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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 1992. OIP is preparing additional compilations of decisions received during previous years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).
Supreme Court
FBI v. Wiener, 505 U.S. 1212 (1992) (government's petition for certiorari denied in this FOIA case where the Ninth Circuit ordered the agency to prepare Vaughn Indexes of unprecedented specificity) (Justice White dissented).
Appeals Courts
Bauer v. United States, No. 91-5159 (D.C. Cir. May 8, 1992) (unpublished order), 966 F.2d 701 (D.C. Cir. 1992) (table cite) (summary affirmance granted in part; the district court properly determined that drug conviction file was exempt from disclosure under Exemption 7(A) and properly denied plaintiff's request for a fee waiver) (summary affirmance denied in part; defendant has not demonstrated that the file relating to plaintiff's tax-related conviction was properly withheld under Exemption 7(A)).
Benavides v. DEA, 968 F.2d 1243 (D.C. Cir. 1992) ((c)(2) exclusion: in this Exemption 7(D) "Glomarization" case where plaintiff seeks information about 2 alleged government informants who testified at his trial, finds that an agency must acknowledge the existence of records where an informant's status as an informant has been "officially confirmed"; the district court erred in failing to consider the applicability of subsection (c)(2); finds, based upon confused arguments and legislative history, that subsection (c)(2) merely authorizes "Glomarization") (summary judgment: district court erred in granting defendant's motion for summary judgment when plaintiff raised questions of material fact) (discovery in FOIA litigation: legislative history of the 1986 FOIA amendments shows that Congress recognized the need for discovery in cases arising under the exclusions) (decision subsequently modified).
Cal-Almond, Inc.
v. USDA, 960 F.2d 105 (9th Cir. 1992) (Exemption 3 [Pub. L.
No. 100-460,
Campbell v. Johnson, No. 91-5217 (D.C. Cir. May 8, 1992) (unpublished order), 966 F.2d 701 (D.C. Cir. 1992) (table cite) (plaintiff has neither agreed to pay for, nor sought a waiver of, search and duplication fees).
Campbell v. Unknown Power Superintendent of the Flathead Irrigation & Power Project, No. 91-35104 (9th Cir. Apr. 22, 1992) (unpublished memorandum), 961 F.2d 216 (9th Cir. 1992) (table cite) (holding that a pro se plaintiff's pleadings must be liberally construed, finds that plaintiff has exhausted his administrative remedies and vacates the district court's grant of defendant's motion for summary judgment; denies plaintiff's request for attorney fees).
Clark v. United States Gov't, No. 92-1392 (4th Cir. June 11, 1992) (unpublished memorandum), 966 F.2d 1441 (4th Cir. 1992) (table cite) (district court properly dismissed this FOIA action as moot, since all responsive documents were released to plaintiff).
DOD v. FLRA, 964 F.2d 26 (D.C. Cir. 1992) (Exemption 6: union bargaining proposal that would limit the manner in which a federal agency responds to requests for information under the FOIA is inconsistent with federal law and therefore is nonnegotiable; existence of alternative sources of information is not a per se defense to a request for information under the FOIA, but the existence of alternative sources is one factor that may be taken into consideration in determining whether privacy-implicating material must be disclosed under the FOIA).
In re Dep't of Justice, Nos. 91-2080, 91-2164 (8th Cir. Feb. 12, 1992) (government's petition for rehearing en banc granted in this FOIA case where the FBI was ordered to make a document-by-document Vaughn Index for each of 13,800 documents concerning the disappearance of Jimmy Hoffa that it sought to withhold under Exemption 7(A)).
Edwards v. Rozzi, No. 92-3008, 1992 WL 133035 (6th Cir. June 12, 1992) (unpublished order), 966 F.2d 1451 (6th Cir. 1992) (table cite) ("no records" defense: defendant is not required to retain correspondence and other documents that plaintiff sent to various federal employees).
In re Engram, No. 91-1722, 1992 WL 12011 (4th Cir. June 2, 1992) (unpublished memorandum), 966 F.2d 1442 (4th Cir. 1992) (table cite) (discovery in FOIA litigation: in this case where plaintiff argues that the attorney work-product privilege has been waived through prior disclosure, it is proper that defendant file interrogatories seeking to establish the circumstances of plaintiff's acquisition of the document).
FLRA v. Dep't of Commerce, 954 F.2d 994 (4th Cir. 1992) (Exemption 6: the public interest in this case is distinguished from that in Reporters Committee because here 3 statutes are involved, not solely the FOIA; although the disclosure of bargaining unit employees' home addresses implicates a legitimate privacy interest, this information must be released) (Widener, Circuit Judge, dissenting).
FLRA v. Dep't of Commerce, Nos. 90-1852, 90-1859 (4th Cir. Apr. 22, 1992) (rehearing en banc granted in this case where the appeals court had ordered the disclosure of bargaining unit employees' home addresses).
FLRA v. Dep't of Commerce, 962 F.2d 1055 (D.C. Cir. 1992) (Exemption 6: employees who have received outstanding or commendable ratings have a substantial interest in maintaining the privacy of their performance evaluations; a list identifying those employees who received high ratings reveals by omission the identities of those employees who did not receive high ratings, creating an invasion of their privacy; "for purposes of Exemption 6 privacy, the public interest is defined solely by the values animating the FOIA"; information sought here may shed light on the agency's operation of its rating system; public interest in releasing ratings information is not outweighed by the substantial invasion of privacy that would result).
FLRA v. Dep't of the Navy, 958 F.2d 1490 (9th Cir. 1992) (Exemption 6: purporting to apply Reporters Committee, enforces FLRA's order enjoining the agency from withholding employees' home addresses from the exclusive representative of their bargaining unit; the union's interest in this information is significant and noncommercial; public interest in fostering collective bargaining weighs heavily in favor of disclosure; privacy interest in one's home address is minimal; there is no alternative means of obtaining this information) (Fernandez, Circuit Judge, dissenting).
FLRA v. Dep't of the Navy, 963 F.2d 124 (6th Cir. 1992) (Exemption 6: adopting the reasoning of the majority opinions in the Courts of Appeals for the First, Second, and D.C. Circuits, orders the protection of bargaining unit employees' names and home addresses) (Jones, Circuit Judge, dissenting).
FLRA v. Dep't of the Navy, 966 F.2d 747 (3d Cir. 1992) (en banc) (in a 6-5 overall ruling, the court en banc reverses the panel's earlier ruling and enforces the FLRA order on alternative Privacy Act and FOIA grounds, finding that the Navy must release the home addresses of bargaining unit employees to the union under the Federal Labor Relations Act) (Exemption 6: despite Reporters Committee, the strong public interest in collective bargaining outweighs the employees' "meaningful" privacy interest in their home addresses) (Roth, Circuit Judge, concurring in the judgment, but not in the FOIA analysis; Alito, Stapleton, Rosenn, Hutchinson, and Nygaard, Circuit Judges, dissenting).
FLRA v. VA, 958 F.2d 503 (2d Cir. 1992) (Exemption 6: properly applying Reporters Committee, denies FLRA's petition for enforcement of its order that the names and home addresses of VA bargaining unit employees be disclosed to their exclusive representative; there is more then a de minimus privacy interest in the disclosure of an individual's name and address, coupled with that individual's status as a federal employee; the public interest in fostering effective collective bargaining falls outside the central purpose of the FOIA; "the advent of the computer bank . . . has placed the precious and increasingly scarce 'right to be left alone' in an endangered state").
Ferguson v. FBI,
957 F.2d 1059 (2d Cir. 1992) (jurisdiction: court has jurisdiction over 3 of
the district court "orders" because they explicitly compel immediate disclosure;
court does not have jurisdiction over the 5 remaining "orders" because they
cannot be considered as injunctions under 28 U.S.C.
Ferguson v. FBI, No. 92-6036 (2d Cir. June 4, 1992) (unpublished order), 970 F.2d 895 (2d Cir. 1992) (table cite) (vacates and remands the district court's January 9, 1992 order and January 29, 1992 denial of defendant's motion for reconsideration, in light of Ferguson v. FBI, 957 F.2d 1059 (2d Cir 1992), where the court ruled that "compiled for law enforcement purposes" describes a general type of record and it applied Exemption 7(D) using the Irons v. FBI standard).
Fla. House of Representatives v. Dep't of Commerce, No. 92-2022 (11th Cir. Jan. 14, 1992) (stay granted in this FOIA action where the district court ordered the disclosure of a computer tape that contains the adjusted block-level 1990 census data for the State of Florida).
Fla. House of Representatives v. Dep't of Commerce, 961 F.2d 941 (11th Cir. 1992) (Exemption 5: the deliberative process privilege protects from disclosure a computer tape that contains adjusted block-level 1990 census data for the State of Florida; the final adjusted block-level numerical data was a proposal or recommendation that was rejected by the person in charge; neither a court-ordered disclosure of documents nor an involuntary disclosure to Congress nor a release of related materials constitutes waiver under the FOIA; even though the adjusted data may be viewed as explaining the Department's final decision not to adjust the actual census figures, the Department has not "expressly adopted" the reasoning and conclusions associated with the adjusted census figures).
George v. Reese, No. 91-7156 (4th Cir. Jan. 2, 1992) (unpublished memorandum), 952 F.2d 395 (4th Cir. 1992) (table cite) (pro se plaintiff: pro se plaintiff's action should not be dismissed simply because he mislabeled the nature of the proceedings; vacates the district court's judgment and remands with instructions to consider plaintiff's submission as a complaint under the FOIA).
Geurin v. Dep't of the Army, No. 90-16783, 1992 WL 2781 (9th Cir. Jan. 6, 1992) (unpublished memorandum), 952 F.2d 406 (9th Cir. 1992) (table cite) (res judicata: the doctrine of res judicata bars the relitigation of issues that were already decided against plaintiff in a previous action).
Glick v. Dep't of the Army, No. 91-5213, 1992 WL 168004 (D.C. Cir. June 5, 1992) (unpublished memorandum), 971 F.2d 766 (D.C. Cir. 1992) (table cite) (summary affirmance granted in this FOIA case because the court lacks jurisdiction where plaintiff has not alleged that any agency records have been improperly withheld; appointment of counsel denied).
Hanner v. Stone, No. 92-1157 (6th Cir. June 15, 1992) (unpublished memorandum), 966 F.2d 1452 (6th Cir. 1992) (table cite) ("no records" defense: the FOIA does not obligate an agency to create or obtain documents).
Hughes v. United States, 953 F.2d 531 (9th Cir. 1992) (Federal Register publication: Treasury Department was not obligated to publish order creating branch office or internally delegating authority to that office).
Husek v. IRS, No. 91-6231 (2d Cir. Jan. 28, 1992) (unpublished order), 956 F.2d 1161 (2d Cir. 1992) (table cite) (Exemption 6: public interest in scrutinizing the hiring decisions of federal agencies outweighs the de minimus privacy interest federal employees have in their citizenship, date of birth, educational background, veteran's preference, and in narrative comments and codes).
Jaindl v. Dep't of State, No. 91-5034 (D.C. Cir. Jan. 3, 1992) (per curiam) (summary affirmance granted in this FOIA case where the district court ruled that agency properly withheld information under Exemptions 7(C) and 7(E)).
Landano v. Dep't of Justice, 956 F.2d 422 (3d Cir. 1992) (Exemption 7(C): following Reporters Committee and Department of State v. Ray, finds that individuals involved in the FBI's investigation of the 1976 murder of a police officer have a privacy interest in the nondisclosure of their identities, and that the release of this information would not shed light on the way the FBI fulfills its responsibilities; mere speculation about hypothetical public benefits from disclosure and "unsupported suggestions" about the legitimacy of government conduct cannot outweigh a demonstrably significant invasion of privacy; there is no FOIA-recognized public interest in discovering wrongdoing by a state agency) (Exemption 7(D): finding that neither the 1986 FOIA amendments nor the language in Reporters Committee is sufficiently direct to allow this mere panel of the Third Circuit to ignore Lame I, concludes that the district court was not given the detailed explanations required by Lame I to determine the existence of an assurance of confidentiality for each source; government cannot sustain its burden by turning its files over to the district court and require the court to "do its homework"; the district court did not abuse its discretion in ordering production of the documents withheld under this exemption, except to the extent that that information was withheld under Exemption 7(C)) (rehearing en banc denied in this Exemption 7(D) case where the court had ruled that the government had not demonstrated that assurances of confidentiality had been given to each source).
Leeds v. Comm'r of Patents & Trademarks, 955 F.2d 757 (D.C. Cir. 1992) (subsection (a)(2): statements of "Reasons for Allowance" of patent claims are not separate and distinct "final opinions" requiring indexing under the FOIA, but instead are an interim part of the final decision issuing the patent) (interaction of (a)(2) & (a)(3): because such statements are already made available as part of the indexed files issued on all patents, they fall within the exception listed in subsection (a)(3) for records made available under subsection (a)(2)).
McDonnell v. United States, Nos. 91-5916, 91-5951, 91-5993 (3d Cir. Jan. 10, 1992) (grants government's motion to hold appeals in abeyance pending a decision in Landano).
Meyer v. Bush, No. 91-8038 (D.C. Cir. Jan. 30, 1992) (grants government's petition for interlocutory review on whether the Presidential Task Force on Regulatory Relief is an "agency" for purposes of the FOIA).
Meyerhoff v.
EPA, 958 F.2d 1498 (9th Cir. 1992) (Exemption 3 [5 U.S.C. App.
4
Nadler v. Dep't of Justice, 955 F.2d 1479 (11th Cir. 1992) (Exemption 7(D): Congress enacted Exemption 7(D) to ensure that the FOIA did not impair the ability of federal law enforcement agencies to gather information; following Keys v. Department of Justice, finds "an assurance of confidentiality where it is reasonable to infer from the circumstances that its absence would impair the [agency's] ability to elicit the information"; since the FBI obtained this information in the course of a criminal investigation, the government is entitled to a "presumption of confidentiality") (Exemption 7(C): rather than explaining why disclosure of the name of each informant was unwarranted as the district court had ordered, categorical balancing is appropriate in this case because the privacy interests are identical for each name the government seeks to withhold; persons involved in FBI investigations have a substantial interest in seeing that their participation remains secret; disclosure of this information will reveal nothing about what the government is up to; the government properly utilized Exemption 7(C) in withholding the names of informants) (Exemption 5: prosecutive memoranda prepared by a Justice Department attorney for his supervisory attorney are protected by the deliberative process privilege; attorney work-product privilege protects 3 pages of notes written by an attorney in anticipation of litigation).
Nelson v. Dep't of Justice, No. 90-8954 (11th Cir. Jan. 22, 1992) (unpublished memorandum), 953 F.2d 650 (11th Cir. 1992) (table cite) (Exemption 1 [E.O. 12,356]: agency's affidavit clearly demonstrates that it may refuse to confirm or deny the existence of any documents that it might possess under the Foreign Intelligence Surveillance Act because the fact of the existence or nonexistence of the records is itself classifiable).
PHE, Inc. v. Dep't of Justice, No. 91-5047 (D.C. Cir. Jan. 8, 1992) (denies government's motion for summary affirmance in this case where the district court held that Exemptions 2 and 7(E) protected the FBI's investigative techniques and prosecutorial strategies in obscenity matters).
Radiation Sterilizers, Inc. v. DOE, 957 F.2d 912 (D.C. Cir. 1992) (summary affirmance granted in this FOIA case where the district court found that the deliberative process privilege protected documents, mostly drafts, generated by a DOE Investigation Board in the course of an investigation and in preparation of an Interim Report about the leak of a cesium capsule at a facility owned by plaintiff).
Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992) (Exemption 2: affidavits demonstrate that "low 2" protects predominantly internal information in documents containing guidelines on implementing the Equal Access to Justice Act; "high 2" protects litigation strategy found in these same documents because it establishes rules and practices for agency personnel and disclosure would render this information "operationally useless") (Exemption 5: attorney work-product privilege protects documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated) ("reasonably segregable": agency's affidavits were written in terms of documents, not information; affidavits do not explain why portions of the documents could not be segregated and disclosed; because "it is error for a district court to simply approve the withholding of an entire document without entering a finding of segregability," the case is remanded for further proceedings).
Smith v. Herriott, No. 91-35424 (9th Cir. June 9, 1992) (unpublished memorandum), 967 F.2d 591 (9th Cir. 1992) (table cite) (agency: the Washington Department of Corrections is not an agency for purposes of the FOIA).
Tax Analysts v. Dep't of Justice, 965 F.2d 1092 (D.C. Cir. 1992) (attorney fees: affirms district court's denial of attorney fees; the district court did not err when it found minimal public benefit in the release of district court tax decisions to an organization that publishes a weekly scholarly newsletter since these decisions were already publicly available; litigant's status as a news organization does not render an award of attorney fees automatic; exercising its discretion, district court found that plaintiff was not entitled to fees because it did not need the attorney fees incentive and because the material it received was already publicly available; Justice Department's position was reasonable because it concluded that plaintiff's FOIA request would impose an enormous and costly administrative burden on it).
United States v. Metro. St. Louis Sewer Dist., 952 F.2d 1040 (8th Cir. 1992) (Exemption 5: it is "beyond doubt" that draft consent decrees are protected from disclosure by the deliberative process and attorney work-product privileges; remanded so that the district court can make an appropriate factual inquiry and determine whether the alleged disclosures of the draft consent decrees to at least 16 outside consulting firms and to representatives of the media constitute a waiver of the exemption; in a footnote, comments that the release of a draft consent decree prepared by the federal government to a non-federal party constitutes a waiver of the "inter-agency or intra-agency memorandum" exemption).
In re Wade, 969 F.2d 241 (7th Cir. 1992) (Exemption 3 [Rule 6(e)]: protects transcripts of witnesses' testimony before the grand jury and portions of a 79-page FBI report of a witness interview) (Exemption 7(C): protects the name of an FBI Special Agent) (Exemption 6: protects a letter written to an Assistant U.S. Attorney) (Exemption 5: attorney-work product privilege protects a letter and 12 pages of attorney work product) ("no records" defense: action against the Executive Office for U.S. Trustees is dismissed because no documents were found responsive to plaintiff's FOIA request).
Williamson v. INS, No. 91-2526 (5th Cir. May 4, 1992) (unpublished order), 963 F.2d 369 (5th Cir. 1992) (table cite) (affirms as moot the district court's ruling in this Open America case where INS had delivered the requested documents to plaintiff; government had met its burden of proving "exceptional circumstances"; agency, operating with inadequate resources, had employed "due diligence" when responding to "the seemingly limitless number of FOIA requests on a first in/first out basis").
District Courts
Allard v. HHS, No. 4:90-156 (W.D. Mich. Feb. 14, 1992) (Exemption 6: protects information about possible illegal use of Social Security benefits by the ex-wife and children of plaintiff, a prisoner with violent tendencies).
Allen v. ATF, No. 91-2640 (D.D.C. June 30, 1992) (Exemption 2: protects ATF's computer codes, symbols, and numbers used on TECs printouts) (Exemption 7(C): protects information that would identify federal, state, and local law enforcement personnel, and third parties).
Anderson v. Doe, No. 92-20 (W.D. Pa. May 27, 1992) (magistrate's recommendation) (adequacy of request: since plaintiff has failed to comply with agency regulations regarding the mailing and receipt of FOIA requests, he is precluded from judicial relief), adopted (W.D. Pa. June 16, 1992).
Anderson v. HHS, No. C84-861 (D. Utah June 29, 1992) (case dismissed as moot inasmuch as all documents requested by plaintiff have been given to her; plaintiff's request to take depositions in support of her motion for attorney fees is denied).
Armstrong v. Executive Office of the President, No. 89-0142 (D.D.C. May 22, 1992) (in this case where plaintiff has requested the entire contents of an electronic records system maintained by the Executive Office of the President during the Reagan Administration, plaintiff's request for a sampling of the information is premature because defendants have not yet asserted any exemptions; there is no authority which would entitle plaintiff to achieve access through discovery to these records before defendants have responded to his FOIA request).
Assembly of Cal. v. Dep't of Commerce, 797 F. Supp. 1554 (E.D. Cal. 1992) (Exemption 5: computer tapes containing block level adjusted 1990 census data for the State of California do not satisfy the "inter- or intra-agency" requirement because they were not prepared by one government employee for another one, rather they were prepared for distribution to the 50 states; these tapes were not used by the Secretary of Commerce in arriving at his decision not to adjust the 1990 census because that decision turned on the reliability of the adjustment formulae to be applied to the count not on the adjusted numbers; tapes are not analogous to a draft policy document because they were prepared to be disclosed if the Secretary decided to adjust the data, not as a rough draft which undergoes review and comment; disclosing the numerical data from the tapes will not reveal anything more about the reasoning process through which the data was derived or the decision not to adjust the census any more than has already been disclosed by the agency; release of the tapes will neither chill the ongoing deliberative process within the agency, cause reputational harm to the agency, nor risk public confusion; deliberative process privilege does not protect the computer tapes from disclosure).
Atkinson v. Dep't of Justice, No. 91-0856 (E.D. Va. Apr. 14, 1992) (Exemption 5: attorney work-product privilege protects a portion of a document that memorializes a conversation between an Assistant U.S. Attorney and the office of the U.S. Marshal that represents that attorney's evaluations and opinions concerning a criminal trial) (Exemption 7(C): protects speculation by the Assistant U.S. Attorney concerning the possible criminal activities of a third party).
Bauer v. United States, No. 91-374 (W.D.N.Y. Feb. 3, 1992) (proper service of process: since any deficiencies of service have been corrected, defendant's motion to dismiss for insufficiency of service must be denied) (venue: this action is transferred to the District Court for the District of Columbia, because plaintiff, a resident of Wisconsin, does not maintain a place of business in the Western District of New York, and the records are located in the District of Columbia).
Becker v. IRS,
Nos. 91-C-1203, 91-C-1204, 91-C-1205, 1992 WL 67849 (N.D. Ill. Mar. 27, 1992)
(adequacy of search: agency's affidavit demonstrates that a reasonable search
was conducted) (Exemption 3 [26 U.S.C.
Benavides v. Fed. Bureau of Prisons, No. 91-2538 (D.D.C. Apr. 22, 1992) (grants defendant's motion to dismiss in this FOIA case where the agency has given plaintiff copies of all requested records).
Borelli v. United States Parole Comm'n, No. 91-1185 (D.D.C. Feb. 26, 1992) (duty to search: in this case where defendant was unable to find the original tape of plaintiff's hearing before the Commission, but did produce an "unintelligible" taped copy of the hearing, finds that defendant has met the burden of conducting a reasonable and adequate search, even though an intelligible original copy of the tape is potentially in existence; government need not transcribe the tape with its own equipment).
Bruscino v. Fed. Bureau of Prisons, No. 91-2594 (D.D.C. Apr. 1, 1992) (in camera inspection: orders in camera inspection of prison transfer memoranda, withheld on the basis of Exemptions 7(D) and 7(F), because there are only 4 pages at issue).
Buffalo Evening News v. United States Border Patrol, 791 F. Supp. 386 (W.D.N.Y. 1992) (Exemption 2: protects internal information of no public interest which was redacted from the Border Patrol's Form I-213 used upon the apprehension or identification of aliens, including the "soundex" encoding of the alien's name, whether this name is listed in the Lookout Book, code words for deportability charges, internal routing information, and a narrative of the apprehension; mere allegations of agency wrongdoing will not defeat an otherwise valid statutory exemption; disclosure of the method of apprehension and a statement of the ultimate disposition of the case would risk circumvention of the law) (Exemption 7 (threshold): form meets the threshold requirement because it is generated upon apprehension of aliens thought to be in the United States illegally) (Exemption 7(C): protects the apprehended alien's name, passport number, file number, United States and foreign addresses, visa identification, Social Security number, spouse's or parents' names and addresses, name and address of the alien's United States employer, as well as the Border agents' names and portions of the narrative of the apprehension) (Exemption 7(D): protects the names of state and local agencies that have exchanged information with the Border Patrol, the names of their employees, and the information they provided) (Exemption 7(E): agency may withhold the fact of whether an alien's name is listed in INS's Lookout Book and also the method of apprehension).
Burlington N. R.R. Co. v. EPA, No. 91-1636 (D.D.C. June 15, 1992) (case dismissed; annual reports requested by plaintiff are outside the scope of its original FOIA request; information sought is computerized and accessing it would require special programming by the contractor; such efforts are beyond the reasonable efforts required by the FOIA).
Campbell v. Dep't
of Justice, No. 89-3016 (D.D.C. Jan. 21, 1992) (although the FBI's FOIA
regulations require that privacy waivers be notarized, court finds that 28 U.S.C.
Chesapeake Bay Found. v. USDA, 785 F. Supp. 1030 (D.D.C. 1992) (attorney fees: plaintiff is eligible for attorney fees because its lawsuit was necessary and it resulted in it obtaining substantially all the information it requested; Foundation was acting as a "public watchdog" in seeking information about pesticide use in and around the Chesapeake Bay watershed; grants $44,373.07 in attorney fees).
Christian v. Coleman, No. 90-1814 (D.D.C. Mar. 17, 1992) (Exemption 7(C): applying Reporters Committee, finds that informant information including names, addresses, telephone numbers, position titles, Social Security numbers, and employer's identity may be categorically protected; the fact that plaintiff knows the identities of some of the informants does not eliminate their privacy interest; exemption protects identities of individuals who may be called on to testify at a public trial or who have testified; it is the nature of the documents themselves and not the particular purpose for which they are sought that determines whether they are discloseable).
Church of Scientology
v. IRS, No. 90-11069 (D. Mass. Apr. 22, 1992) (magistrate's recommendation)
(Exemption 3 [26 U.S.C.
Church of Scientology Int'l v. IRS, No. 90-2009 (C.D. Cal. Jan. 7, 1992) (adequacy of search: even though no responsive records were found, IRS has discharged its FOIA statutory obligation by making a reasonable effort to locate documents requested by plaintiff).
Church of Scientology Int'l v. IRS, No. 89-4504 (C.D. Cal. Jan. 7, 1992) (finding a 38-volume Vaughn Index inadequate under Wiener v. FBI, orders defendant to produce within 90 days an independent and more detailed Index of each document withheld under Exemption 5).
Church of Scientology Int'l v. IRS, No. 91-0431 (C.D. Cal. Jan. 31, 1992) (finding another Vaughn Index inadequate under Wiener v. FBI, orders defendant to produce within 30 days a more detailed Index of all the documents withheld under Exemption 5).
Church of Scientology
Int'l v. IRS, No. 91-1120 (C.D. Cal. Apr. 21, 1992) (duty to search: the
agency improperly failed to include documents as responsive because they related
to other Scientology entities and no third-party waivers had been provided;
IRS must conduct another search) (Exemption 3 [26 U.S.C.
Church of Scientology
Int'l v. IRS, No. 91-1048 (C.D. Cal. Apr. 21, 1992) (duty to search: agency
improperly failed to include documents as responsive because they related to
other Scientology entities and no third-party waivers had been provided; IRS
must conduct another search) (Exemption 3 [26 U.S.C.
Cleveland & Vicinity Dist. Council v. Dep't of Labor, No. 1:87-2354 (N.D. Ohio Apr. 22, 1992) (magistrate's recommendation) (proper party defendant: individual department heads are not proper party defendants under the FOIA) (Exemption 4: a company would be competitively harmed if information regarding its dollar volume of sales were disclosed) (Exemption 7(C): protects employee-witness information in a wage-and-hour investigation file, including home addresses of persons interviewed, third-party identities, and the identities of individuals whose wage data was disclosed) (Exemption 7(D): since employee-witnesses were given express assurances of confidentiality, their names, addresses, and identifying information are exempt from disclosure).
Cleveland & Vicinity Dist. Council v. Dep't of Labor, No. 1:87-2354 (N.D. Ohio May 11, 1992) (magistrate's recommendation adopted in this FOIA case where the magistrate ruled that Exemptions 7(C) and 7(D) protected employee-witness information in a wage-and-hour investigation file).
Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., No. 91-0248 (D.D.C. Mar. 12, 1992) (bench ruling) (Exemption 7(A): release of records compiled in the course of an investigation of computer fraud for which there has not yet been any indictments would give access to the evidence and strategy being used by the government).
Cotton v. Adams, No. 91-2827 (D.D.C. Mar. 18, 1992) (bench decision; yet to be transcribed) (agency: the Smithsonian Institution is an agency for purposes of the FOIA).
Cotton v. Adams, 798 F. Supp. 22 (D.D.C. 1992) (agency: the Smithsonian Institution is an agency for purposes of the FOIA) (Exemption 7 (threshold): defendant has not established that the documents at issue were compiled for "law enforcement" purposes; an agency's internal investigation of its own employees satisfies the threshold requirement only if it focuses directly on illegal acts which could, if proved, result in criminal or civil sanctions) (Exemption 6: since plaintiff asked for Inspector General reports on 2 named individuals, even if all identifying information is redacted the requester will be able to identify these 2 individuals with the remaining information) (in camera inspection: plaintiff's request for in camera review of all documents withheld under Exemption 5 is unwarranted since there has been no allegation of agency bad faith).
Cowsen-El v. Dep't of Justice, 826 F. Supp. 532 (D.D.C. 1992) (Exemption 7 (threshold): Bureau of Prison's Program Statement which provides a guideline to be followed by prison officials in conducting routine counts and inspections of prisoners was not compiled for "law enforcement purposes") (Exemption 7(E): exemption authorizes the withholding of information that reflects a law enforcement technique or procedure, it does not protect BOP's Program Statement that is an internal agency policy wholly unrelated to investigations or prosecutions).
Crumpton v. United States, No. 89-3128 (D.D.C. Mar. 20, 1992) (release of purportedly private and embarrassing material under the FOIA is not actionable under the Federal Tort Claims Act because it is barred by the FTCA's two-year statute of limitations; plaintiff's copyright claim for the same information fails because copyright claims must be brought in Claims Court).
Currier v. IRS, No. 91-C-331 (E.D. Wis. Mar. 11, 1992) (this FOIA case is dismissed because all nonexempt documents have been produced).
DaCosta v. Dep't of Justice, 782 F. Supp. 147 (D.D.C. 1992) ("exceptional circumstances"/"due diligence": while granting an Open America stay, in order to ensure that defendant is exercising "due diligence," requires the agency to make a status report to the court every 60 days until it has either produced all the documents or claimed exemptions for withholding them).
Deal v. Roberson,
No. 91-70-B (M.D. La. Feb. 15, 1992) (magistrate's recommendation) (proper party
defendant: individual officers of federal agencies are not proper parties to
a FOIA action) (no improper withholding: per 45 C.F.R.
Dobronski v. FCC, No. 91-1295 (D. Ariz. June 16, 1992) (Exemption 6: after in camera review, orders disclosure of a federal employee's leave slips from a specified time period, where there has been an allegation that this employee had been abusing leave time; Social Security numbers and personal addresses need not be released).
Doe v. Dep't of Justice, 790 F. Supp. 17 (D.D.C. 1992) (Exemption 7 (threshold): threshold requirement is met by records compiled as a result of a background check of an individual who was conditionally offered employment as an attorney at the Justice Department's Board of Immigration Appeals) (Exemption 7(D): protects confidential sources; FBI must be especially careful to protect even the most oblique indications of the identity of the confidential interviewees in a background investigation where the sources are well known to the applicant; "if the FBI loses its authority in background investigations to protect its confidential sources, its ability to function will be seriously impaired") (Exemption 2: protects internal administrative codes and procedures) (Exemption 6: protects third-party information provided by outside law enforcement agencies) (Exemption 5: protects papers involving and prepared in anticipation of litigation).
Don Ray Drive-a-Way Co. v. Skinner, 785 F. Supp. 198 (D.D.C. 1992) (Exemption 2: a computer algorithm used by defendant in determining the safety fitness of motor carriers is not "purely internal" because its effect and the legal status it imposes on carriers are adopted by other agencies without any further analysis or discretion; disclosing the algorithm will not facilitate circumvention of law, but rather will allow carriers to concentrate their efforts on correcting what the agency considers to be the most serious safety breaches) (Exemption 7(E): since the algorithm controls final agency action and has the same status as regulations or agency law, it does not simply involve investigative techniques or procedures).
Dusenberry v. FBI, No. 91-0665, 1992 WL 115606 (D.D.C. May 5, 1992) (Exemption 7(A): disclosure of documents would compromise ongoing law enforcement investigations) (in camera inspection: defendant's detailed affidavits obviate the need for in camera inspection).
Feinberg v. Hibernia Corp., No. 90-4245 (E.D. La. Mar. 9, 1992) (Exemption 8: exemption protects federal bank regulatory agency examination reports and other documents prepared by or for the use of the federal agencies; it does not protect documents related to the examination reports such as committee minutes, audit reports, memoranda of meetings, analyses of loans or loan losses, or reserves that were not prepared by, possessed by, or otherwise controlled by federal agencies).
Ferguson v. FBI, No. 89-5071 (S.D.N.Y. Jan. 8, 1992) (after in camera inspection of documents produced by the government to the court in response to its September 13, 1991 order, finds that the documents are redacted in a manner that applies FOIA's Exemptions 7, 7(C), and 7(D) too broadly; therefore, the rulings of the court's April 22, 1991 order are applicable to these files; additionally, because plaintiff may not have been advised by prosecutors of the possibility that exculpatory evidence might exist, the government must, within 10 days, make available to the plaintiff copies of one file, without redaction, other than the identities of FBI Special Agents and other third parties -- the names of the prosecutors should not be redacted).
Ferguson v. FBI, No. 89-5071 (S.D.N.Y. Jan. 27, 1992) (denies government's motion for reconsideration of court's Jan. 8, 1992 opinion and order which held that documents were redacted in a manner that applied Exemptions 7, 7(C), and 7(D) too broadly; grants a stay of that order until February 3 to allow the government time to file a notice of appeal).
Fidelity Nat'l Ins. Co. v. HHS, No. 91-5484 (C.D. Cal. Feb. 13, 1992) (Exemption 6: protects third-party Social Security number).
Finley v. NEA, 795 F. Supp. 1457 (C.D. Cal. 1992) (Exemption 6: protects information in NEA's grant application files that "applies to particular individuals").
Fitzgibbon v. AID, No. 87-1548 (D.D.C. Mar. 26, 1992) (attorney fees: term "costs and fees" as used in the stipulation does not include attorney fees as it is interpreted under the FOIA; plaintiff is awarded $16,140.45 in attorney fees; defendant shall pay this fee within 30 days).
Fitzgibbon v. United States Secret Serv., No. 86-1886 (D.D.C. Mar. 17, 1992) (Exemption 7(E): release of the documents presented for in camera review would reveal how certain law enforcement investigations not known to the public are conducted; exemption protects Administrative Profile forms).
Fla. House of Representatives v. Dep't of Commerce, No. 91-40387 (N.D. Fla. Jan. 9, 1992) (Exemption 5: balancing the public need for disclosure against the harm that disclosure would cause to the Department of Commerce, finds that the deliberative process privilege does not protect from disclosure a computer tape that contains the adjusted block-level 1990 census data for the State of Florida; although the adjusted figures were ultimately not used by the agency, since defendant had already published many of the adjusted data figures and since plaintiff already has access to the agency's guidelines or hypotheses and seeks merely the block-level numbers, disclosure would not chill ongoing interagency discussions, nor can the defendant claim that these figures are "inextricably intertwined" with the deliberative process privilege; if the government suspects that the census estimates may be inaccurate, it cannot withhold them on the basis that they might mislead the public; defendant is ordered to produce the tape in question by 4 p.m., Monday, January 13).
Freeman v. Dep't of Justice, No. 92-0557 (D.D.C. May 22, 1992) (grants defendant's request for an Open America stay; action is stayed until November 2, 1992).
Freeman v. Dep't of Justice, No. 92-0557 (D.D.C. June 25, 1992) (plaintiff's motion for reconsideration denied in this Open America case; plaintiff does not specify the reasons why this particular FOIA suit will aid in the defense of his securities fraud trial; plaintiff did not file the request until 3 years after his indictment).
Gale v. FBI, 141 F.R.D. 94 (N.D. Ill. 1992) (Exemption 2: agency properly withheld source symbol numbers which are of purely internal significance) (Exemption 7(C): protects the names of FBI Special Agents and clerical personnel) (Exemption 7(D): protects information that could reasonably be expected to identify the individuals who provided the information to the FBI; promises of confidentiality are "inherently implicit" when the FBI is conducting a criminal investigation).
Gannett River States Publ'g Corp. v. Bureau of the Nat'l Guard, No. J91-0455, 1992 WL 175235 (S.D. Miss. Mar. 2, 1992) (Exemption 5: because the agency's affidavits are conclusory, orders in camera inspection of portions of documents agency seeks to withhold under the deliberative process privilege in which it appears from the disclosed portions that a supervisor has directed subordinates to take some unidentified actions) (Exemption 6: while the agency sought to "neither confirm nor deny" the existence of information about possible disciplinary actions resulting from a National Guard helocasting accident in Mississippi in 1990, the court ruled that the privacy interests of the soldiers in maintaining confidentiality is de minimus as much of this information had already been made public through the agency's FOIA disclosure identifying the fact that other officials had recommended that they be disciplined).
Gen. Dynamics Corp. v. Dep't of the Air Force, 822 F. Supp. 804 (D.D.C. 1992) ("Reverse" FOIA/Exemption 4: release of option prices from a contract between General Dynamics and the Air Force for medium launch vehicles and related services would not cause substantial competitive harm to the company; record shows that the government considered and understood the plaintiff's arguments and rejected them for sound reasons).
Gordon v. Thornberg, 790 F. Supp. 374 (D.R.I. 1992) (Exemption 7(C): protects the names and initials of FBI Special Agents and support personnel and the names and identifying data for local law enforcement personnel and third parties) (Exemption 7(D): all information given to the FBI by a local law enforcement agency must be protected to provide the confidence necessary to law enforcement cooperation; protects laboratory tests performed by the FBI at the request of local law enforcement authorities in connection with plaintiff's criminal trial).
Grace v. Lavalle, No. 91-6771 (E.D. Pa. May 4, 1992) (court lacks jurisdiction because the defendant failed to exhaust his administrative remedies).
Gray v. USDA, No. 91-1383 (D.D.C. Mar. 27, 1992) (attorney fees: the mere filing of a complaint and the subsequent release of information is insufficient to establish causation; there is no indication that the defendant acted irresponsibly or that it consciously delayed at any stage of the administrative handling of the request; attorney fees denied).
Green v. FBI, No. 89-699-5 (E.D.N.C. Jan. 8, 1992) (attorney fees: plaintiff cannot be said to have substantially prevailed in this FOIA case, where in all but a few instances the court concluded that the FBI had properly withheld information under Exemptions 7(C), 7(D), and 7(E); withholding of most of the information had a reasonable basis in law; since plaintiff sought information about his late grandfather, his interest in the records was primarily personal; attorney fees denied) (subsection (a)(2): the FBI is an agency under the FOIA and as such must comply with the requirements set out in this subsection; this subsection is applicable to investigatory agencies, as well as regulatory or licensing agencies) (interaction of (a)(2) & (a)(3): by releasing most of the FOIA-related policies, interpretations, staff manuals, and instructions to staff to the plaintiff, the FBI has not fully complied with the Magistrate's order requiring the FBI to place all subsection (a)(2) materials in its reading room; remaining policy materials and the FOIPA Reference Manual must be delivered to plaintiff).
Hahn v. IRS, No. 90-2782 (D.D.C. Jan. 7, 1992) (Exemption 7(C): protects the identities of IRS employees and third parties who aided the IRS in its investigation of plaintiff and the identities of the purchasers of plaintiff's jewelry) (adequacy of search: search was adequate even though records were not found).
Hansen v. Dep't of the Air Force, 817 F. Supp. 123 (D.D.C. 1992) (Exemption 5: portions of the Air Force's unpublished internal history of its early post-war energy program cannot be considered as a draft because they have been consistently treated like a finished product by the Air Force for the last 30 years; deliberative process privilege does not protect this manuscript) (Exemption 1 [E.O. 12,356]: giving deference to the agency's affidavits, finds that portions of the history are properly and currently classified).
Hassan v. FBI, No. 91-2189 (D.D.C. May 13, 1992) (affidavit submitted by the agency is sufficient to demonstrate the withholding of records under Exemptions 2, 7(C), and 7(D); FBI must file a supplemental affidavit by June 19 to justify withholding information under Exemption 7(E)).
Housley v. DEA, No. 89-822 (D. Nev. Mar. 17, 1992) (Vaughn Index: the language in DEA's Index is specific, detailed, and sufficiently descriptive of the information withheld).
Kamman v. IRS,
No. 91-1352 (D. Ariz. Mar. 13, 1992) (Exemption 3 [26 U.S.C.
Khan v. Dep't of Justice, No. 3:91-1443 (N.D. Tex. Apr. 22, 1992) (grants defendants' uncontested motion for summary judgment; all requested, nonexempt documents have been produced).
Knowles v. Thornburgh, No. 90-1294 (D.D.C. Mar. 11, 1992) (Exemption 5: deliberative process privilege protects information relating to the denial of plaintiff's application for Executive Clemency since the information withheld was generated by subordinates during the analysis and recommendation period preceding the President's ultimate decision on plaintiff's application).
Maginn v. United States, No. 92-313 (W.D. Pa. Apr. 17, 1992) (denies plaintiff's motion for a document-by-document Vaughn Index in this case where the agency sought to withhold information under Exemptions 3 and 7; defendant must file a motion for summary judgment accompanied by categorical affidavits).
Maginn v. United
States, No. 92-313 (W.D. Pa. May 29, 1992) (Exemption 3 [26 U.S.C.
Marcus v. EPA, No. 91-3270 (D. Md. Jan. 29, 1992) (grants defendant's motion to dismiss this FOIA complaint since defendant has fully responded to plaintiff's request for records).
Mayo v. Gov't Printing Office, 839 F. Supp. 697 (N.D. Cal. 1992) (preliminary injunction: denies plaintiff's motion for a temporary restraining order; because the Government Printing Office is probably not an "agency" for purposes of the FOIA, he has not made a sufficient showing of likelihood of success on the merits; since United States Supreme Court opinions are widely and instantaneously available to the public in a variety of formats, plaintiff's difficulty in obtaining them in an electronic format does not rise to the level of threatened irreparable harm).
McDonnell Douglas Corp. v. NASA, No. 91-3134 (D.D.C. Jan. 24, 1992) ("Reverse" FOIA/Exemption 4: release of "line-item prices" from the contract for Medium Expendable Launch Vehicle Services would cause substantial competitive harm to the plaintiff because the cumulative information could be used by competitors to underbid them; court enters permanent injunction against agency from ever making any disclosure of the record, not merely in context of this FOIA request).
McGuire v. United States Customs Serv., No. 90-2541 (D.D.C. Apr. 14, 1992) (in camera inspection: while the exemptions claimed for grand jury information, agency investigative methods, and the protection of agency personnel, targets, and sources are proper, because the agency's affidavit is "woefully deficient" the court orders in camera inspection of the 12 documents at issue; agency must file a second Vaughn Index under seal by May 1).
McGuire v. United States Customs Serv., No. 90-2451 (D.D.C. May 12, 1992) (after in camera inspection of 4 documents filed under seal, finds that Exemptions 7(C) and 7(D) protect the identities of agency personnel, confidential sources, and subjects of investigative interest), reconsideration denied (D.D.C. June 19, 1992).
MCI Telecomms. Corp. v. GSA, No. 89-0746, 1992 WL 71394 (D.D.C. Mar. 25, 1992) (Vaughn Index: there is no need for a Vaughn Index at this time; GSA's descriptions of the withheld documents by category in its motion for summary judgment, supplemented by affidavits, is sufficient to enable the court to evaluate defendant's exemption claims) (exhaustion: MCI did not appeal the agency's denial of the technical proposals; MCI did exhaust its administrative remedies with respect to documents relating to the evaluation of technical, business, management, and cost proposals) (Exemption 5: documents generated by GSA during the evaluative stage of the procurement process are protected by the deliberative process privilege; once a contract has been awarded, the exemption no longer protects confidential commercial information generated by the government in the process of awarding a contract; certain recommendations may have been taken into consideration by the decisionmaker, but these documents were not expressly adopted or incorporated into the final agency decision; standards and guidelines prepared for the use of the head of GSA are exempt because they constitute the "methodology for predecisional fact-gathering") (Exemption 2: procurement documents are not predominantly "internal"; disclosure of information concerning this unique procurement contract will not risk circumvention of agency law) (Exemption 4: defendant's motion for summary judgment as to this issue must be denied because there are material facts in dispute as to whether unit, aggregate, and evaluated price information is entitled to a reasonable expectation of privacy or whether its disclosure would cause the company substantial competitive harm; some of this information was publicly disclosed when public tariffs were filed with the FCC).
Miller v. United States, No. 90-1034 (D.S.D. Apr. 2, 1992) (Exemption 7 (threshold): threshold requirement satisfied since at the time plaintiff made his FOIA request documents concerning an investigation into the purchase and shipment of cattle infected with brucellosis had been compiled) (Exemption 7(A): disclosure of these records would interfere with the government's enforcement proceedings against plaintiff).
Miscavige v.
IRS, No. 1:91-1638, 1992 WL 389808 (N.D. Ga. June 15, 1992) (grants defendant's
motion for summary judgment; affidavits demonstrate that information was properly
withheld under Exemption 3 [26 U.S.C.
Muhammad v. United States Bureau of Prisons, 789 F. Supp. 449 (D.D.C. 1992) (exhaustion: since plaintiff has filed his FOIA request with the court rather than the agency, he has not exhausted his administrative remedies).
Nance v. United States Postal Serv., No. 91-1183, 1992 WL 23655 (D.D.C. Jan. 24, 1992) (fee waiver (Reform Act): a fee waiver is not appropriate in this case because the release of information about illegally cashed money orders would not contribute to the public understanding of the operations of the government) (fees (Reform Act): summary judgment is granted to defendant because it is unlikely that plaintiff, a prisoner, will be able to pay the fee that would be required for the search for records to begin.
Narducci v. Dep't of Justice, No. 91-2972 (D.D.C. June 16, 1992) ("exceptional circumstances"/"due diligence": even though "it is clear that the FBI is deluged with a volume of requests for information," plaintiff filed his request for records on July 17, 1991 and "there comes a time when failure to process constitutes denial"; defendants shall process plaintiff's FOIA request by October 5, 1992).
Nevas v. Dep't of Justice, 789 F. Supp. 445 (D.D.C. 1992) (Exemption 5: deliberative process privilege does not protect from disclosure the Waldheim report (the report used by the Attorney General in determining whether former Austrian President Kurt Waldheim is excludable from the United States under immigration laws) and the related historic documents; while defendant need not disclose certain recommendatory portions of the report, the entire report cannot be withheld on the grounds that it contains only those facts which the author thinks material) (Exemption 7(A): due to Waldheim's world prominence, there is little possibly that there would be an enforcement proceeding here that would justify the invocation of this exemption.
Nw. Coalition of Alternatives to Pesticides v. Reilly, No. 90-0707 (D.D.C. May 26, 1992) (attorney fees: because the information was clearly released to plaintiff due to the pendency of this claim, plaintiff has substantially prevailed; defendants failed to respond to a simple request by either furnishing the information or explaining why it could not do so; attorney fees awarded in the amount requested by plaintiff).
Nw. Envtl. Def. Ctr. v. United States Forest Serv., No. 91-125 (D. Or. Aug. 23, 1991) (magistrate's recommendation) (Exemption 5: deliberative process privilege was waived as to 50% of a report prepared by a federal interdisciplinary team of specialists about the proposed expansion of the ski resort at Mt. Hood Meadows when that portion of the report was discussed with an outside third party (the developer); orders in camera inspection of the documents), subsequent order (D. Or. Dec. 3, 1991) (magistrate's recommendation) (having reviewed the documents in question, concludes that the deliberative process privilege has been waived for portions of the report and those portions should be released), adopted (D. Or. Feb. 12, 1992).
Norwood v. FAA, No. 83-2315 (W.D. Tenn. June 16, 1992) (Exemption 6: holding in Department of State v. Ray, 504 U.S. 164 (1991) does not warrant reversal of this court's earlier ruling ordering the release of the names of employees reinstated as air traffic controllers after their removal from these positions because of their participation in the strike of August 1981; there is a strong, compelling interest in ascertaining whether the agency authorized to deal with the nation's aviation safety handled matters surrounding the strike in a fair and consistent manner; public interest at stake in this case has not already been served by the release of the unredacted portions of the adverse actions files) (Exemption 5: since no new argument has been advanced, denies agency's motion to reconsider court's ruling that factual material cannot be protected under the deliberative process privilege; denies agency's motion to reconsider its ruling that the attorney work-product privilege does not protect purely factual portions of documents; agency has failed to prove that the documents for which the attorney-client privilege was claimed were exchanged between attorneys and FAA officials with the expectation of confidentiality) (stay pending appeal denied).
Palmer v. Derwinski,
No. 91-197 (E.D. Ky. June 10, 1992) (magistrate's recommendation) (Exemption
3 [38 U.S.C.
Peck v. CIA,
787 F. Supp. 63 (S.D.N.Y. 1992) (statute of limitations: because FOIA does not
contain a statute of limitations, the general statute of limitations for civil
suits, 28 U.S.C.
Prows v. Dep't of Justice, No. 90-2561 (D.D.C. Apr. 1, 1992) (fees (Reform Act): plaintiff's FOIA request was properly not processed because he failed to pay the assessed copying fees) (fee waiver (Reform Act): fee waiver denied because plaintiff failed to identify a specific public interest in the release of the Asset Forfeiture Guide) (res judicata: principles of res judicata and collateral estoppel preclude the relitigating of the claims and issues regarding plaintiff's 1985 request for information about Operation Grouper).
Pruner v. Dep't of the Army, No. 90-2420 (D. Kan. Jan. 9, 1992) (dismisses as moot this case where the court had held that changes in administrative procedures concerning applications for conscientious objector status need not be published in the Federal Register).
Pub. Citizen v. Dep't of State, 782 F. Supp. 144 (D.D.C. 1992) (Exemption 1 [E.O. 12,356]: the privilege has not been waived as a result of Ambassador Glaspie's public congressional testimony on March 20-21, 1991; because the context of the information is different and only some of the information was revealed, the confidentiality of the documents as they exist is not negated) (Exemption 5: deliberative process privilege protects documents that reflect the give-and-take within an agency leading up to a decision) (court concludes that the exemptions were not properly invoked with respect to 2 documents; it orders one document released and, while the other must be released, rules that the agency may need to make some redactions first).
Pub. Citizen v. Dep't of State, 787 F. Supp. 12 (D.D.C. 1992) (in a bench order, based on public and ex parte filings court rules at the in camera hearing that the government was entitled to withhold the 2 remaining documents under Exemptions 1 and 5).
Randle v. Comm'r, No. 91-C-5757 (N.D. Ill. Feb. 21, 1992) (proper party defendant: plaintiff's FOIA claim must be dismissed because he named individuals, rather than an agency, as the defendant in this action) (pro se plaintiff: appointment of counsel is granted in this FOIA case because its defects lie primarily in plaintiff's lack of legal experience and plaintiff's blindness could affect his ability to present the case himself).
Rankin v. FBI, No. 92-0662 (E.D. Pa. Feb. 10, 1992) (pro se plaintiff: appointment of counsel denied in this factually simple FOIA case).
Roley v. Executive Office of the United States Attorney, No. 89-2207 (D.D.C. Mar. 17, 1992) (Exemption 3 [Rule 6(e)]: protects original and duplicate grand jury transcripts, grand jury subpoenas, copies of subpoenas and attachments, grand jury exhibits, district court orders, motions and applications regarding grand jury testimony, and an agency Report of Investigation containing grand jury material) (Exemption 5: attorney work-product privilege protects handwritten attorney notes, an evidence/activity chart, a chronology of evidence, draft court filings, a memo to the file, and an inter-agency letter) (Exemptions 6 and 7(C): protect 3 letters written by United States Attorney personnel to the IRS or the Justice Department's Criminal Division pertaining to potential targets of investigation, one letter written by United States Attorney personnel to a third party, 6 letters written by United States Attorney personnel to private counsel on behalf of their clients, 2 pages of telephone toll listings, 4 pages of receipts pertaining to a codefendant, a one-page computer print-out pertaining to a codefendant, as well as the name and telephone number of a third party, the identities of IRS and DEA agents, and personal information about codefendants) (Exemption 7(D): protects a confidential report provided by the Sonoma County Sheriff's Office to the FBI in the course of a criminal investigation).
Rollins v. Dep't
of Justice, No. 90-3170, 1992 U.S. Dist. LEXIS 10884 (S.D. Tex. June 30,
1992) (Exemption 3 [26 U.S.C.
Rosenfeld v. Dep't of Justice, No. C90-3576 (N.D. Cal. Feb. 18, 1992) (stays: defendant's decision to stop processing 213,600 records concerning the activities and organizations in the Berkeley, California area in the 1960s and 1970s pending the appeal in Rosenfeld I is a "blatant violation of FOIA requirements"; allowing agencies "to ignore the FOIA timetable in every case in which the legal status of the exemptions is in dispute would eviscerate FOIA's philosophy of prompt disclosure") ("exceptional circumstances"/"due diligence": finding that an agency's backlog does not constitute "exceptional circumstances," holds that the FBI has not shown "exceptional circumstances" under the Open America concurrence adopted by the Ninth Circuit; since the FBI has not applied for additional funds to meet the upsurge in FOIA requests, it has not shown "due diligence"; based on the fact that the FBI's average response time for a FOIA request in 1989 was 326 days, the court gives defendant one year to finish processing plaintiff's request) (Vaughn Index: the government's argument that a Vaughn Index need only be prepared at the time the government files a dispositive motion is an erroneous interpretation of Vaughn; orders defendant to produce an Index of records selected by plaintiff within 60 days of the date of notification of plaintiff's selection; however, plaintiff is willing to limit the number of documents for which he will seek a Vaughn Index to no more than 25% of the total number of documents).
Rothschild v.
CIA, 6 F. Supp. 2d 38 (D.D.C. 1992) (Exemption 1 [E.O. 12,356]: release
of documents relating to the fall in oil prices between 1984 and 1986 would
reveal intelligence sources and methods or foreign activities of the United
States) (Exemption 3 [50 U.S.C.
Rush v. Dep't of the Army, No. C90-1457 (N.D. Ohio Apr. 10, 1992) (summary judgment: defendants are entitled to summary judgment, because, after reasonable searches, they have produced all nonexempt documents in their possession).
Rush v. Nat'l Insts. of Health, No. C89-0269 (N.D. Ohio Mar. 31, 1992) (summary judgment: summary judgment is granted to the Air Force because it responded to plaintiff's FOIA request in a timely manner and, after a reasonable search, was unable to locate some requested records; summary judgment is granted to the National Institutes of Health because 2 of plaintiff's letters do not make requests for identifiable documents as required by the FOIA, and, after a reasonable search, agency was unable to locate documents responsive to plaintiff's other FOIA request).
Ruthers v. United States, No. 89-0079 (N.D. W. Va. Mar. 4, 1992) (Exemption 7(D): protects handwritten and typed letters and information provided in confidence to the United States Attorney's Office by the West Virginia Department of Public Safety and the Baltimore, Maryland Police Department in the course of a criminal investigation).
St. Hilaire v. Dep't of Justice, No. 91-0078 (D.D.C. Mar. 18, 1992) (Exemption 5: deliberative process privilege protects the Office of Special Investigation's report which was prepared in order to assist the Attorney General in reaching his decision to exclude Austrian President Kurt Waldheim from the United States; disclosing the factual material used in preparing the report and the related background papers would reveal the authors' evaluation of this data relative to the large amount of data that was not used; report and related background papers were also properly withheld under the attorney work-product privilege because they were produced as part of an internal legal memorandum in anticipation of potential litigation) (Exemption 7(A): report was properly withheld under this exemption because its disclosure would give President Waldheim "earlier and greater access to the agency's case than he would otherwise have") (Exemption 7(C): protects personal information about Kurt Waldheim, his family, and third parties) (Exemption 1 [E.O. 12,356]: protects portions of 2 cables that contain communications between diplomatic instruments of sovereign states).
Sanders v. Dep't of Justice, No. 91-2263, 1992 WL 97785 (D. Kan. Apr. 21, 1992) (Exemption 2: protects computer codes used internally by the FBI to access the National Crime Information Center) (Exemption 7(C): agency properly withheld the identities of interviewees, lower-level FBI Special Agents and support personnel, nonfederal law enforcement personnel, and third parties) (Exemption 7(D): following Nadler v. Department of Justice, finds that since the information was obtained in the course of a criminal investigation, the defendant is entitled to a "presumption of confidentiality"; protects the information provided by confidential informants and their identities, including nonfederal law enforcement agencies, a health care facility, and a mental health care facility) (Exemption 7(F): disclosure of the identities of medical personnel who prepared plaintiff's mental health records and the identity of the custodian of the records would endanger the personal safety of individuals who released this information to the FBI) (in camera inspection: in camera inspection is denied because the Vaughn Indexes are sufficient).
Sandoval v. IRS, No. C91-20501 (N.D. Cal. Apr. 7, 1992) (court lacks jurisdiction since all responsive documents have been forwarded to plaintiff).
Schaake v. IRS,
No. 91-958, 1992 U.S. Dist. LEXIS 9418 (S.D. Ill. June 3, 1992) (Exemption 3
[26 U.S.C.
Schreibman v. Dep't of Justice, No. 91-0670 (D.D.C. Feb. 18, 1992) (motion for reconsideration denied in this FOIA action where defendant's motion to dismiss was granted because all responsive records have been released in their entirety to plaintiff).
Schultz v. Elmer, No. 91-3263 (D.D.C. Feb. 26, 1992) (jurisdiction: court lacks jurisdiction over the claims against the federal defendant because the documents requested were not "agency records" under the FOIA) (agency: state entities are not "agencies" under the FOIA even though they receive federal funding).
Selby v. Dep't of Justice, No. 91-0342 (C.D. Cal. Apr. 7, 1992) (Exemption 7(D): firmly applying Wiener v. FBI, finds that defendant's first and second affidavits are insufficient to support the agency's claim that the State of South Dakota was given an implied promise of confidentiality by the FBI; grants summary judgment to plaintiff and orders the transcript of radio transmissions released).
Senate of P.R. v. Dep't of Justice, No. 84-1829, 1992 WL 119127 (D.D.C. May 13, 1992) (Exemption 3 [Rule 6(e)]: release of 2 memoranda would reveal the identities of grand jury witnesses and would reveal the procedure of the investigation; defendants properly withheld information about an external inquiry concerning the testimony of witnesses) (Exemption 5: because the agency's affidavit does not adequately demonstrate that a portion of one sentence can be withheld under the deliberative process privilege, defendant must supply a further affidavit and submit an unredacted copy of the memorandum for in camera inspection; attorney work-product privilege protects 2 reports that were prepared to advise a supervisory official about the progress of an investigation and a memorandum to the file written by an attorney involved in the investigation; agency's affidavits show that attorneys drafting 4 memoranda reasonably anticipated litigation, because even though the case was officially closed, the agency was carefully reevaluating the case in the light of new evidence; attorney work-product privilege protects these 4 memoranda and a memorandum arising from a discussion with an attorney from outside the Department of Justice, who was counsel to a potential witness).
Sheptin v. Bureau of Prisons, No. 91-1624 (D.D.C. June 29, 1992) (summary judgment is granted to defendant; all responsive documents within its possession not subject to a FOIA exemption have been released).
Small v. IRS,
820 F. Supp. 163 (D.N.J. 1992) (Exemptions 3 [26 U.S.C.
Smith v. Dep't of Justice, No. 91-2639 (D.D.C. May 15, 1992) (duty to search: the defendant properly limited its search to records maintained by the FBI at its headquarters in Washington, D.C., in compliance with plaintiff's request).
Soto v. DEA, No. 90-1816 (D.D.C. Apr. 13, 1992) (summary judgment: summary judgment is granted to the IRS and the FBI because all responsive documents have been disclosed to plaintiff) (Exemption 2: protects informant identifier codes, G-DEP codes, NADDIS numbers, DEA Special Agent internal group assignments, and DEA internal criminal case file numbers) (Exemption 7(C): protects the names, addresses, telephone numbers, and other identifying information regarding accomplices, co-defendants, informants, third parties, subjects of investigative interest, as well as agent and nonagent DEA or other law enforcement personnel) (Exemption 7(D): protects information provided to law enforcement agencies by confidential sources and the identities of those sources, including "coded" informants, cooperating citizens, and state and local authorities) (Exemption 7(E): DEA properly withheld information that would disclose a law enforcement technique for the detection of drug traffickers that is not generally known to the public) (Exemption 7(F): DEA properly withheld the identities of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers) (Exemption 3 [Rule 6(e)]: protects information that would reveal the identities of witnesses or jurors and the substance of the testimony) (Exemption 5: the attorney work-product privilege protects a prosecution memorandum, a draft grand jury indictment, and 18 pages of handwritten notes taken by the prosecution during plaintiff's criminal trial) (Exemption 6: protects the names of third parties identified as "criminal associates" or "sources of supply" from a personal history report on the plaintiff) (fee waiver (Reform Act): fee waiver denied to plaintiff because he has made no showing as to why it would be in the public interest).
Spannaus v. Dep't of Justice, No. 85-1015 (D. Mass. Jan. 6, 1992) (Vaughn Index: grants plaintiff's motion for the preparation of a Vaughn Index in this case where the plaintiff sought records concerning the federal investigation of the Lyndon LaRouche organization from September 23, 1983 to November 24, 1984; to meet its burden of demonstrating that Exemption 7(A) applies, government may take a generic approach and group documents by categories).
Stinemetz v. FBI, No. 88-1187 (M.D. Fla. Feb. 27, 1992) (summary judgment granted to defendant; affidavits demonstrate that information was properly withheld under Exemptions 5 (deliberative, attorney work-product, and attorney-client privileges), 6, 7(C), and 7(D)).
Stone v. Def. Investigative Serv., No. 91-2013, 1992 WL 52560 (D.D.C. Feb. 24, 1992) (referral of request to another agency: when, in the course of responding to a FOIA request, documents are located that have originated in other agencies, the documents are properly referred to those agencies for direct response; plaintiff's motion for a Temporary Restraining Order to enjoin Defense Investigative Service from referring documents to the INS, and therefore involving INS as a party to this litigation, is denied).
Swan v. Dep't of Justice, No. 90-1542 (D.D.C. Jan. 9, 1992) (after petitioning for and receiving an extension of time to respond to defendant's Vaughn Index and motion for summary judgment, plaintiff failed to file a response; defendant's motion for summary judgment is granted and this action is dismissed).
Tavakoli-Nouri v. CIA, No. 91-1619 (D.D.C. Feb. 5, 1992) (summary judgment: after conducting a reasonable search and releasing the one responsive document in its entirety, defendant is entitled to summary judgment).
Taylor v. Office of Special Counsel, No. 91-N-734 (D. Colo. Mar. 22, 1992) (Exemption 7 (threshold): instant investigation conducted by the Office of Special Investigation meets the threshold requirements because it involved the possible violation of federal personnel laws) (Exemption 7(C): protects interview reports and summaries, correspondence from interviewees, a copy of an interviewee's calendar, recordings of several interviews, as well as handwritten notes of the investigators) (Exemption 5: deliberative process protects internal memoranda, a report discussing the merits of plaintiff's claim and making recommendations, and a report of investigation; attorney work-product privilege protects the notes of an examiner who conducted a telephone interview at the request of an attorney in order to prepare for litigation).
Transit Performance Eng'g v. Dep't of Transp., No. 92-0722, 1992 U.S. Dist. LEXIS 9143 (D.D.C. June 26, 1992) (attorney fees: attorney fees denied in this FOIA case where there was no court order requiring the release of the documents and where the agency responded to the request in a good-faith, reasonably diligent fashion; the major, if not exclusive, factor in plaintiff's decision to bring suit was to contest and review an administrative decision which had an adverse commercial effect on plaintiff; agency's withholding of information was reasonable).
Trennery v. IRS, No. 90-C-444 (N.D. Okla. Jan. 7, 1992) (summary judgment: to establish a genuine issue of material fact, plaintiff must do more than "vituperatively hypothesize" about the existence of updated forms; after notification of plaintiff's impending lawsuit, IRS provided her with copies of the requested indices to its Internal Management Document System Handbook; IRS has provided plaintiff with all the records she requested concerning her tax assessments) (FOIA as a discovery tool: IRS is not required to research for rules, regulations, or delegations of authority which were applicable to any action the IRS took concerning plaintiff's "substitute for return").
Tsang v. CIA,
No. 91-4438 (C.D. Cal. June 1, 1992) (Vaughn Index: applying Wiener
v. FBI in this case where the defendant sought to withhold information
about the plaintiff under Exemptions 1 [E.O. 12,356] and 3 [50 U.S.C.
Turner v. Lumadue, 789 F. Supp. 1 (D.D.C. 1992) (Exemptions 7(D): protects the names of people interviewed in law enforcement investigations and the information they provided) (Exemption 7(C): protects the identities of third parties mentioned in such interviews) (Exemption 5: deliberative process privilege protects opinions expressed by Postal Service investigators and employees in various reports).
Wagoner v. United States Postal Serv., No. 91-1529 (D.D.C. Feb. 5, 1992) (Exemption 2: agency properly withheld trivial administrative data that held no public interest) (Exemption 3 [Rule 6(e)]: Rule 6(e) clearly prohibits the disclosure of information that would reveal the identities of witnesses or jurors) (Exemption 7(C): protects the identities of subjects of investigation, postal employees, informants, and other third parties) (Exemption 7(D): protects information that was provided by confidential sources or could lead to the identification of those confidential sources).
Walsh v. Dep't of the Navy, No. 91-C-7410, 1992 WL 67845 (N.D. Ill. Mar. 23, 1992) (Exemption 5: deliberative process privilege protects various opinions of an investigating officer made in the course of an inquiry into alleged improprieties by a Naval selection board) (Exemption 6: protects the names and official positions of individuals who provided information to the investigating officer).
Ward v. Dep't of Justice, No. 91-C-3789 (N.D. Ill. Jan. 6, 1992) (Exemption 7(A): in an oral ruling, finds that FBI and corporate documents are exempt from disclosure).
Wash. Post Co. v. DOD, 789 F. Supp. 423 (D.D.C. 1992) (attorney fees: fees and expenses of a Special Master have routinely been regarded as "costs" and the FOIA plainly provides that the court may assess against the United States litigation costs reasonably incurred in a FOIA action; in this case, interim fees should be made available to the Special Master who has completed his task, even though the matter has not come to a final judgment; plaintiff-intervenor has prevailed sufficiently to justify the award of some fees to his counsel; finding that both plaintiff-intervenor and defendant have benefited, along with the court, from the constructive services of the Special Master and applying the discretionary powers allowed the district court under Rule 53(a), holds that each party must bear responsibility for one-half of the Special Master's fees; rate charged by the Special Master (which is not specified) is commensurate with the special skills and rare expertise that he brought to this demanding task; the Special Master is entitled to fees of $46,214.19).
Weyraugh v. United States Attorney, No. 91-3050 (D.D.C. Mar. 19, 1992) (jurisdiction: court does not have jurisdiction in this matter because the United States Attorney's Office does not have any records responsive to plaintiff's FOIA request and because the federal FOIA is inapplicable to the District of Columbia).
Wiley, Rein & Fielding v. Dep't of Commerce, 782 F. Supp. 675 (D.D.C. 1992) (Exemption 4: there has been no showing that corporate officials believe that the release of substantive information from Department of Commerce's "call sheets" would harm the competitive position of their companies; where government regulates a party, it does not need to rely on voluntary efforts by the regulated party to obtain information).
Wiley, Rein & Fielding v. Dep't of Commerce, 793 F. Supp. 360 (D.D.C. 1992) (attorney fees: plaintiff has substantially prevailed because it was not the mere filing of the lawsuit, but plaintiff's successful argument for summary judgment that ultimately caused the release of the documents; all of the entitlement criteria have been met by the plaintiff who sought documents so that it could prepare a legislative initiative to change the United States policy concerning the Paris Air Show; unspecified attorney fees granted).
Williams v. McCausland, 791 F. Supp. 992 (S.D.N.Y. 1992) (proper party defendant: plaintiff's FOIA claims are dismissed because FOIA authorizes claims against federal agencies, not individuals).
Williams v. Thornburgh, No. 89-2152 (D.D.C. Mar. 24, 1992) (plaintiff's FOIA claim is dismissed because the FOIA does not apply to the courts of the United States).
Wis. Project
on Nuclear Arms Control v. DOE, No. 90-1432 (D.D.C. Apr. 27, 1992) (Exemption
3 [50 U.S.C. app.
Wrenn v. Kemp, No. 1:92-0122 (N.D. Ohio Mar. 27, 1992) (exhaustion: plaintiff has not appealed the latest determination that denied him 3 documents from his file).
Wrenn v. Kemp, No. 1:92-0122 (N.D. Ohio May 6, 1992) (Exemption 7(C): agency properly withheld the names of 5 charging parties in an employment discrimination complaint).
Other Courts
DiCarlo v. Comm'r, T.C. Memo 1992-280 (May 14, 1992) (Federal Register publication: the organizational structure of IRS and the Treasury Department were published in the U.S. Government Manual, a special edition of the Federal Register; for the tax years in question, the Treasury Department published in the Code of Federal Regulations notice of where and how income tax forms could be obtained by taxpayers; Secretary of the Treasury's delegation orders are merely rules of internal agency procedure and need not be published in the Federal Register; respondents have fully complied with FOIA's publication requirements). (posted 7/1/03)
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