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New FOIA Decisions, October-December 2004

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


Appeals Courts

Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004) (Exemption 1 [E.O. 12,958, as amended]: the CIA properly refused to confirm or deny the existence of records about plaintiff; it demonstrated that even providing a list of any nonclassified documents, and claiming exemptions, would reveal details about intelligence-gathering methods -- methods that are classified independently of the information in the documents) (waiver of exemption: incorrectly conflating two distinct concepts in concluding that the CIA did not waive its right to use a "Glomar" denial when it conceded that it possessed some responsive documents by using its so-called "no number, no list" response, by which it refuses to state the number of responsive documents it maintains or to provide a list of those documents; in dicta, incorrectly opining that a "Glomar" denial and a "no number, no list" response are "functionally identical" and that the "verbal distinction should be eliminated") (Vaughn Index: "Exemption 1 would not mean much if all anyone had to do, to see the full list of the CIA's holdings, was allege that the agency had some documents showing how he 'exercises rights guaranteed by the First Amendment.'").

Burr v. Huff, 112 F. App'x 537 (7th Cir. 2004) (affirms district court's ruling in this FOIA action; plaintiff's Complaint is factually frivolous and "rise[s] to the level of the irrational or wholly incredible" because she has not demonstrated that the FBI actually has documents about her in connection with her alleged "bomb complaint" against Green Bay Packer quarterback Brett Favre and his wife).

Clark v. United States, 116 F. App'x 278 (Fed. Cir. 2004) (lower court properly dismissed this action because FOIA claims are not within the subject matter jurisdiction of the Court of Federal Claims).

Diaz v. Fed. Bureau of Prisons, 55 F. App'x 5 (1st Cir. 2003) (Exemptions 6 and 7(C): affirms district court's ruling that exemptions protect an audiotape of a monitored telephone conversation between plaintiff, a prison inmate, and his former trial attorney on a monitored telephone line).

Duggan v. United States Dep't of Justice, No. 04-1445 (1st Cir. Sept. 29, 2004) (per curiam) (affirms district court's dismissal plaintiff's FOIA action, because the FOIA does not require the Department of Justice's Criminal Division to search for records maintained at other federal agencies or other components of the Justice Department).

Elec. Privacy Info. Ctr. v. Dep't of Justice, No. 04-5063, 2004 WL 2713119 (D.C. Cir. Nov. 24, 2004) (appeal dismissed as moot and district court judgment vacated; parties jointly moved for dismissal after defendant agency responded to plaintiff's FOIA request and thereby mooting the expedited processing issue).

Fonzone v. Dep't of the Treasury, 64 F. App'x 850 (3d Cir. 2003) (Exemption 3 [26 U.S.C. 6103]: affirms district court ruling that the statute protects third-party tax return information).

Moore v. The United Kingdom, 384 F.3d 1079 (9th Cir. 2004) (agency: the FOIA applies only to agencies of the executive branch of the United States government; it does not apply to any foreign government).

Oguaju v. United States, 386 F.3d 273 (D.C. Cir. 2004) (per curiam) (Exemption 7(C): denies plaintiff's petition for rehearing in this FOIA action where the court found that plaintiff had offered no evidence that "would warrant a belief by a reasonable person" that the Justice Department mishandled his Brady v. Maryland request; the "presumption of legitimacy" language in the August 17, 2004 opinion was what was deleted in the October 21, 2004 opinion; makes language amendments to court's August 17, 2004 opinion).

Pinnavaia v. FBI, No. 04-5115, 2004 WL 2348155 (D.C. Cir. Oct. 19, 2004) (per curiam) (Exemption 7(A): on motion for summary affirmance, rules that district court properly found that disclosure of the FBI records at issue "could reasonably be expected to interfere with enforcement proceedings"; while the FBI's San Diego investigation is closed, its New York Field Office records containing cross-references to plaintiff are part of the investigatory files for a separate, ongoing investigation).

Shoemaker v. United States Dep't of Justice, 121 F. App'x 127 (7th Cir. 2004) (without specification, affirms the district court ruling that the agency's affidavits demonstrated that it properly withheld information under FOIA Exemptions 2, 3 [18 U.S.C. 2511(2)(c), 2517], 5, 7(C), and 7(D)).


District Courts

Aftergood v. CIA, No. 02-1146, 2004 U.S. Dist. LEXIS 27035 (D.D.C. Sept. 29, 2004) (denies plaintiff's motion to alter or amend the court's February 6, 2004 ruling that Exemption 3 [50 U.S.C. 403-3(c)(7)] protected the CIA's FY 2002 aggregate intelligence budget; plaintiff has not demonstrated that the CIA's affidavits were controverted by contrary record evidence or by any evidence supporting his recurring allegation of agency "bad faith").

Diaz v. Fed. Bureau of Prisons, No. 01-40070 (D. Mass. Dec. 20, 2001) (magistrate's recommendation) (Exemption 6: audiotapes are similar files for purposes of the FOIA) (Exemptions 6 and 7(C): protect an audiotape of a monitored telephone conversation between plaintiff, a prison inmate, and his former trial attorney on a monitored telephone line; plaintiff's attorney was not advised that the telephone call was being monitored, and he did not consent to disclosure of his portion of the conversation; plaintiff has not identified a public interest in disclosure sufficient to overcome his attorney's privacy interest), adopted (D. Mass. Feb. 7, 2002).

Doyharzabal v. Gal, No. 7:00-2995, 2004 WL 2444124 (D.S.C. Sept. 13, 2004) (Vaughn Index: denies plaintiff's request for a Vaughn Index of information withheld under the FOIA, because the affidavit of the Bureau of Prisons provides him with the equivalent of a Vaughn Index; the affidavit itemizes the exempt portions of the records and provides the rationale for withholding those items under Exemptions 2, 7(C), and 7(F)).

Elec. Privacy Info. Ctr. v. DOD, 355 F. Supp. 2d 98 (D.D.C. 2004) (expedited processing: the Defense Intelligence Agency (DIA) properly denied expedited processing of plaintiff's FOIA request concerning its use of a software program known as "Verity K2 Enterprise," data mining technology that can detect potential terrorist activity; plaintiff has not demonstrated an "urgency to inform the public" about or a "substantial interest" in the specific use of the software program, but instead has shown only a general public interest in the "umbrella" subject of data mining programs (of which there are a significant number) in general; DIA's use of the Verity software has been public knowledge since at least December 2002 and yet major news organizations have not published any articles addressing the software's possible data mining capabilities).

Elnashar v. United States Dep't of Justice, No. 03-5110, 2004 U.S. Dist. LEXIS 19888 (D. Minn. Sept. 30, 2004) (exhaustion: plaintiff failed to exhaust his administrative remedies because he never appealed the FBI's denial of his FOIA request for records about himself).

Flowserve U.S., Inc. v. Dep't of Labor, No. 3:04CV0868, 2004 WL 2451829 (N.D. Tex. Nov. 2, 2004) (Exemption 7(D): in this FOIA action where plaintiff requested documents compiled during OSHA's civil investigation of an oil refinery fire, finds that defendant agency has shown that employee-witnesses were given express promises of confidentiality; although the agency described the unique vantage point of each of the ten witness (e.g., "employee [#]3's experiences with the valve and personal comments related to his work"), the court inexplicably rules that agency must redact and produce the employee statements and interview notes to the extent possible without disclosing the identities of the employee-witnesses) (Exemption 7(C): agency has not shown that the management employees involved have "a particular privacy interest" in their interview statements sufficient to overcome the significant public interest in evaluating OSHA investigations; interview statements must be released with information that would identify the managers redacted).

Forest Guardians v. Fed. Emergency Mgmt. Agency, No. 03-134 (D.N.M. Feb. 4, 2004) (Exemption 6: disclosure of information that will essentially lead to the revelation of flood insurance policy holders' names, addresses, and their status as participants in a federally subsidized program "represents a palpable threat" to their privacy; the public interest is "minimal" given that the explicit purpose of the National Flood Insurance Program is to govern the manner of new construction in flood-prone areas and given the material the agency has already disclosed to the plaintiff).

Hardison v. Principi, No. 02-22706 (S.D. Fla. Sept. 22, 2004) (magistrate's recommendation) (Exemption 6: the "great" public interest in disclosure of information about physicians on the staff of a VA hospital outweighs the "slight" privacy interests of the doctors; while the number individuals about whom plaintiff seeks information is small, the public has an interest in the competence of the VA hospital medical staff, its qualifications, training, workload, and services provided; on in camera inspection of a sample of the responsive documents, recommends that the VA release unredacted activity logs, medicine log summary sheets, and medical residents' performance evaluations; recommends that log summary sheets be released with patients' names, social security numbers, sexes, and ages redacted; recommends that various personnel records be released, including the doctors' names, places of birth, dates of birth, dates of marriage, employment histories, and spouses' names; the VA may withhold the doctors' home telephone numbers, home addresses, social security numbers, health information, and information concerning the doctors' personal choices regarding insurance and benefits), adopted (S.D. Fla. Nov. 8, 2004) (information must be released within 30 days).

Homick v. United States Dep't of Justice, No. C 98-00557 (N.D. Cal. Oct. 27, 2004) ("exceptional circumstances"/"due diligence": denies the FBI's motion for a 6-month Open America stay to produce nonexempt documents requested by plaintiff, because the FBI has repeatedly failed to meet the various deadlines set by the court for more than 2 years) (waiver: with respect to the 4 categories of documents that the court directed the FBI to release on September 13, 2004, orders that the 3500 pages of "non-identical" duplicates and the cassette tape be reprocessed and released; the informant file on Stewart Siegel, the 5 new main files, and 16 cross-reference files must be released in their entireties; plaintiff requested this information in 1992, filed a FOIA Complaint in 1998, and evidently "the FBI expects to continue to locate and process responsive documents") (Exemption 7(C): the FBI has must release all information about Stewart Siegel, a former "top echelon" FBI informant who provided information on organized crime, because his privacy interests do not survive his death and he publicly testified at trial; the FBI must disclose information that would identity FBI Special Agents, state, local, and county law enforcement personnel, DEA employees, interviewees, and third parties) (Exemption 7(D): the FBI must release all information about Stewart Siegel because his identity already has been disclosed; protects 3 letters in their entireties in order to protect the identities of informants who provided information to the FBI under implied promises of confidentiality and their attorneys) (Exemption 6: does not protect derogatory personal information about one party and personal information about another) (Exemption 7(F): FBI has not justified the withholding of information that would identify FBI informants, because the individuals testified at plaintiff's trial and the information the FBI presents about plaintiff's violent nature, as a triple murderer, relates to activities that occurred in the 1980s and plaintiff is now incarcerated).

In Def. of Animals v. USDA, No. 02-0557 (D.D.C. Sept. 28, 2004) (adequacy of search: USDA has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request for information about its investigation of a company for possible violations of the Animal Welfare Act; the fact that the USDA failed to locate a video and photographs specifically requested by plaintiff does not rebut the presumption of the agency's good faith in its search efforts; the agency need not search the home of its former primary investigator to determine whether he is in possession of responsive documents) (Vaughn Index: USDA's categorical Vaughn Index is insufficiently detailed and does not allow the court to determine whether all "reasonably segregable" information has been released from 1075 documents; parties must confer and submit a joint written status report by October 28, describing a proposed schedule by which the USDA will produce a new Vaughn Index) (Exemption 5: agency has shown that 16 pages containing recommendations, evaluations, and opinions are deliberative and predecisional, but it has not shown whether there are any segregable portions; USDA has shown generally that 16 pages are protected by the attorney work-product privilege but it has not shown with specificity that all the material was created in anticipation of litigation) (Exemption 4: USDA has not shown that the release of 1042 pages will cause substantial competitive harm to the investigated company, nor that all "reasonably segregable" information has been disclosed).

Jones v. Fed. Bureau of Prisons, No. 03-1647 (D.D.C. May 18, 2004) (exhaustion: denies defendant agency's motion to dismiss this FOIA action for plaintiff's failure to exhaust his administrative remedies; reaching the merits of plaintiff's claim does not undermine the purposes of administrative review) (duty to search: agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 7 (threshold): agency has not shown that transcripts of certain telephone calls plaintiff placed from prison were compiled for law enforcement purposes).

Jones v. Fed. Bureau of Prisons, No. 03-1647 (D.D.C. Oct. 6, 2004) (Exemption 7 (threshold): agency has shown that the monitoring and taping of inmate telephone calls serves a law enforcement purpose) (Exemption 7(C): agency may not withhold entire pages in which protected third-party identifying information appears; within 60 days the agency must release the tapes or transcripts (if the agency decides to transcribe the tapes) to plaintiff with the third-party identifying information redacted).

Judicial Watch, Inc. v. United States Dep't of Commerce, 224 F.R.D. 261 (D.D.C. 2004) (strikes "the critical majority" of FOIA Director Sonya Stewart's affidavit concerning the adequacy of defendant agency's second search in response to plaintiff's FOIA request; finds that "the critical majority" of her declaration contains "irrelevant, impugning and/or inflammatory statements" and impermissible hearsay, and that the affiant lacks the requisite personal knowledge)

Judicial Watch, Inc. v. United States Dep't of Commerce, 337 F. Supp. 2d 146 (D.D.C. 2004) (duty to search: FOIA Director Sonya Stewart's declaration notwithstanding, finds that the defendant agencies have demonstrated that they have conducted adequate searches for records in this consolidated FOIA action) (Exemption 1 [E.O. 12,958]: protects military plans, weapons systems or operations, information about foreign governments, intelligence activities, sources or methods, and foreign relations or relations of the United States, including confidential source information and scientific, technological, or economic matters related to national security; public disclosure of this information, by itself or in the context of other information, would threaten national security) (Exemption 2 "high": agency properly withheld guidelines for protecting the Secretary of Commerce on trade missions, guidelines for internal travel expense audits, credit card numbers, file numbers, and other administrative markings that indicate certain aspects of enforcement cases, and documents describing communication methods; disclosure would significantly risk circumvention of agency regulations) (Exemption 3 [50 U.S.C. 403-3(c)[7]]: protects intelligence sources and methods and the functions, names, and official tiles of CIA personnel; [50 U.S.C. 403g]: protects the CIA's organization and function and any information about its employees or activities; [50 U.S.C. 2411(c)(1)]: protects information pertaining to export license applications; [5 U.S.C. app. 107(a)(2)]: protects government employees' reports to supervising ethics offices; [35 U.S.C. 122]: protects patent applications and information pertaining to such patents; [Rule 6(e)]: protects information that would identify targets or subjects of grand jury investigations and grand jury subpoenas; [22 U.S.C. 1461]: protects from dissemination within the United States certain materials prepared for dissemination abroad by the United States Information Agency) (Exemption 4: protects information required to be submitted by parties hoping to participate in or seeking advocacy during a Department of Commerce trade mission, because disclosure is likely to cause the submitting entities substantial competitive harm; disclosure would impair the government's ability to collect and utilize similar information in the future; protects 16 documents voluntarily submitted to the Department of Commerce with "more usually tacit than explicit" understandings that the information would be held in confidence) (Exemption 5: protects documents regarding the selection of companies to assist the Secretary on trade missions, policy and advocacy decisions, post-trade policies, the establishment of the Ronald H. Brown Memorial Library and issue papers, a draft trade agreement, contract information, advocacy matrices, and a draft business promotion package because they contain subjective analyses, candid comments, and recommendations; the attorney-client privilege protects department employees' requests for legal advice to the Office of the General Counsel and also the responses, including a request for advice from the Secretary's wife concerning her husband's attendance at a fundraising event; the attorney work-product privilege protects attorneys' handwritten notes made during hearings and meetings to discuss plaintiff's FOIA requests and this and other litigation, including one memorandum and the attached 82 pages of organized, abridged deposition testimony that it introduces) (Exemption 6: balancing personal privacy interests against the public interest in disclosure, finds that the exemption protects social security numbers, home telephone numbers and addresses, a discussion of a visa applicant, visa and passport information, dates of birth, medical information, credit card information, personal information about a government official, performance appraisals that are not responsive because they pre-date the parameters of the search at issue, information in the Secretary's appointment calendar and schedule, the names and acquaintances of trade mission participants and a cab driver, a rejected résumé, the name of a third party, and a telegram referring to a financier and his personal financial status and alleged legal difficulties in a foreign country) (Exemption 7(A): protects information relating to an ongoing grand jury proceeding concerning violations of campaign finance laws, ongoing export enforcement actions, an ongoing grand jury proceeding, and ongoing criminal enforcement actions because disclosure would diminish the government's ability to shape and control the law enforcement proceeding) (Exemption 7(C): balancing personal privacy interests against the public interest in disclosure, finds that the exemption protects the identities of export enforcement agents, nonsupervisory FBI and Commerce Department employees, the names of private contract or government employees conducting or supervising investigations, and information compiled for the background investigation of John Huang) (Exemption 7(E): protects techniques used to identify parties and transactions that should be monitored for violations of Export Administration regulations, security procedures, firearms specifications, and radio frequencies; disclosure could allow potential violators to circumvent the law) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (while ultimately granting the government's motion for summary judgment in this protracted litigation, the court "simultaneously invites" plaintiff to file an application for attorney fees and to move the court to make any findings needed to cause referral of the Department of Commerce's activities to the Office of Special Counsel for "other appropriate sanctions").

Juste v. United States Dep't of Justice, No. 03-723 (D.D.C. Jan. 30, 2004) (duty to search: defendant agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request for records about himself and his co-defendants) (Exemption 2 "high": disclosure of G-DEP codes and NADDIS numbers would help identify the priority that DEA gives to particular investigations, the types of criminal activity involved, and violator ratings) (Exemption 7(C): protects information that would identify government employees, DEA Agents, subjects of investigative interest to DEA, and third parties; agency properly refused to confirm or deny the existence of records on third parties who testified at plaintiff's trial) (Exemption 7(D): protects information that would identify informants, because an implied promise of confidentiality may be inferred due to the inherently violent nature of drug trafficking) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Kennedy v. United States Dep't of Justice, No. 03-CV-6077, 2004 WL 2284691 (W.D.N.Y. Oct. 8, 2004) (Exemption 7(C): in the absence of any public interest in disclosure, finds that the exemption protects the identities of FBI Special Agents, FBI support personnel, and third parties contained in records concerning plaintiff's bankruptcy fraud conviction) (adequacy of search: the FBI searched 2 appropriate locations for responsive records, but it failed to search its Buffalo Field Office that was specifically mentioned in plaintiff's FOIA request; the FBI instead informed him that responsive documents were likely to be there and provided him with an address so that he could contact that office; the FBI's search therefore was not adequate) (in camera inspection: denies plaintiff's request for in camera inspection, because he has presented no evidence of agency bad faith) (orders both parties to a conference in the courthouse on October 19).

Kennedy v. DHS, No. 03-CV-6076, 2004 WL 2285058 (W.D.N.Y. Oct. 8, 2004) (exhaustion: any dispute plaintiff has with the Justice Department is not properly before the court because plaintiff failed to exhaust his administrative remedies by appealing its denial of his initial FOIA request) (adequacy of search: the Secret Service has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request, but it must show that documents that it may have referred to other agencies for processing have not been withheld in their entireties) (Exemption 7(C): in the absence of a public interest in disclosure, finds that the exemption protects the names, signatures, and information that would identify Secret Service and FBI employees contained in records concerning plaintiff's bankruptcy fraud conviction) (Exemption 4: protects "ink names and coding" because ink manufacturers voluntarily provided this information to the government with the understanding that it would not be publicly disclosed and, therefore, disclosure would impair government efforts to obtain such information in the future) (in camera inspection: denies plaintiff's request for in camera inspection, because he has presented no evidence of agency bad faith, even where plaintiff received records almost 2 years after he requested them) (orders both parties to a conference in the courthouse on October 19).

Lopez v. United States Dep't of Justice, No. 99-1722 (D.D.C. Mar. 19, 2001) (Exemption 3 [Rule 6(e)]: disclosure of grand jury subpoenas, writs ad testificandum, and requests for production of prisoners would reveal the identities of grand jury witnesses) (Exemption 7(C): in this FOIA action where plaintiff seeks information relating to his former defense counsel who he claims was under criminal investigation at the time he represented plaintiff, finds that defendant agency's affidavit is lacking in sufficient detail to show that the public interest in disclosure is outweighed by the attorney's privacy interests; orders agency to prepare a Vaughn Index within 30 days).

Lopez v. United States Dep't of Justice, No. 99-1722 (D.D.C. Mar. 11, 2002) (Exemption 3 [Rule 6(e)]: disclosure of the dates of issuance of grand jury subpoenas would reveal the scope and development of the grand jury investigation; agency properly did not provide plaintiff with the dates).

Martinez v. EEOC, No. 04CA0391, 2004 WL 2359895 (W.D. Tex. Oct. 19, 2004) (Exemption 7 (threshold): the requirement is met by records compiled by the EEOC during its investigation into plaintiff's charges of discrimination by his former employer, because the exemption's law enforcement purpose may be criminal or civil) (Exemption 7(D): the EEOC investigator's declaration establishes that 2 witnesses were given express promises of confidentiality, even though these assurances were not memorialized; the EEOC has demonstrated implied promises of confidentiality because release of the identities of the witnesses would subject them to possible retaliation by the employer) (FOIA as a discovery tool: plaintiff may not use the FOIA to circumvent the discovery process and thereby frustrate the investigative procedures of the EEOC).

Maydak v. United States Dep't of Educ., No. 03-1091 (W.D. Pa. Sept. 29, 2004) (dismisses plaintiff's FOIA action; plaintiff -- who fled the United States to avoid prosecution, is currently fighting extradition from a Canadian jail, and seeks relief from the very court he is fleeing -- is a fugitive subject to the Fugitive Disentitlement Doctrine because "there [exists] a connection between the plaintiff's fugitive status and the civil action," and "those who demand equity must come into court with clean hands").

McDade v. Executive Office for United States Attorneys, No. 03-1946 (D.D.C. Sept. 29, 2004) (exhaustion: plaintiff failed to exhaust his administrative remedies with respect to the FBI because he did not appeal its initial "no records" response to his FOIA request) (fee waiver: denies plaintiff's request for a fee waiver with respect to records held by the Justice Department's Executive Office for United States Attorneys (EOUSA); the records pertain to plaintiff and his criminal case, the only intended audience for the records is plaintiff himself, and plaintiff has not shown that disclosure would contribute significantly to the public understanding of government operations) (Exemption 7(C): protects information about third parties contained in law enforcement files; EOUSA properly refused to search for records about 10 named third parties for whom plaintiff submitted neither express authorizations nor proofs of death; plaintiff has not shown that this information is in the public domain; a witness who testifies at trial does not waive personal privacy).

McMillian v. Fed. Bureau of Prisons, No. 03-1210, 2004 WL 4953170 (D.D.C. July 23, 2004) (exhaustion: denies defendant agency's motion to dismiss plaintiff's Complaint insofar as it seeks the release of audiotapes of telephone calls other than a February 8 call; plaintiff's initial FOIA request clearly asked for audiotapes of several telephone calls and he clearly appealed the nondisclosure of all audiotapes, not just the February 8 call) (Exemption 6: audiotapes are similar files for purposes of the FOIA) (Exemptions 6 and 7(C): protect an audiotape of a monitored telephone conversation between plaintiff, a prison inmate, and his trial attorney; plaintiff has not identified a public interest in disclosure sufficient to overcome his attorney's privacy interest and the privacy interests of third parties mentioned in the call) ("reasonably segregable": there are no reasonably segregable, nonexempt portions of the audiotape that can be segregated and released because disclosure would invade the privacy of third parties).

Monaco v. Dep't of Justice, No. 02-1843 (D.D.C. Sept. 24, 2003) (adequacy of search: even though the defendant agency's affidavits failed to describe the search that it conducted in response to plaintiff's FOIA request, the search is found to be adequate because the agency produced 5 of the 6 items that plaintiff requested, and it explained the nonexistence of the last item) (Exemption 7 (threshold): tapes of telephone conversations between a prison inmate and his court-appointed attorney and an investigator were compiled for law enforcement purposes; Bureau of Prison staff members perform law enforcement functions and are charged with the protection of inmates in their custody) (Exemption 7(C): protects the portions of the telephone calls of the other individuals who participated in the recorded calls because plaintiff failed to articulate a public interest in disclosure to outweigh their privacy interests) (Exemption 7(F): protects the names of prison inmates from whom plaintiff must be separated, because of the serious security risks attendant upon identifying these individuals as informants) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Nat'l Council of La Raza v. Dep't of Justice, 339 F. Supp. 2d 572 (S.D.N.Y. 2004) (Exemption 5: on defendant's motion for reconsideration and on in camera inspection, finds that the deliberative process privilege protects portions of one e-mail message that reflect attorneys' discussion of substantive legal and administrative issues because they are predecisional and deliberative; the privilege does not protect portions of two e-mail messages because they are neither, so the Justice Department must provide them to the plaintiff by October 19; the privilege protects the introductory section of the April 2002 Office of Legal Counsel memorandum on the authority of state and local police to enforce federal immigration laws because disclosure would reveal the process of policy formation within the Department, as well as another section analyzing an issue to which the Department has not referred in any public statement; the vast majority of the April 2002 memorandum already has been publicized and incorporated into policy and must be released; the Justice Department's obligation to produce the April 2002 memorandum is stayed until October 24 in order to permit consideration of a further stay for purposes of possible appeal).

Strawhorn v. FBI, No. 03-2451 (D.D.C. Dec. 16, 2004) (FOIA action dismissed due to plaintiff's failure to prosecute; judgment granted in favor of defendant).

Thomas v. IRS, No, 3:03-2080, 2004 WL 3185316 (M.D. Pa. Nov. 2, 2004) (jurisdiction: court lacks jurisdiction in this FOIA action because plaintiff has not exhausted his administrative remedies; plaintiff has not sent a FOIA request to the proper agency location in accordance with IRS regulations, nor has he filed an administrative appeal with the agency).

Torres v. Howell, No. 3:03CV2227, 2004 U.S. Dist. LEXIS 25157 (D. Conn. Dec. 6, 2004) ("not an agency" defense: plaintiff's FOIA action is dismissed because no defendant named in this action is a federal agency or even a federal employee).

Twist v. United States Dep't of Justice, 344 F. Supp. 2d 137 (D.D.C. 2004) (denies plaintiff's request to alter or amend court's August 2, 2004 decision; plaintiff has not shown an intervening change in controlling law, the availability of new evidence, or the need to correct a clear legal error or prevent manifest injustice).

W&T Offshore, Inc. v. United States Dep't of Commerce, No. 03-2285, 2004 WL 2115418 (E.D. La. Sept. 21, 2004) (Exemption 5: on in camera inspection finds that the deliberative process privilege protects portions of 18 documents relating to whether to grant plaintiff a permit so that it can install a pipeline within the boundaries of a national marine sanctuary; the records contain opinions, recommendations, considerations, concerns, and insights; any factual information is "organized or analyzed in such a way that it too may be classified as deliberative"; the attorney-client privilege protects portions of 4 documents that contain confidential communications between agency staff members and agency legal counsel) (mootness: plaintiff's timeliness claim was rendered moot when plaintiff received the requested agency documents) (attorney fees: plaintiff has not substantially prevailed in this FOIA action because the agency properly withheld all portions of the documents at issue; attorney fees denied).

Wiener v. FBI, No. 83-1720 (C.D. Cal. Sept. 27, 2004) (Exemption 1 [E.O. 12,958, as unamended]: in this time-worn FOIA case in which plaintiff seeks further information about the late Beatle John Lennon, finds that the FBI has not shown that the disclosure of the remaining 10 documents that contain foreign government information and intelligence source information would result in harm to the national security; the FBI failed to demonstrate that it would seriously impair relations with a foreign government or undermine ongoing diplomatic activities of the United States if 10 documents that are over 25 years old are released pursuant to the "automatic declassification" provision of the executive order; the FBI has not shown that all "reasonably segregable" information has been released; the FBI must produce unredacted copies of the 10 documents by an unspecified date).

The Wilderness Soc'y v. United States Dep't of the Interior, 344 F. Supp. 2d 1 (D.D.C. 2004) (Exemption 5: although "the mere fact" that a document was created after a settlement agreement was reached does not mandate its disclosure as postdecisional, defendant agency's Vaughn Index is insufficient and does not adequately identify the decision or policy to which 29 documents relate to warrant the application of the deliberative process privilege; agency's Vaughn Index does not show that the deliberative process privilege protects certain draft documents and 51 unsigned, undated, unaddressed, and untitled documents; agency's Vaughn Index does not provide sufficient information to demonstrate that 18 documents are protected by the attorney-client privilege or that 2 documents are protected by the attorney work-product privilege; agency has not shown that all reasonably segregable, nonexempt information has been released; within 30 days the agency must either release the documents or submit a supplemental Vaughn Index) (duty to search: defendant has not conducted a reasonable search in response to plaintiff's FOIA request; it was "unreasonable" for the agency not to search the Office of the Solicitor, an office likely to have responsive documents, even though plaintiff, "an organization with substantial experience making sophisticated FOIA requests," directed its inquiry solely to 4 specific offices; the agency had an "affirmative duty" to refer the request to other components of the agency that it reasonably knew might have responsive documents).

Yip v. Bd. of Trs. of the State Univ. of N.Y., No. 03-CV-00959, 2004 WL 2202594 (W.D.N.Y. Sept. 29, 2004) ("not an agency" defense: the federal FOIA does not apply to records of the State of New York).  (posted 1/10/05)


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