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New FOIA Decisions, January-March 2002

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of January through March 2002. 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

August v. FBI, No. 98-5340 (D.C. Cir. Jan. 23, 2002) (per curiam) (on the FBI's "motion to govern future proceedings, including a request to remand the case," vacates the district court's ruling with respect to Exemption 7(A), denies the government's motion to remand in light of Maydak, and orders that all materials withheld under Exemption 7(A) be disclosed).

Chin v. Dep't of the Air Force, No. 99-31237 (5th Cir. June 15, 2000) (Exemption 6: district court properly balanced the private and public interests at stake and found that identifying information need not be released; where plaintiff sought information concerning a named individual, the exemption protects the entire document because redaction would be "insufficient to safeguard privacy") (attorney fees: district court properly denied attorney fees; assuming that plaintiff had substantially prevailed, finds that the public interest in disclosure was "negligible" and that the agency had a reasonable basis for withholding).

Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539 (5th Cir. 2002) (Exemption 7 (threshold): in this FOIA action seeking witness statements concerning an OSHA investigation of an explosion and fire at a petrochemical facility, finds that the threshold requirement is met because OSHA inspected the facility to determine whether there were violations of safety standards) (Exemption 7(C): information in this case is not suitable for "categorical" privacy protection, because 3 employee-witnesses were not whistleblowers; rather, they were the only employees on hand when the explosion and fire occurred; on in camera inspection, affirms district court's finding that the exemption protects basic identifying personal data about employee-witnesses, but oddly rules that it does not protect information in the statements which, when read with public information identifying the 3 witnesses, could "link" each witness to a particular statement; exemption does not protect statements provided by employee-witnesses, because the witnesses' privacy interests are outweighed by the public interest in monitoring the agency's enforcement of the law; statements must be provided to plaintiff, except for one page in the agency's sealed filing) (Exemption 7(D): agency has not shown that sources were given express or implied promises of confidentiality; implicitly and aberrationally holds that circumstances giving rise to an implied promise of confidentiality can occur in a criminal investigation only).

Cooper Cameron Corp. v. United States Dep't of Labor, No. 99-21077 (5th Cir. Jan. 31, 2002) (denies as unnecessary government's motion for a stay of court's Jan. 21, 2002 disclosure order, because order's use of the term "'forthwith' does not affect the time period for filing a petition for rehearing or rehearing en banc, during the running of which the mandate cannot issue").

Esseily v. Giuliani, No. 01-7179, 2001 U.S. App. LEXIS 26166 (2d Cir. Dec. 4, 2001) ("not an agency" defense: the FOIA applies to federal agencies, not to city agencies).

Hronek v. DEA, 7 F. App'x 591 (9th Cir. 2001) (FOIA exemptions claimed by DEA were not waived by prior disclosure made in connection with plaintiff's criminal case; DEA conducted a reasonable search in response to plaintiff's FOIA request).

Kaspar Wire Works, Inc. v. Sec'y of Labor, 268 F.3d 1123 (D.C. Cir. 2001) (publication: statutory authorization of penalties in the Occupational Safety and Health Act is so clear that publication of agency's policy in the Federal Register is not necessary).

Nicolaus v. FBI, 24 F. App'x 807 (9th Cir. 2001) (affirms district court's finding that the FBI's Vaughn Index demonstrates that information was properly withheld under Exemptions 7(C) and 7(D)).

Papa v. United States, No. 00-55051, 2002 WL 261868 (9th Cir. Feb. 25, 2002) (mootness: INS's affidavit does not demonstrate that all records responsive to plaintiff's FOIA request have been produced; reversed and remanded on this issue).

Pub. Citizen v. Dep't of State, 276 F.3d 634 (D.C. Cir. 2002) (duty to search: State Department's date-of-request cut-off policy is a procedural rule, exempt from the Administrative Procedure Act's notice-and-comment requirement; challenges to the cut-off policy are ripe for review; cut-off policy is generally unreasonable and it is unreasonable with respect to the requester's June FOIA request because the agency failed to substantiate its claim that an "administrative nightmare" would result if it did not apply the cut-off policy; "specific circumstances in some agencies may render an across-the-board rule reasonable") (Exemption 1 [E.O. 12,958]: disclosure of portions of "records disposition schedules" would disclose United States intelligence activities, sources, or methods; subsequent disclosure in this litigation of previously classified information is not evidence of agency bad faith; requester has not demonstrated that specific information has been released previously).

Robert v. United States Dep't of Justice, 26 F. App'x 87 (2d Cir. 2002) (affirms district court's ruling that information was properly withheld under Exemptions 2, 5, 6, and 7(C)).

Schwarz v. USDA, No. 01-5276 (D.C. Cir. Nov. 23, 2001) (per curiam) (affirms district court ruling that enjoined plaintiff from filing any further civil actions without first obtaining leave of court because of her history of frivolous claims and litigation abuses).

Schwarz v. Dep't of Energy, No. 01-5413 (D.C. Cir. Mar. 25, 2002) (grants government's motion for summary affirmance in this FOIA case originally filed against 807 separate defendants where the district court dismissed the suit for failure to state a claim upon which relief can be granted and where defendants demonstrated that they conducted adequate searches).

Schwarz v. United States Dep't of the Treasury, No. 00-5453 (D.C. Cir. July 13, 2001) (per curiam) (rehearing denied where summary affirmance had been granted to the government in this FOIA case against 79 federal entities).

Sinito v. FBI, No. 01-5168, 2001 WL 1488632 (D.C. Cir. Oct. 15, 2001) (per curiam) (affirms portion of the district court's July 12, 2000 opinion that found that the FBI properly invoked Exemption 3 (18 U.S.C. 2518) to protect Title III information; requester is neither entitled to, nor eligible for, attorney fees beyond the interim fees he obtained).

United States v. Kearse, 30 F. App'x 85 (4th Cir. 2002) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts in this criminal case).

Willis v. FBI, 274 F.3d 531 (D.C. Cir. 2001) (the conclusion that plaintiff was capable of representing himself was sufficient for denying appointment of counsel; rather than the Poindexter factors, the local rule (which considers nature and complexity of action, potential merit of claims, inability of pro se party to obtain counsel by other means, interests of justice, and any other factions deemed appropriate by the judge) was the appropriate standard because plaintiff was proceeding in forma pauperis).


District Courts

AFL-CIO v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001) ("Reverse" FOIA/Exemption 7(C): following the Eighth Circuit's decision in Campaign for Family Farms, finds that a "reverse" FOIA claim may be brought under the Administrative Procedure Act to challenge an agency's release of documents under the FOIA; in this action to prevent the disclosure of 6000 pages of records obtained during the FEC's investigation of plaintiff, finds that the FEC's refusal to apply Exemption 7(C) to bar the release of information that would identify third parties is "arbitrary, capricious and contrary to law"; disclosure is not necessary to confirm or refute compelling evidence that the agency is engaged in illegal activity; agency has not shown that the vast majority of the third-party names are publicly available; defendant has not shown that the disclosure of names on the AFL-CIO Web site also discloses that these individuals participated in political activity that was investigated by the FEC).

Associated Builders & Contractors, Inc. v. NLRB, No. C2-98-612 (S.D. Ohio Feb. 21, 2001) (in camera inspection: in camera inspection is not necessary because defendant's affidavit is reasonably sufficient to demonstrate that information was properly withheld under Exemptions 6 and 7(C)).

Blanton v. United States Dep't of Justice, 182 F. Supp. 2d 81 (D.D.C. 2002) (duty to search: in this FOIA case where plaintiff was convicted of 4 counts of first-degree murder for his involvement in the 1963 bombing of a Baptist Church in Alabama, FBI has demonstrated that its search for "tickler" files was adequate; given the age of the investigation, defendant need not contact retired FBI agents who worked on this case) (Exemption 7(F): despite the fact that this investigation is 40-years-old, the exemption protects the identities of FBI agents and informants because of the threats plaintiff has made against FBI agents in the past, the nature of the crime, and plaintiff's association with the Ku Klux Klan) ("reasonably segregable": the date, time, and location of the conversation contained in ELSUR logs are not "reasonably segregable" information because they would reveal the identity of the source).

Brady-Lunny v. Massey, 185 F. Supp. 2d 928 (C.D. Ill. 2002) (jurisdiction: reflects that federal government intervened in state court action, and removed it to federal district court, in order to assert a federal interest "pursuant to the federal question doctrine") (Exemption 7(C): in conjunction with Federal Bureau of Prisons regulation found at 28 C.F.R. 513.34(b), protects the names of federal inmates held in a county jail, because some are "merely witnesses and detainees who have not been charged with or convicted of crimes"; disclosure to the press "would stigmatize these individuals and cause what would be irreparable damage to their reputations"; any "watchdog function that disclosure would serve here is clearly outweighed by the inmates' privacy interests") (Exemption 7(F): protects names of inmates because of the risks that are "always present in inmate populations").

Burns v. United States Dep't of Justice, No. 99-3173 (D.D.C. Feb. 6, 2001) ("unreasonable" burden: in this FOIA case where plaintiff seeks information from telephone conversations between him and his attorney recorded on reel-to-reel tapes while he was federally incarcerated, finds that the search for these telephone conversations would be "unduly burdensome"; the equipment on which these reels can be played has broken and has been replaced with other, incompatible equipment; defendant is not required to obtain new equipment to process a single FOIA request; given the capacity of the disks and the fact that the disks containing the indices have been reformatted, it would take between 25 and 50 work-years to process this request).

Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459 (D. Minn. July 19, 2001) ("Reverse" FOIA/Exemption 6: on remand for entry of a permanent injunction prohibiting disclosure of the names, addresses, and telephone numbers of 19,000 hog farmers who signed a petition, overrules defendant-intervenor's objections to the proposed language of the injunction; dates of signature and zip codes of the signatories are not "reasonably segregable" because this information could be used to identify the signers of the petition).

Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d 29 (D.D.C. 2001) (Vaughn Index: denies plaintiff's motion for a Vaughn Index of all FDA-generated records in 35 investigational new drug (IND) applications because this would require the review of 240,000 pages; denies as unduly burdensome plaintiff's request for a full Vaughn Index of the approximately 35,000 pages in 5 INDs; FDA may submit a sample Vaughn Index for FDA-generated documents contained in one representative IND, to be chosen by FDA).

Career Guidance Found. v. IRS, No. 01CV0109, 2002 U.S. Dist. LEXIS 3840 (S.D. Cal. Feb. 13, 2002) (attorney fees: plaintiff is not eligible for attorney fees because the filing of this litigation was not necessary in order for plaintiff to receive the information it sought about itself; IRS's failure to turn over all of the information was the result of an oversight, and a "simple phone call" was all that was needed; there is no public benefit in the release of information about plaintiff; plaintiff had a private, financial incentive for bringing suit; attorney fees denied).

Carp v. IRS, No. 00-5992, 2002 U.S. Dist. LEXIS 2921 (D.N.J. Jan. 28, 2002) (Exemption 3 [26 U.S.C. 6103(e)(7)]: on in camera inspection, finds that disclosure of third-party tax return information would seriously impair tax administration) (Exemption 7 (threshold): requirement met by records compiled by the IRS in the course of its investigation of plaintiff and his business) (Exemption 7(C): protects the identities of informants because disclosure would not shed light on the IRS's conduct) (Exemption 7(E): disclosure of techniques used to identify and investigate tax protesters, and agency guidelines concerning sources of information, would risk circumvention of law).

Carpa v. FBI, No. 00-2025 (D.D.C. Oct. 15, 2001) (attorney fees: grants pro se plaintiff recovery of his costs, because he received the records he requested under the FOIA only after filing and prosecuting this action; postage and office supplies are not recoverable; grants plaintiff costs in the amount of $150 (his filing fee)).

Ctr. for Nat'l Sec. Studies v. Dep't of Justice, No. 01-2500, 2002 U.S. Dist. LEXIS 2983 (D.D.C. Feb. 21, 2002) (discovery in FOIA litigation: in this FOIA action where plaintiff seeks information concerning individuals detained in connection the government's investigation of the September 11, 2001 terrorist attacks, court denies plaintiff's request for discovery regarding the detainees cleared of terrorist connections, because this information will not help plaintiff oppose defendant's motion for summary judgment; denies plaintiff discovery on the adequacy of defendant's search because the government's supplemental declaration cured the discrepancies in the original declaration regarding the number of detainees; denies plaintiff the portions of all court orders precluding the government from identifying the 10 judicial districts in which sealed criminal cases are pending concerning the detainees, because this information would not help plaintiff oppose defendant's motion for summary judgment).

Ctr. for Pub. Integrity v. Dep't of Energy, 191 F. Supp. 2d 187 (D.D.C. 2002) (Exemption 3 [41 U.S.C. 253b(m)(1)]: the National Defense Authorization Act does not protect the names of unsuccessful entities that placed bids on a government petroleum preserve or the amounts of their bids; statute applies only to procurement of goods and services, not to sales by government) (Exemption 4: agency has not demonstrated that the release of bidders' names or the amounts of their bids would cause substantial competitive harm to the businesses or impair the government's ability to obtain bids for similar sales in the future).

Chourre v. IRS, No. C01-5171, 2002 U.S. Dist. LEXIS 2925 (W.D. Wash. Feb. 4, 2002) (duty to search: IRS conducted a reasonable search in response to plaintiff's FOIA request) (Exemptions 3 [26 U.S.C. 6103(a)] and 7(C): protect the identities of third-party taxpayers) (attorney fees: pro se plaintiff is not entitled to costs because this lawsuit was not necessary) (sanctions: denies plaintiff's motion for sanctions, because agency personnel did not act "arbitrarily and capriciously").

City of Chicago v. United States Dep't of the Treasury, No. 01 C 3835, 2002 WL 370216 (N.D. Ill. Mar. 8, 2002) (Exemption 4: in this FOIA case where plaintiff seeks records in ATF's computerized Firearms Tracing System Database relating to voluntary reports of firearm losses and thefts from interstate carriers of firearms, finds that defendant has not shown how disclosure of the identities of the firearms dealers would competitively harm the carriers who shipped the firearms -- the submitters of the information -- or why ATF would have difficulty inducing the carriers to continue to supply this information, particularly where plaintiff has not sought the identities of the carriers) (Exemption 6: mistakenly finding that exemption does not apply to information concerning purchasers of firearms, dealer points of contact, invalid dealers, and traced firearm recovery addresses because this information would not generally be kept in a "personnel or medical file," despite the insignificance of such requirement) (Exemption 7(C): exemption does not protect this information; the privacy interest in the location of a recovered firearm and the identity of a firearm purchaser is outweighed by the public interest in facilitating the analysis of gun tracking) (Exemption 7(A): defendant has not shown that the disclosure of this information could reasonably be expected to interfere with an ongoing investigation) ("reasonably segregable": agency may use encryption to retrieve information requested by the plaintiff in a redacted manner from the database).

Comer v. IRS, No. 97-76329, 2002 WL 1058056 (E.D. Mich. Mar. 12, 2002) (jurisdiction: case dismissed for lack of jurisdiction, because all records responsive to plaintiff's FOIA request have been released or cannot be located after a reasonable search).

Daniel v. Safir, 175 F. Supp. 2d 474 (E.D.N.Y. 2001) ("not an agency" defense: the FOIA applies to federal agencies, not to city agencies).

Darby v. United States Dep't of the Air Force, No. S-00-0661 (D. Nev. Mar. 1, 2002) (Exemption 5: the deliberative process privilege protects DOD investigator's recommendations contained in e-mails that were prepared to assist the IG in making a final determination concerning the Air Force's denial of plaintiff's access to his workplace) (Exemption 6: IG's investigative report is neither a personnel, medical, nor similar file, despite insignificance of such requirement) (Exemption 7(C): does not protect the identities of staff investigators and other agency employees who participated in the investigation, on basis that there is a "strong" public interest in ensuring the integrity of federal agency investigations, even in the absence of wrongdoing; protects the identities of civilians who were interviewed by the investigators, because their privacy interest outweighs the public interest in disclosure).

Dawson v. DEA, No. 00 CV 5887, 2002 WL 418022 (S.D.N.Y. Mar. 14, 2002) (magistrate's recommendation) (recommends finding that court lacks jurisdiction where defendant demonstrated that in response to plaintiff's FOIA request the agency performed a reasonable search and properly withheld documents under FOIA exemptions).

Donham v. United States Dep't of Energy, No. 01-CV-4049, 2002 WL 449697 (N.D. Ill. Feb. 5, 2002) ("exceptional circumstances"/"due diligence": denies defendant's motion for an Open America stay; defendant's "first-in/first-out" two-track system for processing FOIA requests shows that it is exercising "due diligence," but agency's predictable backlog of cases does not constitute "exceptional circumstances"; the "Open America approach is inconsistent with the plain language of the FOIA, especially in light of the 1996 Amendments"; orders defendant to finish processing one pending FOIA request (that the agency originally stated it could complete by October 2001) in a month's time; suggests that the parties work together to fashion a schedule for the processing of the second pending request, or they may each submit a proposed schedule for the court's consideration).

Elec. Privacy Info. Ctr. v. Dep't of Justice, No. 00-1849 (D.D.C. Mar. 25, 2002) (within 60 days the FBI must conduct a further search of FBI divisions that reasonably can be expected to have records responsive to plaintiff's FOIA request concerning "Carnivore" and "EtherPeek").

Ferranti v. ATF, 177 F. Supp. 2d 41 (D.D.C. 2001) (Exemption 2: finds, without specification, that the exemption protects internal computer codes) (Exemption 7(C): protects the names of various law enforcement officials and third parties contained in investigatory records) (Vaughn Index: agency's Vaughn Index is adequate even though each redaction is not labeled with the applicable exemption, because the agency redacted only 2 narrowly limited categories of information; there is no indication of bad faith on the part of the agency) ("reasonably segregable": addressing the issue of segregability sua sponte, finds that all "reasonably segregable," nonexempt information has been disclosed) (duty to search: agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request).

FlightSafety Servs. Corp. v. United States Dep't of Labor, No. 3:00CV1285, 2002 WL 368522 (N.D. Tex. Mar. 5, 2002) (Exemption 4: disclosure of salary and wage information in the form of surveys of business establishments would impair the agencies' ability to collect such data in the future and would cause substantial competitive harm to the businesses from which the data was collected; orders in camera inspection of the records to determine whether they may be re-coded or redacted and released) (attorney fees: any determination regarding attorney fees would be premature at this time).

Gambini v. United States Customs Serv., No. 5:01-300, 2001 U.S. Dist. LEXIS 21336 (N.D. Tex. Dec. 21, 2001) (mootness: plaintiff's challenge to the tardiness of the agency's response to his FOIA request has been rendered moot by the agency's response) (exhaustion: plaintiff's challenge to the adequacy of the agency's response to his administrative appeal is not yet ripe for judicial review; complaint dismissed).

Garcia v. United States Dep't of Justice, 181 F. Supp. 2d 356 (S.D.N.Y. 2002) (duty to search: FBI has shown that it conducted a reasonable search in response to plaintiff's FOIA request for records about himself; agency's initial inability to locate records was a "mere administrative error"; an affidavit from the individual who supervised the search is sufficient) (in camera inspection: in camera inspection is unnecessary because the FBI's affidavit is sufficient) (Vaughn Index: FBI's coded Vaughn Index is sufficient) (Exemption 7(C): FBI's "categorical" withholding of documents under this exemption, rather than a document-by-document evaluation, is sufficient; protects information that would identify FBI Special Agents, other federal government agents, and state and local law enforcement personnel involved in the investigation of plaintiff, subjects of investigative interest, and third parties, given plaintiff's violent criminal history, his history of retaliation against witnesses, and the lack of public interest in disclosure; the discovery of the wrongdoing of a state government, rather than the federal government, is not a goal of the FOIA and therefore does not amount to a qualifying public interest) (Exemption 7(D): FBI's affidavit demonstrates that it provided sources with express and implied promises of confidentiality; an implied promise of confidentiality is found because the crimes underlying the criminal investigation (serious allegations of corruption within the state police department and conspiracy to kill a witness) are sufficiently serious and each source had a specific personal or business relationship with plaintiff; testimony at trial does not waive this exemption) (Exemption 7(F): finds that the exemption protects the identities of FBI Special Agents, other government agents, and informants, because of plaintiff's violent criminal history and propensity for retaliation) (Exemption 3 [Rule 6(e)]: protects grand jury materials).

Giles v. United States Dep't of Justice, No. 00-1497 (D.D.C. Nov. 2, 2001) (duty to search: the FBI has shown that it has conducted a reasonable search in response to plaintiff's FOIA request).

Goodman v. United States Dep't of Labor, No. 01-515, 2001 U.S. Dist. LEXIS 22748 (D. Or. Dec. 21, 2001) (magistrate's recommendation) (Exemption 7(A): release of records concerning a special investigation of an on-the-job injury of an employee of plaintiff's client could reasonably be expected to "expose and impede" the agency's enforcement strategies) (discovery/FOIA interface: denies plaintiff's request for discovery; the scope of discovery in an administrative hearing is not at issue; plaintiff may be entitled to obtain documents through discovery in the ongoing enforcement proceeding) (waiver: agency did not waive the exemption when it referred to a portion of a memorandum in its affidavit).

Halpern v. FBI, No. 94-0036 (W.D.N.Y. Oct. 15, 2001) (adopts magistrate's August 31, 2001 recommendation and grants defendant's motion for summary judgment; magistrate properly denied plaintiff's request for in camera inspection because the agency's affidavits demonstrate that information concerning the unionization of the American meatpacking industry from 1933 to 1954 was properly withheld under Exemptions 1 (E.O. 12,958), 3 (50 U.S.C. 403-3(c)(6)), 6, and 7(D)).

Judicial Watch, Inc. v. United States Dep't of Energy, 191 F. Supp. 2d 138 (D.D.C. 2002) (exhaustion: on a matter that came before the court on plaintiff's expedited request for an emergency status conference, ruling that where plaintiff filed suit 7 working days before the statute's 20-day time period expired but 3 defendants have not yet responded to this request after 10 months, court would not dismiss the complaint for failure to exhaust administrative remedies; court will permit plaintiff to file a supplemental complaint under Rule 15(d) in order to "cure" the asserted defect that the court lacked jurisdiction at the time of the original filing; defendants must provide plaintiff with all nonexempt records responsive to its FOIA request and complete Vaughn Indices for these voluminous records on a designated schedule ranging from March 25 to May 15).

Judicial Watch, Inc. v. United States Dep't of Justice, 185 F. Supp. 2d 54 (D.D.C. 2002) (fees: court will review de novo, base on the record before the agency, plaintiff's request for status as a news media representative; plaintiff is not a representative of the news media because it acts only as a library, information vendor, or middleman that members of the news media can utilize) (fee waiver: plaintiff's request is not in the public interest; while plaintiff has shown that it has the ability to disseminate information about the Commerce Department's trade missions from 1993 to 1998, it has not shown with reasonable specificity why disclosure of this information is in the public interest, that the information to be disclosed is informative, or that it would contribute to the public understanding of government operations) (duty to search: 2 components of the Justice Department conducted reasonable searches in response to plaintiff's FOIA request; agency must submit a renewed motion for summary judgment by February 15, addressing the adequacy of search with respect to 2 Justice Department components that have not shown reasonable searches because they did not identify the keywords they used in conducting their electronic database searches) (discovery in FOIA litigation: plaintiff is not entitled to discovery on the search issue).

Judicial Watch, Inc. v. United States Dep't of Justice, Nos. 1:01-0639, 1:01-0720 (D.D.C. Mar. 22, 2002) (fee waiver: finds that plaintiff is entitled to a fee waiver in this FOIA case where it sought records concerning pardon applications considered by President Clinton, because this information bears directly on the operations of the government and it has not been shown that these records are in the public domain; after completing the processing of this request, if it becomes clear that any of these documents was publicly available at the time the FOIA request was made, defendant may seek reimbursement of the duplicating costs from plaintiff) (denies government's request for a stay of proceedings in one action on the basis that it would not promote judicial efficiency).

Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29 (D.D.C. 2002) (proper party defendant: the Justice Department, not the FBI, is the proper party defendant under the FOIA) (jurisdiction: court lacks jurisdiction because plaintiff has not exhausted its administrative remedies) (exhaustion: plaintiff has not exhausted its administrative remedies because it has not paid the fees associated with its FOIA request; moreover, plaintiff filed suit after the agency (belatedly) responded to its FOIA request by denying its fee waiver request and asking for a promise to pay reproduction costs).

Judicial Watch, Inc. v. Rossotti, No. 01-1612, 2002 WL 535803 (D.D.C. Mar. 18, 2002) (exhaustion: plaintiff has not exhausted its administrative remedies because it has not paid the fees associated with its FOIA request, nor has it appealed the agency's determination that it is not entitled to a fee waiver; plaintiff did not constructively exhaust its administrative remedies where it filed suit after the agency (belatedly) responded to its FOIA request by determining that the requester fell into the "other" fee category and asking for more information in order to determine if the requester is entitled to a fee waiver) (fee (media requesters): plaintiff is not a representative of the news media, even though it is a self-styled "ethical and legal 'watchdog,'" because it does not "publish or broadcast news to the public itself") (fee waiver: requester has not established its right to a fee waiver merely by asserting that it "uncover[s] information and documents concerning government corruption," by stating that it is an nonprofit entity, and by making "general and formalistic assertions" about the public interest in disclosure of information concerning a conflict of interest waiver for the IRS commissioner).

Lowry v. Soc. Sec. Admin., No. 00-1616, 2001 U.S. Dist. LEXIS 23474 (D. Or. Aug. 29, 2001) (exhaustion: plaintiff has not constructively exhausted his administrative remedies with respect to 2 counts, but he has achieved constructive exhaustion on one count; plaintiff constructively exhausted his administrative remedies only where the agency responded to his FOIA request after the 20-day period had elapsed and its response was dated after the date that plaintiff filed this lawsuit; plaintiff has not constructively exhausted his administrative remedies where the agency responded to his FOIA requests after the 20-day period had elapsed but its responses were dated one day before the date the plaintiff filed this lawsuit; the date plaintiff received these responses is not dispositive) (subsection (a)(2): agency must disclose the first page of every opinion rendered by an administrative law judge (ALJ) in the adjudication of cases; plaintiff's request "reasonably described" the records he sought; when "viewed in the light of the strong presumption in favor of disclosure," the request, while burdensome, does not rise to the level of "unduly" burdensome; the search would take 80 hours to complete, but would not involve the purchase of new equipment or the hiring of new employees) (Exemption 6: exemption does not protect opening statements made by the ALJ at the disability hearings of 42 former clients of plaintiff; the public interest in exposing bias within the hearings system is strong, and personal information may be redacted from the record), reconsideration denied (D. Or. Nov. 7, 2001), judgment entered (D. Or. Dec. 19, 2001).

Maldonado Guzman v. Comm'r of Soc. Sec., 182 F. Supp. 2d 216 (D.P.R. 2002) (Exemption 6: protects the Social Security records of plaintiff's daughter; the privacy interest in these records is substantial and the public interest in disclosure is not).

Marshall-Screen v. IRS, No. 01-CV-0811, 2002 WL 264999 (E.D.N.Y. Feb. 26, 2002) (denies IRS's motion to dismiss plaintiff's FOIA claim; IRS offers no explanation as to why it has not responded to plaintiff's FOIA request).

Meeropol v. Ashcroft, No. 75-1121 (D.D.C. Feb. 6, 2002) (magistrate's recommendation) (attorney fees: public interest requirement is met by plaintiffs' placement of documents concerning the prosecution and execution of Julius and Ethel Rosenberg for espionage during the Cold War era in the archives at Columbia University Law School; while plaintiffs, who are the children of the Rosenbergs, had a personal goal of clearing their parents' names, no commercial benefit attached to them from the release of these documents; FBI's "inappropriate withholding" of information prior to 1978 "affected the entire course of this litigation"; plaintiffs are entitled to attorney fees associated with legal services from 1978 (when interim fees were granted) until 1999; plaintiffs' fee application, covering work performed over a period of 20 years by a now-deceased attorney, is neither detailed nor contemporaneous; recommended fees are for work on contested matters for which plaintiff's success was partial and on uncontested matters for which the court applied a 50% discount; acknowledging that it is impossible to put together a coherent, detailed record of the deceased attorney's work on this lengthy, record-setting case, recommends that the estate be granted $100,402.69 in attorney fees (where $666,401.25 was sought) and $16,052.58 in costs (where $96,665.73 was sought); government should not reimburse the attorney who pursued the fee petition on behalf of the estate for the time that he spent reconstructing the inadequate documentation left by the deceased attorney; finds that "fees attorney" should be granted only $29,661.28 (where $76,132.50 was sought) in attorney fees because of his inexperience with handling fees litigation and only $1220.33 (where $1978.40 was sought) in costs), adopted (D.D.C. Mar. 19, 2002).

Natural Res. Def. Council v. Dep't of Energy, 191 F. Supp. 2d 41 (D.D.C. 2002) (expedited processing: grants plaintiff's motion for expedited treatment of its FOIA request for records held by the Department of Energy concerning the Vice-President's National Energy Policy Development Group; this FOIA request to which Energy has been responding at a "glacial pace" is of "extraordinary public interest," and the agency has received 11 other similar FOIA requests; Energy Department must provide plaintiff with the "vast majority" of nonexempt records by March 25, 2002, and provide it with a final package by April 10, 2002; a complete Vaughn Index of all 7500 pages must be provided to plaintiff by April 25, 2002).

Ortloff v. United States Dep't of Justice, No. 00-0826 (D.D.C. Mar. 22, 2002) (exhaustion: in this FOIA case where plaintiff sent a request for records to the Justice Department's management division on February 28, and where the management division distributed copies of his complaint to the appropriate components on April 13, finds that on April 14 when plaintiff filed suit he had not exhausted his administrative remedies; plaintiff, who is not a novice FOIA requester, has "lengthened the process by not submitting his requests to the individual components of the Department and then by filing suit before any component had received his request").

O'Toole v. IRS, No. 01-750 (S.D. Cal. Dec. 31, 2001) (jurisdiction: court lacks jurisdiction because plaintiff does not allege that the agency improperly withheld records under the FOIA).

Palacio v. United States Dep't of Justice, No. 00-1564, 2002 U.S. Dist. LEXIS 2198 (D.D.C. Feb. 11, 2002) (duty to search: the FBI conducted a reasonable search in response to plaintiff's FOIA request for records about herself) (Exemption 2 "high": protects an informant file number and source symbol number assigned to a cooperating witness in the investigation of plaintiff for drug trafficking, because disclosure could harm the FBI's investigative activities using confidential informants) (Exemption 7 (threshold): requirement met by FBI records compiled during a criminal investigation by a drug task force) (Exemption 7(C): protects the identities of informants, subjects of investigative interest, an FBI Special Agent, and an FBI employee) (Exemption 7(D): protects the file number and information that would identify a symbol-source informant who provided information to the FBI under an express promise of confidentiality) (Exemptions 2 "high" and 7(E): FBI has 30 days to provide the court with greater detail as to why the release of information pertaining to an undercover operation could compromise its law enforcement activities) ("reasonably segregable": all "reasonably segregable," nonexempt information has been released).

Pemco Aeroplex, Inc. v. United States Dep't of Labor, No. 01-1421 (N.D. Ala. Dec. 11, 2001) (Exemption 7(C): protects information that would identify employees of the contractor-plaintiff who filled out a federal race discrimination questionnaire; this information implicates no public interest, which makes dispositive the employees' "small" privacy interest).

Piper & Marbury, L.L.P. v. United States Postal Serv., No. 99-2383, 2001 WL 214217 (D.D.C. Mar. 30, 2001) (focus of the Act on information: adopts, in full, magistrate's finding 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 of the particular Exemption 3 statute involved; to regard an entire Postal Service contract with DHL as "information" or to say that the "evidence of a legal agreement between the two parties means the same thing as knowledge, facts or data is to stretch beyond imagination the common sense meaning of the words 'contract' and 'information'").

Prescott v. Dep't of Justice, No. 00-0187 (D.D.C. Aug. 10, 2001) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of its investigation of plaintiff for allegedly heading a large drug-trafficking organization and for possession of extremely violent weapons; Bureau of Prisons (BOP) has not demonstrated that the requirement is met by all the records in plaintiff's inmate central file; BOP must submit a supplemental declaration to the court in 60 days) (Exemptions 7(C) and 7(F): protect information that would identify third parties) (Exemption 7(D): given the violent nature of plaintiff's alleged crimes ("distribution of major quantities of narcotics as well as possession of extremely violent weapons including machine guns and grenades"), the FBI demonstrated that implied promises of confidentiality had been given to sources who had specific personal or business relationships with plaintiff; BOP has not demonstrated that sources were given express promises of confidentiality; BOP must submit a supplemental pleading to the court in 60 days) (Exemption 7(E): protects information contained on FBI's Form FD-515 that rates the effectiveness of investigative techniques; BOP must submit a supplemental declaration to the court in 60 days because it has not described the withheld information with sufficient particularity) (Exemption 7(F): assuming, without deciding, that BOP compiled these records for law enforcement purposes, finds that the exemption protects information that would identify plaintiff's prison separatees, but not information about "plaintiff actions") (Exemption 5: BOP's affidavit is "vague and conclusory" and does not demonstrate that information was properly withheld under the deliberative process privilege; BOP must submit a supplemental declaration to the court in 60 days) (duty to search: FBI Headquarters was not obligated to search field offices in response to plaintiff's request; FBI regulations state that a FOIA requester must direct his request to the appropriate field office) ("reasonably segregable": BOP has not demonstrated that all nonexempt information has been segregated and released from 100 pages withheld in their entirety).

Proctor v. Reno, No. 00-2674 (D.D.C. Mar. 7, 2002) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7 (threshold): requirement met by records compiled in the course of an FBI criminal investigation) (Exemption 7(C): protects the identities of an FBI Special Agent and a DEA Special Agent) ("reasonably segregable": all "reasonable segregable," nonexempt information has been released).

Pub. Citizen Health Research Group v. Nat'l Insts. of Health, No. 00-1847, 2002 U.S. Dist. LEXIS 7457 (D.D.C. Mar. 12, 2002) (Exemptions 3 [15 U.S.C. 3710a] and 4: in this FOIA case where plaintiff seeks information about revenues from royalties based on NIH inventions, finds that royalty rates obtained from a licensee-corporation were obtained from a "person," even though royalty rates are arrived at through negotiations with nongovernment entities; relying on agency's affidavits, finds that NIH has provided extensive support for its conclusions that disclosure would likely cause the pharmaceutical companies substantial competitive harm; for the first time in the District Court for the District of Columbia, finds that information is properly protected on the basis that disclosure would impair the efficient and effective performance of an agency program; applying a "balancing test" (not properly applied under Exemption 4) between the private and public interests at stake, finds that agency properly withheld information about revenues from royalties in its licensing program).

Rae v. Hawk, No. 98-1099 (D.D.C. Sept. 21, 2001) (case against a Department of Justice component is dismissed from this lawsuit because it conducted a reasonable search for records in response to plaintiff's FOIA request; case against a private individual is dismissed because the FOIA provides a cause of action against federal agencies only; case against ATF is dismissed because plaintiff has neither paid the fees associated with his FOIA request nor administratively appealed the denial of his request for a fee waiver).

Rae v. Hawk, No. 98-1099 (D.D.C. Jan. 29, 2002) (within 30 days the FBI must submit a supplemental declaration demonstrating the adequacy of its search in response to plaintiff's FOIA request and explaining the withholding of 10 pages in their entireties) (shortened name Rae).

Recticel Foam Corp. v. United States Dep't of Justice, No. 98-2523 (D.D.C. Jan. 31, 2002) ("Reverse" FOIA: in this case where plaintiff seeks to prevent the FBI from releasing records obtained in the course of a criminal investigation of plaintiff for alleged violation of federal hazardous waste disposal laws, enjoins the FBI from releasing these records; information is clearly protected under Exemption 7(C), and FOIA-exempt information is not disclosable when protected by the Privacy Act).

Riley v. FBI, No. 00-2378, 2002 U.S. Dist. LEXIS 2632 (D.D.C. Feb. 12, 2002) (Exemption 3 [18 U.S.C. 3123(d)]: protects pen register materials under seal in the District Court for the Eastern District of New York; plaintiff has not shown that these materials were disclosed and made part of the public record during his trial) (Exemption 7(C): protects information concerning subjects of investigative interest contained in FBI's investigative records on plaintiff) ("reasonably segregable": all "reasonably segregable," nonexempt information has been released).

Rivera v. United States, No. 00-2962 (D.D.C. Feb. 20, 2002) (proper party defendant: agency official is not a proper party defendant under the FOIA) (exhaustion: plaintiff has not exhausted his administrative remedies, because he has not properly appealed the FBI's response to his FOIA request, nor has he paid or agreed to pay the appropriate fees) (Exemptions 6 and 7(C): without specification, finds that these exemptions protect records concerning a third party because plaintiff has not provided proof of death or a privacy waiver).

Ruiz v. United States Dep't of Justice, No. 00-0105 (D.D.C. Sept. 27, 2001) (expedited processing: prisoner who seeks records to prepare for a post-conviction petition for a writ of habeus corpus is denied expedited treatment of his FOIA request) ("exceptional circumstances"/"due diligence": finding that the FBI has made a "satisfactory showing that a stay of proceedings is warranted," grants an Open America stay until July 31, 2002, rather than through October 2004 as the FBI had sought).

Shores v. FBI, 185 F. Supp. 2d 77 (D.D.C. 2002) (duty to search: FBI conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 2 "high": disclosure of informant symbol and file numbers could impede law enforcement activities) (Exemption 7(C): protects the identities of FBI Special Agents, other federal law enforcement officers, subjects of investigative interest, informants, cooperating witnesses, third parties, and a telephone company employee who assisted in the investigation that led to plaintiff's murder conviction; individuals' privacy interests are not diminished even if plaintiff can deduce their identities; plaintiff has not shown a public interest in disclosure) (Exemption 7(D): protects the identity of a cooperating witness who received an express promise of confidentiality; an implied promise of confidentiality may be inferred for 2 cooperating witnesses because plaintiff attempted to procure the murder of a family member of one of the witnesses) (Exemption 7(E): protects numerical ratings that assessed the effectiveness of FBI law enforcement techniques and information concerning a polygraph examination and the telephone system at Leavenworth Penitentiary because disclosure could enable circumvention of the law) (Exemption 7(F): protects the identities of cooperating witnesses and others who were interviewed concerning plaintiff, because of plaintiff's violent nature) ("reasonably segregable": all nonexempt, "reasonably segregable" information has been released) (in camera inspection: denies plaintiff's request for in camera inspection because he has shown no evidence of bad faith on the part of the agency) (waiver: plaintiff has not shown that specific withheld information is in the public domain).

Tran v. United States Dep't of Justice, No. 1:01-0238, 2002 WL 535815 (D.D.C. Mar. 12, 2002) (duty to search: the IRS has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request).

Twist v. Ashcroft, No. 01-1163, 2002 U.S. Dist. LEXIS 4115 (D.D.C. Mar. 11, 2002) (magistrate's recommendation) (defendant need not provide plaintiff with a Vaughn Index before he files his motion for summary judgment).

Wayne's Mech. & Maint. Contractor, Inc. v. United States Dep't of Labor, No. 1:00-45 (N.D. Ga. May 7, 2001) (Exemption 7 (threshold): requirement met by records compiled by OSHA in the course of its investigation of an industrial accident at a battery plant) (Exemption 7(C): on in camera inspection, finds that the exemption protects information contained in witness statements that would identify employee-witnesses because their privacy interests outweigh the public interest in disclosure; redacted portions of the statements would not inform the public about the agency's conduct in performing the investigation; the information disclosed fulfills the purpose of the FOIA by informing the public about the type of information maintained with respect to investigations conducted by OSHA; the filing of 3 undated requests by witnesses for unredacted copies of their own statements, which were not submitted during the pendency of this FOIA request, does not constitute waiver) (Exemption 7(D): protects the identities of and information provided by witnesses who were given express promises of confidentiality).

Willis v. FBI, No. 96-1455 (D.D.C. Mar. 6, 2000) (magistrate's recommendation) (applying the Poindexter v. FBI factors to this FOIA case, recommends denying inmate's motion for appointment of counsel because he has shown that he is capable of representing himself and his FOIA action does not involve complex legal or factual issues).

Willis v. FBI, No. 96-1455 (D.D.C. June 6, 2000) (adopts magistrate's recommendation, applying a local civil rule rather than the similar Poindexter factors),

Woodfolk v. DEA, No. 97-0634 (D.D.C. Jan. 29, 2002) (proper party defendant: grants defendant's motion to substitute the Justice Department as the proper defendant) (exhaustion: because plaintiff has not paid his $4990 duplication fee, he has not exhausted his administrative remedies).


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