USDOJ: OIP: FOIA Post
Files moving from File cabinet to Computer


New FOIA Decisions, July-September 2002

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

Belle v. FBI, 46 F. App'x 326 (6th Cir. 2002) (the district court properly dismissed this FOIA action where plaintiff filed a Complaint against 60 defendants -- including the FBI, Manuel Noreiga, Osama Bin Laden, and President Bush -- because the allegations were "both fantastic and delusional").

Casad v. HHS, 301 F.3d 1247 (10th Cir. 2002) (Exemption 5: "summary statement" is a predecisional, deliberative communication in the NIH funding process; the fact that no other document in the grant process "explain[s] the reasons" for the funding decision does not deprive the summary statement of its protective status; whether or not a peer group is an "agency" for purposes of the FOIA, its lack of funding authority brings the "summary statement" within the protection of Exemption 5) (considerations on appeal: issue of district court's denial of requester's motion to expedite its ruling is moot).

City of Chicago v. United States Dep't of Treasury, 297 F.3d 672 (7th Cir. 2002) (Exemption 7(A): in this FOIA action where requester seeks information in ATF gun-trafficking databases, denies government's petition for rehearing en banc and amends its April 25, 2002, opinion by adding only one paragraph; it would be contrary to the Supreme Court's holding in Robbins Tire & Rubber Co. v. NLRB, 437 U.S. 214 (1978), to require ATF to identify a specific instance in which the release of information has interfered with enforcement proceedings; ATF must demonstrate that release of this information would present a "substantial, realistic risk of interference" with a law enforcement proceeding, and instead has provided the court "with only far-fetched hypothetical scenarios").

Ferranti v. ATF, No. 01-5451, 2002 WL 1461795 (D.C. Cir. July 8, 2002) (per curiam) (on court's order to show cause, orders the government within 10 days to address whether "large blank spaces" in the records at issue are FOIA redactions, and if they are, agency must address with specificity the applicability of Exemptions 2 and 7(C) to the redacted information).

Garcia v. United States Dep't of Justice, No. 02-6040 (2d Cir. July 25, 2002) (appeal dismissed as frivolous in this FOIA action where the district court found that the FBI properly withheld information about plaintiff under Exemptions 3 (Rule 6(e)), 7(C), 7(D), and 7(F)).

Giraldo v. United States Dep't of Justice, No. 02-5058 (D.C. Cir. July 8, 2002) (per curiam) (summary affirmance granted in this FOIA action where the district court found that the agency had demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request and that no records were found).

Herrick v. Garvey, 298 F.3d 1184 (10th Cir. 2002) (Exemption 4: affirms district court's ruling that exemption protects aircraft certification materials, consisting of aircraft blueprints and drawings, that were submitted to the FAA's predecessor 65 years ago, because they are "trade secrets"; Fairchild Corporation has demonstrated that it owns the documents at issue by showing a corporate "chain-of-ownership" from the original owner; information still is a "trade secret" because corporation reversed a 1955 authorization to disclose aircraft drawings to an individual and, thus, restored the exempt status of the materials).

Hidalgo v. Bureau of Prisons, No. 01-5257, 2002 WL 1997999 (D.C. Cir. Aug. 29, 2002) (per curiam) (grants government's motion for summary affirmance; the Bureau of Prisons demonstrated that it conducted an adequate search for records in response to plaintiff's FOIA request, that it properly withheld documents or document portions, and that it released all reasonably segregable, nonexempt information).

Maine v. United States Dep't of the Interior, No. 01-1234, 2002 WL 1728638 (1st Cir. July 30, 2002) (Exemption 5: in an amended opinion in this FOIA action where plaintiff requested information concerning a proposal to list as endangered the Atlantic salmon populations of 8 Maine rivers, finds that it was error for the district court to adopt "the primary factor" test for withholding records under the attorney work-product privilege; however, the district court's ruling remains unaffected because the agency's affidavit fails to demonstrate that any particular document was prepared for litigation and fails to correlate each document to "the litigation for which the document was created"; vacates as moot that portion of district court opinion concerning documents subject to in camera review and the factual material contained in 19 documents otherwise protected by the attorney work-product privilege, because Maine withdraws its request for them; rules that 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 for all but one document).

Missouri v. United States Dep't of Interior, 297 F.3d 745 (8th Cir. 2002) ("not an agency record" defense: affirms district court's ruling; records maintained by a regularly salaried federal employee of the United States Fish and Wildlife Service who was acting as the full-time coordinator of a nonprofit organization with whom the Service has a "cooperative" relationship are not "agency records" for purposes of the FOIA; plaintiff has not established the requisite nexus between the nonprofit organization's records and the Service's performance of its official agency duties; the Service did not create, obtain, or control the records; responsive records maintained in the Service's files were offered to plaintiff).

Proctor v. Ashcroft, No. 02-5098, 2002 WL 1635349 (D.C. Cir. July 23, 2002) (grants government's motion for summary affirmance in this FOIA action; agency conducted a reasonable search in response to FOIA request, properly withheld the names of FBI Special Agents under Exemption 7(C), submitted an adequate Vaughn Index, and released all reasonably segregable, nonexempt information).


District Courts

Aftergood v. CIA, 225 F. Supp. 2d 27 (D.D.C. 2002) (statute of limitations: court lacks subject matter jurisdiction because plaintiff constructively exhausted his administrative remedies in July 1995 and filed his Complaint with the court 5 months after the 6-year statute of limitations for his FOIA request expired; finding that plaintiff has already "resurrected" his claim by filing new FOIA request that is "substantially similar" to his July 1995 request, court grants plaintiff's motion to file a supplemental complaint based on the 2002 FOIA request, effectively allowing him to "resurrect" the claim dismissed pursuant to the statute of limitations).

Allen v. Fed. Bureau of Prisons, No. 00-342 (D.D.C. Mar. 1, 2001) (proper party defendant: proper party defendant in a FOIA action is the agency) (discovery in FOIA litigation: grants plaintiff's unopposed motion for discovery of printouts of the dates and times of telephone calls that plaintiff made to his attorney in 1998 from plaintiff's place of incarceration; within 30 days, defendant must submit printouts to plaintiff and the court).

Allen v. Fed. Bureau of Prisons, No. 00-342 (D.D.C. Aug. 26, 2002) (duty to disclose: while defendant does not possess and may never have possessed transcripts of telephone conversations between plaintiff and his attorney, defendant is ordered to provide plaintiff with cassettes containing recordings of all of the calls made to his attorney's telephone numbers within 30 days; within 30 days, defendant also must provide a list of all telephone calls contained in the tapes and a printout showing calls to his attorney's telephone numbers within the designated time frame) (sanctions: because while plaintiff's FOIA request was pending the prison taped over some of the telephone conversations that plaintiff had requested, defendant must reimburse plaintiff's filing fee and all postage and copying costs; cassette recordings shall be provided free of charge as well).

Am. Lawyer Media, Inc. v. SEC, No. 01-1967, 2002 U.S. Dist. LEXIS 16940 (D.D.C. Sept. 6, 2002) (waiver: SEC did not waive its right to withhold portions of the nonpublic version of its FOIA/PA training manual when its FOIA/PA Officer permitted plaintiff to review the manual during a training conference, because plaintiff has not established that the manual was in the public domain) (Exemption 2 "high": protects exhibits to the manual containing explanations of SEC's internal computerized databases and excerpts of indices to confidential historical information, because "disclosure of this material would create a great security risk to SEC computer and operations systems, allowing a member of the public to hack into computer systems and 'circumvent[] agency regulation' or statutes"; Exemption 2 "low": protects exhibits consisting of blank forms and instructions used internally in the processing of FOIA requests, the manual's table of contents, and sections of the manual discussing the administrative steps in handling FOIA requests, because they are of no public interest; does not protect one exhibit containing a list of codes indicating the disposition of FOIA requests, because this information is of general public interest) (Exemptions 2 "high" and 5: do not protect 2 terms defined in the Definitions section or 2 manual sections illustrating how the exemptions apply to different types of SEC records, because this constitutes general legal instructions to the SEC staff; protect sections of the manual relating to internal referral memoranda) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Bey v. FBI, No. 01-0299 (D.D.C. Aug. 2, 2002) (Exemption 7(C): does not protect most of a list of telephone numbers, captured on a court-ordered pen register, that were dialed from a telephone in plaintiff's house from April to July 1986; most of the numbers are a matter of public record because they were made public in open-court testimony at plaintiff's criminal trial and must be disclosed on that basis; FBI must release the numbers that were disclosed at trial within 30 days).

Boers v. Mueller, No. 01-2497 (D.D.C. July 9, 2002) (plaintiff's motion for reconsideration denied where court earlier found that he failed to exhaust his administrative remedies because he had not paid the duplication fees associated with his FOIA request).

Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Or. 2002) (mootness: in this case where plaintiffs sought judicial review of an agency's final decision concerning the remains of "Kennewick Man," finds that the FOIA issue is moot because all of the responsive information is included in the 22,000-page administrative record).

Campaign for Responsible Transplantation v. FDA, 219 F. Supp. 2d 106 (D.D.C. 2002) (adequacy of search: agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request) (Vaughn Index: in this request where plaintiff seeks more than 240,000 pages, finds that agency's sample Vaughn Index is not adequate because it does not provide adequate document descriptions nor sufficient information to provide a clear indication of the justification for each exemption; agency must submit one complete sample Vaughn Index by November 10, 2002; to the extent that parties can reach agreement about additional documents, the FDA need not include those records in the new Vaughn Index).

Cantres v. FBI, No. 01-1115 (D. Minn. June 21, 2002) (magistrate's recommendation) (jurisdiction: court lacks jurisdiction because the FBI has not improperly withheld agency records from plaintiff), adopted (D. Minn. July 12, 2002).

Casad v. HHS, No. 00-1340 (D. Kan. July 31, 2001) (magistrate's recommendation) (Exemption 5: deliberative process privilege protects redacted portions of the "summary statement" associated with NIH's funding of a research training grant, because it is both deliberative and predecisional; information withheld is the evaluative opinion and recommendation of an outside peer review group concerning the scientific merits of the grant application and was the first of 2 levels of review before the ultimate decisionmaker made the final decision concerning funding; privilege was not waived when the report was given to the grant applicant, because this routine sharing is intended to improve and refine the scientific research project and to allow the applicant to rebut adverse comments) (sanctions: denies plaintiff's request that defendant be sanctioned for making false representations; defendant's response to plaintiff's motion to amend was reasonable), adopted with additional reasoning (D. Kan. Oct. 12, 2001) ("not an agency" defense: Initial Review Groups are not "agencies" within the meaning of the FOIA).

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (Exemption 7(A): in this FOIA action for information concerning over 1000 individuals detained in connection with the terrorist acts of September 11, 2001, court observes that "[d]ifficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability, and the rule of law"; this exemption does not protect the names of the detainees and their attorneys, because the government has not demonstrated that disclosure of the names could deter cooperation of knowledgeable witnesses, could enable a terrorist group to piece together innocuous pieces of information to build a "mosaic" of the investigation, or could enable terrorists to create false evidence; exemption protects the dates and locations of arrest, detention, and release of detainees because disclosure could provide insights into the patterns and strategy of the government investigation) (Exemptions 7(C) and 7(F): balancing the detainees' substantial privacy interests against the public interest in verifying that the government is operating within the bounds of the law, finds that the exemptions do not justify the withholding of names; however, because of the legitimate privacy and safety concerns of the detainees, rules that those who wish to keep their names confidential may "opt out" of public disclosure by submitting a signed statement to that effect within 15 days; exemptions do not protect the identities of detainees' attorneys, noting that they are a "hardy lot," so these must be released within 15 days) (Exemption 3 [Rule 6(e)]: disclosure of the identities of the material witnesses would not reveal some secret aspect of grand jury proceedings; government must submit for in camera inspection the sealing orders prohibiting the release of some of the names within 15 days) (Exemption 7(F): disclosure of the dates and locations of arrest, detention, and release of detainees would make detention facilities and their occupants vulnerable to retaliatory attacks) (duty to search: government did not conduct an adequate search for any policy directives or guidance concerning the detainees; government must conduct an additional search and file a supplemental report within 30 days).

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 217 F. Supp. 2d 58 (D.D.C. 2002) (grants government's motion for a stay during the pendency of its appeal (government has promised to seek expedited consideration), in this FOIA action where the court had ordered the release of the identities of the individuals detained in connection with the terrorist acts of September 11, 2001, and their attorneys).

Collins v. Kessler, No. C 02-1811, 2002 U.S. Dist. LEXIS 15464 (N.D. Cal. Aug. 19, 2002) (agency: the FOIA applies to federal agencies, not to state agencies).

Collins v. Khoury, No. C02-1566, 2002 WL 1941150 (N.D. Cal. Aug. 6, 2002) (agency: the FOIA applies to federal agencies, not to state agencies).

Davis v. United States Dep't of Justice, No. 88-0130 (D.D.C. July 23, 2002) (in accordance with proceedings in open court on July 23, 2002, denies plaintiff's motion for discovery and, applying Buckhannon Bd. & Care Home, Inc., denies his motion for attorney fees).

Dupre v. FBI, No. 01-2431, 2002 WL 1446710 (E.D. La. July 2, 2002) (government's motion for reconsideration denied in this FOIA action where the court ruled 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; government must release the information to plaintiff within 10 days).

Fonzone v. Dep't of the Treasury, No. 02-CV-173, 2002 U.S. Dist. LEXIS 15729 (E.D. Pa. July 8, 2002) (Exemption 3 [26 U.S.C. 6103]: protects third-party tax return information).

Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-00052 (D. Idaho Mar. 17, 2000) (Exemption 6: disclosure of names, addresses, and ownership interest in land on an Indian reservation would be a "clearly unwarranted invasion of personal privacy"; information constitutes a "similar file"; landowners have a privacy interest in their names, addresses, and ownership interest and disclosure would not shed light on the agency's performance of its statutory responsibilities) (waiver of exemption: exemption was not waived when agency inadvertently released this information to an outside entity; agency recognized its error and took corrective action).

Giraldo v. United States Dep't of Justice, No. 01-0996 (D.D.C. Jan. 16, 2002) (duty to search: agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request and that no records were found).

Judicial Watch, Inc. v. United States Dep't of Justice, No. 99-1234 (D.D.C. July 31, 2002) (duty to search: on renewed motion for summary judgment finds that the Justice Department's Executive Secretariat and Office of Legal Counsel conducted reasonable searches in response to plaintiff's FOIA request for information about the Commerce Department's trade missions from 1993 to the present).

Judicial Watch, Inc. v. FBI, No. 01-1216 (D.D.C. July 26, 2002) (jurisdiction: FOIA action dismissed because court lacks subject-matter jurisdiction; 12 business days after filing an expedited request for newly discovered material generated during the investigation of the Oklahoma City bombing, plaintiff prematurely filed a Complaint that pertained solely to the actual release of the documents; plaintiff is not allowed to "bootstrap" onto its expedited access request in an effort to get into court prior to end of 20 working days; although it appears that the FBI subsequently failed to respond to plaintiff's substantive request for records within 20 business days, finds that it is not necessary to allow plaintiff to file an amended complaint because it "can simply refile his FOIA request tomorrow and restart the process").

Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F. Supp. 2d 20 (D.D.C. 2002) ("not an agency" defense: the Vice President and his staff are not "agencies" for purposes of FOIA).

Keen v. FBI, No. 98-2658 (D.D.C. July 9, 2002) (magistrate's report) (recommends that court reinstate plaintiff's FOIA request as of September 11, 1997, to be processed in conformance with applicable laws; FBI improperly administratively closed plaintiff's FOIA request based on plaintiff's failure to respond to FBI's suggestion that he narrow the scope of his request).

Kelly v. CIA, No. 00-2498 (D.D.C. Aug. 8, 2002) (Exemption 1 [E.O. 12,958]: CIA properly refused to confirm or deny the existence of any records reflecting a covert relationship between the CIA and UCLA because disclosure of whether such records (and activity) exist in relation to any particular academic institution would reveal intelligence sources and methods and would damage national security; exemption protection is not waived by 2 agency memoranda that are general discussions of the CIA's overt and covert relationships with academic institutions in general that have nothing to do with the any specific relationship with UCLA; information is exempt from the executive order's automatic disclosure provision for records over 25 years old, because disclosure would reveal intelligence sources and methods and would damage national security; a senior agency official made the determination that confirming or denying the existence of agency records about any possible covert relationship or releasing some of the identified records about an overt CIA relationship with UCLA would be contrary to the public interest and it is not subject to judicial review; in Sims v. CIA, 471 U.S. 159 (1985), the Supreme Court held that institutions and individuals who performed research for the MKULTRA project are intelligence sources and their identities may be withheld) (Exemption 3 [50 U.S.C. 403-3(c)(7)]: confirming or denying the existence of a covert relationship between the CIA and UCLA would reveal intelligence sources and methods and threaten national security; protects names of MKULTRA researchers and the institutions for which they worked within records reflecting overt CIA/UCLA contacts; [50 U.S.C. 403g]: protects the names and signatures of CIA employees, CIA organizational information and budgetary details, and information that would identify the precise nature of CIA's overt relationship with UCLA; [50 U.S.C. 431(a)]: CIA must search its operational files concerning MKULTRA, making all releasable information available to plaintiff, because MKULTRA has been the subject of numerous government investigations) (Exemption 5: the deliberative process privilege protects 39 Victim Task Force records that contain advice and recommendations and that were generated before the adoption of the CIA program for the unwitting drug testing subjects; the deliberative process and attorney-client privileges protect in its entirety a letter from the CIA's General Counsel to the CIA Deputy Director concerning the potential availability of agency funds to provide a grant to UCLA for an academic program; the letter provides legal advice to the Deputy Director on the use of agency funds and is confidential because the CIA budget is not a matter of public record; letter contains the General Counsel's suggestions and recommendations on a matter prior to a final decision; there has been no prior disclosure of this information; the attorney-client privilege protects 45 Victim Task Force records because the information withheld was communicated by or to an attorney in order to provide the CIA with confidential advice on the legal ramifications and strategies for dealing with the unwitting subjects of MKULTRA drug testing; the attorney work-product privilege protects 36 Victim Task Force records because once the CIA knew it had a legal obligation to notify the subjects of MKULTRA drug testing, it recognized that it faced the possibility of litigation from at least some individuals who would claim that they had been harmed by the drug tests; Exemption 5 privileges were not waived by the Director of the CIA during his 1977 Senate testimony; all reasonably segregable, nonexempt information has been released) (res judicata: plaintiff is not precluded from litigating his claim for information concerning the CIA's 1978 investigation into MKULTRA because his interests were not adequately represented in the prior litigation in the United States District Court for the District of Massachusetts) (Exemption 6: protects the identities of law enforcement agents and the test subjects and their families; while the public interest in MKULTRA "is certainly very high," knowing the names of the unwitting test subjects and the law enforcement agents would not directly shed any light on the MULTRA program; court will not order the disclosure of names of deceased individuals involved with MKULTRA, because the plaintiff has not demonstrated a public interest in their names).

Kelly v. CIA, No. 00-2498 (D.D.C. Sept. 25, 2002) (grants defendant's motion for clarification of court's August 8, 2002, memorandum and order; CIA must search and review only Victim's Task Force records, not the records of the entire MKULTRA project).

Kendrick v. Executive Office for United States Attorneys, No. 00-1809 (D.D.C. Aug. 1, 2002) (grants, as conceded, FBI's unopposed motion for summary judgment).

Maxwell v. O'Neill, No. 00-1953, 2002 U.S. Dist. LEXIS 19033 (D.D.C. Sept. 12, 2002) (adequacy of request: when plaintiff failed to send his FOIA request to the proper IRS office, IRS regulations required it to forward the request to the appropriate IRS bureau; portions of plaintiff's FOIA request that seek "return information" provided the IRS with a reasonable description of the records sought and it must process these portions; the IRS has no obligation to further respond to portions of the request that are "overly broad and burdensome").

McDonnell Douglas Corp. v. United States Dep't of the Air Force, 215 F. Supp. 2d 200 (D.D.C. 2002) ("Reverse" FOIA/Exemption 4: company's submission of cost and pricing information to the agency was required in order to complete the Request for Proposal in its bid for a government contract, so Critical Mass test does not apply; applying National Parks test, finds that disclosure would not harm the government's ability to obtain this information in the future; employing government's case-by-case approach to determining Exemption 4's applicability to "unit prices" and similar pricing information, finds that company has not shown that disclosure of option prices, vendor pricing and handling factor, and "over and above" prices would likely cause substantial harm to its competitive position).

McSheffrey v. Executive Office for the United States Attorneys, No. 98-0650, 2002 U.S. Dist. LEXIS 13574 (D.D.C. July 22, 2002) (Exemption 7(C): protects the identities of third parties contained in 2 pages of criminal background checks for prospective visitors to plaintiff during his confinement in a federal prison; plaintiff makes no showing that the requested information is in the public domain; agency may withhold entire pages because it could not produce any meaningful segregable information).

Office of the Capital Collateral Counsel v. United States Dep't of Justice, No. 8:00-1793 (M.D. Fla. June 28, 2002) (in response to the government's request for a stay of enforcement of court's amended order dated April 1, 2002, grants a limited stay of 60 days "out of an abundance of caution"; finds that defendant has not made a strong showing that it is likely to succeed on appeal, denial of the stay will not cause the government irreparable injury as the documents concern events subject to widespread publicity, no interested party will be harmed by the failure to issue a stay, and a further delay is not in the public interest).

Office of the Capital Collateral Counsel v. United States Dep't of Justice, No. 8:00-1793 (M.D. Fla. June 28, 2002) (attorney fees: finds, without specifying facts to demonstrate eligibility, that plaintiff has substantially prevailed in this litigation; release of records will enable the public to evaluate government attorney's misconduct, the Justice Department's investigation of her, and its reaction to her misconduct; neither plaintiff, a state agency, nor its client will receive a commercial benefit from disclosure of the records; interest in the records, while "personal" to the client, was not "personal" to the state agency; defendant's delay in responding to plaintiff's administrative appeal and its initial assertion that it could neither confirm nor deny the existence of records were "unreasonable," although it did have a reasonable basis for its later redactions; plaintiff has submitted adequate documentation to justify an award of $47,726.50 in attorney fees and $2129.21 in costs).

Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772 (S.D.N.Y. Aug. 13, 2002) (magistrate's recommendation) (agency: the FOIA applies to federal agencies, not to state agencies or individuals).

Pub. Citizen, Inc. v. Dep't of Educ., No. 01-2351 (D.D.C. June 17, 2002) (Exemption 6: in this FOIA action where plaintiff seeks names and addresses of certain student loan borrowers who are potentially eligible for loan discharges, finds that the requested information must be released in 20 days, with the exception of personal information, including Social Security numbers, that exceeds the scope of plaintiff's request; borrowers have a minimal privacy interest in the disclosure of their identities; there are substantial monetary benefits that student loan borrowers would directly gain from disclosure of this information and it is likely that many borrowers are unaware that they were improperly denied loan discharges; the release of the requested information will further the public interest by disclosing the extent to which the Department of Education is complying with its statutory duties regarding the discharge of student loans) (failure to meet time limits: the amended FOIA does not contain a mandatory notice provision directing agencies unable to respond to FOIA requests within the 20-day statutory time period to give requesters written notice setting forth the "unusual circumstances" that justify the agency's need for additional time and the date on which the determination is expected to be made; plaintiff's arguments have no support in the statute's language or in the legislative history).

R&W Flammann GmbH v. United States, 53 Fed. Cl. 647 (2002) ("Reverse" FOIA/Exemption 4: in this action where the Army, after deciding not to exercise the option under plaintiff's service contract, released its unit prices (including pricing information regarding unperformed option years) to one company with whom plaintiff is competing under a new solicitation of a substantially similar contract, the court observed that while the pricing information was in the public domain and "generally subject" to release under the FOIA, defendant was duty-bound by the Federal Acquisition Regulations (FAR) not to release the unit prices in the face of "an appearance or perception of impropriety"; the "prime directive of the contracting officer" is to ensure that contractors receive "impartial, fair, and equitable treatment" at each stage of the contracting process by providing a "level playing-field for all bidders"; grants plaintiff's motion for a permanent injunction voiding the pending solicitation; orders that upon resolicitation plaintiff's unit prices be disclosed to all other bidders, plaintiff must receive the comparable prices of all other bidders of the initial solicitation, and a third company that objected to the appearance of impropriety must be given the opportunity to participate again).

Robinett v. United States Postal Serv., No. 02-1094, 2002 WL 1728582 (E.D. La. July 24, 2002) (exhaustion: plaintiff has exhausted his administrative remedies for evaluation material related to his application for employment with the United States Postal Service because while the focus of his administrative appeal was on one aspect of the records denied, the appeal was broad enough to cover the second aspect as well) (Exemption 3 [39 U.S.C. 410(c)(2)]: the Postal Reorganization Act qualifies as an Exemption 3 statute under Subpart (B), not Subpart (A); exemption protects testing materials reflecting the Postal Service's evaluation of plaintiff's employment application) (in camera inspection: in camera inspection is not necessary because the content of the documents is not disputed).

Sandgrund v. SEC, 215 F. Supp. 2d 178 (D.D.C. 2002) (Vaughn Index: grants, in part, plaintiff's motion for a supplemental Vaughn Index; descriptions of documents withheld under Exemption 7(A) in agency's Vaughn Index in 3 categories are too broad and generic to permit "meaningful review").

Schrecker v. United States Dep't of Justice, 217 F. Supp. 2d 29 (D.D.C. 2002) (duty to search: in this FOIA action where an historian seeks information about 2 individuals who were investigated by the Justice Department during the McCarthy era, finds that the FBI has demonstrated that it conducted a reasonable search for "tickler" files in locations most likely to lead to the discovery of ticklers; a search of the FBI's off-site Central Records storage facility would require a hand-search of millions of documents through 574,726 linear feet of file records and it is, therefore, not reasonable or necessary; affiant was properly the individual responsible for the FBI's compliance with FOIA litigation) (discovery in FOIA litigation: discovery and a deposition of the affiant are not warranted because FBI demonstrated that it conducted an adequate search) (Exemption 7(C): the FBI has demonstrated that it made a reasonable effort to determine whether third parties were dead or alive for purposes of this exemption by using its 100-year rule, by consulting Who Was Who and the Social Security Death Index, and by employing general institutional knowledge; "readily available information" does not include "scouring through unresponsive files to try to determine whether third parties are alive or dead"; FBI properly balanced the privacy interests against the public interest in disclosure).

Schwarz v. FBI, No. 00-2758 (D.D.C. Sept. 24, 2002) (dismisses as frivolous under 28 U.S.C. 1915(e)(2)(B)(i) plaintiff's FOIA action against 70 federal defendants; FOIA's "admirable purpose is abused when misguided individuals are allowed (in this case, repeatedly) to submit FOIA requests to every agency and subdivision of the government, seeking information about an imaginary conspiracy").

Shors v. Treasury IG for Tax Admin., No. 01-10086 (C.D. Cal. Aug. 26, 2002) (defendant's motion for summary judgment granted in this FOIA action where plaintiff requested records concerning an alleged incident involving him and his supervisor).

Tarullo v. DOD, No. 3:00-2462 (D. Conn. May 9, 2002) (adequacy of search: based on defendant's supplemental affidavit, finds that agency conducted a reasonable search in response to plaintiff's FOIA request).

Tarullo v. DOD, No. 3:00-2462 (D. Conn. July 12, 2002) (attorney fees: grants attorney fees in the amount of $4950; where government did not argue that the Supreme Court's rule in Buckhannon Board & Care Home, Inc. precludes an award of fees, finds that plaintiff has substantially prevailed, because without the prosecution of this action defendant would not have conducted a second search and have turned over those audit records to plaintiff; the release of the records "minimally" benefitted the public; no commercial benefit accrued to plaintiff; there is no claim of reasonable withholding of the documents).

Tax Analysts v. IRS, 217 F. Supp. 2d 23 (D.D.C. 2002) (Exemption 3 [26 U.S.C. 6105]: protects nontaxpayer-specific information exchanged pursuant to a tax convention).

Tax Analysts v. IRS, 215 F. Supp. 2d 192 (D.D.C. 2002) (Exemption 3 [26 U.S.C. 6103]: protects letter rulings that deny an organization's application for tax-exempt status or that revoke such status because they are "return information"; [26 U.S.C. 6110]: revocation and denial letters do not qualify as "written determinations" under Treasury Department regulations; [26 U.S.C. 6104]: revocation and denial rulings are not open to the public).

TPS, Inc. v. United States, No. C-99-1825 (N.D. Cal. Nov. 15, 1999) (format of response: in this FOIA action where the agency agreed to make all documents responsive to plaintiff's FOIA request available on CD ROM, finds that the agency need not transmit the information to plaintiff in a "zipped" file; this method of electronic transmission is not common and would not be "business as usual" for the agency).

United States v. Chandler, 220 F. Supp. 2d 165 (E.D.N.Y. 2002) ("not an agency" defense: construing pro se plaintiff's request for documents as a FOIA request, finds that the Probation Department, because it is part of a United States District Court, is not an "agency" within the meaning of the FOIA).

United States v. Gabel, No. C 98-04241, 2002 U.S. Dist. LEXIS 11533 (N.D. Cal. Mar. 25, 2002) (jurisdiction: court lacks jurisdiction over plaintiff's FOIA claim because plaintiff did not pursue administrative appeals of the denials of approximately 70 of his FOIA requests).

United We Stand Am. v. IRS, 219 F. Supp. 2d 14 (D.D.C. 2002) ("not an agency record" defense: records created by the IRS in order to respond to a request of the Joint Committee on Taxation made in its oversight capacity are "congressional records," not "agency records" subject to disclosure under the FOIA; IRS intended to relinquish control over the records, Congress prohibited the agency from disposing of them as it sees fit, IRS personnel did not use the records for any of its regular agency functions, and the IRS maintained the records "in its files pertaining the correspondence between the IRS and the [congressional committee]," which were "separate from the office's ordinary files"; if the court were to order disclosure, "Congress would be forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role").   (posted 10/1/02)


Go to: Main FOIA Post Page// DOJ FOIA Page // DOJ Home Page