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Compiled FOIA Decisions (Received January-June 1996)

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


Appeals Courts

Anderson v. HHS, 80 F.3d 1500 (10th Cir. 1996) (attorney fees: district court did not abuse its discretion in declining to award fees for the first part of the litigation in which plaintiff pursued the FOIA action to further her state court action; district court did not abuse its discretion when it reduced plaintiff's time claim because the plaintiff did not prevail on all issues represented by these hours and because of plaintiff's failure to keep contemporaneous records; district court was not clearly erroneous in awarding fees based on an hourly rate of $100 per hour because of inaccuracies in plaintiff's records; district court did not err when it declined to award paralegal fees because they were inadequately documented; the denial of further discovery in support of plaintiff's FOIA fee claim was not an abuse of discretion since the information plaintiff seeks would not be relevant to the amount of the fee award; district court was not clearly erroneous when it denied plaintiff's motion to tax costs; a portion of the requested costs might have been allowable as attorney fees, but they are not properly a cost item; any items that might properly be considered costs were not "reasonably incurred").

Benavides v. Bureau of Prisons, No. 95-5147, 1996 U.S. App. LEXIS 6089 (D.C. Cir. Apr. 2, 1996) (the 7-day filing period of Rule 4(a)(6) was not triggered when an attorney not involved in this case told plaintiff in February 1993 of the October 1, 1992 district court order denying sanctions; remanded to district court to apply correct standard and for the court to exercise its discretion whether to reopen the time for filing an appeal).

Bruscino v. Fed. Bureau of Prisons, No. 95-5213, 1996 WL 393101 (D.C. Cir. June 24, 1996) (per curiam) (summary affirmance granted with respect to information withheld from 2 letters under Exemptions 6 and 7(C)) (vacates and remands portion of district court's opinion with respect to 2 documents withheld in their entireties because agency may have waived the exemptions through prior disclosure and there has been no finding of segregability).

Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897 (D.C. Cir. 1996) (Exemption 7(C): protects the names of informants, witnesses, potential suspects, and the company that reported the computer fraud; protects the names of conference attendees because public identification with a meeting that attracted the attention of law enforcement officials "would subject them to a degree of interest that would impinge upon their privacy"; there is no public interest served by disclosure) (Exemption 7(D): the manner in which an agency routinely handles information is not sufficient to establish an implied assurance of confidentiality under Landano; Service acknowledged that its sources had not been advised of its routine practices; Service offered no evidence that a fear of retaliation by computer hackers is sufficiently widespread to justify an inference of confidentiality; in its second affidavit the Service proved that one source had been given an implied promise of confidentiality).

Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93 (6th Cir. 1996), petition for rehearing denied, Nos. 94-1540, 94-1720 (6th Cir. Apr. 15, 1996) (Exemption 7 (threshold): United States Marshals Service's mug shots of federal indictees were compiled for law enforcement purposes) (Exemption 7(C): no privacy rights are implicated in the disclosure of mug shots from an ongoing investigation where the names of the defendants have already been divulged and where the defendants have also appeared in open court; in dicta holds that disclosure would be in public interest because it might "reveal the government's glaring error in detaining the wrong person" or "reveal the circumstances surrounding an arrest and initial incarceration of an individual") (attorney fees: the release of the mug shots benefits the public in that it gives insight into the criminal justice administration conducted in this district; the interests of a newspaper should not be considered commercial interests; the agency did have a reasonable basis in law in withholding the mug shots; district court did not abuse its discretion in awarding attorney fees to the plaintiff) (a dissenting judge found Exemption 7(C) applicable).

Ferguson v. FBI, 83 F.3d 41 (2d Cir. 1996) (per curiam) (Exemption 7(D): applying Landano, finds that the district court did not err in finding that the FBI's affidavit supports a finding that express promises of confidentiality were supplied to the sources of information withheld under this exemption; district court did not err in finding that circumstances identified by the FBI support the finding that sources provided information with the expectation that the FBI would keep their identities and/or the information they provided confidential; confidential sources included potential witnesses, individuals having a close relationship with the plaintiff, institutions, state and local government agencies, and foreign law enforcement agencies).

Finkel v. HUD, No. 95-6112, 1996 U.S. App. LEXIS 2895 (2d Cir. Feb. 21, 1996) (affirms district court's ruling that the deliberative process and the attorney work-product privileges protect documents relating to plaintiff's employment discrimination claim).

Galedrige Constr. Inc. v. IRS, No. 94-16628, 1996 WL 21609 (9th Cir. Jan. 22, 1996) (unpublished memorandum), 74 F.3d 1245 (9th Cir. 1996) (table cite) (attorney fees: district court correctly ruled that plaintiff was ineligible for fees; while the IRS exercised due diligence, its dilatory response was unavoidable due to the number of cases pending before it and to the "time consuming nature of the decision process") (sanctions: there was no bad faith in the failure of the IRS to meet the statutory deadline; IRS's first-in/first-out system was reasonable; sanctions denied).

Immanuel v. Sec'y of the Treasury, No. 95-1953, 1996 WL 157732 (4th Cir. Apr. 5, 1996) (per curiam) (unpublished memorandum), 81 F.3d 150 (4th Cir. 1996) (table cite) (adequacy of request: plaintiff's FOIA request was not sufficiently specific to comply with the FOIA; to the extent that his request could be interpreted, the government's responses were reasonable).

Jernigan v. United States Air Force, No. 95-35191, 1996 WL 285602 (9th Cir. May 29, 1996) (unpublished memorandum), 86 F.3d 1162 (9th Cir. 1996) (table cite) (district court erred by failing to rule on the merits of plaintiff's FOIA claim; applying Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991), finds that the district court must enter findings of fact and conclusions of law which clarify its decision with respect to each document in dispute; remands the case to the district court with instructions to conduct additional proceedings based upon a Vaughn Index).

Kowalczyk v. Dep't of Justice, 73 F.3d 386 (D.C. Cir. 1996) (adequacy of search: a reasonable search to satisfy a FOIA request does not entail an obligation to search anew based on plaintiff's subsequent clarification; agency is not required to speculate on the location of documents; FBI's search was reasonably limited to files located in its headquarters as initially requested by plaintiff).

Krikorian v. Dep't of State, No. 95-5216 (D.C. Cir. Feb. 6, 1996) (per curiam) (summarily affirms district court's denial of plaintiff's motion for attorney fees, where plaintiff had argued that they were due on a contractual basis).

Lake Mohave Boat Owners Ass'n v. Nat'l Park Serv., 78 F.3d 1360 (9th Cir. 1996) (publication: amends October 18, 1995 decision; National Park Service did not violate the FOIA when it failed to publish in the Federal Register its rate-setting guidelines for marinas that operate in national parks; plaintiff cannot demonstrate that it was adversely affected by the lack of publication because the guidelines did not change the existing rules or deviate from the plain meaning of the statute) (staff manuals: guidelines constitute an agency staff manual governed by subsection (a)(2), rather than a statement of substantive rules or policy governed by subsection (a)(1); Park Service has complied with the requirements of the FOIA by making the manual available to the public).

McDonnell Douglas Corp. v. NASA, No. 95-5288 (D.C. Cir. Apr. 1, 1996) (vacates and remands this "reverse FOIA" case because the requester withdrew his request and thereby mooted the action), dismissed as moot, No. 94-2452 (D.D.C. Apr. 11, 1996).

McGann v. Dep't of Justice, No. 95-6191, 1996 WL 37330 (2d Cir. Jan. 30, 1996) (duty to search: district court properly found that defendant's search for responsive records was adequate, even though no documents were found).

Mittleman v. OPM, 76 F.3d 1240 (D.C. Cir. 1996) (per curiam) (Exemption 7 (threshold): personnel background information was compiled for law enforcement purposes; it is immaterial that OPM did not discover any information suggesting that plaintiff had actually violated the law) (Exemption 7(D): portions from plaintiff's background investigation file did not lose their Exemption 7(D) protection when they were excerpted in another document).

Oglesby v. Dep't of the Army, 79 F.3d 1172 (D.C. Cir. 1996) (fee waiver (Reform Act): in this case where plaintiff seeks World War II documents about a Nazi general, rules narrowly that since the Archive's enabling statute specifically provides for the setting of fees, it is not superseded by the FOIA's fee-setting requirement; court looks unfavorably on an untimely motion filed after oral argument in which plaintiff argued that the legislative history of the fee waiver provision shows that Congress intended to allow agencies the freedom to develop their own fee-setting formulae, without allowing them to refuse categorically to provide waivers in the public interest) (Vaughn Index: Army's affidavit did not adequately explain why the 483 pages in a loose compilation called the Operation Rusty file are exempt from disclosure; on remand, the Army should be required to provide any segregable material from the file, as well as general information about each document withheld; on remand, the Army must also provide descriptions of 9 documents from the "Gehlen" files; CIA's affidavit is inadequate with respect to "additional responsive documents" that it nowhere explains or describes; CIA's affiant is not to be considered ineligible to attest simply because she allegedly made a mistake in an unrelated case; NSA's affidavit "clearly" fails to demonstrate why the release of 5 documents would damage the national security) (Exemption 1 [E.O. 12,356]: Army's affidavit demonstrates that information concerning intelligence sources and methods satisfies the procedural and substantive requirements of the executive order; with respect to the CIA's affidavit, finds that plaintiff has not shown that the withheld information is substantially similar to information the government had declassified because of its age and that the passage of time alone is not enough to discredit an otherwise detailed and persuasive affidavit) (duty to search: the Army and the CIA must each submit an affidavit describing in detail its search for records responsive to plaintiff's FOIA request; affidavits submitted by the FBI, Archives, and the Department of State demonstrate that their searches were reasonably calculated to uncover all relevant documents).

Or. Natural Desert Ass'n v. Bibles, 83 F.3d 1168 (9th Cir. 1996) (Exemption 6: names and addresses of private individuals who receive Bureau of Land Management's (BLM) newsletter is a "similar" file; district court's consideration of plaintiff's personal interest in the mailing list does not require reversal of its decision, because it did not affect the court's decision in this case; disclosure of the mailing list would not be a "clearly unwarranted invasion of privacy" because the privacy interests at stake are "minimal," the people on BLM's mailing list have affirmatively expressed their interest in receiving mailings on desert-preservation matters, and there is significant public interest in knowing with whom the government communicates and in providing those people with additional information).

Pac. Energy Inst. v. IRS, No. 94-36172, 1996 WL 14244 (9th Cir. Jan. 16, 1996) (unpublished memorandum), 74 F.3d 1246 (9th Cir. 1996) (table cite) (Exemption 7 (threshold): requirement met by records compiled by the IRS's Exempt Organizations Branch during its audit of plaintiff) (Exemption 7(D): applying Landano, holds that the district court was not clearly erroneous when it found that the information was provided under circumstances from which an assurance of confidentiality could be inferred; there was no "reasonably segregable" portion of the documents that could be disclosed without revealing the source's identity) (attorney fees: plaintiff did not substantially prevail in this case where it obtained only 5 of the 80 documents it sought).

Pagan-Astacio v. Dep't of Educ., No. 95-1874, 1996 U.S. App. LEXIS 6063 (1st Cir. Mar. 29, 1996) (unpublished memorandum), 81 F.3d 147 (1st Cir. 1996) (table cite) (Federal Register publication: agency need not publish the directory of eligible schools at which teachers may enjoy cancellation of student loans; the department publishes a Federal Register notice explaining where the directory is available; the directory explains the existing regulation, rather than changing the requirements of the loan cancellation program; there is no significant impact on any segment of the public).

Proctor v. Dep't of Justice, No. 94-5257, 1996 WL 5565 (D.C. Cir. Jan. 2, 1996) (per curiam) (unpublished order), 72 F.3d 920 (D.C. Cir. 1996) (table cite) (applying Landano, finds that an expectation of confidentiality may be inferred in this case where plaintiff was convicted of murdering a witness who was to testify against him).

Quinon v. FBI, 86 F.3d 1222 (D.C. Cir. 1996) (in camera inspection: in this FOIA case concerning 77 pages relating to an FBI investigation of an obstruction of justice charge, remands case so that the district court may conduct an in camera review of the withheld documents to verify that there was a legitimate law enforcement basis to the investigation and that the FBI's sources provided information with an expectation of confidentiality) (Exemption 7 (threshold): FBI's affidavits are insufficiently detailed to demonstrate that there was a legitimate basis for the obstruction of justice investigation, because the FBI could not be more specific without revealing the identity of a confidential source) (Exemption 7(C): exemption protects information that would identify informants and the Chief Judge of the Eleventh Circuit Court of Appeals; there is no evidence that the Chief Judge was involved in any wrongdoing; even if there were, disclosure of this information would not shed light on the FBI's performance of its statutory duties) (Exemption 7(D): applying Landano, finds that the FBI has not demonstrated that informants participated in the investigation with the expectation of confidentiality; "Ordinarily, there is little to fear, at least of a violent nature, from a trio of criminal defense lawyers.").

Schiffer v. FBI, 78 F.3d 1405 (9th Cir. 1996) (Exemption 7(C): in this FOIA case where the plaintiff requested from the FBI information concerning the FBI's investigation of him, finds that the district court erroneously balanced plaintiff's personal interest in obtaining the documents against the privacy interests of the informants and third parties named in the documents; the district court should have balanced these privacy interests against the public's interest in disclosure; there is no evidence that the FBI engaged in any wrongdoing; the public has little to no interest in the requested documents; prior limited disclosure does not diminish the privacy interests at stake; district court improperly considered plaintiff's personal knowledge in assessing the privacy interests at stake; district court's order limiting disclosure to plaintiff is not authorized under the FOIA; disclosure of information that would jeopardize privacy interests is categorically protected under the FOIA).

Schwarz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S. App. LEXIS 4609 (D.C. Cir. Feb. 22, 1996) (unpublished order), 80 F.3d 558 (D.C. Cir. 1996) (table cite) (subsection (a)(2): agency indexes patent files and makes them available for public inspection under FOIA's subsection (a)(2); agency need not disclose these records in response to FOIA requests under subsection (a)(3)).

Trenerry v. IRS, No. 95-5150, 1996 WL 88459 (10th Cir. Mar. 1, 1996) (unpublished order), 78 F.3d 598 (10th Cir. 1996) (table cite) (affirms district court's dismissal of this FOIA case for lack of subject matter jurisdiction; plaintiff failed to exhaust her administrative remedies and has an outstanding debt of $102 for search costs related to a 1992 FOIA request), reh'g denied (10th Cir. Apr. 29, 1996).

United States v. Osinowo, Nos. 95-1334, 95-1519, 1996 WL 20514 (2d Cir. Jan. 19, 1996) (exhaustion: when agency failed to respond to plaintiff's FOIA request, plaintiff moved in the district court for an order compelling release of the documents; after the agency made a partial disclosure, finds that plaintiff has not exhausted his administrative remedies because he did not appeal the partial denial of his FOIA request).


District Courts

Aguilera v. FBI, 941 F. Supp. 144 (D.D.C. 1996) (preliminary injunction: grants plaintiff's motion for a preliminary injunction to compel expedited processing of his FOIA request for records concerning his role as an FBI informant; even though the FBI is exercising due diligence in processing plaintiff's request, plaintiff needs the information to use in his criminal defense in a murder case in which plaintiff faces a 25-year-to-life prison sentence; he has demonstrated "exceptional need or urgency" because he has shown evidence that he was an informant for the FBI at the time of his confession, that FBI records might aid his defense, and that such records are relevant to a pending post-conviction suppression hearing ordered by the state court of appeals; since 275 documents are at issue, expedition will not pose a hardship on the FBI; there is a public interest in the "complete and thorough adjudication of criminal matters"; defendants shall comply with plaintiff's FOIA request by March 1, 1996).

Anderson v. Fed. Pub. Defender, No. 95-1485 (D.D.C. Mar. 28, 1996) (agency: the Federal Public Defender is not an agency for purposes of the FOIA).

Antonelli v. United States Parole Comm'n, No. 93-0109 (D.D.C. Feb. 23, 1996) (duty to search: Marshals Service's affidavit demonstrates that it conducted a search reasonably calculated to find a copy of plaintiff's writ of habeas corpus) (Exemption 7(A): agency has shown that the release of 8-year-old investigative file relating to plaintiff's arrest "could reasonably be expected to interfere with enforcement proceedings").

Assassination Archives & Research Ctr. v. CIA, No. 94-0655 (D.D.C. May 31, 1996) (case dismissed sua sponte because plaintiff failed to respond to court's order of November 2, 1995 denying reconsideration).

Beard v. Dep't of Justice, 917 F. Supp. 61 (D.D.C. 1996) (not an "agency": FOIA explicitly excludes the District of Columbia from federal FOIA coverage; the Metropolitan Police Department (MPD) is a "local," not a federal, agency) (Exemption 7(D): applying Putnam v. Department of Justice, finds that the exemption protects an investigative report concerning the plaintiff prepared by the MPD; the FBI requested permission from the MPD to release the document and the request was denied; from this the court can infer that the MPD provided the information with the understanding that it would remain confidential; disclosure might have a chilling effect on the future cooperation between federal and local government agencies).

Belvy v. Dep't of Justice, No. 94-923 (S.D. Fla. Dec. 6, 1995) (magistrate's recommendation) (attorney fees: plaintiff has substantially prevailed in this case where the government ultimately produced all the requested documents, but only after a lengthy legal battle; there is a significant public benefit in the increased awareness of our government's decisions concerning Haitian immigrant issues; plaintiff has a personal interest in these records because she herself is seeking political asylum in the United States; government has failed to put forth a compelling reason for its nonproduction of documents throughout the entire process of this case; an enhancement by a factor of 2 is inappropriate because plaintiff obtained only the ordinary relief expected in a FOIA case; grants attorney fees in the amount of $24,455 and costs in the amount of $445.26), adopted (S.D. Fla. June 18, 1996).

Bongiorno v. Reno, No. 95-72143, 1996 U.S. Dist. LEXIS 4796 (E.D. Mich. Mar. 19, 1996) (Exemption 6: in this FOIA case where a noncustodial father seeks his adoptive daughter's naturalization papers and supporting documents, finds that the documents meet the threshold requirement; daughter has a "weak" privacy interest in these records because they contain personal information about her, for example her name and address; disclosure would not shed light on the operations of the federal government; documents are exempt from disclosure).

Butler v. Dep't of the Air Force, No. 94-2306, 1996 U.S. Dist. LEXIS 4062 (D.D.C. Mar. 31, 1996) (adequacy of search: defendant has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 7(A): protects information currently contained in an open homicide investigation) (Exemption 7(D): protects information provided by a confidential source) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to documents not under the control of the Office of Special Investigations).

Butler v. United States Probation, No. 95-1705, 1996 U.S. Dist. LEXIS 5241 (D.D.C. Apr. 22, 1996) (agency: the United States Probation Department is not an agency for purposes of the FOIA and is not subject to its provisions).

Chesapeake Bay Found. v. USDA, 917 F. Supp. 64 (D.D.C. 1996) (attorney fees: agency did not have a reasonable basis in law to withhold documents under Exemption 3 (7 U.S.C. 2276); information sought was in statistical or aggregate form and disclosure would not reveal the identity of any "person" who supplied information; plaintiff was trying to determine whether the level of pesticide use was creating a public safety hazard, it had no commercial interest in the information; this case was settled only because the court intervened and insisted that the agency seek waivers from the various state agencies involved; attorney fees awarded).

Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., No. 93-0231 (D.D.C. Apr. 24, 1996) (Exemption 7(C): on remand, finds that defendant may withhold from its investigatory records information that would identify individuals and the name of a company that reported a computer fraud) (Exemption 7(D): defendant may withhold information with respect to one source where defendant has shown an inference of confidentiality; all other information withheld under this exemption must be released by May 28, 1996) (Exemption 7(A): by May 28, 1996, defendant must release all information previously withheld under this exemption that is not protected by another exemption, since defendant has terminated its investigation).

Cortez III Serv. Corp. v. NASA, 921 F. Supp. 8 (D.D.C. 1996) (Exemption 4/"Reverse FOIA": applying Critical Mass, finds that General and Administrative rate ceilings were voluntarily submitted in connection with a successful bid for a government contract; rate ceilings were additional information that was not required by the contract proposal document; rate ceilings are the type of information that is not customarily disclosed to the public; under National Parks, the disclosure of this information would result in substantial competitive harm to the plaintiff; "It is clear from the number of FOIA requests received from Cortez III's competitors that the material being sought is of a sensitive commercial nature.").

Crompton v. Criminal Div. of the United States Dep't of Justice, No. 95-8176 (C.D. Cal. Apr. 1, 1996) (duty to search: agency affidavit demonstrates that it conducted a search reasonably calculated to uncover all documents relevant to plaintiff's FOIA request).

Croskey v. Office of Special Counsel, No. 94-2756, 1996 U.S. Dist. LEXIS 3778 (D.D.C. Mar. 28, 1996) (res judicata: plaintiff seeks to litigate the same claims that were at issue in prior litigation; there have not been material changes of fact since the earlier proceeding; plaintiff's action is barred by the doctrine of res judicata).

D'Angelica v. IRS, No. 94-1998, 1996 U.S. Dist. LEXIS 6681 (E.D. Cal. Apr. 25, 1996) (summary judgment granted to defendant; the requested "Directives Manual, Chapter TD 80" does not exist; to the extent that such a directive may exist, an obsolete Directive 80.01.B was provided to the plaintiff).

DeLorme Publ'g Co. v. NOAA, 917 F. Supp. 867 (D. Me. 1996) (Exemption 3 [15 U.S.C. 3710a]: the Federal Technology Transfer Act protects 202 digitized electronic "raster" compilations of nautical charts created in anticipation of a cooperative research and development agreement (CRADA) and another 21 files created during the CRADA for up to 5 years from the date of their development) ("no records" defense: after a thorough search of its records, NOAA could not locate "vector conversions" of the raster files) (Exemption 2: the raster files are not "related solely to the internal personnel rules and practices" of the agency and their disclosure would not "shed significant light" on any such rule or practice) (attorney fees: attorney fees denied because plaintiff has not substantially prevailed).

DeLuca v. INS, No. 95-6240, 1996 U.S. Dist. LEXIS 2696 (E.D. Pa. Mar. 7, 1996) (court lacks subject matter jurisdiction in this FOIA action because the records plaintiff requested did not exist at the time this request was made).

Demma v. Dep't of Justice, No. 93-7296, 1996 WL 11932 (N.D. Ill. Jan. 10, 1996) (on defendant's motion for reconsideration finds that the FBI conducted a reasonable search for records in response to plaintiff's FOIA request).

Early v. Office of Prof'l Responsibility, No. 95-0254 (D.D.C. Apr. 30, 1996) (Exemption 7(C): defendant properly refused to confirm or deny the existence of records concerning the professional performances of one judge and 2 Assistant United States Attorneys; disclosure of these records could reasonably be expected to invade the personal privacy of these individuals; there is no evidence of any wrongdoing by these individuals; disclosure would not shed light on the workings of the federal government).

Ellis v. United States, 941 F. Supp. 1068 (D. Utah 1996) (attorney fees: based upon the substantial number of documents that were produced after this suit was filed, finds that this suit was necessary to obtain documents responsive to plaintiff's FOIA request; plaintiff's persistence in litigating her FOIA claim was the principal cause of the Park Service's eventual release of the documents; a successful FOIA plaintiff always achieves a measure of success by bringing the government into compliance with the FOIA; disclosure of records on an incident in a public park in which 2 hikers drowned does not add to the fund of information necessary for the citizenry to make informed political choices; plaintiff sought this information for use in her administrative claim against the Department of the Interior under the Federal Torts Claims Act seeking approximately $24.5 million in damages for losses allegedly sustained as a result of this accident; while the agency was slow in producing the documents at issue, facts do not indicate that it purposely delayed its FOIA response to prevent embarrassment or to thwart the requester; an agency's search responsibilities do not extend to following up "clues" found in other documents; attorney fees are not warranted as a sanction for agency's bad faith FOIA violations; attorney fees denied).

Fitzgerald v. United States, No. 95-1693 (D.D.C. Mar. 20, 1996) (duty to search: affidavit submitted by Department of Justice's Criminal Division demonstrates that it conducted a search reasonably calculated to uncover all documents relevant to plaintiff's FOIA request) (exhaustion: because plaintiff never filed a FOIA request with the ATF, he has not exhausted his administrative remedies with respect to that agency).

Giaimo v. IRS, No. 4:94-2463 (E.D. Mo. Feb. 23, 1996) (jurisdiction: court lacks jurisdiction because plaintiff's FOIA request was never delivered to nor received by the defendant).

Gilmore v. Dep't of State, No. 95-1098 (N.D. Cal. Feb. 9, 1996) (jurisdiction: court lacks jurisdiction over 3 Justice Department components which conducted reasonable searches but found no records responsive to plaintiff's FOIA request for records on export controls on cryptography; plaintiff's subsequent clarification of his original request was properly treated as a separate request) ("exceptional circumstance"/"due diligence": denies Open America stays of one year, 30 months, 3-4 years, and indefinitely, and instead grants a stay of 6 months to 4 federal agencies; agencies have substantial backlogs due to the unanticipated increase in the number of FOIA requests, which was exacerbated by the recent federal government shutdown; agencies are exercising due diligence processing records on a "first-in/first-out" basis) (remaining 3 agencies must file a declaration by August 9, 1996 stating the status of plaintiff's FOIA request).

Gomez v. United States Attorney, No. 93-2530 (D.D.C. Apr. 1, 1996) (duty to search: the FAA and the FBI conducted searches sufficient to constitute "an adequate search reasonably likely to produce the information requested") (Exemption 7(A): the Executive Office for the United States Attorney (EOUSA) is not required to release documents concerning plaintiff's conviction for drug trafficking and narcotics during the pendency of plaintiff's appeal of his criminal case; EOUSA shall advise the court by April 19, 1996 as to whether the appeal is still pending; if it is, EOUSA may renew its motion to dismiss; if the appeal is not still pending, EOUSA must respond to plaintiff's FOIA request) (Exemption 2 "high": disclosure of informant identifier codes, file numbers concerning third parties, and FBI bank account and Treasury Code numbers could help a criminal avoid detection, endanger the lives of informants and increase the possibility of an unauthorized person gaining access to sensitive financial data) (Exemption 3 [18 U.S.C. 2510-18, 3123(d)]: protect information relating to the lawful interception of communications by the FBI) (Exemption 7(C): protects the identities of FBI agents and support personnel, other agency personnel, nonfederal law enforcement personnel, subjects of investigative interest, and informants; plaintiff's allegations concerning the government's involvement in the incidents for which he was convicted are "wholly insufficient" to outweigh the privacy interests at stake) (Exemption 7(D): applying Landano, finds that the exemption protects permanent source symbol numbers, and the information they provided and the information received from other individuals who cooperated in a major investigation of illegal narcotics trafficking; symbol-numbered sources are given express assurances of confidentiality; other informants had a legitimate expectation that there would be no unnecessary disclosure of their cooperation due to the nature of the investigation, the seriousness of the crimes, and the potential for retaliation) (Exemption 7(E): the disclosure of the FBI investigative techniques used in this investigation would reveal the effectiveness of certain techniques and could assist criminals in employing countermeasures) ("no records" defense: agency is not required to respond to questionnaires because it is not required to create records in response to a FOIA request) (in camera inspection: in camera inspection denied; agencies have provided sufficient descriptions as to applicability of the exemptions).

Gomez v. United States Attorney, No. 93-2530, 1996 U.S. Dist. LEXIS 6439 (D.D.C. May 13, 1996) (Exemption 7(A): applying Bonner v. Department of State, finds that because the court previously determined that Exemption 7(A) was properly claimed at the time plaintiff's FOIA request was processed, plaintiff's claims must be dismissed even though plaintiff's criminal appeal is no longer pending; plaintiff may file a new FOIA request for the information he previously sought).

Graphics of Key W., Inc. v. United States, No. N-93-718, 1996 U.S. Dist. LEXIS 1888 (D. Nev. Feb. 6, 1996) (exhaustion: plaintiff's FOIA requests were more arguments than clear requests for information and "do not come even close to" constituting a proper FOIA request; plaintiff has failed to exhaust its administrative remedies).

Greyshock v. United States Coast Guard, No. 94-00563 (D. Haw. Jan. 24, 1996) (res judicata: plaintiff has already litigated these same issues before the District Court of the District of Columbia and is precluded from litigating them again in any forum) (FOIA as a discovery tool: plaintiff may not use the FOIA as a substitute for criminal discovery).

Guerrero v. DEA, No. 93-2006 (D. Ariz. Feb. 21, 1996) (in camera inspection: denies plaintiff's request for in camera inspection, except with respect to portions of the DEA Agents Manual withheld from disclosure) (sanctions: denies plaintiff's motion for sanctions because of defendant's late filing; discrepancies in the court's orders created confusion about deadlines among the concerned parties) (Exemption 7(D): applying Landano, finds that the exemption protects information provided by a DEA informant known to the plaintiff who has been assigned a Cooperating Individual code; all coded informants are given express assurances of confidentiality) (Exemption 7(C): protects information that would identify subjects of investigative interest) (Exemption 7(F): protects the identities of various law enforcement officers) (Exemptions 2 "high" and 7(E): disclosure of portions of the DEA Agents Manual would enable drug violators to escape detection, evade the law, endanger the lives of DEA personnel and reveal sensitive investigative techniques that are not generally known to the public).

Harvey v. Dep't of Justice, No. 92-176 (D. Mont. Jan. 9, 1996) (duty to search: in response to plaintiff's FOIA request, the FBI searched only automated and manual files at Headquarters, despite the fact that plaintiff mentioned specific file numbers and the files of an FBI Agent in Wyoming; FBI did not conduct a search reasonably calculated to uncover all documents relevant to plaintiff's FOIA request) (Exemption 7(C): protects the identities of third parties found in criminal investigation files) (exhaustion: plaintiff has not exhausted his administrative remedies because he never made a FOIA request for information concerning 8 individuals).

Holbrook v. IRS, 914 F. Supp. 314 (S.D. Iowa 1996) (Exemptions 3 [26 U.S.C. 6103(e)(7)] and 7(A): release of portions of Special Agent's handwritten interview notes made in the course of a criminal tax investigation and portions of her memorandum of interview would seriously impair federal tax administration and could reasonably be expected to interfere with enforcement proceedings).

Hunsberger v. DOD, No. 93-0387 (D.D.C. Mar. 20, 1996) (dismisses action for lack of subject-matter jurisdiction; defendants have made a diligent good-faith effort to search for records requested by the plaintiff; defendants either answered plaintiff's requests, referred them to the proper component within the agency, or requested additional information from plaintiff).

Hunsberger v. Dep't of Energy, No. 96-0455 (D.D.C. Mar. 14, 1996) (in order to protect the integrity of the court and the orderly and expeditious administration of justice, employs an injunctive remedy and enjoins plaintiff, who has numerous filings currently before the court, from filing any other civil action without first obtaining leave of this court).

Hunsberger v. Dep't of Justice, No. 92-2587 (D.D.C. Apr. 11, 1996) (in camera inspection of documents which plaintiff believes are under seal denied in this FOIA case).

Hunsberger v. Dep't of State, No. 95-1734 (D.D.C. Mar. 15, 1996) (grants defendant an Open America stay until December 15, 1997, finding that additional time is necessary for defendant to complete the administrative processing of plaintiff's FOIA/Privacy Act request).

Hunter v. Christopher, 923 F. Supp. 5 (D.D.C. 1996) (in camera inspection: on in camera inspection finds that agency properly withheld 106 records in part and 28 documents in their entireties under Exemptions 3, 5, 6, 7(C), and 7(D)) ("exceptional circumstances"/"due diligence": as to the 64 documents that were referred to 4 other federal agencies for processing, grants an Open America stay of 60 days; 2 of the agencies had indicated that they would complete their processing in 60 days, the Civil Rights Commission and the FBI had requested 1- and 2-year extensions, respectively; "the inability to process such a limited number of documents reveals an organizational structure that is so muscle bound as to be dysfunctional").

Ianniello v. OMB, No. 95-916 (D. Md. Jan. 19, 1996) (Exemption 5: deliberative process privilege protects a 1-page internal memorandum sent to 2 high-level officials from staff subordinates concerning potential funding for a particular project; there was no showing that the document was adopted as agency policy).

Jimenez v. FBI, 910 F. Supp. 5 (D.D.C. 1996) (adequacy of request: dismisses case against the Justice Department's Tax Division because a FOIA request was never received by that office) (adequacy of search: the IRS has fully discharged its responsibilities under the FOIA by conducting a thorough search for records about the plaintiff, even though no documents were found).

Juda v. Dep't of Justice, No. 94-1521 (D.D.C. Mar. 27, 1996) (Exemption 7(C): protects information that would identify federal government personnel and agents, nonfederal law enforcement officers, third parties, and subjects of investigative interest) (Exemption 2 "high": protects Marshals Service's district numbers and the Customs Service's computer codes; "disclosure would facilitate improper access to sensitive information and thus impede the effectiveness of law enforcement") (exhaustion: plaintiff has failed to exhaust his administrative remedies with respect to TECs documents generated before his arrest) ("no records" defense: government is not required to answer questions or create explanatory material in response to FOIA requests) (Exemption 5: orders in camera inspection to determine whether the government's withholding of a few paragraphs concerning the plaintiff's seizure and forfeiture proceedings is within the scope of this exemption).

Juda v. Dep't of Justice, No. 94-1521 (D.D.C. Apr. 16, 1996) (Exemption 5: on in camera inspection finds that a memorandum and a letter written by an Assistant United States Attorney are protected under the attorney work-product privilege).

Judicial Watch, Inc. v. Dep't of Commerce, No. 95-0133 (D.D.C. Feb. 1, 1996) (Vaughn Index: on in camera review, finds the agency's Vaughn Index is insufficient in most instances to justify the withholding, in whole or in part, of 284 pages under the deliberative process and attorney-client privileges; within 60 days agency must submit a revised Vaughn Index that contains "sufficient information to allow [the court] to make a reasoned determination" of exemption) (discovery in FOIA litigation: allows plaintiff 60 days to conduct discovery on the adequacy of defendant's search).

Katzman v. Freeh, 926 F. Supp. 316 (E.D.N.Y. 1996) (discovery in FOIA litigation: concurs with magistrate judge in denying plaintiff's motion to compel the FBI to answer certain interrogatories because the questions relate substantially to information that is exempt from disclosure; the FBI prepared a Vaughn Index for these documents and they were reviewed in camera by the court) (duty to search: a genuine issue of fact exists as to whether the FBI has conducted a search using the correct file number; defendant has not demonstrated that 3 outstanding documents are exempt from disclosure or cannot be located).

Keenan v. Dep't of Justice, No. 94-1909 (D.D.C. Apr. 24, 1996) (summary judgment: because the court will consider exhibits submitted with the CIA's motion to dismiss, CIA's Rule 12(b)(6) motion is converted into a motion for summary judgment; grants CIA's motion for summary judgment) (duty to search: CIA's affidavit demonstrates that it conducted a search reasonably calculated to uncover documents responsive to plaintiff's FOIA request and that it failed to recover any such documents).

Kimberlin v. Dep't of Justice, 921 F. Supp. 833 (D.D.C. 1996) (Exemption 7(C): privacy interest has been waived for information that was disclosed to the press on the authority of the United States Attorney for the District of Indiana; within 30 days the government must recreate the file that was released and provide it to the plaintiff; exemption protects the internal investigation files relating to the disclosure of this file; privacy interests of the Assistant United States Attorney and other individuals identified in the file outweigh the public interest in the internal disciplinary processes of the Justice Department; public acknowledgment of the existence of the investigation does not warrant a finding that the agency or individuals involved have waived their privacy rights).

Kitchen v. FBI, No. 93-2382 (D.D.C. Mar. 18, 1996) (adequacy of search: by April 22, defendant must provide authority in support of its contention that plaintiff must send a FOIA request to each FBI field office where he believes responsive documents might exist) (Exemption 2 "high": disclosure of Temporary Source symbol numbers would significantly impair DEA investigations; Temporary Source symbol numbers are "predominantly internal") (Exemption 3 [Rule 6(e)]: disclosure of the names of individuals subpoenaed to testify before a federal grand jury "would reveal the inner workings of the grand jury") (Exemption 7(C): by April 22, defendant must redact from 28 documents information that would identify third parties and then provide plaintiff with these redacted documents, or provide the court with a more detailed explanation of why these documents are exempted in full and do not contain segregable information) (Exemption 7(D): applying Landano, finds that defendant's affidavit demonstrates that sources were either given express assurances of confidentiality or that circumstances existed from which such an assurance could reasonably be inferred; exemption protects the identities of sources and the information they provided) (Exemption 7(E): disclosure of FBI form FD-515, an accomplishment report submitted at various stages of an investigation, would reveal law enforcement techniques and risk circumvention of law).

Kitchen v. IRS, No. 94-1115 (D.D.C. Mar. 7, 1996) (grants defendant's unopposed motion for summary judgment; defendant has conducted a reasonable search and all responsive documents have been given to plaintiff).

Kowalczyk v. O'Brien, No. 94-1333 (D.D.C. Jan. 30, 1996) (Exemption 7(C): protects the identities of FBI personnel, federal and state employees, employees of commercial or financial institutions, third parties, and subjects of investigative interest contained in FBI investigatory files) (Exemption 7(D): protects identities of third parties interviewed by the FBI, employees of commercial and financial institutions, and nonfederal law enforcement agencies) (Exemption 7(E): protects information that would reveal the use of various investigative techniques and their general effectiveness).

Kronberg v. Dep't of Justice, No. 92-2736 (D.D.C. Mar. 25, 1996) (Exemption 3 [Rule 6(e)]: agency's affidavit does not demonstrate how or why the inner workings of the grand jury would be revealed as a result of the disclosure of one prospective question, which was to be asked of plaintiff before a grand jury; question must be released in unredacted form).

Lee v. FDIC, 923 F. Supp. 451 (S.D.N.Y. 1996) (Exemption 4: considering possible applicability of Critical Mass, on in camera inspection finds that 7 bank documents were mandatory submissions in the merger approval process; rejecting protection under National Parks as well, finds that disclosure would not have a chilling effect on future submissions since the submitters still need approval of future transactions; where financial information reflecting the anticipated impact of the proposed merger has been previously released in a different format, finds that substantial competitive harm is unlikely to result from the disclosure of this same information in new format) (Exemption 5: citing Coastal States v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980), finds that the deliberative process privilege does not protect 2 fact-laden summaries pertaining to various aspects of the proposed merger, a memorandum addressing the legality of the acquisition of operating subsidiaries, and a draft revision of an opinion letter; FOIA has a strong policy of public disclosure and disclosure will not affect "efficient government operation"; the attorney-client privilege does not protect the legal memorandum on acquisition and 2 short notes regarding revisions to an opinion later because they contain "standard legal analysis of the law" relative to the merger and were not undertaken by the government while acting in a capacity similar to a "private party seeking advice to protect personal interests") (Exemption 8: does not protect information garnered through the bank examination process because the agency has not shown that this information is deliberative rather than primarily factual, as required by the counterpart civil discovery privilege) (scope of request: under the FOIA, plaintiff is entitled to relevant and nonrelevant information in requested documents) (all documents must be released within 10 days).

Lewis v. Glickman, No. 95-1872, 1996 WL 39398 (E.D. La. Jan. 31, 1996) (exhaustion: plaintiff has failed to exhaust his administrative remedies; when plaintiff filed what he considered to be an appeal of his FOIA request, the agency treated it as a second, separate FOIA request and later responded to his first request; because plaintiff received additional information while this suit was pending, he should be given additional time in which to appeal).

Liverman v. IRS, No. 95-1921, 1996 U.S. Dist. LEXIS 7642 (D.D.C. May 16, 1996) (duty to search: defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Maccaferri Gabions, Inc. v. Dep't of Justice, No. 95-2576 (D. Md. Mar. 26, 1996) (Exemption 7 (threshold): threshold requirement met by documents compiled by the Justice Department's Antitrust Division in its investigation of plaintiff, the gabion industry, and the gabion fastening industry) (Exemption 7(A): agency's generic affidavit demonstrates that disclosure of each category of information could reasonably be expected to interfere with possible enforcement proceedings; since the Antitrust Division is currently investigating plaintiff, law enforcement proceedings are reasonably anticipated) (Vaughn Index: giving plaintiff access to a Vaughn Index, individually describing each document in detail, would defeat the purpose of allowing a categorical approach) (FOIA as a discovery tool: plaintiff is improperly attempting to use the FOIA as a discovery tool to gain premature insight into the government's strategy and the strength of its position) (in camera inspection: court will not exercise its discretion to conduct in camera inspection because there is no reason to question the good faith of the Justice Department in this case).

Marulanda v. Dep't of State, No. 93-1327 (D.D.C. Jan. 31, 1996) (Exemption 3 [8 U.S.C. 1202(f)]: protects documents related to the denial of plaintiff's visa application) (waiver of exemption: government has not waived its right to invoke exemption by exercising its discretion as to which visa documents are disclosable without violating the confidentiality mandated by Section 1202(f)) (Vaughn Index: agency's Vaughn Index contains sufficient information to allow the court to grant its motion for summary judgment; in camera review is not warranted) ("reasonably segregable": Section 1202(f), by its terms, protects entire records concerning the denial of plaintiff's visa, not just the information they contain).

Master v. FBI, 926 F. Supp. 193 (D.D.C. 1996) (duty to search: defendant's affidavit demonstrates that its search was reasonably calculated to uncover all documents concerning the theft of plaintiff's bonds and the illegal wiretapping of his home) (no "improper withholding": defendant has demonstrated that the numerical discrepancy between the number of pages the Cleveland Field Office initially indicated were responsive to plaintiff's FOIA request and the actual number released to the plaintiff was the result of a clerical error) (Exemption 7(C): regardless of plaintiff's alleged personal knowledge, the exemption protects the identities of third parties, informants, and subjects of investigative interest).

McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996) ("Reverse FOIA"/Exemption 4: applying Critical Mass, finds that adverse impact analyses submitted to the EEOC pursuant to an administrative subpoena were not "voluntarily" produced; plaintiff initially objected to the subpoena on a variety of grounds and later produced the records after negotiations with the agency; plaintiff did not customarily disclose these documents to the public or even within the corporate structure; documents are undisputedly "commercial or financial"; documents are protected by the attorney-client privilege because disclosure to the EEOC constituted only a limited waiver, so they therefore fall within Exemption 4 on a "privileged" basis; agency enjoined from disclosing documents to third party).

McLeod v. Pena, No. 94-1924 (D.D.C. Feb. 9, 1996) (Exemption 7(C): on in camera inspection finds that the exemption protects in their entireties memoranda and witness statements concerning the investigation of plaintiff's former commanding officer where the unit consisted of 8 officers and 20 enlisted personnel; both the commanding officer and witnesses have a privacy interest at stake; there is no evidence of any wrongdoing on the part of the Coast Guard).

Moore v. Aspin, 916 F. Supp. 32 (D.D.C. 1996) (duty to search: defendant has conducted a search reasonably calculated to locate Panama Railroad Company's share certificates and stock transfer book; the Department of Defense is not required to respond to FOIA requests directed at other agencies; an appeal of a denial of records must be made to the head of the agency to which the original FOIA request was sent).

Niagara Mohawk Power Corp. v. Dep't of Energy, No. 95-0952 (D.D.C. Feb. 23, 1996) (Exemption 4: protects operating expense information contained in forms submitted to agency by independent power producers that sell electricity to plaintiff; identical information is not publicly available; government might find it difficult to obtain necessary information in the future, even though it is mandatorily required; submitters might not be fully forthcoming and this could affect the reliability of the data the government needs; disclosure would cause competitive harm to independent power producers).

Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475A (E.D. Va. June 7, 1996) (Exemption 4: defendant has produced only speculative evidence that disclosure of 7 documents relating to defendant's conservatorship and liquidation of a now defunct credit union would impair the government's ability to collect such financial information in the future; some of the documents' authors declared that disclosure would not cause competitive harm) (Exemption 5: the deliberative process privilege does not protect Board minutes and Board Action Memoranda because they reflect the agency's ratified policy; they were embraced by the Board in substantially the same language) (Exemption 8: does not protect 14 evaluative reports prepared by or for the use of agencies that supervise financial institutions; much of the information sought by plaintiff is purely factual; the bank examination privilege may be overridden to "shed light on alleged government malfeasance").

Peralta v. United States Attorney's Office, No. 94-00760 (D.D.C. Feb. 5, 1996) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts, the identities of witnesses and grand jurors, testimony before the grand jury, and grand jury deliberations) (Exemption 5: the deliberative process and attorney work-product privileges protect information contained in the records of federal agencies considering possible criminal actions) (Exemption 7(C): protects the identities of third parties) (case dismissed against the Executive Office of the United States Attorneys), stay granted (D.D.C. Feb. 5, 1996) (in response to the FBI's request for a stay until March 2002, grants FBI an Open America stay of 2 years).

Perdue Farms, Inc. v. NLRB, 927 F. Supp. 897 (E.D.N.C. 1996) (exhaustion: plaintiff has constructively exhausted its administrative remedies; plaintiff filed a FOIA request on May 1 and received no answer prior to initiating this litigation on May 17) (injunctive relief: grants plaintiff a temporary restraining order; defendant must comply with plaintiff's FOIA request for documents concerning the Board's union election fraud investigation "immediately and with all deliberate speed"; the balance of hardship tips "decidedly" in favor of the plaintiff, its likelihood of success on the merits is quite high, it would suffer irreparable harm without the information, and the public interest is "beyond question").

Price v. County of San Diego, 165 F.R.D. 614 (S.D. Cal. 1996) (agency: the County of San Diego is not an agency for purposes of the FOIA).

Prows v. Dep't of Justice, No. 90-2561, 1996 WL 228463 (D.D.C. Apr. 25, 1996) (adequacy of search: plaintiff's speculation that DEA's Operation Grouper file must contain more than 110 pages does not rebut the representation in DEA's affidavit that that is in fact the total number of pages) (Exemption 5: deliberative process privilege protects recommendations made by DEA personnel to management officials as to how best to proceed with enforcement matters, because they are a direct part of the deliberative process) (Exemption 2: G-DEP codes, NADDIS numbers, and Cooperating Individual Codes are "predominantly internal" and their disclosure would lead to circumvention of agency regulations; defendant has not adequately shown why it cannot redact these identifier codes from the responsive documents, rather than withhold those documents in full; by May 30, defendant must either redact these identifier codes from the documents and then provide plaintiff with the redacted documents, or provide a more detailed explanation as to why those documents are exempted in full) (Exemptions 7(C) and 7(F): by May 30, defendant must either redact information that would identify subjects of investigative interest and law enforcement agents from the documents and then provide plaintiff with the redacted documents, or provide a more detailed explanation as to why those documents are exempted in full).

Pub. Citizen v. Dep't of Justice, No. 95-2095 (D.D.C. May 24, 1996) (Exemption 5: communications between the Archivist of the United States and former Presidents Bush and Reagan and their representatives do not meet the "inter- or intra-agency" requirement of the FOIA; communications were not in the nature of obtaining advice for the Archive's decisionmaking process; the relationship of a former president to the Archivist under the Presidential Records Act is not analogous to that of a nonadversarial consultant).

Pub. Citizen Health Research Group v. FDA, No. 94-0018 (D.D.C. Feb. 9, 1996) (adequacy of request: although defendant claimed plaintiff failed to "reasonably describe" the records it sought, FDA did identify 230 investigational new drug applications responsive to plaintiff's FOIA request; FDA still wrongly claims that the records are not "reasonably described"; FDA has ignored plaintiff's overtures regarding the contours of the search of these 230 applications; within 30 days parties must meet and seek to agree on the search that will now be conducted, and submit a proposed order to the court).

Pully v. IRS, 939 F. Supp. 429 (E.D. Va. 1996) (Exemption 5: attorney-client privilege protects an IRS auditor's one-page handwritten note that reflects the legal advice given to her orally by the Richmond District Counsel; no waiver has occurred) (Exemption 7(A) and Exemption 3 [26 U.S.C. 6103(e)(7)]: disclosure of documents obtained or created by the IRS during its joint civil and criminal investigation of the plaintiff could reasonably be expected to interfere with law enforcement proceedings or with tax administration) (Exemption 7(C): protects information that would identify lower-level IRS employees, informants, and potential informants) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 7(E): disclosure of discriminant function scores (DIF scores) by which the IRS calculates certain tolerances outside of which audits become more likely would enable potential tax-evading individuals to circumvent the tax code).

Rothman v. USDA, No. 94-8151 (C.D. Cal. June 17, 1996) (Exemption 6: settlement agreement between an agency and its employee is a "personnel" or "similar" file; on in camera inspection finds that disclosure of a settlement agreement related to a charge of discrimination and which contains a confidentiality clause would be an "unwarranted invasion of personal privacy" that is not outweighed by any substantial public interest; there is a public interest in determining whether USDA handles employment matters in a fair manner; disclosure of the terms of settlement of a grievance claim could conceivably lead to embarrassment or friction with fellow employees or supervisors; redaction of sensitive information would leave only a document containing the subject's name and isolated words or phrases; employment applications of unsuccessful candidates for federal government positions are "similar" files; exemption protects information contained in applications that pertains to knowledge, skills, and abilities of unsuccessful applicants, because the privacy interests of the applicants outweigh the public interest in disclosure; the field of candidates for Canine Officer is specialized and limited to about 40 persons who work in the same agency and may know each other personally).

RSR Corp. v. Browner, 924 F. Supp. 504 (S.D.N.Y. 1996) ("Reverse FOIA"/Exemption 4: EPA's decision to release the Wallkill Plant's monthly production data submitted under the Clean Water Act was not arbitrary, capricious, or an abuse of discretion; plant's monthly production data is "effluent data," which is not eligible for confidential treatment; applying Critical Mass, finds that where the plaintiff elected to provide monthly figures, rather than semi-annual average figures, to satisfy its semi-annual reporting requirement, it cannot be said that the information was submitted voluntarily).

Russell v. CIA, No. 95-1234, 1996 U.S. Dist. LEXIS 6108 (D.D.C. May 3, 1996) (adequacy of search: CIA's affidavit does not demonstrate that its Directorate of Operations and Directorate of Administration conducted searches reasonably calculated to uncover all documents about plaintiff's wife, who has been missing since 1989; by May 24, the CIA must provide additional information on the kind of search conducted by each component, what filing systems and indices each component maintains, and the search terms used).

Savage v. FBI, No. C2-90-797 (S.D. Ohio Mar. 8, 1996) (Exemption 1 [E.O. 12,356]: based on a limited in camera review using a document-by-document appendix, finds that agency's declarations provide as much contextual information as can be disclosed without presenting a risk to national security; national security exemptions are appropriate to protect intelligence activities and intelligence methods, and disclosure could jeopardize our relationships with foreign governments) (Exemption 7 (threshold): documents compiled by a law enforcement agency are documents compiled for law enforcement purposes) (Exemption 7(D): applying Landano, finds that in some instances information was properly withheld because sources were given express promises of confidentiality; it is unlikely that nonfederal law enforcement agencies would share information with the FBI about matters under active investigation without an assumed assurance of confidentiality; there is no indication that private individuals or employees of nonlaw enforcement organizations anticipated that their communications would be held in confidence; in 8 records, court finds that private individuals or employees of nonlaw enforcement organizations had a reasonable expectation of confidentiality based upon the nature of the information provided, their relationship to the subject of investigative interest, and their expressed intention concerning future cooperation with the FBI).

Schulte v. VA, No. 86-6251 (S.D. Fla. Feb. 2, 1996) (Exemption 3 [38 U.S.C. 5705]: disclosure of mortality data for cardiac surgery programs compiled by the VA as part of its medical quality assurance program would "implicitly or explicitly identify" the head cardiac surgeon at VA facilities with only one attending VA head surgeon).

Schwarz v. Dep't of Justice, No. 95-2162 (D.D.C. May 31, 1996) (res judicata: plaintiff's claims concerning documents at issue in earlier litigation in Utah are barred by the principles of res judicata) (duty to search: defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request) ("not an agency" defense: the FOIA applies only to agencies of the United States, not to agencies of foreign governments) (Exemption 2 "low": protects an investigative file number and an "ORI" number, because they are of merely internal significance) (Exemption 7 (threshold): threshold requirement met by records compiled by INTERPOL as part of an investigation of a missing person) (Exemptions 6 and 7(C): protect the identities of INTERPOL employees and a third party) (Exemption 7(D): applying Landano, finds that the exemption protects the identity of a foreign confidential source who provided information under an express assurance of confidentiality) (waiver of exemption: inadvertent release of information does not constitute waiver of the applicable FOIA exemption).

Scott v. CIA, 916 F. Supp. 42 (D.D.C. 1996) (jurisdiction: court lacks jurisdiction on counts where plaintiff concedes he has not exhausted his administrative remedies and where plaintiff concedes the government has no records responsive to his FOIA request) (Vaughn Index: CIA must produce a revised Vaughn Index; court is unable to review CIA's classification decisions because its Index fails to provide any description of the nature or type of material redacted and how it meets the requirements of the exemption; while the CIA would like to produce a classified affidavit, it must first create as full a public record as possible; documents referred to the originating agency for review and direct response should also be included in the revised affidavit; while the court has no quarrel with the specificity of the FBI's affidavit, the FBI must produce a comprehensive index of the documents withheld along with the justification for withholding the information) (duty to search: CIA must respond to plaintiff's allegation that it failed to search 7 named files) (waiver: plaintiff must provide the government with a specific list of information allegedly in the public domain and the government shall release any information already in the public domain or provide an explanation for the continued withholding of that information).

Sheaffer v. Dep't of Justice, No. 92-10470 (D. Mass. Apr. 28, 1995) (magistrate's recommendation) (grants summary judgment to defendant; after conducting searches reasonably calculated to uncover documents responsive to plaintiff's FOIA requests, agency was unable to find any records), adopted (D. Mass. Feb. 5, 1996).

Smith v. Reno, No. 93-1316, 1996 U.S. Dist. LEXIS 5594 (N.D. Cal. Apr. 23, 1996) (exhaustion: plaintiff has failed to exhaust her administrative remedies; she sent a FOIA request for HUD reports to the National Records Administration, which is not a HUD information center; plaintiff does not allege that she has ever requested or been denied records from the Justice Department).

Stabasefski v. United States, 919 F. Supp. 1570 (M.D. Ga. 1996) (fees (Reform Act): defendant concedes that it violated the advance payment provision when it required plaintiff to prepay a portion of the copying costs associated with his FOIA request; the FOIA does not provide any relief for the plaintiff for such a violation, because, contrary to his argument, he does not have a right to view processed records and refuse to pay if dissatisfied with excisions; denies plaintiff reimbursement of his fees; enjoins agency from requiring prepayment of fees unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250) (Exemption 6: the disclosure of the names of FAA employees who received Hurricane Andrew subsistence payments would be a "clearly unwarranted invasion of personal privacy"; vouchers are "similar to" personnel files because they contain names, addresses, and social security numbers of, and financial information about, FAA employees; disclosure implicates a substantial privacy interest; public interest in understanding the activities of the FAA is not served by the disclosure of this information).

Superior Home Health Care v. HHS, No. 1:94-103 (E.D. Tenn. Feb. 29, 1996) (attorney fees: assuming plaintiff is eligible for an award of attorney fees, it is "in no way" entitled to such an award; disclosure of documents of an audit of plaintiff performed by a government intermediary in 1986 will benefit the plaintiff individually; records do not serve a higher public purpose; plaintiff stands to gain a substantial commercial benefit by being able to review the records; agency did have a reasonable basis for withholding the documents, in light of the government's investigation into plaintiff's business practices; attorney fees denied).

Szymanski v. DEA, No. 93-1314 (D.D.C. Apr. 19, 1996) (case dismissed; tape recording sought by plaintiff was destroyed by the DEA as part of its normal records disposal procedures prior to plaintiff filing this suit).

Tamayo v. Dep't of Justice, 932 F. Supp. 342 (D.D.C. 1996) (Exemption 2 "high": disclosure of source symbol numbers, computer access codes, case numbers, and violator identifier numbers would risk circumvention of agency regulations or statutes) (Exemption 7 (threshold): threshold requirement met by records compiled during criminal investigation of plaintiff for the distribution of illegal narcotics) (Exemption 7(C): protects the identities of agents and support personnel at the FBI, DEA, and Customs Service, nonfederal law enforcement officers, and subjects of investigative interest) (Exemption 7(D): applying Landano, finds that the exemption protects the identities of and information provided by symbol-number sources) (Exemption 7(F): protects the identities of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers) (duty to search: defendants conducted searches reasonably calculated to uncover all relevant documents).

Tanks v. Huff, No. 95-568, 1996 WL 293531 (D.D.C. May 24, 1996) (Exemption 7(C): agency properly refused to confirm or deny the existence of records about 2 individuals who testified at plaintiff's criminal trial that plaintiff seeks in order to mount a collateral attack on his conviction; there is no question of agency misconduct in the performance of its duties) ((c)(2) exclusion: the (c)(2) exclusion has no bearing on this case, where the status of 2 individuals as government informants is confirmed and the individuals did not sign a privacy waiver; the exclusion is principally intended to permit an agency to avoid giving a response to a FOIA request that would identify a named party as a confidential informant).

Tax Analysts v. Dep't of Justice, 913 F. Supp. 599 (D.D.C. 1996) (agency record: the West-provided portion of JURIS, the Justice Department's defunct electronic legal research database, is not an "agency record" under the FOIA; the West-provided data was not under the "control" of the Department when plaintiff made its FOIA request; while the Department "possessed" the data, it was contractually prohibited from "us[ing] and dispos[ing] of" it as the Department saw fit; plaintiff's narrow views of the contract's restrictions are rejected as a matter of contract interpretation).

Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259 (D.D.C. Mar. 15, 1996) (subsection (a)(2): Field Service Advice (FSA) memoranda prepared by the Office of the Chief Counsel and the Exempt Organization and International Divisions are routinely used by agency staff as guidance in conducting their audits and are used in the field to ensure that there will be some uniformity in positions taken; FSAs are "statements of policy and interpretation which have been adopted" by the agency, even though agency recipients are not required to follow the advice and in fact some do not) (Exemption 3 [26 U.S.C. 6103(b)]: while FSAs contain some "return information," they do not in themselves constitute "return information"; documents may be redacted and then placed in reading room) (Exemption 5: the deliberative process privilege does not protect FSAs, since they are post-decisional documents and represent the "working law" of the agency and interpretations of agency regulations; the attorney-client privilege does not protect FSAs because Chief Counsel attorneys are not counseling the agency to protect its interests, but rather writing "neutral, objective analyses of agency regulations"; 309 FSAs were prepared in anticipation of litigation; IRS may exclude only those portions of these FSAs that concern the "mental impressions, conclusions, opinions, or legal theories of an attorney").

Tax Analysts v. IRS, No. 94-923 (D.D.C. May 30, 1996) (attorney fees: because plaintiff was awarded all requested relief, there is no question that it substantially prevailed; there is great public benefit in publishing what is, in effect, the working law of the IRS; while this news organization will profit from the release of Field Service Advice (FSA) memoranda, the commercial benefit does not preclude an award of attorney fees; government had a reasonable basis in law for withholding the FSAs; $310 per hour is a reasonable rate for the lead attorney; fees are not recoverable for time spent on issues on which plaintiff did not ultimately prevail; an attorney who worked on this case before he became a member of a bar can be compensated only at the hourly rate for a law clerk, not at the hourly rate for an attorney; reduces the paralegal hourly rate claimed for an individual with no formal paralegal training; grants attorney fees in the amount of $120,769 and costs in the amount of $7120.83).

Tel. Publ'g Co. v. Dep't of Justice, No. 95-521 (D.N.H. Mar. 29, 1996) (magistrate's recommendation) (Vaughn Index: in this FOIA case for a wide variety of records relating to the prosecution of 3 Nashua alderman where the agency sought to withhold documents under Exemptions 6 and 7(C), orders production of a Vaughn Index containing a relatively detailed explanation as to the withheld documents, asserting the applicability of the exemptions and correlating the exemption claims with the particular part of the withheld documents to which they apply).

Thomas v. Office of the United States Attorney, 928 F. Supp. 245 (E.D.N.Y. 1996) (Exemption 7(C): defendant properly refused to confirm or deny the existence of records concerning a former Assistant District Attorney's connections with an organized crime family; the possibility that this information might be helpful to plaintiff in his collateral attack on his conviction for murder does not give rise to a public interest).

Traslavina v. United States Customs Serv., No. 94-1242 (D.D.C. Apr. 10, 1996) (agency made an adequate search for records responsive to plaintiff's FOIA request; agency properly applied Exemptions 2, 7(C), 7(D), and 7(F) to those records; plaintiff cannot amend his FOIA request during the litigation process).

United Techs. Corp. v. FAA, No. 3:93-1223 (D. Conn. Nov. 2, 1995) (magistrate's recommendation) (waiver of exemption: 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) (Exemption 4: disclosure of design drawings will cause substantial competitive harm by revealing the methods aircraft manufacturers use to engineer certain jet-engine parts; applying Critical Mass, on in camera inspection finds that redacted information was voluntarily submitted to the FAA and is not of the kind that the provider would customarily release to the public; redacted information also satisfies the competitive harm prong of National Parks), adopted (D. Conn. Jan. 5, 1996).

Urban v. United States, No. 95-5027 (D.S.D. Apr. 26, 1996) (denies government's motion for summary judgment; government must provide the plaintiff with a copy of the results of his polygraph test by May 6, 1996; plaintiff requested this information from the Kansas Bureau of Investigation and the Assistant United States Attorney working on the case responded stating that his office had no records responsive to plaintiff's FOIA request; this demonstrates that the record may be physically held by the Kansas Bureau of Investigation, but it is in the custody of the United States Attorney's Office).

Viacom Int'l, Inc. v. EPA, No. 95-2243, 1996 U.S. Dist. LEXIS 1069 (E.D. Pa. Jan. 29, 1996) (Exemption 6: denies defendant's motion for reconsideration; since testing data was concerned only with attributes of property and not individuals, it was not contained in "personnel and medical files and similar files"; disclosure of the addresses of the testing locations would be a serious invasion of personal privacy; however, the need of the public to know the manner in which EPA is carrying out its Superfund responsibilities outweighs this privacy interest).

Viacom Int'l, Inc. v. EPA, No. 95-2243 (E.D. Pa. Apr. 30, 1996) ("clarifies" November 17, 1995 opinion and order; plaintiff's motion for summary judgment is granted only to the extent that plaintiff's FOIA request seeks home addresses for the purpose of connecting soil and dust samples with the actual locations in which they were collected; plaintiff may in no way use the home addresses to contact and harass the homeowners; disclosure order is stayed pending resolution of defendant's appeal).

Vild v. IRS, No. 94-2499, 1996 U.S. Dist. LEXIS 3785 (D. Ariz. Mar. 15, 1996) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information).

Weatherhead v. United States, No. 95-519 (E.D. Wash. Mar. 29, 1996) (Exemption 1 [E.O. 12,958]: agency's affidavit does not demonstrate that there was a contemporaneous expectation of confidentiality by the British Home Office when it sent a letter to the United States Justice Department relating to the extradition and prosecution of two women; there has been no showing that there was a presumption of confidentiality under predecessor E.O. 12,356; the United States Departments of Justice and State did not treat the letter as confidential by classifying it at the time of receipt; although the British government now objects to the release of this letter, finds that agency's affidavit does not provide a particularized explanation of how disclosure of this letter would damage relations between the United States and the United Kingdom; declarations do not adequately address the issue of segregability; letter must be released).

W. Journalism Ctr. v. Office of the Indep. Counsel, 926 F. Supp. 189 (D.D.C. 1996) (duty to search: the Independent Counsel has made an adequate search in response to plaintiff's FOIA request for records relating to the death of Deputy White House Counsel Vincent Foster) (Exemption 7 (threshold): threshold requirement met by documents obtained from the FBI and the Park Police, compiled during an active investigation and made part of the Independent Counsel's continuing investigation) (Exemption 7(A): Independent Counsel's generic affidavit demonstrates that this information is part of an ongoing investigation and premature disclosure could reasonably be expected to interfere with this investigation) (court believes that "the statute makers" should have given the Independent Counsel a particularized exemption because all of its investigations, by definition, are ongoing; at the completion of the Independent Counsel's term of office all of its records are turned over to the Archivist and at that time would be subject to FOIA requests).

Wickline v. FBI, 923 F. Supp. 1 (D.D.C. 1996) (Exemption 7(C): protects personal data about interviewees and third parties) (Exemption 7(D): applying Landano, protects information provided by interviewees who had a sufficiently close relationship to plaintiff's crimes and to plaintiff to support an implied promise of confidentiality).


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