USDOJ: OIP: FOIA Post
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New FOIA Decisions, January-March 2005

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of January through March 2005. 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

Cathedral Candle Co. v. United States Int'l Trade Comm'n, 400 F.3d 1352 (Fed. Cir. 2005) (subsection (a)(1)(D): considering the possible effect of subsection (a)(1)(D) on the question before it of the proper interpretation of part of the Tariff Act, finds that the Commission need not publish an interpretive rule about the confidentiality of questionnaire responses).

City of Chicago v. United States Dep't of the Treasury, No. 01-2167 (7th Cir. Dec. 21, 2004) (the government's petition for rehearing en banc is granted to the extent that panel rehearing is granted; the parties must file supplemental memoranda addressing the impact of the 2005 Appropriation Act by January 11).

Edwards v. Dep't of Justice, No. 04-5044, 2004 WL 2905342 (D.C. Cir. Dec. 15, 2004) (Exemption 7(C): "it is immaterial" whether DEA initially erred when it refused to confirm or deny the existence of records that plaintiff requested under the FOIA; the records were compiled for law enforcement purposes, and disclosure "could reasonably be expected to constitute" an invasion of personal privacy; plaintiff has failed to show that this exact information exists in the public domain; plaintiff has failed to show "compelling evidence" of illegal activity on the part of DEA or to raise "substantial doubt" as to the adequacy of its search).

Flowserve U.S., Inc. v. Dep't of Labor, No. 05-10048, 2005 U.S. App. LEXIS 4731 (5th Cir. Mar. 23, 2005) (per curiam) (grants unopposed motion to dismiss appeal in this FOIA action; formally vacates district court's ruling below that witness statements compiled during OSHA's civil investigation of an oil refinery fire had to be only minimally redacted in a manner that would fail to adequately protect personal privacy and then released; remands with instructions that the case be dismissed as moot).

Lopez v. Dep't of Justice, 393 F.3d 1345 (D.C. Cir. 2005) (Exemption 3 [Rule 6(e)]: affirms district court ruling that disclosure of the dates of grand jury subpoenas, requests for production of prisoners, writs ad testificandum, and post-testimonial witness interviews would reveal secret matters occurring before a grand jury; with respect to any dates of prospective witness interviews, reverses and remands the case to the district court with instructions to order the defendant agency to release such dates, assuming that they do in fact exist in the file).

McDonnell Douglas Corp. v. United States Dep't of the Air Force, No. 02-5342 (D.C. Cir. Dec. 16, 2004) (government's petition for rehearing en banc denied in this "reverse" FOIA action in which the court had found that the Air Force's decision to disclose option year prices and Vendor Pricing Contract Line items was arbitrary and capricious).

McMillan v. Togus Reg'l Office, VA, 120 F. App'x 849 (2d Cir. 2005) (district court properly dismissed FOIA claim because plaintiff failed to exhaust his administrative remedies).

Nat'l Council of La Raza v. Dep't of Justice, No. 04-5474 (2d Cir. Dec. 20, 2004) (Exemption 5: grants the Justice Department's request for a stay pending appeal of the district court's disclosure order concerning the April 2002 memorandum regarding the authority of state and local police to enforce federal immigration laws).

Walsh v. VA, 400 F.3d 535 (7th Cir. 2005) (mootness: affirms district court's finding that plaintiff's FOIA action is moot because all the records he requested have been provided to him; defendant agency's failure to comply with FOIA time limits is not a practice that is "capable of repetition, yet evading review") (jurisdiction: because the FOIA explicitly provides for judicial review of agency decisions to withhold information requested under it, plaintiff has no separate claim under the Administrative Procedure Act).

Wayne Seminoff Co. v. Mecham, 82 F. App'x 740 (2d Cir. 2003) (affirms district court ruling that the Administrative Office of the United States Courts is part of the judicial branch of government and not an agency for purposes of the FOIA).

Wright v. Curry, 122 F. App'x 724 (5th Cir. 2004) (per curiam) ("not an agency" defense: the federal FOIA applies to federal agencies, not to state agencies).


District Courts

Aftergood v. CIA, 355 F. Supp. 2d 557 (D.D.C. 2005) (Exemption 3 [50 U.S.C. 403-3(c)(7)]: disclosure of U.S. intelligence agency budget information for the years from 1947 through 1970, including aggregate figures and subsidiary agency budget totals, would reveal the allocation, transfer, and funding of intelligence programs; exemption of course does not protect the 1963 intelligence budget figure that already was officially released by the CIA in an aberrational action; there is no "reasonably segregable" information) (waiver: disclosure of that 1963 intelligence budget figure did not waive the CIA's ability to withhold similar information concerning earlier and later periods of time).

ACLU v. DOD, 351 F. Supp. 2d 265 (S.D.N.Y. 2005) (Exemption 3 [50 U.S.C. 431(a), 431(c)(3)]: in this FOIA action where plaintiff seeks information about detainees, finds that the CIA has failed to satisfy the statutory prerequisites for invoking the special "operational files" provision of the CIA Information Act; the CIA has failed to articulate a reason why files relating to investigations of improper or illegal conduct are not subject to the FOIA's ordinary search and review requirements; denies the CIA's request for a stay of its obligation to comply with the FOIA's requirements, as described in the court's September 15, 2004 order, where the CIA argued that "it has no staff that may appropriately conduct a FOIA search at this time because on the one hand, OIG staff must attend to the underlying investigation, and on the other hand CIA components 'do not know the specific subject matter of the Iraq investigation,' and informing them would threaten the integrity of the OIG's internal investigation. * * * These administrative concerns are likely to arise whenever operations are investigated . . . . The CIA's reluctance to comply with the FOIA is not a lawful excuse.").

ACLU v. DOD, 357 F. Supp. 2d 708 (S.D.N.Y. 2005) (denies the CIA's motion for a stay to allow it to consider whether to appeal the court's February 2, 2005 procedural order concerning the CIA's special "operational files" provision in 50 U.S.C. 431 -- an order which in turn also denied a stay of a previous procedural order; "appellate jurisdiction is problematic" because a procedural order is not appealable and a denial of a stay of a procedural order should not be appealable; the CIA has not shown that it is likely to be irreparably harmed by complying with the order to search and review operational files that did not satisfy the procedural prerequisites of 50 U.S.C. 431; the CIA has failed to show a likelihood of success on the merits or that the public interest would be served by an appeal).

ACLU v. Dep't of Justice, No. C 04-4447, 2005 U.S. Dist. LEXIS 3763 (N.D. Cal. Mar. 11, 2005) (expedited processing: on de novo review, finds that defendant agency properly denied plaintiff's request for expedited processing of its FOIA request for information concerning the FBI's terrorism-related interrogations of Muslims and Arab-Americans in Northern California; plaintiff has not met its burden of showing that it is entitled to expedited processing under either the statutory "urgency to inform" standard or the agency's regulatory "exceptional media interest" standard; plaintiff cannot demonstrate that either of these standards have been met solely by citing 8 articles and reports that do not refer to the specific subjects of its FOIA request; although plaintiff, the American Civil Liberties Union of Northern California, "engages in substantial dissemination of information" through its Web site, a newsletter, reports, and public speaking engagements, its own Web site (and that the of national ACLU) indicates that the organization's primary activity is to "litigate high-impact cases to defend and promote civil liberties," and not to disseminate information.

Barfield v. United States Dep't of Justice, No. 04-0636, 2005 WL 551808 (D.D.C. Mar. 8, 2005) (adequacy of search: defendant agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request for records about himself).

Blocker v. United States Marshal Serv., No. 04-503, 2005 WL 102930 (D. Or. Jan. 18, 2005) (magistrate's recommendation) (proper service of process: court lacks jurisdiction because the Attorney General of the United States has not been properly served with the Complaint), adopted (D. Or. Mar. 15, 2005).

Boyd v. Criminal Div., U.S. Dep't of Justice, No. 04-1100, 2005 WL 555412 (D.D.C. Mar. 9, 2005) ("not an agency" defense: the United States Probation Office is not subject to the FOIA, because it is "an arm of the federal courts") (exhaustion: "FOIA's administrative scheme favors treating failure to exhaust as a bar to judicial review"; plaintiff failed to exhaust his administrative remedies because he neither paid for the processing of his FOIA request nor asked for a fee waiver) (adequacy of search: defendant agencies have demonstrated that they conducted reasonable searches in response to plaintiff's FOIA requests for records) (Exemption 3 [Rule 6(e)]: protects documents containing the identities of grand jury witnesses) (summary judgment: grants the government's motion for summary judgment in this FOIA action because plaintiff has not shown that there was any improper withholding of information).

Boyd v. United States Marshal Serv., No. 99-2712, 2002 U.S. Dist. LEXIS 27734 (D.D.C. Mar. 15, 2002) (adequacy of search: defendant agencies have not demonstrated that they conducted reasonable searches in response to plaintiff's FOIA request; agencies have not identified the search terms and methods that they used, or explained where they searched for records and why those locations are the only locations that would be expected to contain responsive records; agency must explain its failure to locate one specified report) (waiver: agencies did not waive the right to invoke exemptions other than Exemption 7(A); they relied exclusively on Exemption 7(A) at the administrative level, but invoked other exemptions after being served with the Complaint in this action) (Exemption 2 "high": protects voucher numbers, federal credit card account numbers, law enforcement technique codes, FBI numbers, and various computer codes because disclosure would risk circumvention of agency law) (Exemption 3 [Rule 6(e)]: protects the names of witnesses scheduled to testify in grand jury proceedings) (Exemption 5: the attorney work-product privilege does not protect information prepared by an ATF Special Agent that discusses plaintiff's possible defense strategy, because the agency only suggests that the information "may have been prepared at the direction of a prosecutor"; the deliberative process privilege does not protect this information because it is unclear what agency decision the analysis predates) (Exemption 7(C): protects information that would identify third parties and law enforcement officers, because disclosure would not shed light on the agency's performance of its statutory duties) (Exemption 7(D): protects the identities of and information provided by sources who provided information under express or implied promises of confidentiality) (Exemption 7(E): protects information "used to guide" agents in the performance of their law enforcement duties, because disclosure could enable fugitives to circumvent the law) ("reasonably segregable": agency has not shown that 18 pages were properly withheld in their entireties; agency must either provide plaintiff with redacted versions of these pages or demonstrate that all segregable, nonexempt information has been released) (in camera inspection: denies plaintiff's request for in camera inspection; judicial economy is best served by allowing agencies to correct deficiencies in their declarations).

Boyd v. United States Marshal Serv., No. 99-2712 (D.D.C. Oct. 7, 2002) (United States Marshals Service has demonstrated that it conducted an extensive search in response to plaintiff's FOIA request; it provided plaintiff with 18 pages formerly withheld in their entireties, and properly withheld only identifying information under Exemption 7(C)).

Boyd v. United States Marshal Serv., No. 99-2712, 2004 U.S. Dist. LEXIS 27406 (D.D.C. Sept. 22, 2004) (ATF has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request and that Exemption 4 protects commercial computer codes used by Western Union and Trans Union; pro se plaintiff is not entitled to attorney fees under the FOIA; pro se plaintiff may not recover costs, because he has not substantially prevailed in this action).

Boyes v. United States Dep't of Energy, No. 03-1756, 2005 WL 607882 (D.D.C. Mar. 16, 2005) (Exemption 4: in this FOIA action where plaintiff seeks information pertaining to a cooperative agreement reached between the Department of Energy (DOE) and the General Electric Company (GE) as part of DOE's Superconductivity Partnership Initiative, finds that DOE properly withheld major portions of GE's technical application, its business application, and DOE's analysis of GE's costs and rate structure; the information was held in confidence by GE, it is of a type that is customarily held in confidence, it was received in confidence by DOE, it is not publicly available, and disclosure would both impair the government's ability to obtain similar information in the future and substantially harm GE's competitive position; the nonexempt information is not reasonably segregable from the exempt information).

Brooks v. Bureau of Prisons, No. 04-0055, 2005 WL 623229 (D.D.C. Mar. 17, 2005) (proper party defendant: individual agency employees are not proper party defendants under the FOIA).

Brown v. United States Patent & Trademark Office, 355 F. Supp. 2d 940 (N.D. Ill. 2005) (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects the withheld portions of records that pre-date the re-examination of a certain patent; information is predecisional and reflects an internal policy-making dialogue as to whether the agency should order a re-examination).

Brunetti v. FBI, 357 F. Supp. 2d 97 (D.D.C. 2004) (adequacy of search: the FBI conducted a reasonable search in response to plaintiff's FOIA request for records about himself) (Exemption 2 "high": disclosure of permanent source symbol numbers and informant file numbers would reveal the identities of informants; "low": protects radio frequency numbers used by the FBI to communicate internally, because they "clearly constitute" an internal practice and are of no public interest) (Exemption 3 [Rule 6(e)]: protects grand jury subpoenas, information that would identify individuals named in the subpoenas, records subpoenaed by the grand jury, and the dates of grand jury meetings) (Exemption 7(C): protects information that would identify FBI Special Agents and support staff, other federal employees, state and local law enforcement and government employees, an employee of a financial institution, subjects of investigative interest, informants, and third parties) (Exemption 7(D): protects permanent source symbol numbers and informant file numbers because the sources provided information under express promises of confidentiality; implied promises of confidentiality may be inferred for interviewees who were witnesses, "targets[,] and victims of La Cosa Nostra's activities and crimes") (Exemption 7(E): protects FBI Special Agent's evaluations of various investigative techniques, because disclosure would allow circumvention of the law) (Exemption 7(F): protects information that would identify or was provided by informants during an FBI investigation, given the violent nature of the La Cosa Nostra organization) (Exemption 5: the attorney work-product and deliberative process privileges protect an undated draft letter, in English and an Italian version, from a Justice Department attorney requesting that the Italian authorities interview an individual in conjunction with a criminal prosecution; these draft documents were prepared in anticipation of litigation) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Davis v. FBI, 355 F. Supp. 2d 1 (D.D.C. 2004) (in this FOIA action where plaintiff has received all nonexempt records that he requested, he must show cause within 30 days why this case should not be dismissed as moot).

Davy v. CIA, 357 F. Supp. 2d 76 (D.D.C. 2004) (adequacy of search: the CIA has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request, despite the fact that records referenced in the released materials were not provided to plaintiff; "the FOIA cannot be used to troll for documents, which, even if they exist, appear barely tangential to the subject" of the FOIA request) (Exemption 1 [E.O. 12,958, as amended]: disclosure of records concerning 2 CIA projects would reveal intelligence sources or methods) (Exemption 3 [50 U.S.C. 431(c)(3)]: the CIA properly withheld information about 2 projects, due to the fact that plaintiff has failed to show that either project was ever the specific subject of an investigation; the fact that many government-sponsored investigations of the assassination of President Kennedy may have "touched upon" the information plaintiff seeks here does not obligate the CIA to search its operational files pursuant to plaintiff's FOIA request; [50 U.S.C. 403-3(c)(7), 403g]: protect the identities of CIA employees and cryptonyms, words, and letter codes) (Exemption 5: the deliberative process privilege protects draft opinions, recommendations, and proposed answers to agency questions; the attorney work-product privilege protects legal advice from agency attorneys provided in anticipation of or during the course of litigation; the attorney-client privilege protects legal advice from agency counsel regarding the strategy for handling legal matters) (Exemption 6: protects information that would identify CIA employees, because disclosure would shed no light on the operation of the federal government) (displacement of FOIA: the John F. Kennedy Assassination Records Collection Act of 1992 does not create any private right of action that would entitle FOIA litigants to apply JFK Act standards to a FOIA review of documents).

DiPietro v. Executive Office for United States Attorneys, 357 F. Supp. 2d 177 (D.D.C. 2004) (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request for his criminal files; an unsuccessful search for records that may once have existed does not render the search inadequate; defendant need not search the Polk County Sheriff's Office, because it is a local law enforcement agency not subject to the federal FOIA) (Exemption 2 "low": because defendant merely described the withheld information as "purely internal material" it must file a supplemental declaration within 60 days to demonstrate that information is properly protected under this exemption) (Exemption 3 [Rule 6(e)]: protects information that would reveal the scope of the grand jury's investigation) (Exemption 5: the attorney work-product privilege protects records prepared at the request of an attorney in anticipation of or during litigation, reflecting the attorney's trial preparation and strategy; the deliberative process privilege protects communications concerning litigation issues, alternatives, and prosecution strategies) (Exemption 7 (threshold): requirement is met by records pertaining to plaintiff's criminal prosecution) (Exemption 7(C): protects the identities of law enforcement officials and other government employees, a DEA Special Agent, associates of plaintiff, and third parties) (Exemption 7(D): defendant agency must file a supplemental declaration within 60 days to demonstrate that information is properly protected under this exemption) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Fischl v. United States Dep't of Justice, No. 01-2682, 2004 WL 3132258 (D.D.C. Dec. 17, 2004) (magistrate's recommendation) (recommends granting defendants' motion for summary judgment in this FOIA action; plaintiff has not identified a "genuine issue necessary to be litigated," defendants' searches for records were adequate, and defendants properly applied (unspecified) FOIA exemptions).

Gerstein v. DOD, No. C-03-5193 (N.D. Cal. Dec. 21, 2004) (Exemption 1 [E.O. 12,958, as amended]: DOD's affidavits demonstrate that documents withheld under Exemption 1 were properly classified by agency personnel with the authority to do so) (Exemption 3 [10 U.S.C. 130c]: International Committee of the Red Cross is an "international organization" under the statute; protects nonsegregable confidential communications between DOD and the International Committee of the Red Cross concerning detainees at Guantanamo Bay).

GS New Mkts. Fund, L.L.C. v. United States Dep't of the Treasury, 407 F. Supp. 2d 21 (D.D.C. 2005) ("Reverse" FOIA/Exemption 4: defendant agency's decision to release portions of plaintiff's application under a tax credit program was not "arbitrary and capricious"; agency carefully considered which portions of the application qualified for protection as confidential "trade secrets or commercial or financial information").

Humbarger v. EEOC, No. C 03-05818, 2005 U.S. Dist. LEXIS 1707 (N.D. Cal. Jan. 28, 2005) (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects 2 investigative memoranda, because they are predecisional and relate to the process by which policies are formulated).

Jackson v. United States Attorney's Office, Dist. of N.J., 362 F. Supp. 2d 39 (D.D.C. 2005) (adequacy of search: on motions for reconsideration, finds that the defendant agency has not demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request; within 90 days, it must conduct an appropriate search).

Jeanes v. United States Dep't of Justice, 357 F. Supp. 2d 119 (D.D.C. 2004) (jurisdiction: court correctly rules that it lacks jurisdiction where plaintiff failed to exhaust his administrative remedies by failing to pay the search fees associated with his FOIA request but incorrectly rules that he failed to exhaust his administrative remedies because he did not administratively appeal the denial of his request for a fee waiver while in litigation).

Jones-Edwards v. Appeal Bd. of the NSA/Cent. Sec. Serv., 352 F. Supp. 2d 420 (S.D.N.Y. 2005) (in this FOIA action where plaintiff requested records concerning the theft of her identity, dismisses the action as being frivolous on its face; in the alternative, finds that the government conducted a reasonable search for records in response to plaintiff's FOIA request, even though no records were found).

Kidd v. Dep't of the Treasury, No. 03-1974, 2005 U.S. Dist. LEXIS 2972 (D.D.C. Feb. 11, 2005) (proper service of process: denies defendant agency's motion to dismiss for failure to properly effectuate service of process, even though "strict compliance" with the service provisions of the Federal Rules of Civil Procedure is mandatory; grants pro se plaintiff an additional 30 days to complete service of process upon Department of Justice).

Lair v. Dep't of Treasury, No. 03-827, 2005 WL 645228 (D.D.C. Mar. 21, 2005) (proper party defendant: dismisses FOIA claims against individual agency employees because they are not proper party defendants under the FOIA; "[b]y the statute's plain language," components of executive departments are proper party defendants) (exhaustion: court will consider only the 2 decisions of the federal agencies for which plaintiff exhausted his administrative remedies by filing administrative appeals) (adequacy of search: defendant agency has conducted a reasonable search for records in response to plaintiff's FOIA request, even though plaintiff is convinced that additional documents exist) (Exemption 7(C): protects a video tape and an audio tape because disclosure would reveal the identities of third parties and informants; there is no meaningful portion of the tapes that could be released) (waiver: plaintiff has not shown that this specific information exists in the public domain) (attorney fees: pro se plaintiff is not entitled to attorney fees, nor has he substantially prevailed).

Lawrence v. United States, 355 F. Supp. 2d 1307 (M.D. Fla. 2004) (waiver of exemption: in this FOIA action where plaintiff seeks the 2003 version of an IRS handbook, finds that the IRS did not waive its right to invoke exemptions when it did not include them in its Answer to plaintiff's Amended Complaint; prior disclosure of earlier versions of this handbook does not mandate the release of an unredacted version of the 2003 handbook, because plaintiff has not shown that earlier released versions of the handbook actually duplicate the information in the 2003 version).

Ledesma v. United States Marshals Serv., No. 04-1413, 2005 WL 405452 (D.D.C. Feb. 18, 2005) (adequacy of search: defendant agency demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request for records about himself) (Exemption 7(C): protects the names of federal law enforcement officers and the name and prison number of another inmate in the custody of the Marshals Service) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Leforce & McCombs, P.C. v. HHS, No. 04-176 (E.D. Okla. Feb. 3, 2005) (in camera inspection: while defendant agency's affidavits are "in some ways deficient," this failure is not significant because the court conducted in camera inspection of the withheld information) (Exemption 5: the attorney-client privilege protects all but 2 paragraphs of an internal legal opinion written by a regional counsel in response to an Indian hospital doctor's request for information about the personal tort liability of certain physicians) (waiver: the exemption is not waived just because the agency did not invoke it at the outset of the administrative proceedings) ("reasonably segregable": the two-paragraph segment of the opinion must be released because it is reasonably segregable, it had become agency policy, and the exemption therefore had been "waived"; an HHS policy analyst wrote a note that now is in the public domain, and information in this note and the two-paragraph segment are "sufficiently alike that they may be characterized as identical for purposes of this discussion").

MacLean v. DOD, No. 04CV2425, 2005 WL 628021 (S.D. Cal. Mar. 16, 2005) (discovery in FOIA litigation: partially grants plaintiff's request for limited discovery in this FOIA action; discovery is granted only to the extent that it is pertinent to disputing the government's claims of exemption and concerns information within the sole control of the government).

Makuch v. FBI, No. 99-1094, 2000 U.S. Dist. LEXIS 9486 (D.D.C. Jan. 5, 2000) (exhaustion: in this FOIA action, finds that plaintiff has not "constructively" exhausted his administrative remedies; the CIA made its determination on his FOIA request in 16 working days and he received the CIA's response before his claims were added to the Amended Complaint).

Martinale v. CIA, No. 03-1632, 2005 WL 327119 (D.D.C. Feb. 9, 2005) (summary judgment is granted to defendant agencies because they have conducted reasonable searches in response to plaintiff's FOIA request for records that would prove her alleged relation to Anastasia Tschaikowsky, who claimed to be the daughter of Tsar Nicholas II of Russia; all responsive records have been provided to plaintiff).

Martinez v. EEOC, No. 04-CA-0271, 2005 U.S. Dist. LEXIS 3864 (W.D. Tex. Mar. 3, 2005) (Exemption 7 (threshold): requirement met by records compiled by the EEOC in response to plaintiff's ongoing discrimination claim against his employer) (Exemption 7(D): the EEOC has demonstrated that the employee-witness was given an assurance of confidentiality; the interviewer's standard practice of writing on the typed witness statement "confidential requested by witness" is sufficient to justify nondisclosure) (attorney fees: attorney fees denied because plaintiff has not substantially prevailed in this litigation).

Millhouse v. IRS, No. 03-1418, 2005 U.S. Dist. LEXIS 1290 (D.D.C. Jan. 3, 2005) (Exemption 7 (threshold): requirement met by records compiled during an investigation of plaintiff for his alleged money laundering and narcotics-trafficking activities) (Exemption 7(D): protects the name of and information provided by an informant who was given an express promise of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Missouri v. United States Dep't of Interior, No. 00-4044, 2001 U.S. Dist. LEXIS 24354 (W.D. Mo. June 19, 2001) ("not an agency record" defense: records maintained by a regularly salaried federal employee of the United States Fish and Wildlife Service who was acting as the full-time coordinator of a nonprofit organization with whom the Service has a "cooperative" relationship are not "agency records" for purposes of the FOIA; plaintiff has not established the requisite nexus between the nonprofit organization's records and the Service's performance of its official agency duties; the Service did not create, obtain, or control the records).

Mone v. Dep't of the Navy, 353 F. Supp. 2d 193 (D. Mass. 2005) (Exemption 5: the attorney work-product privilege applies to a litigation report concerning a helicopter accident in January 2002 that was prepared under the direction of an attorney for many purposes, one of which was preparing for the prospect of litigation; inexplicably orders in camera inspection of the report to determine if there are any "reasonably segregable" portions).

Mone v. Dep't of the Navy, No. 04-11009 (D. Mass. Feb. 25, 2005) (Exemption 5: on in camera inspection, finds that the attorney work-product privilege protects, in its entirety, a litigation report concerning a helicopter accident in January 2002 that was prepared under the direction of an attorney for many purposes, one of which was preparing for the prospect of litigation).

Nat'l Council of La Raza v. Dep't of Justice, 345 F. Supp. 2d 412 (S.D.N.Y. 2004) (the district court is not deprived of jurisdiction over portions of this case that are not involved in the Department of Justice's pending appeal; on in camera inspection the court had found that the redacted portions of the April 2002 memorandum on the authority of state and local police to enforce federal immigration laws were properly withheld but were inadequately described in the defendant agency's Vaughn Index; in order to grant plaintiff an opportunity to argue against redaction, orders the government to prepare a revised Vaughn Index of the redacted portions of the memorandum, even though "the likelihood of a different result appears small").

Nw. Coalition for Alternatives to Pesticides v. EPA, No. 99-0437, 2005 WL 607876 (D.D.C. Mar. 16, 2005) (plaintiff is not entitled to entry of final judgment based on the court's initial ruling that the EPA had violated the FOIA; grants EPA's motion for summary judgment; EPA has conducted a further review and has determined that all of the information redacted from the substantiation letter is properly withheld under Exemption 4).

Phillips v. Immigration & Customs Enforcement, 385 F. Supp. 2d 296 (S.D.N.Y. 2005) (Exemption 5: in this FOIA action where a journalist seeks information about the immigration status of 2 former El Salvadoran military officers, on in camera inspection finds that the deliberative process privilege protects 2 pages of handwritten asylum interview notes, a brief summary of the interview, and an initial assessment; they pre-date the former INS's decision to grant asylum and they were prepared to assist INS decision makers; factual material contained in the interview notes, summary, and the initial assessment remains exempt from disclosure because it cannot be "severed from its context"; the privilege protects internal INS e-mail and meeting notes regarding the investigation into the officers' immigration status and the viability of removal proceedings, because they are predecisional and deliberative; factual material from the inter-agency meeting must be segregated and released; agency must release an e-mail message that reports on criticism from a congressman and 2 memoranda that were prepared in anticipation of a meeting, because they are not deliberative; the attorney-client privilege protects brief e-mail discussions on the applicability of the Privacy Act to a congressman's request for the officers' A-files; the attorney-client and attorney work-product privileges protect an attorney's evaluation of the agency's ongoing investigation of the officers) (Exemption 6: 97 pages of attachments to one asylum application consisting of personal history data and supporting affidavits "surely fall" under "similar files"; disclosure of the application attachments of an individual accused of human rights violations would serve no public interest because they shed no light on whether the INS considered such allegations in deciding to grant asylum; protects biographical information about the 2 officers; protects personal information about the officers submitted in a report to Congress and third-party names contained in the report and in e-mail; protects names and telephone numbers of agency employees) (Exemptions 6 and 7(C): do not protect a portion of an Attorney General report to Congress on the murder of 4 American churchwomen in El Salvador that discloses INS's conclusion that both military officials entered the United States lawfully and that the INS was not amenable to removal proceedings) (waiver: information in a supplement to the report to Congress concerning the legal residency of the officers and the reference to a "key ally" previously were disclosed and must now be released).

Santos v. DEA, 357 F. Supp. 2d 33 (D.D.C. 2004) (proper party defendant: dismisses the claim against a Justice Department official because plaintiff may not assert a FOIA claim against an individual federal official) ("not an agency" defense: components of the Justice Department, such as DEA and the FBI, may be considered "agencies" under the FOIA) (adequacy of search: the DEA has not shown that it conducted a reasonable search in response to plaintiff's FOIA request; DEA must submit a supplemental declaration within 90 days) (Vaughn Index: while DEA provided a detailed discussion of the exemptions, there was "no connection drawn . . . between the documents and the exemptions"; DEA must submit a supplemental declaration within 90 days).

Santos v. DEA, No. 02-734, 2005 WL 555410 (D.D.C. Mar. 7, 2005) (Exemption 2 "high": disclosure of G-DEP codes, NADDIS numbers, and Informant Identifier codes would compromise DEA's narcotics investigations and enforcement efforts) (Exemption 3 [18 U.S.C. 2511(2)]: protects wiretap records, including surveillance records and applications for wiretaps) (Exemption 6: protects personal information about individuals associated with or the target of a criminal law enforcement investigation, because disclosure would not shed light on DEA's activities) (Exemption 7(C): protects information about the subject of a DEA investigation and information that would identify third parties) (Exemption 7(D): protects the identities of and information provided by sources who provided information under express or implied promises of confidentiality) (Exemption 7(F): protects the identities of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers because "there is potential for harm when conducting dangerous investigations").

Slovinec v. Ill. Dep't of Human Servs., No. 02 C 4124, 2005 WL 442555 (N.D. Ill. Feb. 22, 2005) ("not an agency" defense: the federal FOIA does not apply to states and state governments; plaintiff has no standing to complain about the disclosure of other people's personal information).

Three Forks Ranch Corp. v. Bureau of Land Mgmt., 358 F. Supp. 2d 1 (D.D.C. 2005) (a request for information made by a corporation's attorney did not give the corporation standing to pursue the FOIA action, because the attorney did not indicate specifically that he was making the FOIA request "on behalf of" his client; it is "unreasonable to expect overburdened FOIA administrators to interpret whether a request is being made by the individual writing the request letter, by someone else mentioned in the letter, or both").

United States Ass'n of Imps. of Textiles & Apparel v. United States, 366 F. Supp. 2d 1280 (Ct. Int'l Trade 2005) (jurisdiction: the Court of International Trade has jurisdiction under 28 U.S.C. 1581(i) to consider claims implicating the affirmative publication provisions of the FOIA in subsection (a)(1)).

W&T Offshore, Inc. v. United States Dep't of Commerce, No. 03-2285, 2004 WL 2984343 (E.D. La. Dec. 23, 2004) (attorney fees: denies plaintiff's motion for reconsideration; while the Fifth Circuit has yet to apply Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), to a FOIA case, other circuit courts have found that the Supreme Court's rejection of the catalyst theory precludes the award of attorney fees where there is neither a judgment on the merits nor a settlement enforced through a consent decree; applying Buckhannon, finds that plaintiff has not "substantially prevailed" in this FOIA action because the agency properly withheld all portions of the documents at issue; attorney fees denied).

Wolk v. United States, No. 04-CV-832, 2005 WL 465382 (E.D. Pa. Feb. 28, 2005) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of its background investigation of a federal judicial nominee) (Exemption 7(C): protects personal background-investigation information about a federal judicial nominee, given that only "'[u]nsubstantiated allegations'" of wrongdoing are involved, which are "'insufficient'" (quoting the "Justice Department Guide to the FOIA") to countervail a privacy interest; "officials do not surrender all of their rights to personal privacy when they accept a government appointment"; there is no evidence that the FBI engaged in any illegality) (Exemption 6: judicial nominee's background-investigation information is certainly a "similar file"; court finds that the nominee's privacy interest in this information "substantially outweighs" the asserted public interest in disclosure) (in camera inspection: in camera inspection is unnecessary because the FBI's affidavit is sufficient).

Yoonessi v. N.Y. State Bd. for Prof'l Med. Conduct, No. 03-CV-871, 2005 WL 645223 (W.D.N.Y. Mar. 21, 2005) ("not an agency" defense: state and local agencies and plaintiff's medical colleagues are not "agencies" subject to the federal FOIA).  (posted 3/31/05)


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