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 1991. 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).
Rosenfeld v. Dep't of Justice, 501 U.S. 1227 (1991) (a full stay pending appeal was granted by the full court).
Andrade v. United States Sentencing Comm'n, No. 90-15970 (9th Cir. Mar. 22, 1991) (unpublished memorandum), 928 F.2d 1136 (9th Cir. 1991) (table cite) (affirms district court's denial of plaintiff's request for a preliminary injunction in this action brought pursuant to the FOIA).
Bennett v. Dep't of the Army, No. 90-1881 (6th Cir. May 22, 1991) (unpublished order), 933 F.2d 1007 (6th Cir. 1991) (table cite) (sanctions: a finding of arbitrary and capricious withholding under the FOIA was not warranted in this case, as the district court did not order the production of any documents or the award of fees or costs) (attorney fees: an award of fees was properly denied because there was no public benefit in the release of information about plaintiff's military career and no unreasonable withholding was proven).
Bonner v. Dep't of State, 928 F.2d 1148 (D.C. Cir. 1991) (in camera inspection: while representative sampling is an appropriate procedure to test an agency's FOIA exemption claims where a large number of documents are involved, the release in full of 19 of the 63 sample documents calls into question the validity of the defendant agency's original FOIA claims; because the district court did not make an initial determination as to whether the released material was properly redacted when the defendant agency reviewed it, the court must do so now on remand; if the error rate in the representative sampling is 25% or "unacceptably high," the State Department must reprocess all of the more than 1700 documents at issue, using the operative standards for disclosure that are in effect at the time of the reprocessing).
Bowers v. Dep't
of Justice, 930 F.2d 350 (4th Cir. 1991) (Exemptions 1 [E.O.
12,356], 2, 3 [50 U.S.C.
Burge v. Eastburn, 934 F.2d 577 (5th Cir. 1991) (Exemption 7(C): following Reporters Committee, finds that the exemption protects witness statements allegedly on file at the FBI (though the FBI refused to acknowledge whether individuals named in plaintiff's request gave statements at all), despite plaintiff's Brady argument; individuals who purportedly gave information to the FBI did not waive their privacy rights by testifying in open court; furthermore, the information sought is not necessarily identical to that contained in the testimony) (Exemption 7(B): rejects plaintiff's argument that the court should mandate disclosure of information that would enhance a criminal defendant's right to an impartial adjudication).
Critical Mass Energy Project v. NRC, 931 F.2d 939 (D.C. Cir. 1991) (Exemption 4: there is no evidence to support the district court's holding that the release of safety reports furnished voluntarily to the NRC by a nonprofit consortium would diminish the NRC's efficiency and effectiveness; finds that a genuine issue of material fact remains concerning the effects of disclosure on the NRC's information-gathering ability, and remands for additional proceedings directed to this question).
Fazzini v. Dep't of Justice, 946 F.2d 1564 (D.C. Cir. 1991) (summarily affirms district court's order which dismissed plaintiff's suit with respect to portion of his FOIA request seeking documents that do not exist; summarily reverses and remands the district court's order to the extent that it required defendant agency to release the names of United States Marshals, as access to this information was properly denied under Exemption 7(C)).
Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991) (Exemption 5: although inspection reports concerning a construction company's work on a HUD-assisted public housing project in New York are protected by the deliberative process privilege, remands for a determination of whether these reports contain reasonably segregable, nonexempt information) (Exemption 6: applying Reporters Committee, holds that the release of payroll records containing individualized employee information would be an unwarranted invasion of personal privacy (the district court held that they were protectible under the less exacting standard of Exemption 7(C)) because the employees have a "significant privacy interest" in avoiding disclosure of their names and addresses and, on the public interest side of the balance, determining whether private contractors are violating the Davis-Bacon Act is not a "qualifying" public interest and "monitoring" HUD's enforcement of the statute is too "attenuated").
Inter-Hemispheric Educ. Res. Ctr. v. Nat'l Endowment for Democracy, No. 90-5203 (D.C. Cir. June 12, 1991) (defendant's motion for summary affirmance granted in this FOIA case where the district court approved the defendant agency's refusal to waive the duplicating fees incurred by a nonprofit research institution because of the minimal showing of public interest, the vagueness of plaintiff's publication plans, and the burdensome nature of the request).Lam Lek v. DEA, 929 F.2d 729 (D.C. Cir. 1991) (Exemption 3 [18 U.S.C.
Lavado v. Dep't of Transp., No. 88-3725 (D.D.C. Aug. 9, 1989) (grants defendants' motion for summary judgment in this FOIA case where defendants' searches were adequate and the exemptions invoked were proper), summary affirmance granted, No. 90-5260 (D.C. Cir. May 16, 1991).
Long v. IRS, 932 F.2d 1309 (9th Cir. 1991) (attorney fees: remands on attorney fees issue because the district court confused entitlement factors with the factors that are relevant to a determination of the reasonableness of the amount requested; the court improperly considered plaintiffs' scholarly interest in the records, a factor that weighs in favor of entitlement, as if it were a factor that weighed against entitlement; and the court did not articulate its findings as to the amount of fees and costs it awarded to plaintiffs with sufficient clarity to enable proper review).
Malkan FM Assocs. v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (Federal Register publication: the FCC was not required to publish in the Federal Register notices that the radio tower height limit near the Mexican border was lower than that prescribed by the Commission's general rules, because the tower height near the border was set by international agreement and not the Commission).
O'Connor v. United
States, No. 89-15321 (9th Cir. June 4, 1991) (unpublished memorandum),
935 F.2d 275 (9th Cir. 1991) (table cite) (affirms district court's
ruling that the IRS, using Exemptions 3 [26 U.S.C.
Painting & Drywall Work Preservation Fund v. HUD, 936 F.2d 1300 (D.C. Cir. 1991) (Exemption 6: the release of the names and addresses of construction workers from payroll records of 3 HUD-assisted projects would constitute an unwarranted invasion of the workers' significant privacy interests; while it might reveal the failure of contractors to comply with relevant laws, it would only slightly shed light on the workings of HUD; finding that this case is like FLRA v. Dep't of the Treasury, because even though a relevant public interest could exist where "the names of current workers might provide leads for an investigative reporter seeking to ferret out 'what the government is up to,'" plaintiff has "an alternate means of access to current workers . . . -- face-to-face conversation").
Parker v. Dep't of Justice, 934 F.2d 375 (D.C. Cir. 1991) (Exemption 7(D): information obtained by an agency in the course of a criminal investigation is presumed to have been procured under circumstances of confidentiality; confidential sources, even if they testified at trial concerning some of their communications to the FBI, did not waive the FBI's right to withhold their identities and the information they provided).
Powell v. Dep't of Justice, 946 F.2d 1566 (D.C. Cir. 1991) (summary affirmance granted in this case where plaintiff sought records relating to prisoner security procedures, the defendant agency's investigation of plaintiff for possible violations of racketeering, tax and narcotic laws, and the defendant agency's communications with foreign law enforcement agencies).
Vaughn v. United States, 936 F.2d 862 (6th Cir. 1991) (adequacy of agency affidavit: following the Osborn v. IRS procedural requirements for testing the government's claim to exemption in FOIA cases where in camera inspection is not used, finds that the document-by-document affidavits and the categorical affidavits submitted by the IRS provided sufficient information to enable the district court to make a reasoned judgment as to whether the material was exempt from disclosure).
Anderson v. Dep't of Justice, No. 91-0352 (D.D.C. June 14, 1991) (grants defendant's motion for summary judgment in this case where the defendant agency found no documents responsive to plaintiff's FOIA request).
Aronson v. HUD, No. 88-1188 (D. Mass. Apr. 29, 1991) (Exemption 6: applying Reporters Committee, finds that the public interest in the disclosure of name-and-address information to a "skip tracer" does not outweigh the potential invasions of privacy as long as HUD is actively searching for eligible mortgagors who are in only the second year of their entitlement to a mortgage refund).
Aronson v. IRS,
767 F. Supp. 378 (D. Mass. 1991) (Exemption 3 [26 U.S.C.
Astley v. Lawson, No. 89-2806 (D.D.C. Mar. 14, 1991) (Exemption 7(D): the release of 2 letters from a local law enforcement agency would reveal the identity of a confidential informant) (Exemption 3 [Rule 6(e)]: within 30 days, the defendant agency must release 2 pages of records that do not on their face reveal the inner workings of the grand jury; defendant based its withholding on the theory that plaintiff would be able to deduce the purpose for which the records were subpoenaed by the grand jury).
Bates v. Dep't of Justice, 767 F. Supp. 857 (M.D. Tenn. 1991) (Exemption 7 (threshold): although the FBI is per se a criminal law enforcement authority, the defendant agency's supplementary affidavit does not specify exactly how a request by a foreign police agency for confidential information bears any relationship to a legitimate criminal investigation; information provided by a confidential source, but not the identity of the source (both of which the FBI sought to withhold under Exemption 7(D)) must be released immediately) (attorney fees: awards plaintiff attorney fees and costs of $15,471).
Bean, Kinney, Korman & Moore v. Office of Thrift Supervision, No. 89-3110 (D.D.C. Feb. 6, 1991) (attorney fees: the confusion over custody of the records sought under the FOIA could have been resolved in a reasonably prompt manner without this lawsuit; although defendant did briefly mislead plaintiff as to the ownership of the documents, there was inter-agency confusion as a result of structural reforms made by recent legislation; plaintiff made some vague allusions to public concern with the current savings and loan crisis, but there is no claim that plaintiff planned to disseminate the information to the public; attorney fees denied).
Becher v. Demers, No. 91-C-99-S, 1991 WL 333708 (W.D. Wis. May 30, 1991) (exhaustion: plaintiff has not exhausted his administrative remedies because his request for access to Social Security manuals was not made to defendant agency's FOIA Officer as required by its regulations).
Bender v. Inspector Gen., NASA, No. 90-2059 (N.D. Ohio May 24, 1991) (proper party defendant: this case could be dismissed because plaintiff failed to name an "agency" as a defendant) (Exemptions 7(A), 7(D), and 7(E): the government may withhold information relating to an "official reprimand" that plaintiff received for misusing his position as a government contracting official, because the release of the information could reasonably be expected to interfere with the government's civil enforcement proceeding against plaintiff and may tend to reveal confidential sources and law enforcement techniques) (Exemption 5: the release of agency memoranda would reveal litigation strategy).
Bryant v. CIA,
No. 90-1163, 1991 U.S. Dist. LEXIS 8964 (D.D.C. June 28, 1991) (Exemption 3
Carney v. CIA,
No. 88-0602 (C.D. Cal. Feb. 28, 1991) (magistrate's recommendation) (Exemption
1 [E.O. 12,356] and Exemption 3 [50 U.S.C.
Chandler v. IRS, No. 90-1062A (D. Or. Apr. 16, 1991) (mootness: defendant has met its burden of showing that it has produced all relevant documents in existence and that no other undisclosed documents were contained in the relevant files).
Church of Scientology v. IRS, No. C90-1279 (N.D. Cal. Mar. 26, 1991) (Exemption 5: the deliberative process privilege protects portions of a document relating to the internal management by the IRS of a large tax shelter litigation project, including recommendations and proposals concerning the disposition of tax litigation) (duty to search: defendant's affidavits demonstrate that its search was reasonably calculated to uncover all relevant documents).
Church of Scientology
W. United States v. IRS, No. 89-5894, 1991 U.S. Dist. LEXIS 3008 (C.D.
Cal. Mar. 5, 1991) (Exemption 3 [26 U.S.C.
Church of Scientology W. United States v. IRS, 769 F. Supp. 328 (C.D. Cal. 1991) (attorney fees: plaintiff has substantially prevailed in this FOIA action because the production and filing of the court-ordered Vaughn Index triggered the release of requested documents; the public clearly has an interest in information concerning the IRS's improper designation of a religion as a "tax shelter" project; there is no evidence that plaintiff derived any commercial benefit from the disclosure of this information; although plaintiff's request served plaintiff's own interest, this factor does not outweigh the public interest; although there may have been a colorable legal basis for the IRS's initial withholding of the documents, there is no apparent basis in law for its failure to determine whether these documents were subject to release in a more timely fashion (it took them more than a year); awards attorney fees and costs in the amount of $5040).
No. 19 of the Nat'l Ass'n of Retired & Veteran Ry. Employees v. R.R. Ret.
Bd., No. 87-117 (N.D. Ohio Feb. 20, 1991) (exhaustion: the difference between
the information requested in plaintiff's complaint and the information sought
in its FOIA request is not sufficient justification for the dismissal of the
complaint for failure to exhaust administrative remedies) (Exemption 3 [45 U.S.C.
Coleman v. FBI, No. 89-2773, 1991 WL 333709 (D.D.C. Apr. 3, 1991) (Vaughn Index: applying Keys v. Department of Justice, finds that in this Exemption 7(C) and 7(D) case that the FBI's coded index satisfies the Keys standard in that it allows the court to properly evaluate the FBI's justifications for withholding portions of documents; however, no degree of judicial deference can overcome the inadequate explanation proposed for withholding hundreds of pages in their entireties).
Comm. to Bridge the Gap v. DOE, No. 90-3568 (C.D. Cal. Apr. 29, 1991) (Exemption 5: the deliberate process privilege does not protect a draft order because there are issues of material fact as to whether defendant has given a copy of the draft order to third parties, whether it contains substantive amendments, and whether it has been implemented before being made final).
Crancer v. Dep't of Justice, No. 89-0234-C5 (E.D. Mo. Jan. 18, 1991) (denies defendant's motion for a modification of court's July 27, 1990 order; within 20 days defendant must produce for in camera inspection a document-by-document Vaughn Index of the documents it seeks to withhold under Exemption 7(A) in compliance with the court's July order), relief denied (E.D. Mo. Mar. 22, 1991) (magistrate's order), appeal certification denied (E.D. Mo. Apr. 11, 1991) (magistrate's order), magistrate's order approved (E.D. Mo. Apr. 18, 1991).
Curro v. Dep't of Justice, No. 90-1887 (D.D.C. Mar. 20, 1991) (Exemption 7 (threshold): requirement is met by records compiled by the FBI in the course of its investigation of plaintiff for murder) (Exemption 7(C): protects information that was allegedly provided to the FBI by a witness who later testified against plaintiff at a 1985 murder trial; witnesses who testify at public trials do not lose their privacy interests, except perhaps as to the public testimony) (FOIA as a discovery tool: plaintiff cannot use the FOIA as a substitute for criminal discovery).
D'Aleo v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS 3884 (D.D.C. Mar. 27, 1991) (status of plaintiff: plaintiff's FOIA claims were not extinguished by his death) (Exemption 1 [E.O. 12,356]: the defendant agency's public and classified declarations demonstrate that any confirmation or denial of the existence of nondisclosure agreements that plaintiff allegedly signed would cause serious damage to national security).
D'Alessandro v. Dep't of Justice, No. 90-2088 (D.D.C. Feb. 28, 1991) (Exemption 2: protects informant symbols and symbols that would reveal the identities of individuals who have provided information to the FBI) (Exemption 7(C): protects the identities of FBI Special Agents, FBI support personnel, nonfederal law enforcement personnel, third parties, and subjects of investigative interest) (Exemption 7(D): protects information provided by and the names of confidential sources, including the source symbol number and the identities of third parties who provided information) (Exemption 7(E): protects certain commonly known investigative techniques, because their use in conjunction with other investigative procedures could reasonably be expected to risk circumvention of law) (fee waiver (Reform Act): plaintiff's fee waiver request is denied because he has failed to make the requisite showing that his request was in the public interest) (exhaustion: plaintiff has exhausted his administrative remedies only with respect to pages withheld in full (on which he filed an administrative appeal), but not with respect to the partial redaction of 364 pages of information sent to him).
Davis v. Dep't of Justice, No. 88-0130 (D.D.C. May 6, 1991) (waiver of exemption: because the defendant agency is unable to verify which of the 43 reels of recorded Title III wiretap telephone conversations were played in open court at the criminal trial of Carlos Marcello, any exempt status the tapes might otherwise have had under the FOIA has been waived and all the tapes must be released in their entireties).
Duckworth v. Dep't of the Navy, No. F-90-146 (E.D. Cal. May 21, 1991) (summary judgment: grants summary judgment to defendant because all records responsive to plaintiff's FOIA requests have been released).
Duffy v. United States, No. 87-C-10826, 1991 U.S. Dist. LEXIS 7381 (N.D. Ill. June 3, 1991) (proper party defendant: only a federal agency or department is a proper defendant in a FOIA action).
Farmer v. Executive Office for United States Attorneys, No. 90-2352 (D.D.C. Apr. 30, 1991) (case dismissed due to plaintiff's failure to prosecute).
Fazzini v. Dep't of Justice, No. 90-C-3303, 1991 WL 74649 (N.D. Ill. May 2, 1991) (adequacy of search: defendant agency's affidavit demonstrates that its search was reasonable and plaintiff does not materially dispute this) (fee waiver (Reform Act): plaintiff's wild allegations of government conspiracy and cover-up do not create a legitimate public interest in disclosure).
Ferguson v. FBI, 762 F. Supp. 1082 (S.D.N.Y. 1991) (Exemption 7 (threshold): defendant agency may submit further proof, including in camera submissions, in order to demonstrate that the threshold requirement is met by records compiled in 1965 when the FBI initially began its surveillance of plaintiff because he had an official position in the Organization for Afro-American Unity and by records compiled in 1967 when the FBI reopened the investigation upon receipt of information that plaintiff was a member of the Revolutionary Action Movement) (Exemption 7(D): within 30 days defendant must advise the court of the identity and nature of each enumerated source, correlated to each source number, that appears in the files thus far; provide evidence that the information from each confidential source was compiled in the course of a legitimate law enforcement investigation; and provide reasons why the disclosure of the confidential information could reasonably be expected to expose the identity of such a source; this exemption is applied too broadly and its application is not always consistent or rational, so the FBI must provide the court with explanations for its inconsistencies; exemption does not apply to information that was obtained as the result of interviews by another government agency and was passed on to the FBI; exemption does not apply to instructions from one FBI office to another; exemption has been waived when the identity of the source has been revealed, and the FBI must reevaluate whether these sources retain a privacy interest under Exemption 7(C); all pamphlets, leaflets, and other publicly circulated materials must be released; reports of public meetings and rallies must be released, after proper application of Exemption 7(C)) (Exemptions 7(C) and 7(D): exemptions have been waived where the source has testified in court to the matter at hand; in all cases where the FBI invoked Exemption 7(C) to withhold the name of a source and Exemption 7(D) to withhold all of the information provided by that informant, the FBI must divulge the content of the information to plaintiff, and withhold only the name of the source, if the privacy interest outweighs the public interest under Exemption 7(C)) (Exemption 7(C): due to the age of these documents, the FBI is directed to search its files to ascertain whether any of these sources are now dead) (in camera inspection: within 30 days, the FBI must provide the court with unredacted copies of these files for de novo review in order to expedite the proper release of the requested information).
Fine v. DOE, No. 88-1033 (D.N.M. June 23, 1991) (Exemption 5: the deliberative process privilege protects opinions contained in draft documents which do not appear in the final documents, authors' opinions, and handwritten notes in the margin of a letter; the attorney-client privilege protects attorney-client discussions on strategy, draft testimony, and a request for legal advice) (Exemption 6: protects the names of an agency employee, a witness in an internal agency investigation, and third parties) (in camera inspection: court lacks sufficient information on the 44 remaining documents; these documents must be submitted to the court within 30 days for in camera review) (adequacy of agency affidavit: because the affiant is charged by the defendant agency with the responsibility of determining whether to release or disclose information, she is competent to testify as to her reasoning and as to her application of the agency's withholding standards).
Fla. Dep't of Health & Rehabilitative Servs. v. Sullivan, No. 88-3462 (D.D.C. May 31, 1991) (Federal Register publication: there was no violation of the FOIA's publication requirements in Health Care Financing Administration's (HCFA) decision to disallow assistance for erroneous Social Security payments, because HCFA's policy, as published in the agency's regulations, provided plaintiff with the requisite notice).
Francis v. Office of Hearings & Appeals, No. 4-90-673 (D. Minn. Mar. 15, 1991) (exhaustion: because the defendant agency did not comply with the statutory response time, plaintiff has exhausted his administrative remedies with respect to Administrative Law Judge's working file) (mootness: because defendant has released the entire contents of plaintiff's Social Security file to him, this claim is moot).
Frydman v. Dep't of Justice, 760 F. Supp. 193 (D. Kan. 1991) (agency records: ELSUR index cards are "agency records" for purposes of the FOIA; the FBI has 20 days to present its argument that these cards are exempt from disclosure under Exemption 1) (discovery in FOIA litigation: court puts an end to all further discovery in this case because sufficient discovery has been allowed and continuing the process will not "clear the air").
Gillin v. IRS, No. 90-31 (D.N.H. Apr. 15, 1991) (jurisdiction: court lacks jurisdiction because the defendant agency has demonstrated that it has met its burden under the FOIA by either supplying plaintiff with the requested records or proving that the documents do not exist).
Glick v. Dep't of Justice, No. 89-3279, 1991 WL 118263 (D.D.C. June 20, 1991) (Exemption 7 (threshold): threshold requirement is met by information compiled during an investigation of an alleged violation of federal civil rights laws) (Exemption 7(C): exemption protects from disclosure the names of FBI Special Agents involved in the investigation, because disclosure might hamper the FBI's ability to elicit such information in the future) (Exemption 7(D): protects information received from a state law enforcement agency) (waiver: the fact that the state may have released this information to plaintiff pursuant to discovery in another case does not waive the confidentiality of the information or of those who provided it).
Mooty, Mooty & Bennett v. IRS, No. 4-90-377 (D. Minn. May 23, 1991)
(Exemption 3 [26 U.S.C.
Green v. NLRB, No. 90-936-C2 (E.D. Mo. Jan. 11, 1991) (Exemption 5: the deliberative process privilege protects 4 documents relating to 2 charges plaintiff filed with defendant, because they were created in preparation for the defendant agency's decision as to whether to proceed with or dismiss these cases) (in camera inspection: plaintiff's request for in camera inspection is denied because he has produced no evidence that the Vaughn Index is not an accurate description of the documents withheld).
Hammie v. Social Sec. Admin., 765 F. Supp. 1224 (E.D. Pa. 1991) (exhaustion: neither the FOIA or the Privacy Act require a plaintiff to exhaust his administrative remedies before bringing suit; it is a requirement that has been imposed by the courts as a general principle of administrative law; because plaintiff has requested direct access to his medical records and has been effectively denied such access, he has exhausted his administrative remedies) (Vaughn Index: because defendant has effectively denied plaintiff access to his medical records, orders defendant agency to produce a Vaughn Index within 10 days).
Hansen v. Dep't of the Air Force, No. 91-0099 (D.D.C. Apr. 15, 1991) (Vaughn Index: grants plaintiff's motion for the production of a Vaughn Index prior to the filing of dispositive motions because it would be unfair to allow the government 4 months in which to file its motion and then force plaintiff to respond within 2 weeks).
Hefti v. IRS, No. 90-3223 (C.D. Ill. June 17, 1991) (magistrate's recommendation) (jurisdiction: court lacks jurisdiction where no agency records have been improperly withheld) (exhaustion: plaintiff, who failed to respond to defendant's letter advising plaintiff to reformulate his FOIA request to avoid search fees of more than $5000, has not exhausted his administrative remedies), adopted (C.D. Ill. June 28, 1991).
Ingrao v. Executive Office for United States Attorneys, No. 90-1634 (D.D.C. Apr. 25, 1991) (due to plaintiff's failure to prosecute, this case is dismissed against 9 of the defendants; plaintiff has until May 15 to show cause why this case should not be dismissed against the last remaining defendant, the Criminal Division of the Justice Department).
Ingrao v. Executive Office for United States Attorneys, No. 90-1634 (D.D.C. May 20, 1991) (having received no response from plaintiff to the court's April 25, 1991 show cause order, court dismisses this case for failure to prosecute).
Jaindl v. Dep't of State, No. 90-1489 (D.D.C. Jan. 31, 1991) (FOIA/PA interface: although the defendant agency properly withheld information under the Privacy Act, the protected documents nonetheless were released to the extent required by the FOIA) (Exemption 7(C): protects identities of FBI Special Agents and other law enforcement personnel) (Exemption 7(E): disclosure of computer codes and other procedural components of the defendant agency's system for assisting law enforcement agencies in apprehending fugitives would reveal investigative procedures and techniques).
Jones v. FBI, No. C77-1001 (N.D. Ohio June 2, 1991) (magistrate's recommendation) (proper party defendant: the FBI is a proper party defendant to actions filed under the FOIA) (Exemption 1 [E.O. 12,356]: the FBI's affidavit demonstrates that national security information, such as a source's numerical designator, was properly withheld under this exemption) (Exemption 2: protects FBI symbol numbers and file numbers which are used internally to identify confidential sources) (Exemption 7 (threshold): just because a document was created as part of the FBI's COINTELPRO program does not per se negate its legitimate law enforcement status; the documents at issue were compiled by the FBI in the course of a legitimate law enforcement purpose -- the investigation of a group with violent proclivities) (Exemption 7(C): protects the identities of FBI Special Agents, witnesses, and other third parties, even though plaintiff may be familiar with some of these individuals) (Exemption 7(D): protects the identities of confidential sources and the information they provided, even though some of these sources testified at plaintiff's criminal trial; disclosure of this information would have a chilling effect of the FBI's ability to obtain necessary information for successful criminal and national security investigations) (Vaughn Index: the affidavits and random-sample index are sufficiently detailed and explanatory in nature) (discovery in FOIA litigation: there is no genuine factual issue in this case that would warrant discovery).
Lawyers Alliance for Nuclear Arms Control - Philadelphia Chapter v. DOE, 766 F. Supp. 318 (E.D. Pa. 1991) (Exemption 1 [E.O. 12,356]: denies summary judgment to both parties in this FOIA case where defendant seeks to withhold 4 documents relating to a Joint Verification Experiment conducted by the United States and the Soviet Union, because they are subject to an express agreement of confidentiality and plaintiff avers that the Soviets themselves have suggested that this information be made public; court finds genuine issue of material fact precluding summary judgment at this stage).
Maki v. Sessions, No. 1:90-587, 1991 U.S. Dist. LEXIS 7103 (W.D. Mich. May 29, 1991) (exhaustion: plaintiff's FOIA complaint must fail because he has not exhausted his administrative remedies).
Martinez v. United States Postal Serv., No. 90-1630 (D.D.C. Apr. 25, 1991) (grants summary judgment to the remaining 5 defendants in this FOIA case where more than 100 documents were withheld under Exemptions 2, 5, 7(A), 7(C), 7(D), 7(E), and 7(F), and the court found that defendants had fully compiled with their obligations under the FOIA).
Meador v. United States Parole Comm'n, No. 90-1632 (D.D.C. Apr. 15, 1991) (Exemption 7(D): protects a Decatur, Illinois Police Department report which concerns the incident which led to plaintiff's arrest because of the implied promise of confidentiality) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to his request for the information in his litigation file).
Medics, Inc. v. Sullivan, 766 F. Supp. 47 (D.P.R. 1991) (Federal Register publication: administrative operations letters concerning reimbursement for suppliers of durable equipment deal with one specific, technical application of the Medicare program and as such do not need to be published in the Federal Register but only to be made available to the public).
Mountain Coin Mach. Distribs. v. Dep't of Justice, No. 87-122 (S.D. Iowa June 28, 1991) (after in camera inspection of more than 2000 documents, finds that the information requested by plaintiff is exempt from disclosure under Exemptions 2, 3 [Rule 6(e)], 5, 7(C), 7(D), 7(E), and 7(F); furthermore, release of the information would have served only as discovery for plaintiff's now-settled antitrust and RICO action and would not have revealed anything about the defendant agency's conduct).
Muffoletto v. Sessions, 760 F. Supp. 268 (E.D.N.Y. 1991) (attorney fees: plaintiff is eligible to receive attorney fees where the lawsuit clearly provided the impetus for the FBI to act, even if simply to negotiate with plaintiff in a more expeditious manner; plaintiff's sole interest in seeking the requested information was in defense of a private action; there is a slight public benefit in ensuring open access to government information; although some prodding was necessary, there is ample evidence that the FBI did "take its responsibilities seriously" under the FOIA; plaintiff is not entitled to attorney fees, and attorney fees are therefore denied) (fees (Reform Act): because plaintiff requested the documents for use in private litigation, he is liable to the defendant agency for reasonable charges for the document "search" and "duplication").
Nolan v. Dep't of Justice, No. 89-A-2035, 1991 WL 36547 (D. Colo. Mar. 13, 1991) (Exemption 2: source symbols related to the investigation of plaintiff and 2 third-party investigative file numbers unrelated to the investigation in question are of solely internal significance and may be withheld) (Exemption 3 [Rule 6(e)]: because the exemption was properly claimed for grand jury witnesses and subpoenaed commercial or financial organization records, plaintiff is not entitled to make a waiver argument) (Exemption 7 (threshold): the threshold requirement is met by records compiled as part of 3 background investigations done on plaintiff when he applied for different positions with the Department of Justice and records of a public corruption investigation where the special prosecutor recommended that the case not be pursued) (Exemption 7(C): source symbols also may be withheld under this exemption; the exemption protects the identities of FBI Special Agents, FBI support personnel, other federal employees, state and local law enforcement personnel, subjects of investigative interest, and third-party names) (Exemption 7(D): exemption protects source symbol numbers and information that would lead to the identification of, and information supplied by, confidential sources, state and local government employees and agencies, third parties, and employees of commercial and financial organizations and their employing entities acting under implied or explicit assurances of confidentiality) (Exemption 7(E): protects information surrounding a "pretext" telephone call made by an FBI Special Agent to plaintiff in the course of an investigation).
North v. Walsh, No. 87-2700 (D.D.C. June 25, 1991) (Exemption 2: the public interest in monitoring vouchers for reimbursement of government employees' travel expenses extends to more detail than the reports of total expenditures that have been released; these documents must be disclosed; documents memorializing contacts between the press and members of the Office of the Independent Counsel (OIC) are not internal trivia) (Exemption 5: the attorney work-product privilege protects notes taken by an associate counsel during meetings with congressional staff members, documents memorializing contacts between the press and employees of OIC, and an associate counsel's handwritten notes of meetings and telephone calls about contacts with Members of Congress or congressional staff; documents created in connection with OIC's efforts to avoid exposure to immunized testimony are not protected by the attorney work-product privilege; orders in camera inspection of memoranda concerning instructions given to grand jurors regarding immunized testimony and of a document containing the schedule of witnesses to appear before Congress, because defendant's descriptions are insufficient to show that the documents should be protected under the attorney-work product privilege; neither the attorney work-product privilege nor the deliberative process privilege protects various documents describing implementation of insulation procedures; the deliberative process privilege protects a staff member's memorandum to Independent Counsel Walsh recommending OIC policy with respect to media interviews, a draft regulation, and an associate counsel's notes taken during a Justice Department meeting to discuss a draft independent counsel regulation) (Exemption 7(A): protects documents created in connection with OIC's efforts to avoid exposure to immunized testimony because disclosure would interfere with the prosecution of plaintiff on remand).
Parker v. DEA, No. 90-2411 (D.D.C. May 13, 1991) (summary judgment is granted to all 6 defendants who, after appropriate searches, released many pages of material to plaintiff, properly withholding information under Exemptions 2, 3, 5, 6, and 7).
Perotti v. Dep't of Justice, No. C-1-89-844 (S.D. Ohio Apr. 26, 1991) (magistrate's recommendation) (fee waiver (Reform Act): plaintiff has failed to allege any facts to support his argument that granting a fee waiver would benefit the public).
Potts v. IRS, No. 90-3289 (C.D. Cal. June 11, 1991) (sanctions of $600 are awarded to plaintiff because defendant violated Local Rule 7.16 by its unwarranted motion for reconsideration of court's order awarding attorney fees to plaintiff).
Prince v. FBI, No. 90-1425 (D.D.C. Jan. 16, 1991) (because this pro se plaintiff never responded to defendant's dispositive motions, this FOIA case is dismissed for failure to prosecute).
Radiation Sterilizers, Inc. v. DOE, No. 90-0880 (D.D.C. Apr. 9, 1991) (Exemption 5: the inter- or intra-agency requirement is met by documents that were generated by a DOE Investigation Board in the course of an investigation and preparation of an Interim Report about the leak of a cesium capsule at a facility owned by plaintiff; material solicited by government agencies from private consultants which is predecisional and deliberative falls within the scope of Exemption 5; the deliberative process privilege protects 7 documents which are early drafts of the Interim Report, containing preliminary thoughts and opinions, some of which are based on erroneous facts and assumptions; given the nature of the disputed documents, disclosure would not benefit the public, but instead would lead to misinformation and public confusion; plaintiff's allegation that the documents are factual material must fail because the documents are tentative drafts which were subject to further deliberation and change and are deliberative as to the factual material contained in them; exemption was not waived when defendant agency distributed a draft of the Interim Report to nonfederal agencies and third parties, because this draft was nearly a final version of the Interim Report, unlike these 7 documents which are very early drafts; draft letter is protected by the exemption because it is part of the deliberative process that led to the creation of the final letter; the release of agency official's notes does not waive the defendant agency's right to withhold many other similar notes of this same official).
Rocky Mountain Enters. v. IRS, No. 90-01 (D. Mont. Apr. 10, 1991) (Exemption 7(D): exemption protects information provided to IRS investigators after informant had received an express promise of confidentiality).
Rosenfeld v. Dep't of Justice, 761 F. Supp. 1440 (N.D. Cal. 1991) (in this FOIA case concerning records of the FBI's investigation, infiltration, and surveillance of student political groups in the 1960s, adopts the magistrate's in camera findings with minor modifications; this court's analyses should be viewed as representative rulings and the remainder of the documents identified in plaintiff's request should be reprocessed in a manner consistent with these rulings within 30 days; if documents have not been "Vaughn-Indexed," defendants will have to do so within 30 days of notice; defendants must provide the court with a list of all sources deleted from the documents to permit a check of these names against plaintiff's list of previously disclosed or deceased sources; a Special Master to be compensated by defendant will review these additional indices and lists) (Exemption 7 (threshold): although finding it a close question, holds that the threshold requirement is met by documents compiled by the FBI in the course of its investigation of the Free Speech Movement and related groups, because the investigation was opened and initially pursued for the legitimate purpose of ascertaining the role of subversive organizations in these groups; by at least January 19, 1965, this investigation became a case of routine monitoring when the FBI came to realize that its law enforcement-related suspicions were unfounded; therefore the court finds that defendants have established a law enforcement purpose for Free Speech Movement documents generated before January 19, 1965; documents generated from this date forward must be released unless they have been shown to be withholdable under another FOIA exemption; the Max Scherr documents and documents compiled in the course of the FBI's investigation of the death of James Rector meet the threshold requirement; the Marguerite Higgins and Clark Kerr documents were not compiled for legitimate law enforcement purposes) (Exemption 7(D): the organizational affiliation and location of the source and the number of sources must be disclosed, because the nature of the organization and the passage of time make it unlikely that this would lead to disclosure of the source; where the organizational affiliation could reasonably be expected to reveal the source, the exemption is upheld; the second prong of the exemption does not protect information that does not appear to be compiled for the purpose of a criminal or legitimate national security investigation; exemption does not protect the identity and role of a source that may already have been disclosed; exemption protects the names and addresses of sources given an implied assurance of confidentiality; this court does not accept the implication that nonfederal law enforcement agencies would not wish it to be known that they cooperate with the FBI; exemption protects information concerning activities among such a small group of people that disclosure could reasonably be expected to identify the source; temporary source symbol numbers should be released if the underlying source has been released) (Exemption 7(C): releases the names of individuals of investigative interest to the FBI because the activities of these individuals is public knowledge; exemption does not protect the identities of witnesses who testified at trial; orders release of the names of FBI Special Agents only when the public interest outweighs their privacy interests or when an agent's identity and activities are well known; exemption protects the names of police officers and agency employees) (Exemption 7(E): the exemption does not protect a pretext telephone call) (Exemption 1 [E.O. 12,356]: protects information concerning intelligence sources, but not an analysis of the political movement in question) (Exemption 6: the high degree of public interest in this document outweighs the privacy interests of a controversial figure in California education).
Schramm v. IRS, No. 89-1162 (D. Ariz. Apr. 30, 1991) (Exemption 7(D): protects the identity of a confidential source even if that source's identity is known to plaintiff) (attorney fees: this lawsuit was not necessary because at the time plaintiff commenced this action he had 2 other pending suits through which he reasonably could have obtained the same information).
Schreibman v. Dep't of Commerce, 785 F. Supp. 164 (D.D.C. 1991) (Exemption 2: protects vulnerability assessments of federal computer security plans) ("reasonably segregable": portions of documents that merely identify computer systems must be released).
Schreibman v. Dep't of Justice, No. 91-0670 (D.D.C. June 29, 1991) (grants defendant's motion to dismiss in this FOIA because all responsive records have been released in their entireties to plaintiff).
Senate of P.R. v. Dep't of Justice, No. 84-1829 (D.D.C. Apr. 15, 1991) (Exemption 3 [Rule 6(e)]: defendant agency must release material which had been presented to the grand jury, and certain depositions and exhibits, because it has not shown that the disclosure of these documents would reveal the inner workings of the grand jury; the exemption protects in their entireties maps, charts, and other documents which were created during the grand jury proceedings and that reflect the testimony given before the grand jury) (agency records: defendant agency is in possession and control of copies of documents responsive to plaintiff's request).
Silverberg v. HHS, No. 89-2743, 1991 WL 633740 (D.D.C. June 14, 1991) (Exemption 4: testing and inspection information of laboratories that have been certified to perform drug testing of federal employees was "obtained from a person," because although the tests and inspections may have been required by the government, the information itself is generated by the laboratories; even though an individual who is the subject of a drug test by a particular laboratory has the right of access to its performance and testing information, this does not make the information "publicly available"; clients and potential clients of these certified laboratories are allowed to view this information, but not to photocopy it; the government has failed to demonstrate that the release of this testing and inspection information would cause substantial competitive harm to the laboratories; the release of this information is not likely to impair the government's ability to obtain necessary information in the future, because the inspection report is actually a compilation of the findings of 3 anonymous inspectors).
Spannaus v. FBI, No. 90-0971 (D.D.C. May 31, 1991) (mootness: case is dismissed as moot after plaintiff paid delinquent duplication fees and also made an advance payment for fees associated with processing the FOIA request that is the subject of this lawsuit; defendant now agrees to process his request).
Starchild v. Fed. Bureau of Prisons, No. 89-3371 (D.D.C. Mar. 6, 1991) (no improper withholding: prison inmate's challenge to the format of the information is not actionable under the FOIA, where the inmate who had been allowed only to inspect his HIV-test lab results was denied access to a physical copy of these same results) (interaction of (a)(2) & (a)(3): defendant agency need not respond to a FOIA request for documents where the agency has provided an alternative means of access) (Exemptions 2 and 7(E): because there was no improper withholding, declines to adjudicate "attenuated arguments" which were based Bureau's contention that prison security may be breached if the physical copies were released).
State Farm Fire & Cas. Co. v. Farmers Home Admin., No. 91-018-S (E.D. Okla. June 27, 1991) (Exemption 6: the name of an insurance carrier on property owned by a third party on which defendant holds a mortgage is not a "similar file").
Swan v. Dep't of Justice, No. 90-1542 (D.D.C. May 16, 1991) (Exemption 7(C): this case is distinguished from Reporters Committee because it concerns a request for an entire investigative file on a single individual rather than just a rap sheet, and the release of each document in that file cannot be considered categorically to invade the privacy of that individual; defendant agency must examine each document in the file and determine whether its release would invade the privacy of the subject of investigative interest or any other individual; defendant must file within 60 days a supplemental Vaughn Index for all documents and portions of documents that the government sought to withhold under Exemption 7(C) and that were not covered in the previous index).
Tax Analysts v. Dep't of Justice, 759 F. Supp. 28 (D.D.C. 1991) (attorney fees: the public benefit is minimal in this case where a nonprofit tax organization that disseminates news and information successfully sued the government; while it gained the benefit of more prompt reporting of publicly available court decisions, no new information was disclosed to the public as a result of this litigation; nonprofit tax organization had a personal interest in securing easy, efficient access to district court opinions; defendant agency had a reasonable basis in law for denying plaintiff access to district court opinions in the agency's possession; while the results plaintiff sought may not have been "at odds with the goals of the FOIA," the court finds that it was nevertheless not the result Congress intended when it enacted the FOIA; attorney fees denied).
United States v. Metro. St. Louis Sewer Dist., No. 88-543-C4 (E.D. Mo. Jan. 14, 1991) (Exemption 5: the protection against release of attorney work-product under the FOIA is absolute; the attorney work-product privilege protects draft consent decrees; the deliberative process privilege protects draft documents which reflect agency predecisional thinking).
Wagner v. FBI, No. 90-1314, 1991 U.S. Dist. LEXIS 7506 (D.D.C. June 4, 1991) (Exemption 2: DEA properly withheld numbers that classify violators of narcotic laws, narcotics organizations, types of criminal activities, geographic areas, and other aspects of the narcotics trade because such information is predominantly "internal" and also because its disclosure would risk circumvention of agency law) (Exemption 3 [Rule 6(e)]: defendant properly withheld 11 pages of a transcript of a third party's grand jury testimony) (Exemption 5: the attorney work-product privilege protects documents that include trial preparation, notes on trial strategy, and notes for opening and closing arguments) (Exemption 6: the exemption protects the home address of a Deputy U.S. Marshal) (Exemption 7(C): protects the names of informants, third parties, and a low-level employee of Justice Department's Tax Division) (Exemption 7(D): exemption protects the identities of and information provided by confidential informants and a local law enforcement agency) (Exemption 7(E): protects detailed investigative methods employed by DEA, such as surveillance and undercover techniques) (Exemption 7(F): protects the identities of DEA agents who routinely operate undercover in narcotics investigations) (mootness: plaintiff's claims as to defendants' timeliness are moot because defendants have now processed all of plaintiff's requests and released all responsive documents not withheld under exemptions).
Wash. Post Co. v. DOD, 766 F. Supp. 1 (D.D.C. 1991) (Exemption 1 [E.O. 12,356]: the working files of the failed attempt in 1980 to rescue American hostages held in the United States embassy in Teheran meet the substantive criteria of E.O. 12,356; the procedural requirements were met also because an individual with Top Secret classification and declassification authority personally reviewed and reassessed every classification decision made after the FOIA request was filed; the agency has the burden of proof when comparing publicly disclosed information with the information being withheld, determining whether the information is identical and, if it is not, determining whether the release of slightly different information would harm the national security; defendant agency is ordered to make a sufficiently detailed justification for withholding the names of several agencies whose involvement in the hostage rescue attempt has been officially acknowledged; defendant agency must also give a sufficient justification for withholding several code names and information from a specific source that have been revealed in books by high government officials who have a good deal of reliability; finally, defendant agency is required to explain its withholding of "open secrets" information which is easily discernible through officially released information) (agency records: a transcript of a congressional hearing in executive session that Congress turned over to a witness for correcting and emending is not an "agency record" for purposes of the FOIA).
Wash. Post Co. v. Dep't of State, No. 79-2688 (D.D.C. June 21, 1991) (in light of Reporters Committee, grants defendant's motion for summary judgment and dismisses this long-pending Exemption 6 case concerning harm to be expected from disclosure of the possible U.S. citizenship status of a former Iranian official).
Wiley, Rein & Fielding v. Dep't of Commerce, No. 90-1754 (D.D.C. May 8, 1991) (attorney fees: plaintiff is denied attorney fees in this FOIA action because it was denied access to most of the documents it sought and because the court rejected 2 of the legal arguments upon which plaintiff relied).
Williams v. Executive Office for United States Attorneys, No. 89-3071, 1991 U.S. Dist. LEXIS 3269 (D.D.C. Mar. 19, 1991) (collateral estoppel: plaintiff is collaterally estopped from pursuing those portions of his present FOIA request that were litigated in 1984) (duty to search: defendant was not required to search for third-party records because plaintiff had not obtained releases from those individuals) (Vaughn Index: although "meager," the defendant agency's index is sufficient to justify the withholding of information under Exemptions 2, 3, 5, 7(C), 7(D), 7(E), and 7(F)) (exhaustion: before the court can consider plaintiff's request for a fee waiver, the plaintiff must first exhaust his administrative remedies).
Williamson v. INS, No. H-89-3421 (S.D. Tex. Apr. 11, 1991) ("exceptional circumstances"/"due diligence": grants defendant's motion for an Open America stay, because defendant was confronted with a deluge of FOIA requests during 1988 and 1989 and it has been responding to these requests on a "first-in/first-out" basis).
Wilson v. CIA, No. 89-3356 (D.D.C. Mar. 25, 1991) (fee waiver (Reform Act): an agency may not deny a fee waiver request based upon the likelihood that a category of information will be withheld).
Wilson v. Dep't of Justice, No. 87-2415, 1991 WL 111457 (D.D.C. June 13, 1991) (Exemption 1 [E.O. 12,356]: defendant agency's affidavits demonstrate that information withheld about the Egyptian American Transport and Service Company (EATSCO) meets the procedural and substantive requirements of the executive order; however, the defendant agency must submit a supplemental affidavit because it has not adequately explained whether information in one document is already in the public domain and whether it was properly classified) (Exemption 2: transmittal slips showing that documents were sent and received by lower-level officials at the State Department are of little public interest and may be withheld) (Exemption 5: protection of an attorney's notes taken at a settlement negotiation is central to the attorney work-product privilege; the privilege extends to a State Department attorney who did not have primary responsibility for prosecuting EATSCO, but was involved in preparing for that litigation; the privilege applies wherever the prospect of litigation is identifiable; because the attorney work-product privilege applies to documents as a whole, the State Department properly withheld the documents regarding its attorney's impressions of settlement negotiations) (Exemption 6: applying Reporters Committee, finds that the defendant agency may withhold the name of an individual who wrote a letter to his Congressman and also the name of another individual who is under investigation, even if that person were General Richard Secord, because the public interest in disclosure is minimal and it would not show "what the government was up to").
Wilson v. Dep't
of Justice, No. 87-2415 (D.D.C. June 18, 1991) (in camera inspection: because
the defendant agency's affidavits are inadequate for the court to determine
whether information has been properly withheld under Exemptions 1 [E.O. 12,356]
and 3 [50 U.S.C.
Wrenn v. Kemp, No. 90-1063 (D.D.C. Apr. 30, 1991) (summary judgment granted to defendants because no records requested under the FOIA have been improperly withheld from plaintiff). (posted 9/30/03)
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