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Compiled FOIA Decisions (Received July-December 1996)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1996. OIP is preparing additional compilations of decisions received during previous months and years.


Appeals Courts

Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996) ("not an agency" defense: the National Security Council (NSC) is not an agency for purposes of the FOIA; the NSC has the self-contained structure necessary for it to be considered an executive establishment, but that structure is not sufficient to outweigh the significance of the close proximity between the Council and the President, who chairs it; the Council is more like "the President's immediate personal staff" and does not exercise substantial independent authority; neither the statutory Council nor the NSC staff performs significant nonadvisory functions).

Armstrong v. Executive Office of the President, 97 F.3d 575 (D.C. Cir. 1996) (in camera inspection: in this FOIA case involving national security information, finds that the district court did not abuse its discretion in declining to review 4 documents in camera because the defendant demonstrated with "reasonable specificity" why the exempt material was not segregable from the nonexempt information) (in camera affidavit: while the district court may have erred by not explaining its reasons for using an in camera affidavit for one document, holds that any such error was harmless because the government released all but 3 lines of the document and explained why it could not release the rest) (Exemption 6: district court improperly accepted a categorical rule for the withholding of the names of FBI agents below a certain grade who participated in meetings at the White House, as reflected on National Security Council appointment records; on remand, the agency must supply an adequate explanation of why the privacy interests of low-level FBI agents will categorically outweigh any possible public interest advanced by disclosure) (mootness: disclosure of contested document moots the question of the validity of the original exemption claim).

Avondale Indus. v. NLRB, 94-2173 (E.D. La. Dec. 15, 1994) (bench order), rev'd & remanded, 90 F.3d 955 (5th Cir. 1996) (standard of review: because plaintiff appeals a grant of summary judgment which was based on district court's legal conclusion regarding the applicability of a FOIA exemption, the standard of review is de novo) (Exemption 6: disclosure of marked unredacted voting lists in a union representation election would not be a "clearly unwarranted invasion" of voters' privacy; applying Reporters Committee, finds that the NLRB has already disclosed the names and addresses of voters in a voluminous public record and that there has been no showing that the public record is so voluminous or cryptic as to effectively conceal the information therein; there is no demonstrated privacy interest in voter attendance information; marked voting lists give plaintiff the information it needs to determine whether the NLRB is properly conducting its elections) (Exemption 7 (threshold): marked voting lists of union representation proceedings were not compiled for law enforcement purposes).

Burka v. HHS, 87 F.3d 508 (D.C. Cir. 1996) ("not an agency record" defense: data tapes containing results of survey about smoking behavior are agency records for purposes of the FOIA; government contractor who prepared the tapes was under the "constructive" control of the agency; agency exercised extensive supervision with respect to the collection and analysis of the data) (Exemption 5: computer tapes and paper questionnaires recording survey responses about smoking habits and attitudes do not fall under the confidential research privilege because they are generally not protected in civil discovery; agency has not demonstrated that disclosure would diminish the researchers' ability to publish their results in prestigious journals).

Crooker v. Tax Div. of the Dep't of Justice, No. 96-1094, 1996 U.S. App. LEXIS 20991 (1st Cir. Aug. 20, 1996) (per curiam) (unpublished order), 94 F.3d 640 (1st Cir. 1996) (table cite) (district court did not abuse its discretion in declining to award litigation costs in this FOIA case).

Frazee v. United States Forest Serv., 97 F.3d 367 (9th Cir. 1996) (Exemption 4/"Reverse" FOIA: district court properly decided to disclose plaintiff's Operating Plan for managing 2 Forest Service recreational facilities in response to a FOIA request; while plaintiff's proposal submitted during the application process was confidential, once the Forest Service issued the permit to the plaintiff, their Operating Plan became a public record available under the FOIA; disclosure would not result in substantial competitive harm because the information contained in the Plan "is freely or cheaply available from various sources other than the Plan itself"; rules that it need not determine whether Critical Mass applies in the Ninth Circuit because it finds that the submission of the Plan was not voluntary, but was required by the Forest Service as part of its contract-solicitation process).

Hale v. Dep't of Justice, 99 F.3d 1025 (10th Cir. 1996) (Exemption 7(D: applying Landano, finds that in all instances where the government withheld information because an express promise of confidentiality had been entered into between the government and the source, the material was properly withheld; in this case, where a violent crime involving kidnaping and murder took place in a small Oklahoma town where everyone knew everyone else, considerations related to the "nature of the crime" "cut in both directions as to the likelihood that the interviewees expected anonymity when talking to law enforcement personnel"; with respect to the sources' relation to the crime or to the murderer, district court did not conduct a "source-by-source" analysis of the documents for which the government is asserting an implied promise of confidentiality for either individual sources or commercial or financial institutions; after in camera review, the court of appeals is not able to determine whether the government appropriately claimed implied confidentiality for the various sources; therefore, case is remanded to the district court; district court must make explicit findings as to each category of material deleted from a source who has been disclosed and as to each source whose identity has not been disclosed).

Hart v. FBI, No. 95-2110, 1996 WL 403016 (7th Cir. July 16, 1996) (unpublished order), 91 F.3d 146 (7th Cir. 1996) (table cite) (dismissal for lack of subject matter jurisdiction found proper in this FOIA case where the FBI's affidavit demonstrated that its search for records concerning plaintiff was reasonably calculated to uncover all relevant documents).

Hook v. Comm'r of Soc. Sec., No. 96-5100, 1996 WL 549781 (6th Cir. Sept. 25, 1996) (unpublished order), 97 F.3d 1451 (6th Cir. 1996) (table cite) (district court properly dismissed this FOIA case as moot; plaintiff's disability claims file was made available for her review at the district court clerk's office).

Kennecott Utah Copper Corp. v. Dep't of the Interior, 88 F.3d 1191 (D.C. Cir. 1996) (publication: court lacks jurisdiction because the FOIA does not authorize it to order Federal Register publication of the 1993 document concerning the recovery of money damages under the Superfund statute and the Clean Water Act; Congress intended that the courts order production, not the publication, of documents).

Kitchen v. DEA, No. 95-5380 (D.C. Cir. Dec. 11, 1996) (appeal of decision in which court ruled in favor of the government on FOIA Exemptions 2, 7(A), 7(C), 7(D), and 7(F) dismissed due to plaintiff's failure to prosecute).

Maccaferri Gabions, Inc. v. Dep't of Justice, No. 96-1513 (4th Cir. Sept. 19, 1996) (court dismisses this action on motion of the plaintiff; district court had ruled that the disclosure of investigatory records could reasonably be expected to interfere with possible antitrust enforcement proceedings under Exemption 7(A)).

McDonnell Douglas Corp. v. NASA, No. 95-5290 (D.C. Cir. Sept. 17, 1996) (reverse FOIA suit) (submitter lacks standing to challenge the judgment of the district court as submitter prevailed below and on appeal challenged only the legal reasoning of the district court; this was not permitted as "only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal"; as to the challenge raised by NASA "that the district court improperly entered an injunction permanently enjoining the release of the information at issue," NASA found to have "waived" that argument by "failing to present it in a timely manner to the district court"; accordingly, the judgment of the district court is affirmed).

Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) (standard of review: citing Schiffer v. FBI, holds that the scope of appellate review in a FOIA case involves first determining whether the district court had an adequate factual basis upon which to base its decision; if so, the district court's conclusion of an exemption's applicability is reviewed de novo) (Exemption 3 [50 U.S.C. 403g, 403-3(c)(5)]: agency properly refused to confirm or deny the existence of records concerning an employment relationship between itself and Claude Capehart or Capehart's alleged CIA activities during November 1963; Congress did not intend that the JFK Assassination Records Collection Extension Act standards should be applied to FOIA review of documents involving the Kennedy assassination; plaintiff's allegation of bad faith was insufficient to defeat defendant's motion for summary judgment) (Vaughn Index: the identity or presence of documents would not aid plaintiff's arguments, because the legal question of whether the CIA must disclose the existence of employment records is not aided by a review of the actual documents).

Nadler v. FDIC, 92 F.3d 93 (2d Cir. 1996) (Exemption 4: the fact that harm from disclosure of portions of a joint venture agreement would result from active interference by plaintiff rather than directly by potential competitors does not affect the fairness considerations that underlie Exemption 4; sensitive financial information about a development project "clearly falls" within the class of materials that Congress exempted as "confidential"; release of redacted portions of a joint venture agreement might hinder the commercial success of the development project entered into by nongovernmental parties, with the FDIC participating only as receiver for a failed party).

Ohaegbu v. FBI, No. 96-5261 (D.C. Cir. Nov. 22, 1996) (court dismissed case for failure to prosecute after plaintiff failed to file certain initial submissions).

Ortez v. Wash. County, 88 F.3d 804 (9th Cir. 1996) (the FOIA applies only to the federal government).

Pray v. Dep't of Justice, No. 95-5383, 1996 WL 734142 (D.C. Cir. Nov. 20, 1996) (per curiam) (grants FBI's motion for summary affirmance with respect to grand jury material and information withheld under Exemption 7(D) to protect confidential sources; FBI's motion for summary affirmance denied with respect to the adequacy of its search of its electronic records; case remanded for further proceedings on this issue).

Ray v. Dep't of Justice, 87 F.3d 1250 (11th Cir. 1996) (attorney fees: in the Eleventh Circuit, a pro se litigant who is an attorney is not entitled to attorney fees under the FOIA; district court did not abuse its discretion in refusing to enhance the lodestar used to calculate the amount of a fee award given for work of plaintiff's hired counsel).

Ray v. Dep't of Justice, No. 95-5448 (11th Cir. Dec. 17, 1996) (per curiam) (affirms denial of attorney fees to plaintiff; district court did not clearly err in finding that plaintiff did not substantially prevail in his suit so as to support an award of attorney fees).

Ray v. Reno, No. 96-5005 (D.C. Cir. Dec. 26, 1996) (appeal dismissed for failure to prosecute in this FOIA case).

Russell v. Garrett, No. 95-5285, 1996 U.S. App. LEXIS 30347 (D.C. Cir. Oct. 23, 1996) (per curiam) (case remanded for consideration of plaintiff's argument that defendant's search was inadequate because it did not include certain offices within the Department of the Navy).

Schwarz v. Dep't of Justice, No. 96-5183 (D.C. Cir. Oct. 23, 1996) (per curiam) (grants government's motion for summary affirmance in this FOIA case where the district court ruled that records compiled by INTERPOL were properly withheld under Exemptions 2, 6, 7(C), and 7(D)).

Schwarz v. Dep't of Justice, No. 96-5183 (D.C. Cir. Nov. 27, 1996) (per curiam) (rehearing denied in this FOIA case where the court ruled that records compiled by INTERPOL were properly withheld under Exemptions 2, 6, 7(C), and 7(D)).

Smith v. United States Cong., No. 95-5281, 1996 WL 523800 (D.C. Cir. Aug. 28, 1996) (FOIA does not apply to documents held by Congress).

Spannaus v. Dep't of Justice, No. 95-5267, 1996 WL 523814 (D.C. Cir. Aug. 16, 1996) (per curiam) (grants defendant's motion for summary affirmance to the extent of holding that searches conducted were reasonably calculated to uncover the requested documents; district court order vacated and remanded for further consideration as to whether certain documents were properly withheld under the attorney work-product privilege; agency's affidavit is not sufficient for the court to determine whether other documents are "agency records" for purposes of the FOIA or whether they reflect agency deliberation leading to a decision).

Swan v. SEC, 96 F.3d 498 (D.C. Cir. 1996) (Exemption 7(A): protects records of statements made by plaintiff's former attorney to the SEC in the course of its investigation into possible violations of federal security laws by plaintiff and others; production "could reasonably be expected to interfere with enforcement proceedings" by revealing the scope and focus of the investigation).

Tanks v. Huff, No. 96-5180 (D.C. Cir. Aug. 13, 1996) (grants plaintiff's motion to dismiss his appeal in this FOIA case where the district court ruled that the agency properly refused to confirm or deny the existence of records and that the (c)(2) exclusion had no bearing on this case).

United Techs. Corp. v. FAA, 102 F. Supp. 688 (2d Cir. 1996) (Exemption 4: distinguishes Department of Justice v. Julian, where the Supreme Court differentiated between a requester who is the "subject" of the documents and all other "third-party" requesters; in Reporters Committee, the Supreme Court explained and reiterated the basic principle that all third-party requesters are to be considered equally under the FOIA; the proper inquiry under Exemption 4 is not whether design drawings are confidential as to the requester, but whether they are confidential as to the general public; "confidential information" exemption applies even though the FOIA requester already has access through other sources to the allegedly confidential design drawings).

Williams v. Reno, No. 95-5155, 1996 WL 460093 (D.C. Cir. Aug. 7, 1996) (per curiam) (unpublished memorandum), 93 F.3d 986 (D.C. Cir. 1996) (table cite) (district court abused its discretion in refusing to reconsider its dismissal of plaintiff's FOIA claims, because plaintiff alleged that federal agencies improperly withheld records from him under the FOIA; district court has subject matter jurisdiction over FOIA claims).


District Courts

Abraham & Rose v. United States, No. 96-72337, 1996 U.S. Dist. LEXIS 18387 (E.D. Mich. Nov. 20, 1996) (proper party defendant: while the FOIA is directed at federal agency action, there is no authority for the proposition that the United States can never be a named defendant; "United States, acting through the Internal Revenue Service" clearly names the agency involved) (adequacy of request: plaintiff's request does not fall within the scope of the FOIA; tax lien information plaintiff seeks is public information available in county clerks' offices for the various counties named; plaintiff is attempting to use the FOIA to avoid a tedious search of county records; plaintiff seeks information about private citizens for its own business purposes, and not in order to find out about the actions of the IRS).

Ajluni v. FBI, No. 94-325, 1996 WL 776996 (N.D.N.Y. July 13, 1996) (Vaughn Index: categorical approach is not per se improper, but the agency's use of it in this case does not allow a basis for the plaintiff to meaningfully object, nor does it allow the court to fulfill its duty of ruling on the applicability of some of the exemptions; agency has 45 days to submit an amended Index) (Exemption 1 [E.O. 12,356]: agency's affidavit demonstrates that disclosure of information about terrorist organizations could reasonably be expected to cause serious damage to the national security) (Exemption 7(C): agency's affidavit does not demonstrate that the public's right to know was balanced against each individual's right to privacy) (Exemption 7(D): applying Landano, finds that the agency has shown that names and identification numbers of permanent symbol-numbered sources were properly redacted, but it has improperly offered only categorical justifications for "broad redactions of information" provided by these sources; exemption was properly used to redact the identity of an informant who expressly requested confidentiality; agency did not adequately describe one informant's interview where it only stated that the "circumstances" of the interview "created an atmosphere in which a promise of confidentiality was understood"), in camera inspection ordered (N.D.N.Y. Sept. 12, 1996), order amended (N.D.N.Y. Sept. 21, 1996) (agency has 45 days to submit all documents withheld under Exemptions 7(C) and (D)).

Ajluni v. FBI, 947 F. Supp. 599 (N.D.N.Y. 1996) (Exemption 7(C): on in camera inspection, finds that the exemption protects the identities of third parties and subjects of investigative interest mentioned in investigatory records) (Exemption 7(D): in this case where plaintiff, a suspected Palestinian terrorist, is requesting his own FBI files, finds that an implied promise of confidentiality existed between the FBI and permanent symbol numbered sources who provided information, because of the confidential and sensitive nature of the information involved; with respect to information provided to the FBI by another informant, on in camera inspection finds that the "circumstances of the interview itself created an atmosphere in which a promise of confidentiality was understood") (discovery in FOIA litigation: denies plaintiff's request for discovery of the procedure by which documents are classified for national security purposes because the court has previously ruled in this case that the FBI's Vaughn Index is sufficient with respect to exemptions claimed under Exemption 1; plaintiff's request for the procedures by which the FBI applies a particular exemption are not within the permissible scope of FOIA discovery) (attorney fees: "given FBI's foot-dragging approach" in responding to plaintiff's FOIA request and the significant material released after the Magistrate Judge ordered the FBI to produce a Vaughn Index, the plaintiff has shown that this lawsuit was reasonably necessary, and that a sufficient causal connection existed between this lawsuit and the FBI's release of a substantial number of documents; FBI had no reasonable basis in law for withholding records released in conjunction with its first Vaughn Index; plaintiff asserts that his interest in the disclosure of these records arises from his concern "that the FBI has engaged in a pattern of investigating people for the exercise of their constitutionally protected rights" and because of their Arab-American ancestry; plaintiff has asserted a sufficient public benefit because he plans to use this material to speak on these issues of public concern; attorney fees award limited to fees incurred up to, and including, the opposition to FBI's second summary judgment motion).

Anderson v. United States Marshals Serv., 943 F. Supp. 37 (D.D.C. 1996) (Exemption 7(C): protects the identities of federal and state law enforcement officers, other government personnel, and the names and register numbers of prisoners other than plaintiff) (Exemption 7(F): protects information relating to plaintiff's Central Inmate Monitoring status, including the identity and location of an individual who required separation from plaintiff) (duty to search: agencies conducted searches reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).

Barvick v. Cisneros, 941 F. Supp. 1015 (D. Kan. 1996) (failure to meet time limits: where agency responded to plaintiff's FOIA request after the statutory 10-day time limit, plaintiff is not entitled to the production of any withheld and redacted information just because of that delay) (Exemption 6: protects all information about successful job applicants except their professional and educational qualifications and protects all information about unsuccessful job applicants; disclosure would be a "clearly unwarranted invasion of personal privacy"; simply alleging that the defendant has engaged in a pattern and practice of employment discrimination does not justify the release of personal information) (FOIA as a discovery tool: FOIA does not supplant or enhance discovery rights).

Campbell v. Dep't of Justice, No. 89-3016, 1996 WL 554511 (D.D.C. Sept. 19, 1996) (adequacy of agency affidavit: denies plaintiff's motion to strike FBI declaration; plaintiff has not presented any evidence of bad faith or lack of credibility in the case at bar) (adequacy of search: agency affidavits are sufficiently detailed to allow the court to conclude that the FBI's Central Records search was a reasonable response given the parameters of plaintiff's FOIA request) (Exemption 1 [E.O. 12,356]: despite the (unspecified) age of the documents, agencies' affidavits demonstrate that the disclosure of intelligence sources, source information, intelligence activities, foreign activities of the United States and other foreign government information could damage the national security) (Exemption 2 "low": protects symbol and file numbers of FBI sources) (Exemption 3 [50 U.S.C. 403(d)(3), 403g]: protects information when release might lead to the disclosure of intelligence sources; protects organizational data whose disclosure would reveal the structure of the CIA record system) (Exemption 7 (threshold): threshold requirement met by FBI records compiled for several investigations initiated in the 1960s concerning the writer and civil rights activist James Baldwin, who was believed to be associating with subversive organizations or persons; threshold requirement not met by one "miscellaneous law enforcement file"; the court will conduct in camera review in order to assess the classification of this file) (Exemption 7(C): protects information that would identify law enforcement personnel, witnesses and informants contained in law enforcement files) (Exemption 7(D): applying Landano, finds that the government properly applied this exemption to information collected through express and implied promises of confidentiality; an implied promise of confidentiality may be inferred in connection to investigations related to the national security given the customary trust established for relaying information between state, local and foreign law enforcement agencies and in instances where former members of organizations disclosed self-incriminating information) (Exemption 7(E): defendant has not sufficiently demonstrated how disclosure of the circumstances surrounding a particular type of pretext telephone call would interfere with law enforcement; court will conduct in camera review of this law enforcement technique to determine the applicability of the government's claim) (fee waiver (Reform Act): upholds FBI decision to grant a 60% partial fee waiver to plaintiff and charge duplication fees for the remaining 40%; court finds that 40% of the releasable material was not new material and as such would be less likely to contribute significantly to the public understanding).

Catchpole v. Dep't of Transp., No. 2:96-118 (S.D. Ga. Nov. 11, 1996) (Exemption 5: deliberative privilege protects portions of memorandum prepared by an agency employee during an investigation into plaintiff's allegations that the government improperly withdrew his license to operate his airline; on in camera inspection, finds that the report is predecisional and redacted portions contain author's opinions; while plaintiff may have discussed the existence of the memorandum with its author over the telephone, court finds it implausible that the author fully disclosed sensitive portions of that document, thereby completely waiving the privilege).

Cohen v. Kessler, No. 95-6140 (D.N.J. Nov. 25, 1996) (proper party defendant: the only proper defendant in a FOIA action is the federal agency or department that allegedly improperly withheld the requested records, not federal officers) (Exemption 4: drug manufacturer had an express expectation of confidentiality when it submitted raw data to the FDA in support of its application for approval of a new bovine growth hormone and the FDA maintained this data with the strictest confidence; disclosure of raw data is likely to substantially harm company's competitive position because this is the type of information that its competitors would use in order to develop their own version of this bovine growth hormone without incurring the research and development costs; disclosure would not impair the FDA's ability to obtain data from voluntarily undertaken research studies, in light of the enormous profits that drug manufacturers reap through product development and improvement; waiver has not occurred by a release of a summary of safety and effectiveness study, which is not equivalent to the release of raw data underlying the study).

Confederated Tribes of Warm Springs Reservation v. Babbitt, No. 96-197 (D. Or. Dec. 19, 1996) (on in camera inspection, finds (without elaboration) that deliberative process, attorney work-product, and attorney-client privileges do not protect 41 documents concerning 8 timber sales that took place on the Warm Springs Reservation in recent years; plaintiff is entitled to the withheld documents, but its claim for a waiver of fees is denied).

Cook v. Helfer, No. 95-12174, 1996 WL 464038 (D. Mass. Aug. 9, 1996) (mootness: plaintiff's FOIA case is moot because the agency has provided him with all of the documents he requested; that the FDIC may have acted "indifferently or even indolently" has no bearing on this determination) (attorney fees: the First Circuit has ruled that pro se litigants are not entitled to attorney fees in FOIA cases).

Crooker v. ATF, No. 96-1790 (D.D.C. Nov. 21, 1996) (case dismissed without prejudice; plaintiff was sanctioned in 1986 under Rule 11 of the Federal Rules of Civil Procedure for having pursued FOIA litigation for purposes of harassment; court order required that when plaintiff filed a FOIA complaint against the Bureau he must attach a memorandum of law stating why the doctrine of res judicata does not bar the intended suit; plaintiff has not complied with this order).

Dayton Newspapers, Inc. v. Dep't of the Navy, No. C-3-95-328 (S.D. Ohio Sept. 12, 1996) (Vaughn Index: orders agency to prepare within 30 days a Vaughn Index to justify the withholding of 9 categories of information concerning military court-martial proceedings for sexual misconduct; defendant must clarify the withholding of information concerning third parties, personal information about accused individuals, information from service records, information from the medical records of the accused individuals, and information from court-martial members' questionnaires) (waiver: defendant may assert an exemption for the first time at the district court level, even though it failed to do so at the administrative level) (Exemption 7 (threshold): requirement met by records compiled in the course of a court-martial) (Exemptions 6 and 7(C): protect Social Security numbers, home addresses, home telephone numbers, and information identifying victims and their relatives, law enforcement personnel, third parties, and the identities of completely acquitted individuals) (Exemption 5: the deliberative process "appears to" protect trial judges' comment field in the agency's database because these comments are directed to the Chief Judge and contain the judges' evaluations and opinions; defendant must demonstrate that computer records containing the trial judges' comments, correspondence between accused individuals and their appellate counsel, and appellate counsels' notes have been sufficiently safeguarded in order to prevent unauthorized disclosure).

Earth Pledge Found. v. CIA, 988 F. Supp. 623 (S.D.N.Y. 1996) (Exemption 1 [E.O. 12,356]: agency properly refused to confirm or deny the existence of correspondence between CIA headquarters and an alleged CIA station in Ciudad Trujillo, Dominican Republic, because the fact of its existence is classified itself and disclosure would reveal CIA's intelligence methods and sources and could reasonably be expected to damage United States foreign relations) (Exemption 3 [50 U.S.C. 403-3(c)(5), 403g]: disclosure of the requested correspondence could compromise intelligence sources and impair intelligence gathering; the existence of these documents and the alleged CIA station is itself classified information) (waiver: confirmation of the existence of a CIA installation in a Senate report is different from the CIA itself acknowledging the existence of the base).

Essential Info., Inc. v. United States Info. Agency, No. 96-1194, 1996 U.S. Dist. LEXIS 22027 (D.D.C. Nov. 27, 1996) ("agency record": Internet addresses are not "agency records" for purposes of the FOIA; an Internet address is a code, a means to access agency documents stored on a computer; if the court were using the new definition of "record" in the amended FOIA, this finding would be the same) (Exemption 3 [22 U.S.C. 1461]: the Smith-Mundt Act prohibits the distribution of overseas programming materials in the United States).

Foster v. Dep't of Justice, 933 F. Supp. 687 (E.D. Mich. 1996) (Exemption 3 [26 U.S.C. 6103(a)]: on in camera inspection, finds that the exemption protects third-party tax return information; [Rule 6(e)]: protects a final prosecution report on the plaintiff which contains information and records presented to a grand jury, the names of subpoenaed individuals and grand jury testimony) (Exemption 7(A): disclosure of 43 records reviewed in camera would impede an ongoing law enforcement investigation and prospective prosecution of a third party) (Exemption 7(C): protects information that would identify government agents and employees, prospective witness and subjects of investigative interest) (Exemption 7(D): agency's affidavit demonstrates that the exemption protects the identities of and the information provided by confidential informants during a criminal investigation, even though the investigation may be closed and some of the informants have testified at trial) (Exemption 7(E): protects investigative techniques used by IRS's Criminal Investigation Division in undercover operations) (Exemption 7(F): protects the identities of confidential informants in the IRS undercover operation at issue).

Frank v. Dep't of Justice, 941 F. Supp. 4 (D.D.C. 1996) (mootness: despite plaintiff's characterization of the government's motion to dismiss as a "dog that won't hunt," rules that all documents found responsive to plaintiff's FOIA request have been released to him) ("no records" defense: government is not required "to dig out all the information that might exist, in whatever form or place it might be found, and to create a document that answers plaintiff's question").

Gennuso v. DEA, Nos. 96-1697, 96-1760 (D.D.C. Nov. 20, 1996) (mootness: case is moot where plaintiff received all the requested documents a week before he filed his complaint, regardless of the fact that the time it took for defendant to release the information exceeded FOIA's statutory 10-day time limit) (attorney fees: pro se litigants are not entitled to attorney fees under the FOIA).

Gibbs Int'l, Inc. v. IRS, No. 7:96-996 (D.S.C. Oct. 7, 1996) (Exemption 3 [26 U.S.C. 6103(e)(7)]: on in camera review, finds that this Exemption 3 statute protects information exchanged pursuant to a tax treaty).

Goulding v. IRS, No. 94 C 5113, 1996 U.S. Dist. LEXIS 18424 (N.D. Ill. Dec. 10, 1996) (Vaughn Index: Index is unnecessary since court is examining withheld documents in camera) (focus of the Act on information: IRS need not seek waivers from third parties mentioned in the disputed documents) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects information that describes third-party taxpayers and their potential liability) (Exemption 3 [26 U.S.C. 6103(b)(2)] and Exemption 7(E): disclosure of a DIF score would seriously impair federal tax administration and would divulge an investigative technique used by the IRS in selecting returns for examination) (Exemption 3 [26 U.S.C. 6103(b)(2)] and 7(C): protect information about third-party taxpayers including their names, addresses, social security numbers, status of their tax returns, and details regarding their possible tax liability) (Exemption 5: the deliberative process privilege protects revenue agents' proposals concerning plaintiff's possible tax liability and possible courses of action with regard to the investigation of plaintiff) (Exemption 7(C): protects third-party tax return information, information that would identify witnesses, and an official evaluation of a special agent's performance of his official duties).

Graham v. DOD, No. 96-1111 (D. Md. Nov. 13, 1996) (mootness: after full disclosure of the requested information by the agency, plaintiff's case is moot with respect to document production) (attorney fees: plaintiff has substantially prevailed because prior to plaintiff filing his complaint defendant did not release the entirety of the documents he requested under the FOIA; pro se attorney plaintiff is not entitled to attorney fees in a FOIA case; attorney fees denied; plaintiff is entitled to an award of reasonable out-of-pocket litigation costs incurred in this case).

Haddon v. Freeh, No. 96-0138 (D.D.C. Aug. 29, 1996) (grants defendant an Open America stay until January 31, 1998; defendant must file a status report every 6 months; by February 28, 1998, defendant must provide plaintiff with a Vaughn Index of all documents withheld in whole or in part).

Hennessey v. Agency for Int'l Dev., No. 3:95-479 (W.D.N.C. Oct. 22, 1996) (Exemption 5: memo produced by an expert or consultant retained by an agency is properly considered an "intra-agency" memorandum; drafts containing predecisional opinions and mental impressions of AID officials and consultants are protected by the deliberative process privilege; deliberative process privilege protects final report concerning delays in a construction project in Pakistan that AID awarded to Encorp; report contains expert opinion concerning a set of historical events that contributed to the delay, an evaluation secured for the purpose of informing agency action; release of report will reveal give-and-take between executive officers and their agents; deliberative process is not waived just because the agency promised to share the final product; some factual material in draft documents is "inextricably interwoven with the deliberative process" of selecting and sifting facts; court will conduct in camera inspection of the final report to see if any factual information can be segregated for release; the fact that agency was going to share the report with Encorp to further settlement negotiations does not preclude the fact that the report was prepared to candidly assess Encorp's claim in anticipation of potential litigation with the contractor; it is likely that report was prepared in anticipation of litigation because Encorp was threatening to sue the agency as early as June 1991; to the extent that court's in camera inspection reveals factual material not protected by the deliberative process privilege, this information will not be protected by the attorney work-product privilege).

Hennessey v. Agency for Int'l Dev., No. 3:95-479 (W.D.N.C. Nov. 5, 1996) (on in camera inspection, finds that all factual material is inextricably intertwined with information that is protected by the deliberative process and attorney work-product privileges).

Hoffman v. Brown, No. 1:96-53 (W.D.N.C. Nov. 26, 1996) (Exemption 3 [18 U.S.C. 2511]: government must release portions of audiotape to the extent that any person on the tape did not explicitly or implicitly consent to the recording) (Exemption 7 (threshold): threshold requirement met by information compiled by the VA Police when they canvassed plaintiff's neighbors in the course of a criminal investigation) (Exemption 7(C): protects the identities of individuals who were solicited for information by the VA Police).

Horsehead Indus. v. EPA, No. 94-1299 (D.D.C. Sept. 30, 1996) (duty to search: agency's affidavits demonstrate that its search of its regional office was reasonably calculated to uncover any records responsive to plaintiff's FOIA request; EPA has not demonstrated that it conducted an adequate search of the National Enforcement Investigation Center (NEIC); by October 22, EPA must file a detailed affidavit from an individual at NEIC with personal knowledge of the search conducted at the Center) (waiver: agency is not estopped from invoking an exemption merely because it failed to raise the exemption at the administrative level) (Exemption 5: deliberative process privilege protects two memoranda and a draft report (and 3 sentences in an addendum to the report) concerning a Superfund site owned by the plaintiff; opinions and analyses in the draft report and memoranda are predecisional and deliberative; the addendum, which contains 3 memoranda describing the sampling and testing procedures used and the test results, is merely factual and must be released).

Hunt v. United States Marine Corps, 935 F. Supp. 46 (D.D.C. 1996) (duty to search: defendants have made a good-faith effort to conduct a search for records concerning Oliver North, using methods reasonably calculated to produce the requested information) (Exemption 5: the deliberative process privilege protects 57 records, including drafts, recommendations, point papers, and subjective memos written to formulate future agency policies; these records are predecisional because they are "clearly part of the agency's 'process' in arriving at final policies" and they all flow from a subordinate to a superior official; documents reflect "give-and-take" of agency decisionmaking and disclosure would "stifle honest and frank communications within the agency"; the attorney work-product privilege protects 21 records created by agency attorneys relating to matters in which the agency anticipated litigation and in which legal theories and strategies are outlined; the attorney-client privilege protects 32 documents that contain clients' opinions revealed to their attorneys in the course of seeking legal advice or agency attorneys' legal responses to requests from their clients, that were circulated only to agency attorneys who were involved in the decisionmaking process) (Exemption 6: threshold requirement is met by North's Field Service Record Book, his tasks at the Service Plans and Records Branch, his assignment to government quarters, his availability for duty, his retirement pay account and his medical records; there is no legitimate public interest to outweigh North's privacy interest in these records; while the public may have an interest in a political candidate's character or fitness for office, the disclosure of these documents would not shed light on the conduct of the Marine Corps).

Inducto Therm Corp. v. Adm'r OSHA, No. 5:95-157 (E.D. Tex. Oct. 31, 1996) (magistrate's recommendation) (Exemption 5: deliberative process privilege protects OSHA Compliance and Safety Officer's evaluation of the employer's safety and health programs because it expresses opinions on matters leading to a final agency decision) (Exemption 7(C): protects information that would identify witnesses, informants, and third parties) (Exemption 7(D): agency's affidavit demonstrates that express assurances of confidentiality were given to all employee-witnesses interviewed in the course of an OSHA investigation; privilege was not waived by some employee-witnesses who are complainants in the personal injury lawsuit underlying this FOIA case), partially adopted (E.D. Tex. Dec. 5, 1996) (because none of the plaintiffs deposed in the personal injury case answered in the affirmative regarding any prior dealings with OSHA, the issue of the truthfulness of the individual plaintiffs is involved; defendant must compare the list of plaintiffs and employee-witnesses, and if any plaintiffs in the personal injury case are the same as any of the names on the unredacted documents, the name is discoverable and shall be produced).

Jarmuth v. Reno, No. 96-0188 (D.D.C. July 2, 1996) (plaintiff's fee waiver claim is dismissed because he has not exhausted his administrative remedies with respect to this matter).

Jarmuth v. Reno, No. 96-0188 (D.D.C. Aug. 23, 1996) (dismisses case without prejudice to the right of the plaintiff to exhaust his administrative remedies with respect to a waiver of the fees associated with his FOIA request and attorney fees).

Jimenez v. FBI, 938 F. Supp. 21 (D.D.C. 1996) (duty to search: Department of Justice's Criminal Division, ATF, and the Postal Service conducted searches "reasonable calculated to uncover" records about the plaintiff, but found no records) (Exemption 2 "low": protects codes which indicate each agency's practices as to their internal routing and distribution of papers because they are of purely administrative nature; "high": disclosure of violator identifiers and gang validation criteria would risk circumvention of agency law) (Exemption 3 [Rule 6(e)]: protects grand jury testimony transcripts and subpoenas, attorney preparation notes, third party records provided to the government in the course of the proceedings, and notes concerning witnesses who testified) (Exemption 5: the attorney work-product privilege protects documents prepared in the course of litigation by attorneys and their staffs concerning the investigation and prosecution of plaintiff in a criminal proceeding; the deliberative process privilege protects 26 records which "illustrate the steps in decisionmaking" at the United States Attorney's Office and other federal and state agencies in considering possible criminal actions against plaintiff and third parties) (Exemption 7(C): protects the identities of subjects of investigative interest, FBI and DEA Special Agents, third parties, law enforcement officers and other government personnel, and other prisoners) (Exemption 7(D): applying Landano, finds that DEA gave its informant an express promise of confidentiality; the Executive Office for United States Attorneys informant could have reasonably inferred such a promise, given the serious nature of the criminal charges and plaintiff's history of threatening government informants) (Exemption 7(E): release of gang validation criteria would enable inmates to circumvent detection as gang members) (Exemption 7(F): disclosure of the names of confidential sources, DEA Special Agents, DEA supervisors, and one law enforcement officer would endanger their lives) ("exceptional circumstances"/"due diligence": grants FBI an Open America stay until March 31, 2000; in view of the FBI's two-track system and the large volume of documents responsive to plaintiff's FOIA request, finds that the FBI is demonstrating due diligence; plaintiff has not demonstrated an "urgent need" for these records; if defendant does not respond to plaintiff's FOIA request by March 31, 2000, plaintiff may reinstate this action by filing notice no later than May 1, 2000).

Johnson v. VA, No. 95-C-4909, 1996 WL 406645 (N.D. Ill. July 17, 1996) (grants defendant's motion for summary judgment; agency has conducted a search reasonably calculated to uncover all relevant documents and was able to find no records).

Judicial Watch, Inc. v. Dep't of Commerce, No. 95-0133 (D.D.C. Sept. 5, 1996) (Exemption 5: on in camera inspection of the 306 records at issue in this case, finds that the deliberative process privilege protects a memorandum providing recommendations and input regarding future policy goals for South Africa sent by the Department of Commerce, an agency lacking decisionmaking authority, to the President, who possessed the decisional authority; cover memorandum contains nothing of substance and must be released; deliberative process privilege does not protect a draft factual memorandum that reviews the steps taken to secure a valuable contract for American industry in Brazil; deliberative process privilege protects comments sections from lists of companies under consideration for trade missions and the names of sources who provided factual information about companies because disclosure would reveal how and from where the information used to make an agency decision derived; the deliberative process privilege protects typed meeting information and handwritten notes made by unnamed Commerce employees who provided assistance to decisionmakers evaluating plans for and participants in the trip to South Africa; deliberative process privilege protects preliminary schedules, schedule recommendations, and comments made by an unnamed Commerce employee about proposed trade missions, but does not protect a list of companies that will participate in the missions; deliberative process privilege protects a tentative list of potential participants in a trade mission, but does not protect a final list of companies scheduled to participate in a trade mission; in order to invoke the attorney-client privilege the agency must identify the attorney and client involved, the nature of the document, the date of the documents and a list of all known recipients; defendant has failed to provide this information for 37 handwritten notes, handwritten notes on a meeting agenda, a cable and other documents, and portions of various documents about the selection of companies for trade missions; documents must be released) (Exemption 3 [50 U.S.C. 403g]: protects information that would identify CIA personnel, including their functions, names, and official titles) (on in camera inspection, finds that the agency properly withheld 19 documents under Exemption 1 [E.O. 12,958]; properly withheld 3 documents under Exemption 2; properly withheld 128 documents under Exemption 4; properly withheld 511 documents in whole and 29 documents in part under Exemptions 4 and 5; properly partially withheld 12 documents under Exemptions 4 and 6).

Kalama v. United States, No. C 96-0611, 1996 U.S. Dist. LEXIS 19594 (N.D. Cal. Dec. 16, 1996) (Exemption 6: protects the names of IRS employees who authorized the sale of plaintiff's home, where the agency released the name of the acting district director who signed the document).

Keenan v. Dep't of Justice, No. 94-1909 (D.D.C. Nov. 12, 1996) (denies plaintiff's motion for reconsideration; plaintiff cannot make a request for one search and then, when nothing is found, convert that request into a different one requiring a different search; CIA's documentation of its search was "more than sufficient"; plaintiff was not injured when the court converted CIA's motion to dismiss into a motion for summary judgment).

Knight v. FDA, 938 F. Supp. 710 (D. Kan. 1996) (duty to search: agency's affidavit demonstrates that its search was reasonably calculated to uncover all documents relevant to plaintiff's first, third, and fourth FOIA requests; in response to plaintiff's third FOIA request, FDA met its minimum obligation by stating that no other component's record system was reasonably likely to have responsive documents; FDA is not entitled to summary judgment with respect to plaintiff's second FOIA request because FDA construed the request too narrowly and, with respect to this narrow search, has not shown that it searched all of its record systems where responsive documents might be found).

Kucernak v. FBI, No. 93-230 (D. Ariz. Oct. 9, 1996) ("no improper withholding": defendant has demonstrated that no records responsive to plaintiff's FOIA request were in existence at the time of plaintiff's request) (duty to search: defendant has conducted a search reasonably calculated to uncover all relevant documents) (Vaughn Index: Index demonstrates that information was properly withheld under Exemptions 1, 2, 3, 7(C), and 7(D)).

Lehrfeld v. Richardson, 954 F. Supp. 9 (D.D.C. 1996) (Exemption 3 [26 U.S.C. 6103]: statute applies to tax-exempt organizations; [26 U.S.C. 6103(b)(2)]: protects certain tax exemption application documents submitted by a tax-exempt organization because they constitute "return information").

Lewis v. Glickman, No. 96-1034, 1996 WL 400723 (E.D. La. July 16, 1996) (Exemption 5: on in camera review, finds that the deliberative process privilege protects 2 internal memoranda concerning plaintiff's request for a misconduct investigation into the promotion policies at USDA; both documents were part of the agency's decisionmaking process in handling plaintiff's request and neither contains a final agency decision or policy) (costs: plaintiff is not entitled to costs because he has not substantially prevailed where the government voluntarily disclosed all the documents it was required to produce, except 2; documents are of limited public interest).

Marriott Employees' Fed. Credit Union v. Nat'l Credit Union Admin., No. 96-478-A, 1996 WL 33497625 (E.D. Va. Dec. 24, 1996) (Exemption 5: the attorney-client privilege protects 50 documents that contain communications between government attorneys, outside counsel, and agency decisionmakers concerning investigations, subpoenas, and potential litigation to recover losses at a defunct credit union; although the existence of and general subject matter of the investigation is known to the general public, there is no evidence of waiver by specific information being shared with unauthorized parties; the attorney work-product privilege protects 111 documents containing information concerning investigations in contemplation of and preparation for litigation to recover losses sustained by credit union members) (Exemption 7 (threshold): threshold requirement met by documents compiled in order to assist agency in investigating credit union's liquidity problems and to assist in enforcing the Federal Credit Union Act) (Exemption 7(A): protects 39 documents because release of this information would jeopardize the ongoing investigations and potential litigation by revealing the progress and particulars of the law enforcement activities) (Exemption 7(C): protects names, Social Security numbers, and birth dates of informants and subjects of investigative interest) (Exemption 8: disclosure of balances and other financial information about former credit union members and regulatory ratings about other credit unions "would undermine the spirit of cooperation between banks and regulating agencies that Exemption 8 attempts to foster"; plaintiff's allegations of malfeasance are insufficient to overcome the privilege) (not an "agency record": handwritten and computer notes written by 3 agency employees, created on agency time for their personal use to assist in the performance of their official duties, but not incorporated into the agency's files or made accessible to others, are not "agency records" for purposes of the FOIA) (duty to search: agency has conducted a reasonable search in response to plaintiff's FOIA request).

Martinson v. DEA, No. 95-2161 (D.D.C. Aug. 23, 1996) (plaintiff's post-judgment pleadings present no grounds to alter court's August, 7, 1996 opinion; DEA must file its Vaughn Index by September 20, 1996).

Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 WL 411590 (D.D.C. July 11, 1996) (agency: the FOIA is inapplicable to state agencies).

Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 U.S. Dist. LEXIS 11658 (D.D.C. Aug. 6, 1996) (duty to search: IRS, DEA, and ATF have conducted searches reasonably calculated to uncover all records responsive to plaintiff's FOIA request; agency need not demonstrate whether the documents exist) (Vaughn Index: finds DEA's Vaughn Index inadequate to provide the court with a meaningful review; it is not appropriate for the agency to submit a representative sampling when there were only 173 pages of located records; DEA must file a revised Index by August 23, 1996).

Master v. FBI, No. 95-1755 (D.D.C. Sept. 11, 1996) (plaintiff has not established that grounds exist for reconsideration of court's May 14, 1996 order, which held that the FBI's search was adequate and that a numerical discrepancy in its affidavit was the result of a clerical error).

Mavadia v. Caplinger, No. 95-3542, 1996 WL 592742 (E.D. La. Oct. 11, 1996) (Exemption 7 (threshold): threshold requirement met by INS investigation of plaintiff to determine whether plaintiff's resident status should be terminated or whether he should be criminally prosecuted) (Exemption 7(D): agency's affidavit indicates that all sources were given express promises of confidentiality; there has been no evidence to rebut these statements and no evidence of bad faith on the part of INS; in camera inspection of the withheld records indicates that the documents could not be redacted in any way that would not reveal the identities of the sources).

McNamara v. Dep't of Justice, 949 F. Supp. 478 (W.D. Tex. 1996) (Vaughn Index: defendants' affidavits do not sufficiently demonstrate why information about certain third parties was withheld under Exemptions 6 and 7(C); by January 31, 1997, four Justice Department components must provide court with a Vaughn Index adequately describing each responsive record within its possession, stating which exemption(s) apply, and explaining why the component believes the information falls within the exemption(s)) (duty to search: defendants properly limited their searches to just 2 individuals; defendants improperly limited the scope of its search to 5 Department of Justice components; plaintiff's FOIA request must be given to 8 additional Department of Justice components; because plaintiff's request has taken 2 years to reach this stage, orders that each of these 8 components process his request within 30 days of the entry of this order, or plaintiff's FOIA request will be considered to be denied) (by January 17, 1997, INS must make 2 submissions to the court: INS is ordered to explain to the court how this particular FOIA request could have gotten lost, when it was reportedly forwarded to INS on two separate occasions; INS is ordered to show the court under what authority it destroys records every 3 years).

Messino v. IRS, No. 94-1095, 1996 U.S. Dist. LEXIS 14464 (W.D. Mo. Sept. 16, 1996) (case dismissed for lack of subject matter jurisdiction; IRS has demonstrated that a reasonable search of its Kansas City office uncovered no records responsive to plaintiff's FOIA request).

Meyer v. Fed. Bureau of Prisons, 940 F. Supp. 9 (D.D.C. 1996) (summary judgment denied to defendant with respect to the narrow issue of whether 3 pages requested under the FOIA by plaintiff exist; by September 20, 1996, defendant shall file further briefing with respect to these 3 pages).

Meyer v. Fed. Bureau of Prisons, No. 95-2350 (D.D.C. Nov. 4, 1996) (Exemption 7(C): agency may withhold the name and address of an Assistant United States Attorney (AUSA) from 3 pages of documentation concerning plaintiff's release proceedings created in response to the AUSA's request under the Victim and Witness Program for notification of plaintiff's release) ("reasonably segregable": defendant must release all "reasonably segregable," nonexempt portions of the 3 pages by December 2, 1996).

M.K. v. Dep't of Justice, No. 96-1307, 1996 WL 509724 (S.D.N.Y. Oct. 1, 1996) (Exemption 3 [Rule 6(e)]: protects subpoena served on New Jersey Bell for plaintiff's telephone records and the billing records furnished in response to that subpoena, because they are "grand jury materials" and disclosure would reveal the scope and direction of the grand jury investigation) (duty to create a record: the FOIA does not require agencies to create documents in response to FOIA requests; agency need not explain the reason why plaintiff's telephone billing records were subpoenaed) (summary judgment: agency's failure to respond to plaintiff's FOIA request within the 10-day statutory time period constitutes exhaustion of plaintiff's administrative remedies, but it does not entitle him to summary judgment).

Morrell v. Dep't of Justice, No. 96-4356, 1996 WL 732499 (N.D. Cal. Dec. 16, 1996) (venue: pro se plaintiff has not filed suit either in his home district or in the district in which the records he seeks under the FOIA are located or in the District of Columbia; transfers case to the United States District Court for the Eastern District of California).

Morris v. Comm'r, No. 95-6026, 1996 U.S. Dist. LEXIS 14917 (E.D. Cal. Sept. 23, 1996) (adequacy of search: agency's affidavit demonstrates that after a reasonable search it could not find plaintiff's tax records for the specified years).

Nat'l Wildlife Fed'n v. Hamilton, No. 95-017 (D. Mont. July 15, 1996) (fee waiver (Reform Act): denial of plaintiff's fee waiver request does not evince a pattern and practice on the part of the Bureau of Land Management to "routinely deny" plaintiff's fee waiver requests; plaintiff, relying on its status as one of the nation's largest conservation education organizations, did not provide the requisite details to establish that "disclosure is in the public interest because it is likely to contribute significantly to public understanding").

Nation Magazine v. United States Customs Serv., 937 F. Supp. 39 (D.D.C. 1996) (duty to search: agency has failed to demonstrate that it made an adequate search of files other than reading files in response to plaintiff's 1992 FOIA request for records concerning offers from then-Presidential candidate H. Ross Perot to assist the Customs Service in its drug interdiction efforts; agency must inform the court whether other files exist and whether subject matter files exist at headquarters and whether such files have been searched; agency has not demonstrated that a search of its chronological reading files at headquarters for the "1981 Chadwick memorandum" would be unduly burdensome) (personal records: records generated by an agency in the course of that agency's business, and in the custody of that agency, are "agency records" for purposes of the FOIA) (Exemption 7(C): after the appeals court decision in this case, Customs changed its earlier position and informed plaintiff that it had no records concerning Perot's alleged endeavor to assist Customs in its drug interdiction responsibilities; agency properly refused to confirm or deny the existence of records which reflect whether Perot was a subject, witness, or informant in a law enforcement investigation).

Nickerson v. United States, No. 95 C 7395, 1996 WL 563465 (N.D. Ill. Oct. 1, 1996) (Exemption 5: the deliberative process privilege protects witness statements and portions of Navy Department's internal, investigative report into the death of Linda Nickerson at a Navy hospital in the course of a surgical operation; while the findings, opinions, recommendations and conclusions of the investigating officer are exempt from disclosure, agency must segregate and release the remaining portions of the report, because they are purely factual and, therefore, not exempt; the attorney work-product privilege protects 7 pages and part of another page from disclosure because they set forth the attorney's theory of the case and litigation strategy; factual material must be segregated and released).

Nw. Coalition for Alternatives to Pesticides v. Browner, 941 F. Supp. 197 (D.D.C. 1996) (Exemption 3 [7 U.S.C. 136h(d)]: the requirements of this exemption are not met by the Federal Insecticide, Fungicide, and Rodenticide Act because it does not prohibit the disclosure of pesticide inert ingredients in the absence of the Administrator's judgment) (Exemption 4: release of the common names of 6 commercial pesticides and the Chemical Abstract System (CAS) numbers of their inert ingredients will not reveal formulas of the pesticides, which are trade secrets; with the exception of one CAS number, defendant has not demonstrated that the release of this information will cause substantial competitive harm; defendant did not demonstrate that disclosure of this information would cause harm by enabling competitors to identify pesticide inert ingredients through "reverse engineering").

Nuzzo v. FBI, No. 95-1708, 1996 U.S. Dist. LEXIS 15594 (D.D.C. Oct. 8, 1996) (plaintiff's claims against the IRS, ATF, United States Marshals Service, and Department of Justice's Criminal Division are dismissed for failure to prosecute).

Ohaegbu v. FBI, 936 F. Supp. 7 (D.D.C. 1996) ("exceptional circumstances"/"due diligence": grants FBI an Open America stay until July 1997; FBI has met the due diligence requirement for a stay because it processes documents on a 2-track system and because there are 175 pages of records responsive to plaintiff's FOIA request; plaintiff has not demonstrated exceptional need).

O'Neill, Lysaght & Sun v. DEA, 951 F. Supp. 1413 (C.D. Cal. 1996) (attorney fees: lawsuit was necessary because DEA did not make a good-faith attempt to comply with plaintiff's FOIA request; DEA's assertion of a blanket policy of rejection of requests for third-party information without a waiver runs against FOIA's policy, which places the burden on the government to justify exemptions and nondisclosure; a "time pressure for disclosure" was mandated by the habeas petitions of plaintiff's client; lawsuit had a substantial causative effect on the first and third productions of documents; the second release of documents occurred only because this suit was pending at the time of the Presidential memorandum and the Attorney General's new policy statement on the FOIA; the public is benefitted by the release of these documents by focussing attention on the use of untrustworthy paid informants by law enforcement agencies; it is "extremely unlikely" that plaintiff was motivated by commercial benefit in its 5-year quest to have these documents released; the nature of plaintiff's interest in the disclosed records is neither private nor personal; DEA had no reasonable basis in law for nondisclosure; hourly rates charged by law firms who take on indigent clients can be the same as the prevailing market rate for attorneys in their market; number of hours claimed is reasonable in light of the length of the lawsuit, "much of it made necessary only by the DEA's conduct"; awards plaintiff $52,080.43 in attorney fees).

Palmer Communications, Inc. v. Dep't of Justice, No. 96-M-777 (D. Colo. Oct. 30, 1996) ("not improperly withheld" defense: there is no jurisdiction under the FOIA for the disclosure of the videocamera surveillance tapes recorded on April 19, 1995 in the vicinity of the Murrah Federal Building in Oklahoma City because the tapes constitute discovery information exchanged in the pending criminal proceeding of United States v. McVeigh and Nichols and public release of them now would violate court orders entered in the criminal case) (Exemption 7(A): alternatively, considering the case on its merits, finds that disclosure of the tapes would harm this court's ability to control the use of discovery materials in the criminal case) (Exemption 7(B): disclosure of the material sought under these circumstances would seriously interfere with the fairness of the criminal proceedings).

Parsons v. SEC, No. C-2-96-001 (S.D. Ohio Sept. 6, 1996) (Exemption 8: protects report submitted by the National Association of Securities Dealers to the SEC concerning the SEC investigation of Parsons Securities, Inc.).

Payne v. Dep't of Justice, No. 95-2968 (E.D. La. July 18, 1996) (Exemption 3 [18 U.S.C. 2510-2521]: protects 6 wiretap tape recordings made during a criminal investigation of reputed mafia boss Carlos Marcello).

Peddie v. IRS, No. 95-2255, 1996 U.S. Dist. LEXIS 11644 (D.D.C. July 31, 1996) (adequacy of request: the FOIA does not require agencies to answer questions or conduct legal research) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects DIF scores; [26 U.S.C. 6103(a)]: protects third-party tax return information) (exhaustion: because plaintiff has not appealed the legibility of signatures on his assessment records, he has not exhausted his administrative appeals with respect to this issue) (duty to search: IRS's search was adequate even though it was unable to find "Form 17" or "Form 5546" documents) (attorney fees: plaintiff is not entitled to costs because he has not substantially prevailed).

Perdue Farms, Inc. v. NLRB, 935 F. Supp. 713 (E.D.N.C. 1996) (jurisdiction: the fact that further agency action was taking place on plaintiff's FOIA requests while the litigation was ongoing does not deprive the district court of jurisdiction and require plaintiff to file administrative appeals with the agency head).

Pray v. IRS, No. 95-794, 1996 U.S. Dist. LEXIS 11643 (D.N.J. July 31, 1996) (duty to search: IRS has conducted a search reasonably calculated to find all documents concerning the status of plaintiff's jewelry which was seized to satisfy his tax obligations; the FOIA does not require an agency to create records that do not exist).

Pub. Citizen Health Research Group v. FDA, 953 F. Supp. 400 (D.D.C. 1996) (preliminary injunction: grants intervenor's request for a protective order forbidding plaintiff to disclose a table of information concerning clinical studies for a new drug inadvertently released to it by the FDA pursuant to a FOIA request; court will control the information at issue until it determines whether it qualifies for nondisclosure pursuant to FOIA's Exemption 4; temporarily seals 2 relevant portions of the pleadings filed thus far which contain the table as an attachment).

Robbins v. HHS, No. 1:95-3258 (N.D. Ga. Aug. 12, 1996) (Exemption 3 [42 U.S.C. 1306]: 1306 does not fall within FOIA's Exemption 3 because it does not absolutely bar the disclosure of HHS records, but rather vests the Secretary of HHS with discretion to enact regulations permitting disclosure; statute's nondisclosure provisions do not control when disclosure is "otherwise provided by law") (Exemption 6: disclosure of the names and addresses of rejected disability claimants would be "a clearly unwarranted invasion of personal privacy"; disclosure of names and addresses of rejected claimants would shed no light on the activities of the Social Security Administration; a claim of public interest may not be based on "mere speculation about hypothetical public benefits" that might ultimately result from a lawsuit whose outcome would reveal wrongly denied benefits in a particular case).

Ross v. Reno, No. 95-1088, 1996 WL 612457 (E.D.N.Y. Aug. 13, 1996) (venue: denies government's motion to transfer this case to the Northern District of New York; government has not shown that a transfer is necessary for the convenience of the parties, the convenience of witnesses, or the interests of justice) ("exceptional circumstances"/"due diligence": applying Open America, in deference to the practical constraints faced by agencies in responding to FOIA requests, finds that while a stay of this action is not appropriate, a consideration of the resources allocated to the FBI and the interests of other FOIA requesters are important considerations; the FBI had estimated that it would take 10 months before plaintiff's request could be assigned for processing and one additional month to process it; grants the FBI those 10 months, plus the 10-day statutory time period, to complete its review of the 14 pages responsive to plaintiff's FOIA request).

Santos v. Dep't of Justice, No. 94-1927 (S.D. Cal. July 11, 1995) (grants defendant's motion for summary judgment; after conducting a proper search, agency released all documents to plaintiff, redacting the names and initials of FBI Special Agents under Exemption 7(C)).

Schlabach v. IRS, No. 96-361, 1996 U.S. Dist. LEXIS 17223 (E.D. Wash. Nov. 4, 1996) (attorney fees: nonattorney, pro se plaintiff is not entitled to an award of attorney fees under the FOIA; the FOIA does not permit recovery of punitive or compensatory damages; denies plaintiff litigation costs because he has not demonstrated that this lawsuit was necessary to protect plaintiff's own or other persons' interests; suit did not cause the disclosure of any records; litigation lasted only 6 weeks and plaintiff's demands were met without any resistance; some of the delay in responding to plaintiff's FOIA request was due to his broadly drawn request and his apparent decision not to complete the appeals process before filing this suit; there is no public interest in the release of plaintiff's criminal tax investigative records; plaintiff's request seems to be motivated by personal curiosity rather than commercial gain; plaintiff has presented no evidence that defendant's withholding of this information was not reasonable).

Schweihs v. FBI, 933 F. Supp. 719 (N.D. Ill. 1996) (jurisdiction: agency's demonstration of "exceptional circumstances"/"due diligence" does not deprive the court of jurisdiction) ("exceptional circumstances"/"due diligence": grants defendant an Open America stay until November 1998; FBI is deluged with FOIA requests for information "vastly in excess" of what was anticipated by Congress; agency maintains a two-tiered backlog of unassigned pending requests which are assigned for processing based on the approximate date of receipt) (expedited processing: denies plaintiff's request for expedited processing; plaintiff's health and age do not by themselves constitute "exceptional circumstances"; plaintiff's due process rights will not be impaired if his request is not processed immediately).

Shewchun v. INS, No. 95-1920 (D.D.C. Dec. 9, 1996) (Exemption 7(C): protects the identities of INS nonsupervisory investigators, a Royal Canadian Mounted Police Officer, and individuals who provided information to INS in the course of its investigation of plaintiff for deportability and the medical records of a third-party witness) (duty to search: INS conducted a search reasonably calculated to uncover records responsive to plaintiff's FOIA request; agency is not required "to account for documents which the requester has in some way identified if it has made a diligent search"; discovery of additional responsive records is evidence that the initial search was not thorough, it is not indicative of agency bad faith).

Shugart v. DEA, No. 96-3192, 1996 WL 665467 (D. Kan. Oct. 29, 1996) (jurisdiction: finds that the United States District Court of Kansas lacks jurisdiction (actually, a question of improper venue) in this FOIA case where plaintiff is an inmate confined at the Federal Correctional Institute in El Reno, Oklahoma, plaintiff is not a Kansas citizen and the records at issue are maintained at DEA headquarters in Washington, D.C.).

Smith v. United States, No. 95-1950, 1996 WL 696452 (E.D. La. Dec. 4, 1996) (duty to search: agency's affidavits are not sufficient to demonstrate that it conducted a search reasonably calculated to locate records responsive to plaintiff's FOIA request at any time during the first 3 years following the request; agency ultimately satisfied the requirements of the FOIA, but it failed to discharge its responsibilities under the FOIA in a reasonable manner; while the evidence shows that the original search was not reasonable, it does not establish bad faith) (attorney fees: plaintiff was required to file this law suit in order to obtain the information he requested; plaintiff's persistent litigation of this matter was the principal cause of the agency's eventual compliance with the FOIA and release of the records; plaintiff's interest in this litigation was purely personal, since he wanted the documents for use in litigation against his former employer; there is nothing that would support an affirmative finding of bad faith or obdurate behavior on the part of the agency; agency's immediate production of the requested records as soon as they were found indicates a good faith desire to comply with the FOIA; attorney fees denied).

Sousa v. Dep't of Justice, Nos. 95-375, 95-410, 1996 U.S. Dist. LEXIS 18627 (D.D.C. Dec. 9, 1996) (Exemption 2: agency's affidavit demonstrates that police badge numbers and other administrative codes are predominantly internal, but it does not address whether disclosure of this information would risk circumvention of agency law or whether it is merely a trivial administrative matter; agency must submit amended Vaughn Index within 60 days) (Exemption 3 [Rule 6(e)]: agency's affidavit does not demonstrate that there is a nexus between the disclosure of the requested information and the revelation of a protected aspect of the grand jury's investigation; agency must submit amended Vaughn Index within 60 days) (Exemption 5: agency's affidavit does not demonstrate that information was properly withheld under the deliberative process and attorney work-product privileges; agency must submit amended Vaughn Index within 60 days (Exemption 6: to enable the court to perform the balancing analysis on medical records withheld under Exemption 6, agency must submit amended Vaughn Index within 60 days) (Exemption 7 (threshold): threshold requirement met by information compiled in the course of investigation that led to plaintiff's conviction for murder) (Exemption 7(C): protects the identities of witnesses, law enforcement officers, co-defendants, third parties, and subjects of investigative interest; summary judgment denied as to documents withheld in full under Exemption 7(C) because defendant failed to address the issue of segregability) (reasonably segregable: agency has not provided information on the segregability of any of the documents; in amending its Vaughn Index, agency must take particular care to address the issue of segregability; summary judgment is inappropriate with respect to any documents withheld in full) (duty to search: based on the information provided to the court, the agency has not demonstrated that it conducted a reasonable search; defendant should amend its affidavit to provide a description of its filing system, and an explanation of why only certain files were searched).

Spannaus v. Dep't of Justice, 942 F. Supp. 656 (D.D.C. 1996) (adequacy of search: defendant's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 5: the attorney work-product privilege protects in its entirety information compiled either by an attorney or at the direction of an attorney in the course of a major criminal investigation which reflects such matters as grand jury and trial preparation, grand jury and trial strategy, handwritten notes, and interpretations and opinions; "foreseeable harm" is not part of the required analysis of the attorney work-product privilege under Exemption 5).

Steinberg v. Dep't of the Treasury, No. 93-2348 (D.D.C. Nov. 18, 1996) (grants in part and denies in part plaintiff's request for additional discovery in this FOIA case; agency must search additional records systems and must conduct additional searches using search terms specified by the plaintiff).

Summers v. Dep't of Justice, 934 F. Supp. 458 (D.D.C. 1996) (duty to search: FBI's affidavit demonstrates that it conducted reasonable and adequate searches for J. Edgar Hoover's telephone logs; FBI's search for Hoover's commitment calendars was inadequate because it did not search using the terms "appointment" or "diary"; defendant must conduct additional search for commitment calendars using these terms by September 16, 1996; FBI's search for Hoover's telephone message slips was inadequate because the FBI did not conduct a thorough investigation to determine whether the message slips exist; defendants must perform this research and file a pleading setting forth the results by September 16, 1996) (Exemption 7 (threshold): administrative records of the FBI do not have a per se law enforcement purpose merely because they originate in FBI files; FBI has not shown that all of Hoover's telephone logs were compiled for law enforcement purposes; court declines to rule on each of these documents; court directs parties to meet and confer before August 30, 1996 and attempt to resolve their differences with respect to the redactions of names from the telephone logs).

Summers v. Dep't of Justice, No. 87-3168 (D.D.C. Nov. 1, 1996) (grants agency's motion for summary judgment in this FOIA case; finds that the materials were properly withheld under the exemptions, based on agency's declarations and the court's own review), supplemental order (D.D.C. Nov. 6, 1996) (additionally finds that all reasonably segregable, nonexempt material has been disclosed).

Taylor v. Dep't of the Treasury, No. A-96-333, 1996 U.S. Dist. LEXIS 19909 (W.D. Tex. Dec. 16, 1996) (fees (Reform Act): agency properly requested that plaintiff prepay search fees after his FOIA request had been processed and before the documents were released).

Tel. Publ'g Co. v. Dep't of Justice, No. 95-521 (D.N.H. July 1, 1996) (agency has not met its burden of demonstrating that one or several categorical exemptions are appropriate in this case; government must define functional categories of records, assign individual documents to the proper categories, and explain why nondisclosure is appropriate for each category; agency must submit a status report every 60 days).

Traver v. Dep't of Treasury, No. 96-161, 1996 U.S. Dist. LEXIS 10875 (D. Or. July 8, 1996) (denies plaintiff's motion for a Vaughn Index; the "command code profiles" he seeks did not exist at the time of his request and do not exist now).

Trueblood v. Dep't of the Treasury, 943 F. Supp. 64 (D.D.C. 1996) (summary judgment granted to government because it has released to plaintiff all records responsive to his FOIA request) (exhaustion: second plaintiff has not exhausted his administrative remedies because he has not paid the fees associated with his FOIA request nor has he appealed the agency's refusal to waive the fees) (fee waiver (Reform Act): plaintiff does not meet the statutory exception for a waiver of fees because he has failed to show why the requested information "is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the government") (attorney fees: pro se litigants are not entitled to attorney fees under the FOIA).

Viacom Int'l, Inc. v. EPA, No. 95-2243, 1996 U.S. Dist. LEXIS 12978 (E.D. Pa. Aug. 29, 1996) (attorney fees: attorney fees denied in this FOIA case where the parties have stipulated that the plaintiff was the prevailing party; release of the locations where pollution samples were collected by EPA would not add "to the fund of useful information that citizens would use to make vital political choices"; there is no indication that any of the released information was actually disseminated to the public by the plaintiff; plaintiff's motivation in this litigation was to assert its own interests as a potentially responsible party to the clean-up operation; when a plaintiff "seeks disclosure of information for commercial benefit, an award of fees is generally inappropriate"; although ultimately unsuccessful on the merits, agency did have a reasonable basis in law for refusing to disclose the sample sites).

Voinche v. CIA, No. 96-1708 (W.D. La. Nov. 25, 1996) (grants defendant's motion to dismiss based on plaintiff's failure to appeal the partial denial of his FOIA request within 30 days; CIA's tardiness in responding to plaintiff's FOIA request was rendered moot by CIA's April 1995 response).

Voinche v. FBI, 940 F. Supp. 323 (D.D.C. 1996) (Exemption 1 [E.O 12,958]: while the FBI's affidavit is "troubling" and vague as to the nature of the documents or information withheld, the court concludes that defendant's invocation of the exemption was proper, in light of the thoroughness of the FBI's other submissions to the court and the review of the classification determinations by the Department Review Committee of the Justice Department; court accepts as true the FBI's assertion that in its Vaughn Index it provided as much information as it could about documents classified in their entirety without compromising national security) (Exemption 2 "high": release of permanent confidential source symbol numbers, file numbers, manuals containing discussions of techniques used by professional gamblers, and information relating to the security of the Supreme Court would "benefit those attempting to violate the law and avoid detection") (Exemption 3 [Rule 6(e)]: disclosure of the name of an individual subpoenaed to appear before a grand jury, along with the time, place and the particular case would reveal the scope and directions of the proceedings) (Exemption 6: protects the identities of FBI Special Agents and other federal employees, the names and addresses of individuals who wrote to government officials, identities of third parties mentioned in routine day-to-day matters at the FBI, the names and titles of Supreme Court employees and applicants, the identities of nonfederal law enforcement officers, and the identities of possible candidates for Supreme Court vacancies; disclosure would serve no articulable public interest) (Exemption 7(C): protects information that would identify FBI Special Agents and other federal employees, subjects of investigative interest, third parties, and informants; there is no compelling public interest in disclosure) (Exemption 7(D): applying Landano, finds that defendant's affidavit demonstrates that each individual whose name or identifying data was withheld received an express or implied assurance of confidentiality) (Exemptions 2 and 7(E): disclosure of the "Criminal Intelligence Digest", a publication prepared to render assistance and guidance to FBI personnel, "could reasonably be expected to risk circumvention of agency law").

Voinche v. FBI, No. 95-1944 (D.D.C. Dec. 4, 1996) (attorney fees: plaintiff has not substantially prevailed because his action had no causative effect on the release of information responsive to his FOIA request).

The Wash. Post Co. v. USDA, 943 F. Supp. 31 (D.D.C. 1996) (Exemption 6: exemption does not protect names and addresses of, and amounts paid to, individuals and business entities that received payments in 1993 under the USDA cotton price support program; exemption is designed to protect against a "clearly unwarranted invasion of personal privacy" and not typically to protect business people from commercial mailings, even when their business address is also their home address; "the mere threat of media attention does not suffice to draw the protective cloak of Exemption 6 over information that happens to be newsworthy"; there is a significant public interest in the workings of the USDA and the administration of this massive subsidy program, which has been plagued by allegations of fraud and conflict of interest).

Weatherhead v. United States, No. 95-519 (E.D. Wash. Sept. 9, 1996) (on defendant's motion for reconsideration finds that the governing executive order is the one that is in effect at the time when the classification decision is made; on in camera inspection grudgingly and reluctantly finds that there is no portion of this 2-page letter that can be released without causing harm to national security interests).

Weres Corp. v. United States Postal Serv., No. 95-1984 (D.D.C. Sept. 23, 1996) (Exemption 3 [39 U.S.C. 410(c)(2)]: is an Exemption 3 statute; holding that unit and total prices submitted by unsuccessful offerors in a contract solicitation qualify as information "of a commercial nature . . . which under good business practices would not be publicly disclosed")

White v. VA, No. 96-70306, 1996 U.S. Dist. LEXIS 13927 (E.D. Mich. Aug. 20, 1996) (exhaustion: plaintiff has not demonstrated that he has exhausted his administrative remedies by appealing the agency's initial partial denial of his FOIA request for information or that the agency failed to inform him of his right to appeal).

Wichlacz v. Dep't of the Interior, 938 F. Supp. 325 (E.D. Va. 1996) (Exemption 7 (threshold): records compiled by the National Park Service and the Office of the Independent Counsel in the course of their investigations into White House Deputy Counsel Vince Foster's death meet the threshold requirement) (Exemption 7(A): disclosure of the names of 3 psychiatrists listed on the paper in Foster's wallet and 3 pages of handwritten notes made by law enforcement personnel, the contents of which were released in a typewritten form, could reasonably be expected to interfere with the Independent Counsel's ongoing investigation of Foster's death and also the Madison Guaranty matter; there are substantial risks of witness intimidation or harassment, of reduced witness cooperation and possibly of alteration or tailoring of testimony; even if the death is ruled a suicide, information gathered by a government agency need not necessarily lead to a criminal prosecution to be entitled to protection; "FOIA requests for access to an Independent Counsel's records will only be granted under extremely compelling circumstances") (Exemption 7(C): absent proof of misconduct, finds that the exemption protects the identities of the 3 psychiatrists and a third party who was not the subject of this FOIA request, and 3 pages of handwritten notes; disclosure would subject these individuals to an "onslaught" of media attention, even though these persons have nothing of substance to provide).

Williams v. United States, 932 F. Supp. 354 (D.D.C. 1996) (grants summary judgment to 3 defendants who have submitted affidavits attesting to the thoroughness of their searches; where information has been redacted or withheld, defendants have provided a reasonable explanation under the appropriate FOIA exemption) (grants the FBI an Open America stay until September 8, 1997 to process 39 pages of information; while this length of time "might seem difficult to justify," because of FBI's large backlog and queue, the court allows the FBI one year to assign the documents for review and a 5-month review period).   (posted 6/28/02)

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