18, 2001) (per curiam) (adequacy of search: affirms district court ruling that agency conducted a reasonable search in response to plaintiff's FOIA request for records concerning himself) (without further specification, finds that the CIA properly withheld information under Exemptions 1, 3 [50 U.S.C. 403], and 5 (attorney-client, attorney work-product, and deliberative process privileges).

Twomey v. FBI, No. 00-2401 (6th Cir. Sept. 21, 2001) (FOIA action is dismissed because it lacks merit).


District Courts

Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d 1 (D.D.C. 2001) (Exemption 1 [E.O. 12,958]: protects a 5-volume set entitled "Cuban Personalities," compiled by the CIA in 1962, that includes classified and nonclassified biographies; compendium was procedurally and substantively properly classified; disclosure would reveal CIA intelligence interests, would provide leads to identifying intelligence sources, and would endanger current intelligence efforts in Cuba; requiring the CIA to produce a list of the compendium's contents would defeat the purpose of the FOIA's exemptions) (Exemption 3 [50 U.S.C. 403-3(c)(6)]: statute, which protects intelligence sources and methods, is a sufficient basis for withholding this compendium) ("reasonably segregable": if the document were redacted to allow disclosure of any small bits of nonexempt information, the CIA would commit significant time and resources to a task that would yield a product that was "effectively meaningless") (waiver: plaintiff has not demonstrated that the same information has already been officially released by the CIA when disclosing records under the JFK Act).

Campbell v. United States Dep't of Justice, No. 89-3016 (D.D.C. Sept. 28, 2001) (duty to search: in this FOIA action where plaintiff requested records concerning the late author and civil rights activist James Baldwin, finds that 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; grants plaintiff limited discovery as to the location and content of the "tickler" files) (Exemption 1 [E.O. 12,958]: FBI's affidavits are insufficiently detailed to warrant a finding of summary judgment, because they do not draw connections between the documents and the standards for the national security exemption; FBI must submit new justifications consistent with the court's reasoning and the circuit court's opinion) (Exemption 7 (threshold): requirement met by records compiled about Baldwin in the 1960s, because of the political climate of that era, despite the fact that "in hindsight these reasons may have been insufficient") (Exemption 7(C): FBI properly withheld information that would identify FBI personnel, other federal personnel, state employees, third parties, subjects of investigative interest, informants, financial and commercial sources, state or local law enforcement officers, and foreign police or officials; while "much of the FBI's business during the time period in question was at best precarious in nature, thus heightening the public's interest in knowing why and against whom the FBI undertook" its investigation, nonetheless "the people who were involved in these investigations deserve protection of their reputations as well as recognition that they were simply doing a job that the cultural and political climate at the time dictated"; court notes that the FBI consulted internal sources and "Who Was Who" to determine if individuals were still alive; FBI's release of information about people whose age exceeds 100 years properly takes into account the life expectancy of the individual involved and the "reputational and family related privacy expectations [that] survive death") (Exemption 7(D): FBI has demonstrated that express promises of confidentiality were given to sources by providing the court with Manuals of Rules and Regulations and Bureau Bulletins issued by FBI Headquarters that were in effect at the relevant time) (waiver in litigation: FBI may not invoke Exemption 6 because it was not previously litigated in this case before this court and reviewed by the circuit court).

Carter v. United States Dep't of Commerce, 186 F. Supp.2d 1147 (D. Or. 2001) (Exemption 5: the predecisional requirement of the deliberative process privilege is not "merely chronological"; statistically adjusted data from the 2000 census is not predecisional; the data were the subject of an agency's decision, but not part of the process that led to the final decision (emphasis in the original); the decisionmaker did not review this data before making his decision; adjusted data contain factual information and, thus, are not recommendations or advice, and do not reflect agency give-and-take; the adjusted data were prepared in anticipation of public release; the requested computer data files are not protected by the deliberative process privilege and must be released).

City of Chicago v. United States Dep't of the Treasury, No. 01 C 3835, 2001 WL 1173331 (N.D. Ill. Oct. 4, 2001) (denies defendant's motion to dismiss this FOIA action in which plaintiff clarified its earlier FOIA request that is currently in litigation; it would be "fruitless" for plaintiff to pay the assessed fees and exhaust its administrative remedies when the agency has made it clear that it intends to withhold this information for the same reason it withheld information in the first case; this FOIA request does not duplicate the prior request because here plaintiff asks for new information that it would like produced in a package together with previously requested information).

Comer v. IRS, No. 97-76329, 2001 U.S. Dist. LEXIS 15996 (E.D. Mich. Oct. 1, 2001) (duty to search: IRS has demonstrated that it conducted a reasonable search with respect to 4 requests for documents submitted by plaintiff; IRS has not demonstrated that it conducted a reasonable search with respect to 2 requests for documents submitted by plaintiff; within 90 days, IRS must search for records responsive to these 2 requests and submit either a supplemental motion to dismiss this action or a status report).

Crompton v. Dep't of Justice, No. 00-07777 (C.D. Cal. Oct. 17, 2001) (proper party defendant: dismisses an Assistant United States Attorney from the suit because only agencies are proper party defendants under the FOIA; dismisses complaint against 115 federal defendants because plaintiff has not shown that any of these entities denied his FOIA requests; allows pro se plaintiff to amend his complaint).

Detroit Free Press v. United States Dep't of Justice, 174 F. Supp. 2d 597 (E.D. Mich. 2001) (Exemption 7(A): orders in camera inspection of records concerning the 1975 disappearance of labor union leader Jimmy Hoffa; in camera review is necessary to verify FBI's claim that disclosure would interfere with an ongoing law enforcement proceeding, despite the passage of time, and in light of the strong public interest in this case and the "incompatibility" of statements made by the FBI and certain newspaper accounts about the focus of the investigation).

Dorsett v. IRS, No. 4:00-1744, 2001 U.S. Dist. LEXIS 17770 (N.D. Tex. Nov. 1, 2001) (grants defendant's motion for summary judgment; IRS's undisputed affidavit demonstrates that it provided plaintiff with all nonexempt information in response to his FOIA request).

Hardy v. DOD, No. 99-523, 2001 WL 34354945 (D. Ariz. Aug. 27, 2001) (duty to search: denies plaintiff's request for discovery on the adequacy of the FBI's search; within 60 days, the FBI must file supplemental declarations regarding whether witnesses who were responsible for the video sources outside Waco on April 19, 1993 know whether videotapes exist, whether all lists of materials were provided to and reviewed by the affiant, and whether the FBI offices in Quantico, Virginia were searched for the videotapes; Treasury Department is not obligated to refer FOIA requests for information about its retired federal employees to the Office of Personnel Management) (Exemption 6: in order to determine the applicability of the exemption, orders in camera inspection of the performance ratings and evaluations for Senior Executive Service (SES) awards for certain named agency officials).

Hardy v. DOD, No. 99-523 (D. Ariz. Oct. 25, 2001) (Exemption 6: on in camera inspection, orders disclosure of the performance ratings and evaluations pertaining to certain SES awards; agency has not demonstrated that disclosure would be a "clearly unwarranted invasion of personal privacy"; exemption upheld only for a home telephone number contained in the records).

Hoffman v. FBI, No. 98-1733A (W.D. Okla. Sept. 21, 2001) (in this FOIA suit for records concerning the bombing of the Murrah Federal Office Building in Oklahoma City, having allowed plaintiff to apply to Judge Matsch for a modification of or vacation of his sealing orders, finds that the FBI is entitled to summary judgment as a matter of law, for reasons explained in court's prior orders).

Horowitz v. Peace Corps, No. 00-0848 (D.D.C. Oct. 12, 2001) (Exemption 5: court is unable to determine whether a document involving plaintiff's 1999 resignation from the Peace Corps is predecisional, because an issue of material fact exists as to whether the Peace Corps ever made a decision to administratively separate plaintiff from government service) (Exemption 6: the identity of a third party who made an allegation of sexual misconduct against plaintiff is a "similar file"; finds that there is a minimal privacy interest in the release of the third party's identity; disclosure will shed light on how the agency's component in Tonga conducts its oversight of volunteers; court orders disclosure of the identity of the complainant).

In Def. of Animals v. HHS, No. 99-3024, 2001 U.S. Dist. LEXIS 24975 (D.D.C. Sept. 28, 2001) (Exemption 7(A): because previous investigations of animal deaths at a particular research facility had resulted in formal charges for statutory violations, the agency reasonably anticipated concrete, prospective law enforcement proceedings in this instance; agency has shown that disclosure of an e-mail could reasonably be expected to interfere with its investigation) (Exemption 6: disclosure of the identities of the members of a federally mandated oversight board would compromise a substantial privacy interest that outweighs the "minimal public benefit" in disclosure) (Exemption 4: letter containing information about the research facility's financial status was not voluntarily submitted, as viewed under an objective test, because the agency sent a formal request to the facility asking for information that it in fact had the legal authority to compel; National Parks test for confidentiality, rather than the broader Critical Mass test, therefore applies; agency has not demonstrated that the disclosure of the letter would likely cause substantial competitive harm to the facility; letter must be released) (adequacy of search: agency conducted a reasonable search in response to plaintiff's FOIA request).

Jefferson v. United States Dep't of Justice, No. 00-1489 (D.D.C. Nov. 30, 2000) (Exemption 2 "high": protects case file numbers, computer file numbers, and "pathnames" because disclosure could compromise the security of agency's electronic databases and computer systems) (Exemption 5: the deliberative process privilege protects agency's "internal deliberations") (Exemption 7 (threshold): requirement met by records compiled by agency's Office of Professional Responsibility in response to requester's own allegations of prosecutorial misconduct) (Exemption 7(C): agency properly refused to confirm or deny the existence of other records concerning the prosecuting attorney, because the attorney has not waived his rights to privacy with respect to any such records and disclosure would not shed light on the agency's performance of its statutory responsibilities; protects the identities of law enforcement personnel and third parties) ("reasonably segregable": agency has released all nonexempt, "reasonably segregable" material).

Judicial Watch, Inc. v. United States Dep't of Justice, No. 01-0212 (D.D.C. Oct. 19, 2001) (on plaintiff's motion, amends court's August 20, 2001 memorandum; removes some of its pejorative language describing plaintiff's remarkable conduct in this case, but does not alter the grant of summary judgment to defendant).

Livshits v. United States, No. 00-1561 (D.D.C. Sept. 20, 2001) (Exemption 7(C): without specification, finds that agency properly withheld information under this exemption) (Exemption 1 [E.O. 12,958]: disclosure of intelligence activities, sources, methods, and cryptology would seriously damage national security) (duty to search: agency has conducted a reasonable search in response to plaintiff's FOIA request).

Livshits v. United States, No. 00-1561 (D.D.C. Oct. 25, 2001) (grants FBI's motion for summary judgment in this FOIA case where the FBI has made and will continue to make efforts to locate a document that originated with the Department of State).

Pineiro v. Pension Benefit Guar. Corp., No. 96 Civ. 7392, 1997 WL 739581 (S.D.N.Y. Nov. 26, 1997) (exhaustion: where agency provided the bulk of its FOIA response to plaintiff on the eve of the filing of this lawsuit, finds that plaintiff has not exhausted his administrative remedies).

Pineiro v. Pension Benefit Guar. Corp., No. 96 Civ. 7392, 2000 WL 282894 (S.D.N.Y. Mar. 15, 2000) (displacement by the FOIA: nothing in its statutory scheme indicates that the FOIA is intended to hinder access to information to which a person would otherwise be entitled; rather than imposing FOIA requirements on plaintiff, the agency, as a statutory trustee, has a fiduciary duty to furnish certain information to ERISA participants upon request).

Pontecorvo v. FBI, No. 00-1511 (D.D.C. Sept. 30, 2001) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the performance of its background investigation of plaintiff for federal employment) (Exemption 7(C): protects information concerning the identity of the Special Agent who conducted plaintiff's background investigation; the agent, who cannot be considered a high-level government employee, is under investigation by the Justice Department only because of plaintiff's written complaint against him) (Exemption 6: protects information that would identify individuals interviewed in the course of plaintiff's background investigation) (Exemption 7(D): protects the identities of and information provided by individuals given express promises of confidentiality) (Vaughn Index: FBI's coded Vaughn is sufficient) (adequacy of search: FBI's search of its Central Record System was an "eminently reasonable and sufficient" search in response to plaintiff's FOIA request).

Raytheon Aircraft Co. v. United States Army Corps of Eng'rs, 183 F. Supp. 2d 1280 (D. Kan. 2001) (Exemption 5: on in camera inspection, finds that the attorney work-product privilege protects 2 reports concerning the contamination of the groundwater beneath an army airfield in Kansas; while the Corps "is in the business of litigation," it has demonstrated that these 3 reports were generated not in the ordinary course of business, but in anticipation of litigation of several specific claims, including in anticipation of litigation against this plaintiff; the protection is not based on whether the lawsuit was settled through negotiations or whether it was actually presented to a jury; Corps need not segregate and release factual contents of reports; incorrectly concludes that privilege does not protect the titles of the public documents used in the compilation of the reports if disclosure would not reveal the mental processes of the attorneys).

Rubin v. CIA, No. 01 CIV. 2274, 2001 U.S. Dist. LEXIS 19413 (S.D.N.Y. Nov. 30, 2001) (Exemption 1 [E.O. 12,958] and Exemption 3 [50 U.S.C. 403-3(c)(6)]: CIA's affidavit demonstrates that it properly refused to confirm or deny the existence of records concerning 2 deceased British poets; the existence or nonexistence of such records is itself classified; disclosure could compromise intelligence sources and negatively impact foreign relations with a United States ally; the mere age of intelligence information does not rule out its need for protection; mere showing that private publication alleged that CIA maintained files on one of the subjects is not proof that information has been officially released).

Schwarz v. DOE, No. 99-3234 (D.D.C. Nov. 5, 2001) (proper party defendant: where plaintiff originally identified 807 separate defendants, finds that subdivisions of agencies and individual employees are not proper party defendants under the FOIA; "Although a requester may be asked to specify components of an agency in which the requester believes responsive records may be located, it is neither necessary nor appropriate to name each component in a civil action challenging the adequacy of the agency's response to a FOIA/Privacy Act request.") (adequacy of search: dismisses for failure to state a claim plaintiff's argument that agencies failed to conduct adequate searches) (grants defendants' motion to dismiss, based in part upon case law under 28 U.S.C. 1915(e), because plaintiff's complaint is based on her "misunderstanding of reality" and is therefore "frivolous" and fails to state a claim on which relief can be granted).

Serrano v. United States Dep't of Justice, No. 01-0521, 2001 WL 1190993 (E.D. La. Oct. 5, 2001) (mootness: plaintiff's FOIA claim is moot because INS provided him with the audiotape he requested).

Tarullo v. DOD, 170 F. Supp. 2d 271 (D. Conn. 2001) (duty to search: because of the absence of any description of the scope and nature of the search conducted in response to plaintiff's FOIA request, finds that the agency's affidavit "falls well short of the required specificity") (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects a memorandum concerning a particular audit because it consists primarily of specific subjective recommendations about future agency conduct and the reasons for needed changes in policy; all nonexempt, "reasonably segregable" information has been released).

Tran v. United States Dep't of Justice, No. 1:01-0238, 2001 U.S. Dist. LEXIS 21552 (D.D.C. Nov. 20, 2001) (duty to search: IRS has demonstrated that it conducted a reasonable search for records concerning plaintiff in all locations, except one; defendant's declaration is insufficient to support a grant of summary judgment with respect to its search of the Federal Records Center) (attorney fees: plaintiff brought suit entirely for his own benefit; attorney fees denied).

Trulock v. United States Dep't of Justice, No. 00-2234 (D.D.C. Sept. 18, 2001) (not an "agency" defense: the Executive Office of the President is not an "agency" for purposes of the FOIA; court lacks jurisdiction with respect to this claim).

United States v. Ward, Crim. No. 00-681, 2001 WL 1160168 (E.D. Pa. Sept. 5, 2001) (subsection (a)(1): OSHA did not publish in the Federal Register its interpretations of a safety regulation concerning the use of a highly hazardous chemical; defendant was not given fair warning that its production process was governed by the regulation).

Voinche v. FBI, Nos. 96-2307, 97-2788 (D.D.C. Oct. 11, 2001) (Exemption 7(C): on in camera inspection, finds that the FBI properly withheld in their entirety documents relating to the pending criminal investigations of state and local officials in Louisiana, because disclosure would compromise the privacy interests of third parties discussed in the records).


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