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New FOIA Decisions, April-June 2002

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

Blackman v. United States Dep't of Justice, No. 01-5431 (D.C. Cir. Mar. 29, 2002) (per curiam) (summary affirmance granted in this FOIA action where the district court found that the agency demonstrated that its searches were reasonable and adequate).

City of Chicago v. United States Dep't of Treasury, 287 F.3d 628 (7th Cir. 2002) (Exemption 7(A): in this FOIA request where the plaintiff sought information in 2 ATF gun-trafficking databases, affirms district court's finding that agency has submitted only "speculative," not "concrete," examples of how disclosure could interfere with enforcement proceedings; deference to agency expertise is limited to those instances where the agency "has demonstrated with specificity a logical connection between the information withheld and identified investigations, and where the agency has submitted uncontroverted affidavits") (Exemption 6: purporting to distinguish United States Dep't of State v. Washington Post Co., 456 U.S. 595 (1982), rules that the exemption does not apply because names and addresses of individuals who purchased handguns or are associated with a handgun recovered in connection with a crime are not contained in "personnel and medical files and similar files"; mistakenly reasoning that such information is not "analogous to the type of sensitive information generally kept in a personnel or medical file"; declaring that "one does not possess any privacy interest in the purchase of a firearm" merely on the basis that "purchasers are on notice that records of their transactions are not confidential and are subject to regulatory inspection"; finding that this information is "not of such a sensitive nature that [its] disclosure could harm or embarrass the individual") (Exemption 7(C): without focusing on the actual personal identifying information at issue, finding that any minimal privacy interest in the databases is "substantially outweighed" by the public interest in ATF's effectiveness in controlling gun trafficking and aiding the City in enforcing its gun laws) (reasonably segregable: because all information requested is ordered disclosed, the court "need not address the issue [discussed in the district court's opinion] of encrypting any portion of the records").

Favish v. Office of Indep. Counsel, Nos. 01-55789, 01-55487, 01-55788 (9th Cir. June 6, 2002) (Exemption 7(C): in a 2-1 decision of only one sentence in length, where district court found that 5 of the 10 color photographs of the suicide death scene of Deputy White House Counsel Vincent Foster must be released, affirms the district court ruling, but finds that one of the 5 photograph may be withheld; dissenting judge would have withheld 9 of the 10 photographs).

Gaines v. EEOC, 36 F. App'x 640 (9th Cir. 2002) ("no records" response: district court properly found that the agency had no records responsive to plaintiff's FOIA request).

Ibarra-Cortez v. DEA, 36 F. App'x 598 (9th Cir. 2002) (Exemption 7(D): DEA's affidavits demonstrate that the exemption protects information that would identify confidential informants contained in records concerning plaintiff's drug-trafficking activities; all reasonably segregable, nonexempt information has been released).

Jefferson v. Dep't of Justice, 284 F.3d 172 (D.C. Cir. 2002) (Exemption 7 (threshold): because the Justice Department's Office of Professional Responsibility (OPR) conducts both law enforcement and nonlaw enforcement activities, its Glomar response to a FOIA request for records concerning a prosecuting attorney was inappropriate in the absence of an evidentiary record to support a finding that all of its records concerning the attorney are law enforcement records; remands to the district court for a determination as to whether OPR had nonlaw enforcement records regarding the prosecuting attorney in its possession as of December 2, 1999, the date of the agency's response to plaintiff's FOIA request; applying Maydak, finds that if OPR has responsive nonlaw enforcement records, they must be released unless the exemptions used at the district court level apply to them) (Exemption 7(C): agency properly refused to confirm or deny the existence of law enforcement records on the prosecuting attorney, because the attorney is not a high-level government official and there is no evidence of agency wrongdoing; protects the identities of agency employees and third parties).

Kibbe v. VA, 32 F. App'x 744 (6th Cir. 2002) (district court properly dismissed this FOIA action where requester had been advised that his failure to appear in court would result in an order of dismissal, and the defendant had demonstrated that all requested records had been provided to the requester).

Maine v. Dep't of the Interior, 285 F.3d 126 (1st Cir. 2002) (Exemption 5: in this FOIA action where plaintiff requested information concerning a proposal to list as endangered the Atlantic salmon populations of 8 Maine rivers, aberrationally adopts what the court refers to as "the primary factor" test for withholding records under the attorney work-product privilege, rather than the "because of litigation" standard, because the latter, regardless of its soundness in civil discovery, "hinders the openness that Congress envisioned in enacting FOIA"; determination made despite the fact that court of appeals expressly recognized that only one district court had previously applied this test and all 6 other courts of appeals to have faced this issue in a civil discovery contest had adopted the "because of litigation" test; district court properly found that the agency did not show that records were prepared "primarily" for litigation and make the correlation between each withheld record and the "litigation for which the document was created"; district court properly found that 81 documents were not protected by the attorney-client privilege on the grounds that the agency did not demonstrate a confidential client communication and did not explain how disclosure would reveal that communication; client-communicated confidentiality is not satisfied merely because the documents are communications between client and attorney) (summary judgment: district court did not abuse its discretion in ordering immediate disclosure of documents; agency chose to stand on its motion for summary judgment: it opposed discovery of these documents, never requested an oral argument, and never submitted a revised declaration; affirms district court's disclosure order, though noting that much of the information ordered disclosed by the district court was abandoned by plaintiff in the face of the agency's demonstration of legal error on appeal) (this opinion of the First Circuit Court of Appeals, published in the advance sheets at 285 F.3d 126, was withdrawn from the bound volume pending consideration of the government's petition for rehearing en banc).

Martin v. Dep't of Justice, No. 00-5389 (D.C. Cir. Apr. 23, 2002) (per curiam) (Vaughn Index: remands so that the FBI can provide the court with specific justifications for withholding documents that were referred to the FDIC and the Justice Department's Executive Office for United States Attorneys) (Exemption 7(C): where plaintiff failed to submit proof of death or a privacy waiver, finds that the FBI must further demonstrate that this exemption applies to the withheld information and that all "reasonably segregable," nonexempt information has been released) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to information for which he did not submit an initial FOIA request) (discovery in FOIA litigation: district court properly denied discovery in this FOIA action) (attorney fees: reverses district court's denial of attorney fees and orders district court to reconsider the matter at the appropriate time).

Oguaju v. United States, 288 F.3d 448 (D.C. Cir. 2002) (Exemption 7(C): affirms district court's finding that the Marshals Service properly refused to confirm or deny the existence of records regarding an escapee-turned- informant/witness at the requester's trial; while the third party's privacy interest is "slight," it is outweighed by the "nil" public interest in disclosure; requester "never offered any reason to believe the Department of Justice mishandled his Brady request, and under circuit law a bald accusation to that effect does not persuade"; the public interest does not include helping an individual obtain information to attack his convictions, nor would it be "served by exposing a single, garden-variety act of misconduct" in any event).

Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452 (D.C. Cir. 2002) (attorney fees: applying the Supreme Court's rule in Buckhannon Board & Care Home, Inc., 532 U.S. 598 (2001) that attorney fees are not authorized to a plaintiff under a fee-shifting statute without a judgment on the merits or a court-ordered consent decree and its rejection of the "catalyst theory" used in this circuit in prior FOIA actions, reverses district court's award of attorney fees to plaintiff; "eligibility for an award of attorney's fees in a FOIA case should be treated the same as eligibility determinations made under other fee shifting statutes"; the "substantially prevailed" language in FOIA is the functional equivalent of the "prevailing party" language in other statutes; the court-signed document that carried the heading "Stipulation and Order" did not constitute a decision on the merits and plaintiff, therefore, did not "substantially prevail").

Pruitt v. Executive Office for the United States Attorneys, Dep't of Justice, No. 01-5453, 2002 WL 1364365 (D.C. Cir. Apr. 19, 2002) (per curiam) (summary affirmance granted to the government; agency's Vaughn Index is complete; plaintiff has failed to show a public interest in information withheld under Exemption 7(C); agency's search was adequate; plaintiff failed to exhaust his administrative remedies with respect to the agency's denial of his request for a fee waiver).

Pusa v. FBI, 31 F. App'x 567 (9th Cir. 2002) (affirms district court's finding that the FBI properly refused to confirm or deny the existence of records pertaining to any communications between the FBI and certain named third parties).

Schwarz v. United States Gen. Accounting Office, No. 01-5445 (D.C. Cir. Mar. 29, 2002) (per curiam) (summary affirmance granted in this FOIA action where the district court ruled that subdivisions of an agency and individual agency employees are not proper party defendants under the FOIA, that the agencies had conducted reasonable searches in response to plaintiff's FOIA requests, and that because plaintiff's FOIA requests were never received by the Tennessee Valley Authority, she had not exhausted her administrative remedies).

Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) (Exemption 5: district court properly found that the deliberative process privilege protects Legal Memoranda and intradivisional Technical Assistance memoranda (TAs) and that the IRS need not segregate and release the working law from TAs withheld in their entirety under the attorney work-product privilege; district court properly found that the IRS must release 3 TAs issued to program managers because they are final legal conclusions not protected under the deliberative process privilege) (Exemption 7 (threshold): finds that the district court used the wrong standard when it found that the IRS, a mixed-function agency, did not compile information for "law enforcement purposes"; IRS need not demonstrate that information concerns "investigations which focus directly on specifically alleged illegal act," but rather an agency may seek to withhold internal agency materials that have not been compiled in the course of a specific investigation; remands to the district court for evaluation under the correct legal standard).


District Courts

Al-Fayed v. CIA, No. 00-2092 (D.D.C. Apr. 25, 2002) (denies plaintiff's request for sanctions in the form of attorney fees in this FOIA action where plaintiff sought information pertaining to the deaths of Princess Diana and Dodi Al-Fayed; the FBI released all records within the court-ordered time limits and there is no evidence of bad faith).

Archibald v. Roche, No. 01-1492 (D.D.C. Mar. 29, 2002) (the FOIA requires that the civil action challenging a request denial be brought by the person who filed the FOIA request; rather than dismissing the action, allows plaintiff the opportunity to amend her complaint to include the name of her attorney, whose name appeared on the FOIA request).

Ayyad v. United States Dep't of Justice, No. 00 Civ. 960, 2002 U.S. Dist LEXIS 6925 (S.D.N.Y. Apr. 18, 2002) (duty to search: in this FOIA action where plaintiff, who is serving a life sentence for the 1993 bombing of the World Trade Center, requested records about himself, finds that the FBI conducted a reasonable search in response to his request) (Exemption 7 (threshold): FBI "clearly" compiled information concerning the bombing for a law enforcement proceeding) (Exemption 7(A): government has provided adequate evidence of the specific harm anticipated if the individual categories of information were to be released; protects information because plaintiff and his co-defendants are appealing their conviction, there is an appeal pending by the fugitives of the second World Trade Center bombing, and plaintiff is a co-conspirator of those who have been implicated in the acts of September 11th, 2001, because the court finds that the documents are clearly exempt under Exemption 7(A), it is unnecessary to rule on the additional exemptions that were claimed by the government due to D.C. Circuit's Maydak decision).

Blackman v. United States Dep't of Justice, No. 00-3004 (D.D.C. Oct. 9, 2001) (duty to search: grants defendant's renewed motion for summary judgment in this FOIA case where plaintiff requested deposition transcripts of an expert witness, because the agency has demonstrated that its searches were reasonable and adequate).

Boers v. Mueller, No. 01-2497 (D.D.C. May 14, 2002) (exhaustion: plaintiff has failed to exhaust his administrative remedies because he has not paid the duplicating fees associated with his FOIA request).

Boyd v. DEA, No. 01-0524 (D.D.C. Mar. 8, 2002) (Exemptions 6 and 7(C): agency properly refused to confirm or deny the existence of records on a third party without proof of death, a privacy waiver, or evidence of government misconduct in its use of informants; privacy waivers authorizing release of information to the Justice Department are not adequate when the agency holding the records is the Treasury Department; orders in camera inspection of 15 pages withheld in their entirety because it cannot be ascertained that an "individual with the same name as plaintiff" is not in fact the plaintiff) (Exemption 7(E): disclosure of a 4-page intelligence report containing analysis of research could reasonably be expected to risk circumvention of the law) (FOIA as a discovery tool: FOIA is not a substitute for discovery in criminal cases) (without specification, finds that DEA properly withheld information under Exemptions 2, 7(C), and 7(F), and released all reasonably segregable, nonexempt information).

Cabal v. United States, No. 02-CV-103 (W.D. Tex. June 18, 2002) (complaint dismissed because plaintiff failed to exhaust his administrative remedies under the FOIA).

Callahan v. Executive Office for United States Attorneys, No. 98-1826 (D.D.C. Apr. 18, 2002) (Exemptions 7(C) and 7(F): without specification, finds that the exemptions protect the names of law enforcement personnel who were witnesses at plaintiff's trial; DEA must release portion of report that summarizes plaintiff's actions on the day he was arrested) (waiver of exemption: orders the release of documents that are in the public domain because they were filed in court) (Exemption 2: finds that the exemption protects G-DEP codes).

Campbell v. United States Dep't of Justice, 231 F. Supp. 2d 1 (D.D.C. 2002) (duty to search: in this FOIA action where plaintiff requested records on the late author and civil-rights activist James Baldwin, finds that the FBI made reasonable efforts to ascertain the status (i.e., possible death) of individuals on whose behalf it was invoking Exemption 7(C); searching the Social Security Death Benefits Index is not a prerequisite to an adequate search; denies the FBI's motion for a protective order with respect to the limited discovery granted to the plaintiff pursuant to the circuit court's prior ruling concerning the adequacy of the FBI's search for tickler files; plaintiff's discovery requests do not exceed the court's grant of limited discovery; FBI has not shown with requisite specificity the injury that would result from compliance with the discovery request; orders the FBI to immediately permit the plaintiff to conduct limited discovery) (Exemption 1 [E.O. 12,958]: in response to the court's show cause order, the FBI has provided sufficient justification for the withholding of national security information) (attorney fees: FBI must pay attorney fees and costs relating to its unsuccessful motion for a protective order).

Collins v. Haines, No. C 02-0506, 2002 WL 1346794 (N.D. Cal. June 7, 2002) ("not an agency" defense: the FOIA applies only to federal agencies, not to state agencies).

Conteh v. FBI, No. 01-1330 (D.D.C. April 1, 2002) (not an "agency" defense: the Justice Department is an "agency" under the FOIA, and it is the only proper party defendant in this action) (duty to search: in response to a FOIA request sent to FBI Headquarters, FBI told the requester that Headquarters had no responsive records, but failed to tell him that its New York field office did have records; within 10 days the FBI must explain to the court why it did not notify plaintiff of the existence and location of records responsive to his FOIA request).

Davis, Cowell & Bowe, LLP v. Soc. Sec. Admin., No. C 01-4021, 2002 WL 1034058 (N.D. Cal. May 16, 2002) (Exemption 3 [26 U.S.C. 6103(a)]: protects information contained in W-2 and W-3 forms, because it is "return information").

Dupre v. FBI, No. 01-2431, 2002 WL 1042073 (E.D. La. May 22, 2002) (on in camera inspection, without specification, finds that no FOIA exemption protects information contained in a Suspicious Activity Report concerning plaintiff's transactions and communications with a bank regarding a bad check he deposited).

FlightSafety Servs. Corp. v. United States Dep't of Labor, No. 3:00CV1285, 2002 U.S. Dist. LEXIS 8811 (N.D. Tex. May 17, 2002) (Exemption 4: on in camera inspection, finds that there are no segregable portions of salary and wage information that may be released without compromising the confidential identities of the business establishments that contributed to the surveys) ("no records" defense: under the FOIA, an agency is not required to create a record in order to satisfy a request) (attorney fees: plaintiff is not entitled to attorney fees because it has not "substantially prevailed").

Goodman v. United States Dep't of Labor, No. 01-515 (D. Or. Jan. 14, 2002) (magistrate's recommendation adopted in this FOIA action where the agency withheld under Exemption 7(A) records concerning a special investigation of an on-the-job injury of an employee of plaintiff's client; finding that the determination as to whether Exemption 7(A) applies is to be made as of the time the agency decided to withhold the records; agency did not waive the exemption when it referred to a portion of a withheld memorandum in its affidavit).

Hogan v. Huff, No. 00 Civ. 6753, 2002 WL 1359722 (S.D.N.Y. June 21, 2002) (exhaustion: in this FOIA action where plaintiff seeks records concerning his grandfather, finds that plaintiff has exhausted his administrative remedies with respect to 2 documents, out of hundreds of responsive records; FBI's letter to plaintiff indicating that his request was being processed, subject to delays, was sufficient to satisfy the statutory time-limit provisions; even construing plaintiff's letter to the Office of Information and Privacy as an administrative appeal as to the remaining records, plaintiff failed to take legal action before the arrival of the first set of responsive records) (Exemption 1 [E.O. 12,958]: protects intelligence activities that were compiled during interviews with intelligence sources and the numerical designators used to identify the intelligence sources) (Exemption 3 [50 U.S.C.  403g,  403-3(c)(6)]:protect intelligence sources and methods) (Exemption 7 (threshold): requirement met by records concerning an investigation to determine whether an individual was a potential unregistered agent for the Cuban government) (Exemption 7(C): protects the identities of witnesses, third parties, and investigative agents) (Exemption 7(D): protects the identities of informants who were given express promises of confidentiality, including source symbol and informant file identification numbers) (Vaughn Index: the FBI's Vaughn Index is sufficient and thus plaintiff is not entitled to in camera inspection).

James Madison Project v. NARA, No. 98-2737 (D.D.C. Mar. 5, 2002) (Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C. 403-3(c)(6)]: deferring to agency's judgment, finds that the exemptions protect 6 records that are over 80 years old pertaining to the composition and detection of "secret ink" that may have been used during World War I; in the judgment of the Director of Central Intelligence, who holds statutory authority to make such determinations, disclosure would adversely affect intelligence techniques because the documents in question relate to an intelligence method (secret writing) that is still in use today by the CIA; the CIA was not the "originating agency" for these records, but it is the "successor in function" of the originating agency; by letter agreement, the CIA has classification authority over all documents pertaining to secret writing that have been accessioned to the National Archives).

Landmark Legal Found. v. IRS, No. 97-1474 (D.D.C. Sept. 22, 1998) (fee waiver: grants plaintiff a waiver of search, review, and duplication fees in connection with its FOIA request for records concerning IRS's alleged "audit bias"; while the court shares the concern raised by IRS about the releasability of some of the requested records, this information together with information already in the public domain will contribute to the public's understanding of the operations and activities of the IRS; plaintiff's methods of dissemination (i.e., fax-blasting, its Web site, news conference, newspaper articles) are adequate; IRS may not rely on its assumption that Congress may soon release this information to the public).

Long v. United States Dep't of Justice, No. 00-0211 (D.D.C. Apr. 30, 2002) (sanctions: in this complex FOIA case where defendant filed 2 motions for summary judgment containing numerous factual misrepresentations that it was permitted to correct, denies plaintiff's request for sanctions after defendant filed a third motion for summary judgment that contained several factual errors; even though defendant's actions do not warrant the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure, by the court ordering the agency to refile a new motion, plaintiffs are, in effect, receiving the primary relief sought by their Rule 11 motion).

MacLeod v. IRS, No. 01-CV-2320, 2002 U.S. Dist. LEXIS 14975 (S.D. Cal. June 7, 2002) (jurisdiction: court lacks jurisdiction over plaintiff's FOIA claim because plaintiff does not allege that defendant improperly withheld agency records).

Maine v. Norton, 208 F. Supp. 2d 63 (D. Me. 2002) (Exemption 5: in a civil discovery privilege decision, relying heavily on FOIA Exemption 5 case law, holds that the deliberative process privilege protects information concerning a decision to list as endangered the Atlantic salmon populations of Maine rivers where plaintiff has not demonstrated a "particularized need"; the attorney work-product privilege protects 37 documents prepared in anticipation of litigation in a previous action) (in camera inspection: in camera inspection is not necessary because of the adequacy of the agency's affidavits).

Maldonado Guzman v. Massanari, No. 00-2410 (D.P.R. Aug. 14, 2001) (Exemption 6: protects the Social Security records of plaintiff's daughter; the privacy interest in these records is substantial and disclosure would not shed light on the Social Security Administration's performance of its duties) (subsequent related opinion, published at 182 F. Supp. 2d 216).

McGinley v. United States Dep't of Treasury, No. 01-09493, 2002 WL 1058115 (C.D. Cal. Apr. 15, 2002) (proper party defendant: agencies, not individual agency employees, are proper party defendants under the FOIA) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax "return information").

Office of the Capital Collateral Counsel v. United States Dep't of Justice, No. 8:00-1793 (M.D. Fla. Apr. 1, 2002) (Exemption 6: on in camera inspection, in a confusingly reasoned decision, finds that a transcript of a conversation concerning a federal government attorney who was found to have committed professional misconduct does not meet the exemption's threshold requirement; exemption does not protect information about the attorney and a witness who falsely testified, because the "diminished expectation of privacy" is outweighed by "publicity devoted" to their conduct) (Exemption 7(C): using the same balancing approach, finds that the exemption does not protect the comments of the attorney; protects the identities of third parties, other than the identity of the informant who has already been publicly identified) (Exemption 5: the attorney-work product privilege does not protect comments on the procedural course of litigation and post-trial decisionmaking; the deliberative process privilege does not protect the transcript because the material does not reflect the agency's deliberative process; deliberative privilege does protect disciplinary recommendations in the transcript and inter-office communications between attorneys; one letter is not protected because the recipient was a non-Justice Department attorney).

Ortloff v. United states Dep't of Justice, No. 98-2819 (D.D.C. Mar. 22, 2002) (Exemption 3 [Rule 6(e)]: protects grand jury information, including grand jury testimony and a grand jury indictment approval sheet) (Exemption 5: the attorney work-product and deliberative process privileges protect documents relating to trial strategy, recommendations for investigation, evaluations of evidence, and inter-agency discussions) (Exemption 7 (threshold): protects information in the files of the United States Attorneys Office compiled for the purpose of prosecuting plaintiff for offenses arising from a mail bombing) (Exemption 7(C): protects information that would identify informants, third parties, FBI Special Agents and support personnel, other federal, state, and local employees, and subjects of investigative interest; agency properly neither confirmed nor denied the existence of records on third parties absent proof that the individual has died, privacy waivers, an official acknowledgment of an investigation, or an overriding public interest) (Exemption 7(D): protects information provided by sources who were given express promises of confidentiality) (Exemption 7(E): agency properly withheld information about the law enforcement techniques used in the investigation of the plaintiff) (Exemption 7(F): protects the identity of a witness because plaintiff has been convicted of violent acts) (Exemption 6: protects the identities of authors of letters to the Attorney General or Deputy Attorney General; protects information that would identify individuals not selected for federal positions, the Social Security numbers of individuals who were selected, and information that would identify agency employees involved in the hiring process) ("reasonably segregable": all "reasonably segregable," nonexempt information has been released) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request) (fee waiver: agency properly denied a fee waiver for this information because plaintiff has not demonstrated his ability to disseminate it, disclosure would benefit only plaintiff in his challenge to his conviction, and this information has already been released and is in the public domain) ("no records" defense: agency in not obligated to create records in response to a FOIA request).

Piron v. FBI, No. 00-1550 (W.D. Wash. Feb. 4, 2002) (magistrate's recommendation) (jurisdiction: court lacks jurisdiction because plaintiff failed to exhaust his administrative remedies prior to filing suit (i.e., he did not submit a FOIA request)), adopted (W.D. Wash. Apr. 30, 2002).

Sammis v. Barnhardt, No. C01-3973, 2002 WL 1285050 (N.D. Cal. June 6, 2002) (Exemption 6: protects the names and addresses of individuals who applied for Social Security benefits and received unfavorable opinions from a former administrative law judge who was convicted of perjury; the privacy interests of the Social Security applicants are "significant" and outweigh the public interest in disclosure; the information plaintiff seeks is not of public interest, plaintiff "merely hopes that it will lead to conduct that might be of public benefit").

Schiller v. INS, 205 F. Supp. 2d 648 (W.D. Tex. 2002) (discovery in FOIA litigation: denies plaintiff's request for discovery because responsive documents were provided to the court for in camera inspection, agency has shown that it conducted a reasonable search in response to plaintiff's FOIA request, and because plaintiff's discovery request "far exceeds" the information sought in his original FOIA request and "far exceeds" the discovery typically allowed in FOIA cases) (Exemption 7 (threshold): requirement met by records compiled by the INS in connection with an administrative proceeding authorized by the Immigration and Naturalization Act) (Exemptions 6 and 7(C): protect the names and birth dates of 12 aliens with criminal records in the San Antonio area placed under arrest in late 2000, as part of what the INS called "Operation Safe Neighborhoods," when INS had provided information regarding convictions; in the absence of evidence of wrongdoing on the part of INS, the privacy interests of the 12 individuals outweigh the public interest in disclosure).

Schwarz v. United States Gen. Accounting Office, No. 00-369 (D.D.C. Nov. 13, 2001) (proper party defendant: subdivisions of an agency and individual agency employees are not proper party defendants under the FOIA) (duty to search: agencies have conducted reasonable searches in response to plaintiff's FOIA requests) (exhaustion: because plaintiff's FOIA requests were never received by the Tennessee Valley Authority, she has not exhausted her administrative remedies).

Shakopee Mdewakanton Sioux (Dakota) Cmty. v. Hatch, No. 01-1737, 2002 WL 1364113 (D. Minn. June 20, 2002) ("not an agency" defense: the FOIA applies only to federal agencies, not to state agencies).

Shors v. Treasury IG for Tax Admin., No. 01-10086 (C.D. Cal. May 6, 2002) (Exemption 7 (threshold): records compiled in the course of an internal investigation of an alleged incident involving plaintiff and his supervisor meet the threshold requirement) (Exemption 7(C): protects the identities of co-workers of plaintiff who were interviewed) (Vaughn Index: orders agency to prepare a Vaughn Index describing the information withheld from 12 pages that are in dispute).

Smilde v. Rossotti, No. 99 C 5758, 2002 U.S. Dist. LEXIS 7978 (N.D. Ill. May 3, 2002) (jurisdiction: court lacks jurisdiction; agency is required under the FOIA to respond to requests for "agency records," but it is not obligated to answer questions and create records).

Tobie v. Wolf, No. C-01-3899, 2002 WL 1034061 (N.D. Cal. May 8, 2002) (res judicata: dismisses this action against the Department of the Interior because plaintiff filed an action in 1994 asserting identical claims against the Bureau of Indian Affairs).

Toledo v. P.R. Labor & Human Res. Dep't, 203 F. Supp. 2d 127 (D.P.R. 2002) (agency: the FOIA applies to federal agencies, not to state agencies).

Tran v. United States Dep't of Justice, No. 1:01-0238, 2001 WL 1692570 (D.D.C. Nov. 20, 2001) (duty to search: INS conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7(C): protects the identities of third parties) (Exemption 7(E): protects techniques and procedures used when another agency reviews immigration records in connection with an official investigation) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (A second opinion was issued by the court in this case on this same day; it can be found at 2001 U.S. Dist. LEXIS 21552 and was written-up in FOIA Post, "New FOIA Decisions, October-December 2001").

Tripp v. DOD, 193 F. Supp. 2d 229 (D.D.C. 2002) ("Reverse" FOIA: plaintiff cannot bring an independent Administrative Procedure Act claim predicated on the improper release of information allegedly in violation the Privacy Act) (expedited processing: in this FOIA action where plaintiff requested information about herself, finds that the agency properly denied her request for expedited processing; plaintiff is not "primarily" engaged in the activity of disseminating information and has not demonstrated an "urgent need" for this information) (fee waiver: agency used an improper standard in denying plaintiff's request for a fee waiver; remands to the agency for a determination of whether release of the information will contribute significantly to the public's understanding of the operation of the federal government).

Union of Needlestrades, Indus. & Textile Employees v. INS, 202 F. Supp. 2d 265 (S.D.N.Y. 2002) (attorney fees: applying the Supreme Court's decision in Buckhannon Board and Care Home, Inc., 532 U.S. 598 (2001) denies plaintiff attorney fees because it did not "substantially prevail" in this FOIA litigation where the parties reached a full accord and notified the court that their substantive differences had been resolved; under Buckhannon, which rejects the "catalyst theory," in order to qualify as a "prevailing party," a litigant must obtain "an enforceable judgment, consent decree, or settlement," and inducing a change in defendant's behavior is insufficient for an award of attorney fees).

Wicks v. Coffrey, No. 01-3664, 2002 1000975 (E.D. La. May 14, 2002) (exhaustion: plaintiff who did not submit a proper FOIA request failed to exhaust his administrative remedies; it was necessary that plaintiff complete the Certification of Identity form that DEA provided him in order for his FOIA request to be processed).

Wiedenhoeft v. United States, 189 F. Supp. 2d 295 (D. Md. 2002) (denies plaintiff a temporary restraining order to force the National Security Agency to immediately comply with his FOIA request for records concerning himself that plaintiff stated he needed at his upcoming administrative appellate proceeding; the public interest in protecting highly classified national security information outweighs plaintiff's need for information that is not directly related to a personnel decision).   (posted 7/2/02)


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