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The following is the final retrospective compilation of Freedom of Information Act case summaries prepared by the Office of Information and Privacy. OIP plans to consolidate all available case summaries for all years prior to 2004 into a single, keyword-searchable case compilation later this year. See FOIA Post, "Compilations of FOIA Decisions Now Cover Past Fifteen Years" (posted 12/31/03).
Supreme Court
Durns v. Bureau of Prisons, 486 U.S. 1029 (1988) (certiorari granted, vacated, and remanded in light of recent decision in Julian v. Department of Justice on first-party access to presentence reports).
Julian v. Dep't
of Justice, 486 U.S. 1 (1988) (Exemption 3: exemption permits agency to
withhold only those portions of a presentence report that are expressly protected
by Rule 32(c) or the Parole Act, 18 U.S.C.
Long v. IRS, 487 U.S. 1201 (1988) (certiorari granted, vacated, and remanded in light of recent decision in Church of Scientology v. IRS on disclosure of tax-return information).
Appeals Courts
Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309 (D.C. Cir. 1988) (Exemption 7(A): defendant agency need not release to a company copies of its own corporate records that were provided to the agency by a third party, where company is not aware of the scope and focus of defendant agency's investigation and employee-informants could be subjected to potential reprisals, discouraging cooperation in future investigations) (summary judgment: "a motion for summary judgment adequately underpinned is not defeated simply by a bare opinion or an unaided claim that a factual controversy exists") (de novo review: although the district court gave the government's affidavits "substantial weight" in a case that did not involve national security issues, the court's opinion provides ample evidence that the parties' submissions were reviewed in their entirety).
Arenberg v. DEA, 849 F.2d 579 (11th Cir. 1988) (Exemption 7 (threshold): records compiled by a law enforcement agency in the course of a criminal investigation of a particular individual satisfy the threshold requirement of the "per se" test, as well as the 2-part standard of the D.C. Circuit).
Assassination Archives & Research Ctr., Inc. v. CIA, No. 88-5315 (D.C. Cir. Oct. 13, 1988) (denies plaintiff's motion for summary reversal of trial court's denial of its motion for expedited processing of a FOIA request).
Calhoun v. Lyng, 864 F.2d 34 (5th Cir. 1988) (Exemption 4: affidavits from Farmers Home Administration (FmHA) officials and a letter from a contract appraiser were sufficient to prove that appraisal documents used by the FmHA in establishing loan valuations are exempt from disclosure under both prongs of the confidentiality test).
Capuano v. NTSB, 843 F.2d 56 (1st Cir. 1988) (Federal Register publication: the enforcement section of agency's employee manual qualifies as an administrative staff manual and therefore need not be published).
Constangy, Brooks & Smith v. NLRB, 851 F.2d 839 (6th Cir. 1988) (mootness: granting full access to requested documents terminates a FOIA action) (attorney fees: mootness of appeal does not affect a party's ability to seek attorney fees).
Cosby v. Ward, 843 F.2d 967 (7th Cir. 1988) (Federal Register publication: "general administration letters" circulated by a federal agency to state agencies were not binding regulations because they were not published in the Federal Register).
Crooker v. Dep't of Justice, No. 87-5372 (D.C. Cir. Apr. 7, 1988) (without an opinion, grants summary affirmance where the district court denied plaintiff access to his presentence report on the basis of res judicata; other FOIA claims for access are moot because agency had granted full disclosure).
In re United States DOD, 848 F.2d 232 (D.C. Cir. 1988) (denies government's petition for a writ of mandamus to revoke the appointment of a special master to review documents in this national security case; this case meets the criterion of the "exceptional condition" test of Rule 53, because special expertise is required to review 14,000 pages of national security records; district court acted within its discretion when it appointed a security-cleared master to make a representative sampling of documents for the court's examination, due to the fact that alternative methods of document review were infected with serious problems), reh'g denied, No. 88-5044 (D.C. Cir. Sept. 1, 1988).
In re United States Dep't of Justice, No. 87-1205 (4th Cir. Apr. 7, 1988) (grants government a writ of mandamus requiring the district court to obtain security clearances for its law clerks before proceeding with in camera inspection of classified documents).
DeSalvo v. IRS,
861 F.2d 1217 (10th Cir. 1988) (Exemption 3 [26 U.S.C.
FLRA v. Dep't of the Treasury, No. 87-1107 (D.C. Cir. May 11, 1988) (union request for federal employees' names and home addresses held in abeyance pending a decision by the Supreme Court in Reporters Committee).
Gaunce v. Burnett, No. 85-5995 (9th Cir. June 13, 1988) (unpublished memorandum), 849 F.2d 1475 (9th Cir. 1988) (table cite) (adequacy of request: plaintiff's request was unreasonably vague) (subsection (a)(2): the FOIA allows copies of agency orders to be "offered for sale") (interaction of (a)(2) & (a)(3): the FOIA requires only that the agency make records available, not that it make them available in the location of plaintiff's choosing).
Hamilton v. IRS, No. 87-3520 (9th Cir. Dec. 23, 1987) (unpublished memorandum), 835 F.2d 1435 (9th Cir. 1987) (adequacy of search: agency is not required by the FOIA to make a nationwide search for records when a request is made to one field office), reh'g denied (9th Cir. Jan. 27, 1988).
Heckman v. Executive Branch, United States Fed. Gov't, 823 F.2d 544 (2d Cir. 1987) (affirms district court ruling that government's search was adequate).
Hinton v. Dep't
of Justice, 844 F.2d 126 (3d Cir. 1988) (Vaughn Index: under 28
U.S.C.
Int'l Bhd. of Elec. Workers v. HUD, 852 F.2d 87 (3d Cir. 1988) (where union requested payroll reports of a federal contractor, releases names and addresses, but not social security numbers).
Irons v. FBI, 851 F.2d 532 (1st Cir. 1988) (Exemption 7(D): an informant who testifies at trial abandons his expectation of continued confidentiality regarding all information that is "sufficiently closely related to the subject matter of the informant's trial testimony"), vacated & reh'g en banc granted, No. 87-1516 (1st Cir. Sept. 20, 1988).
John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir. 1988) (Exemption 7 (threshold): audit documents were not "compiled" for law enforcement purposes because they were "generated" by agency in the course of its routine monitoring of contracts and were later commingled with investigative materials) (Exemption 3 [Rule 6(e)]: documents that are otherwise publicly available do not become confidential simply because they are presented before a grand jury) (discovery/FOIA interface: although the FOIA was not intended to be a device enlarging the scope of private discovery, the statute compels the disclosure of nonexempt documents to "any person") (Vaughn Index: Vaughn Index cannot be withheld from plaintiff because the exemption itself does not protect the documents).
John Doe Corp. v. John Doe Agency, No. 88-6098 (2d Cir. Nov. 8, 1988) (rehearing en banc denied in an Exemption 7 (threshold) case that held that audit documents were not "compiled" for law enforcement purposes where they were "generated" by the agency in the course of its routine monitoring of contracts and only later became part of an investigative file), stay denied (2d Cir. Nov. 28, 1988).
Journal of Commerce,
Inc. v. Dep't of the Treasury, No. 88-5194 (D.C. Cir. Sept. 22, 1988) (in
a mixed case involving FOIA issues and a genuine Tucker Act claim, the appeal
is transferred to the United States Court of Appeals for Federal Circuit, pursuant
to 28 U.S.C.
Kaganove v. EPA, 856 F.2d 884 (7th Cir. 1988) (Exemption 2: merit promotion plan specifications are "predominantly internal"; "high 2": disclosure of rating system plan for merit promotion would allow potential job applicants to circumvent agency's employment processes).
Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988) (fee waiver: plaintiff failed to demonstrate the ability to disseminate information to the public through the news media).
Larson v. Executive Office for United States Attorneys, No. 85-6226 (D.C. Cir. Apr. 6, 1988) (mootness: defendant agency's denial of appellant's FOIA request renders the appeal of the Open America issue moot).
Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177 (2d Cir. 1988) (Exemption 6: "availability of alternative means of communication coupled with Local 3's status as a rival union bars disclosure of employee names and addresses") (Exemption 5: inter-agency memoranda either summarizing an agent's analysis of a case or recommending dispositions of cases are protected by the deliberative process privilege; segregating factual information would render documents "nonsensical or perhaps too illuminating" of the deliberative process) (discovery/FOIA interface: through discovery plaintiff seeks disclosure of records that agency claims are exempt under the FOIA) (in camera inspection: district court properly exercised its discretion, because defendant agency's affidavit was sufficiently detailed).
Martin v. IRS,
857 F.2d 722 (10th Cir. 1988) (Exemption 3 [26 U.S.C.
Moessmer v. CIA, No. 88-1218 (8th Cir. Nov. 15, 1988) (unpublished memorandum), 871 F.2d 1092 (8th Cir. 1988) (table cite) (affirms district court opinion that release of information would reveal intelligence methods and activities under Exemptions 1 and 3).
Mudge Rose Guthrie
Alexander & Ferdon v. United States Int'l Trade Comm'n, 846 F.2d 1527
(D.C. Cir. 1988) (Exemption 3 [19 U.S.C.
Nat'l Ass'n of Retired Fed. Employees v. Horner, No. 86-5446 (D.C. Cir. May 27, 1988) (organization's request for names and home addresses of retired federal employees held in abeyance pending a decision by the Supreme Court in Reporters Committee).
Nat'l Senior Citizens Law Ctr. v. Soc. Sec. Admin., 849 F.2d 401 (9th Cir. 1988) (attorney fees: in their settlement agreement plaintiffs effectively waived their right to recover attorney fees).
Nat'l Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114 (9th Cir. 1988) (Exemption 5: affirms magistrate's ruling that to qualify under Exemption 5 documents must only be predecisional and deliberative; they do not also have to contain non-binding and advisory recommendations regarding law or policy; in Exemption 5 cases, courts should adopt a "functional" test and focus on whether the document in question is part of the deliberative process, rather than on whether the material itself is deliberative or factual; so long as recommendations do not represent final agency actions, the deliberative process privilege protects working drafts of Forest Plans because they identify and assign priority to the issues deemed relevant to the formulation of policy and also protects opinions that figure heavily in the formulation of policy even though they may be characterized as opinions on facts or the consequences of facts; the deliberative process privilege protects portions of draft EISs representing opinions and recommendations of Forest Service employees on alternative courses of action; when plaintiffs seek to uncover discrepancies between draft proposals and the final agency actions, they are attempting to probe the editorial and policy judgment of the decisionmakers, which is inimical to the goals of Exemption 5; the deliberative process privilege protects "previews" of draft documents prepared by the Washington office, which contain general comments, mostly editorial, on the quality and completeness of draft documents).
Neff v. IRS, 840 F.2d 23 (11th Cir. 1988) (upholds district court grant of summary judgment, but orders that costs taxed against the plaintiff should be retaxed against the defendant).
N.Y. Times Co. v. NASA, 852 F.2d 602 (D.C. Cir. 1988) (Exemption 6: notwithstanding the broad construction given by the Supreme Court to the phrase "similar files" in Department of State v. Washington Post Co., the Space Shuttle Challenger's voice communications tape fails to meet this threshold requirement, because a file is not to be considered "similar" unless, at a minimum, it contains personal information); see dissent (the tape of the voices of the Challenger crew meets the threshold test of applying to a particular individual); vacated & reh'g en banc granted, 860 F.2d 1093 (D.C. Cir. 1988).
NI Indus. v. United States, 841 F.2d 1104 (Fed. Cir. 1988) (Federal Register publication: agency's standard operating procedure was a "substantive rule" which had not been published in the Federal Register and therefore could not be used as a basis for denial of contractor's change proposal).
Painting & Drywall Work Preservation Fund v. HUD, No. 88-5076 (D.C. Cir. June 6, 1988) (union request for names and addresses held in abeyance, sua sponte, pending a decision by the Supreme Court in Reporters Committee).
In re Powell, 851 F.2d 427 (D.C. Cir. 1988) (pro se litigant: denies an injunction restricting pro se litigant's access to court, although federal prisoner's 16 filings (mostly FOIA) in 28 months suggest a litigious propensity, he has had some success in his litigation).
Ray v. Dep't of Justice, No. 88-5299 (6th Cir. Oct. 4, 1988) (unpublished memorandum), 859 F.2d 922 (6th Cir. 1988) (table cite) (affirms lower court's ruling that unredacted documents pertaining to plaintiff's former defense attorney may be withheld under Exemptions 7(C) and 7(D), and its decision to review those documents in camera).
Rochon v. Dep't of Justice, No. 88-5075 (D.C. Cir. Sept. 14, 1988) (Exemption 7 (threshold): it is not unreasonable to conclude that information concerning commission of a crime would have been compiled pursuant to FBI's legitimate law enforcement objectives) (Exemption 7(C): public interest in disclosure does not outweigh a judge's obvious privacy interest in protecting from public scrutiny the sensitive details of her private life; court purports to decide district court's upholding of FBI's "Glomar" denial on other than Glomarization principles, but in fact decides it on precisely those principles), reh'g en banc denied (D.C. Cir. Oct. 24, 1988).
Rosenfeld v.
United States, 859 F.2d 717 (9th Cir. 1988) (attorney fees:
FOIA interim fee award is not a final, appealable order under 28 U.S.C.
Rotondo v. FBI, No. 88-3035 (6th Cir. Aug. 24, 1988) (unpublished memorandum), 856 F.2d 195 (6th Cir. 1988) (attorney fees: following Falcone v. IRS, holds that pro se FOIA plaintiffs who are also attorneys are not entitled to attorney fees).
Schell v. HHS, 843 F.2d 933 (6th Cir. 1988) (Exemption 5: focusing less on the material sought and more on the effect of release, determines that an administrative law judge's memorandum dealing with personnel matters is predecisional) (Exemption 6: while finding that disclosure would reveal subjective thoughts rather than expose personal information, declines to rule "with any great surety").
S. Utah Wilderness Alliance v. Hodel, No. 88-5142 (D.C. Cir. Nov. 15, 1988) (appeal dismissed as moot and judgment vacated in an Exemption 6 case where the district court ordered the agency to disclose the names and addresses of individuals who have visited our national parks).
S. Hills Health Sys. v. Bowen, 864 F.2d 1084 (3d Cir. 1988) (in a case where the district court refused to enjoin the agency from "releasing certain Medicare-related hospital cost reports to persons requesting them under the FOIA, appeals court held that the agency's disclosure rule was not inconsistent with applicable regulations and that the challenge to the regulations as arbitrary and capricious was premature).
Stuart-James Co. v. SEC, 857 F.2d 796 (D.C. Cir. 1988) (Federal Register publication: agency's interpretation of the term "unrealized profit" only explained the more general terms of the statute and regulations and therefore need not be published).
Tax Analysts v. Dep't of Justice, 845 F.2d 1060 (D.C. Cir. 1988) (improper withholding: public availability from a nonagency source is not sufficient to justify withholding under the FOIA) (interaction of (a)(2) & (a)(3): copies of judicial decisions must be disclosed to requester or made available in agency's reading room) ("unreasonable burden": "burden and expense of disclosure does not justify withholding") (agency records: district court opinions located within agency's case files are agency records).
Voinche v. Dep't of Justice, No. 87-4781 (5th Cir. Feb. 4, 1988) (unpublished memorandum), 840 F.2d 13 (5th Cir. 1988) (table cite) (proper party defendant: only United States government agencies may be sued under the FOIA and the Privacy Act).
Wagar v. Dep't of Justice, 846 F.2d 1040 (6th Cir. 1988) (improper withholding: agency did not improperly withhold documents which it had obtained during the course of discovery in an antitrust case and which it had been ordered to destroy pursuant to a consent decree).
Wash. Post Co. v. Dep't of Justice, 863 F.2d 96 (D.C. Cir. 1988) (Exemption 3 [Rule 6(e)]: release of a self-evaluative report commissioned by a private corporation would not reveal the inner workings of a grand jury) (Exemption 7(C): information concerning business judgments and relationships does not qualify under this exemption, release of the report in question would not reveal anything of a private nature about any of the employees mentioned) (Exemption 7(B): to withhold report under this exemption, "the government bears the burden of showing: (1) that a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not that disclosure of the material would seriously interfere with the fairness of those proceedings").
Weisberg v. Dep't of Justice, 848 F.2d 1265 (D.C. Cir. 1988) (attorney fees: defendant agency's change of position on fee waiver issue was the result of an administrative decision unrelated to this litigation; "stipulation agreement was entered into not as a result of litigation, but to accomplish the administrative task of complying with the extraordinarily broad" FOIA request; abstracts were duplicative of information already released and, therefore, not significant for purposes of determining whether plaintiff had substantially prevailed; defendant agency's difficulty in locating the "tickler" file was unrelated to whether plaintiff had substantially prevailed, because agency had made a good faith effort to find the file; even if unnecessary delays occurred in the processing of the FOIA requests, litigation was not necessary to compel production of any documents at all; district court applied appropriate standards for determining whether time was compensable and properly exercised its discretion in reducing the number of compensable hours; FOIA fee provision does not authorize fee enhancements to compensate for delay in receiving attorney fees; remands for consideration of whether counsel is entitled to contingency enhancement).
Williams v. Dep't of Justice, No. 85-6154 (D.C. Cir. May 18, 1988) (unpublished memorandum), 851 F.2d 1502 (D.C. Cir. 1988) (table cite) (Exemption 2: NADDIS, G-DEP, and informant identifier codes relate to internal agency practices and are properly exempt) (Exemption 3 [Rule 6(e)]: protects transcripts from grand jury investigation that led to appellant's indictment) (Exemption 5: the deliberative process privilege protects documents that contain the opinions, recommendations, and strategies of federal agents regarding investigations, as well as investigative and prosecutive strategies) (Exemption 7 (threshold): files are related to the enforcement of federal laws and there is a sufficient nexus between agency's investigation and its law enforcement duties) (Exemption 7(C): protects from disclosure the names, addresses, and identifying information about third parties, subjects of investigative interest, and participants in the Witness Protection Program, even if the information may have reached the public domain by other means) (Exemption 7(D): protects from disclosure identities of individuals who were admitted into the Witness Protection Program and individuals who agreed to cooperate with efforts to investigate and prosecute federal crimes) (Exemption 7(E): agency withheld only longstanding, successfully proven enforcement techniques not commonly known to the public) (Exemption 7(F): protects names of DEA Special Agents and local law enforcement officers) (waiver of exemption: court of appeals will not address contentions plaintiff raised for the first time on appeal, absent special circumstances).
Williams v. Dep't of Justice, No. 87-5410 (D.C. Cir. Aug. 31, 1988) (summary affirmance granted; court lacks subject matter jurisdiction because all documents responsive to FOIA request have been released).
XYZ Corp. v. Consumer Prod. Safety Comm'n, No. 87-4728 (5th Cir. Jan. 3, 1988) (remands with instructions to vacate this "reverse" FOIA case where the district court denied the motion for preliminary injunction and ruled under Exemption 4 that release of a letter would neither cause competitive injury nor would it impair the government's ability to obtain similar information).
District Courts
Adams v. United States, 686 F. Supp. 417 (S.D.N.Y. 1988) (Exemption 5: factual conclusions in an Inspector General's (IG) report that are the result of an act of judgment cannot be protected by the deliberative process privilege; corrective action recommended in an IG's report can be protected only insofar as its disclosure might tend to disclose the deliberative process).
Akutowicz v. Dep't of State, No. H-86-518 (D. Conn. Dec. 15, 1987) (jurisdiction: plaintiff, a resident of France since 1965, has not demonstrated that subject matter jurisdiction properly lies in the District of Connecticut).
Allen v. FBI, 716 F. Supp. 667 (D.D.C. 1988) (attorney fees: given the policy of disclosure established in the FOIA and the purpose behind allowing attorney fees, interim fees should be granted only in the unusual instances of protracted litigation and financial hardship; even though 7 years have elapsed since the initial filing of this action, an award of interim attorney fees would be premature because defendants are continuing to process the requested material at the rate of 5000 pages per month).
Am. Friends Serv. Comm. v. DOD, No. 83-4916 (E.D. Pa. Aug. 5, 1988) (Exemption 1: as FOIA's legislative history instructs, court deferred to agency's decision to classify abstracts and the decision to withhold information under the FOIA; agency is not required, either manually or through development or redesign of a computer software program, to delete exempt portions of technical bulletins and reformulate the information in such a way as to create new and different documents; the very fact that material would have to be extensively reformulated establishes that the nonexempt material is inextricably intertwined with the exempt material).
Army Times Publ'g Co. v. Dep't of the Army, 684 F. Supp. 720 (D.D.C. 1988) (Exemption 2: computerized personnel list is not a trivial administrative matter of no genuine public interest; plaintiff's commercial interest does not significantly detract from the public service that release of the records would provide, particularly when plaintiff is a newspaper) ("unreasonable burden": "administrative inconvenience and burden are not criteria by which Congress allowed FOIA requests to be judged").
Assassination Archives & Research Ctr., Inc. v. CIA, No. 88-2600, 1988 U.S. Dist. LEXIS 18606 (D.D.C. Sept. 29, 1988) (preliminary injunction: denies plaintiff's request for a preliminary injunction to expedite the processing of a FOIA request).
Bay Area Lawyers Alliance for Nuclear Arms Control v. Fed. Emergency Mgmt. Agency, No. C83-3164 (N.D. Cal. July 1, 1988) (attorney fees: plaintiff has substantially prevailed when, after the filing of the lawsuit, defendant agency hired a civilian contractor who reviewed the relevant documents and caused the release of a number of records; not only has the public benefitted from this lawsuit, but the plaintiff deserves a commendation for advancing the public interest in the management of post-nuclear war civic life; although defendant agency's exemption claims were reasonable, the withholding of the information prior to the filing of the lawsuit warrants a finding in favor of the plaintiff; adopting defendant's calculations, the court subtracted a number of hours from plaintiff's fee request and excluded claims for co-counsel whose appearances at hearings were unnecessary; grants $37,575 in fees, and $4043 in costs).
Bevis v. Dep't of the Army, No. 87-1893 (D.D.C. Aug. 30, 1988) (Exemption 1: orders in camera review of classified declarations, allowing plaintiff to designate 2 documents to be examined in camera in conjunction with the affidavits).
Bevis v. Dep't of the Army, No. 87-1893 (D.D.C. Sept. 16, 1988) (Exemption 1: disclosure of requested material could adversely affect United States military operations and place American lives and property in jeopardy; redaction of the documents is impractical, because careful expurgation would reduce the balance of the text to "unintelligible gibberish") (adequacy of search: agency was unusually conscientious in extending its search to files it might conveniently have neglected; a "see reference" document is not necessarily synonymous with a "responsive" document in a FOIA context, even if a FOIA requestor might be interested in a "see reference" document once he was aware of it).
BMY, a Div. of HARSCO Corp. v. United States, 693 F. Supp. 1232 (D.D.C. 1988) (Federal Register publication: technical report that describes a methodology that might be used to evaluate a contract proposal is not a "substantive rule of general applicability" and therefore need not be published in the Federal Register).
Bowers v. Dep't of Justice, 690 F. Supp. 1483 (W.D.N.C. 1988) (in camera inspection: faced with mandamus requiring law clerk clearance, district judge decides to conduct in camera inspection himself without staff aid).
Brainerd v. Dep't of the Navy, No. 87-C-4057 (N.D. Ill. Apr. 21, 1988) (attorney fees: pro se plaintiff who has substantially prevailed is eligible for an award of litigation costs only; his counsel is eligible for attorney fees; "the unsupported assertion of public benefit from disclosure seems almost an afterthought compared to the plaintiff's interest in the requested information"; plaintiff had sufficient pecuniary interest to pursue disclosure; for the most part, the government had a colorable argument for noncompliance with plaintiff's request for disclosure although the 10-day statutory time limit was not followed, there is no evidence of arbitrariness or bad faith).
Branch v. FBI, No. 86-1643 (D.D.C. May 16, 1988) (orders in camera inspection in an Exemption 1 case, finding that the affidavits did not adequately describe the withheld information).
Branch v. FBI, 700 F. Supp. 47 (D.D.C. 1988) (Exemption 1: agency may reclassify documents under executive orders issued after its initial classification decision; protects information concerning individuals and/or Communist party organizations, FBI methods and activities, and intelligence sources under E.O. 12,356; court defers to agency's judgment on the continuing need to classify documents despite their age).
Brinton v. Dep't of Labor, No. 87-7010 (E.D. Pa. July 21, 1988) (proper party defendant: subordinate agency officials are not proper party defendants under the FOIA) (summary judgment: defendant agency's affidavit demonstrates that the scope and method of the document search was reasonable).
Brown v. Dep't of Justice, No. 3-88-216 (D. Minn. Dec. 16, 1988) (Exemption 7 (threshold): Parole Commission is entitled to invoke Exemption 7 because it is a law enforcement agency) (Exemption 7(C): protects name of an IRS Special Agent; disclosure of names of 2 individuals being considered for parole revocation carries a high probability of invasion of privacy with a stigmatizing connotation) (unreasonable burden: an agency is not required to automatically forward to a requestor any material that was generated after the date of his FOIA/PA request) ("exceptional circumstances"/"due diligence": defendant agency cannot rely on a delay caused by a component under its control to evade the time limits of the FOIA; "due diligence" had not been demonstrated by the defendant agency when, by handling FOIA requests on a "first in/first out" basis, plaintiff's request would not be processed until 2 years after the date of the request; Open America stay denied).
Brumley v. Dep't of Labor, No. 87-398 (E.D. Ark. Jan. 28, 1988) (Exemption 5: recommendations expressed in an investigative report by a claims examiner are protected by the deliberative process privilege) (Exemption 7(C): protects names, addresses, and telephone numbers of witnesses and other persons of investigative interest).
Buhovecky v.
Dep't of Justice, 700 F. Supp. 566 (D.D.C. 1988) (Exemption 3 [Rule 6(e)]:
the release of names of individuals subpoenaed to appear before a federal grand
jury would reveal the direction and strategy of the investigation; following
Reporters Committee, holds that 28 U.S.C.
Cal. Save our Streams Council v. FERC, No. F-87-166 (E.D. Cal. Nov. 13, 1987) (Exemption 5: exemption applies to documents which express the opinions of lower-level employees and do not express the policy of the agency) ("reasonably segregable": documents contain purely factual information which may easily be severed from material protected from Exemption 5) (Exemption 2: a few internal procedural markings do not render the entire document exempt).
Campbell v. Sec'y of the Army, No. 88-0860 (D.D.C. Sept. 28, 1988) (fee waiver (Reform Act): because plaintiff has not demonstrated that the disclosure of the requested information is in the public interest, he is not entitled to a fee waiver; while plaintiff now asserts reasons why disclosure is in the public interest, the court cannot consider these assertions because doing so would exceed the scope of its review) (summary judgment: government is entitled to summary judgment on the adequacy of its search).
Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068 (D.D.C. July 27, 1988) (discovery in FOIA litigation: court allowed requester to take discovery on the issue of agency's due diligence after the agency was unable to provide any time estimate for the review of a document that was part of a FOIA request).
Chang v. INS, No. H-88-450 (S.D. Tex. May 13, 1988) (exhaustion: administrative remedies have not been exhausted because plaintiff's administrative appeal is still pending).
Chetwynd v. FBI, No. 88-2666 (D.D.C. Nov. 18, 1988) (defendant agency need not provide plaintiff with a Vaughn Index prior to filing its dispositive motion).
Clark v. Office of Info., No. 88-1281 (D.D.C. Sept. 23, 1988) (case dismissed because the Complaint did not specify the claims that plaintiff raises under the FOIA or the relief requested).
Clyde v. Dep't of Labor, No. 85-139 (D. Ariz. Apr. 18, 1988) (attorney fees: public interest is served because release of documents sheds light on whether a federal agency did its job adequately; plaintiff's personal interest in agency's compliance with EEO program is outweighed by the public interest; even if the withholding of the documents was reasonable, the balance was tipped in favor of disclosure; using standard hourly rates, awards $66,063 in attorney fees and costs).
Coalition for Safe Power v. DOE, No. 87-1380PA (D. Or. July 22, 1988) (fee waiver (Reform Act): plaintiff, a public interest group with a history of disseminating information, is eligible for a fee waiver; because the public interest group's goal it is to educate the public and protect the environment, defendant agency cannot satisfy its obligation to waive fees by making document available at an agency office 250 miles away).
Colley v. FLRA, No. 87-1064 (D.D.C. Apr. 15, 1988) (adequacy of affidavit: affidavit is inadequate to support claim of attorney work-product, deliberative process, and informant privileges).
Colley v. FLRA, No. 87-1064 (D.D.C. June 15, 1988) (grants defendant agency's unopposed motion to dismiss plaintiff's FOIA Complaint as moot because plaintiff has received all the relief to which he is entitled).
Cooper v. Executive Office for Immigration Review, No. H-86-4475 (S.D. Tex. July 13, 1988) (subsection (a)(2)(A): all written opinions and tape recordings of proceedings before local hearing officers must be made available for copying locally with an index by the litigants' names).
Coyote Valley Band of Pomo Indians v. United States, No. 87-2786 (N.D. Cal. Nov. 6, 1987) (Exemption 5: documents are deliberative because they predate the agency's final decision and contain the opinions and recommendations of subordinate employees; draft documents post-date final agency decision but because they are drafts of letters later sent they can properly be withheld under the deliberative process privilege; draft copies are exempt from disclosure if final copies are released; postdecisional documents containing internal recommendations concerning public response to agency decision are not protected by exemption).
Crabtree v. Dep't of Justice, No. 88-0861 (D.D.C. Aug. 26, 1988) ("exceptional circumstances"/"due diligence": grants the Executive Office for United States Attorneys' Open America motion, where this office receives 1600 FOIA/PA requests per year and handles them on a "first-in, first-out" basis) (discovery/FOIA interface: a FOIA request is not the proper procedure to follow when seeking information for use in litigation, as discovery affords greater access to agency records than does the FOIA).
Crooker v. CIA, No. 86-3055, 1988 WL 50724 (D.D.C. May 10, 1988) (exhaustion: case dismissed because plaintiff failed to exhaust administrative remedies on fee waiver issue).
Dan v. FBI, No. 87-3141 (D.D.C. May 26, 1988) (case dismissed due to plaintiff's failure to prosecute).
Davis v. Dep't of Justice, No. 88-0130 (D.D.C. July 27, 1988) (adequacy of search: court was unwilling to accept agency's argument that it was unable to determine which of approximately 163 tapes of electronic intercepts were admitted into evidence at a trial conducted 7 years ago).
Davis Corp. v. United States, No. 87-3365, 1988 U.S. Dist. LEXIS 17611 (D.D.C. Jan. 19, 1988) ("Reverse" FOIA/Exemption 4: release of information concerning how plaintiff plans to carry out the terms of its government contract and the problems confronted in reaching a pricing structure will not cause substantial harm to the company's competitive position when a comparable contract is reprocured in the future).
Destileria Serralles, Inc. v. Dep't of the Treasury, No. 85-0837 (D.P.R. Sept. 22, 1988) (Exemption 2: protects material that contains no more than internal and merely procedural determinations about whether and how to proceed with investigations) (Exemption 4: protects information concerning prices of products and advertising paid by competitors, as well as other commercial information "not legitimately obtainable by another market participant") (Exemption 5: protects confidential commercial information furnished by a business competitor to the defendant agency in the course of an investigation using an assurance of confidentiality) (Exemption 7(A): release of information would impede the defendant agency's ongoing inspections of alleged violations) (Exemption 7(C): protects identities of third parties who were directly or indirectly related to the defendant agency's investigation) (Exemption 7(D): defendant agency must provide proof that the informant was under the impression of an express or implied assurance of confidentiality) (Exemption 7(E): protects a technique for examining the records of the purchase of alcoholic beverages by retail liquor dealers).
Donohue v. Dep't of Justice, No. 84-3451 (D.D.C. Mar. 7, 1988) (attorney fees: there is no express bar against cost awards to the government in FOIA actions).
Downs v. FBI, No. 87-0301 (D.D.C. Mar. 29, 1988) (Exemption 7(C): disclosure of identities of informants and FBI Special Agents associated with certain investigations could clearly expose them to unnecessary embarrassment; nondisclosure of identities of non-federal law enforcement and FBI clerical personnel cannot be predicated on Exemption 7(C)) (Exemption 7(D): protects identifying information and names of persons who were interviewed or provided information in the course of an investigation, including information originating from non-federal law enforcement agencies; individuals cooperated with the FBI with the logical assumption that their cooperation would not be publicly exposed) (Exemption 7(F): protects names and identities of various persons who have been shown to be potential targets of plaintiff's violent propensities).
Dunkelberger v. Dep't of Justice, No. 88-1432 (D.D.C. Sept. 30, 1988) (Exemption 7(C): summary judgment granted in a case where the government would neither confirm nor deny the existence of records relating to an alleged suspension of an FBI Special Agent involved an in undercover drug investigation).
Ely v. FBI, No. 83-876 (M.D. Fla. July 13, 1988) (Exemption 7(C): agency's public affidavit does not provide a sufficient factual record to support its claim of a "Glomar" denial) (res judicata: although similar FOIA claims by plaintiff were precluded by the same privilege asserted here, issue preclusion is inappropriate to the present case).
Emerson v. Dep't of Justice, No. 84-1304 (D.D.C. Jan. 15, 1987) (in a remand decision, court explicates its reasons for previously refusing to allow the government to raise new exemption claims after the court's initial adverse ruling; grants defendant's motion for summary judgment, finding that portions of Foreign Agents Registration Act papers may be withheld under Exemption 7(E) and the deliberative process privilege, and that Exemption 7(C) protects informant data).
Engh v. Comm'r, No. 86-C-20260 (N.D. Ill. Jan. 14, 1988) (magistrate's recommendation) (no improper withholding: court cannot compel the disclosure of nonexistent documents), adopted (N.D. Ill. Apr. 4, 1988).
Farnum v. HUD, 710 F. Supp. 1129 (E.D. Mich. 1988) (Exemption 6: there is not significantly less of a privacy interest in a former address as opposed to a current address; given the defendant agency's detailed procedures for locating mortgagors, it need only release the names and addresses of mortgagors whose entitlements are 2-years old or older at the time the FOIA request is made).
Fed. Elec. Corp. v. Carlucci, 687 F. Supp. 1 (D.D.C. 1988) ("Reverse" FOIA/Exemption 4: agency did not violate the FOIA when it released plaintiff's direct labor and material cost data to a competitor during resolicitation of a contract; release of direct cost data did not harm plaintiff's competitive position in the resolicitation process), stay denied, No. 87-1747 (D.D.C. Apr. 29, 1988).
Formaldehyde Inst. v. HHS, No. 87-3266 (D.D.C. Sept. 6, 1988) (Exemption 5: the intra-agency requirement is not met by reviewers' comments made at the request of an independent publisher regarding a scientific article submitted for publication by a government employee in the course of his official duties; protecting authors' names will prevent or limit any possible chilling effect on their candor).
Forman v. Chapoton, No. 88-1151-R (W.D. Okla. Dec. 12, 1988) (agency records: tax seminar binder generated by a private entity which agency recipients are free to maintain or dispose of at their own discretion is not an agency record because it also is not sufficiently interconnected with the tax policy formation function of the office) (summary judgment: absent a showing of bad faith to impugn agency's declaration, summary judgment without discovery is appropriate).
Frankenberry v. Dep't of Justice, No. 87-3284 (D.D.C. Feb. 23, 1988) (Vaughn Index: plaintiff's motion for a Vaughn Index denied as premature; defendant agency has 45 days within which to file a dispositive motion and Vaughn Index).
Freeman v. Dep't of Justice, 723 F. Supp. 1115 (D. Md. 1988) (in camera inspection: the district court will conduct in camera inspection to the extent that affidavits and other information submitted by the FBI did not permit the court to decide whether documents were generated during legitimate law enforcement activity and whether factual information is so "inextricably intertwined" that it cannot be segregated and released) (adequacy of search: FBI's affidavits demonstrate that its searches were more than adequate to satisfy the FOIA) (jurisdiction: because the United States District Court for the Southern District of New York entered a disclosure order in a separate case for some of the information plaintiff seeks, that court is the appropriate forum to raise argument about the scope of that order) (Exemption 2: protects symbol numbers and letters used to identify confidential sources) (Exemption 5: documents used by the agency to arrive at a decision not to prosecute were not adopted as the Justice Department's decision and have not been "incorporated by reference") (Exemption 7 (threshold): records compiled during an FBI investigation are not per se "compiled for law enforcement purposes" for purposes of the FOIA; defendant agency made the requisite threshold showing with respect to 3 of the 4 investigative files) (Exemption 7(C): exemption protects names of subjects of investigative interest, and the names of contributors to plaintiff's political campaign who were later interviewed by the FBI in its investigation of possible election fraud).
Globus v. Dep't of Transp., No. 88-0234 (D.D.C. Sept. 30, 1988) (Exemption 6: release of unredacted RIF notices would not be a clearly unwarranted invasion of personal privacy where RIFs were contemplated for purely nonpersonal reasons; the privacy interest is clearly outweighed by the public interest in exposing possible abuses by government agencies).
Goldstein v. Office of the Indep. Counsel, No. 87-2028 (D.D.C. June 28, 1988) (grants defendants' motion for partial summary judgment, finding plaintiff's doubts as to the adequacy of defendants' searches to be "skeptical conjecture").
Gonzalez v. Dep't
of Justice, No. 88-0913, 1988 WL 120841 (D.D.C. Oct. 25, 1988) (Exemption
2: protects informant symbol numbers) (Exemption 3 [18 U.S.C.
Gould Inc. v. GSA, 688 F. Supp. 689 (D.D.C. 1988) (Exemption 7 (threshold): original drafting of audit reports by a "mixed-function" agency constitutes a compilation of records for law enforcement purposes and until the audit process is completed "these audits have the requisite law enforcement tilt to them which should cloak them with Exemption 7 protection; the plain meaning of the statute does not require an exclusive focus on whether records were originally compiled for law enforcement purposes; the Act permits consideration of subsequent uses and compilations of those materials -- the legislative history of the Act shows no intent to alter or narrow this test; "the present inclusion of these audit reports in the investigatory record or file is the result of the natural and legitimate progression of materials underlying a routine audit") (Exemption 7(A): defendant agency has made a generic showing that disclosure of the names of witnesses, sources of information, records provided by sources, and the opinions of the principal auditor would interfere with a law enforcement investigation) (FOIA as a discovery tool: premature release of the information would reveal the "outer limits of the [government's] case").
Gula v. Meese,
699 F. Supp. 956 (D.D.C. 1988) (Exemption 7(C): protects names and information
that would identify informants and a juvenile victim of plaintiff's extortion
efforts) (Exemption 7(D): following Keys v. Department of Justice,
holds that promises of confidentiality are "inherently implicit" in FBI interviews;
"The success of law enforcement investigations rests upon information provided
by individuals who may be exposed to relentless harassment and possible harm
if their identities were revealed. This is especially the case where the victims
of alleged criminal activities are involved
Halloran v. VA, No. H-86-4050 (S.D. Tex. Aug. 1, 1988) (Exemptions 6 and 7(C): names and job titles may not be withheld when the requested documents concern an investigation of federal contractor fraud, even though these individuals may be implicated in actions for which no criminal charges have been made; exemption has been waived because a nongovernment entity has participated in a federal investigation) (Exemption 6: the mention of an individual's medical condition in the context of a business discussion is not a medical record) (attorney fees: because the defendant agency had unreasonably ignored the FOIA and the congressional policy behind it, the public benefit is the vindication of the FOIA itself).
Hartford Accident & Indem. Co. v. Dep't of the Navy, No. 88-45-N (E.D. Va. June 24, 1988) (Exemption 5: "inferences about the cause of an accident drawn from the facts revealed by an investigation, though labeled as opinions or conclusions, are not exempt under the guise of deliberative or policymaking material") (Exemption 6: releases individual's social security number and the address of a witness; releases brief notations of counseling action because they cannot be construed as a personnel or similar "file").
Hayes Int'l, Inc. v. Dep't of the Navy, No. 86-T-1129-S (M.D. Ala. Aug. 12, 1988) (attorney fees: while released information may assist plaintiff in private litigation, it is not likely to add to the fund of information that citizens may use in making vital political choices; plaintiff's interest in the material is of a purely commercial nature; while the defendant agency should have conducted its searches more promptly, it withheld only documents that were properly exempted).
Heckman v. Executive Branch, United States Fed. Gov't, No. 86-132 (E.D.N.Y. Jan. 29, 1987) (adequacy of search: defendant agency has conducted a reasonable search, even though 3 pages are missing from a report which was promulgated 10 years before the effective date of the Privacy Act).
Hill v. Dep't of the Air Force, No. 85-1485 (D.N.M. Sept. 4, 1987) (exhaustion: defendant agency did not expressly give plaintiff notice that his request for records or his request to waive fees were being denied) (fees: plaintiff's nonpayment of unlawful fee cannot bar his FOIA request) ("exceptional circumstances"/"due diligence": indefinite suspension of plaintiff's FOIA request for certain records does not bar judicial review for lack of final decision by defendant agency) (sanctions: because of unreasonable delay in processing FOIA request, documents must be produced at no further cost to plaintiff).
Hill Tower, Inc. v. Dep't of the Navy, 718 F. Supp. 562 (N.D. Tex. 1988) (Exemption 5: JAG manual report prepared for the F-4 crash on January 14, 1987, cannot be withheld under the attorney work-product privilege because it was not expressly created in anticipation of litigation).
Hoch v. CIA,
No. 82-0754, 1988 WL 212536 (D.D.C. Sept. 30, 1988) (Exemption 1 [E.O. 12,356]
and Exemption 3 [50 U.S.C.
Housley v. Dep't
of the Treasury, 697 F. Supp. 3 (D.D.C. 1988) (Exemption 3 [26 U.S.C.
Housley v. Dep't of the Treasury, 688 F. Supp. 37 (D.D.C. 1988) (Exemption 5: the deliberative process privilege protects opinions and impressions of evidence and the course of a criminal investigation, even though this information was shared with other government agencies) (Exemption 7 (threshold): information relating to the criminal investigation of counterfeiting activities meets the threshold test) (Exemption 7(C): notwithstanding any privacy interest, defendant agency is justifiably concerned that the release of information about informants would chill future cooperation and limit the defendant agency's ability to perform its investigative function; the mention of an individual's name in the context of a law enforcement investigation may carry a "stigmatizing connotation"; this exemption is routinely invoked to withhold the identities of law enforcement personnel) (Exemption 7(D): defendant agency may withhold information gathered from private citizens and public corporations; information from state and local law enforcement agencies was provided with the understanding that it would remain confidential).
Hughes v. Bowen, No. 87-6105 (S.D. Fla. Oct. 22, 1987) (Exemption 6: releases information the Social Security Administration used in selecting payees, but deletes names, addresses, and social security numbers).
Int'l Computaprint Corp. v. Dep't of Commerce, No. 87-1848 (D.D.C. Aug. 16, 1988) (summary judgment: in a "reverse" FOIA action, summary judgment is appropriate because there is no reasonable doubt that proprietary information was not used in the compilation of the microfilm that agency sought to release) ("Reverse" FOIA/Exemption 4: de novo review was not warranted because plaintiff had not demonstrated that the administrative record was defective; agency's computerized trademark database cannot be considered "confidential" business information because it was compiled from publicly available information; information provided by plaintiff was used only to cross-check the already completed compilation) (Exemption 3: the Trade Secrets Act does not provide a private right of action to enjoin FOIA disclosure).
Int'l Trade Overseas, Inc. v. AID, 688 F. Supp. 33 (D.D.C. 1988) (duty to create a record: defendant agency provided the best available copies of records sought) (duty to search: defendant agency's search was adequate, although no documents were found; "the fact that a document once existed does not mean it exists now"; an agency need not retrieve a document that is no longer retained by the agency) (no improper withholding: defendant agency has satisfactorily demonstrated that it has released all nonexempt information in its possession).
Iowa Packing Co. v. Holm, No. 81-C-6001 (N.D. Ill. Mar. 17, 1982) (proper party defendant: district director of INS regional office is not a proper party defendant under the FOIA) (venue: venue in Illinois is improper, because corporate plaintiff resides in and has its principal place of business in Iowa, where the records are located).
Jenoriki v. Commander of Sea 09B12, Dep't of the Navy, No. 88-1593 (D.D.C. July 29, 1988) (adequacy of request: defendant agency is not required to provide information requested by broad, sweeping inquiries lacking specificity, particularly in light of plaintiff's refusal to make the request more manageable) (fees: defendant agency's regulations require that when the allowable charges a requester may be required to pay are likely to exceed $250, the requester must express his willingness to pay the associated fees prior to the processing of his request) (fee waiver: indigency alone does not entitle a requester to a fee waiver) (jurisdiction: following Kissinger v. Reporters Committee for Freedom of the Press, holds that the court lacks jurisdiction because no records were improperly withheld when plaintiff failed to make a proper FOIA request).
Joint Bd. of Control of the Flathead, Mission & Jocko Irrigation Dists. v. Bureau of Indian Affairs, No. 87-217 (D. Mont. Sept. 9, 1988) (agency records: while in the process of review the government had temporary custody of an Indian tribal study, but the study was not in the government's possession at the time of the FOIA request) (Exemption 4: contract proposals that are submitted to the government contain technical information that is unique to the bidding company, and release of this information would be detrimental to the company's future competitiveness) (Exemption 5: having contracted to obtain water studies for use in litigation, the government may withhold under the attorney work-product privilege those portions of the study on which they based their theories in litigation) (discovery in FOIA litigation: plaintiff's inclusive allegations concerning the adequacy of the defendant agency's affidavits are insufficient to mandate further discovery).
Jones v. FBI, No. C77-1001 (N.D. Ohio Nov. 23, 1983) (Vaughn Index: denies plaintiff's request that the court modify its previous order allowing the defendant agency to employ a random sample method of indexing the 10,485 pages at issue in this case; putting the records, some of which contain classified material, in the care and custody of the court would create a burdensome situation for the court; counsel for both parties may not review all the disputed documents because some of the documents contain classified material; plaintiff's request for de novo review of an additional 100 documents is premature).
Joslin v. Dep't of Labor, No. 86-C-2449 (D. Colo. May 9, 1988) (Exemption 5: deliberative process privilege protects redacted segment of safety officer's accident investigation report to area director that was designed to foster intra-agency debate concerning sanctions to be imposed against company) (Exemption 7(C): privacy interest in names of employee-witnesses is outweighed by the substantial public interest in ensuring a nonhazardous workplace) (Exemption 7(D): defendant agency must file an affidavit under oath to protect the identities of employee-witnesses to whom express promises of confidentiality were allegedly given; promise of confidentiality to employee-witness cannot be inferred from circumstances surrounding an accident investigation).
Kele v. Dep't of Justice, No. 86-1795 (D.D.C. Mar. 2, 1988) (adopts magistrate's February 29, 1988 report recommending that defendant agency's motion for summary judgment be granted; defendant agency withheld information under the attorney-client privilege of Exemption 5; confidential source material was withheld under Exemption 7(D); information obtained from third parties interviewed was withheld under Exemptions 7(C) and 7(D)).
Kele v. Dep't of Justice, No. 86-0796 (D.D.C. June 10, 1988) (magistrate's recommendation) (exhaustion: plaintiff seeks access to information he has not previously sought administratively; therefore, he has not exhausted his administrative remedies and his lawsuit is subject to dismissal for lack of subject matter jurisdiction).
Knight v. DOD, No. 87-0480 (D.D.C. Feb. 11, 1988) (Exemption 5: deliberative process privilege protects list of documents revealing the existence of an inventory control problem, analysis of the problem, and preliminary audit findings; preliminary audit findings "do not lose their tentative nature simply because [agency] did not issue a final audit report") (Exemption 2: disclosure of "Request for Audit Assistance" would reveal defendant agency's strategy and rationale for audits).
Kyle v. United States, No. 80-1038E (W.D.N.Y. Oct. 24, 1986) (Exemption 5: affidavits do not meet the burden of proving that Safety Investigation Board's opinions and conclusions are entirely exempt from disclosure; protects witness statements made by service personnel in the course of a government accident investigation) (in camera inspection: orders in camera inspection of Exemption 5 material, finding that a more detailed affidavit comporting with Vaughn standards would not resolve segregation issue).
Kyle v. United States, No. 80-1038E (W.D.N.Y. July 15, 1987) (Exemption 6: releases portions of Life Science Report dealing with training and work-related data; releases autopsy and radiological reports which will enable plaintiff to better prepare for a products liability action) (Exemption 5: protects portions of Life Science Report where facts and opinion are intertwined and opinions are based on analysis of factual findings), amended (W.D.N.Y. Sept. 30, 1987).
Landes v. Shultz, No. 86-0220 (E.D. Pa. Sept. 25, 1986) (adequacy of search: defendant agency's search was conducted in good faith and was reasonably designed to locate all pertinent information).
Laroque v. Dep't of Justice, No. 86-2677 (D.D.C. July 12, 1988) (Exemption 2: protects case numbers, systems identification numbers, and entry station numbers) (Exemption 3 [Rule 6(e)]: release of witness transcripts would reveal nature and scope of grand jury investigation) (Exemption 5: attorney work-product privilege protects information concerning litigation strategy and procedures with respect to plaintiff's criminal case) (Exemption 6: protects names and addresses of actual and potential witnesses and witness travel vouchers) (Exemption 7 (threshold): non-law enforcement agency may use exemption to protect information it compiled in returning a fugitive from justice to the United States) (Exemption 7(C): protects names of United States Marshals, FBI Special Agents, agency employees, fugitives, and private citizens) (Exemption 7(D): exemption protects the disclosure of identities of confidential sources and information provided by them, and information provided by a local law enforcement agency) (Exemption 7(E): exemption protects portions of "lookout notice" entitled "Reason Code" and "Source Code").
Larson v. Executive Office for United States Attorneys, No. 85-2575, 1988 WL 285732 (D.D.C. Nov. 22, 1988) (Exemption 5: deliberative process privilege protects notes prepared by prosecuting attorneys, or their aides, in contemplation of litigation concerning evidence, potential witness testimony, and trial strategy) (Exemption 7(C): protects names and information pertaining to FBI Special Agents, potential witnesses, and other third parties, even though some of those names may be known to plaintiff) (Exemption 7(D): release of information supplied by 2 local law enforcement agencies on a confidential basis would severely hamper current and future prosecutions) (Exemption 3 [Rule 6(e)]: requires withholding of a transcript of grand jury testimony).
Lederle Labs. v. HHS, No. 88-0249 (D.D.C. May 2, 1988) ("Reverse" FOIA/Exemption 4: issues protective order to govern the disclosure of trade secrets or confidential business information during the course of FOIA litigation).
Lederle Labs. v. HHS, No. 88-0249 (D.D.C. July 14, 1988) (adequacy of search: the fact that an agency "has made additional disclosures of information subsequent to its original response does not vitiate the adequacy of its previous endeavors") (scope of request: requester may not alter the scope of his request once it has been made) (Exemption 5: protects documents relating to a rulemaking proceeding under the deliberative process and attorney-client privileges; protects dates for proposed rulemaking actions under the theory advanced in Wolfe v. HHS) (Exemption 4: company would suffer competitive injury from the release of testing data, information concerning the license application process, and data as to the commercial development of a product in a highly competitive and finite market).
Los Angeles County Bldg. & Constr. Trades Council, AFL-CIO v. NLRB, No. 87-1647 (C.D. Cal. Oct. 15, 1988) (Exemption 5: defendant agency need not release documents that fall within the attorney work-product privilege) (Exemption 7(C): release of document could subject declarants to reprisals and embarrassment) (waiver of exemption: waiver applies only to materials actually released to non-federal agencies or individuals).
Luther v. IRS,
No. 5-86-130 (D. Minn. June 8, 1987) (magistrate's recommendation) (Exemption
3 [26 U.S.C.
Madera Cmty. Hosp. v. United States, No. F-86-542 (E.D. Cal. June 28, 1988) (Exemption 5: deliberative process privilege was not waived when document concerning the uncompensated services provision was given to state auditors charged with enforcing that provision).
Mancini v. Dep't of Justice, No. 87-2047 (D.D.C. May 20, 1988) (case dismissed due to plaintiff's failure to prosecute).
May v. Dep't of the Air Force, No. S84-0304N (S.D. Miss. Mar. 31, 1987) (Exemption 6: redacted version of recommendation may be disclosed without compromising rater's identity), dismissed (S.D. Miss. Aug. 11, 1987).
Mayock v. INS, No. C85-5169 (N.D. Cal. July 6, 1988) (mootness: court denies defendant agency's claim of mootness where plaintiff sought injunctive relief against agency's practice of missing its statutory 10-day time limit in responding to FOIA requests).
McAllister v. Dep't of the Army, No. 86-1692 (M.D. Pa. Jan. 22, 1988) (adequacy of search: unsuccessful search was adequate; it may be that document in question was never created).
McCarthy v. IRS,
No. 87-38 (D. Conn. Sept. 2, 1987) (Exemption 5: the deliberate process privilege
protects internal memoranda addressed to the regional commissioner discussing
a legal defense to an enforcement action; the attorney-client privilege protects
a request to district counsel for his legal opinion and his response) (Exemption
3 [26 U.S.C.
Mendez-Suarez v. Veles, 698 F. Supp. 905 (N.D. Ga. 1988) (attorney fees: where documents are available through discovery, FOIA requests are unnecessary; it is unclear from the record whether the requested information was released because of plaintiff's FOIA requests or because of discovery requests; while the government's withholding of the information bordered on the "stonewalling" that the FOIA seeks to eliminate, it is only one of many equitable factors that the court may consider in determining entitlement to attorney fees; fees denied).
Miller v. Sessions, No. 77-C-3331 (N.D. Ill. Mar. 21, 1988) (Exemption 1: defendant agency's declaration both identifies the national security interest at stake and explains the consequent need for secrecy), reconsideration denied (N.D. Ill. May 2, 1988) (government sought reconsideration to prevent disclosure of information using exemptions not yet invoked).
Misterek v. IRS, No. C87-421 (W.D. Wash. Nov. 16, 1987) (in camera inspection: in camera inspection of random sampling of withheld documents revealed that they were properly exempt).
Moessmer v. CIA, No. 86-948C(I) (E.D. Mo. Sept. 3, 1987) (Exemptions 1 and 3: release of information would reveal intelligence methods and activities).
Moran v. Doctor, No. 88-1837 (D.D.C. Oct. 3, 1988) (proper party defendant: only a government agency is a proper party defendant under the FOIA).
Morrison v. Dep't of Justice, No. 87-3394, 1988 WL 47662 (D.D.C. Apr. 29, 1988) (Exemption 5: "disclosure of the conclusion reached in a predecisional document does not, without more, waive the [deliberative process] privilege") (discovery: discovery on waiver issue would be a "fishing expedition").
Mott v. Clauson, No. S87-0045 (N.D. Ind. Mar. 10, 1988) (proper party defendant: FOIA action must be maintained against an agency, not against an individual).
Mountain Coin Mach. Distribs. v. Dep't of Justice, No. 87-122-E (S.D. Iowa Sept. 22, 1988) (orders in camera inspection of 1000 requested documents that have margin notes indicating the exemptions the defendant agency has claimed, rather than putting the agency to the burden and expense of preparing a Vaughn Index).
Mountain Coin Mach. Distribs. v. Dep't of Justice, No. 87-122-E (S.D. Iowa Dec. 14, 1988) (denies cross-motions for summary judgment; defendant agency's motion is inappropriate because there is a genuine issue of material fact; plaintiff's motion is inappropriate because defendant agency need only meet its burden of proof for claimed exemptions at trial, not before).
Muhammad v. Dep't of Justice, No. 87-2049 (D.D.C. Oct. 4, 1988) (summary judgment: grants defendant agency's motion for summary judgment, plaintiff has provided no affidavits or documents to support his contention that documents had been improperly withheld under the FOIA).
Nat'l Fed'n of Fed. Employees v. United States, 688 F. Supp. 671 (D.D.C. 1988) (in challenges to the lawfulness and constitutionality of various nondisclosure agreements drafted by the Executive Branch to protect the secrecy of classified information, neither union nor individual plaintiffs have stated a claim under the FOIA).
Nat'l Sec. Archive v. CIA, No. 88-0119 (D.D.C. July 26, 1988) (format of response: following Dismukes v. Department of the Interior, holds that an agency has no obligation under the FOIA to accommodate a requester's preference regarding the format of the response; the defendant agency provided the requested information in a reasonably accessible format.
Nat'l Sec. Archive v. DOD, 690 F. Supp. 17 (D.D.C. 1988) (fee waiver (Reform Act): fee limitation issue is ripe for judicial review because defendant agency will not process plaintiff's FOIA requests until plaintiff agrees to incur fees; because the court cannot conclude that Congress clearly intended that an entity like plaintiff would be entitled to a search-fee limitation as an educational institution or as a representative of the news media, the court should uphold agency's denial of search fee limitation because it is based on a reasonable interpretation of the 1986 FOIA amendments).
Nat'l Sec. Archive v. Executive Office of the President, 688 F. Supp. 29 (D.D.C. 1988) (agency records: the records sought were never under the direction or control of the Office of Administration; instead, they were routed to the President's counsel and thus are not "agency records" subject to the FOIA).
Nat'l Wildlife Fed'n v. Dep't of the Interior, No. 83-3586 (D.D.C. Aug. 19, 1988) (attorney fees: additional attorney fees are denied because the essential relief sought, the abandonment of defendant agency's fee waiver regulations and guidelines, was never reached by Congress and the courts; plaintiff failed to demonstrate that this litigation was a catalyst that prompted Congress to amend the FOIA fee waiver provision).
Neff v. IRS, No. 85-0816 (S.D. Fla. Mar. 15, 1988) (judgment for costs taxed against agency).
Nelson v. Dep't of Justice, No. 87-1833 (D.D.C. Mar. 25, 1988) (Exemption 7(C): FBI Special Agents who testified at trial have not waived a privacy interest regarding their personal observations recorded in the disputed documents and which may go beyond their statements at trial).
Nicolau v. United States, 699 F. Supp. 1063 (S.D.N.Y. 1988) (Exemption 7(C): protects names of FBI Special Agents and FBI employees) (Exemption 6: protects names of third parties) (jurisdiction: where plaintiff has gained access to all requested records, claim is moot and court lacks subject matter jurisdiction) (attorney fees: as the FBI released all documents responsive to plaintiff's FOIA request one year prior to the institution of this lawsuit, the lawsuit had no causative effect on the delivery of the documents; although the State Department released 2 documents a few weeks after this suit was filed, it is not clear that the responsible officials there were aware of the suit).
North v. Walsh, No. 87-2700 (D.D.C. Apr. 29, 1988) (res judicata/collateral estoppel: plaintiff may not bring FOIA claim for documents whose disclosure he has already fully and finally litigated in non-FOIA cause of action).
North v. Walsh, No. 87-2700 (D.D.C. June 8, 1988) (grants summary judgment; protects under the FOIA documents whose disclosure had already been litigated in a non-FOIA cause of action).
North v. Walsh, No. 87-2700 (D.D.C. Aug. 31, 1988) (discovery/FOIA interface: plaintiff is precluded from obtaining documents under the FOIA in advance of the time proscribed under the established rules of criminal discovery).
O'Connor v. IRS,
698 F. Supp. 204 (D. Nev. 1988) (Exemption 3 [26 U.S.C.
Okken v. HHS, No. C-86-0065 (N.D. Iowa Sept. 30, 1986) (exhaustion: as plaintiff's request was not mailed to the proper office, he never made a proper request under FOIA and, therefore, failed to exhaust his administrative remedies), reconsideration denied (N.D. Iowa Dec. 12, 1986).
Okla. Publ'g Co. v. HUD, No. 87-1935-P, 1988 U.S. Dist. LEXIS 18643 (W.D. Okla. June 17, 1988) (Exemption 6: third-party financial information lies near the core of privacy interests protected by the exemption; it outweighs the public interest in monitoring whether the agency properly evaluated applications) (waiver of exemption: defendant agency had not waived exemption which it first raised after the district court ordered production of documents) (sanctions: defendant agency shall pay all reasonable fees and costs incurred by plaintiff due to agency's failure to comply with court's order to produce files in question).
O'Rourke v. Dep't of Justice, 684 F. Supp. 716 (D.D.C. 1988) (status of plaintiff: there is insufficient evidence that United States citizens were meant to be the sole beneficiaries of the FOIA; a person's motive in seeking information under the FOIA is irrelevant) (equitable discretion: in seeking to deny records on equitable grounds, the agency is withholding a remedy that the statute specifically provides).
Ostrer v. FBI, No. 83-0328 (D.D.C. Apr. 21, 1988) (sua sponte the court orders parties to show cause why issue of disclosability of "rap sheets" should not be stayed pending Supreme Court's decision in Reporters Committee), stay granted (D.D.C. May 11, 1988).
Pac. Architects & Eng'rs, Inc. v. Dep't of State, No. 88-6496 (C.D. Cal. Dec. 13, 1988) ("Reverse" FOIA/Exemption 4: absent extraordinary circumstances, court's review of agency's nonexemption decision under the FOIA is confined to determining whether, on the administrative record, the agency's claim is supported by substantial evidence or is otherwise arbitrary, capricious, or an abuse of discretion; releases hourly rates contained in successful bidder's government contract) (stay pending appeal: grants stay because this circuit has not yet decided the question of scope of judicial review in a "reverse" FOIA action and plaintiff will be irreparably injured if protectible information is released).
Pan Am World Servs., Inc. v. United States, No. 88-0304 (D.D.C. Mar. 9, 1988) ("Reverse" FOIA: denies preliminary injunction because plaintiff is not likely to prevail on the merits).
Peco v. Dep't of Justice, No. 86-3185 (D.D.C. July 28, 1988) (Vaughn Index: defendant agency need not provide a Vaughn Index when its affidavit provides sufficient justification for the claimed exemptions) (Exemption 2: protects information pertaining to internal rules and practices, the disclosure of which would jeopardize the safety of law enforcement personnel) (Exemption 7: protects information the disclosure of which would jeopardize the safety of police officers and FBI Special Agents, might render law enforcement techniques useless against criminals, or would violate informant confidentiality; protects the identities of special undercover agents who pursue alleged offenders with violent tendencies).
Phoenix Newspapers, Inc. v. FBI, No. 86-1199 (D. Ariz. July 9, 1987) (Exemption 2: defendant agency's response to an MSPB appeal and an administrative inquiry memorandum are not "minor employment matters") (Exemption 5: a laboratory report, factual summaries, agency's response to an MSPB appeal, and staff recommendations that were adopted by the agency are not protected by the deliberative process privilege) (Exemption 6: a laboratory report is not a "similar file"; defendant agency's response to an MSPB appeal and an administrative inquiry memorandum are "similar files," but may be released after the redaction of personally identifying details) (Exemption 7: documents furnished as part of defendant agency's internal investigation into a shooting death were not compiled for law enforcement purposes).
Phoenix Newspapers, Inc. v. FBI, No. 86-1199 (D. Ariz. Dec. 22, 1987) (attorney fees: attorney fees issue is not moot merely because plaintiff independently acquired requested document prior to court order).
Pototsky v. Dep't of the Navy, 695 F. Supp. 1084 (D. Haw. 1988) (Exemption 6: investigatory records qualify as "similar files"; there is no public interest in the release of witness statements) (Exemption 7(A): release of witness statements taken during an ongoing enforcement proceeding would risk possible intimidation of the witnesses, when plaintiff makes an unsupported claim that he knows the witnesses and the content of their statements) (Exemption 7 (threshold): threshold requirement is satisfied when military investigation was started following the receipt of allegations of acts which, if true, would be violations of military law) (Exemption 7(C): release of records would be an unwarranted invasion of the personal privacy of the subject of the investigation, as well as the privacy interests of the witnesses who provided statements to the investigating officer) (Exemption 5: deliberative process privilege protects the opinions, recommendations, and conclusions of military officers concerning allegations of criminal activity made against another military officer) (attorney fees: pro se plaintiff is entitled to costs only, not attorney fees).
Powell v. Dep't of the Treasury, No. 87-3287 (D.D.C. July 29, 1988) (magistrate's recommendation) (Exemption 2 "high": protects file and source system numbers, distribution codes, and NADDIS and G-DEP numbers that only organize agency material, because disclosure could hamper defendant agency's law enforcement efforts) (Exemption 3 [Rule 6(e)]: defendant agency may withhold grand jury testimony because it segregated and released all publicly available information from it) (Exemption 5: attorney work-product privilege protects Assistant United States Attorney's trial outline and 2 outlines of chronological events) (Exemption 7 (threshold): requirement is satisfied where investigation focused on an individual who had previously violated racketeering and narcotics laws) (Exemption 7(C): protects names of local law enforcement agents, Customs Service supervisors, agents, and clerical employees, as well as names and other data concerning subjects of investigative interest) (Exemption 7(D): because defendant agency gave an express assurance of confidentiality to state officials, their names and the information they provided were properly withheld; protection afforded to names of informants and the information they proffered because the informants would not have provided sufficient information if they had not expected confidentiality).
Powell v. SEC, No. 87-3146 (D.D.C. June 17, 1988) (magistrate's recommendation) (Exemption 2: internally developed screening and reporting forms agency uses to scrutinize registration statements satisfy both prongs of the Crooker v. Bureau of Alcohol, Tobacco and Firearms test; release of segregated factual information "would reveal precisely the staff deliberation that Exemption 2 protects") (Exemption 5: staff examiners' notes on the margins of screening and evaluation forms are clearly within the exemption) (adequacy of search: agency demonstrated that it conducted a thorough computer search supplemented by interviews with 5 employees named by plaintiff).
Quarles v. Dep't of the Navy, No. 85-3395 (D.D.C. July 29, 1988) (Exemption 5: deliberative process privilege protects portions of a report that reflect the evaluation team's opinions as to a specific plan which will almost certainly never be adopted).
Roberts v. HHS, No. 88-2041 (E.D. Pa. Sept. 9, 1988) (Exemption 6: brief, rudimentary medical questionnaires constitute "medical records"; there is no public interest in the release of names of individuals who submitted brief medical questionnaires).
SafeCard Servs., Inc. v. SEC, No. 84-3073, 1988 WL 58910 (D.D.C. May 19, 1988) (Exemption 7(A): agency may submit a generic affidavit for documents in an investigatory file so long as the affidavit meets the requisite standard of specificity) (Vaughn Index: agency's argument for random sampling is rejected, because only 200 documents are at issue a Vaughn Index is appropriate; random sampling by affidavit of Exemption 5 records is denied because commission has not demonstrated that the memoranda in question are so similar as to warrant generic treatment).
Sage v. NLRB, No. 85-0943 (W.D. Mo. Nov. 4, 1987) (attorney fees: there is no significant public benefit where union member sought documents for use in a related civil suit for damages against her union; plaintiff's interest in the documents was primarily personal, although she did seek also to enforce FOIA requirements; judging the reasonableness of the defendant agency's position by the pre-1986 FOIA amendments standards in effect at the time of withholding, the agency had at least a colorable basis for withholding documents under Exemption 7(D)) (discovery: FOIA was not intended as a discovery tool).
Schmerler v. FBI, 696 F. Supp. 717 (D.D.C. 1988) (Exemptions 7(C) and 7(D): in a FOIA request for records about the FBI's investigation of the murder of a noted anthropologist, a remand is necessary because the FBI in its affidavits failed to take into account the clear public interest in disclosure, the prior official release of information, and the substantial passage of time (57 years) since the well-publicized events took place; although the defendant agency recognized that death alters the "calculus" of privacy interests, it only released information from dead sources where the death occurred during the investigation) (Exemption 7(D): assumptions of confidentiality cannot be accepted when applied to interviews taken more than 50 years ago; information solicited by an undercover agent cannot be withheld as the informant could not have expected the agent to keep the information confidential) (Exemption 7(C): names of FBI Special Agents may be withheld unless the agent's involvement has been fully revealed by an official disclosure).
Schmerler v. FBI, 700 F. Supp. 73 (D.D.C. 1988) (Exemptions 7(C) and 7(D): in a 57-year-old murder investigation of historic interest, court denies FBI's motion for reconsideration and orders disclosure of the names of some deceased informants (friends and academic colleagues of the victim), while withholding names of other sources whose interviews were very directly related to the solving of the crime).
Schwaner v. Dep't of the Air Force, 698 F. Supp. 4 (D.D.C. 1988) (Exemption 2: data base that contains names and unit addresses and other basic personnel information is purely internal; "release of personal information to commercial solicitors is unwarranted . . . in the absence of a clear, unique connection between the purpose of the request and the interests of the persons whose names and addresses are being sought"; "low 2": when considering an Exemption 2 request the court is permitted to consider the administrative burden imposed on the agency when internal matters are not likely to be of public interest; mailing-list date properly withheld from insurance agent requester on that same basis).
Sellar v. FBI, No. 84-1611 (D.D.C. July 22, 1988) (adequacy of agency affidavit: defendant agency's in camera affidavits must be supplemented to reflect that the affiant has reviewed the documents to see that the exemptions were properly claimed).
Shields v. Shetler, 682 F. Supp. 1172 (D. Colo. 1988) (agency: FOIA does not apply to state agencies or bodies).
Shurtleff v. Dep't of the Treasury, No. 85-1923 (M.D. Fla. Sept. 8, 1987) (Exemption 7(A): protects handwritten notes furnished by a confidential source, follow-up reports, reports of investigation, surveillance photographs, Customs agents' handwritten notes and memos, computer printouts, and memoranda of information received) (Exemption 7(D): protects handwritten notes furnished by a confidential source, follow-up reports, memoranda of information received, memoranda for the record, and computer printouts) (Exemption 7(C): protects information concerning subjects of investigative interest, including computer printouts, inter-office memoranda, handwritten notes, DMV records and map, and listing of property owners) (Exemption 5: protects internal, handwritten memoranda).
Shurtleff v. Dep't of the Treasury, No. 85-1923 (M.D. Fla. Dec. 28, 1987) (attorney fees: assessing the quality, quantity, and substance of the documents released, plaintiff has not substantially prevailed; the mere fact that documents were not released until after suit was instituted is insufficient to establish that plaintiff has substantially prevailed; "any benefit public conceivably may have received is merely incidental").
Siminoski v. FBI, No. 83-6449 (C.D. Cal. Nov. 3, 1988) (magistrate's recommendation) (adequacy of search: defendant agency was obliged to search every branch office for documents relating to the subject matter, as plaintiff had specified in his FOIA request) (Vaughn Index: the index is inadequate for judicial review, defendant agency failed to engage in a meaningful review of the effects of the age of the documents on the privacy investigative interests involved) (Exemption 7 (threshold): the FBI's investigation and surveillance of gay and lesbian groups were not of a law enforcement nature) (Exemption 1 [E.O. 12,356]: although the Vaughn Index was inadequate, the court in an exercise of caution reviewed a sampling of the documents in camera, rather than order the material disclosed; releases 20-40-year-old information concerning a foreign contact and dates of surveillance activities and a brief description of the activities because this information will not reveal sources; protects information, including identity codes, file numbers, symbol numbers, names of files, and reports on activities that alone or in combination with other data would reveal either domestic (current or non-active) or foreign intelligence sources; protects foreign government information, including a 30-year-old memorandum from a confidential foreign source received under explicit confidentiality restrictions) (Exemption 7(C): orders disclosure of the name of a clergyman who wrote a letter to the FBI in 1953 and the initials of the FBI employee who drafted the response; releases the names and addresses of people investigated 30 years ago regarding the publication of a magazine or a foundation; protects the names of people identified in 30-year-old police records as homosexuals; releases the names of persons who belonged to homosexual organizations 30 years ago and the names of people who gave information to the FBI about them) (Exemption 7(D): defendant agency's affidavit did not demonstrate that the information was furnished only by a confidential and/or institutional source) (fee waiver: plaintiff who sought information about the FBI's investigation of gay and lesbian organizations should be granted a waiver of all unpaid fees because the request was made for a bona fide study of the practices of a federal agency in an area of great sensitivity).
Simpson v. Dep't of Justice, No. 87-2832 (D.D.C. Sept. 30, 1988) (Exemption 2: "low 2" protects administrative markings; "low 2" and "high 2" protect NADDIS numbers and G-DEP codes; "high 2" protects informant identifier codes) (Exemption 7 (threshold): information compiled by DEA during an investigation of criminal drug activity qualifies prima facie as "compiled for law enforcement purposes") (Exemption 7(A): protects a Personal History Report, Acquisition of Non-Drug Property Reports, teletypes, and Reports of Investigation, including surveillance reports, informant debriefings, intelligence reports, and reports on the executions of search warrants) (Exemption 7(C): protects names and information about confidential sources, third parties, subjects of investigative interest, and names of non-agent DEA personnel) (Exemption 7(D): protects identities of confidential sources, including foreign, state, and local law enforcement agencies, and the information furnished by these sources under an express assurance of confidentiality) (Exemption 7(E): protects DEA law enforcement techniques not yet well known to the public) (Exemption 7(F): protects names and identities of DEA Special Agents, supervisory agents, and other law enforcement officials) (adequacy of search: search was adequate even though plaintiff alleges that certain documents which exist were not recovered in agency's search).
Singer v. Rourke, No. 87-1213-C (D. Kan. Dec. 30, 1988) (Exemption 2: exemption inapplicable to documents concerning an investigation of sexual and racial harassment, as well as retaliation in a federal agency) (Exemption 6: documents comprised of disciplinary actions and/or sexual and racial harassment complaints against individuals are "similar" files, whose disclosure would be an unwarranted invasion of personal privacy; because the documents are so "individually detailed" they need not be redacted, any significant disclosure would practically guarantee the identification of the witness or the victim) (Exemption 7 (threshold): requirement is met when the Air Force investigated specific allegations against specific individuals and the investigation was within their statutory authority) (Exemption 7(A): the exemption does not apply because the investigation has terminated) (Exemption 7(C): disclosure of documents that contain highly personal and intimate information as well as serious allegations of misconduct on the part of public officials would be an unwarranted invasion of personal privacy to both the alleged wrongdoers and the alleged victims and witnesses) (Exemption 7(D): disclosure of witness statements given under promises of confidentiality would greatly hamper the government in conducting similar investigations in the future).
Snyder v. HUD, No. 85-3169 (D.D.C. Dec. 23, 1986) (adequacy of search: defendant agency's affidavits provide sufficient detail to determine the scope and thoroughness of the search).
Southam News v. INS, No. 85-2721 (D.D.C. May 20, 1988) (order to show cause why agency should not be held in contempt for failing to obey court's September 29 order to release documents), order to show cause vacated (D.D.C. June 8, 1988) (failure to produce documents held to be due to inadvertent neglect by Assistant United States Attorney).Spiegel v. Dep't of the Army, No. C87-0115 (W.D. Ky. Dec. 16, 1988) (attorney fees: "causal nexus" has been shown by the timing of the disclosures and by defendant agency's failure to argue otherwise; although plaintiff's interest in the records was purely personal, the public will benefit from the release of information concerning the degree to which public agencies are complying with equal employment opportunity obligations; the court cannot say that the withholding of affirmative action records had any reasonable basis in law because the agency never stated a reason for the withholding; grants plaintiff $2282.39 to recover one-third of the reasonable fees incurred in this litigation).
Stebbins v. EEOC, No. 87-1148 (D.D.C. Aug. 15, 1988) (no improper withholding: case dismissed because defendant agency properly had destroyed the requested records pursuant to agency's records administration procedures).
Steyermark v. von Raab, 682 F. Supp. 788 (D. Del. 1988) (Exemption 5: release of internal correspondence concerning an investigation would inhibit the deliberative process) (Exemption 6: disclosure of Customs agent's name will not further any public interest).
Sturm v. James, 684 F. Supp. 1218 (S.D.N.Y. 1988) (Federal Register publication: because there is no contention that nonpublication of the record in question adversely affected the petitioner, that record is not subject to the publication requirement of subsection (a)(1)).
Taylor v. FBI, No. N-82-358 (D. Conn. Apr. 26, 1984) (FOIA/PA interface: the Privacy Act is not an Exemption 3 statute).
Teichgraeber v. Bd. of Governors, Fed. Reserve Sys., No. 87-2505-0 (D. Kan. Oct. 14, 1988) (Exemption 8: the broad, all-inclusive scope of the exemption protects information concerning a defunct bank and its parent company) (Exemption 5: nonfinal draft documents are protected by the deliberate process privilege).
Terhune v. Comm'r, No. 86-60458 (E.D. Mich. Aug. 11, 1987) (exhaustion: so long as a FOIA request remains unperfected, defendant agency's administrative appeal procedures are inapplicable).
Texas v. ICC, No. A-87-CA-016 (W.D. Tex. Mar. 2, 1988) (Exemption 5: communications between agency and attorneys for an interested nonagency party do not meet the inter- or intra-agency requirement; draft documents reflect defendant agency's deliberative processes at the administrative level; attorney work-product privilege protects consultative recommendations prepared by defendant agency's general counsel).
Thurner Heat Treating Corp. v. NLRB, No. 82-C-630 (E.D. Wis. July 27, 1988) (on remand, the court finds that most of the disputed agency records are protected in their entirety, a few are protected in part under Exemptions 5, 7(A), 7(C), and 7(D), and a few must be disclosed with no redaction).
Trans-Union Fastener Corp. v. United States Customs Serv., No. 86-1184-C (W.D.N.Y. Sept. 13, 1988) (Exemption 7(D): protects 56 pages of information received under a promise of confidentiality in the course of a criminal investigation).
Triax Scott AFB Venture v. Sec'y of the Air Force, No. 85-C-0329J (D. Utah Aug. 26, 1986) (attorney fees: plaintiff is not entitled to attorney fees when he received the document sought under the FOIA as a result of discovery in a separate action).
Tripati v. Dep't of Justice, No. 87-3301 (D.D.C. Apr. 15, 1988) (exhaustion: plaintiff did not file a timely appeal of agency's partial denial of his FOIA/PA request).
Turner v. United States, No. 88-0299 (S.D. Cal. Nov. 29, 1988) (finds that plaintiff has failed to state a case under the FOIA, his Complaint lacks specificity as to the federal records requested, the dates of his requests, and the agencies which denied the requests).
United Merchants & Mfrs. v. Meese, No. 87-3367 (D.D.C. May 27, 1988) (Exemption 5: protects single-page intra-office memorandum setting forth the proposed terms of settlement of a terminated contract).
United Merchants & Mfrs. v. Meese, No. 87-3367 (D.D.C. Aug. 10, 1988) (attorney fees: plaintiff who tried without success by following up on its original FOIA request is eligible for attorney fees; although there was a plain commercial incentive, the disclosure of documents pertaining to defendant agency's contracting and procurement procedures would serve some public interest; there is no reasonable justification for defendant agency's failure to process plaintiff's FOIA request for nearly a year; plaintiff's claim for attorney fees was reduced by one-third, because "the amount of time actually expended is not necessarily the amount of time reasonably expended").
Van Atta v. Def. Intelligence Agency, No. 87-1508, 1988 WL 73856 (D.D.C. July 6, 1988) (Exemption 1: exemption protects "information compiled at the request of a foreign diplomatic delegation for negotiations and discussions on a sensitive topic"; disclosure of information to a foreign power does not waive the protection of the exemption) (adequacy of agency affidavit: in an Exemption 1 case the affidavit demonstrates that release of MIA sighting reports would jeopardize the success similar of efforts in the future).
Varellas v. Dep't of Justice, No. 88-1565 (D.D.C. Dec. 15, 1988) (Exemptions 7(C) and 7(D): protect names of FBI Special Agents and employees and identifying information concerning third parties and informants).
Vennes v. IRS,
No. 5-88-36 (D. Minn. Oct. 14, 1988) (Exemption 3 [31 U.S.C.
Vietnam Veterans of Am. v. Dep't of the Navy, No. 86-0357 (D.D.C. Sept. 6, 1988) (subsection (a)(1)(D): legal opinions prepared by the Office of the Judge Advocate General need not be published in the Federal Register) (subsections (a)(2)(B) and (a)(2)(C): legal opinions prepared by the Office of the JAG which are summarized and indexed for use by attorneys within the office need not be made available in public reading rooms) (Exemption 5: JAG opinions would be exempt from disclosure under the deliberative process privilege because releasing them would confuse the issues and mislead the public).
Voinche v. Dep't of Justice, No. 87-1181-A (W.D. La. Oct. 7, 1987) (summary judgment: defendant agency is entitled to summary judgment because its affidavit demonstrated the adequacy of its search for requested documents, even though that search revealed no records).
Wash. Post Co. v. DOD, No. 84-2402 (D.D.C. Apr. 11, 1988) (waiver of exemption: defendant agency may raise new exemption upon rehearing at the district court level when release of the information requested could compromise the national security) (Exemption 1: it is permissible for an agency to classify documents "at times later than the origination of the document") (Vaughn Index: defendant agency need not supply a more detailed itemization of requested documents when to do so would violate Exemption 1).
Wash. Post Co. v. DOD, No. 84-2403 (D.D.C. Apr. 15, 1988) (Exemption 1: foreign government information was properly classified; although there has been much discussion about El Salvador in the news media, the detailed information in these documents is not likely to be in the public domain) (Exemption 5: documents used to brief agency officials for an impending trip to El Salvador and a post-trip report are protected by the deliberative process privilege; factual assertions are thoroughly intertwined with opinions and impressions).
Wash. Post Co. v. Dep't of Justice, No. 84-3400 (D.D.C. June 10, 1988) (in camera inspection, ex parte setting) (Exemption 1: information contained in the challenged deletions was entitled to protection and there had been no official public disclosure to warrant release of the information) (in camera inspection: the 15 discrete challenges to defendant's redactions constituted a fair representative sampling of the approximately 164 challenged redactions).
Wash. Psychiatric Soc'y v. OPM, No. 87-1913, 1988 U.S. Dist. LEXIS 17609 (D.D.C. Oct. 13, 1988) (Exemption 4: release of 2-year-old tables and utilization reports of larger carriers who participate in the Federal Employees Health Benefit Program would harm their competitive position because it would enable other carriers to design a more profitable benefits package without incurring the same costs or risks).
Williams v. Dep't of Justice, No. 87-1567 (D.D.C. Nov. 5, 1987) (jurisdiction: court lacks subject matter jurisdiction because all documents responsive to plaintiff's FOIA request have been released to him).
Wilms v. Bowen, No. C85-3331 (N.D. Ohio Dec. 12, 1986) (magistrate's recommendation) (attorney fees: although documents were released, attorney fees denied because plaintiff would have received the first category of documents in the ordinary course of business, and he failed to demonstrate public benefit from the release of the second category of documents), adopted (N.D. Ohio Jan. 13, 1987).
Wynn v. United States, No. 87-0553 (D.D.C. June 27, 1988) (summary judgment granted to defendant agencies because they were unable to identify any documents responsive to plaintiff's request).
XYZ Corp. v. Consumers Prod. Safety Comm'n, No. 87-94 (N.D. Miss. Sept. 22, 1987) ("Reverse" FOIA: motion for preliminary injunction is denied, because information is not prohibited from being disclosed; denies motion to seal the record, finding that plaintiff is seeking to prevent an interested party from intervening) (Exemption 4: release of a letter alleging product safety violations will neither cause competitive injury nor will it impair the government's ability to obtain similar information in the future).
Other Courts
Rogers v. United States, 15 Cl. Ct. 692 (1988) (jurisdiction: Claims Court does not have jurisdiction over FOIA and Privacy Act matters; jurisdiction lies with federal district courts).
Schmidt v. United States, 3 Cl. Ct. 190 (1983) (jurisdiction: Claims Court does not have jurisdiction over FOIA matters; jurisdiction lies with federal district courts). (posted 1/28/04)
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