The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of October through December 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.
Bensman v. United States Fish & Wildlife Serv., 49 F. App'x 646 (7th Cir. 2002) (attorney fees: district court acted within its discretion when it denied pro se plaintiff compensation for his personal work time, a new shirt, and computer expenses in this FOIA action where that requester sought information in connection with his efforts to protect a species of bat; a new shirt and computer expenses are "at best akin to overhead expenses" that are considered part of attorney fees; a pro se plaintiff is entitled for reimbursement of costs only, not attorney fees).
Carter v. United States Dep't of Commerce, 307 F.3d 1084 (9th Cir. 2002) (Exemption 5: affirms district court's finding that statistically adjusted data from the 2000 census are neither predecisional nor deliberative; the adjusted data were "prepared solely for the purpose of post-decision dissemination" and did not "contribute" to any agency decision; the release of the data would not reveal any protected deliberative process; rejects the government's argument that it would be less likely to adjust census data in the future if it were forced to release unreliable data, because "[i]naccuracy is not a basis for a FOIA exemption").
Ferranti v. ATF, No. 01-5451, 2002 WL 31189766 (D.C. Cir. Oct. 2, 2002) (per curiam) (grants government's motion for summary affirmance in this FOIA action, finding that government has addressed with specificity the applicability of Exemptions 2 and 7(C) to the redacted information).
Project v. NARA, No. 02-5089, 2002 WL 31296220 (D.C. Cir. Oct. 11, 2002)
(per curiam) (Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C.
Johnson v. Executive Office for United States Attorneys, 310 F.3d 771 (D.C. Cir. 2002) (Exemption 7(C): affirms district court finding that defendant agency took sufficient steps to investigate information affecting the privacy interests of 2 individuals who were discussed in documents pertaining to plaintiff's conviction; court declines "to establish a brightline set of steps for an agency to take" in determining whether third parties are alive or dead, because the FOIA, "requiring as it does both systematic and case-specific exercises of discretion and administrative judgment and expertise, is hardly an area in which the courts should attempt to micro manage the executive branch") ("reasonably segregable": all reasonably segregable, nonexempt information has been released).
Livshits v. Dep't of Justice, No. 02-5087, 2002 WL 31520350 (D.C. Cir. Nov. 13, 2002) (per curiam) (grants government's motion for summary affirmance in this FOIA action, finding that DEA conducted a reasonable search).
Nat'l Ass'n of
Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) (Exemption 6: orders
disclosure of "square and lot numbers" of pygmy owl nesting locations from which
private landowners' names and addresses could be determined; ruling that disclosure
of the fact of owl sighting reveals no information about the property owner
other than ownership of such property and that the agency's evidence of potential
for unlawful trespass to view owls is "weak"; agency's "use of the owl data
in the 1999 critical habitat determination" is a qualifying public interest
that outweighs the privacy interests involved) (Exemption 3 [16 U.S.C.
Ortloff v. Dep't of Justice, No. 02-5170 (D.C. Cir. Dec. 11, 2002) (per curiam) (duty to search: grants government's motion for summary affirmance, where requester did not challenge defendant agency's use of FOIA exemptions; finds that the agency conducted a reasonable search for records) (fee waiver: rules that district court's finding that requester had not met the standards for a grant of a fee waiver was not "arbitrary or capricious"; requester has not identified any public interest that would be served by release of the information that he claims to need to challenge his conviction, and he has not demonstrated that he has the ability to disseminate the requested information).
O'Toole v. IRS, 52 F. App'x 961 (9th Cir. 2002) (jurisdiction: affirms district court finding that requester failed to state a valid FOIA claim, because he seeks only monetary damages and the statute does not authorize such relief).
Perlman v. United States Dep't of Justice, 312 F.3d 100 (2d Cir. 2002) (Exemption 7 (threshold): requirement met by Inspector General report on the handling of the Alien Entrepreneur program that examined alleged improprieties by a former senior official at INS) (Exemption 6: report of investigation is a "similar file" because it is a "detailed Government record") (Exemption 7(C): affirms district court's finding that the privacy interests of witnesses and third parties outweigh the public interest in disclosure; vacates district court's ruling with respect to the senior official, because of his rank, the degree of his alleged wrongdoing and the strength of the evidence, the availability of the information, and the fact that the information sheds light on government activity and relates to the official's performance of his job; finds that the public interest in disclosure substantially outweighs the senior official's privacy interests, with limited exceptions).
Tarver v. Wash. Nat'l Guard, 52 F. App'x 411 (9th Cir. 2002) (mootness: FOIA action is moot because all records sought have been provided to the requester).
Tigue v. United States Dep't of Justice, 312 F.3d 70 (2d Cir. 2002) (Exemption 5: deliberative process privilege protects a 16-page memorandum that was prepared by an Assistant United States Attorney for the Webster Commission created by the IRS to assist it in developing policy regarding the conduct of criminal tax investigations; because the Commission was acting as a consultant to the IRS, the memorandum is an "inter-agency document"; the memorandum is predecisional because it was prepared for use by the Commission in advising the IRS on its future policy with respect to criminal tax investigations; a citation to and the publication of an excerpt of the memorandum in the Commission's report cannot be said to be an express adoption or incorporation so as to defeat the exemption's protection) ("reasonably segregable": on in camera inspection, at both the district and appellate court levels, finds that there are no reasonably segregable, nonexempt factual portions of the memorandum that may be released).
Toolasprashad v. Bureau of Prisons, No. 02-5114, 2002 WL 31741515 (D.C. Cir. Dec. 6, 2002) (per curiam) (grants government's motion for summary affirmance; district court properly found that defendant agency conducted a reasonable search in response to this FOIA request and that it properly withheld information under Exemption 6).
Andrews v. IRS,
No. 00-2702, 2002 U.S. Dist. LEXIS 22460 (D.D.C. Oct. 10, 2002) (Exemption 3
Cody Zeigler, Inc. v. United States Dep't of Labor, No. C2-00-134, 2002 WL 31159309 (S.D. Ohio Sept. 3, 2002) (Exemption 4: where plaintiff seeks several back issues of the "Dodge Reports" published by The McGraw-Hill Company and used by the Department of Labor to select work sites that will be subject to inspection, court applies the National Parks test and finds that the government has not shown that disclosure would cause competitive harm or make it more difficult for the government to obtain (buy) the reports in the future; Exemption 4 does not apply and plaintiff should be given access to the requested reports; in an unorthodox step to avoid a belatedly raised issue of copyright infringement, plaintiff agrees to review, but not copy, the information in the reports).
Coleman v. United States Dep't of Justice, No. 02-79-A (E.D. Va. Oct. 7, 2002) (exhaustion: in this FOIA action where plaintiff sought records concerning the 1992 shootings at Ruby Ridge, Idaho, finds that plaintiff has exhausted his administrative remedies only in part, yet incorrectly seeks judicial review of the case as a whole; plaintiff has exhausted his administrative remedies with respect to the agency's use of the statutory exemptions, but not concerning the adequacy of the agency's search; search issue is not properly before the court) (Exemption 3 [Rule 6(e)]: protects grand jury witness testimony) (Exemption 5: the attorney work-product privilege protects investigatory documents that contain the "mental impressions, conclusions, opinions or legal theories" of the attorneys involved) (Exemption 7(C): exemption protects the identities of people who aided in the investigation; because Ruby Ridge "arouses a visceral reaction from those who believe the actions of the FBI were unwarranted," the privacy interests of informants are "formidable").
Comer v. IRS, No. 97-76329, 2002 U.S. Dist. LEXIS 22891 (E.D. Mich. Oct. 30, 2002) (attorney fees and costs: grants pro se plaintiff $3729.42 in costs; pro se plaintiff's prosecution of lawsuit resulted in the release of a substantial number of documents that served the public interest "as an enforcement and vindication of the FOIA"; defendant's withholding of information had no reasonable basis in law; plaintiff was not motivated by a commercial interest; fees paid to a paralegal are not recoverable costs).
Dale v. IRS, 238 F. Supp. 2d 99 (D.D.C. 2002) (adequacy of request: court finds that "[t]his case is a prime example of how the unwillingness of the parties and counsel to a lawsuit to work together in managing the case may lead to an unnecessary expenditure of time and effort," and "the fault seems to lie primarily, although perhaps not exclusively, with the plaintiff, or more accurately with Judicial Watch"; while plaintiff's FOIA request for all records pertaining to himself is "too broad" and he did not respond to the IRS's letter explaining the additional information needed, the IRS on its own determined "the thrust of" plaintiff's FOIA request and what records the IRS possessed; although dismissal of the case on this basis "run[s] the risk of elevating form over substance given the history of this matter, . . . to do otherwise might reward Judicial Watch for its failure to engage in meaningful and reasonable discussions with the IRS"; "complaint is . . . fairly subject to dismissal" because plaintiff's "search request amounted to an all-encompassing fishing expedition of files at IRS office's across the country, at taxpayer expense" and thus "did not comply with IRS regulations") (fee waiver: dismisses the case because neither the requester nor Judicial Watch, his legal representative, has stated a commitment to pay the fees incurred in searching for and duplicating the responsive documents nor stated why plaintiff is entitled to a fee waiver; a party's counsel certainly is not the "requester" for purposes of a fee waiver).
Doe v. Veneman,
230 F. Supp. 2d 739 (W.D. Tex. 2002) ("Reverse" FOIA/Exemption 6: in this "reverse"
FOIA action brought by farmers and ranchers who have entered into cooperative
agreements with the federal government regarding the use of an anti-wolf livestock
protection collar and who seek protection of their own identities, finds that
the government improperly sought to disclose the identities of entrepreneurial
entities who have signed such agreements; because a signatory to the cooperative
agreement is not required to state whether it is a business entity or a private
individual, the agency was making an "overly technical distinction" between
individual and business; disclosure of information will not shed light on the
agency's performance of its statutory duties; agency is permanently enjoined
from any further attempt to release such information) (Exemption 3 [7 U.S.C.
Dow Jones Co., Inc. v. FERC, 219 F.R.D. 167 (C.D. Cal. 2002) (Exemption 7(A): in this FOIA action where plaintiff seeks disclosure of an appendix to a report of a FERC investigation into energy production and sales at 2 California power plants, finds that the agency has not shown that disclosure would interfere with a pending law enforcement proceeding; target companies have copies of the report; a court has never upheld the use of the exemption on the basis that disclosure would interfere with settlement discussions or impede the willingness of targets of investigation to disclose additional information voluntarily) (Exemption 7(B): agency has not shown that any trial or adjudication is "pending or truly imminent" or that disclosure would generate pretrial publicity that could deprive the companies or their employees of their right to a fair trial) (Exemption 7(C): incorrectly holding that the exemption does not protect the identities of company employees who cooperated with or who were mentioned in the investigation, because they are not accused of any criminal activity and because disclosure would not "otherwise intrude on their privacy" as the information is not "of an intimate personal nature" and there is a "great" public interest in information relevant to the California energy crisis and the agency's performance of its regulatory duties) (Exemption 4: applying the National Parks test, finds that the information in the appendix is largely commercial and financial in nature; agency has not shown that disclosure would impair its ability to obtain such information in the future; "[a]greements for confidentiality, standing alone, are insufficient to satisfy the requirements" of the exemption; declines to adopt Critical Mass because its holding "is not consistent with Ninth Circuit jurisprudence, nor with the purposes of Congress in enacting FOIA").
Harter v. IRS, No. 02-00325, 2002 WL 31689533 (D. Haw. Oct. 16, 2002) ("not an agency record" defense: the FOIA does not require an agency to do legal research, to answer questions, or to create documents in response to a FOIA request for information).
Homer J. Olsen, Inc. v. United States Dep't of Transp., No. C 02-00673, 2002 WL 31738794 (N.D. Cal. Dec. 2, 2002) (exhaustion: because plaintiff failed to challenge the adequacy of the defendant agency's search at the administrative level, it has not exhausted its administrative remedies on its adequacy-of-search claim) (mootness: plaintiff's request for discovery on the search issue is moot; plaintiff's substantive claims are moot where information has been disclosed by the defendant agency) (Exemption 6: disclosure of names of contractor and subcontractor employees "would constitute a clearly unwarranted invasion of personal privacy").
Iowa Citizens for Cmty. Improvement v. USDA, 256 F. Supp. 2d 946 (S.D. Iowa 2002) (Exemption 6: orders in camera inspection of a letter written by the nominee to the third-highest post in the USDA and an audiotape of a telephone conversation between the nominee and his brother during which the nominee allegedly admits and/or alludes to the fact that he has improperly received farm subsidies; finding that fitness for office is not a "valid public interest" under the FOIA; in light of the fact that farm subsidies have been improperly received and that the USDA has required partial repayment without undertaking further administrative action, the public has a right under the FOIA to disclosure of information about the nominee and his family members if it is relevant to an understanding of whether the actions or failures to act by the USDA were the result of the individual's status as a nominee; if the information concerns intra-familial relationships and is not relevant to such understanding, disclosure would be a "clearly unwarranted invasion of personal privacy"; nominee discussed the contents of the audiotape during his public confirmation hearings before the Senate; the privacy interests of nominee's brother and third parties are diminished because a transcript of the conversation was, at least partially, published in a local newspaper).
Johnson v. Comm'r,
239 F. Supp. 2d 1125 (W.D. Wash. 2002) (jurisdiction: court lacks subject matter
jurisdiction where plaintiff failed to exhaust her administrative remedies by
filing administrative appeals with respect to 6 requests) ("no improper withholding":
for 10 of plaintiff's FOIA requests, defendant either provided the requested
records or was unable to locate any responsive documents) (Exemptions 3 [26
Johnson v. Comm'r, No. C01-5490, 2002 U.S. Dist. LEXIS 23168 (W.D. Wash. Nov. 1, 2002) (jurisdiction: court lacks subject matter jurisdiction where plaintiff failed to exhaust his administrative remedies by filing administrative appeals with respect to one request) ("no improper withholding": for 15 of plaintiff's FOIA requests, the defendant agency either provided the requested records or informed plaintiff that the records did not exist or had been destroyed pursuant to the IRS's records-retention schedule) (attorney fees and costs: plaintiff is not entitled to an award of costs; plaintiff has not shown that the prosecution of this case was necessary to obtain the information requested) (proper party defendant: individual agency employees are not proper party defendants under the FOIA).
Johnson v. Executive Office for United States Attorneys, No. 98-0729 (D.D.C. Apr. 2, 2001) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts, subpoenas, and forms) (Exemption 7(C): protects information that would identify special agents, local law enforcement officers, government employees, and third parties who participated in plaintiff's criminal investigation and prosecution; disclosure of this information would not shed light on the agency's performance of its statutory duties; while it is the responsibility of the requester to provide proof that a third party is deceased, finds that defendant agency met its obligation to take "basic steps" by contacting state and federal probation offices, the United States Customs Service, and the Social Security Administration) (Exemption 5: without further elaboration, finds that the attorney work-product privilege protects juror lists containing handwritten comments of attorneys; protects attorney's notes for direct examination of trial witnesses because they were prepared in preparation of litigation and contain the prosecutor's approach to the presentation of testimony by the witnesses) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (fees: where defendant agency tardily refunded plaintiff's advance payment of $250 made in anticipation of duplication fees, denies plaintiff's request for interest on this money; defendant agency has waived all search and duplication fees, which would have amounted to $326.70).
Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, Nos. 01-1530, 02-631 (D.D.C. Nov. 1, 2002) (denies defendant's motion for a stay pending appeal where court ordered the defendant agency to respond to plaintiff's first set of interrogatories and to produce certain nonprivileged documents in discovery; defendant has not demonstrated a likelihood of success on the merits, irreparable harm, or public interest), certification for interlocutory appeal denied (D.D.C. Nov. 26, 2002).
Inc. v. Rossotti, No. 01-2672, 2002 U.S. Dist. LEXIS 25213 (D. Md. Dec.
16, 2002) (expedited processing: agency did not respond within 10 calendar days
to plaintiff's request for expedited processing of one of its FOIA requests,
but plaintiff's claim that it is the "victim of ongoing criminal activity" does
not meet the statutory definition of "compelling need") (exhaustion: plaintiff
failed to exhaust its administrative remedies with respect to this FOIA request
because there were only 16 working days between the date that it filed its request
and the date that it filed its amended complaint) (duty to search: agency conducted
reasonable searches in response to plaintiff's FOIA requests) (Vaughn
Index: agency's declarations are sufficient) (Exemption 3 [26 U.S.C.
Lacedra v. Executive Office for United States Attorneys, No. 99-0273 (D.D.C. Aug. 20, 2001) (duty to search: in this FOIA action where plaintiff requested 2 specific types of information concerning himself, finds that the defendant agency could have read plaintiff's request more broadly, but that its narrower interpretation was not unreasonable).
LaRouche v. United States Dep't of Justice, No. 90-2753 (D.D.C. Aug. 8, 2002) (Exemption 7(D): protects one document containing information obtained from a financial or commercial institution, because a subpoena was required by the institution before it would release the information; because the court finds that the sample Vaughn Index contains a "high error rate" (59%), the FBI must reprocess all records concerning informants whom the agency previously had asserted had been provided implied promises of confidentiality, and the information they provided; FBI must provide plaintiff all segregable information within 60 days and file with the court an appropriate Vaughn Index 30 days thereafter) (Exemption 7(C): FBI must apply the Exemption 7(C) balancing test to information no longer covered by Exemption 7(D), and segregate and release all nonidentifying information; the segregability analysis must be performed on documents relating to one particular informant, where his diminished privacy interest outweighs the nonexistent public interest in disclosure, unless specific information has been previously released).
Lawrence v. United States, No. 8:02-959, 2002 WL 32107636 (M.D. Fla. Nov. 12, 2002) (dismisses this FOIA action because the government has produced all requested records).
Mells v. IRS, No. 99-2030, 2002 U.S. Dist. LEXIS 24275 (D.D.C. Nov. 21, 2002) (exhaustion: plaintiff has exhausted his administrative remedies; defendant failed to provide him with a final agency determination on his request for a fee waiver) (fee waiver: defendant agency properly denied plaintiff a fee waiver for records containing exculpatory information that is "overwhelmingly personal" and not of significant public interest).
Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323 (D.D.C. 2002) (exhaustion: plaintiff has "constructively" exhausted his administrative remedies under the FOIA, either because the defendant agency failed to respond to his supplemental submission or because, when officially denying his FOIA request, the agency failed to notify him of his right to appeal the denial or to seek judicial review) (adequacy of request: plaintiff has not described the documents that he seeks with "sufficient particularity" to enable agency personnel to locate the desired records, where he has asked only for a form that he allegedly signed in 1955 entitled "Volunteer for Duty Above and Beyond the Call of Duty" to include duties such as a "Mind Control Program").
Osipova v. N.Y. City Dep't of Health, No. 02 Civ. 5072, 2002 U.S. Dist. LEXIS 22297 (S.D.N.Y. Nov. 19, 2002) ("not an agency" defense: the Police Department of New York City is not an agency of the federal government and, therefore, is not subject to the FOIA).
Rubis v. DEA, No. 01-1132 (D.D.C. Sept. 30, 2002) (Exemption 7(C): protects the identities of government employees and third parties contained in DEA's investigatory files) (Exemption 7(D): protects the identities of and information provided by sources who provided information to DEA under implied promises of confidentiality) (Exemption 7(F): protects the identities of DEA Special Agents and Supervisory Special Agents who routinely deal with violators who are armed and dangerous, because disclosure would place them in danger by interfering with their undercover and investigatory duties) (waiver: exemptions are not waived by the fact that plaintiff might well already know the identities of the individuals, because defendant has sufficiently demonstrated the applicability of the exemptions) ("reasonably segregable": all reasonably segregable, nonexempt information has been disclosed).
Rugiero v. United States Dep't of Justice, 234 F. Supp. 2d 697 (E.D. Mich. 2002) (Exemption 7(D): DEA's affidavit demonstrates that coded informants received express promises of confidentiality; DEA's affidavit demonstrates that the remaining sources were given implied promises of confidentiality, because of the nature of the sources' relationships with plaintiff and because plaintiff was convicted of being the head of an armed cocaine distribution conspiracy; even though indications of personal acts of violence by plaintiff are absent from DEA's files, because his crimes "inherently involve violence and risk of retaliation," a cooperating source could reasonably expect to be treated as confidential) ("reasonably segregable": while agency's affidavits arguably meet the Sixth Circuit's remand instructions, plaintiff has raised enough doubt to deny summary judgment on this issue; examination of 19 previously withheld pages does not support the government's contentions that all information in the withheld documents is "so inextricably intertwined" with exempt information that only "meaningless words and phrases" would be disclosed or that the value of any intelligible nonexempt information is outweighed by the burden on the government and the court) (in camera inspection: within 90 days, government must provide the court, for purposes of in camera review, with the 364 documents withheld in their entireties, because of "the Sixth Circuit's subtle encouragement to utilize in camera review in this case").
Schwarz v. HHS,
No. 00-1610 (D.D.C. Sept. 30, 2002) (in this FOIA action where plaintiff filed
a 189-page Complaint against 465 entities of the federal government, dismisses
the action under 28 U.S.C.
Snyder v. CIA,
230 F. Supp. 2d. 17 (D.D.C. 2002) (mootness: plaintiff's FOIA request is not
moot just because the CIA has responded to his request for records; plaintiff
has a cognizable interest in whether the CIA's search for records was adequate
under the FOIA and the relevant case law) (adequacy of search: defendant conducted
a reasonable search in response to plaintiff's FOIA request for records pertaining
to himself maintained by the CIA; with respect to 3 documents identified by
plaintiff that were not produced, defendant shall either provide plaintiff with
a copy of these records or justify their withholding under the appropriate FOIA
exemptions) (Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C.
Starkey v. United
States Dep't of Interior, 238 F. Supp. 2d 1188 (S.D. Cal. 2002) (Exemption
3 [16 U.S.C.
TPI Int'l Airways, Inc. v. Dep't of Transp., No. 95-2035, 1996 WL 33401175 (Bankr. S.D. Ga. Feb. 29, 1996) (jurisdiction: dismisses proceeding for lack of subject matter jurisdiction; exclusive jurisdiction over FOIA matters lies in the District Courts).
on Nuclear Arms Control v. United States Dep't of Commerce, No. 99-2673
(D.D.C. Sept. 4, 2001) (Exemption 3 [50 U.S.C. app.
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