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New FOIA Decisions, January-March 2003

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of January through March 2003. 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.


Supreme Court

United States Dep't of Justice v. City of Chicago, 537 U.S. 1229 (2003) (March 4 oral argument cancelled, and lower court judgment vacated, in this FOIA action where requester sought full access to ATF's weapons-tracking databases; on remand, the Court of Appeals for the Seventh Circuit now is to consider the effect on this case of the recently enacted Consolidated Appropriations Resolution, Division J, Title 6, section 644, which specifically prohibits ATF's use of appropriated funds to take any action on FOIA requests for such data). (Note that with the recent transfer of the Bureau of Alcohol, Tobacco, Firearms, and Explosives from the Department of the Treasury to the Department of Justice, pursuant to the Homeland Security Act of 2002, the Department of Justice was substituted as the defendant agency in this case.)


Appeals Courts

Dueñas Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of search: defendant agency conducted a reasonable search for records in response to plaintiff's FOIA request for records concerning himself and his bank; issue of sufficiency of the government's affidavit is not properly before this court because plaintiff did not challenge the adequacy of the government's affidavit in district court; failure to locate a particular document does not render a search inadequate; defendant agency's initial delay in searching for records was "reasonable").

Eltayib v. United States Coast Guard, 53 F. App'x 127 (D.C. Cir. 2002) (per curiam) (affirms district court's rulings; pro se plaintiff is not entitled to attorney fees under the FOIA; the FOIA does not authorize the payment of damages).

FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607 (5th Cir. 2003) (per curiam) (Exemption 4: affirms district court finding that disclosure of salary and wage information in the form of surveys of business establishments would impair the agency's ability to collect such data in the future) ("reasonably segregable": on appellate review of the representative sampling of documents reviewed in camera by the district court, finds that all reasonably segregable, nonexempt information has been released; "any disclosable information is so inextricably intertwined with the exempt, confidential information that producing it would require substantial agency resources and produce a document of little informational value"; agency need not insert new information in the place of redacted information).

Ford v. United States Dep't of Justice, No. 02-7538 (4th Cir. Feb. 5, 2003) (per curiam) (affirms district court ruling that plaintiff has not exhausted his administrative remedies where the FBI did not timely respond to his FOIA request but responded before suit was filed, and where the agency denied as untimely plaintiff's appeal of the initial denial because he sent it nearly 10 years after the adverse decision).

LaCedra v. Executive Office for United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003) (duty to search: reverses and remands to district court for further proceedings; district court improperly found that defendant agency's interpretation of plaintiff's FOIA request was reasonable; in view of government's obligation "to construe a FOIA request liberally," its narrow reading of plaintiff's FOIA request -- for "all documents pertaining to my case . . . [and] specifically" for rewards and fingerprints -- to include only those specific items was "simply implausible" and "also wrong"; because the defendant agency's interpretation of the request was "at least colorable," declines plaintiff's further invitation that it apply Maydak v. United States Dep't of Justice to rule that on remand the government should not be allowed to apply any applicable exemptions; rather, agency will apply exemptions on remand).

Lissner v. United States Customs Serv., 56 F. App'x 330 (9th Cir. 2003) (attorney fees: district court abused its discretion by failing to award attorney fees for plaintiff's initial, unsuccessful motion for attorney fees and costs, because his lawsuit caused the release of some information and the fee petition "was a necessary step in his eventual victory"; district court abused its discretion by reducing attorney hours and billing rates without considering all of the submitted evidence; awards plaintiff full attorney fees and costs for this appeal).

Nat'l Ass'n of Home Builders v. Norton, No. 01-5283 (D.C. Cir. Feb. 3, 2003) (denies government's petition for panel rehearing in this FOIA case where the appeals court ordered the disclosure of "square and lot numbers" of pygmy owl nesting locations, observing that the agency cannot now argue that there is a public interest in nondisclosure because it had not made this argument previously).

Palacio v. Dep't of Justice, No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31, 2002) (per curiam) (grants government's motion for summary affirmance in this FOIA action; government's affidavits show that information was properly withheld under Exemption 7(C) (identities of suspects, witnesses, and investigators) and Exemption 7(D) (confidential sources given an express promise of confidentiality); all "reasonably segregable," nonexempt information has been released).

Sw. Ctr. for Biological Diversity v. United States Forest Serv., 314 F.3d 1060 (9th Cir. 2002) (Exemption 3 [16 U.S.C. 5937]: the district court properly applied a recently enacted Exemption 3 statute in existence at the time of its decision, rather than the law that was in existence at the time the suit was filed; statute protects from disclosure all information tending to identify the location of northern goshawk nest sites).

Wilson v. CIA, No. 02-5282, 2003 U.S. App. LEXIS 1290 (D.C. Cir. Jan. 24, 2003) (per curiam) (duty to search: district court properly found that the CIA conducted a reasonable search in response to plaintiff's FOIA request).

Wis. Project on Nuclear Arms Control v. United States Dep't of Commerce, 317 F.3d 275 (D.C. Cir. 2003) (Exemption 3 [50 U.S.C. app. 2401]: in a 2-to-1 decision, ruling that export license application information is protected from disclosure because even though this section lapsed in 1994, President Clinton, pursuant to the International Emergency Economic Powers Act, retroactively continued operation of this statute by executive order, thus maintaining a sufficiently specific "statutory scheme" to trigger Exemption 3).


District Courts

Appleton v. FDA, 254 F. Supp. 2d 6 (D.D.C. 2003) ("exceptional circumstances"/"due diligence": grants defendant agency's motion for an Open America stay; FDA has demonstrated good-faith efforts and due diligence in processing plaintiff's FOIA request and reasonable efforts in reducing its backlog; age of the plaintiff is not a factor that courts are to consider in evaluating a motion for an Open America stay; pending resolution of the difference between the parties as to the scope of plaintiff's request, holds in abeyance that part of defendant agency's motion that asks for a March 15, 2004 deadline).

Bassiouni v. CIA, 248 F. Supp. 2d 795 (N.D. Ill. 2003) (Vaughn Index: Vaughn Index is inappropriate at this time; both parties must address the specific issues that pertain when the CIA is a defendant in a FOIA case).

Billington v. United States Dep't of Justice, 245 F. Supp. 2d 79 (D.D.C. 2003) (Exemption 6: on remand, inspects 2 documents in camera and finds that the State Department must release all of the withheld information except for the identities of third parties mentioned in interview notes who at one time belonged to a controversial organization; the "minimal" privacy interests of a reporter and the people that he interviewed are outweighed by the public interest in learning of the agency's performance of its statutory duties) (Exemption 7(C): the IRS must release 2 entire pages, withholding only names, telephone numbers, and "other" information that would identify an IRS employee, an FBI Special Agent, and third parties, because their "substantial" privacy interests outweigh the public interest in disclosure; the FBI must show that all reasonably segregable, nonexempt portions of documents have been released) (waiver: individual who admitted that he was an FBI informant possesses a diminished privacy interest under Exemption 7(C), but has not waived its protection; FBI must determine whether portions of 3 documents may be segregated and released) (Exemption 7(D): FBI has not demonstrated that sources who have "numbered files" were given express promises of confidentiality).

Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003) (adequacy of agency affidavit: strikes portions of the FBI's affidavits; FBI has not shown that the Acting Chief of its FOIA Office's Litigation Branch has the personal knowledge necessary to prepare the declaration in this case; substantial portions of the affidavits contain affiant's impermissible opinion testimony) (Exemption 7(C): because a "question of innocence and law enforcement misconduct is at stake, the public interest is profoundly strong"; affiant lacks personal knowledge of the contents of the redacted information and has not demonstrated that third parties were of investigative interest to the FBI; because the number of third parties is small, determining whether they are dead or alive will not be "an excessive burden" on the FBI) (Exemption 7(D): FBI's affiant in Washington, D.C. has not demonstrated personal knowledge of a confidentiality agreement assertedly made in Louisiana 6 years ago; FBI must submit an unredacted version of the document to the court for in camera inspection by March 6 and may file supplemental affidavits at the same time).

Caraveo v. Nielsen Media Research, Inc., No. 01Civ.9609, 2003 WL 169767 (S.D.N.Y. Jan. 22, 2003) (magistrate's recommendation) (adequacy of request: plaintiff's letters to the EEOC were not "clearly and prominently" identified as FOIA requests, as required by EEOC regulations) (exhaustion: in his complaint, plaintiff does not allege that he exhausted his administrative remedies under the FOIA).

Ctr. for Int'l Envtl. Law v. Office of the United States Trade Representative, 237 F. Supp. 2d 17 (D.D.C. 2002) (proper party defendant: finding no case law for the proposition that the FOIA precludes suit against individuals in their official capacities) (Exemption 5: incorrectly applying Klamath Water Users Protective Ass'n v. Dep't of the Interior, 532 U.S. 1 (2001), finds that Exemption 5 does not protect any document or document portion submitted by Chile or shared with Chile relating to the United States-Chile Free Trade Agreement, on the basis that Chile was an adversary of, rather than a consultant to, the United States Trade Representative in the context of the trade negotiations; inexplicably declaring that "the critical factor" in considering the applicability of Exemption 5 to an outside party "is the degree of self-interest pursued by that party," despite Klamath, and that the records at issue do not qualify as "inter- or intra-agency" documents; "Chile is an independent sovereign state and its participation in the development of a trade agreement with the United States, however mutually advantageous, cannot rightly be characterized as advice or consultation"; even though the United States promised confidentiality to Chile at the outset and disclosure "may complicate international negotiations on free trade,". . . "such policy concerns cannot trump the plain language" of the FOIA; documents must be released; factual portions of internal agency documents that describe meetings with or proposals from Chilean officials must be segregated and released) (Exemption 1 [E.O. 12,958]: disclosure of 5 documents could harm national security by undermining United States trade negotiation positions and posing a serious risk of harm to our relations with our trading partners; plaintiff has failed to demonstrate that the exemption has been waived by pointing to specific information in the public domain) (Vaughn Index: defendant agency's Vaughn Index is sufficient).

Ctr. for Int'l Envtl. Law v. Office of the United States Trade Representative, No. 01-2350 (D.D.C. Jan. 16, 2003) (grants defendant a limited stay until January 30 in which to file an appeal and a motion for expedited consideration of the court's December 19, 2002 disclosure order for records relating to the United States-Chile Free Trade Agreement, in which case the stay will continue; while defendant has not shown a high probability of success on the merits, it has demonstrated both "a substantial case on the merits" and irreparable harm because disclosure will render any appeal moot and will destroy the defendant's "rights to secure meaningful review"; the stay is limited in this case because plaintiff will be able to make "meaningful use" of the documents to which it is entitled only in the next several months and the public has a strong interest in the transparency of the government's negotiation of a significant trade agreement).

Citizens Progressive Alliance v. United States Bureau of Indian Affairs, 241 F. Supp. 2d 1342 (D.N.M. 2002) (per curiam) (Exemption 5: in this FOIA action where plaintiff seeks information concerning Indian Tribes' water rights, factually distinguishes the circumstances of this case from those found problematic in Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), finding that the exemption's threshold requirement is satisfied under the "consultant corollary" that remains after Klamath absent an outsider's pursuit of a direct interest at another's expense; on in camera inspection, finds that the inter- or intra-agency requirement is met by a "memo to file" written by a Bureau of Indian Affairs (BIA) employee and a letter written by a BIA Assistant Area Director and sent to the lead attorney for the litigation in the Justice Department; finds that the inter- or intra-agency requirement is met by a letter and a preliminary assessment of the water rights claims prepared by a consultant to the BIA; the deliberative process privilege protects all 4 records because they contain opinions and recommendations concerning the water rights adjudication; the attorney work-product privilege protects all 4 records because they were prepared in anticipation of litigation, contain the mental processes of the attorney, and explore various legal strategies, including seeking a negotiated settlement and consent decree; the attorney-client privilege protects the BIA letter written to the Justice Department attorney, because it is a confidential communication between client and attorney; privileges were not waived when the Justice attorney confidentially disclosed both letters and the preliminary assessment to the attorney for the intervenors because the "common interest privilege" (which actually operates as an exception to the inherent confidentiality requirement of the attorney-client privilege or the attorney work-product privilege itself) allows attorneys facing a common litigation opponent to exchange privileged communications and attorney work-product in order to adequately prepare a defense) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (duty to search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request; agencies are not required to create records in response to FOIA requests; plaintiff has not demonstrated that the defendant agency's response letter failed to include the reason for its denial of records) (fee waiver: where defendant agency initially deferred consideration of plaintiff's fee waiver request pending plaintiff's clarification of its FOIA request, the FOIA Appeals Officer treated the initial deferment as a denial and properly affirmed the fee waiver denial because plaintiff did not demonstrate that disclosure would contribute significantly to public understanding of the operations of the government).

Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal. 2003) (Vaughn Index: defendant agency's Vaughn Index is sufficient) (Exemption 7 (threshold): requirement met by information that the Customs Service compiled about the examination of merchandise arriving at the Los Angeles/Long Beach seaport, because the numbers allow Customs to evaluate its performance of its border security responsibilities) (Exemption 7(E): disclosure of the number of containers examined from 1998 to 2001 could enable terrorists and smugglers to evade detection because they could use this information, together with other publicly available information, to discover the percentage of containers examined and then to direct their containers to "vulnerable ports"; plaintiff has not shown that new anti-terrorism programs would make past trends in the rate of examination worthless to those who would try to evade Customs laws) (Exemption 2 "high": information concerning the examination of merchandise at the Los Angeles/Long Beach seaport is "predominantly internal" and disclosure, for reasons stated above, would risk circumvention of Customs laws and therefore is protected under this exemption as well; Exemption 2 is available for such information even under the "Ninth Circuit test" for that exemption under its Maricopa Audubon Society case, because it is "law enforcement" information within the exception preserved in that case) (waiver of exemption: defendant agency has previously disclosed the same category of information, but not the exact information at issue here).

Davis v. United States Dep't of Justice, No. 00-2457 (D.D.C. Mar. 11, 2003) (duty to search: FBI has shown that it conducted a reasonable search for records in response to plaintiff's FOIA request; pursuant to Department of Justice's FOIA regulations, FBI was obligated to search only its headquarters, absent a clear indication that plaintiff sought records maintained in an FBI field office; FBI has not shown that it conducted a search for records that plaintiff requested in his 6-page exhibit attached to his FOIA request; FBI may file a renewed motion for summary judgment in 60 days).

Davis v. United States Dep't of Justice, No. 00-2457 (D.D.C. Mar. 21, 2003) (duty to search: FBI has shown that it conducted a reasonable search for records in response to plaintiff's FOIA request) (Exemption 2 "low": protects source symbol numbers and source file number assigned to 5 informants, because they are trivial and disclosure offers no genuine public benefit; "high": protects the telephone number of a secure telephone line through which the FBI transmits classified or sensitive information, because disclosure significantly could risk circumvention of the FBI's law enforcement activity) (Exemption 3 [Rule 6(e)]: protects grand jury materials because disclosure would reveal the scope and direction of the grand jury's inquiry; [31 U.S.C. 5319]: protects a report filed under the Bank Secrecy Act) (Exemption 7 (threshold): records concerning plaintiff were compiled by the FBI in the course of its investigation of plaintiff for fraud-by-wire in the operation of a financial services company) (Exemption 7(C): protects information that would identify FBI Special Agents and support personnel, other federal employees, third parties, informants, subjects of investigative interest, bank personnel, and state, local, federal, and foreign law enforcement personnel) (Exemption 7(D): FBI has not demonstrated that close business associates and acquaintances of plaintiff's provided information to the FBI under implied assurances of confidentiality; within 60 days, the FBI must submit a supplemental declaration providing sufficient detail for withholding this information; FBI has demonstrated that express promises of confidentiality were given to informants assigned source symbol numbers, a cooperating witness, third-party sources, and New Scotland Yard; FBI has not demonstrated that an express promise of confidentiality was given to a financial institution; within 60 days, the FBI must submit a supplemental declaration providing sufficient detail for withholding this information) (Exemption 7(E): protects numerical ratings given by the FBI to publicly known law enforcement techniques, because disclosure could reasonably be expected to risk circumvention of law) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Davis v. Dir. of Dallas County Jail, No. 3-02-CV-2363, 2003 WL 102617 (N.D. Tex. Jan. 8, 2003) (jurisdiction: court lacks jurisdiction because the FOIA applies to only requests for federal agency records, not state and local or judicial records).

Edmonds v. FBI, No. 02-1294, 2002 WL 32539613 (D.D.C. Dec. 3, 2002) ("exceptional circumstances"/"due diligence": FBI has shown that exceptional circumstances prevented it from responding to plaintiff's FOIA request within the statutory time limits; FBI has drastically reduced its backlog, but it has had to divert personnel to assist in ongoing investigations of terrorist attacks, and FOIA personnel are needed to work on related administrative and litigative matters) (expedited processing: plaintiff's pending non-FOIA lawsuit notwithstanding, under agency regulation a plaintiff need not satisfy the "compelling need" test to qualify for expedited processing, but may satisfy an alternative regulatory standard by showing "widespread and exceptional media interest" and "possible questions about the integrity" of the government; plaintiff has shown that disclosure of information concerning her allegations of security lapses in the FBI's translator program is a matter of interest to the members of the Senate and to the media and that there exist questions about the FBI's integrity which affect public confidence; Open America stay denied; plaintiff's motion for expedited processing granted).

Elec. Privacy Info. Ctr. v. DOD, 241 F. Supp. 2d 5 (D.D.C. 2003) (fees (media requesters): plaintiff, a nonprofit, tax-exempt, educational organization, is a "representative of the news media" for purposes of the FOIA; the determinative question is the organization's "activities," not its corporate structure; a "representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience"; plaintiff publishes a biweekly electronic newsletter and has compiled and published 7 books relating to privacy and civil rights; merely maintaining a Web site, by itself, is insufficient to qualify a FOIA requester as a representative of the news media).

Elec. Privacy Info. Ctr. v. Office of Homeland Sec., No. 02-620 (D.D.C. Dec. 26, 2002) (discovery in FOIA litigation: because defendant agency's affidavits do not demonstrate that the Office of Homeland Security and the Homeland Security Council are not "agencies" for purposes of the FOIA, grants plaintiff 60 days in which to complete limited discovery on this narrow threshold question).

Enviro Tech Int'l, Inc. v. EPA, No. 02 C 4650, 2003 U.S. Dist. LEXIS 25493 (N.D. Ill. Mar. 11, 2003) (regulations: EPA failed to comply with its regulations when a staff person, rather than a division director, signed EPA's denial of plaintiff's FOIA request; there is no authority suggesting that failure to comply with such a regulation mandates disclosure; plaintiff had an opportunity to depose the defendant agency on this point and did not do so) (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request; "government need not demonstrate that all responsive documents were found and that no other relevant documents could possibly exist") (Vaughn Index: Vaughn Index is sufficiently detailed and nonconclusory) (Exemption 5: deliberative process privilege protects 37 records prepared to assist defendant agency in recommending a workplace exposure limit to n-Propyl Bromide (nPB) and that reflect internal discussions; while EPA lacks the statutory authority to regulate workplace exposure limits for nPB, Exemption 5 contains no requirement restricting its application to only agency activities specifically authorized by Congress) (waiver of exemption: plaintiff has not demonstrated that the information at issue is exactly the same as what is in the public domain).

Ford v. United States Dep't of Justice, No. 3:00CV334-02 (W.D.N.C. Sept. 18, 2002) (exhaustion: plaintiff has not exhausted his administrative remedies where the FBI did not timely respond to his FOIA request, but it responded before suit was filed, and where the agency denied as untimely plaintiff's appeal of the initial denial because he sent it nearly 10 years after the adverse decision).

Friedman v. United States, No. 01Civ.7518, 2003 WL 1460525 (S.D.N.Y. Mar. 18, 2003) (magistrate's recommendation) (FOIA claim should be dismissed because plaintiff never specified the documents that he wanted nor whether the requested documents were "agency records" that were improperly withheld).

Gallace v. USDA, 273 F. Supp. 2d 53 (D.D.C. 2003) (exhaustion: because plaintiff did not challenge USDA's interpretation of her FOIA request in her administrative appeal, review in this court is barred) (duty to search: after notifying plaintiff, the defendant agency properly limited its search for records by giving a reasonable reading to plaintiff's "vague and poorly worded" FOIA request; while USDA's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request, an agency must reassess what a "reasonable" search is to account for leads that emerge during its inquiry; USDA must search the offices of 2 agency employees who each held at least one document responsive to plaintiff's request).

Gutman v. United States Dep't of Justice, 238 F. Supp. 2d 284 (D.D.C. 2003) (duty to search: defendant agency has shown that it conducted a reasonable search in response to plaintiff's FOIA request for records about his conviction for conspiracy to commit Medicare fraud; the belated release of 3 additional documents does not demonstrate bad faith requiring denial of defendant's summary judgment motion) (Exemption 5: the deliberative process privilege protects portions of 3 documents prepared to assist the Deputy Attorney General in reaching a final decision and that contain recommendations and requests for approval of proposed actions; the attorney work-product privilege protects portions of one document in which the United States Attorney's Office advised the Attorney General why it sought review of the Magistrate Judge's bond determination, even though plaintiff has now been convicted and is serving a term of incarceration) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Horner v. EPA, No. 00-0535 (D.D.C. Feb. 12, 2003) (Exemption 5: plaintiff has not shown that records pertaining to the Kyoto global warming protocol are outside the protection of this exemption, because plaintiff failed to show that EPA engaged in impermissible conduct) (Vaughn Index: while finding that EPA has not produced a sufficient Vaughn Index to support its withholding of about 124 records, court notes that many of the withheld records may well be deliberative in nature and that draft documents are generally protected under the deliberative process privilege; on remand, EPA must review all withheld documents in full and must provide a supplemental Index by March 31) ("reasonably segregable": EPA has not made the necessary showing that all reasonably segregable, nonexempt information has been released) (duty to search: EPA has not demonstrated that it conducted a reasonable search in response to one of plaintiff's FOIA requests; EPA must reprocess this request by March 31).

Jongeling v. United States Army Corps of Eng'rs, No. 02-1020, 2003 WL 23317700 (D.S.D. Jan. 2, 2003) (Exemption 5: attorney work-product privilege cannot be claimed because defendant agency has not shown that the records at issue were prepared "in anticipation of litigation" or "because of" the prospect of litigation; on in camera inspection, finds that the deliberative process privilege protects portions of a flood control report and two of its attachments because they were predecisional and were not adopted as part of any final agency decision; the court has redacted deliberative portions of the report and attachments and finds that the remaining factual portions should be disclosed; the redacted copy will be filed under seal until the time for appeal has expired).

Lissner v. United States Customs Serv., No. 98-7438 (C.D. Cal. Oct. 2, 2001) (attorney fees: plaintiff is entitled to attorney fees in this case where the requester sought records about an incident in which the Customs Service arrested two California police officers for drug smuggling activity; disclosure would allow the public to determine whether the officers were given preferential treatment because of their status as law enforcement officers; disclosure will confer no tangible personal benefit on plaintiff; the Ninth Circuit Court of Appeals ruled that the agency could not withhold the information as a matter of law; awards attorney fees to plaintiff; reduces some of the hourly rates plaintiff seeks because plaintiff provides no evidence as to the experience level of its attorneys and paralegals nor the comparable rates in the area; because they are redundant and not reasonable, reduces the number of hours for most of the "task categories" of this litigation; where $147,239.88 in attorney fees and costs had been sought, grants plaintiff a total of $70,167.38).

Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) (Exemption 2 "high": applying the Tenth Circuit's test set forth in Audubon Society v. United States Forest Service, finds that this exemption does not protect inundation maps prepared by the Bureau of Reclamation (BOR) for the areas below Hoover Dam and Glen Canyon Dam, because the maps are not sufficiently related to BOR's "internal personnel rules and practices") (waiver of exemption: defendant agency may invoke an exemption for the first time at the district court level) (Exemption 7 (threshold): for this mixed-function agency, finds that exemption's threshold requirement is met by inundation maps because they are presently used (and even were originally compiled) "in direct relation to the BOR's statutory law enforcement mandate") (Exemption 7(E): BOR has not "explain[ed] how" release of the inundation maps "would disclose techniques and procedures for law enforcement investigations") (Exemption 7(F): exemption is not limited to the protection of law enforcement personnel, nor to the protection of named individuals only; exemption protects inundation maps because disclosure "could reasonably place at risk the life or physical safety of those individuals," communities, or infrastructure in the downstream areas that would be flooded by a catastrophic breach of the dams, i.e., threaten downstream harm; "release of the maps could increase the risk of an attack on the dams" by terrorists, so nondisclosure is warranted on that basis).

Madison Mech., Inc. v. NASA, No. 99-2854, 2003 U.S. Dist. LEXIS 4110 (D.D.C. Mar. 20, 2003) (magistrate's recommendation) (Vaughn Index: NASA's Vaughn Index is insufficiently detailed to allow the court to conduct a meaningful review of the information withheld; NASA should be required to produce a supplemental Vaughn Index) (Exemption 4: applying the National Parks competitive harm test, finds that NASA has not shown that disclosure of pricing information submitted in connection with a government contract would cause substantial competitive harm to the parties; an evidentiary hearing should be held on this issue) (Exemption 5: NASA has not shown that the deliberative process privilege protects evaluations of proposed costs; documents should be made available to the court for in camera inspection) (adequacy of agency affidavit: NASA declarant has not shown that he has personal knowledge of the FOIA investigation or of the documents at issue; recommends that NASA submit revised affidavits).

N.Y. Pub. Interest Research Group v. EPA, 249 F. Supp. 2d 327 (S.D.N.Y. 2003) (Exemption 4: on in camera inspection of a representative sampling of 43 records, rules that the exemption does not protect GE's submissions to EPA constituting its recommendations as to how best to clean up its carcinogenic pollutants in the Hudson River Superfund site; while GE is a commercial entity, the alternative clean-up solution and analyses do not reveal anything about it as a commercial entity; submitted records "are precisely the kind of information that would shed light on agency decision-making"; in dicta, declines to apply the D.C. Circuit's Critical Mass decision because no other circuit court has expressly adopted it, the Second Circuit has not commented on it, and, if adopted, the test for confidentiality would be controlled "not by the central purpose of FOIA," but would give "conclusive status to that which the submitter characterizes as confidential"; "National Parks accommodates both voluntarily submitted and compelled information"; despite both parties' intention that the information submitted would remain confidential, GE had significant external incentives to provide the information to the government; EPA has not shown that disclosure would impair the government's ability to obtain desired information in the future; in further dicta, finds that even if Critical Mass were applied, EPA has not demonstrated that GE would "customarily hold such information in confidence" because, lacking an affidavit from GE, the agency's conclusion is mere speculation; information must be disclosed) (Exemption 5: after in camera inspection of 6 records and consideration of EPA's affidavit, finds that they are protected by the deliberative process privilege because disclosure would reveal the agency's decision-making process; with respect to information the agency sought to withhold under both Exemptions 4 and 5, the parties shall confer and submit a joint letter to the court).

Parenti v. IRS, No. C02-5286, 2003 U.S. Dist. LEXIS 3641 (W.D. Wash. Feb. 10, 2003) (FOIA action dismissed as moot; after conducting a reasonable search, IRS provided plaintiff with all responsive documents; IRS, rather than the IRS Commissioner or individual agency employees, is the proper party defendant).

Piron v. Justice Dep't, No. 01-0919 (D.D.C. Mar. 10, 2003) (because the Justice Department's Executive Office for United States Attorneys (EOUSA) did not "read plaintiff's FOIA request carefully," it did not search 2 of its field offices for records; EOUSA must complete this search within 30 days).

Raulerson v. Ashcroft, No. 95-2053, 2003 WL 102950 (D.D.C. Jan. 7, 2003) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of its investigation of plaintiff for an attempt to kill a federal officer, obstructing justice, racketeering, and defrauding a financial institution) (Exemption 7(D): protects the identity of and information provided by a law enforcement agency, because the FBI has shown that an express promise of confidentiality was given) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Scherer v. United States, 241 F. Supp. 2d 1270 (D. Kan. 2003) (exhaustion: plaintiff did not exhaust his administrative remedies because he did not appeal the denial of his initial FOIA request; plaintiff has not constructively exhausted his administrative remedies because he has not clarified whether he actually received the requested documents before filing suit) (proper party defendant: FOIA authorizes suit against federal agencies, not individual agency employees) (the FOIA does not provide a private right of action for monetary damages).

Schulz v. Hughes, 250 F. Supp. 2d 470 (E.D. Pa. 2003) (fee waiver: on government's motion for reconsideration, finds that plaintiff is not entitled to a waiver of fees under the FOIA; the release of information concerning plaintiff's prosecution would not make a significant contribution to the public understanding of federal prosecutions or incarceration; the majority of information that plaintiff requested is not available under the FOIA) (Vaughn Index: agency's Vaughn Index is insufficient; if plaintiff pays the search fee of $560, he should receive, at his expense, copies of responsive records and a Vaughn Index for information that is not released) (exhaustion: issue of exhaustion for purposes of a fee waiver is moot because the court has ruled that plaintiff is not entitled to a fee waiver).

United States v. Anderson, Crim. No. 95-0040, 2003 WL 151760 (E.D. La. Jan. 16, 2003) ("not an agency record" defense: grand jury transcripts are court records and, therefore, are not agency records under the FOIA).

VoteHemp, Inc. v. DEA, 237 F. Supp. 2d 55 (D.D.C. 2002) (fee waiver: nonprofit organization has not demonstrated why disclosure of the documents it seeks would contribute significantly to the public understanding of DEA's operations or activities; DEA "has unambiguously and thoroughly articulated the reason" underlying its designation of products containing THC as Schedule I controlled substances; plaintiff has shown an intention to distribute information to the public through its Web site and press releases and by actively writing elected officials; plaintiff's advocacy for a free market in hemp and its association with businesses with an interest in hemp products support a finding that it has a commercial interest in the information; denies plaintiff a fee waiver).

Wilderness Soc. v. United States Bureau of Land Mgmt., No. 01CV2210, 2003 WL 255971 (D.D.C. Jan. 15, 2003) (adequacy of search: agency has not conducted a reasonable search in response to plaintiff's FOIA request for records concerning the ownership of certain highway rights-of-way; in view of the government's obligation "to construe a FOIA request liberally," finds that the scope of the search was deficient and that the declarations do not set forth the universe of documents that were searched and the method used to search for responsive records; agency should produce responsive, nonexempt documents that it uncovers at the time its supplemental search is conducted, regardless of when the records were created) (Vaughn Index: agency needs to supplement its index and ensure that each entry is sufficiently detailed and is an accurate representation of the document; defendant must conduct further searches for responsive documents and file a supplemental Vaughn Index by March 13).

Williams v. United States Dep't of Justice, No. 01-1009, 2003 U.S. Dist. LEXIS 19262 (D.D.C. Jan. 22, 2003) (exhaustion: in this FOIA action where before the search was conducted plaintiff was notified of and agreed to pay the search fees, but did not pay the assessed fees after the search was completed, finds that plaintiff has not exhausted his administrative remedies; action dismissed for lack of subject matter jurisdiction).   (posted 4/2/02)


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