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 1995. 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).
Assassination Archives & Research Ctr. v. Dep't of Justice, 43 F.3d 1542 (D.C. Cir. 1995) (the JFK Act does not create an implied private right of action for the release of documents; the substantive standards for release of documents under the JFK Act cannot be grafted onto the FOIA's procedures; because the district court held that the withholding of one and one-half lines of text was proper under Exemptions 7(C) and 7(D), it is unnecessary to remand this case in light of Landano).
Bauer v. United States, No. 94-5205 (D.C. Cir. Apr. 14, 1995) (per curiam) (in this FOIA case where plaintiff sought information contained in criminal investigatory files, grants the government's motion for remand).
Braslavsky v. FBI, No. 94-2609, 1995 U.S. App. LEXIS 14413 (7th Cir. June 8, 1995) (unpublished order), 57 F.3d 1073 (7th Cir. 1995) (table cite) (in this FOIA case, finds that the district court properly based its decision on the FBI affidavits, rather than reviewing the disputed material in camera; FBI's affidavits adequately establish that intelligence material was properly withheld under Exemption 1 (E.O. 12,356) and the names of agency employees were properly withheld under Exemption 7(C)).
Buemi v. Lewis, No. 94-4156 (6th Cir. Apr. 4, 1995) (unpublished order), 51 F.3d 271 (6th Cir. 1995) (table cite) (agency: district court properly dismissed plaintiff's FOIA complaint because the FOIA applies only to federal agencies, not to cities or private individuals).
Carter v. NSA, 54 F.3d 772 (4th Cir. 1995) (per curiam) (defendant has adequately searched for records in response to plaintiff's FOIA request).
Chenkin v. Dep't
of the Army, 61 F.3d 894 (3d Cir. 1995) (affirms district court's January
14, 1994 order; while this matter was on appeal, the government made a discretionary
disclosure of all materials withheld, with the exception of redacted portions
of 2 documents; this appeal is now moot insofar as the disclosed documents are
concerned; the withholding of the redacted portions is affirmed (based on Exemption
3 in conjunction with 10 U.S.C.
Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325 (9th Cir. 1995) (duty to search: the FDA's affidavit demonstrates that it has "conducted a search reasonably calculated to uncover all relevant documents" concerning Prozac) (Vaughn Index: the FDA's index sufficiently describes the documents and the agency's reasons for withholding them; the FOIA does not require the FDA to segregate portions from over 325,000 pages of documents) (discovery in FOIA litigation: the district court did not abuse its discretion in granting summary judgment before allowing plaintiff to conduct additional discovery) (remanded to the district court for consideration of the FDA's withholding of the individual adverse reaction reports because, contrary to defendant's assertions, plaintiff clearly requested these reports).
Computer Prof'ls for Soc. Responsibility v. Nat'l Inst. of Standards & Tech., No. 94-5153, 1995 WL 66803 (D.C. Cir. Jan. 13, 1995) (per curiam) (grants summary affirmance to the government in this FOIA case where the district court ruled that information concerning computer security guidelines was protected under Exemptions 1, 3, and 5).
Data-Prompt, Inc. v. Cisneros, No. 93-2255 (D.D.C. Apr. 26, 1994), vacated & remanded, No. 94-5133 (D.C. Cir. Apr. 5, 1995) (unpublished memorandum), 52 F.3d 1122 (D.C. Cir. 1995) (table cite) ("Reverse" FOIA: under the Administrative Procedure Act the district court had jurisdiction to review HUD's decision to release a software-user manual prepared by plaintiff; HUD's decision to release was based on an out-of-date agency regulation that had been superseded by the Federal Acquisition Regulation; thus, it was "arbitrary and capricious"; vacates district court's dismissal and remands the case with instructions to remand to agency for reconsideration).
Dilley v. NTSB,
49 F.3d 667 (10th Cir. 1995) (publication: subsection (a)(1)(D) of
the FOIA does not require the FAA to promulgate a rule or publish a policy stating
that it may suspend pilot certificates for violations of Federal Aviation Regulations,
because of the FAA's clear statutory grant of authority under 49 U.S.C. app.
Fox v. Dep't of Justice, No. 94-56788 (9th Cir. Feb. 21, 1995) (appeal dismissed in this FOIA case where the district court granted the FBI an Open America stay until 1999), reh'g denied (9th Cir. Mar. 23, 1995).
Frydman v. Dep't of Justice, No. 94-3255, 1995 WL 355270 (10th Cir. June 14, 1995) (unpublished order), 57 F.3d 1080 (10th Cir. 1995) (table cite) (attorney fees: district court did not abuse its discretion in deciding that plaintiff was not entitled to attorney fees).
Gabel v. Comm'r, No. 94-16245 (9th Cir. May 5, 1995) (unpublished memorandum), 61 F.3d 910 (9th Cir. 1995) (table cite) (plaintiff has failed to provide a persuasive argument demonstrating that the district court erred in concluding that the IRS did not possess any records responsive to his first 4 FOIA requests; plaintiff has failed to provide a persuasive argument to support his claim that the IRS did not provide an adequate response to his fifth FOIA request).
Hunsberger v. Dep't of Justice, No. 94-5234 (D.C. Cir. Apr. 10, 1995) (per curiam) (grants government's motion for summary affirmance; plaintiff seeks the same information that he requested in an earlier, pending FOIA suit).
Kamman v. IRS,
56 F.3d 46 (9th Cir. 1995) (Exemption 3 [26 U.S.C.
Lindsay v. Burns, No. 94-5138, 1995 WL 364073 (D.C. Cir. May 11, 1995) (to the extent plaintiff is requesting records under the FOIA, he has not exhausted his administrative remedies).
Lofton v. Bureau of Prisons, No. 94-16382, 1995 U.S. App. LEXIS 14444 (9th Cir. June 8, 1995) (unpublished memorandum), 57 F.3d 1077 (9th Cir. 1995) (table cite) (mootness: under the FOIA, an action to compel the release of documents is mooted when the agency releases the requested documents to the requester).
Manna v. Dep't of Justice, 51 F.3d 1158 (3d Cir. 1995) (Exemption 7(A): protects information that the government compiled concerning plaintiff, who has been imprisoned since 1988; defendant's public and sealed declarations demonstrate that disclosure of this information would interfere with prospective criminal and civil law enforcement proceedings involving the Genovese family and plaintiff that may proceed to prosecution "within the space of this decade"; disclosure of FBI reports could result in a chilling effect upon potential cooperators and witnesses in organized crime enforcement investigations) (Exemption 7(C): protects the names of law enforcement officers, interviewees, informants, victims, and witnesses involved in criminal investigations; "Although a court does not usually take a requester's identity into consideration, Manna's position in the hierarchy of a particularly influential and violent La Cosa Nostra family is highly material to the protection of individuals' privacy interests that Exemption 7(C) is meant to protect.") (Exemption 7(D): finds that Landano casts doubt on the validity of implied promises of confidentiality; in this case, however, the government has shown that law enforcement sources were given express promises of confidentiality).
McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162 (D.C. Cir. 1995) (in this non-FOIA case where the district court denied plaintiff's request for an injunction to restrain the Air Force from disclosing option prices from 2 launch vehicle contracts at the time of option exercise, remands to district court with instructions to remand to agency; notwithstanding the evident applicability of a Federal Acquisition Regulation disclosure provision, the agency must state its position on whether this information is protected under Exemption 4 of the FOIA or under the Trade Secrets Act).
Minnich v. MSPB, No. 94-3587 (Fed. Cir. Mar. 21, 1995) (per curiam) (unpublished order), 50 F.3d 21 (Fed. Cir. 1995) (table cite) (jurisdiction: FOIA jurisdiction lies in the district court, not in the Merit Systems Protection Board).
Moscony v. FBI, No. 95-5038 (3d Cir. Apr. 17, 1995) (affirms district court's ruling denying plaintiff's petition for writ of mandamus to compel agency to produce records he requested under the FOIA; under the FOIA, plaintiff should have filed an ordinary civil suit).
Patterson v. IRS, 56 F.3d 832 (7th Cir. 1995) (Exemption 7 (threshold): the IRS's affidavit does not make the requisite showing that documents concerning disciplinary actions taken against the plaintiff were compiled for law enforcement purposes rather than as a result of general agency monitoring of EEO complaints) (Exemption 6: the IRS's affidavit does not adequately describe why the release of entire documents or portions of documents would "constitute a clearly unwarranted invasion of personal privacy"; remands to the district court for an explicit finding on segregability where an entire page was withheld) (duty to search: because plaintiff failed to question the adequacy of the search at the district court level, she waived her opportunity to demonstrate that responsive documents existed; the issue is not waived per se because the agency still has the burden to establish the adequacy of its search; agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's second FOIA request; affidavit is adequate when submitted by the current disclosure officer, based upon records provided by the previous disclosure officer who was plaintiff's supervisor).
Pollack v. Dep't of Justice, 49 F.3d 115 (4th Cir. 1995) (exhaustion: applying Oglesby v. United States Dep't of the Army, finds that the district court erred in one respect; because the agency failed to comply in a timely fashion to plaintiff's proper FOIA request, plaintiff had "constructively" exhausted his administrative remedies; the agency did not respond to the request before suit was filed; the fact that further agency action was taking place on plaintiff's request while his FOIA action was pending in court did not require plaintiff to appeal administratively each agency determination in the periodic status reports) (fees: district court's judgment dismissing the case is affirmed because plaintiff refused to pay the required fees for search and duplicating costs or to obtain a waiver of that requirement; plaintiff apparently was under the erroneous belief that once the action was filed in court, he was relieved of any obligation to pay for documents).
Quinn v. United States Navy, No. 94-56067, 1995 WL 341513 (9th Cir. June 8, 1995) (unpublished memorandum), 57 F.3d 1077 (9th Cir. 1995) (table cite) (affirms district court ruling; an action under the FOIA is moot when the agency in control of the requested documents releases them to plaintiff).
Rosenfeld v. Dep't of Justice, 57 F.3d 803 (9th Cir. 1995) (Exemption 1 [E.O. 12,356]: in this FOIA case where plaintiff seeks information about the FBI's investigation of the 1960s protests at the University of California at Berkeley, affirms district court's denial of government's withholding of portions of 3 documents; government has failed to make an initial showing "with any particularity" that a source was confidential and that disclosure of the withheld information would lead to exposure of the source; affirms district court's ruling that a fourth document could be disclosed in part while still accommodating the government's classification interest) (Exemption 7 (threshold): district court did not clearly err in finding that the FBI's law enforcement purpose in investigating a journalist was "pretextual"; post-1958 documents relating to Clark Kerr, President of the UC system, are pretextual and do not relate to any investigation performed in connection with a legitimate law enforcement purpose; the 1953 personnel investigation of the educator satisfies the law enforcement threshold; remands for a determination of whether any exemptions apply; remands the 1964 background report of the educator for a determination of whether it was compiled to complete a personnel background check; district court did not clearly err in deciding that any post-January 1965 documents in the Free Speech Movement (FSM) file were compiled for monitoring, rather than law enforcement, purposes; affirms district court's order to disclose documents that were cross-filed into the FSM files from exempt files because the government first raised this argument in its motion for reconsideration) (Exemption 7(C): distinguishes Ray v. Department of State and Reporters Committee, because in this case disclosing the names of the subjects of investigative interest would shed light on the operations of the FBI; it would show to what extent the FBI investigated individuals for participating in political protests; nothing in the records suggests that the district court gave minimal weight to the privacy interests of the subjects of the FSM investigations; district court did not err when it "accommodated" subjects' privacy in information that is 25 years old; remands 4 FSM documents concerning individuals well known to have been active in the FSM; court should determine whether these documents contain information that exceeds the scope of the FSM criminal investigations) (Exemption 7(D): district court did not err in ruling that the FBI's affidavits do not demonstrate that symbol-numbered sources were given express assurances of confidentiality; applying Landano, affirms district court's ruling denying exempt status to other documents, because the FBI has not demonstrated that there was an implied assurance of confidentiality) (Exemption 7(E): district court did not err in finding that a pretext phone call is an investigative technique generally known to the public and must be disclosed).
Ruotolo v. Dep't of Justice, 53 F.3d 4 (2d Cir. 1995) (exhaustion: plaintiffs, who did not actually exhaust their administrative remedies, are deemed to have done so because defendant's response letter did not include notification of the right to appeal) ("unreasonably burdensome": in this case where the plaintiffs sought, among other items, all Vaughn Indexes, affidavits, and declarations for all FOIA requests from taxpayers from 1978 to the present, reverses and remands the district court's grant of summary judgment for the government; agency has not proven that the search will be unduly burdensome; plaintiffs sought documents related to Vaughn Indexes and there were only 803 files to be searched; agency gave no excuse for failing to honor plaintiffs' offer of $600 for the agency to begin compiling the most recent material responsive to their request) ("reasonably described" records: plaintiffs described the records they sought with great specificity; but even if they had not, regulations require that the agency assist plaintiffs in reformulating their request if it was thought that the request needed to be narrowed; plaintiffs were not furnished a full listing of the Tax Division's systems for filing and categorization; plaintiff should have been afforded further discovery on the burdensomeness issue).
Schwarz v. INTERPOL, Nos. 94-4111, 94-4142 (10th Cir. Feb. 28, 1995) (unpublished order), 48 F.3d 1232 (10th Cir. 1995) (table cite) (the Executive Office for United States Attorneys was entitled to summary judgment because its affidavit demonstrated that after a reasonable search it was unable to locate records concerning plaintiff's missing husband) (Exemption 7(C): INTERPOL properly refused to confirm or deny the existence of a file on plaintiff's husband; plaintiff's husband clearly has a privacy interest in avoiding disclosure of his whereabouts to third parties; this information would not shed light on the operations of the federal government).
Sims v. Dep't of Justice, No. 94-5208, 1995 U.S. App. LEXIS 8741 (D.C. Cir. Mar. 14, 1995) (per curiam) (grants summary affirmance to the government in this FOIA case where the district court ruled that an adequate search was conducted and information properly withheld under Exemptions 1 and 3).
Smith v. O'Brien, No. 94-41371 (5th Cir. June 19, 1995) (per curiam) (unpublished memorandum), 59 F.3d 1241 (5th Cir. 1995) (table cite) (attorney fees: in the Fifth Circuit, pro se litigants are not entitled to attorney fees under the FOIA unless the litigant is also an attorney).
United States v. Mercado, No. 94-3976 (6th Cir. Jan. 31, 1995) (unpublished order), 47 F.3d 1171 (6th Cir. 1995) (table cite) (agency: plaintiff's defense counsel in a criminal matter is not an agency for purposes of the FOIA).
Wrenn v. Gallegos, No. 93-2258 (D.D.C. May 26, 1994), summary reversal granted in part & denied in part sub nom. Wrenn v. Shalala, No. 94-5198 (D.C. Cir. Mar. 8, 1995) (district court properly concluded that some of plaintiff's FOIA complaints are barred by the doctrine of res judicata because they were the subject of previous litigation; to the extent that plaintiff has raised new FOIA claims, dismissal on the grounds of res judicata was not warranted and the case is remanded).
Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995) (publication: the January 1993 rule which would confer upon plaintiff an expanded interpretation of the standards for refugee status not only was never published, it also never had an effective date; the rule never has become effective; the rule is not one that "if not published would adversely affect a member of the public").
Adamson v. Dep't
of Justice, No. 93-20577 (N.D. Cal. Jan. 3, 1995) (on the basis of the
agency's affidavits, summary judgment is granted to defendant as to 36 documents
withheld under Exemptions 1 [E.O. 12,356], 2, 3 [26 U.S.C.
Almy v. Dep't of Justice, No. 90-362 (N.D. Ind. Apr. 13, 1995) (exhaustion: in this case where 2 government agencies did not comply with the FOIA's then-existing 10-day deadline, plaintiff has not exhausted his administrative remedies because he received responses from them before he filed suit) (duty to search: the U.S. Attorney's Office for the Northern District of Illinois, DEA, FBI Headquarters, and the FBI's Chicago Field Office conducted reasonable searches of their records for information sought by plaintiff; plaintiff failed to present any evidence which would call into question their search procedures) (Exemption 2 "high": the disclosure of internal DEA markings and "violator identifiers" would jeopardize law enforcement efforts) (Exemption 5: the deliberative process and attorney work-product privileges protect 3 pages that contain information prepared in anticipation of litigation at the direction of the prosecuting attorney) (Exemption 7 (threshold): the threshold requirement is met by records compiled by the FBI and DEA relating to their law enforcement duties) (Exemption 7(C): protects information that would identify FBI Special Agents, support employees, local law enforcement personnel, informants, third parties, and subjects of investigative interest, and criminal case file numbers and a third-party rap sheet) (Exemption 7(D): protects the identities of private citizens and state and local law enforcement authorities who provided information under assurances of confidentiality) (Exemption 7(E): orders in camera inspection of the January 27, 1975, DEA Form-284 concerning the use of consensual eavesdropping equipment; DEA has provided little information as to why disclosure would jeopardize law enforcement techniques) (Exemption 7(F): protects the identities of DEA agents, supervisory agents, and other law enforcement entities).
Almy v. Dep't of Justice, No. 90-362 (N.D. Ind. June 2, 1995) (Exemption 7(E): disclosure of the DEA Form-284 would reveal information about equipment and techniques employed by DEA and would assist certain drug violators in evading detection and apprehension).
Piano, Inc. v. FTC, No. 92-0603 (D. Conn. Mar. 8, 1995) (on remand, finds
that the agency's investigatory documents were properly withheld under Exemption
3 (15 U.S.C.
Anderson v. DEA, No. 93-253 (W.D. Pa. May 11, 1995) (magistrate's recommendation) (fee waiver (Reform Act): there is no indication by plaintiff that he intends to, or has the ability to, disseminate information to the general public), adopted (W.D. Pa. June 21, 1995).
Appalachian States Low-Level Radioactive Waste Comm'n v. O'Leary, 93 F. Supp. 646 (M.D. Pa. 1995) (Federal Register notice: 3-year durational requirement for radioactive waste disposal is procedurally invalid because it was not published in the Federal Register for public comment).
Armstrong v. Executive Office of the President, 877 F. Supp. 690 (D.D.C. 1995) (agency: except when high-level officials are acting solely in their capacity to advise and assist the President, the National Security Council is an agency subject to the FOIA; it is an establishment in the executive branch with a separate staff and firm structure and exercises substantial independent authority such that it does not solely render advice and assistance to the President; Exemption 1 prevents disclosure of sensitive national security documents, thereby protecting the President from undue infringement on his authority over foreign and military matters).
Armstrong v. Executive Office of the President, 877 F. Supp. 750 (D.D.C. 1995) (denies defendants' motion for a stay of this court's order which held that the National Security Council is an "agency" for purposes of the FOIA; defendants have not shown a likelihood of success on the merits of an appeal, the order will not cause them irreparable harm, and plaintiffs' rights and the public interest would be harmed if a stay were granted; the court will enlarge the time until March 2 to allow defendants to adopt new guidelines).
Army Times Publ'g Co. v. Dep't of the Air Force, No. 90-1383 (D.D.C. Feb. 28, 1995) (Exemption 5: the deliberative process privilege does not protect aggregate responses to survey questions concerning leadership and morale; disclosure would not diminish candor within the agency; results are raw data that are not part of the decisionmaking process; court finds no difference between survey results that were released and those the agency seeks to withhold).
Augarten v. DEA, No. 93-2192,1995 WL 350797 (D.D.C. May 22, 1995) (Exemption 2: DEA markings and phrases used for administrative and investigatory purposes are predominantly internal and their disclosure would risk circumvention of the law) (Exemption 7(C): protects identities of special agents and codefendants of plaintiff) (Exemption 7(D): applying Landano, finds that the release of the identities of, or information supplied by, persons who cooperated with DEA under implied or express promises of confidentiality would enable plaintiff to deduce the identities of the confidential sources, would endanger the lives of the sources, and impede further investigations by DEA) (Exemption 7(F): protects the identities of law enforcement officers and DEA agents who are likely to be in contact with violent subjects).
Augarten v. Dep't of Treasury, No. 93-2293, 1995 U.S. Dist. LEXIS 7320 (D.D.C. May 22, 1995) ("agency records": agency is not required to disclose or provide a Vaughn Index for records obtained pursuant to grand jury subpoenas that are currently under the control of the United States Attorney for the Southern District of Ohio) (Exemption 3 [Rule 6(e)]: records obtained by grand jury subpoena are exempt from disclosure under the FOIA).
Baizer v. Dep't of the Air Force, 887 F. Supp. 225 (N.D. Cal. 1995) ("agency records": computer database of Supreme Court decisions through 1975 is not an "agency record" under the FOIA; the decisions are in the possession of the agency; when the database is maintained for library reference purposes only, and are readily available to the public elsewhere, the indicia of control are lacking; applying Dismukes v. Dep't of the Interior in the alternative, finds that the database would not necessarily have to be made available in the form requested even if it were an agency record).
Bangor Hydro-Elec. Co. v. Dep't of the Interior, No. 94-0173-B (D. Me. Apr. 17, 1995) (Exemption 5: the trust relationship between the Department of the Interior and the Penobscot Indian Nation is not enough to transform their correspondence into inter-agency communications for purposes of the FOIA; the agency did not "call upon" the Nation to "assist it in internal decision-making"; rather, the Nation "approached the government with their [sic] own interest in mind"; agency policy of consulting with tribal governments does not make the communications "inter-agency" correspondence; the fact that the agency may have relied on these communications in its deliberative process does not transform them into "inter-agency" correspondence) (Exemption 4: information concerning proposed usage charges is "financial"; does not apply Critical Mass, finding that the First Circuit has not distinguished between information provided on a voluntary basis and that which must be disclosed; the government's future ability to obtain necessary information will not be chilled to any significant degree by disclosure in this case, so the exemption does not apply).
Bellitti v. Huff, No. 93-2395 (D.D.C. Mar. 9, 1995) (fee waiver (Reform Act): where the plaintiff, a federal prisoner, seeks information that might prove useful in reducing his sentence, finds that a fee waiver would not be appropriate because release of information sought is not in the public interest; it would not "contribute significantly to public understanding of the operations or activities of the government"; furthermore, plaintiff lacks the requisite ability to publicly disseminate information).
Belvy v. Dep't
of Justice, No. 94-923 (S.D. Fla. Dec. 15, 1994) (magistrate's recommendation)
(adequacy of search: in this FOIA case where plaintiff requested specific decisions
issued by an immigration judge, finds that defendant did not conduct a reasonable
search; defendant maintains that it did not conduct a search because its computer
software is not designed to identify decisions by the name of the presiding
judge, so that a new computer program would have to be written in order to retrieve
the requested documents; defendant failed to adequately explain how burdensome
an electronic search would be or why alternative methods such as a manual search
were not even attempted; Congress did not intend that a requester should be
denied access to records merely because they are difficult to find; defendant's
declarations do not establish that the effort required to locate the records
would be unreasonable, whether that be by reprogramming their computers or by
using an alternative method) (Exemption 3 [8 U.S.C.
Bruscino v. Fed. Bureau of Prisons, No. 94-1955, 1995 WL 444406 (D.D.C. May 12, 1995) (Exemption 5: the deliberative process privilege protects 2 memoranda from prison personnel to prison officials because disclosure would jeopardize the decisionmaking process within the agency) (Exemption 6: in this case where plaintiff seeks the information to challenge his criminal conviction, finds that the exemption protects the names of and information that would identify other inmates) (Exemption 7(A): the release of 2 investigatory memoranda to plaintiff, a member of the Mexican Mafia, would interfere with ongoing investigations into drug trafficking within several institutions and the murders of several inmates) (Exemption 7(C): protects the identities of and information about other inmates) (Exemption 7(D): protects 15 pages in their entirety because disclosure would reveal the identities of and information provided by confidential informants who cooperated with the investigation into suspected drug trafficking in prisons and the murder of several inmates; the character of the investigation at issue and the sources' relation to the investigation demonstrate that there was at least an implied assurance of confidentiality) (Exemption 7(E): the disclosure of techniques used within correctional institutions in investigations of drug trafficking and murder would jeopardize the effectiveness of future investigations) (Exemption 7(F): protects 9 pages of investigatory memoranda containing information that was obtained from sources whose lives would be endangered should such information be disclosed).
Burka v. HHS, No. 92-3626 (D.D.C. Feb. 8, 1995) (Exemption 5: grants plaintiff's motion to supplement the record; the new evidence does not change the basis of this court's December 13, 1994 memorandum; the smoking-cessation data is protected by the confidential research privilege because the alleged partial disclosure of some data has not interfered with defendant's ability to have its principal conclusions accepted as articles for publication in a peer-reviewed journal, but complete FOIA disclosure would so interfere).
Butler v. Dep't of the Air Force, 888 F. Supp. 174 (D.D.C. 1995) (Exemption 7 (threshold): in this case where plaintiff is being investigated for the murder of his fiance and her daughter, finds that plaintiff's personnel background report was compiled for law enforcement purposes) (Exemption 7(D): protects the names of individuals who cooperated with the Air Force criminal investigation, because disclosure would violate express requests for confidentiality) (duty to search: defendant's affidavit demonstrates that it conducted a good-faith search for records of any open or interim investigations pending for which plaintiff was a subject; defendant has not indicated that it conducted any type of search for internal inquiry reports, spot reports, and other information requested by plaintiff; defendant must conduct a proper search for this additional information by June 16) (Exemption 7(A): the disclosure of 2 pending murder investigation files would interfere with law enforcement proceedings; exemption protects an Air Force file even though plaintiff is no longer a member of the Air Force, because its investigation focused on activities of plaintiff as an alleged suspect and these acts, if proved, could lead to criminal sanctions) (Vaughn Index: denies plaintiff's request for a Vaughn Index because the agency's affidavit discloses as much information as possible without revealing the substance for which exemptions are claimed).
Cameron v. Dep't of Justice, No. 94-0566 (D.D.C. June 26, 1995) (summary judgment: summary judgment granted to defendant; plaintiff has not submitted any evidence to contradict assertions in defendant's affidavit).
Canning v. Dep't of Justice, No. 92-0463 (D.D.C. June 23, 1995) (duty to search: as directed by the court on November 3, 1994, the FBI conducted a further search under a new name; the court is satisfied that the search produced no new documents) (Exemption 3 [Rule 6(e)]: pursuant to the Justice Department's manual entitled "Federal Grand Jury Practice," FBI Special Agents with FOIA responsibilities (and, by necessary implication, any agency FOIA officer) are among those with approved access to grand jury material; exemption protects information from an Interim Prosecutive Report that would reveal the identity and testimony of grand jury witnesses, even though much of the material withheld does not directly mention the grand jury) (Exemption 7(C): on reexamination, the FBI finds that several blocks of material contain only information that would identify third parties and contain no segregable material) (Exemption 7(D): the FBI's second affidavit demonstrates the procedures by which it was ascertained that express assurances of confidentiality had been given to sources).
Cardona v. INS, No. 93-3912, 1995 WL 68747 (N.D. Ill. Feb. 15, 1995) (Exemption 6: a complaint letter and an information sheet concerning the Private Immigration Company are "similar" files under the FOIA; regardless of whether the "derivative use" theory applies in this case, disclosure of the name and address of the letter's author constitutes only a de minimus invasion of privacy; name and address must be released; because the government does not know whether a bank account number belongs to an individual or a corporation, the government can argue only that there is a possibility of an invasion of privacy interests; the number must be disclosed).
Carnessale v. Reno, No. 95-0279 (C.D. Cal. May 2, 1995) (adequacy of request: plaintiff's letter to defendant is not a proper FOIA request; the FOIA is limited to agency records and the information contained in those records; plaintiff seeks answers to a series of legal questions) ("no records" defense: even giving plaintiff's letter a most liberal reading, there are no agency records in existence responsive to his request).
Carter v. NSA, No. 93-3847 (D. Md. Jan. 10, 1995) (per curiam) (defendant has adequately searched for records in response to plaintiff's FOIA request).
CC Distribs., Inc. v. Kinzinger, No. 94-1330, 1995 WL 405445 (D.D.C. June 28, 1995) (Exemption 4/"Reverse" FOIA: court's review is confined to the administrative record because plaintiff's challenge goes to the agency's factfinding; Critical Mass does not apply in "reverse" FOIA cases where a contractor submits a bid in response to an agency's "invitation for bids" (which are subject to public opening), because the information is not "voluntarily" submitted; applying National Parks, finds that the release of unit prices for dry goods and hardware items would not cause substantial competitive harm to the contractor by enabling competitors to "reverse engineer" contractor's pricing methods and deduce its concessions from suppliers; court defers to agency's judgment that the release of this information would not dissuade firms from contracting with the Air Force in the future).
Cecola v. FBI, No. 94-4866, 1995 WL 143548 (N.D. Ill. Mar. 30, 1995) (discovery in FOIA litigation: denies plaintiff's motion for discovery in order to respond to defendant's motion to dismiss for lack of subject matter jurisdiction; the appropriate course of action would be to request in camera inspection of records that were withheld under Exemption 7(A); denies discovery to plaintiff concerning agency's diligence in processing materials at its headquarters, because defendant's affidavit provides sufficient information; plaintiff is entitled to information concerning the search for records at 2 FBI field offices; within 30 days, defendant must submit affidavits describing records withheld at those 2 offices and an explanation as to why other records were submitted to headquarters for further processing).
Chapman v. Co-Dir., Dep't of Justice, No. 94-103 (D. Minn. June 19, 1995) (magistrate's recommendation) (exhaustion: plaintiff has not exhausted his administrative remedies; he filed his appeal 120 days after DEA's determination of his FOIA request; plaintiff has not "constructively" exhausted his administrative remedies, because the complaint in this matter was not filed until after DEA responded to plaintiff's FOIA request), adopted (D. Minn. June 29, 1995).
Chem. Waste Mgmt., Inc. v. O'Leary, No. 94-2230, 1995 WL 115894 (D.D.C. Feb. 28, 1995) ("Reverse" FOIA/Exemption 4: while the court denies plaintiff-subcontractor's motion for a preliminary injunction, it vacates DOE's finding that plaintiff's unit prices are releasable under Exemption 4 of the FOIA and remands the case to the Department of Energy for further proceedings; DOE properly found that the information was not "voluntarily" provided under Critical Mass, because the Request for Proposal compelled plaintiff to submit its unit prices; further, plaintiff, as a subcontractor, had no role in the transfer of the information; with respect to the application of the "competitive harm" prong in National Parks to plaintiff's situation as a subcontractor, DOE's factfinding and analysis are insufficient).
Church Universal & Triumphant, Inc. v. United States, No. 95-0163 (D.D.C. Feb. 8, 1995) ("Reverse" FOIA: denies plaintiff's motion for a temporary restraining order to enjoin defendant from releasing documents concerning the Church in response to 2 FOIA requests; plaintiff has not demonstrated a likelihood of success on the merits or that it would suffer irreparable harm if the documents were released; while plaintiff limited this action to the issue of tax return information, at the request of the court the defendants have agreed to review the documents for possible third-party privacy concerns).
City of Detroit v. Dep't of State, No. 93-72310 (E.D. Mich. Mar. 24, 1995) (attorney fees: the plaintiff substantially prevailed in this case; had it not filed this lawsuit it would not have received the requested documents 6 months earlier than the "target date" set by the State Department, and 2 years after plaintiff began requesting the records; the amount of attorney fees sought by plaintiff is excessive because it used 2 primary litigators and 7 other attorneys for a relatively simple case; grants attorney fees of $7385.)
Collymore v. FBI, No. 94-2268 (N.D. Cal. Mar. 31, 1995) (jurisdiction: absent an allegation setting forth compliance with the procedural requirements of the FBI's FOIA regulations, plaintiff fails to establish subject matter jurisdiction).
Crooker v. ATF, 882 F. Supp. 1158 (D. Mass. 1995) (fee waiver (Reform Act): fee waiver denied because disclosure was not in the public interest and was not likely to contribute significantly to the public's understanding of the operations of the government) (fees (Reform Act): before the instant request is processed, plaintiff must pay the full amount owed on an earlier FOIA request (which he is in the process of appealing) along with an advance payment of the full amount of the new estimated fee; if plaintiff is successful in his appeal, the agency can refund the money at that point).
Crooker v. IRS,
No. 94-0755, 1995 WL 430605 (D.D.C. Apr. 27, 1995) (Exemption 3 [Rule 6(e)]:
protects transcripts of grand jury testimony, identities of witnesses and jurors,
material revealing the scope, direction, or strategy of the investigation, jurors'
deliberations, and grand jury subpoenas or search warrants; in light of Senate
of Puerto Rico, defendant will have to submit additional affidavits to
"further clarify and identify with particularity" how disclosure of grand jury
exhibits would reveal a protected aspect of the grand jury's investigation;
Cudzich v. INS, No. 94-2358 (D.D.C. May 2, 1995) (Exemption 3 [Rule 6(e)]: protects information pertaining to grand jury proceedings) (Exemption 6: disclosure of the identities of third parties would be a "clearly unwarranted invasion of personal privacy"; because plaintiff seeks information to challenge his criminal conviction, little or no public interest would be served by granting his request) (Exemption 7(A): defendant's generic affidavit does not demonstrate that it grouped the requested documents into relevant categories that are "sufficiently distinct" to allow the court to grasp how disclosure of each category would interfere with a pending investigation; defendant has not conducted a document-by-document review; defendant has until May 19 to justify the withholding of information under this exemption).
Cudzich v. INS, 886 F. Supp. 101 (D.D.C. 1995) (Exemption 7(A): defendant's affidavit demonstrates that the release of portions of 17 pages pertaining to pending investigations at other law enforcement agencies would adversely affect those law enforcement efforts) (Exemption 7(D): protects information provided by a source inside a suspected alien smuggling ring; the character of the investigation and the source's relation to it demonstrate that the source cooperated with the authorities under an implied assurance of confidentiality).
Demma v. Dep't of Justice, No. 93-7296, 1995 WL 360731 (N.D. Ill. June 15, 1995) (Exemption 2: defendant properly withheld information relating to the internal practices of the FBI) (Exemption 7(C): FBI properly deleted information that would identify FBI Special Agents and support personnel, subjects of investigative interest, and third parties from investigatory files) (duty to search: defendant has not provided the court with a sufficient record to determine the adequacy of its search).
Dong v. Smithsonian Inst., 878 F. Supp. 244 (D.D.C. 1995) (agency: the Smithsonian Institution is an agency for purposes of the FOIA and the Privacy Act; the Smithsonian is chartered by an Act of Congress, it has a majority of federal civil service employees, it has vast federal funding, it receives representation from the United States Attorney, and it enjoys absolute governmental immunity in libel suits).
Dow Jones & Co. v. Dep't of Justice, 880 F. Supp. 145 (S.D.N.Y. 1995) (Exemption 7(A): disclosure of portions of the Park Police report on the circumstances surrounding Deputy White House Counsel Vincent Foster's death and the entire FBI report into the discovery and handling of the suicide note would interfere with the Independent Counsel's ongoing Whitewater investigation; exemption has not been waived as to both reports by the disclosure of portions of the Park Police report or by "limited, general and cursory" statements made at the Justice Department press conference; in light of the Independent Counsel's statement that disclosure of the information being withheld would interfere with his ongoing investigation, in camera review is unnecessary) (Exemption 7(C): distinguishing this case from New York Times Co. v. NASA, finds that this exemption does not protect Foster's suicide note; although recognizing that the Foster family would suffer "pain" through disclosure of the note under the FOIA, concludes that a substantial public interest in viewing the note on a wider scale outweighs the family's privacy interest; agency has not fulfilled its duty to the public by making the note available for viewing in Washington, D.C. on a non-FOIA basis).
Dow Jones & Co. v. Dep't of Justice, 161 F.R.D. 247 (S.D.N.Y. 1995) (in this FOIA case where the court previously ruled that the Justice Department must release Vince Foster's suicide note, grants his widow's motion to intervene in order to appeal the disclosure order).
Ferguson v. FBI, No. 80-5071 (S.D.N.Y. June 1, 1995) (Exemption 7(D): grants summary judgment to defendant; the investigatory files concerning plaintiff have been reprocessed in light of Landano, and the government affidavit demonstrates that sources cooperated with the federal government on a confidential basis).
Ferreira v. DEA, 874 F. Supp. 15 (D.D.C. 1995) (because pro se plaintiff has not responded to defendant's motion for summary judgment, on the record before it the court finds that DEA is not required to disclose information it withheld under Exemptions 2, 7(C), 7(D), and 7(F)).
Finkel v. HUD, No. 90-3106, 1995 WL 151790 (E.D.N.Y. Mar. 28, 1995) (Exemption 5: the deliberative process privilege protects 55 documents prepared by the agency in order to make decisions with respect to plaintiff's employment discrimination complaint, HUD's enforcement action against the New York City Housing Authority, and the Authority's settlement offer; while the agency's affidavit is insufficient as to whether 7 of these documents are also protected by the attorney-client privilege, the court need not make this determination because these documents are already exempt from disclosure; finds that another 7 of these documents are also protected by the attorney work-product privilege because they were prepared by attorneys in anticipation of litigation).
Frazee v. United States Forest Serv., No. 94-1007 (D. Or. Mar. 8, 1995) ("Reverse FOIA"/Exemption 4: agency may disclose plaintiff's Operating Plan for managing 2 Forest Service recreational facilities in response to a FOIA request; applying Critical Mass, finds that the majority of information in the Plan is relevant to the Forest Service's day-to-day management of the facilities and is of the type that is generally released to the public; financial information on 2 pages is not generally made available to the public and should be redacted).
Gill v. HHS, No. 94-71212 (E.D. Mich. May 25, 1995) ("no records" defense: under the FOIA the government is obliged to produce records in existence; it need not produce records that are missing or that it never possessed).
Greyshock v. United States Coast Guard, No. 94-00563 (D. Haw. May 9, 1995) (Exemption 1: after in camera inspection of defendant's classified affidavit, finds that the release of the withheld records would damage national security; during the pendency of plaintiff's criminal case in 1989 these same documents were found properly withheld pursuant to the Classified Information Procedures Act; while this is not necessarily dispositive of plaintiff's FOIA claims, notes that nothing has changed in the interim to require disclosure of the documents).
Greyson v. McKenna & Cuneo, 879 F. Supp. 1065 (D. Colo. 1995) (Exemption 5: the deliberative process privilege protects an EEOC investigator's memorandum pertaining to plaintiff's age discrimination charges against her employer; the memorandum is predecisional, contains the opinions and recommendations of its author, and was not adopted or incorporated by reference in the agency's final decision).
Hale v. Dep't of Justice, No. 89-1175 (W.D. Okla. Jan. 17, 1995) (Exemption 7(D): in light of Landano, finds that for 29 documents withheld in whole or part, the exemption protects the identities of and information provided by sources who expressly requested confidentiality and in instances where confidentiality can be inferred; with respect to the implied confidentiality claim, the nature and act of the kidnap and murder of which plaintiff was convicted are such that witnesses or sources who did not testify at trial "could reasonably expect to have fear of retaliation and would logically have a fear of death or bodily harm" if they cooperated with local law enforcement agencies).
Hart v. FBI, No. 94-C-6010, 1995 WL 170001 (N.D. Ill. Apr. 6, 1995) (jurisdiction: the court lacks jurisdiction in this case because the FBI has not withheld any records from plaintiff; the FBI's affidavits, which plaintiff has not factually challenged, show that after reasonable searches the FBI has not found any documents in its possession concerning plaintiff).
CIA, No. 92-2186 (D.D.C. Apr. 5, 1995) (adequacy of search: defendant's
affidavit demonstrates that the search for records responsive to plaintiff's
FOIA request was adequate; "Plaintiff's strong belief that responsive material
exists is irrelevant.") (Exemption 3 [50 U.S.C.
Hunsberger v. CIA, No. 92-2186 (D.D.C. June 9, 1995) (denies plaintiff's motion to amend the court's April 5, 1995 order in this FOIA case where the court previously ruled that information was exempt under Exemptions 3 and 6).
Immanuel v. Sec'y of Treasury, No. 94-884, 1995 WL 464141 (D. Md. Apr. 4, 1995) (adequacy of request: plaintiff's broad FOIA request did not "reasonably describe" the records he sought from the Treasury Department).
India Abroad Publ'ns, Inc. v. United States Postal Serv., No. 93-5270, 1995 WL 358658 (S.D.N.Y. June 14, 1995) (Exemption 4: denies nonparty witnesses' request for an order to quash certain portions of the subpoena duces tecum served by the requester on the Postal Service regarding circulation information filed by News India; there was no showing that disclosure would threaten trade secrets or would harm News India's competitive position).
Jerez v. Dep't of Justice, No. 94-100 (D. Ariz. Feb. 2, 1995) (mootness: plaintiff's claim is moot in light of DEA's disclosure of the requested information) (exhaustion: FOIA provides no relief for an agency's failure to timely respond to an appeal, other than deeming the delay an exhaustion of administrative remedies and allowing plaintiff to file suit; because plaintiff has already filed suit, he is entitled to no further relief).
Jones v. Dep't of Justice, No. 94-2294 (D. Md. Jan. 18, 1995) (exhaustion: plaintiff, who did not administratively appeal defendant's delayed "no records" response to his FOIA request, is not entitled to FOIA's constructive exhaustion provision, when the agency partially released the requested documents after the initiation of the lawsuit; additionally, plaintiff failed to exhaust his administrative remedies with respect to the partial disclosure when he did not appeal this response after the initiation of the lawsuit).
Jones v. OSHA, No. 94-3225 (W.D. Mo. June 6, 1995) (displacement of FOIA: in this case where plaintiff sought copies of employee complaints of OSHA violations, finds that the Occupational Safety and Health Act and the internal rules of OSHA require that businesses must receive copies of employee complaints at the time of OSHA inspection, with information that would identify the employees deleted; to protect identities of employees who have submitted handwritten complaints, agency must reproduce those complaints in typed format) (equitable discretion: issues an injunction against OSHA and its area directors from withholding and not providing retyped copies of employee complaints at or before the time of inspections) (attorney fees: agency did not search for records requested by the plaintiff until after suit was filed; agency acted in bad faith; reasonable attorney fees and costs awarded to plaintiff).
Jones v. Shalala, 887 F. Supp. 210 (S.D. Iowa 1995) (exhaustion: since plaintiff's FOIA request is presently on appeal, she has not exhausted her administrative remedies).
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1 (D.D.C. 1995) (duty to search: in this FOIA request where plaintiff seeks information from the Office of Government Ethics concerning the Presidential Legal Expense Trust, finds that documents generated or obtained after the date of the request need not be disclosed; mere unconfirmed allegations of bad faith will not undermine agency's credibility) (Vaughn Index: agencies need not provide a Vaughn Index until ordered by a court after plaintiff has exhausted the administrative process) ("not an agency record" defense: appointment calendars, telephone message slips, and preliminary congressional transcripts provided to a witness for editing are not "agency records" under the FOIA) (Exemption 5: the deliberative process privilege protects a preliminary staff analysis and 10 versions of a draft memorandum that was never issued, 6 preliminary drafts of a proposed response to a congressional inquiry, and handwritten notes reflecting preliminary thoughts of agency personnel).
Judicial Watch, Inc. v. Dep't of Commerce, No. 95-0133 (D.D.C. May 16, 1995) (at a hearing on this day the court granted plaintiff's request for a fee waiver for all documents at issue in this case; orders defendant to produce in its offices processed copies of all remaining documents by the next day and to produce a Vaughn Index by June 6, 1995).
Kay v. FCC, 884 F. Supp. 1 (D.D.C. 1995) (exhaustion: agency's notice of the right to appeal an adverse determination under the FOIA need not specifically refer to the head of the agency in order to trigger the actual exhaustion requirement; plaintiff has not exhausted his administrative remedies since he has not filed an administrative appeal; case dismissed with prejudice as time specified in agency regulations for the filing of an appeal has now expired).
Kessler v. United States, 899 F. Supp. 644 (D.D.C. 1995) (exhaustion: plaintiff has failed to exhaust his administrative remedies because he did not address his request to the proper office in accordance with IRS regulations).
Klayman & Assocs. v. United States Int'l Trade Comm'n, No. 95-0009 (D.D.C. Apr. 18, 1995) (case dismissed; plaintiff has not exhausted its administrative remedies, as it did not comply with the published appeal requirements of the agency).
Krikorian v. Dep't of State, No. 88-3419 (D.D.C. May 12, 1995) (attorney fees: an attorney appearing on behalf of himself in a FOIA case is not entitled to attorney fees; grants plaintiff costs of $1618.42).
Kronberg v. Dep't of Justice, 875 F. Supp. 861 (D.D.C. 1995) (Exemption 3 [Rule 6(e)]: orders the disclosure of 8 grand jury documents because they were previously disclosed to the requester and another individual in the context of their criminal trials, and, even if they had not been previously disclosed, the government has not met its burden of proving that disclosure would expose the inner workings of a grand jury) (Exemption 5: the government has not demonstrated why a memorandum from a paralegal to an attorney and a one-page photocopy of a legal treatise are protected by the attorney work-product privilege) (adequacy of search: defendant did not conduct an adequate search for information about plaintiffs' grants of immunity; given the specific and demanding Justice Department regulations on the immunization of witnesses, it is "patently not credible" that there is not a "paper trail" of documents; the Criminal Division and the Executive Office for United States Attorneys must conduct additional searches, as specified, by March 20).
Kronisch v. United
States, No. 83-2458, 1995 WL 303625 (S.D.N.Y. May 18, 1995) (Exemption
3 [50 U.S.C.
Kuffel v. Bureau of Prisons, No. 93-2366 (D.D.C. Jan. 27, 1995) ("no records" defense: the affidavits of 2 Treasury Department components and 3 divisions of the Justice Department demonstrate that after conducting reasonable searches they were unable to find records responsive to plaintiff's FOIA request for information about himself) (Exemption 7(A): protects an entire case file that pertains to a criminal prosecution against plaintiff that is still pending) (Exemption 7(C): protects the names of law enforcement personnel and prisoners, ATF agents and personnel, informants, third parties, the social security numbers of plaintiff's prospective prison visitors, and a burglary/robbery suspects' album) (Exemption 7(D): mistakenly finds that nonfederal law enforcement officers who were informants for the FBI are entitled to a presumption of confidentiality) (Exemption 2 "high": disclosure of computer and teletype routing symbols, access codes, computer option commands, and number symbols used to identify federal prisoners would "significantly risk circumvention" of agency law) (Exemption 6: protects the names and addresses of plaintiff's victims in his prior offense of weapons violation) ("exceptional circumstances"/"due diligence": agencies have provided evidence that plaintiff's FOIA requests were processed on a "first-in, first-out" basis; therefore, any delay in processing these requests is excused by the standards enunciated in Open America) (attorney fees: plaintiff is not entitled to attorney fees because the release of the records was due to routine administrative processing).
Kuffel v. Bureau of Prisons, 882 F. Supp. 1116 (D.D.C. 1995) ("no records" defense: after good-faith searches, the IRS, the Secret Service, and the Justice Department's Criminal Division, Tax Division, and Office of the Attorney General were unable to find records responsive to plaintiff's FOIA request) (Exemption 7 (threshold): threshold test met by burglary/robbery suspects' album compiled by the FBI during their investigations of various state crimes) (Exemption 7(C): protects the names and titles of law enforcement officers, the names of prisoners, the social security numbers of plaintiff's prospective visitors in prison, the identities of ATF agents and personnel, and the identities of informants and third persons) (Exemption 7(D): applying Landano, finds that the names of and the information provided by local law enforcement agencies were properly withheld because there was an ongoing, clear understanding between local law enforcement officers and the FBI that this information would not be disclosed; the facts in this case also support a finding of an implied promise of confidentiality because the crimes involved are burglary and robbery and the officers would not otherwise divulge this information for fear of retribution from the alleged criminals; the information was properly protected by this exemption also because the documents in question were comprised of information "compiled by criminal law enforcement authority in the course of a criminal investigation") (Exemption 7(A): the disclosure of an entire case file that pertains to a pending criminal prosecution against plaintiff would interfere with that enforcement proceeding) (Exemption 2 "high": disclosure of computer and teletype routing symbols, access codes, computer option commands, and numerical symbols used to identify prisoners would risk circumvention of agency law) (Exemption 6: protects the names and addresses of plaintiff's victims in a prior offense for weapons violation) ("exceptional circumstances"/"due diligence": plaintiff's FOIA requests were processed on a "first-in/first-out" basis in good faith and with due diligence by 11 federal agencies) (attorney fees: plaintiff did not substantially prevail because the release of records was the result of routine administrative processing that was done in good faith and with "due diligence").
Landano v. Dep't of Justice, No. 90-1953 (D.N.J. Jan. 5, 1995) (denies plaintiff's request for a clarification of the court's September 22, 1994 ruling; the appropriate venue for a dispute with a district court ruling is the appeals courts).
Landano v. Dep't of Justice, No. 90-1953 (D.N.J. Feb. 10, 1995) (magistrate's recommendation) (attorney fees: plaintiff's records are more than adequate in distinguishing the time spent on each claim; reduces the lodestar to reflect plaintiff's failure on his Exemption 7(C) claims; plaintiff substantially prevailed with his claims under Exemption 7(D) and while only 32 additional pages were released, the Supreme Court adopted plaintiff's arguments in its decision and substantially altered the law previously followed in 6 circuits; plaintiff attorney's billing rates over a 4-year period are fair and reasonable and comport with community standards; plaintiff's attorney is also entitled to $11,850 in fees for fee litigation; grants the law firm of Smith, Mullin $266,525.64 in attorney fees; reduces the fee award requested by the Public Citizen Litigation Group because its work was primarily for the purpose of preparing plaintiff's lead counsel for oral argument through moot court; grants Public Citizen $1125 in attorney fees; grants Rutgers Constitutional Litigation Clinic $9705.25, reducing its request because of duplicative efforts on the part of the students and professor; grants plaintiff $8000.43 in costs).
Lei v. Brown, No. 94-7776 (E.D. Pa. Jan. 26, 1995) (exhaustion: plaintiff's claim under the FOIA must be dismissed for lack of subject matter jurisdiction because plaintiff has failed to exhaust his administrative remedies).
Lesar v. Dep't of Justice, No. 92-2216 (D.D.C. Mar. 14, 1995) (duty to search: defendant's affidavits demonstrate that its search of "every page of every record" in the "executive conference" file was "reasonably calculated to uncover all relevant documents" responsive to plaintiff's FOIA request for records concerning the JFK assassination) (Exemption 7(D): applying Landano, finds that defendant properly withheld the name of one source from one document, because that source demonstrably had been given an express assurance of confidentiality).
Linn v. Dep't of Justice, No. 92-1406, 1995 WL 417810 (D.D.C. June 6, 1995) (Vaughn Index: all 6 agencies mentioned below must submit new Vaughn Indices within 60 days; while DEA supplied a voluminous listing of the records withheld in whole or in part, the supporting affidavit is conclusory and does not afford the court sufficient guidance as to the contents of the withheld documents; court does not find that it would be "unreasonably burdensome" for INTERPOL to submit a Vaughn Index for 14 documents; the Customs Service's index was "conclusory," "vague," and "sweeping"; EOUSA's index contains inaccurate page counts) (Exemption 2: DEA properly withheld informant codes, and G-DEP, and NADDIS numbers; DEA has not demonstrated that they are entitled to withhold "internal markings" under this exemption; disclosure of the Marshals Service's numerical symbols for federal prisoners, access codes, and routing symbols would cause a serious impediment to its law enforcement activities; INTERPOL and the Customs Service have not demonstrated that the release of internal codes and filing system numbers would risk circumvention of a particular statutory provision) (Exemption 3 [Rule 6(e)]: in its affidavit, DEA does not specifically link this exemption to the contents of 12 documents being withheld; Justice Department's Executive Office for United States Attorneys (EOUSA) has not demonstrated that the release of 172 pages of information will reveal some protected aspect of the grand jury's investigation) (Exemption 5: DEA did not specify in its affidavit to which documents it applied the deliberative process privilege; the Marshals Service offers no justification for withholding 2 documents generated as a result of a civil action filed by plaintiff under the deliberative process and attorney work-product privileges; EOUSA has failed to provide the court with even minimal information to determine whether 292 pages of material are protected by the attorney work-product privilege) (Exemption 6: the release of names and other identifying information from 40 pages would be a "clearly unwarranted invasion of personal privacy," even though some of the names at issue were at one time released to the public) (Exemption 7(A): DEA's and the Customs Service's affidavits do not explain why the release of information "could reasonably be expected to interfere with enforcement proceedings") (Exemption 7(C): protects information that would identify DEA employees, third parties, subjects of investigative interest, and associates of the plaintiff contained in law enforcement files; ATF's affidavit does not justify the withholding of the identities of federal, state, and local law enforcement personnel, and third parties; the Marshals Service, INTERPOL, and EOUSA properly withheld information that would identify agency personnel, agents, witnesses, law enforcement officers, and federal prisoners; while the Customs Service may withhold information that would identify Customs officers, clerical employees, and subjects of investigative interest, it must first describe precisely which material was excluded pursuant to this exemption) (Exemption 7(D): applying Landano, finds that the exemption protects the identities of and information provided by informants and members of state, local, and foreign law enforcement authorities in their official and private capacities; DEA's affidavit demonstrates that information pertaining to an international drug ring, money laundering, and murders of federal witnesses was obtained through the granting of express promises of confidentiality; applying Landano, finds that ATF's affidavit adequately describes the nature of its investigation, but failed to link the investigation to the particular documents at hand; applying Landano, finds that INTERPOL and EOUSA failed to specify the nature of the material they seek to withhold and why the material could not be segregated) (Exemption 7(E): DEA's and the Customs Service's affidavits do not demonstrate that information about surveillance and investigatory techniques were properly withheld; EOUSA has demonstrated that the release of one page of "A Drug Agent's Guide to Forfeiture of Assets" would enable individuals to avoid prosecution) (Exemption 7(F): protects the identities of DEA Special Agents and other law enforcement officers; ATF's affidavit does not justify the withholding of information about third parties and federal employees under this exemption; while the Customs Service justified withholding information that would identify law enforcement officers and other third parties vulnerable to physical threats, it has failed to specify what material was withheld) ("reasonably segregable": in each instance where a document is withheld in its entirety, DEA is required to explain why parts of the documents could not be released) (fees (Reform Act): plaintiff has no significant basis on which to question DEA's assertion that a fee of $180 was necessary to conduct a hand search and processing of files related to his FOIA request; an advance payment of fees is permissible under the statute) (scope of request: in this FOIA request where the plaintiff sought from the ATF information pertaining to himself, finds that plaintiff is not entitled to a search of 119 pages of information about the victim of a crime contained in the victim's file) (duty to search: the Marshals Service did not demonstrate that its search for records was reasonable and adequate; it must conduct a further search for the records plaintiff seeks).
McDonnell Douglas Corp. v. NASA, 895 F. Supp. 316 (D.D.C. 1995) (Exemption 4/"Reverse" FOIA: applying Critical Mass, finds that certain line item prices from a contract for Delta II rockets and related launch services were not voluntarily submitted; price elements necessary to win a government contract are considered involuntary for a FOIA Exemption 4 analysis; denies NASA's request for a remand to the agency since this decision does not alter the earlier holding of this court under National Parks; the permanent injunction remains in place).
McDonnell Douglas Corp. v. NASA, 895 F. Supp. 319 (D.D.C. 1995) (Exemption 4/"Reverse" FOIA: when a permanent injunction against the release of certain contract information already exists, the agency lacks the discretion to decide whether changed circumstances necessitate a re-examination of the applicability of the exemption; having scrutinized the administrative record, finds that 5 out of 9 supplements proposed by plaintiff were improperly omitted; NASA complied with its regulations and properly explained its decision to release information over the objections of a submitter; applying Critical Mass, finds that termination schedule percentages and secondary payload prices were not submitted voluntarily; pricing information required for a government contract is mandatory under the Critical Mass analysis; applying National Parks, finds that plaintiff has failed to demonstrate with any particularity how the release of this information would result in substantial competitive harm; finds that NASA's administrative process is "more than fair").
DEA, No. 94-620 (D. Colo. Jan. 3, 1995) (Exemption 3 [18 U.S.C.
MCI Telecomms. Corp. v. GSA, No. 89-0746 (D.D.C. Feb. 27, 1995) (collateral estoppel: after a decision in a related case (brought by a law firm in its own name, but admittedly on behalf of the plaintiff in this case), this plaintiff is collaterally estopped from relitigating whether pricing information is exempt from disclosure under Exemption 4, regardless of whether the information is considered "volunteered" or "required").
Meade v. Sec'y of the Army, Nos. 93-1010, 94-949 (M.D. Fla. Feb. 26, 1995) (adequacy of search: the National Security Agency has demonstrated that it has conducted a search reasonably calculated to uncover all relevant documents) ("exceptional circumstances"/"due diligence": denies FBI's motion for a stay for 5 years, 6 months because it would "be unjust to the other parties involved" and grants the FBI 60 days to process plaintiff's FOIA request).
Mieras v. United States Forest Serv., No. 93-74552 (E.D. Mich. Feb. 14, 1995) (mootness: case is moot since the Forest Service's affidavit shows that it made a good faith effort to locate all documents responsive to plaintiff's FOIA request and provided all these records to the plaintiff) (exhaustion: plaintiff exercised his right to sue when the Forest Service did not respond to his initial FOIA request within 10 days; once the agency answered the request, plaintiff was then required to follow the administrative appeals process; while plaintiff alleges he mailed his FOIA request one year ago, defendant did not receive it until after commencement of this lawsuit; plaintiff did not exhaust his administrative remedies).
Mittleman v. OPM, No. 92-0158 (D.D.C. Jan. 18, 1995) (Exemption 7 (threshold): personnel background information was compiled for law enforcement purposes) (Exemption 7(D): agency affidavit demonstrates that 2 sources provided information to OPM under express assurances of confidentiality or under circumstances from which assurances of confidentiality can reasonably be inferred; disclosure could reasonably be expected to reveal the sources' identities).
Nettleton v. Heye, No. 93-718 (D. Nev. Jan. 20, 1995) (proper party defendant: because plaintiff has named as defendant an individual employee of a federal agency and not the agency itself, this FOIA action is dismissed with leave to amend).
Okon v. IRS, No. 91-660-M (D.N.M. Jan. 12, 1995) (duty to search: agency's affidavits demonstrate that its search was reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).
Okon v. IRS, No. 91-660-M (D.N.M. Jan. 24, 1995) (attorney fees: pro se plaintiffs are not entitled to attorney fees under the FOIA; an award of costs is also not justified because, while plaintiff has substantially prevailed, the release of her tax records did not benefit the general public; there is no evidence of obdurate behavior on the part of the government).
Ortiz v. HHS, 874 F. Supp. 570 (S.D.N.Y. 1995) (Exemption 7(D): applying Landano, on in camera inspection finds that the exemption protects an unsolicited, anonymous letter sent to HHS alleging improper conduct on the part of plaintiff in connection with her receipt of Social Security benefits; an implied assurance of confidentiality can be inferred because the allegations led to a criminal investigation and strongly suggest that the source reasonably expected complete confidentiality) (Exemption 7(C): since the source's privacy interest is substantial and the public interest in disclosure is negligible, this exemption additionally protects the letter).
Pagan-Astacio v. Dep't of Educ., No. 93-2173 (D.P.R. June 1, 1995) (Federal Register publication: agency need not publish the directory of eligible schools at which teachers may enjoy cancellation of student loans; the department publishes a Federal Register notice explaining where the directory is available; the directory explains the existing regulation, rather than changing the requirements of the loan cancellation program; there is no significant impact on any segment of the public).
Plazas-Martinez v. DEA, 891 F. Supp. 1 (D.D.C. 1995) (Exemption 7(D): applying Landano, finds that an informant in drug-trafficking investigation was given an express promise of confidentiality; applying Parker v. Department of Justice, finds that the exemption applies to an informant who later testified at trial).
Polewsky v. Soc. Sec. Admin., No. 93-200 (D. Vt. Mar. 31, 1995) (magistrate's recommendation) (exhaustion: plaintiff has not exhausted his administrative remedies because he has not submitted a proper FOIA request in accordance with the administration's published regulations), adopted (D. Vt. Apr. 13, 1995).
Putnam v. Dep't of Justice, 873 F. Supp. 705 (D.D.C. 1995) (Exemption 2: protects file numbers and symbol numbers assigned to FBI informants and the codes used by the FBI to access the National Crime Information Center computer) (Exemption 5: on the basis of defendant's affidavits, the court is unable to determine whether the documents withheld are exempt under the attorney work-product or deliberative process privileges) (Exemption 6: protects information that would identify FBI Special Agents and support personnel mentioned in plaintiff's personnel files after plaintiff became an FBI Special Agent (but before he murdered his informant/lover), where the individuals were mentioned under circumstances outside their official duties) (Exemption 7(A): FBI's categorical descriptions of the material withheld from plaintiff's administrative inquiry file are "patently inadequate" for the court to determine whether the exemption was properly invoked) (Exemption 7(C): protects the identities of informants including FBI Special Agents and personnel, nonfederal law enforcement officers and personnel, state employees, and witnesses and third parties) (Exemption 7(D): applying Landano, finds that the exemption protects the permanent symbol numbers and file numbers assigned to sources who were provided with express assurances of confidentiality; given the violent nature of plaintiff's crimes, it can be inferred that the relatives and close associates of plaintiff and victim would only have spoken to the FBI under an implied promise of confidentiality; it also can be inferred that the Kentucky State Police and the victim's doctor and nurse provided information to the FBI under implied promises of confidentiality) (Exemption 7(E): protects an FD-515/Accomplishment Report because the release of information concerning particular FBI investigative techniques and their effectiveness could enable criminals to use countermeasures) (within 30 days, defendant must file a supplemental motion for summary judgment, accompanied by affidavits, declarations, and indices, with respect to information withheld under Exemptions 5 and 7(A), or release the documents).
Putnam v. Dep't of Justice, 880 F. Supp. 40 (D.D.C. 1995) (Exemption 5: grants defendant's renewed motion for summary judgment; defendant has determined that the documents previously withheld under the attorney work-product privilege are appropriate for discretionary release, with some redactions under Exemption 7(C)) (Exemption 7(C): protects the names of and personal information about FBI Special Agents, government employees, local law enforcement personnel, and third parties) (fees (Reform Act): because the administrative inquiry pertaining to plaintiff has been concluded, the material withheld pursuant to Exemption 7(A) is now available for release upon payment of $33.90 for duplication costs and $12.50 for previously released documents).
Ray v. Dep't of Justice, No. 85-2430 (S.D. Fla. May 1, 1995) (attorney fees: plaintiff prevailed in the court of appeals on only a single issue presented and lost on the majority of issues; upon resolution by the Supreme Court, plaintiff lost on the single issue on which he had prevailed; the public did not benefit from this FOIA request for the identities of repatriated Haitians nor did the government unreasonably withhold the requested information; pro se attorney litigant is not entitled to attorney fees under the FOIA; attorney fees denied; plaintiff must pay the State Department $3160.03 in costs).
Richman v. Dep't of Justice, No. 90-0019 (W.D. Wis. Mar. 2, 1995) (summary judgment is granted with respect to excisions made under Exemption 5 on 3 pages, under Exemption 6 on 4 pages, and under Exemption 7(D) on 2 pages, as well as some entire pages; summary judgment denied as to excisions made under Exemption 6 on 4 pages, under Exemption 7(D) on 2 pages, and under Exemption 5 on 3 pages, as well as one entire document).
Russell v. Rook, 893 F. Supp. 949 (E.D. Wash. 1995) (plaintiff failed to claim that he had exhausted his administrative remedies).
Samuel v. Dep't of Justice, No. 93-0348 (D. Idaho Feb. 3, 1995) (exhaustion: applying Oglesby v. Department of the Army for the first time in the Ninth Circuit, finds that pro se plaintiffs, who received a partial, delayed response to their FOIA request before they filed this lawsuit, have not exhausted their administrative remedies; plaintiffs may seek a timely appeal of their FOIA request within 30 days).
Sands v. United States, No. 94-0537, 1995 U.S. Dist. LEXIS 9252 (S.D. Fla. June 16, 1995) (mootness: since all responsive documents for Items 1-8 of plaintiff's first FOIA request have been produced, this portion of the action is moot) (exhaustion: plaintiff has failed to exhaust his administrative remedies with respect to Items 9-13 of his first FOIA request because he did not address his request to the proper office, in accordance with IRS regulations) (adequacy of request: with respect to plaintiff's second FOIA request, finds that the agency is not required to answer questions, to create documents or opinions, or to do legal research for plaintiff; plaintiff has failed to "reasonably describe" the records he seeks).
Slade v. Hunter, No. 94-0080 (D.D.C. Feb. 14, 1995) (Exemptions 6 and 7(C): defendant properly refused to confirm or deny whether it had records concerning third-party victims because plaintiff failed to obtain the notarized authorization of these individuals).
Sordean v. United States, No. 94-2387 (N.D. Cal. Feb. 24, 1995) (Exemption 5: the attorney work-product privilege protects a 3-page letter from an IRS attorney to a Justice Department attorney containing legal analysis and litigation strategy pertaining to an earlier lawsuit between plaintiff and the United States) (Exemption 7(C): protects the names of IRS employees contained in a single page of handwritten notes).
Spannaus v. Dep't
of Justice, No. 92-0372 (D.D.C. June 20, 1995) (duty to search: defendant's
affidavit demonstrates that the search for records responsive to plaintiff's
FOIA request in the U.S. Attorney's Office for the Eastern District of Virginia
was adequate; it would be "unreasonably burdensome" to require defendant to
search all civil and criminal files relating to Lyndon LaRouche simply because
the subject matter of the FOIA request involved associations affiliated with
him; although plaintiff alleges that defendant failed to locate certain documents,
the court finds that defendant's affidavits demonstrate that defendant engaged
in searches reasonably calculated to locate any relevant documents) (Exemption
3 [Rule 6(e)]: protects information that would identify a grand jury witness
and his testimony; [26 U.S.C.
Stambaugh v. Dep't of the Treasury, Nos. 94-1833, 94-1834, 94-1835 (N.D. Cal. Mar. 6, 1995) (exhaustion: defendant responded to plaintiff's FOIA request within 10 days of receipt; plaintiff has not exhausted her administrative remedies by appealing its response).
Straughter v. HHS, No. 94-0567 (S.D. W. Va. Mar. 31, 1995) (magistrate's recommendation) (Exemption 7 (threshold): requirement met by records compiled by HHS's Office of Civil Rights in the course of an investigation of a complaint of handicap discrimination at a health care facility) (Exemption 7(C): applying Reporters Committee, finds that the exemption categorically protects information that would identify witnesses and third parties, when plaintiff has not identified any public interest; protects statements made by the facility administrator in the course of the investigation), adopted (S.D. W. Va. Apr. 17, 1995).
Summers v. Dep't of Justice, No. 89-3300 (D.D.C. June 13, 1995) (adequacy of search: the FBI's affidavit fails to provide enough details to demonstrate that its search for J. Edgar Hoover's telephone logs and appointment calendars during his tenure as Director of the FBI was adequate; the affidavit does not describe the search terms used, the type of search performed and does not state that all files likely to contain responsive material were searched; defendant must file a pleading by June 28 demonstrating that it has conducted an appropriate search for the requested information) (Exemption 7 (threshold): information compiled by the FBI is not exempt simply because of the FBI's law enforcement function; in view of the sensitive nature of the material at issue, the FBI must reprocess the information and file a pleading by June 28 indicating that all nonexempt portions have been released and supporting its claims of exemption) (Exemption 1 [E.O. 12,356]: disclosing the names of individuals representing 2 British agencies who visited Hoover "could severely damage the delicate liaison established between the United States and this particular foreign government, as well as other governments that are similarly situated").
Triestman v. Dep't of Justice, 878 F. Supp. 667 (S.D.N.Y. 1995) (Exemption 7(C): no public interest outweighs the privacy interests in this case where plaintiff seeks information about named DEA agents whom he has alleged have been investigated for making perjurious statements or the mishandling of evidence; accordingly, refusal to confirm or deny whether any such records exist is proper) (interaction of (a)(2) & (a)(3): agency is not required to collect and produce information that has already been made public about the DEA agents in question because it will not inform citizens about "what their government is up to"; FOIA does not obligate an agency to serve as a research service for persons seeking information that is available in the public record) ("no records" defense: agency affidavit demonstrates that after an adequate search, it could find no publicly available documents relating to these agents).
Tudisca v. Leary, No. 94-11522 (D. Mass. Mar. 28, 1995) (agency: FOIA applies only to records of federal agencies, not state courts or private citizens).
United States v. Agunbiade, No. 90-610-02, 1995 WL 351058 (E.D.N.Y. May 10, 1995) (exhaustion: defendant has not exhausted his administrative remedies; defendant submitted unduly broad requests to an inappropriate agency and failed to appeal an adverse determination; the lack of specificity in defendant's FOIA requests makes them "untenable and incapable of meaningful response"; the FOIA is not a discovery device).
United States v. Marias, Crim. No. 92-256-2 (E.D. Pa. Apr. 13, 1995) (agency: the FOIA does not apply to the courts) (FOIA as a discovery tool: the FOIA was not intended to serve as a private discovery tool).
Vazquez-Gonzalez v. Shalala, No. 94-2100 (D.P.R. Feb. 13, 1995) (attorney fees: attorney fees denied; plaintiff did not substantially prevail in this case because the information in question had been promised to him; plaintiff filed suit 2 weeks after the information had been promised to him; plaintiff either should have given defendant more time or he should have called or written to inquire about the status of his request; however, the action had a causative effect upon the production of the documents; the information sought related to plaintiff's commercial interests).
Wagner v. DEA, No. 93-2093, 1995 WL 350794 (D.D.C. May 26, 1995) (grants defendant's unopposed motion for summary judgment; defendant withheld information under Exemption 2 (internal numbers used for administrative purposes), Exemption 7(C) (identifying information about accomplices, other defendants, and innocent third parties), Exemption 7(D) (confidential sources), and Exemption 7(F) (identities of DEA agents and law enforcement officers)).
Wiggins v. Rogers, No. 95-1606, 1995 U.S. Dist. LEXIS 8381 (N.D. Cal. June 14, 1995) (plaintiff's FOIA claim is dismissed for failure to exhaust administrative remedies).
Wray v. Dep't of Justice, No. 93-2239 (D.D.C. Jan. 10, 1995) (adequacy of request: plaintiff may not amend his complaint to raise new claims during the litigation process) (exhaustion: plaintiff has not exhausted his administrative remedies; he did not appeal the Executive Office for United States Attorneys' partial denial of information under the FOIA), subsequent order (D.D.C. Mar. 24, 1995) (grants DEA's motion to dismiss because no documents responsive to plaintiff's FOIA request can be found). (posted 1/16/03)
Go to: Main FOIA Post Page// DOJ FOIA Page // DOJ Home Page