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Compiled FOIA Decisions (Received January-June 1997)

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 1997. OIP is preparing additional compilations of decisions received during previous months and years.


Supreme Court

Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355 (1997) (per curiam) (Exemption 6: by vote of 9-0, the Supreme court summarily reverses and remands the Ninth Circuit's decision that had ordered production of names and home addresses from the Bureau of Land Management's newsletter mailing list based upon what the Ninth Circuit perceived to be the public interest in providing the persons on the list with "additional information"; this is consistent with Supreme Court's holding in Department of Defense v. FLRA, in which it said that "the only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would 'she[d] light on an agency's performance of its statutory duties' or otherwise let citizens know 'what their government is up to'").


Appeals Courts

Abernethy v. IRS, No. 95-9489 (11th Cir. Feb. 13, 1997) (affirms district court ruling that Exemption 3 [26 U.S.C. 6103(a)] protects the identity of a third-party taxpayer and denying attorney fees to the plaintiff).

Almy v. Dep't of Justice, No. 96-1207, 1997 WL 267884 (7th Cir. May 7, 1997) (unpublished order), 114 F.3d 1191 (7th Cir. 1997) (table cite) (exhaustion: plaintiff's failure to exhaust his administrative remedies under the FOIA bars judicial review of some claims) (duty to search: district court did not err in concluding that affidavits demonstrated that searches conducted by the FBI, DEA, and the United States Attorney's Office for the Northern District of Illinois were adequate; plaintiff presented only "undeveloped and unsupported claims" that the searches were inadequate).

Audubon Soc'y v. United States Forest Serv., 104 F.3d 1201 (10th Cir. 1997) (Exemption 2 "low": management territory maps which identify Mexican spotted owl nest sites do not satisfy the first prong of the exemption because maps are not sufficiently "related to internal personnel rules and practices" of the United States Forest Service because they do not relate to "personnel" matters; court need not address agency's argument that disclosure of the maps would risk of circumvention of the Endangered Species Act).

Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156 (D.C. Cir. 1997) (publication: Department of Transportation Motor Carrier Administrative Training Manual need not be published in the Federal Register because it sets forth procedural rules used to train investigative staff, rather than substantive rules).

Bartholdi Cable Co. v. FCC, 114 F.3d 274 (D.C. Cir. 1997) ("Reverse" FOIA/Exemption 4 and Exemption 3 [18 U.S.C. 1905]: under agency's regulation, the validity of which was not challenged below, public interest in disclosure of information about plaintiff would justify disclosure as a matter of discretion and was therefore "authorized by law" even if the materials could be withheld under the FOIA; "public interest considerations favoring openness in [the Commission's] licensing proceedings outweigh any potential difficulty that the Government might experience in obtaining access to information in similar circumstances") (Exemption 6: allowing public access to plaintiff's submissions to the FCC would serve the core purpose of the FOIA, which is contributing significantly to the public understanding of the operations of the federal government; even if the records "fall within Exemption 6, the [agency] is not required to withhold the information from public disclosure" because the Trade Secrets Act (and apparently the Privacy Act) is not applicable.

Butler v. United States Air Force, No. 96-5111 (D.C. Cir. May 6, 1997) (per curiam) (affirms district court rulings that agency conducted a proper search for records concerning the investigation of plaintiff for the murder of his fiance and her daughter and that the records were properly withheld under Exemptions 7(A) and 7(D)).

Chesapeake Bay Found. v. USDA, 108 F.3d 375 (D.C. Cir. 1997) (attorney fees: district court misunderstood the nature of the "public benefit" prong when it ruled that the "public benefit" of the Foundation's request for data lay in its use of the survey data to determine whether the use of pesticides in Maryland created a public safety hazard; court must consider the "public benefit derived from the case," i.e., the litigation; litigation solution adopted by the district court essentially mirrored USDA's pre-litigation suggestion that waivers be sought from various state agencies; finds no public benefit from this litigation; district court opinion reversed; attorney fees denied).

Del Viscovo v. FBI, No. 95-5388 (D.C. Cir. Jan. 24, 1997) (per curiam) (summary affirmance granted in this FOIA case where the district court found that information concerning a major racketeering investigation was properly withheld under Exemptions 2, 3 [Rule 6(e) and 18 U.S.C. 2510], 7(A), 7(C), 7(D), and 7(E)).

Early v. Office of Prof'l Responsibility, No. 96-5136, 1997 WL 195523 (D.C. Cir. Mar. 31, 1997) (per curiam) (Exemption 7(C): grants government's motion for summary affirmance in this FOIA case where the district court found that the agency properly refused to confirm or deny the existence of records concerning the professional performances of one judge and two Assistant United States Attorneys; plaintiff does not dispute that these records were compiled for law enforcement purposes; plaintiff has not identified a public interest that would outweigh the privacy interests at stake).

Enzinna v. Dep't of Justice, No. 96-2698 (D.D.C. Mar. 4, 1997), summary affirmance granted, No. 97-5078, 1997 WL 404327 (D.C. Cir. June 30, 1997) (per curiam) (Exemption 7(C): grants government's motion for summary affirmance; agency's "Glomar" response was appropriate because witnesses who testified against plaintiff's client have an interest in avoiding being associated with a criminal investigation and secrecy is necessary to protect the operation of the Witness Protection Program (WPP); government's representation during trial that the witnesses were in the WPP does not waive those witnesses' privacy interest in that information).

Friends of the Coast Fork v. Dep't of the Interior, 110 F.3d 53 (9th Cir. 1997) (fee waiver (Reform Act): reverses district court's order denying a waiver of duplication fees with respect to plaintiff's FOIA request for the administrative record on the Fish & Wildlife Service's decision not to list the western pond turtle as an endangered or threatened species; plaintiff has made a prima facie showing that disclosure is "likely to contribute significantly to public understanding" of the operations of the government and the agency denied a waiver based only on reading room availability; availability of document in agency's public reading room alone does not justify denial of a fee waiver; document is about 2500 pages long and much of the information technical in nature; "meaningful scrutiny" is "impossible unless they have their own copy"; remands with instructions to grant a full fee waiver for the entire administrative record).

Gomez v. United States Attorney, No. 96-5185 (D.C. Cir. May 12, 1997) (appeal voluntarily dismissed in this FOIA case where plaintiff requested documents concerning his conviction for drug trafficking and narcotics violations).

Greyshock v. United States Coast Guard, No. 96-15266, 1997 WL 51514 (9th Cir. Feb. 5, 1997) (unpublished memorandum), 107 F.3d 16 (9th Cir. 1997) (table cite) (Exemption 1 [E.O. 12,356]: Coast Guard's affidavit demonstrates that the release of documents concerning its investigation of plaintiff's involvement in drug-related crime would compromise intelligence sources and methods and would reveal U.S. intelligence capabilities; findings of segregability are not necessary or required when court is reviewing classified declaration rather than the disputed documents themselves; court did not err in examining a classified declaration in camera because disclosure of the declaration would reveal the very information that the agency seeks to protect) (res judicata: district court properly dismissed plaintiff's claim against the Justice Department/FBI as precluded by a former action in which the same documents were litigated by the same party).

Harvey v. Dep't of Justice, No. 96-36021, 1997 WL 312563 (9th Cir. June 9, 1997) (unpublished memorandum), 116 F.3d 484 (9th Cir. 1997) (table cite) (affirms district court's ruling that documents pertaining to plaintiff's drug-related activities were properly withheld under the FOIA; because defendant provided sufficiently detailed affidavits, in camera inspection was not required).

Hunsberger v. FBI, No. 96-1841, 1997 WL 162989 (1st Cir. Mar. 14, 1997) (per curiam) (unpublished memorandum), 111 F.3d 122 (1st Cir. 1997) (table cite) (adequacy of search: affirms district court ruling that the FBI conducted a search reasonably calculated to uncover all documents relevant to plaintiff's FOIA request).

Levy v. CIA, No. 96-5004 (D.C. Cir. Jan. 15, 1997) (per curiam) (grants defendant's motion for summary affirmance in this FOIA case where the agency invoked Exemption 3 [50 U.S.C. 403(d)(3)] and refused to confirm or deny the existence of records concerning a foreign national).

Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082 (9th Cir. 1997) (Exemption 2 "high": government has failed to demonstrate how maps of the nest sites of the northern goshawks on national forest land bear a "meaningful relationship to" the "internal personnel rules and practices" of the Forest Service; to find so would render Exemption 2 "potentially all-encompassing" and "would stretch the language of Exemption 2 in such a manner as to flout the unmistakable intent of Congress"; goshawk nest-site information does not constitute "law enforcement material," which could qualify for Exemption 2 protection) (equitable discretion: district court erred when it exercised equitable discretion and protected maps from disclosure after finding they did not fall within one of FOIA's exemptions).

Maricopa Audubon Soc'y v. United States Forest Serv., No. 94-1339 (D. Ariz. Sept. 25, 1995), aff'd, 108 F.3d 1089 (9th Cir. 1997) (burden of proof: agency met its burden of proof by introduction of the redacted materials in open court, making the nature and subject matter of the withheld materials entirely clear to the appellants and to the district court; court conducted in camera inspection of the withheld records and, therefore, had an adequate factual basis on which to conclude that they were exempt from disclosure) (Exemption 5: an internal investigative report on allegedly illegal and unethical management of the Southwestern Region of the Forest Service and a letter from one of the accused officials in response to the allegations that triggered the inquiry were prepared in order to assist an agency decisionmaker in arriving at his decision; release of portions of the report and letter would expose the "decisionmaking process in such a way as to discourage candid discussion within the agency").

Martinson v. DEA, No. 96-5262 (D.C. Cir. Jan. 14, 1997) (per curiam) (appeals have ripened and are no longer subject to dismissal for lack of a final judgment).

Master v. FBI, No. 96-5325, 1996 WL 369460 (D.C. Cir. June 2, 1997) (unpublished order), 124 F.3d 1309 (D.C. Cir. 1997) (table cite) (summary affirmance granted in this FOIA case where the district court held that the FBI's search was adequate, that a numerical discrepancy in its affidavit was the result of a clerical error, and that regardless of plaintiff's alleged personal knowledge, Exemption 7(C) protects the identities of third parties, informants, and subjects of investigative interest).

McLeod v. United States Coast Guard, No. 96-5071, 1997 U.S. App. LEXIS 6000 (D.C. Cir. Feb. 10, 1997) (per curiam) (grants defendant's motion for summary affirmance in this FOIA case where the district court found that the agency properly declined pursuant to Exemption 7(C) to disclose synopsis memoranda, witness statements, and interview summaries; district court did not abuse its discretion in failing to conduct in camera inspection of the Officer Evaluation Reports).

O'Harvey v. Office of Workers' Comp. Programs, No. 96-35015, 1997 WL 31589 (9th Cir. Jan. 24, 1997) (unpublished memorandum), 106 F.3d 408 (9th Cir. 1997) (table cite) (where agency submitted only a copy of its denial letter without a declaration, district court lacked an adequate factual basis when it ruled that the requested documents were exempt from disclosure under the FOIA; case vacated and remanded for further proceedings).

Peralta v. United States Attorney's Office, No. 96-5068 (D.C. Cir. Apr. 25, 1997) (per curiam) refers agency's motion to dismiss to court's merits panel to which this appeal is assigned; on the court's own motion orders that parties should address their briefs to whether the FBI was a defendant before the district court and which agency has responsibility to process the 290 pages referred to the FBI).

Playboy Enters. v. United States Customs Serv., No. 97-5128 (D.C. Cir. June 18, 1997) (appeal dismissed in this FOIA case where the district court awarded plaintiff attorney fees).

Pub. Citizen v. Dep't of Justice, 111 F.3d 168 (D.C. Cir. 1997) (Exemption 5: the deliberative process privilege protects communications between the Justice Department and the National Archives and former presidents Ronald Reagan and George H.W. Bush relating to access to their respective presidential records; records of communications between an agency and a former president qualify as "intra-agency" for purposes of the FOIA; because the communications took place as part of consultations called for by the Presidential Records Act, they are communications between an agency and an external consultant, made for the purpose of aiding the agency's deliberative process).

Reeves v. United States, Nos. 95-15008, 95-15055, 1997 WL 74348 (9th Cir. Feb. 20, 1997) (unpublished memorandum), 108 F.3d 338 (9th Cir. 1997) (table cite) (affirms district court's dismissal of plaintiff's FOIA action for failure to state a claim and for lack of jurisdiction; the statutory and regulatory bases for plaintiff's tax liability are publicly available).

RSR Corp. v. Browner, No. 96-6186, 1997 WL 134413 (2d Cir. Apr. 17, 1997).(2d Cir. Mar. 26, 1997) ("Reverse" FOIA/Exemption 4: vacates its opinion that had affirmed the district court ruling that monthly production reports documenting plaintiff's compliance with the Clean Water Act met the definition of effluent data and were not exempt from disclosure under Exemption 4, that the district court did not err in failing to review EPA's determination de novo, that the district court did not err in upholding EPA's determination that the data in the compliance reports was effluent data, and that the district court was correct in finding plaintiff's request for discovery inappropriate and finding that RSR was a point source subject to the pretreatment standards and the reporting requirements of the Clean Water Act).

Shewchun v. INS, No. 97-5044 (D.C. Cir. June 5, 1997) (per curiam) (grants government's motion for summary affirmance where the district court ruled that the agency's search was adequate and that Exemption 7(C) protected the identities of agency employees and informants).

Tamayo v. Dep't of Justice, No. 96-5234, 1997 U.S. App. LEXIS 16367 (D.C. Cir. May 22, 1997) (per curiam) (summary affirmance granted in this FOIA case where the district court held that information concerning a criminal investigation of plaintiff was exempt from disclosure under Exemptions 2, 7(C), 7(D), and 7(F)).

Tax Analysts v. Dep't of Justice, No. 96-5109, 1997 WL 71746 (D.C. Cir. Jan. 21, 1997) (per curiam) (unpublished order), 107 F.3d 923 (D.C. Cir. 1997) (table cite) (affirms district court ruling that the contractor-provided portion of JURIS, the Justice Department's defunct electronic legal research database, is not an "agency record" under the FOIA; district court did not abuse its discretion in denying discovery as the pleadings were sufficient to resolve the issue; contractor may assert proprietary rights over its database).

Tellier v. Executive Office for the United States Attorneys, No. 96-5323, 1997 WL 362497 (D.C. Cir. May 15, 1997) (per curiam) (affirms district court's finding under Exemption 7(A) that release of information would interfere with a law enforcement proceeding that was ongoing at the time the request was made; agency not required to adjust its FOIA responses because of post-response occurrences).

Vild v. Comm'r, No. 96-16085, 1997 WL 345212 (9th Cir. June 20, 1997) (unpublished memorandum), 116 F.3d 488 (9th Cir. 1997) (table cite) (affirms district court holding that Exemption 3 (26 U.S.C. 6103(a)) protects third-party tax return information).

Voinche v. CIA, No. 96-31270 (5th Cir. June 18, 1997) (unpublished order), 119 F.3d 3 (5th Cir. 1997) (table cite) (dismisses this FOIA appeal because of plaintiff's failure to timely file an administrative appeal of the partial denial of his FOIA request; plaintiff is cautioned that future frivolous appeals will invite the imposition of sanctions).

Voinche v. FBI, No. 96-5304, 1997 U.S. App. LEXIS 19089 (D.C. Cir. June 19, 1997) (per curiam) (Exemption 1 [E.O. 12,958]: affirms district court holding that agency followed proper classification procedures and that the withheld information falls within the scope of Exemption 1) (Vaughn Index: use of a coded Vaughn is appropriate) (attorney fees: district court properly denied attorney fees because plaintiff had not demonstrated that he substantially prevailed).

Wells v. SEC, No. 96-6237, 1997 WL 274270 (2d Cir. May 22, 1997) (unpublished memorandum), 113 F.3d 1230 (2d Cir. 1997) (table cite) (exhaustion: plaintiff did not exhaust his administrative remedies because he failed to appeal the denial of his FOIA request to the head of the SEC).

W. Journalism Ctr. v. Office of the Indep. Counsel, No. 96-5178, 1997 WL 195516 (D.C. Cir. Mar. 11, 1997) (per curiam) (Exemption 7(A): grants government's motion for summary affirmance; Independent Counsel's generic affidavit demonstrates that there is a concrete criminal law enforcement proceeding to which the requested information pertains; this information is part of an ongoing investigation and premature disclosure could reasonably be expected to interfere with this investigation).

Wichlacz v. Dep't of the Interior, No. 96-2173, 1997 WL 321576 (4th Cir. June 13, 1997) (unpublished memorandum), 114 F.3d 1178 (4th Cir. 1997) (table cite) (affirms district court's holding that Exemption 7(A) protects from disclosure the names of 3 psychiatrists listed on paper found in Vince Foster's wallet when he committed suicide and 3 pages of handwritten notes made by law enforcement personnel, the contents of which were released in typewritten form, and that Exemption 7(C) protects the identities of the 3 psychiatrists and a third party who was not the subject of this FOIA request, and the 3 pages of handwritten notes).


District Courts

Ajluni v. FBI, No. 94-325, 1997 WL 196047 (N.D.N.Y. Apr. 14, 1997) (attorney fees: court allows plaintiff's counsel a billing rate of $100 per hour; from plaintiff's application for fees, court finds that 275.8 hours were reasonably spent on this litigation; court allows $1125 for travel time; amount is reduced by $190, which plaintiff claimed for time spent preparing and sending correspondence to the United States Senate and House of Representatives; amount is reduced by $3000 because there were no contemporaneous records kept, only counsel's recollection of this additional time; grants $25,515 in attorney fees, and $1800 in costs).

Alexander v. FDIC, No. C-96-2782 (N.D. Cal. Mar. 24, 1997) (Exemption 6: protects names and addresses of individuals, including family and living trusts, individual IRAs, and individual investment accounts, who own a certain stock; identities of remaining shareholders must be released).

Allison v. IRS, No. 96-156, 1997 U.S. Dist. LEXIS 4727 (D. Mont. Mar. 27, 1997) (subsection (a)(2): agency satisfied plaintiff's FOIA request when it informed plaintiff that IRS manuals were subsection (a)(2) records available in its reading room).

Allison v. IRS, No. 96-142, 1997 U.S. Dist. LEXIS 6710 (D. Mont. Apr. 8, 1997) (dismisses this FOIA case as moot; there are no documents responsive to some of plaintiff's requests, documents have been provided in response to some of plaintiff's requests, and the remainder of the documents are available at the IRS reading room).

Berliner Zisser Walter & Gallegos v. SEC, 962 F. Supp. 1348 (D. Colo. 1997) (Exemption 8: adopting the definition of "financial institution" provided by the Senate in the legislative history of the Government in the Sunshine Act, finds that an investment advisor company is a "financial institution" under Exemption 8; release of documents relating to SEC's examination of Broker Services, Inc. "could undermine the environment of full cooperation between the SEC and investment advisors that Exemption 8 was enacted to protect"; in this case where the FOIA request was made at least 2 years after the company's closing, finds that "if an appropriate amount of time abates the purposes underlying Exemption 8, Congress, not this court, should make the determination of what amount of time is required").

Burka v. HHS, No. 92-2636 (D.D.C. Mar. 20, 1997) (attorney fees: pro se attorneys are ineligible for attorney fees under the FOIA; since plaintiff brought this suit in his own name, he may not now argue that he was actually representing an undisclosed client; nonplaintiff attorneys are ineligible for fees because they were merely associates and "colleagues" who worked for and with plaintiff).

Butler v. Dep't of the Treasury, No. 95-1931, 1997 U.S. Dist. LEXIS 802 (D.D.C. Jan. 14, 1997) (Exemption 7(C): protects the names of law enforcement personnel mentioned in law enforcement reports) (Exemption 7(D): applying Landano, finds that promises of confidentiality could be inferred in the proposed consensual monitoring of interviews in prison between sources and law enforcement personnel; exemption protects the identities of and information provided by the confidential sources) (Exemption 7(E): disclosing the types of monitoring or the type of equipment used in the surveillance of plaintiff in prison would afford future targets the opportunity to avoid monitoring) (attorney fees: pro se litigants are not entitled to attorney fees).

Butler v. Nelson, No. 96-48-M, 1997 WL 580331 (D. Mont. May 15, 1997) (mootness: because some documents have been released to plaintiff, the issue concerning the delay in producing these records is moot) (adequacy of request: plaintiff has failed to exhaust his administrative remedies with respect to 13 items because he has not described them "in sufficient detail to enable an IRS employee familiar with the subject matter of the request to search for responsive documents without creating an unreasonable burden on the agency") (duty to search: affidavits demonstrate that the IRS conducted a search reasonably calculated to uncover all relevant documents in response to plaintiff's FOIA request) (damages not available under the FOIA).

Carreras v. United States Customs Serv., No. 96-1435 (D.D.C. Feb. 25, 1997) (duty to search: agency has demonstrated that it conducted a reasonable search for records responsive to plaintiff's FOIA request), reconsideration denied (D.D.C. Apr. 21, 1997).

Chamberlain v. Dep't of Justice, 957 F. Supp. 292 (D.D.C. Mar. 1997) (adequacy of search: FBI has demonstrated that it has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 7(C): protects information related to government personnel involved in an investigation of a murdered police officer and the murdered officer's family members) (interaction of (a)(2) & (a)(3): government has complied with its FOIA obligations by making FBI laboratory test print-outs available to plaintiff, or an expert of his designation, at FBI Headquarters in Washington, D.C.).

Chicago Tribune Co. v. HHS, No. 95-C-3917, 1997 U.S. Dist. LEXIS 2308 (N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) ("agency records": records concerning the reanalysis of data collected by NIH and the National Cancer Institute (NCI) comparing mastectomy treatment for breast cancer with lumpectomy treatment are agency records for purposes of the FOIA; records were created by contractor "on behalf of" NCI, pursuant to agency's instructions and were, therefore, "created" by NCI; documents were effectively under NCI's control when this FOIA request was made) (not "improperly withheld": contractor documents not in agency's possession, but under its control, were improperly withheld under the FOIA) (Exemption 6: defendant has not shown that the release of 9-digit encoded "Study Numbers" from the patient data forms (with names and Social Security numbers deleted) would create a risk of patient identification; public has a substantial interest in the release of information that would help it evaluate the legitimacy of a study that will affect their decisions regarding breast cancer treatment; patient data forms should be released) (Exemption 5: deliberative process privilege does not protect selected items on patient data forms where auditors were required to exercise their best medical judgments to interpret ambiguous records and draw clinical conclusions; scientists expect to have their data reviewed by other experts in the field in order to ensure the integrity of the results; these opinions do not reflect the "deliberative process of decision or policy making"; agency has not shown that the release of the requested documents would "chill" communications; attorney-client and attorney work-product privileges were not waived when defendant shared documents with contractor).

Chicago Tribune Co. v. HHS, No. 95 C 3917 (N.D. Ill. Mar. 28, 1997) (adopts magistrate judge's report and recommendation; records concerning the reanalysis of data collected by NIH and the National Cancer Institute comparing mastectomy treatment for breast cancer with lumpectomy treatment are agency records for purposes of the FOIA; contractor documents not in agency's possession, but under its control, were improperly withheld under the FOIA; neither Exemptions 5 nor 6 apply to information withheld from the patient data forms).

Code v. FBI, No. 95-1892, 1997 WL 150070 (D.D.C. Mar. 26, 1997) (duty to search: FBI's affidavits demonstrate that its searches of its headquarters and New Orleans Field Office were reasonably calculated to uncover documents responsive to plaintiff's FOIA request) (Exemption 7 (threshold): all but one record satisfy the threshold requirement because they were compiled in connection with the FBI's efforts to assist the Shreveport Police Department in solving a series of local homicides; on in camera inspection, finds that the final record satisfies the threshold requirement because it was created in the course of the FBI's investigation of a criminal violation that occurred subsequent to plaintiff's prosecution and sentencing) (Exemption 7(C): protects the identities of law enforcement personnel involved in the FBI investigation; the fact that their identities may be known to the plaintiff does lessen these individuals' privacy interests) (Exemption 7(D): on in camera inspection, finds that FBI properly withheld the identity of and information provided by one individual, because from the character of the crime and the source's relation to the crime, it is clear that this individual expected to receive confidentiality) (Exemption 7(E): disclosure of information pertaining to FBI's Criminal Investigative Analysis and Criminal Personality Profiles would reveal techniques and procedures employed by FBI's Behavioral Science Unit and assist criminals in evading detection) (discovery in FOIA litigation: discovery is unnecessary because agency's affidavit is adequate on its face).

Crompton v. DEA, No. 95-8771 (C.D. Cal. Mar. 25, 1997) (Vaughn Index: agency's coded Vaughn Index adequately describes the portions of documents withheld from disclosure and explains how the information falls within the exemption category) (Exemption 2 "high": protects NADDIS numbers because disclosure would risk circumvention of agency law) (Exemption 7 (threshold): threshold requirement met by records compiled by DEA in the enforcement of federal narcotics laws) (Exemption 7(C): protects information that would identify a DEA Special Agent, a Supervisory Special Agent, and a subject of investigative interest; privacy interests at stake outweigh the public interest in disclosure) (Exemption 7(F): disclosure of the identities of a DEA Special Agent and a Supervisory Special Agent could reasonably be expected to endanger their lives and physical safety).

Crump v. EEOC, No. 3:97-0275 (M.D. Tenn. May 30, 1997) (magistrate's recommendation) (proper party defendant: individual federal employees are not proper party defendants under the FOIA) (Exemption 5: deliberative process privilege protects an investigator's memorandum and the corresponding case log entry because disclosure would expose the agency's decisionmaking process) (Exemption 3 [42 U.S.C. 2000e-5(b), 2000e-8(e), 12117]: anti-employment discrimination statutes require that individual charges to the EEOC not be made public) (Exemption 7(C): protects personal information about individuals who filed charges with the EEOC), adopted (M.D. Tenn. June 18, 1997).

Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, No. 96-5152, 1997 WL 578960 (W.D. Ark. Feb. 5, 1997) ("Reverse" FOIA/Exemption 4: after in camera review, finds that agency properly found that disclosure of most records concerning a government investigation into accidents related to an airgun manufactured by plaintiff would not damage plaintiff's "competitiveness by divulging trade secrets, economic data or other information of the sort specifically protected from public release"; such records are exactly the kind of information that tells people "what their government is up to," particularly where court "believe[s] that Daisy's chief concern is that they will be misused by the intervenor[, ABC,] or other media"; records directly reflect a federal agency carrying out its statutory duties).

Davenport v. Univ. of S. Cal., No. 96-0727 (C.D. Cal. Feb. 24, 1997) (plaintiff has not exhausted his administrative remedies with respect to his request for a fee waiver).

Davis v. FTC, No. 96-9324, 1997 WL 73671 (S.D.N.Y. Feb. 20, 1997) (Exemption 3 [15 U.S.C. 57b-2(f)]: protects 27 transcripts of witness statements taken by the FTC during its investigation of Toys "R" Us because all testimony was relevant to the investigation and the witnesses could have been subpoenaed had they refused to comply; legislative history indicates that Congress was aware of the broad scope of this FTC nondisclosure provision in comparison to Exemption 7(A) at the time the statute was passed into law) (Exemption 5: the deliberative process privilege protects memoranda to and from FTC's Commissioners and Bureau Chiefs discussing the FTC's factual knowledge and legal strategies at various stages of the investigation and assessing whether the investigation should proceed; the attorney work-product privilege can protect materials prepared in anticipation of an administrative hearing and materials prepared by economists).

Edmond v. United States Attorney, 959 F. Supp. 1 (D.D.C. 1997) ("exceptional circumstances"/"due diligence": there is no basis in law for plaintiff's claim that the inability to process FOIA requests more quickly constitutes a per se failure to meet the due diligence requirement; while the government has demonstrated "extraordinary circumstances" with respect to a queue of 31 FOIA requests, a two-year extension is not appropriate; court grants agency only one additional year to process plaintiff's request) (expedited processing: plaintiff has not met his burden of demonstrating an exceptional need by claiming he needs these records to aid him in overturning his criminal conviction) (Vaughn Index: plaintiff's request for a Vaughn Index is premature since agency has not yet started processing his FOIA request) (sanctions: sanctions are not warranted because agency has demonstrated due diligence in processing plaintiff's FOIA request "in the face of a mountain of similar requests").

Engelking v. DEA, No. 91-0165, 1997 U.S. Dist. LEXIS 1881 (D.D.C. Feb. 21, 1997) (Exemption 7(D): applying Landano, finds that DEA properly withheld 13 pages of information because the sources were given express promises of confidentiality; DEA properly withheld 2 pages of information from a source as part of a plea-bargain agreement; Justice Department's Executive Office for United States Attorneys (EOUSA) has shown that information in 9 documents was furnished with the understanding that it was to be kept confidential) (Exemption 7(E): DEA and EOUSA properly withheld information that relates to techniques and procedures employed by law enforcement officers) (Exemption 7(C): finds, without further specification, that the release of information withheld by EOUSA would be an invasion of personal privacy).

Ervin & Assocs., Inc. v. Dunlap, 33 F. Supp. 2d 1 (D.D.C. 1997) (exhaustion: because plaintiff has exhausted his administrative remedies with respect to at least some of the 60 FOIA requests that he made to HUD, his FOIA claim will not be dismissed; later factual development will allow a determination as to exhaustion of administrative remedies as to each request for information).

Feltz v. IRS, No. 96-C-818, 1997 U.S. Dist. LEXIS 1397 (W.D. Wis. Jan. 2, 1997) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information; [26 U.S.C. 6103(b)(2)]: disclosure of discriminant function scores would seriously impair the enforcement of IRS laws) (Exemption 5: finds, without further specification, that the exemption protects a communication between an IRS District Counsel and a client) (Exemption 7(E): release of portions of one document would disclose techniques and procedures for law enforcement investigations) (Exemption 7(C): protects the identities of lower-level IRS employees) (Exemption 7(D): finds, without specification, that the exemption protects the identity of a confidential informant).

Ferguson v. Ala. Criminal Justice Info. Ctr., 962 F. Supp. 1446 (M.D. Ala. 1997) (agency: FOIA does not apply to state agencies).

Feshbach v. SEC, 5 F. Supp. 2d 774 (N.D. Cal. 1997) (Exemption 8: citing to the definition of "financial institutions" in the legislative history of the Government in the Sunshine Act, finds that plaintiff's broker-dealer business is a financial institution under the FOIA; exemption protects reports related to the examination and investigation of plaintiff's business by the SEC and the National Association of Securities Dealers) (Exemption 5: the attorney work-product privilege protects documents compiled in the course of SEC's investigation of plaintiff based on the suspicion of specific wrongdoing, because reports were prepared in anticipation of litigation; when invoking the attorney work-product privilege, there is no need to segregate and disclose factual material; agency must review documents it seeks to withhold under only the deliberative process privilege to determine whether there is any segregable material that can be disclosed) (Exemption 7(C): protects information that would identify individuals of investigative interest to the SEC) (Exemption 7(E): SEC has not shown that examination reports and documents containing internal procedures, techniques, and strategies could be used by securities brokers to circumvent federal law; SEC must review these documents, redact any notations that are exempt from disclosure, and disclose the redacted documents by May 23, 1997) (Exemption 2 "low": protects an internal SEC form used to track incoming correspondence because it is related to trivial administrative matters and is if no genuine public interest; "high": SEC has not shown that "high" 2 protects forms used to monitor and direct the course of investigations, form which tracks status of informal SEC inquiries, and form used to review applications filed with the SEC because disclosure would risk circumvention of agency law; SEC must review these documents, redact any notations that are exempt from disclosure, and disclose the redacted documents by May 23, 1997).

Fiduccia v. Dep't of Justice, No. C-92-20319, 1997 U.S. Dist. LEXIS 2684 (N.D. Cal. Feb. 5, 1997) (Exemption 7 (threshold): seven documents compiled for civil litigation purposes do not meet the threshold requirement; plaintiff must first exhaust his administrative remedies with respect to these 7 records, then refile his claim, and the court will order production of the 7 records without redactions; without further specification, finds that 6 pages located by DEA meet the threshold requirement) (Vaughn Index: letters from DEA and the Solicitor General adequately fulfill the requirement for a Vaughn Index since they clearly and specifically set forth the exemptions claimed) (Exemption 5: without further specification, finds that the deliberative process and attorney work-product privileges protect a memo from the Office of the Solicitor General) (summary judgment: finds, without further specification, that the IRS and FBI properly claimed Exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E) to withhold information from documents) (Exemptions 6 and 7(C): DOD failed to submit an affidavit to support redactions taken pursuant to Exemptions 6 and 7(C); DOD must disclose the withheld records within 30 days) (Exemption 7(C): FBI properly refused to confirm or deny the existence of records on 2 individuals since plaintiff did not furnish proof of the death of such individuals or obtain privacy waivers from them) ("exceptional circumstances"/"due diligence": grants FBI an Open America stay until April 2001; FBI is exercising due diligence in both processing requests and dealing with the backlog of such requests).

Fiduccia v. Dep't of Justice, No. C-92-20319 (N.D. Cal. May 6, 1997) (grants plaintiff's motion to amend court's February 7, 1997 order insofar as the order failed to address INS's production of redacted documents; now finds that INS properly redacted these (unspecified) records based on Exemption 7; grants DOD's motion for relief from the order and finds that it submitted a proper affidavit supporting the redaction of the names of private individuals and government agents under Exemptions 6 and 7(C)).

Fox v. Dep't of Labor, No. 3:96-423 (E.D. Va. Apr. 3, 1997) (attorney fees: plaintiff, who sought these documents because they are relevant to a civil action he filed, had an adequate incentive to seek judicial relief in this case without the award of attorney fees; records disclosed will not likely add to the fund of information the public may use in making vital political choices; defendant failed to provide a reasonable explanation for withholding documents; plaintiff is entitled to attorney fees under the FOIA; considering reasonable hours expended, the novelty and difficulty of the issues, and the market value of the legal services rendered, court grants plaintiff $20,669.24 in attorney fees and costs).

Frito-Lay v. EEOC, 964 F. Supp. 236 (W.D. Ky. 1997) (waiver: agency's failure to raise an exemption at any level of the administrative process does not preclude it from raising the exemption at the district court level; agency did not waive exemptions by failing to raise them in its responsive pleading because plaintiff had sufficient notice of and opportunity to rebut the defense) (Exemption 3 [42 U.S.C. 2000e-8(e)]: where employee's right to sue under federal and state civil rights laws has expired, Title VII prohibitions against disclosure fall within Exemption 3 of the FOIA; agency correctly denied plaintiff access to employee's "charge" file).

Goulding v. IRS, No. 94 C 5113, 1997 WL 47450 (N.D. Ill. Jan. 30, 1997) (denies plaintiff's motion to alter or amend court's December 9, 1996 judgment; plaintiff merely seeks to relitigate issues concerning document production and the exemption claims that were fully addressed in the court's prior decision) (attorney fees: IRS failed to produce any documents before litigation ensued because of a misunderstanding in plaintiff's request for documents; with the exception of documents IRS was required to make legible, court did not require IRS to produce any of the 21 withheld documents; plaintiff has produced no evidence that this lawsuit was necessary or that it caused the production of documents; plaintiff, a disbarred attorney, is precluded from an award of attorney fees because a pro se plaintiff who is not an attorney is not entitled to attorney fees under the FOIA; plaintiff brought this suit to help him support his claim against IRS; IRS had a reasonable basis in law for withholding the documents; disclosure of plaintiff's IRS records does little to benefit the public; attorney fees and costs denied).

Guzzino v. FBI, No. 95-1780, 1997 WL 22886 (D.D.C. Jan. 9, 1997) ("exceptional circumstances"/"due diligence": FBI has shown that even though it is exercising due diligence, because of inadequate resources it is unable to respond to plaintiff's FOIA request within the statutory 10-day time limit; grants FBI's motion for a stay until March 31, 2001) (exhaustion: plaintiff has not submitted documentary evidence to support his claim that he submitted a FOIA request to the Justice Department's Tax Division; plaintiff has not exhausted his administrative remedies) (Exemption 3: protects summaries of contents of several intercepted communications obtained pursuant to court-ordered wiretaps, as well as direct quotes and the identities of participants; [Rule 6(e)]: requires the preservation of the secrecy of grand jury materials) (Exemptions 6 and 7(C): protect information that would identify targets of intercepted communications, third parties, and the subject of the underlying investigation) (Exemption 7(C): protects information that would identify law enforcement officers, Special Agents, agency employees, local law enforcement personnel and third parties mentioned in investigatory records) ("no records" defense: affidavits of the IRS and the Postal Service demonstrate that they have no records responsive to plaintiff's FOIA request) (Exemption 5: finds, without further specification, that the deliberative process and attorney work-product privileges protect documents normally withheld in the civil discovery process).

Horsehead Indus. v. EPA, No. 94-1299 (D.D.C. Jan. 3, 1997) (adequacy of search: EPA has read plaintiff's FOIA request too narrowly and has not given plaintiff all of the records he is entitled to under the FOIA; vacates portion of court's September 30, 1996 opinion and order granting partial summary judgment to the agency on the search issue; within 30 days, EPA must conduct adequate searches for records responsive to plaintiff's FOIA request).

Horsehead Indus. v. EPA, No. 94-1299 (D.D.C. Mar. 13, 1997) (Exemption 6: residential street addresses are "similar files"; release of street addresses of homeowners who elected to have their properties sampled as part of a Superfund study would result in a clearly unwarranted invasion of personal privacy and may only "provide a glimpse" into EPA's activities).

Isley v. Executive Office for United States Attorneys, No. 96-0123 (D.D.C. Mar. 27, 1997) (Exemption 3 [Rule 6(e)]: except for one document for which a sealing order was issued, defendant's exemption claim is "too sweeping" and does not sufficiently link the exemption to the contents of the withheld grand jury materials, including documents described as "286 pages of grand jury transcript testimonies and 19 pages of grand jury subpoenas"; defendant must either produce the documents or provide an adequately detailed explanation of its position) (Exemption 5: the attorney work-product and deliberative process privileges protect 2 letters from an Assistant United States Attorney (AUSA) to a medical doctor regarding the medical condition of a third party, handwritten notes made by an AUSA in preparation for and during trial, and a draft witness and exhibits list containing handwritten notes) (Exemption 6: protects 2 letters from an AUSA to a medical doctor regarding the medical condition of a third party) (Exemption 7(C): protects the identities of third parties, Special Agents, government employees, and local law enforcement personnel who participated in the investigation and prosecution of plaintiff) (Exemption 7(D): due to the nature of the crime investigated (murder), the sources' proximity to the crime, and, in certain instances, the expressed fears of the sources, defendant has shown that implied promises of confidentiality can be inferred in this case; defendant properly withheld information provided by informants and information that would identify informants) (Exemption 7(F): protects information that would identify individuals who provided information in the course of a murder investigation, because there exists a reasonable likelihood that disclosure would threaten their lives).

Jefferson v. Reno, No. 96-1284, 1997 U.S. Dist. LEXIS 3064 (D.D.C. Mar. 17, 1997) (jurisdiction: court has jurisdiction to review defendant's denial of plaintiff's FOIA request, because a determination of whether the withholding was "improper" is a decision on the merits) (Exemption 7(A): defendant fails to describe how the release of records maintained in a case file that pertains to the criminal prosecution of plaintiff and 12 others could reasonably be expected to interfere with enforcement proceedings; defendant must justify these withholdings on a category-by-category basis in a renewed motion for summary judgment by April 25, 1997).

Johnston v. United States, No. 93-5605, 1997 U.S Dist. LEXIS 597 (E.D. Pa. Jan. 27, 1997) (summary judgment granted to defendant; plaintiff never responded to FBI's letter asking him to indicate his willingness to pay the estimated fees associated with his FOIA request).

Keenan v. Dep't of Justice, No. 94-1909 (D.D.C. Mar. 24, 1997) (Exemption 1 [E.O. 12,356]: Justice Department made its final classification determination in this case on February 7, 1995, when E.O. 12,356 was in effect; although the Justice Department may voluntarily reassess its classification under successor Executive Order 12,958, signed by President Clinton on April 17, 1995, it did not elect to, and will not now be required to, do so) (Vaughn Index: FBI's coded Index does not provide sufficient specificity to demonstrate that information pertaining to foreign relations, intelligence activities, cryptographic systems, and confidential sources was properly withheld under Exemption 1; FBI declaration does not indicate the dates during which the redacted documents were compiled) (Exemption 7(C): FBI has not demonstrated that there was a law enforcement purpose for the information withheld under this exemption and has not provided sufficient detail about the information withheld) (Exemption 7(D): disclosure of background security investigation material compiled for purposes of determining suitability for federal employment would reveal the identity of confidential sources) (adequacy of search: FBI has demonstrated that it has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).

Kitchen v. FBI, No. 93-2382 (D.D.C. Apr. 15, 1997) (FOIA case dismissed because plaintiff failed to prosecute).

Knight v. FDA, No. 95-4097, 1997 WL 109971 (D. Kan. Feb. 11, 1997) (grants FDA's unopposed renewed motion for summary judgment and motion to continue the stay of discovery; FDA conducted a search reasonably calculated to uncover all relevant records in response to plaintiff's second FOIA request).

Knowles v. United States Coast Guard, No. 96 CIV. 1018, 1997 WL 151397 (S.D.N.Y. Mar. 31, 1997) (fees (Reform Act): grants defendant's motion for summary judgment on fee claim; after plaintiff complained about being charged $360.60 for copying and labor costs, the Coast Guard reduced the charge to the $25 fee permitted by its regulations).

Lampkin v. IRS, No. 1:96-138, 1997 U.S. Dist. LEXIS 2702 (W.D.N.C. Feb. 24, 1997) (Exemption 3 [26 U.S.C. 6103(a)]: protects third-party tax return information) (Exemption 7(C): protects the identities of lower-level IRS employees; "nowhere is the protection more necessary than in the collection of revenue"; "'tax protestors' have used the federal courts to file vexatious suits against public servants"; federal employees have had "bogus liens filed against their property in state courts").

Lewis v. United States Postal Serv., No. S 96-3467 (D. Md. Apr. 30, 1997) (Exemption 7 (threshold): requirement met by records compiled in the investigation of a complaint of possible criminal activity by plaintiff) (Exemption 7(C): there is no public interest in disclosure to outweigh the privacy interests of the complainant; "limited oral disclosure" found to not constitute waiver of the exemption) (Exemption 7(D): based on the "situation extant at the time the records were compiled," finds that there was "at the least" an implied promise of confidentiality).

Linn v. Dep't of Justice, No. 92-1406, 1997 U.S. Dist. LEXIS 9321 (D.D.C. May 29, 1997) (duty to search: Marshals Service's affidavit demonstrates that it conducted a reasonable search for certain prisoner custody records) (in camera inspection: by June 16, 1997, DEA must provide the court, for in camera inspection, 30 specified documents from the 311 it withheld, since DEA's supplemental Vaughn Index suffers from the same lack of specificity as the original) (Exemptions 7(C) and 7(F): protect the identities of fellow prisoners requiring separation from plaintiff and informants, regardless of whether their identities may have been disclosed in a "limited context;" exemptions do not protect names of witnesses who have already testified against plaintiff at trial, because their identities have been revealed in the public record) (fee waiver (Reform Act): grants plaintiff's request for a fee waiver with respect to Bureau of Prison (BOP) national program statements; disclosure will contribute significantly to the incarcerated public's understanding of BOP's operations and plaintiff represents that he will supply the information he receives to organizations that can widely disseminate it to the relevant public).

Loglia v. IRS, No. 96-2654, 1997 U.S. Dist. LEXIS 5506 (S.D.N.Y. Apr. 25, 1997) (attorney fees: nonattorney pro se litigants are not eligible for attorney fees under the FOIA; while it appears that plaintiff obtained earlier release of records because he filed suit, "the statute does not subsidize expedited disclosure"; there is no public benefit in the release of plaintiff's personal tax records; attorney fees and costs denied).

Long v. ATF, 964 F. Supp. 494 (D.D.C. 1997) (mootness: requester who has sought and obtained a fee waiver under the FOIA is not entitled to a status determination as to whether her organization is an "educational institution" and a "representative of the news media"; plaintiff's fee waiver denial is a moot issue and the issue of her future status determinations is not ripe; fee waiver requests are not "capable of repetition, yet evading review").

Ludsin v. SBA, No. 96-2865 (D.D.C. Apr. 24, 1997) (Exemption 5: the "inter- or intra-agency" requirement is met by a memorandum to an agency finance official from an agency attorney; the attorney-client privilege protects a portion of the memorandum that contains the legal conclusions and reasoning of the author regarding a procurement matter).

Martinson v. DEA, No. 95-2161 (D.D.C. Feb. 13, 1997) (court addressed the merits of plaintiff's legal argument in its August 23, 1996 order; plaintiff has had ample opportunity to respond to IRS's pleadings; plaintiff may not amend his original complaint to add new claims against IRS).

MSPB v. Geller, No. 96 C 2768, 1997 U.S. Dist. LEXIS 3959 (N.D. Ill. Mar. 28, 1997) (in this nonFOIA case where the government seeks the identities of confidential sources who spoke to defendant, a private contractor hired by government to do a background investigation, finds that the FOIA does not apply to individuals who seek to withhold information from the government).

Narducci v. DEA, No. 96-1873 (D.D.C. Jan. 10, 1997) (without further specification, finds that agency properly withheld information related solely to internal practices under Exemption 2; properly withheld information about individuals associated or implicated with plaintiff under Exemption 7(C); properly withheld information related to confidential informants in a major investigation of organized crime under Exemption 7(D); and properly withheld information that would identify law enforcement officers and DEA agents working in an organized crime investigation under Exemption 7(F)).

Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice, No. 97-372 (D.D.C. Mar. 17, 1997) (transcript) (preliminary injunction: denies plaintiff's request for a preliminary injunction regarding its FOIA request for drafts of an Inspector General Report that is under preparation concerning the investigation of the FBI's forensic lab and allegations regarding the inaccuracy of FBI lab results; disclosure at this time would substantially harm the government; plaintiff will not suffer irreparable harm if the report is not released at this time; there is no substantial likelihood of success on the merits; disclosure of draft reports, one month before the final report is completed, is not in the public interest).

Nation Magazine v. United States Customs Serv., No. 94-0808 (D.D.C. Feb. 14, 1997) (duty to search: grants Customs Service's motion to modify court's November 27, 1996 order, finding that the agency's failure to search the personnel files of Frank Chadwick in order to find a memorandum he authored is not a violation of the FOIA, because it would be very unlikely for such a memorandum to be found in such files; by April 4, 1997, agency must file an in camera declaration with the court setting forth whether it has assigned Richard Meadows a code number and the results of any search performed using this code number as a search term; Customs Service has made a reasonable effort to search through its Federal Records System in Fort Worth, Texas using subject-matter file numbers; Customs Service must re-examine the scope of its search for the Chadwick memorandum, which plaintiff was able to otherwise produce, and provide in a declaration the results of any additional searches).

Nation Magazine v. United States Customs Serv., No. 94-0808 (D.D.C. May 20, 1997) (duty to search: denies plaintiff's to amend court's February 14, 1997 order; agency has demonstrated that a search of its archival Fort Worth facility would be "extremely laborious and unduly burdensome").

Ng v. Dep't of Justice, No. 97-184 (C.D. Cal. June 2, 1997) (minute order) (proper party defendant: the Office of Information and Privacy, a component of the Department of Justice, is not a proper party defendant under the FOIA).

Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59 (D.D.C. 1997) (attorney fees: litigation was not "unnecessary" in the sense that plaintiff's dispute with EPA could have been resolved without filing suit; agency withdrew its claim of confidentiality as to the identities of some inert ingredients only after plaintiff uncovered previous public disclosures of the requested information; knowing the identities of inert ingredients in 6 commonly used pesticides will aid the public in evaluating the use and safety of those pesticides and will add to the fund of information available to the public concerning potentially toxic chemicals; EPA's adoption of the manufacturers' assertions of confidentiality was not reasonable because EPA's own regulations require that it independently consider all relevant factors; denies plaintiff's claim of 56.5 hours for work done at the administrative level; hours billed for time spent defending against arguments raised by intervenors, and not adopted by the agency, are not compensable; plaintiff may recover for hours expended on an Administrative Procedure Act claim that "presented an alternative approach to reviewing EPA's FOIA determinations"; pertinent legal market for purposes of calculating legal fees is the jurisdiction in which the district court sits and the prevailing market rates at the time the services were performed; awards costs of $4,216.98; plaintiff must submit a revised application for attorney fees consistent with court's ruling).

Nowak v. IRS, No. 96-744 (S.D. Cal. Apr. 4, 1997) (grants defendant's motion for summary judgment in this FOIA case involving plaintiff's request for records relating to tax assessments made against him).

Nuzzo v. FBI, No. 95-1708 (D.D.C. Mar. 5, 1997) (grants the Executive Office for United States Attorneys' unopposed motion for summary judgment and dismisses this action with respect to it).

Pangburn v. Culbertson, No. 96-0367E, 1997 WL 276180 (W.D.N.Y. May 21, 1997) (agency: FOIA does not apply to local government agencies).

Playboy Enters. v. United States Customs Serv., 959 F. Supp. 11 (D.D.C. 1997) (attorney fees: finds that plaintiff has substantially prevailed in this FOIA action which concerned the issue of whether samples of wearing apparel are "records" subject to the FOIA until the defendant agency mistakenly destroyed the evidence; by arguing that plaintiff has not substantially prevailed, "the government is attempting to assert a new FOIA exemption which can best be described as the 'Hubris Exemption'"; in this case, "the notion that 'public benefits' and 'private benefits' must be mutually exclusive is not supportable"; with this litigation, plaintiff has advanced a public benefit by calling "into question the practices and policies of the U.S. Coast Guard with respect to the seizure of counterfeit goods" and the agency has admitted that these practices and policies are currently under review; while an award of attorney fees is not appropriate when suit is brought to advance a private benefit, an award is appropriate here where the government first sought to protect an allegedly infringing manufacturer, then sought to clear the release of information and product samples with the counterfeit goods distributor, and then destroyed the counterfeit goods; the mere fact that this information would have been beneficial to plaintiff in a trademark infringement case against the distributor does not diminish the substantial public benefit that may have resulted; government's arguments do suggest a basis for reducing the size of plaintiff's award; government's position, i.e., the protection of the commercial interests of an alleged counterfeiter, is "devoid of any merit"; plaintiff's billing rate and the amount of time spent on this case were not excessive; considering the mixed public/private reasons for pursuing this litigation, reduces plaintiff's fee request by 40%; awards plaintiff $26,905.80 in attorney fees and $6,620.81 in costs).

Prado v. Ilchert, No. C-95-1497, 1997 WL 383239 (N.D. Cal. June 10, 1997) (proper party defendant: agencies, not individuals, are proper party defendants under the FOIA; construing plaintiff's pro se complaint liberally, court names INS as the proper party defendant in this case) (jurisdiction: court lacks jurisdiction because INS did not create nor does it control the record plaintiff seeks; the record is in the possession of another Justice Department component, the Executive Office for Immigration Review).

Pray v. Dep't of Justice, No. 94-0072 (D.D.C. June 12, 1997) (duty to search: on remand, finds that the FBI's search of its Electronic Surveillance index was adequate in response to plaintiff's FOIA request for records pertaining to himself).

Prows v. Dep't of Justice, No. 90-2561, 1997 U.S. Dist LEXIS 4421 (D.D.C. Apr. 4, 1997) (adequacy of search: because there is evidence that documents responsive to plaintiff's FOIA request have not been identified, defendant must search its files for additional documents concerning DEA's Operation Grouper by May 10, 1997).

Pub. Citizen Health Research Group v. FDA, 964 F. Supp. 413 (D.D.C. 1997) (Exemption 4: defendant has not shown that disclosure of the protocol for a 10,000-patient post-marketing study of the drug Metformin would be likely to impair the government's ability to obtain necessary information in the future or cause substantial harm to the competitive position of the company that submitted the information; submission of report was not "voluntary" under Critical Mass, because study was necessary in order to obtain FDA approval of drug; FDA must submit a copy of the protocol for in camera inspection by March 6, 1997; manufacturer may submit additional memoranda precisely identifying the portions of the protocol that contain confidential commercial information that is not already public).

Ralph Hoar & Assocs. v. Nat'l Highway Traffic Safety Admin., 985 F. Supp. 1 (D.D.C. 1997) (attorney fees: plaintiff has substantially prevailed because defendant changed its position on its Exemption 7(A) withholding after plaintiff filed suit; public interest in the crash test videotapes of Chrysler minivans was, "without question, very great"; agency acknowledged that "it is impossible to know what personal pecuniary or other benefit" plaintiff would derive from the release of these records; because agency had already shared this information with the target of the investigation, agency did not demonstrate a reasonable basis in law for withholding the requested documents; plaintiff is eligible for and entitled to attorney fees; plaintiff allowed 48.08 hours spent on discovery issues because its aggressive litigation of the discovery issues led to the ultimate resolution of this case; grants plaintiff 6 hours spent on intervention issues even though defendant also opposed Chrysler's intervention; grants plaintiff fees and costs associated with its fee petition; grants plaintiff $42,026.04 in attorney fees and $3,139.96 in costs).

Salman v. Sec'y of the Treasury, No. N-96-296, 1997 WL 215508 (D. Nev. Jan. 2, 1997) ("no records" response: "the FOIA cannot be used to ferret out destroyed or non-existent documents" from the agency; agency is not required to create documents in response to a FOIA request) (proper party defendant: only federal agencies and departments are proper party defendants under the FOIA).

S.A. Ludsin & Co. v. SBA, No. 96-2146, 1997 U.S. Dist. LEXIS 8617 (S.D.N.Y. June 19, 1997) (fee waiver (Reform Act): denies plaintiff's fee waiver with respect to its FOIA request for real estate appraisals that plaintiff, a commercial entity with a government contract, would use to market and sell SBA properties; while sale of this property "would benefit the public treasury," wide dissemination of real estate appraisals is not "likely to contribute significantly to public understanding of the operations or activities of the government"; it is clear from plaintiff's contract with the SBA that its motive in making this FOIA request was commercial gain; even if the court were to balance plaintiff's "clear" commercial interest in these records against the public interest in disclosure, it would find that the benefit to the public would be financial, which is not within the definition of "public interest" in the statute).

Sheet Metal Workers' Int'l Ass'n Local Union No. 19 v. VA, No. 96-4120, 1997 WL 34681 (E.D. Pa. Jan. 28, 1997) (Exemptions 6 and 7(C): orders disclosure of certified payrolls records and apprentice registrations forms related to a hospital construction project, with only the employees' Social Security numbers redacted; based upon existing Third Circuit precedent, finds that the public interest in disclosure is not outweighed by the privacy interest in the contractor employees' names and addresses, payroll withholdings, net pay, gender, and racial status).

Shumaker, Loop & Kendrick v. Commodity Futures Trading Comm'n, No. 3:97-7139 (N.D. Ohio May 27, 1997) (Exemptions 2 "high": protect settlement guidelines because disclosure could adversely impact the agency's ability to negotiate settlements; agency has not shown that a set of memoranda addressing circumstances when various warnings are required to be used and that internal consultation guidelines are exempt from disclosure) (Exemption 5: the deliberative process privilege does not protect a memorandum concerning the agency's internal consultation guidelines, because it is an advisory document adopted as the official position of the agency; deliberative process privilege protects a memorandum concerning the review of Division of Enforcement memoranda, because there is no indication that the author of the document had authority to establish agency policy and there is no indication that the agency adopted the report).

Solar Sources, Inc. v. United States, No. 96-0772-C (S.D. Ind. Mar. 10, 1997) (Exemption 7 (threshold): records concerning Justice Department's criminal investigation of the commercial explosives and ammonium nitrate industries were "indisputably" compiled for law enforcement purposes) (Exemption 7(A): in order to determine the propriety of nondisclosure under this exemption the court needs further information about the withheld records; court orders in camera hearing on April 21, 1997 and issues directions for how the court-ordered sampling procedures should be executed).

Solar Sources, Inc. v. United States, No. 96-0772-C (S.D. Ind. Mar. 31, 1997) (modifies March 10 order; defendant must place into sample 50 pages from each 100 linear feet of documents in one category).

Sousa v. Dep't of Justice, Nos. 95-375, 95-410, 1997 U.S. Dist. LEXIS 9010 (D.D.C. June 18, 1997) (Exemption 3 [Rule 6(e)]: supplemental Vaughn Indices and affidavits demonstrate that disclosure of grand jury witness subpoenas, Assistant United States Attorney's (AUSA) handwritten notes, grand jury evidence, and the AUSA's case strategy would reveal a protected aspect of the grand jury's investigation) (Exemption 5: supplemental Vaughn Indices and affidavits demonstrate that the deliberative process privilege protects crime analyses provided by police officers for the use of the prosecutor in reaching a decision whether to prosecute plaintiff; because of the underlying murder trial, documents were reasonably believed to have been prepared in anticipation for litigation and are, therefore, protected by the attorney work-product privilege) (Exemption 6: protects the medical record of a co-defendant) (Exemption 7(C): supplemental Vaughn Indices and affidavits demonstrate that because identities of third parties are "inextricably intertwined" with nonsensitive material in the documents, documents must be withheld in their entireties) (duty to search: once a FOIA request is made, the only documents that an agency must search for are those that were in existence at the time the request was made; defendants' search was reasonably calculated to uncover all documents relevant to plaintiff's FOIA request).

Spirko v. United States Postal Serv., No. 96-0458 (D.D.C. Feb. 24, 1997) (Exemption 7(A): government has not demonstrated that disclosure of the requested documents would interfere with the proceeding pending against an individual charged with a postal employee's murder) (Exemption 7(C): on in camera inspection, finds that the exemption protects information that would identify suspects and law enforcement officers involved in the investigation) (Exemption 7(D): with respect to 3 pages, finds that the government has not made a showing that the information was provided under an implied promise of confidentiality; government must submit a supplemental affidavit within 11 days) (Exemption 7(F): without specification, finds that defendant properly withheld 14 documents because disclosure "could reasonably be expected to endanger the life or physical safety" of an individual).

Spirko v. United States Postal Serv., No. 96-0458 (D.D.C. Apr. 11, 1997) (Exemption 7(D): agency has demonstrated that the informant had an implied promise of confidentiality; exemption protects identity of and information provided by the informant) (Exemption 7(C): protects the identities of suspects, witnesses, and law enforcement officials).

Springmann v. Dep't of State, No. 93-1238 (D.D.C. Apr. 21, 1997) (adequacy of search: agency's affidavits are sufficiently detailed for court to find that it has made a good-faith search for records responsive to plaintiff's FOIA request; agency is not improperly withholding a record when it is no longer in possession of that record due to reasons that are not suspect; plaintiff only speculates that other records exist relating to his theory of illegal activity and corruption at the Jeddah Consulate) (Exemption 6: protects the identities of a foreign informant and of individuals not selected for tenure in the Foreign Service, because disclosure "would constitute a clearly unwarranted invasion of personal privacy") (Exemption 1: agency's affidavits do not demonstrate that the release of 2 paragraphs from a compliance review of the Riyadh Embassy would cause damage to national security; court sees "no logical connection" between our national security and information that reveals that Americans engaged in religiously offensive behavior by allegedly selling liquor to non-American Muslim employees at the embassy).

Steinberg v. Dep't of Justice, No. 90-2395 (D.D.C. Apr. 14, 1997) (adequacy of search: defendant has demonstrated that it has conducted a "search reasonably calculated to uncover all relevant documents" in response to plaintiff's FOIA request).

Steinberg v. Dep't of Justice, No. 93-2409, 1997 WL 224928 (D.D.C. Apr. 25, 1997) (duty to search: FBI's affidavits demonstrate that it conducted reasonable searches of its Charlotte and New York Field Offices; at the court's behest, the Richmond Field Office located an unnamed Special Agent who was able to locate one additional document (plaintiff did not contest agency's use of Exemptions 7(C) and 7(D) to partially redact this 3-page document)).

Steinberg v. Dep't of Justice, No. 93-2409, 1997 WL 349997 (D.D.C. June 18, 1997) (denies plaintiff's motion for reconsideration of court's April 25, 1997 order which held that the government had conducted a reasonable search in response to plaintiff's FOIA request; without confirming or denying the use of any exclusion, finds that if an exclusion was invoked, it was justified).

Tenaska Wash. Partners v. DOE, No. 8:96-128 (D. Neb. Feb. 19, 1997) (Exemption 7 (threshold): threshold requirement not met by routine internal audit that was not performed in response to allegations of violation of civil or criminal statutes) (Exemption 6: protects information that would identify individuals who provided information to the Inspector General during the audit because their privacy interests outweigh any possible public interest) (waiver: the name of one interviewee that was inadvertently disclosed will be treated as a "mistaken disclosure" and not as a waiver of any kind) (Exemption 5: agency has not carried its burden of proving that preliminary discussions of the audit were related in any manner to policy formation or contain anything other than factual material; the information is not exempt from disclosure under the deliberative process privilege and must be released).

Thomas v. Office of the United States Attorney, 117 F.R.D. 53 (E.D.N.Y. 1997) (exhaustion: since plaintiff did not request information concerning certain New York City clubs and bars in his initial FOIA request, plaintiff has not exhausted his administrative remedies with respect to these records).

Turner v. W. Va. State Police, No. 96-218 (D.D.C. Feb. 27, 1997) (exhaustion: plaintiff has never made a FOIA request to DEA; he must exhaust his administrative remedies before filing suit).

Twist v. Reno, No. 95-258, 1997 U.S. Dist. LEXIS 8981 (D.D.C. May 12, 1997) (Exemption 2 "low": protects internal file numbers contained in an internal Justice Department report because they are predominantly internal and so trivial as to be of no public interest) (Exemption 3 [Rule 6(e)]: protects information that would reveal the strategy or direction of a grand jury investigation) (Exemption 5: deliberative process privilege protects parts of internal report that were not part of the final agency decision and that contain the names of specific people and their advice, opinions, and suggestions) (Exemption 7 (threshold): portions of Office of Professional Responsibility report concerning plaintiff's fellow complainant in this matter and the names of third parties were not compiled for law enforcement purposes; other redactions concerning subjects of investigative interest were proper under this exemption because the information was compiled for law enforcement purposes) (Exemption 7(C): protects the identities of subjects of investigative interest).

Whitburn v. Dep't of the Treasury, No. 95-789-L, 1997 U.S. Dist. LEXIS 833 (W.D. Okla. Jan. 13, 1997) (attorney fees: there is no dispute as to plaintiff's eligibility for an award of attorney fees; disclosure of records compiled in connection with plaintiff's personnel dispute with the IRS resulted in a minimal benefit to the public; plaintiff's predominant purpose in requesting records was to exonerate himself; plaintiff's interest in the records was predominantly personal; defendant had "at least a colorable basis" for denying access to the documents; attorney fees denied).

Whitehurst v. FBI, No. 96-572 (D.D.C. Feb. 4, 1997) ("exceptional circumstances"/"due diligence": FBI is not entitled to a stay of these proceedings when more than 3 years have elapsed since plaintiff filed his first FOIA request and the agency has failed to release to him numerous documents it has already reviewed and cleared for release to others) (expedited processing: grants plaintiff's request for expedited processing of records concerning the scientific integrity of the FBI's crime laboratory; this information has been the subject of intense media scrutiny; plaintiff's allegations concerning the FBI's laboratory call into question public's confidence in the integrity of the FBI and the criminal justice system; documents generated by the Office of the Inspector General and not within the control of the FBI at the time of plaintiff's FOIA requests are not subject to expedited processing; defendant must release previously processed documents and plaintiff's personnel and medical files to plaintiff by February 21; materials requested in plaintiff's 1993 request shall be released to him within 30 days; materials requested in plaintiff's 1995 request shall be released to him within 45 days).

Wiesenfelder v. Riley, 959 F. Supp. 532 (D.D.C. 1997) (Exemption 2 "high": protects information concerning the Department of Education's oversight of student financial aid programs, including triggers or benchmarks that signify when enforcement action may be necessary, error rates that identify the Department's tolerance for mistakes, and dollar amounts of potential fines; information is "predominantly internal" because the Department uses it for enforcement purposes only; disclosure would "significantly risk circumvention of agency regulation") (adequacy of agency affidavit: agency's affidavit describes with "reasonable specificity" which documents, or portions of documents, are being withheld and specifies why this information is being protected; a Vaughn Index is not required where only one FOIA exemption is being claimed).

Williams v. FBI, No. 91-1054 (D.D.C. Apr. 15, 1997) (waiver of exemption: there is no rule that prohibits the district court from applying an additional FOIA exemption sua sponte on a motion for reconsideration) (Exemption 7(C): protects a file number, the names, addresses, and telephone numbers of witnesses, and FBI agents' code numbers and initials) (Exemption 7(D): protects the name of a confidential informant and a narrative of the investigation) (Exemption 7(E): protects a narrative summary of the drug-trafficking investigation conducted with regard to plaintiff, and also code numbers).   (posted 2/25/02)


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