USDOJ: OIP: FOIA Post
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New FOIA Decisions, April-June 2003

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of April through June 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.


Appeals Courts

Accuracy in Media, Inc. v. Office of the Indep. Counsel, 61 F. App'x 712 (D.C. Cir. 2003) (per curiam) (substantially affirms district court's order; in this FOIA action where the requester seeks an autopsy photograph of former Deputy White House Counsel Vincent Foster's hand, finds that requester has "once again failed to demonstrate" compelling evidence that the government has "tampered with evidence or otherwise engaged in a cover-up"; rejects requester's argument that autopsy photograph of Foster's hand and a written description of his body implicate only a de minimus privacy interest; requester has not shown that Exemption 3 [Rule 6(e)] has been waived by prior disclosure of grand jury records).

August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) (exercising its discretion under 28 U.S.C. 2106 in this FOIA action where at the district court level the government relied on Exemption 7(A) to withhold information concerning the requester's ongoing criminal investigation, and subsequently that investigation (and Exemption 7(A) applicability) ceased, remands to the district court for in camera consideration of the applicability of Exemptions 7(C), 7(D), and 7(F) to his closed criminal file; distinguishes the case from its prior "litigation waiver" decision in Maydak v. Department of Justice, and harmonizes it with Senate of Puerto Rico v. United States Department of Justice, largely on the bases that here the government seeks to withhold only "sensitive, personal information" the disclosure of which would jeopardize the safety and privacy of third parties involved in the FBI's investigation and that there is nothing to suggest that the government's initial invocation of Exemption 7(A) only was "an effort to gain a tactical advantage" in the case; plaintiff has a history of violent behavior and would pose a risk to these persons' safety; the government's failure to invoke all applicable FOIA exemptions at the district court level was "a reasonable mistake," at most, and "[t]he law does not require that third parties pay for the Government's mistakes"; the government has taken affirmative steps to guard against recurrence of this problem).

Blanton v. Dep't of Justice, 64 F. App'x 787 (D.C. Cir. 2003) (duty to search: in this FOIA case where plaintiff was convicted of 4 counts of first-degree murder for his involvement in the 1963 bombing of a Baptist Church in Alabama, the district court properly found that the FBI's search for "tickler" files was adequate; failure to produce a particular document does not render a search inadequate) (waiver: requester cannot challenge the adequacy of the FBI's Vaughn Index, because this argument was not raised at the district court level) (Vaughn Index: the FBI's coded Vaughn Index is sufficiently detailed) (Exemption 7(C): categorically protects the identities of third parties (even those assumed to be deceased) contained in FBI files because their privacy interests are not outweighed by any public interest in disclosure) (Exemption 7(D): affirms district court's conclusion that the FBI properly analyzed the nature of the crime in ruling that implied promises of confidentiality were given to sources; death of a confidential source does not eliminate the protection of the exemption) (Exemption 7(E): protects polygraph information that is not generally known to the public) (requester did not adequately challenge the FBI's affidavits as to the application of Exemptions 2 and 7(F) or the segregability of information withheld under Exemptions 2, 7(E), and 7(F)).

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003) (Exemption 7 (threshold): in a 2-1 decision in this FOIA action where the requester sought information concerning more than 1000 individuals detained in connection with the terrorist acts of September 11, 2001, finds that the threshold requirement is "easily" met by the names of the detainees because these individuals came to the government's attention as a result of the investigation into "a heinous violation of federal law as well as a breach of this nation's security"; while these names are derived from the types of documents that traditionally have been made public in many circumstances, "as compiled, they constitute a comprehensive diagram of the law enforcement investigation after September 11") (Exemption 7(A): exemption protects the names of the detainees and their attorneys, and the dates and locations of arrest, detention, and release of detainees; extending the courts' "long-recognized deference to the executive on national security issues" to Exemption 7(A) "in appropriate cases, such as this one," court concludes that disclosure "would give terrorist organizations a composite picture of the government investigation" and thus enable them to impede it through witness intimidation, evidence tampering, evasion, and the formulation of "counter-efforts"; because all of the withheld information is properly withheld under Exemption 7(A), court "reserves judgment" on the applicability of Exemptions 3 [Rule 6(e)], 7(C), and 7(F)).

Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (fee waiver: based upon what it described as "Congress's directive that FOIA's fee waiver requirement be liberally construed," reverses district court ruling in this FOIA action where the requester, a nonprofit organization, argued that it qualifies for a fee waiver because the disclosure of documents concerning a conflict-of-interest waiver received by a former Commissioner of Internal Revenue would serve the public interest; disagrees with the district court's finding that the fee waiver request was "general and formulaic," and finds that it was "reasonably specific and non-conclusory"; disclosure of conflict-of-interest waiver is "likely to contribute significantly to public understanding of the [government's] operations"; requester has demonstrated that disclosure will show how the IRS acted on matters "touching on legal and ethical questions," that requester has the ability to publicize the disclosed information, and that this information is not already available to the public).

Office of the Capital Collateral Counsel v. Dep't of Justice, 331 F.3d 799 (11th Cir. 2003) (Exemption 6: reversing the district court's disclosure order, finds that the exemption protects 2 documents containing the names of third parties and the personal thoughts and feelings of a Justice Department attorney accused of professional misconduct; the fact that the attorney was a public official "does not render her interest in preserving her personal privacy without weight"; the public interest in knowing how the agency responded to her misconduct has been satisfied by substantial information available to the public).

Schwarz v. FBI, No. 02-5321 (D.C. Cir. Jan. 28, 2003) (per curiam) (grants government's motion for summary affirmance in this FOIA action where the district court dismissed as frivolous under 28 U.S.C. 1915(e)(2)(B)(i) plaintiff's FOIA lawsuit against 70 federal defendants), reh'g denied (D.C. Cir. Apr. 10, 2003) (per curiam).

Schwarz v. HHS, No. 02-5327 (D.C. Cir. Feb. 25, 2003) (per curiam) (summary affirmance granted to the government in this FOIA case where the requester filed a 189-page Complaint against 465 entities of the federal government, because requester's Complaint "lacks an arguable basis either in law or in fact").

Shors v. Treasury IG for Tax Admin., 68 F. App'x 99 (9th Cir. 2003) (Exemption 7(C): district court properly found, on the basis of the IRS's Vaughn Index, that the exemption protected certain records concerning an alleged incident involving the requester and his supervisor).

TPS, Inc. v. DOD, 330 F.3d 1191 (9th Cir. 2003) (format of response: conducting de novo review in this FOIA action, reverses and remands district court's ruling that agency need not provide information in a particular electronic format (a "zipped" file), because material issues of fact exist about whether it is "business as usual" -- in conformity with the agency's FOIA regulation -- for the agency to generate documents in a zipped file; the "business as usual" inquiry is not restricted to whether a government agency regularly produces documents in a particular format in response to FOIA requests, but rather whether a particular format is "readily reproducible" by the agency).


District Courts

Am. Civil Liberties Union v. United States Dep't of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) (Exemption 1 [E.O. 12,958]: disclosure of aggregate, statistical information on the number of times the Justice Department has used the surveillance and investigatory tools authorized by the USA PATRIOT Act would reveal intelligence activities, sources, or methods and could be expected to damage national security; the distinction between information disclosed under the Foreign Intelligence Surveillance Act and "different, but arguably analogous" information covered by the USA PATRIOT Act was determined by Congress and the Department of Justice "is therefore acting largely to maintain and defend" that distinction) (Exemption 5: on in camera inspection, finds that, with one exception, the documents at issue are not responsive to plaintiff's request; the one document that does contain aggregate, statistical information is protected by Exemption 1).

Andrews v. IRS, No. 02-0973, 2003 U.S. Dist. LEXIS 10226 (D.D.C. Apr. 29, 2003) (Exemption 3 [26 U.S.C. 6103(e)(1)]: protects tax-return information of a corporation).

Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 502 (E.D. La. 2003) (on in camera inspection of a document withheld in part, finds that information unrelated to plaintiff's murder conviction is protected by Exemption 7(C); precipitously quotes, in full, information that the court finds was withheld improperly under Exemption 7(D); rules that theinformation relates to the possibly of plaintiff's innocence and should have been disclosed to him prior to trial under the clear instructions in Brady v. Maryland; "an agent's doubts about a statement's veracity is irrelevant to the FOIA exemptions inquiry"; "the government's actions over the past 42 months, as it has sought to conceal the content of Document 212, are disappointing").

Caraveo v. Nielsen Media Research, Inc., No. 01Civ.9609, 2003 WL 1745064 (S.D.N.Y. Mar. 31, 2003) (adopts magistrate's recommendation; plaintiff's letters to the EEOC were not "clearly and prominently" identified as FOIA requests and in his Complaint plaintiff did not allege that he exhausted his administrative remedies under the FOIA).

Casad v. HHS, No. 01-1911, 2003 U.S. Dist. LEXIS 13007 (D.D.C. June 20, 2003) (proper party defendant: individual agency employees are not proper party defendants under the FOIA) (Exemption 5: deliberative process privilege protects redacted portions of the "summary statements" associated with NIH's funding of research grants, because they are both deliberative and predecisional; the summary statements represent only one step in the process of deciding to fund a grant, contain candid evaluations of applications, and were not expressly adopted) (jurisdiction: court is without jurisdiction over the issue of the fee amount because plaintiff has neither paid his assessed fee nor shown that he is entitled to a fee waiver) (denies plaintiff's request for a writ of mandamus ordering HHS to timely respond to FOIA requests and to publish median processing times in its annual FOIA report, because plaintiff has received timely interim responses to his FOIA requests and the defendant agency has corrected its reporting deficiency).

Dayton Newspapers, Inc. v. VA, 257 F. Supp. 2d 988 (S.D. Ohio 2003) (duty to search: pursuant to its FOIA regulations, the VA was obligated to search only its headquarters, absent a clear indication that plaintiff sought records maintained in a VA regional office) (Exemption 6: where plaintiff seeks certain information related to tort claims filed against the VA, finds that because there is no "inherent privacy interest," the exemption does not protect the names of claimants' attorneys and the attorneys' law firms; because the VA had agreed to release other data about the alleged torts, "it is a specious assertion" that disclosure of attorney names and affilations will lead to the identification of protected identities when used in conjunction with other information already provided; court finds agency's argument unpersuasive that a requester could use names of attorneys of claimants with a computer search engine to identify tort claimants who had filed lawsuits; exemption does not protect the names of presiding judges, because the privacy interest is "speculative or hypothetical," and does not protect claimants' dates of birth, because this information does not "directly identify" individuals; exemption protects the identities of deceased claimants and persons who filed claims on behalf of deceased individuals regardless of whether they have filed a lawsuit, because the "demonstrable" privacy interest outweighs the "hypothetical" public interest in disclosure) (Exemption 5: within 60 days, defendant agency must file with the court a Vaughn Index describing information withheld under the attorney work-product privilege).

Eagle v. United States Dep't of Commerce, No. C-01-20591, 2003 WL 21402534 (N.D. Cal. Apr. 28, 2003) (fee waiver: an educational institution is entitled to an automatic limitation of fees under the FOIA, but it must meet additional requirements for a full fee waiver (i.e., a waiver of all fees); plaintiff is entitled to a full fee waiver because his research provides a resource that does not otherwise exist and because he has demonstrated broad dissemination of his work through various publications and its use by numerous categories of people).

Gallace v. USDA, No. 01-1218 (D.D.C. Apr. 23, 2003) (grants defendant agency's unopposed renewed motion for summary judgment in this FOIA action where the court previously ordered USDA to search the offices of 2 agency employees who each held at least one document responsive to plaintiff's request) (appeal pending).

Glasser v. CIA, No. C-02-5420, 2003 WL 21209705 (N.D. Cal. May 15, 2003) (dismisses plaintiff's Amended Complaint as "patently frivolous" in this FOIA action where plaintiff sought records about the CIA's use of him as a "human subject" in its experiments; plaintiff's "fantastical allegations" are "too implausible to be credible").

Grine v. Coombs, 214 F.R.D. 312 (W.D. Pa. 2003) (FOIA action dismissed for lack of prosecution).

Hall v. United States Dep't of Justice, No. 96-2306 (D.D.C. May 29, 2003) (reconsideration denied in this FOIA action where the defendant agency withheld, under Exemptions 7(C) and 7(D), documents from the 1940s and 1950s relating to the investigation of 3 intellectuals for suspected communism-related activities).

Jefferson v. United States Dep't of Justice, No. 01-1418 (D.D.C. Mar. 31, 2003) (discovery in FOIA litigation: denies plaintiff's motion for discovery; plaintiff is entitled to de novo review of the defendant agency's compliance with the FOIA in response to his request for records; he is not entitled to an investigation into the defendant agency's motives) (duty to search: in response to plaintiff's FOIA request for records about a Justice Department attorney accused of misconduct, Justice Department's Office of Inspector General (OIG) properly limited its search to its investigative records system) (Exemption 7 (threshold): requirement met by records compiled by OIG in the course of its investigation of an attorney for failure to comply with a court order) (Exemption 7(C): the attorney, who court found exercised management and supervisory authority over a Department of Justice FOIA unit, has a privacy interest in protecting the details of the investigation but it is outweighed by the public interest in knowing "whether its government and high-level government officials are taking seriously their obligations to open an agency's operations and non-exempt records to public scrutiny"; incorrectly ruling that OIG's use of a Glomar response for any other OIG investigation of this attorney is not justified because it has acknowledged the existence of records in this investigation; information must be released to plaintiff within 30 days, except if Exemption 5 applies; OIG must acknowledge the existence of any other records responsive to plaintiff's FOIA request within 30 days) (Exemption 5: within 30 days, OIG must provide the court for in camera inspection the 4 records withheld under the deliberative process privilege) ("reasonably segregable": the following information is not reasonably segregable and may be withheld: personal information about the attorney (date of birth, home address, telephone numbers and social security number) and information that would identify OIG agents, witnesses, and FOIA requesters).

Judicial Watch, Inc. v. United States Dep't of Justice, 259 F. Supp. 2d 86 (D.D.C. 2003) (Exemption 5: presidential communications privilege protects 4341 pages of records concerning pardon applications considered or granted by former President Clinton; all of the documents contain advice and recommendations and were generated for the "sole purpose" of assisting former President Clinton in making decisions concerning pardons, "a quintessential and nondelegable Presidential power"; privilege extends to documents created by the Justice Department's Office of the Pardon Attorney, the primary job of which is to assist the President in his pardon decisionmaking; "as strong a supporter as the Court is of FOIA's liberal disclosure of government documents and as great as the public interest" in these records may be, the privilege "serves as a vitally important protection for the Presidency" by "allowing presidential advisors to provide the President with the fullest and most candid information and advice") (Exemption 6: protects 524 pages of documents consisting primarily of individual petitions for pardon, exhibits, and attachments, including personal information about third parties; disclosure of personal, nonpublic information about the applicants, the crimes they committed, and their lives before and after their convictions would be "an unwarranted invasion of personal privacy").

Judicial Watch, Inc. v. United States Dep't of Justice, Nos. 01-0639 (D.D.C. Mar. 31, 2003) (fee waiver: grants government's motion for reconsideration in this FOIA action where plaintiff sought records concerning pardon applications considered or granted by former President Clinton; court's prior opinion improperly shifted to defendant agency the burden of proof with respect to the fee waiver issue; the Justice Department has since provided plaintiff with 11,500 additional pages of records and a Vaughn Index that describes the remaining 40,000-50,000 pages, and "it is not unreasonable to conclude" that the "vast majority" of these are in the public domain; plaintiff is not entitled to a fee waiver for the continued processing of these records because it has failed to prove that "further, free release" would contribute significantly to the public interest).

Konigsberg v. FBI, No. 02-2428 (D.D.C. May 27, 2003) (Exemptions 6 and 7(C): FBI has not demonstrated that records are categorically exempt from disclosure merely on the basis that plaintiff has not submitted proof of death or a privacy waiver for records concerning his great uncle, whom he alleges to be an organized crime figure and FBI informant; distinguishing the categorical rule articulated in Reporters Committee "that a request for law enforcement records about a third party . . . is an unwarranted invasion of privacy," observes that it applies only to the "class of cases" in which the "balance characteristically tips in one direction"; plaintiff is not merely requesting an FBI rap sheet, nor can it be concluded that disclosure will not show "what the government is up to"; according to plaintiff his uncle confessed to 20 mob murders and was tried for only one, the FBI protected him in 2 major extortion cases, and there is a question about FBI involvement in a "mental incompetency" hoax; within 90 days, the FBI must search its files and produce all nonexempt records; within 120 days, the FBI must file a Vaughn Index and motion for summary judgment).

Landers v. Dep't of the Air Force, 257 F. Supp. 2d 1011 (S.D. Ohio 2003) (attorney fees: applying the Supreme Court's Buckhannon Bd. & Care Home, Inc. standard, finds that while this lawsuit was the catalyst for the disclosure of documents, plaintiff is not entitled to recover attorney fees because he obtained no relief from the court).

Lewis v. United States, No. 02-3249 (C.D. Cal. June 2, 2003) (Exemption 7 (threshold): requirement met by records compiled by the IRS in the course of investigations of alleged unauthorized collection actions by IRS employees) (Exemption 7(C): protects IRS inquiries and the dispositions of the allegations against third parties, information provided by or that would identify informants, information that would identify the subject of the complaint, information relating to the status of congressional inquiries, and the identities of IRS Special Agents) (Exemption 5: the deliberative process privilege protects IRS employees' preliminary analyses of congressional inquiries and of plaintiff's complaints, and draft lists of questions for interviewing witnesses).

Mack v. Dep't of the Navy, 259 F. Supp. 2d 99 (D.D.C. 2003) (discovery in FOIA litigation: denies plaintiff's motion for discovery as to the adequacy of defendant agency's search; defendant agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request for records about himself, and plaintiff's belief that additional documents exist is mere "speculation") (Exemption 7 (threshold): requirement met by records compiled by the Naval Investigative Service in connection with its law enforcement functions) (Exemption 7(C): exemption categorically protects the identities of law enforcement agents, victims, witnesses, subjects of investigative interest, and third parties contained in investigative records, because their strong privacy interests are not outweighed by an identifiable public interest in disclosure; plaintiff makes only a general assertion that there is a public interest in the fair administration of the death penalty) (Exemption 2 "high": protects cooperating witness identification numbers because they are "strictly internal" and are sensitive in that they conceal the identities of informants who were promised confidentiality).

Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23 (D.D.C. 2003) (Vaughn Index: within 60 days, defendant agencies must either supplement the record or release the previously withheld information; Bureau of Prison's (BOP) Vaughn Index is vague and conclusory) (Exemption 2 "high": BOP has demonstrated that the disclosure of a portion of staff manuals concerning internal codes for prison electronic systems could jeopardize inmate safety; BOP has not shown that portions of staff manuals relating to security issues and staff statements regarding internal matters were properly withheld) (Exemption 5: the deliberative process privilege does not protect information compiled during an investigation or from an outside source, because BOP has not shown that it is predecisional and deliberative) (Exemption 6: BOP has not adequately described the information it seeks to withhold under this exemption) (Exemption 7 (threshold): BOP has not shown that the threshold requirement is met by its Inmate Central Records System; requirement met by records compiled by the FBI in the course of an investigation of a former AT&T employee and of a third party for equipment theft) (duty to search: affidavits submitted by the Executive Office for United States Attorneys and BOP do not show that they conducted reasonable searches in response to plaintiff's FOIA requests; as the FBI informed plaintiff, pursuant to the Department of Justice's FOIA regulations, the FBI was obligated to search only its headquarters because FOIA requests must be made directly to the appropriate field offices) ("reasonably segregable": BOP has not shown that all reasonably segregable, nonexempt information has been released) (referred records: BOP must supplement the record with respect to documents forwarded to the IRS and the United States probation office, which is not an agency for purposes of the FOIA) (Exemption 3 [Rule 6(e)]: FBI has not shown that entire records concerning individuals subpoenaed to testify before a grand jury are protected by Rule 6(e); [10 U.S.C. 130]: the Executive Office of the President's Office of Science and Technology Policy (OSTP) has not shown that this statute protects technical data with a military or space application) (Exemption 7(C): FBI has not justified the withholding of third-party records in their entireties) (Exemption 7(D): FBI has not shown that informants and local police departments were given express or implied promises of confidentiality) (duty to create a record: FOIA does not require DEA "to answer questions disguised as a FOIA request") (adequacy of request: where the request that plaintiff describes in his filings with the court is effectively a new FOIA request to DEA, court cannot compel a search because its jurisdiction extends only to DEA's response to the original FOIA request) (Exemption 4: applying the Critical Mass standard, finds that OSTP has not sufficiently described nor justified the withholding of information in a meeting notice, agenda, attendee notes, and a report about the potential for widespread outages of telephone service) (exhaustion: where the IRS's fee assessment came after the filing of this action, finds that plaintiff has not exhausted his administrative remedies with respect to records he requested from the IRS, because plaintiff has neither paid the estimated fee nor sought a fee waiver).

McQueen v. United States, 264 F. Supp. 2d 502 (S.D. Tex. 2003) (res judicata: plaintiff is collaterally estopped from contesting the application of several of the FOIA exemptions involved to some documents, because they were previously adjudicated) (fee waiver: denies plaintiff's request for a fee waiver with prejudice) (Vaughn Index: within 14 days, the FBI must submit a supplemental Vaughn Index for several documents) (in camera inspection: denies plaintiff's request for in camera inspection of voluminous records because the remaining Vaughn Indices are sufficiently detailed) (adequacy of search: the FBI and the IRS conducted reasonable searches in response to plaintiff's FOIA requests) (Exemption 2 "high": disclosure of FBI informant identifier codes could impede the effectiveness of internal law enforcement procedures) (Exemption 3 [Rule 6(e)]: protects the identities of grand jury witnesses and targets and information that would reveal the scope and direction of the grand jury investigation; [26 U.S.C. 6103(b)(2)]: protects third-party tax-return information) (Exemption 5: the attorney work-product privilege protects documents prepared in anticipation of plaintiff's criminal prosecution for attempting to evade federal diesel fuel excise taxes; the deliberative process privilege protects predecisional prosecution documents prepared by IRS agents and line attorneys for the use of a senior person in the decisionmaking hierarchy) (Exemptions 6 and 7(C): protects information concerning the internal investigation of 3 government employees that were based on allegations made by plaintiff's attorney which resulted in no finding of wrongdoing) (Exemption 7 (threshold): requirement met by records compiled during the course of plaintiff's criminal investigation and in response to grand jury allegations) (Exemption 7(C): protects the identities of grand jury witness, informants, third parties, FBI Special Agents and support personnel, subjects of investigative interest, and federal, state, and local government employees because there is no public interest in disclosure) (Exemption 7(D): the Justice Department's Tax Division has not shown that sources were given express promises of confidentiality, but it has shown that sources had implied promises of confidentiality because of the specific facts surrounding the investigation and plaintiff's threats and ability to harm witnesses; the FBI properly withheld names of and information provided by informants, because it has shown that each informant was given an express promise of confidentiality) (Exemption 7(E): disclosure of law enforcement techniques and procedures for detecting federal diesel fuel tax evasion "may enable others to modify a criminal enterprise to avoid or at least delay detection") (Exemption 7(F): protects the identities of informants and undercover agents participating in plaintiff's criminal investigation, because plaintiff poses a credible risk of retaliation).

Mitchell v. Ashcroft, No. 02-0501 (D.D.C. May 4, 2003) (duty to search: defendant agency has conducted a reasonable search in response to plaintiff's FOIA request) (jurisdiction: court lacks jurisdiction where plaintiff did not exhaust his administrative remedies by filing a FOIA request).

Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126, 2003 WL 21146674 (M.D. Fla. May 13, 2003) (in camera inspection: in this FOIA case where plaintiff submitted 21 FOIA requests for voluminous audit documents related to a government contract, the court will adjudicate the action in stages; after defendant submits detailed Vaughn Indices, the court will hold evidentiary hearings to permit parties to submit sufficient evidence regarding the application of the exemptions, followed by in camera inspection of the documents at issue) (Exemption 5: defendant's conclusory statements do not show that draft audit reports and audit back-up materials were either predecisional, deliberative, or reasonably segregated; defendant has not shown that all or parts of 14 documents are protected by the attorney-client privilege; defendant has not shown that documents and a litigation database were created in contemplation of specifically identified litigation or that the agency made a segregability determination) (Exemption 7 (threshold): requirement met by records compiled by Amtrak's Office of Inspector General in the course of its investigation of fraud, false claims, and false statements in connection with a design and build contract for the construction of a high-speed rail corridor; duplicates of investigatory records found in other files or locations are not exempt from disclosure under Exemption 7) (Exemption 7(A): defendant has not shown that harm will result from the disclosure of each category of investigatory documents and has not addressed the issue of segregability) (Exemption 2 "low": exemption does not protect the names of auditors from auditor statements and the cover sheets; identities must be released within 20 days) (discovery in FOIA litigation: discovery is necessary to determine whether an attorney for a private law firm acted for defendant agency as counsel or as contract administrator, because material issues of fact preclude summary judgment).

Nw. Coalition for Alternatives to Pesticides v. EPA, 254 F. Supp. 2d 125 (D.D.C. 2003) (mootness and Exemption 4: FOIA action in not moot where EPA responded to plaintiff's FOIA request seeking statements of formulae for herbicides by providing "substantiation comments" submitted by the manufacturer in which the company had redacted information it considered to be confidential; there is no evidence that EPA reviewed the redactions and made an independent determination to release nonexempt, segregable information; on remand EPA must produce an administrative record that explains how it reached its decisions).

The Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162 (M.D. Fla. 2003) (mootness: even though the release of documents was belated, plaintiff's FOIA claims as to records already disclosed are moot) (in camera inspection: denies plaintiff's request for in camera inspection, because defendant agency's Vaughn Index is sufficiently detailed) (Exemption 5: finds, without elaboration, that defendant agency's Vaughn Index demonstrates that the deliberative process privilege protects 18 documents, in whole or in part, relating to a settlement agreement).

Pritchett v. United States, No. 01-73161, 2003 U.S. Dist. LEXIS 4955 (E.D. Mich. Mar. 6, 2003) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects third-party tax-return information).

Raphael v. United States Dep't of Justice, No. 02-CV-3808, 2003 U.S. Dist. LEXIS 6515 (E.D. Pa. Mar. 31, 2003) (denies defendant agency's motion to dismiss for lack of jurisdiction; holds, incorrectly, that because the FOIA does not contain an explicit consent requirement, plaintiff pleaded a valid cause of action with respect to the FBI's withholding of an entire Form 302 under Exemption 7(C); within 20 days the FBI must file an answer to plaintiff's Complaint).

Raulerson v. Ashcroft, 271 F. Supp. 2d 17 (D.D.C. 2002) (duty to search: FBI demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request) (Vaughn Index: FBI's coded Vaughn Index is sufficient) (Exemption 2 "high": permanent symbol-source numbers are predominantly internal and their disclosure would risk circumvention of the FBI's informant program) (Exemption 3 [Rule 6(e)]: protects the names of individuals who were subpoenaed to testify in front of the grand jury and the names of their employers; [18 U.S.C. 2511]: protects intercepted information resulting from court-ordered wiretaps) (Exemption 7(C): categorically protects the identities of FBI Special Agents, other federal government employees, state and local law enforcement officers, informants, third parties, and subjects of investigative interest contained in investigatory files) (Exemption 7(D): FBI has not demonstrated that individuals and law enforcement agencies were given implied promises of confidentiality; FBI must file a supplemental Vaughn Index by May 10) ("reasonably segregable": FBI has no obligation to release any portion of any document outside the scope of the FOIA request).

Read v. FAA, 252 F. Supp. 2d 1108 (W.D. Wash. 2003) (attorney fees: applying the Supreme Court's Buckhannon Bd. & Care Home, Inc. standard, finds that plaintiff has substantially prevailed because the FAA did not fully respond to his FOIA requests until ordered to do so by the court; disclosure of (unspecified) information did not benefit the general public; plaintiff had a sufficient personal interest in these records to motivate him to pursue this litigation; government's failure to respond fully to plaintiff's FOIA requests for 2 years after he prepaid the initial $3036 in copying fees and 20 months after he made the subsequent $1237 payment demonstrates "recalcitrance and obduracy"; finding that the government's unreasonable behavior "marginally outweighs" the other factors, grants plaintiff attorney fees; grants plaintiff reduced attorney fees for 2 failed motions because each motion was partially successful in that the court ordered defendant agency to respond further to plaintiff's requests; grants plaintiff fees and costs incurred in his successful motion for attorney fees; by May 1, government must pay plaintiff $8281.56 in attorney fees and $1246.01 in costs).

Taylor v. United States Dep't of Justice, 257 F. Supp. 2d 101 (D.D.C. 2003) (Vaughn Index: on in camera inspection finds that the FBI's Vaughn Index is sufficient) (Exemption 7 (threshold): requirement met by 302s compiled by the FBI in the course of its criminal fraud investigation of plaintiff and other third parties) (Exemption 7(C): protects information that would identify FBI Special Agents, other federal and local employees, informants, third parties, and subjects of investigative interest; the privacy interest is "clear" and there is no public interest in disclosure of information that might assist a convict in challenging his conviction; FBI properly refused to confirm or deny the existence of records on 2 named living persons; in camera review is not necessary).

Taylor v. United States Dep't of Justice, 268 F. Supp. 2d 34 (D.D.C. 2003) (Exemption 7(C): denies plaintiff's motion for reconsideration of court's April 1, 2003 opinion; there is no public interest in disclosure of third-party information that might assist a convict in challenging his conviction; FBI properly refused to confirm or deny the existence of records on living persons).

TPS, Inc. v. Dep't of the Air Force, No. C 01-4284, 2003 U.S. Dist. LEXIS 10925 (N.D. Cal. Mar. 28, 2003) (mootness: FOIA action is moot because plaintiff has all files it requested) (fees: the Navy properly refused to produce computer files requested by plaintiff until plaintiff pays an outstanding bill of $300 for time expended in a records search conducted in 1995 for plaintiff, based upon his commitment to pay, in a FOIA request made to another Navy office; the Navy may properly refuse to process any further FOIA requests from plaintiff "until this, and all other outstanding bills, are paid") (attorney fees: denies plaintiff's request for attorney fees (which, if granted, could be used to pay off its debts) because it has not "substantially prevailed").

Trulock v. United States Dep't of Justice, 257 F. Supp. 2d 48 (D.D.C. 2003) (in camera inspection: orders in camera inspection of all the records withheld in whole or part by the CIA; CIA's Vaughn Indices do not sufficiently describe information withheld from 870 pages under Exemptions 1, 2, 3, 5, and 6) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to records he requested from the Department of Energy (DOE), because plaintiff has neither appealed DOE's denial of his request for a fee waiver nor paid the estimated fees).

Wayne Seminoff Co. v. Mecham, No. 02-CV-2445, 2003 U.S. Dist. LEXIS 5829 (E.D.N.Y. Apr. 10, 2003) ("not an agency" defense: because the Administrative Office of the United States Courts is part of the judicial branch of government, it is not an agency for purposes of the FOIA; "courts of the United States" are specifically excluded from the FOIA) (attorney fees: without elaboration, denies plaintiff's motion for attorney fees).

W. Journalism Ctr. v. IRS, No. 01-0773, 2003 U.S. Dist. LEXIS 8564 (D.D.C. Mar. 4, 2003) (discovery in FOIA litigation: discovery in FOIA litigation is "generally inappropriate," and plaintiff has failed to show that its request is based on "anything more than mere speculation") (duty to search: the IRS has conducted a reasonable search in response to plaintiff's FOIA request).

Zevallos-Gonzalez v. DEA, No. 97-1720 (D.D.C. Sept. 25, 2000) (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's request for records about himself and his various business holdings) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (Exemption 7 (threshold): requirement met by records compiled by DEA in response to a request by a Peruvian law enforcement agency and under the authority given to DEA by the Controlled Substances Act) (Exemption 7(A): disclosure of case status reports, cables, and Peruvian and American investigatory reports would harm the drug-trafficking investigations of DEA and the Peruvian government by revealing the nature, scope, and direction of the investigations and possible prosecution evidence) (Exemption 7(D): protects the identities of and information provided by informants, because DEA's affidavits demonstrate that they were given express promises of confidentiality) (Exemption 7(F): disclosure of the identities of DEA Special Agents, foreign and domestic law enforcement personnel, and nonlaw enforcement personnel could reasonably be expected to endanger their lives, because of plaintiff's alleged involvement in international drug trafficking, money laundering, kidnapping, and murder).   (posted 7/1/03)


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