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New FOIA Decisions, January-March 2004

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of January through March 2004. OIP encourages all agencies to make use of telefax transmission -- to (202) 514-1009 -- in forwarding recent FOIA decisions for timely compilation in FOIA Post.


Appeals Courts

Dillard v. Dep't of the Treasury, 87 F. App'x 524 (6th Cir. 2004) (duty to search: district court properly found that the defendant agency has demonstrated that it conducted an adequate search for records about plaintiff even though no records were located) (in camera inspection: it was not error for the district court to deny plaintiff's motion for in camera review, because there were no records to review).

Hall v. Mueller, 84 F. App'x 814 (9th Cir. 2003) (district court properly found that plaintiff failed to raise a genuine issue of material fact as to whether the FBI improperly withheld information under Exemptions 1, 2, and 7(C)).

Holmes v. Chao, 90 F. App'x 188 (8th Cir. 2004) (per curiam) (finds, without elaboration, that district court properly dismissed plaintiff's FOIA action for failure to exhaust administrative remedies).

Judicial Watch, Inc. v. United States, 84 F. App'x 335 (4th Cir. 2004) (duty to search: 2-to-1 decision; district court properly found that defendant agency conducted a reasonable search in response to plaintiff's FOIA request; on appeal, the requester is challenging the adequacy of the IRS's search on entirely different grounds and the appeals court will address issues not raised at the district court level only under exceptional circumstances) (Vaughn Index: defendant agency's declarations are sufficient) (Exemption 6: district court properly found that the exemption protects the names of lower-level IRS employees contained in a correspondence control log; information certainly meets the "similar files" threshold; employees' "not insubstantial" privacy interests outweigh the "virtually non-existent" public interest in disclosure) (Exemption 7(C): district court properly found that the exemption protects disclosure of the names and addresses of private individuals who wrote letters about plaintiff, because disclosure would not shed light on the activities of the IRS) (Exemption 5: district court properly found that the deliberative process privilege protects 2 draft legal opinions and information from another 15 pages that consist of advice and recommendations) (dissenting judge would reverse on the applicability of Exemption 6, based upon the entirely mistaken view that the exemption cannot apply to an item of information (i.e., a "mere name") that is not "detailed" information "about" an individual).

Lawrence v. IRS, No. 03-10111, 2003 WL 22075711 (11th Cir. Aug. 14, 2003) (district court properly dismissed this FOIA action as moot as (plaintiff admits) the IRS produced all of the requested records).

Lion Raisins Inc. v. USDA, 354 F.3d 1072 (9th Cir. 2004) (adequacy of agency affidavit: defendant agency's affiant had adequate knowledge of raisin inspections conducted at raisin handlers' facilities and of the potential competitive harm from disclosure of information; district court had an adequate factual basis to decide whether Exemption 4 applied) (in camera inspection: in camera inspection is unnecessary because there is no dispute as to the type of information contained in Line Check Sheets) (Exemption 4: district court's finding that the exemption protected requester's competitors' Line Check Sheets was not clearly erroneous; disclosure would enable requester to infer critical information about its competitors' volume, market share, and marketing strategy in a market where prices for raisins are at a 15-year low and bids for raisin contracts can succeed or fail on margins of a fraction of a cent per pound) (in camera affidavit: remand required for bulk of records, because district court and defendant agency improperly relied on agency's in camera affidavit as a complete substitute for a public affidavit; on remand, the district court must require the submission of detailed public affidavits, testimony, or other material in support of the withholding of investigative reports under Exemption 7(A)) (Exemption 7(A): nothing in the in camera affidavit justifies the withholding of the USDA original copies of requester's Line Check Sheets if the government's originals are identical to the requester's copies, as USDA contends; because requester "already has copies of the documents it seeks from [the agency, the agency] cannot argue that revealing the information would allow [the requester] premature access to the evidence upon which it intends to rely at trial"; court rejects as "farfetched" defendant agency's concern that disclosing copies of the Line Check Sheets would permit requester to "forge or falsify those copies in an attempt to cast doubt on the authenticity of the USDA-retained originals; this category of documents ordered produced "forthwith").

United States v. Mitchell, No. 03-6938, 2003 WL 22999456 (4th Cir. Dec. 23, 2003) ("not an agency" defense: neither the district court nor a private law firm is an "agency" for purposes of the FOIA).

United We Stand Am. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) ("not an agency record" defense: 2-to-1 decision; because the Joint Committee on Taxation's April 28, 1997 request that IRS create records for it manifested a clear intent to maintain control over only the substance of its request and not over the records created by the IRS in response to its request, the records that were then created and retained by the IRS are not "agency records," but solely to the extent that disclosure would reveal the substance of that congressional request; while the IRS insists it has no control over the created records at all and the court has no doubt that the Joint Committee has a practice of retaining control over its communications with the IRS, and notwithstanding the Joint Committee post hoc objections to the release of the requested records, the court did not find in original Joint Committee request a "clear," "contemporaneous," and "specific" congressional intent to control the entireties of the records created; nothing in United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), precludes the redaction of congressionally controlled information from documents that otherwise would meet the definition of "agency records"; case remanded with instructions to determine whether the IRS response can be redacted to protect the confidentiality of the Joint Committee request and, if so, to apply any applicable FOIA exemptions and release any reasonably segregable portions) (waiver of exemptions in litigation: allowing application of underlying exemptions on remand even though agency merely "reserved the right" to invoke them below).

Wickwire Gavin, P.C. v. United States Postal Serv., 356 F.3d 588 (4th Cir. 2004) (Exemption 3 [39 U.S.C. 410(c)(2)]: the Postal Reorganization Act is an Exemption 3 statute; affirms district court ruling that defendant agency properly withheld 13 pages of spreadsheets detailing quantity and pricing information under the "good business practice" exception of the Postal Reorganization Act).

Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (per curiam) (exhaustion: because exhaustion is a prudential consideration rather than an absolute jurisdictional requirement, the district court was not precluded from reaching the merits of plaintiff's FOIA claim under the circumstances presented, despite plaintiff's facial failure to comply with the CIA's appeal deadline) (duty to search: CIA has demonstrated that it conducted an adequate search for records about plaintiff even though no records were located).


District Courts

Aftergood v. CIA, No. 02-1146 (D.D.C. Feb. 6, 2004) (Exemption 3 [50 U.S.C. 403-3(c)(7)]: disclosure of CIA's FY 2002 aggregate intelligence budget would reveal the allocation, transfer, and funding of intelligence programs; because plaintiff seeks the release of one number, it would be impossible to segregate information for this request).

Albino v. USPS, No. 01-C-563-C, 2002 WL 32345674 (W.D. Wis. May 20, 2002) (proper party defendant: individual agency employees are not proper party defendants under the FOIA) (duty to search: defendant agency did not conduct reasonable searches in 3 of the 4 contested categories of information requested by plaintiff; grants plaintiff's motion to compel defendant agency to produce the requested records) (disciplinary proceedings: plaintiff has not demonstrated that an agency official acted in an "arbitrary and capricious" manner) (attorney fees: plaintiff substantially prevailed in this action because defendant agency did not respond to his FOIA request until after this lawsuit was filed; pro se plaintiff, who is an attorney, is not entitled to attorney fees under the FOIA, but he may recover reasonable costs).

AutoAlliance Int'l, Inc. v. United States Customs Serv., 300 F. Supp. 2d 509 (E.D. Mich. 2004) (attorney fees: applying Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), finds that plaintiff has substantially prevailed because defendant agency's release of the documents was pursuant to the court's orders for further review of the withheld records and a result of in camera review; the public benefit is served by holding Customs Service responsible for its failure to release the documents; while plaintiff had a monetary interest in records about dutiable costs, it did not intend to profit from the information; defendant agency's withholding of the documents was unreasonable and it improperly assessed processing fees; court reduces the hourly billing rates for plaintiff's attorneys to $200 per hour; plaintiff's attorneys may not recover fees for time spent on motions that were denied by the court; plaintiff must file a detailed fee petition within 20 days).

Billington v. United States Dep't of Justice, 301 F. Supp. 2d 15 (D.D.C. 2004) (Exemption 6: on motion for reconsideration, after review of defendant agency's in camera affidavit, finds that exemption protects portions of a journalist's "Notes on Interview" because of the author's privacy interest, expectation of confidentiality, and "substantial" fear of retaliation; after conducting a segregability analysis in camera, finds that the author's identity and personal thoughts, third-party names, dates, and a cover letter may be withheld, and all other information not specified by markings of the court must be released; because the court used the journalist's in camera declaration in making this decision, in order to minimize harm to the adversarial system the declaration itself must be "released," with information that would identify the journalist redacted by the court) (Exemption 7(D): defendant agency has demonstrated that the confidential source identified in a 6-page memorandum was provided with an express assurance of confidentiality; because the court used the source's in camera declaration in making this decision, in order to minimize harm to the adversarial system the declaration must be "released," except for information specified by markings of the court) ("reasonably segregable": after conducting in camera a segregability review of 3 disputed documents, orders that all personally identifying information may be withheld and all other information not specified by markings of the court must be released).

Buckles v. Indian Health Serv./Belcourt Serv. Unit, No. A4-02-133, 2004 WL 231482 (D.N.D. Feb. 5, 2004) (plaintiff's FOIA claim must fail because he never requested production of documents; even if he had, the investigative report in question would be protected by Exemption 5's deliberative process privilege because it is predecisional and deliberative).

Burr v. Huff, No. 04-C-53-C, 2004 WL 253345 (W.D. Wis. Feb. 6, 2004) (in this FOIA action, finds that plaintiff's Complaint is legally frivolous and "rise[s] to the level of the irrational or the wholly incredible" because she has not demonstrated that the FBI actually has documents about her in connection with an alleged "bomb complaint" against Green Bay Packers quarterback Bret Farve and his wife).

Canning v. United States Dep't of Justice, No. 01-2215 (D.D.C. Mar. 9, 2004) (Exemption 7(D): on in camera inspection, finds that defendant agency has not shown that 3 letters between a third party and federal and state law enforcement agencies concerning a kidnapping investigation were written under implied assurances of confidentiality; defendant agency's general assertions about the prior convictions for financial crimes by members of the Lyndon LaRouche organization and its general assertions about the nature of the organization do not support a finding of an implied promise of confidentiality; records must be released; exemption protects correspondence between 2 third-party attorneys because the exemption was not waived when this letter was given to the Justice Department; defendant agency properly withheld 3 letters because the nature of the information in them concerning the kidnapping created an implied assurance of confidentiality) (Exemption 5: correspondence between a private attorney and his client does not meet the "inter- or intra-agency" threshold of the attorney-client privilege and the privilege was waived when the letter came into the possession of the Justice Department; records must be released) (Exemption 7(C): on in camera inspection, finds that defendant agency has demonstrated that 11 records were properly withheld in whole or in part under this exemption and indicates which portions of another 25 records must be segregated and released; plaintiff has not demonstrated that specific withheld information is in the public domain).

Coldiron v. United States Dep't of Justice, 310 F. Supp. 2d 44 (D.D.C. 2004) (duty to search: in this FOIA action where plaintiff seeks information from the FBI related to the revocation of her security clearance, finds that the FBI conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 1 [E.O. 12,958]: disclosure of information pertaining to the revocation of plaintiff's security clearance could damage national security by revealing an intelligence activity or method directed at a target of national security interest during a specified timeframe, the criteria used by the FBI in determining what actions warrant the commencement of an investigation, and the cooperation of foreign governments) (Vaughn Index: the FBI affidavit is necessarily repetitive because much of the classified information in these documents concerns the same classified subject; because the FBI has shown that it has "tailored its response" to documents requested by plaintiff, the court will not second-guess its "facially reasonable concerns") ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Dorsett v. United States Dep't of the Treasury, 307 F. Supp. 2d 28 (D.D.C. 2004) (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request; defendant agency properly referred records to the originating agencies for processing and it need not release those records to plaintiff when the originating agencies already have done so; the search is not inadequate just because it failed to uncover every document plaintiff seeks) (Vaughn Index: defendant agency's Vaughn Index is sufficiently detailed) (Exemption 2 "high": protects internal investigative information used by the Secret Service to analyze and profile individuals of interest to it and who might pose a threat to a Secret Service protectee; although by itself the information may be "relatively harmless," in the aggregate disclosure could benefit those attempting to violate the law and avoid detection) (Exemption 5: the deliberative process privilege protects documents that contain the opinions and preliminary evaluations of Secret Service Special Agents concerning plaintiff's and other individuals' levels of threat to Secret Service protectees) (Exemption 7(C): protects the names of Secret Service Special Agents, Intelligence Research Specialists, other Secret Service employees, FBI Special Agents, a Marshals Service Specialist, and local law enforcement employees; this type of information "is routinely considered protected by Exemption 7(C)"; there is no public interest that outweighs the substantial privacy interests at stake) ("reasonably segregable": defendant agency has not shown that all reasonably segregable, nonexempt information has been released; within 30 days, it must file a renewed motion for summary judgment setting forth its segregability analysis as it relates to 14 documents withheld in their entireties) (jurisdiction: court has jurisdiction only to order production of improperly withheld information; it cannot "make advisory findings of legal significance on the character of the agency conduct").

Duggan v. United States Dep't of Justice, No. 03-10260 (D. Mass. Jan. 28, 2004) (jurisdiction: court lacks jurisdiction because plaintiff has not exhausted his administrative remedies by sending his FOIA request to the agencies that possess the records he seeks).

Edmonds v. FBI, 310 F. Supp. 2d 55 (D.D.C. 2004) (attorney fees: in this FOIA action where a whistleblower-plaintiff seeks information related to her employment in the FBI's translator program, court applies Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and finds that plaintiff is not eligible for an award of attorney fees; the government's voluntary production of 2 documents prior to any court ruling and the successful prosecution of a motion for expedited processing do not make plaintiff a "prevailing party" for the purpose of an award of attorney fees because there was no "judicially sanctioned change in the legal relationship of the parties").

Elec. Privacy Info. Ctr. v. United States Dep't of Justice, 322 F. Supp. 2d 1 (D.D.C. 2003) (jurisdiction: administrative exhaustion is not a jurisdictional prerequisite to judicial review for purposes of the expedited processing provision of the 1996 FOIA amendments, agency regulations to the contrary notwithstanding) (expedited processing: plaintiff has not shown that there is a "compelling need" for expedited processing of its FOIA request for information about a "lobbying campaign" in which United States Attorneys had been asked to participate; the statutory reasons for expediting a request are to be "narrowly construed"; finds that "the appearance of thirty-one newspaper articles does not make a story a matter of 'current exigency,'" and observing that the "U.S. Attorney mobilization story apparently did not have 'legs'"; there is no "urgency to inform" the public about this government activity, nor is it a matter of widespread and exceptional media interest).

Ellis v. IRS, No. 02-PC-1976, 2003 U.S. Dist. LEXIS 24829 (D. Colo. 2003) (jurisdiction: court lacks jurisdiction because all responsive documents were provided to the FOIA requester before the commencement of this lawsuit).

Escamilla v. Fed. Bureau of Prisons, No. 01-1136 (D.D.C. Mar. 3, 2004) (on in camera inspection, finds that a 64-page investigative report is exempt from disclosure under Exemptions 7(C) and 7(F), except for any references to plaintiff).

Flathead Joint Bd. of Control v. United States Dep't of the Interior, 309 F. Supp. 2d 1217 (D. Mont. 2004) (Exemption 4: in this FOIA case where plaintiff seeks information concerning allocation of water rights on the Flathead Reservation, finds that information concerning the Tribes' water rights is "commercial" because it is information that creates the Tribes' negotiating position, supports their claims, and results in maximizing the Tribes' position; disclosure of 4 categories of information would impede government functioning and would harm the competitive position of the Tribes; all information developed for the purpose of water quantification and information regarding the development of the Tribes' water-rights claim in the agency's Montana proceeding may be withheld; all information regarding the use and development of computer models for determining the Tribes' water quantity is protected, except for 4 documents that describe only how the Tribes intend to proceed in determining the amount of water available to them; all information regarding tribal budgets and funding proposals is properly protected, except for a draft proposal for water-rights negotiation that can and should be released with the numbers redacted) (Exemption 5: the deliberative process, attorney-client, and attorney work-product privileges protect federal officials' notes, reports, legal deliberations and advice, discussion papers, and documents concerning contracts and funding; applying Department of the Interior v. Klamath Water Users Protective Association and Dow Jones & Co. v. Department of Justice, finds that the deliberative process and attorney work-product privileges do not protect a draft letter and analyses prepared for the Montana litigation proceedings that were shared with the Tribes).

Flowers v. IRS, 307 F. Supp. 2d 60 (D.D.C. 2004) (exhaustion: plaintiff failed to exhaust her administrative remedies with respect to her first FOIA request because she did not perfect it in accordance with the agency's FOIA regulations, so judicial review would prematurely interfere with agency processes) (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's second FOIA request; the IRS's destruction of her records comports with its published document-retention schedules, and it is a "non-suspect reason" for such destruction) (discovery in FOIA litigation: granting plaintiff's request for discovery on the IRS's motives in selecting her for a tax audit "would impermissibly expand the limited scope of FOIA discovery").

Fontanez v. United States Customs Serv., 293 F. Supp. 2d 51 (D.D.C. 2003) (adequacy of search: defendant agency has demonstrated that it conducted reasonable searches in response to plaintiff's FOIA request for records about himself).

Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d 21 (D.D.C. 2003) (summary judgment: the question of whether an agency complied with the FOIA's time limits becomes moot after the documents are produced, and it does not preclude an award of summary judgment) (duty to search: defendant agency has conducted a reasonable search in response to plaintiff's FOIA request; defendant agency need not work backward to produce "each and every" document related to a construction project, nor conduct an additional search each time a FOIA requester clarifies a prior request; defendant agency's failure to raise Exemption 5 in a timely manner does not affect the court's finding on the search issue) (Exemption 3 [41 U.S.C. 253b(m)(1)]: the National Defense Authorization Act of 1997 protects those proposals submitted by prospective contractors in response to a solicitation that are not incorporated into the final contract; [16 U.S.C. 5901]: the National Parks Omnibus Management Act of 1979 protects information about rare or commercially valuable resources found within Shenandoah National Park; [16 U.S.C. 470w-3(a)]: defendant agency has not demonstrated that 3 documents and portions of a fourth are protected by the confidential research privilege that is contained in the National Historic Preservation Act of 1966; that information must be disclosed) (Exemption 5: the deliberative process privilege protects federal officials' notes and reports, work plans, status reports, briefings, opinion papers, proposals, draft documents, and construction cost estimates because they are predecisional and part of a specific policymaking process behind the project; the attorney-client privilege protects documents that contain facts given to an attorney by Forest Service employees for the purpose of obtaining legal advice, as well as legal advice given to Forest Service employees by the attorney) (Exemption 6: protects personal phone numbers and names and addresses of individuals because this information is personal and there is little, if any, public interest in disclosure) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Jackson v. United States Attorneys Office, Dist. of N.J., 293 F. Supp. 2d 34 (D.D.C. 2003) (adequacy of search: defendant agency has not demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request; within 90 days, defendant agency must submit more detailed affidavits describing the processes and procedures that it followed) (Exemption 5: the attorney work-product and deliberative process privileges protect 2 pages of notes prepared during the investigation of plaintiff's perjury complaint and in anticipation of litigation, even though litigation did not ensue).

Jefferson v. Reno, No. 96-1284, 2001 WL 34373012 (D.D.C. Aug. 27, 2001) (on in camera inspection of 11 records withheld in whole and in part under Exemptions 2, 7(C), 7(D), and 7(F), finds that certain information in 3 of the documents must be disclosed to plaintiff within 3 days, because these portions consist of segregable, nonexempt information) (Exemption 7 (threshold): requirement met by records created by local law enforcement agencies and compiled by the United States Attorney's Office in the course of a criminal prosecution).

Jones v. Army Air Force Exchange Serv., No. 3:00-CV-0535, 2002 WL 32359949 (N.D. Tex. Oct. 17, 2002) (grants judgment to the defendant agency in this FOIA action because it has demonstrated that either it provided plaintiff with the records he seeks or the records responsive to his request do not exist).

Judicial Watch v. United States Dep't of Justice, No. 99-1883 (D.D.C. Sept. 11, 2003) (exhaustion: plaintiff has not exhausted its administrative remedies with respect to the FBI's denial of its blanket request for a fee waiver) (fees: in accordance with its regulations, the FBI properly closed the uncompleted portions of plaintiff's FOIA request after plaintiff failed to pay $46.20 in duplication fees for documents released to it and failed to indicate its willingness to pay an estimated $14,790 in duplication and search fees to complete its FOIA request).

Judicial Watch, Inc. v. United States Dep't of Justice, 306 F. Supp. 2d 58 (D.D.C. 2004) (Exemption 1 [E.O. 12,958]: in this FOIA case where plaintiff requested information about Enron Corporation and its former chairman, Kenneth Lay, finds that disclosure of foreign government information could damage national security) (Exemption 3 [26 U.S.C. 6103(b)(2)]: protects tax-return information of a third-party corporate taxpayer) (Exemption 4: protects records that Enron voluntarily submitted to the government concerning its involvements in India, Bangladesh, the Dominican Republic, Mongolia, Vietnam, Qatar, and Turkey with the expectation that they would be kept confidential and that contain information that Enron ordinarily would not divulge to the general public) (Exemption 5: because they are predecisional and deliberative, the deliberative process privilege protects staff member's handwritten notes on an invitation from Kenneth Lay to the Attorney General to speak at a business council, e-mail exchanges concerning policy implications of the Enron collapse, a draft order, a memorandum on the restructuring of the electrical industry, and an issue paper and drafts of that paper concerning the trade effect of welded line pipe imports; the Treasury Department must provide plaintiff with one e-mail message that it has not shown to be deliberative; the attorney-client privilege protects an internal agency request for legal advice from the general counsel and the general counsel's response, internal Treasury Department e-mail exchanges concerning an ethics issue, and weekly office reports, because they contain confidential communications between an attorney and his clients; FERC must release one document because it has not demonstrated that it is protected by the attorney-client privilege) (Exemption 7(A): protects documents concerning the SEC's investigation of Enron because premature disclosure could reveal the scope and direction of the investigation).

Judicial Watch, Inc. v. United States Dep't of Justice, No. 02-348 (D.D.C. Mar. 9, 2004) (in the interest of conservation of judicial resources, orders defendant agency to produce under seal 13 withheld pages of documents for in camera inspection; denies defendant agency's request that the court review 5 declarations that total over 200 pages pertaining to the reasons for withholding the 13 pages before making the determination that in camera review is necessary).

Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252 (D.D.C. 2004) (Exemption 5: in this FOIA case where plaintiff seeks various records concerning defendant agency's decisions regarding the discovery of anthrax at postal facilities in October 2001, finds that defendant agency's affidavit is insufficient for adjudication of its claim of Exemption 5 privileges; defendant agency has not shown that records withheld in whole and in part under the deliberative process privilege were predecisional or deliberative, including 12 pages of draft anthrax sampling procedures, almost 200 pages of draft chronologies, 55 pages of briefing materials prepared for congressional testimony, 28 pages of meeting notes, 33 pages of agency correspondence and memoranda, and 83 pages of informational documents; defendant agency has not shown that 15 pages were properly withheld in whole or part under the attorney-client privilege; it has shown that its attorney-client privilege was properly claimed with respect to 2 e-mail messages, but failed to offer a segregability analysis; defendant agency has not shown that 11 pages were properly withheld in whole or part under the attorney work-product privilege; defendant must release by March 1, 2004 all information that does not fall within one of the 3 Exemption 5 privileges, as defined in the opinion; by March 19, 2004, defendant agency must produce a comprehensive Vaughn Index describing and explaining the withholding of each document in full or in part).

Lathrop v. Juneau & Assocs., Inc., 220 F.R.D. 330 (S.D. Ill. 2004) ("not an agency" defense: a city is not an "agency" for purposes of the FOIA).

Lathrop v. Juneau & Assocs., Inc., 220 F.R.D. 322 (S.D. Ill. 2004) ("not an agency" defense: a municipal government is not an "agency" for purposes of the FOIA).

McMillan v. Togus Reg'l Office, VA, No. 03-CV-1074, 2003 WL 23185665 (E.D.N.Y. Nov. 18, 2003) (jurisdiction: without further elaboration, finds that subject matter jurisdiction is lacking because plaintiff failed to exhaust his administrative remedies under the FOIA).

Pinnavaia v. FBI, No. 03-112 (D.D.C. Feb. 25, 2004) (duty to search: defendant agency has conducted a reasonable search of its headquarters office in response to plaintiff's FOIA request) (Exemption 1 [E.O. 12,958]: defendant agency properly withheld portions of records whose disclosure could reasonably be expected to harm national security) (Exemption 2 "low": protects telephone and facsimile numbers of FBI offices, Special Agents' beeper numbers, cell phone numbers, a FedEx account number, and an FBI-assigned radio frequency; "high": disclosure of the source symbol number given to a confidential informant could result in the disclosure of the source's identity or the identity, scope, and location of FBI source coverage within a particular geographic area) (Exemption 3 [Rule 6(e)]: protects records that are under a court-ordered seal, including federal grand jury subpoenas, information that would identify individuals subpoenaed to testify, information that would identify specific records subpoenaed by the grand jury, and the dates of the grand jury's meetings) (Exemption 7(C): protects the identities of subjects of investigative interest to the FBI, third parties, FBI Special Agents, FBI support personnel, and foreign law enforcement personnel; individuals' privacy interests outweigh any public interest in disclosure) (Exemption 7(D): protects information provided to the FBI by New Scotland Yard, because there is an express agreement of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been released), subsequent opinion (D.D.C. Feb. 25, 2004) (duty to search: defendant agency has conducted a reasonable search of its San Diego field office in response to plaintiff's FOIA request) (Exemption 1 [E.O. 12,958]: disclosure of file numbers and numerical designators, a characterization of a case, designations for a foreign counterintelligence unit, and targets of FBI counterintelligence investigations would reveal intelligence activities, intelligence sources, methods, or cryptology and would impair relations between the United States and a foreign government or undermine ongoing diplomatic activities) (Exemption 2 "low": protects telephone numbers of FBI offices, administrative markings, and instructions from FBI Special Agents; "high": disclosure of the source symbol number given to a confidential informant could result in the disclosure of the source's identity or the identity, scope, and location of FBI source coverage within a particular geographic area) (Exemption 7(A): protects 13 pages of cross-references pertaining to FBI investigations of targeted individuals, because disclosure could harm the investigation by prematurely revealing the nature, scope, and direction of the investigation) (Exemption 7(C): protects the identities of FBI Special Agents and FBI support personnel) (Exemption 7(D): protects the identities of and information provided by individuals assigned permanent-source numbers, because these individuals provide information to the FBI under express promises of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Reed v. Executive Office for United States Attorneys, No. 02-2092 (D.D.C. Mar. 5, 2004) (exhaustion: denies government's motion to dismiss; on administrative appeal, after notifying plaintiff that it was no longer claiming Exemption 7(A), defendant agency's appellate office reconsidered its determination and advised plaintiff that the requested records would be withheld under Exemption 7(A) and informed him of his right to judicial review; plaintiff has not bypassed the administrative process; there have been 2 levels of review and there is an adequate record for judicial review; plaintiff has exhausted his administrative remedies).

Robbins v. United States Bureau of Land Mgmt., 219 F.R.D. 685 (D. Wyo. 2004) (in this FOIA action, plaintiff may not move for discovery of the very documents that are the subject of this litigation).

St. Andrews Park, Inc. v. United States Dep't of the Army, Corps of Eng'rs, 299 F. Supp. 2d 1264 (S.D. Fla. 2003) (duty to search: defendant agency has not conducted a reasonable search for records in response to plaintiff's FOIA request for records about St. Andrews Park; plaintiff received from a third party 37 e-mail messages that defendant agency did not produce to plaintiff; defendant agency searched only the network server and not the individual hard drives of pertinent agency employees and did not set forth the search terms it used in its affidavit) (Vaughn Index: on in camera inspection, finds that defendant agency's Vaughn Index is insufficient because material issues of fact exist about 8 "string" e-mail messages withheld under Exemption 5) (within 20 days, defendant agency must conduct a good-faith search for the requested records, produce an adequate Vaughn Index, and respond to plaintiff's appeal of the initial denial of its FOIA request).

Troyer v. IRS, No. 01-C-476, 2001 WL 34377330 (W.D. Wis. Dec. 20, 2001) (proper service of process: in this civil action under the FOIA, finds that waiver of personal service of process is not applicable to the United States and its officials and agencies; allows plaintiff until January 7, 2002 to file proof of service of the summons and Complaint upon the defendant agency and the United States or the case will be dismissed for failure to prosecute).

Troyer v. McCallum, No. 03-C-0143-C, 2002 WL 32365922 (W.D. Wis. Mar. 14, 2002) (jurisdiction: the FOIA applies to federal agencies; it creates no obligations for state agencies).

Venetucci v. Powell, No. 03-0724 (D.D.C. Dec. 31, 2003) (proper party defendant: dismisses individual agency employees as defendants to this action; the proper party defendant in a FOIA suit is the agency) (exhaustion: plaintiff has not exhausted his administrative remedies because he failed to send his FOIA request to the proper agency official in accordance with the State Department's FOIA regulations).

Walsh v. VA, No. 03-C-0225 (E.D. Wis. Feb. 10, 2004) (mootness: plaintiff's FOIA case is moot because all of the records he requested have been provided to him) (declaratory relief: denies plaintiff's request for declaratory relief; defendant agency's failure to comply with FOIA time limits constitutes constructive exhaustion only and is not a practice that is "capable of repetition, yet evading review") (jurisdiction: because the FOIA explicitly provides for judicial review of agency decisions to withhold information requested under it, plaintiff has no separate claim under the Administrative Procedure Act).


Other Courts

Bernard v. United States, 59 Fed. Cl. 497 ( 2004) (jurisdiction: the Claims Court does not have jurisdiction over FOIA matters).  (posted 4/2/04)


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