FOIA Post (2007): New FOIA Post Feature -- Summaries Of New Decisions in FOIA Cases

September 4, 2007

FOIA Post

New FOIA Post Feature -- Summaries Of New Decisions in FOIA Cases

OIP is pleased to announce the launch of a new feature for FOIA Post readers -- summaries of new court decisions.

Each year the federal courts issue hundreds of decisions in FOIA cases, addressing all aspects of the law. These decisions shape the way the law is interpreted and applied by the many attorneys and access professionals across the government who handle FOIA requests, administrative appeals, and litigation. To aid those professionals, and to facilitate greater understanding of the FOIA overall, OIP will begin publishing summaries of FOIA decisions on a regular basis.

The first group of new decisions to be summarized are those that were decided in March 2007. That period coincides with the March 2007 date of completion of the most recent edition of the Department of Justice Freedom of Information Act Guide. Thereafter, summaries will be posted for the remaining months until we are current and from then on, the summaries will be regularly posted.

To facilitate their review, each decision will be broken down by exemption or procedural element. Although we have designed these summaries to reflect the key aspects of each decision, by their nature these are summaries only, and such things as internal citations and quotations have been omitted. Our goal is to provide readers with an overview of the cases as they are decided during the year, but for a complete understanding of any given case readers are, of course, encouraged to read it in its entirety.

Set out below are summaries for the cases decided in the month of March 2007.

WEEK OF MARCH 5

Appeals Courts

1. Joseph W. Diemert, Jr. and Associates, Co., v. FAA, No. 06-3099, 2007 WL 627867 (6th Cir. Mar. 1, 2007)

• Exemption 6: Release of records to third-party requester concerning medical settlement between agency and subject would constitute a clearly unwarranted invasion of personal privacy.

• Exhaustion: Because defendant's substantive withholding was appropriate, no need to rule on plaintiff's appeal of lower court dismissal on exhaustion grounds.

2. Peltier v. FBI, No. 06-1405, 2007 WL 627534 (2d Cir. Feb. 23, 2007)

• Exemption 1: Affirming district court's ruling that agency's use of Exemption 1 was proper because disclosure would breach express promises of confidentiality made to a foreign government and would also reveal an intelligence relationship and could threaten the flow of information between US and foreign government in question.

• Exemption 3: Affirming district court's ruling that agency's withholding of grand jury subpoenas, information identifying grand jury witnesses, records subpoenaed by the grand jury and the dates of grand jury testimony fell "squarely within the framework of records" protected by Ex. 3 and Rule 6(e).

• Exemption 7(C): Affirming district court's ruling that withholding names of individuals of investigative interest to FBI, third party rap sheets, and names of third parties merely mentioned in responsive records was appropriate.

• Exemption 7(D): Affirming district court's ruling that Exemption 7(D) was applicable where FBI had withheld information provided by individuals and law enforcement agencies under express and implied assurances of confidentiality.

3. Piper v. DOJ, No. 06-5119, 2007 U.S. App. LEXIS 4272 (D.C. Cir. Feb. 23, 2007) (per curiam) (unpublished decision)

• Exemptions 7(C)-(E): Affirming district court's ruling that agency use of these exemptions was appropriate.

• Duty to Search: Affirming district court's ruling that agency's search was adequate; plaintiff's allegation that responsive documents were destroyed prior to request is irrelevant, as FOIA does not impose a document retention requirement.

4. Clemens v. VA, No. 05-2654, 2007 WL 528525 (8th Cir. Feb. 22, 2007)

• Misc: Summary affirmance of lower court grant of summary judgment to defendant agency.

5. Sanders v. United States, No. 06-2249, 2007 U.S. App. LEXIS 3722 (4th Cir. Feb. 20, 2007) (per curiam)

• Jurisdiction/Exhaustion: District court's assumption of jurisdiction of case from state court was not in error, nor was dismissal by district court for failure to exhaust administrative remedies.

District Courts

1. Lee v. DOJ, No. 05-1665 (D.D.C. Mar. 6, 2007)

• Procedural: No authority under the FOIA for courts to order publication of agency documents in the Federal Register.

• Exemptions 6/7(C): Agency properly withheld third-party names, as well as court docket numbers and dates. Although the documents contain information that was "public at one time, given that the information would disclose incidents of prior criminal conduct by third parties," individuals have a privacy interest in preventing "renewed public scrutiny."

2. Summers v. DOJ, No. 98-1837, 2007 WL 665450 (D.D.C. Mar. 5, 2007)

• Attorney Fees: Plaintiff is not eligible for attorney fees because he
has not "substantially prevailed." Voluntary changes in conduct by
the agency do not "meaningfully alter the legal relationship of the parties." Under
prevailing Circuit law, judicial orders which are merely of a procedural nature
do not provide a sufficient basis for ruling that the plaintiff has substantially
prevailed. Here "court orders directing the parties to file status reports" and
directing the agency to file an affidavit describing "its efforts to locate
a missing file," as well as a "private" settlement merely approved
by the court, are all insufficient to establish eligibility. Furthermore, even
were plaintiff eligible for attorney's fees he would not be entitled to an award
because he is unable to satisfy two of the four relevant factors: there is little
public interest in the material released and court ruled in favor of defendant's "withholding
of the material sought."

3. Garvey v. DOJ, No. 03-1923, 2007 U.S. Dist. LEXIS 15245 (E.D. Cal. Mar. 5, 2007) (magistrate's recommendation)

• Adequacy of Search: Affidavits submitted by the Criminal Division of DOJ are sufficient to determine that search for records was adequate despite plaintiff's allegations that agency "must" have responsive records about his removal from Romania. Existence of "belatedly discovered personal notes," despite "repeated requests" by agency personnel that this official search her records "does not demean DOJ's efforts, nor does it necessarily imply that the efforts were insufficient."

4. West v. Wall, No. 06-640, 2007 U.S. Dist. LEXIS 15185 (E.D. Va. Mar. 2, 2007)

• Procedural: Federal FOIA does not apply to a municipal police force.

5. Ruston v. ATF, No. 05-2314, 2007 U.S. Dist. LEXIS 14204 (D.D.C. Mar. 1, 2007)

• Glomar: Agency's Glomar response was appropriate where any records responsive to plaintiff's request on living third party who had not provided a waiver would necessarily have been found in agency's law enforcement files.

6. Fuller v. CIA, No. 04-253, 2007 U.S. Dist. LEXIS 14203 (D.D.C. Feb. 28, 2007)

• In camera review: Of 31 disputed documents, 10 were submitted for in camera review. Withholdings on 5 were found to be appropriate, the other 5 contain withheld information that should have been released. Agency's motion for summary judgment granted as to first 5 documents, denied as to remaining 26; agency ordered to file new Vaughn Index and declaration as to remaining 26 documents, file unredacted copies of these 26 documents with the Court.

• Exemption 5: Use of deliberative process privilege as to two of the documents was not appropriate because documents were not predecisional or (in one case) deliberative.

• Exemption 6: Use of this Exemption on 3 of the documents was not appropriate because the documents do not contain information of a personal nature; agency has not demonstrated that a substantial privacy interest is at stake. Third party names that "reflect[] only business judgments and relationships" do not qualify for protection.

• Segregability: Although portions of documents "may be exempt" under Exemption 3, the agency "has not met its obligation to segregate and disclose the non-exempt information."

7. Oglesby v. DOJ, No. 02-0603, 2007 WL 625852 (D.D.C. Feb. 27, 2007)

• Adequacy of Search: FBI has not responded to plaintiff's allegations concerning the existence of responsive COINTELPRO records; FBI must submit new affidavit, plaintiff's request for discovery denied.

• Vaughn Index/Declaration: FBI's Vaughn Index and accompanying declarations were not specific enough, did not "describe the content" of pages withheld in full, and did not provide individualized descriptions for agency withholdings. Therefore, they must be resubmitted.

• In camera review/Segregability: Documents submitted by defendant for in camera review "afforded no basis to support a conclusion that the FBI had met its obligation to segregate."

8. Harrington v. DOJ, No. 06-0254, 2007 WL 625853 (D.D.C. Feb. 27, 2007)

• Fee Assessment: The agency properly "promptly notified plaintiff that fees would be assessed, estimated the total fees to be charged," and "sought plaintiff's payment before further processing."

• Fee Waiver: Agency properly denied plaintiff's fee waiver request because there was no public interest in the release of the requested public records; the only interest was plaintiff's private interest in understanding his case.

• Exhaustion: Because plaintiff did not either pay fees or obtain a fee waiver, he did not exhaust his administrative remedies.

9. James v. U.S. Customs & Border Protection, No. 06-562, 2007 WL 548816 (D.D.C. Feb. 23, 2007)

• Adequacy of Search: Because agency's affidavit was insufficient to explain why only one database was searched for records, genuine issue of material fact remains on adequacy of agency's search, thus summary judgment cannot be granted.

10. Emory v. HUD, No. 05-00671, 2007 WL 641406 (D. Haw. Feb. 23,
2007)

• Fee Waiver: Plaintiff has failed to demonstrate that she is entitled to a fee waiver, and her status as an in forma pauperis plaintiff does not waive fees accrued under the FOIA.

11. Sanders v. United States, No. 06-1528, 2006 U.S. Dist. LEXIS 95431 (D. Md. decided Nov. 11, 2006, filed Feb. 22, 2007)

• Jurisdiction/Exhaustion: Removal of plaintiff's FOIA action from state court to federal court was appropriate. State court's ruling is vacated, plaintiff's suit is dismissed for failure to exhaust administrative remedies, as there is no evidence in the record that plaintiff ever filed a FOIA request with an agency.

12. The Cornucopia Institute v. USDA, No. 06-0182, 2007 U.S. Dist. LEXIS 12810 (W.D. Wisc. Feb. 21, 2007)

• Mootness/Jurisdiction: Where only remaining document contested by plaintiff has been released to it in full, action can be dismissed as moot. Plaintiff cannot obtain injunctive, monetary, or declaratory relief.

• Attorney's Fees: "Catalyst theory" proffered by plaintiff no longer applies, in light of Supreme Court decision in Buckhannon; defendant provided to plaintiff the document it requested, therefore judicial declaration would not alter the legal relationship of the parties. Defendant agency is not entitled to costs because it mooted the action rather than prevailing on any point of law.

13. Cook v. United States, No. 06-909, 2007 WL 642953 (S.D. Cal. Feb. 20, 2007)

• Reading Room: Plaintiff's unauthorized collection claim is not barred for failure to exhaust administrative remedies in situation where the agency has failed to abide by requirements of 5 U.S.C. § 552(a)(1) to publish in the Federal Register the methods by which individuals may make submittals to the agency.

14. Callan v. IRS, No. 06-1024, 2007 WL 552219 (D. Ariz. Feb. 20,
2007)

• Exhaustion: No record of plaintiff filing an administrative appeal to agency's response, therefore plaintiff's suit dismissed for failure to exhaust.

• Procedural: Plaintiff's FOIA request does not obligate agency to explain government's taxing authority over plaintiff. FOIA does not require agencies to answer questions disguised as FOIA requests or create documents in response to a request.

15. Satterlee v. IRS, No. 05-3181 (W.D. Mo. Feb. 20, 2007)

• Procedural: Court finds no basis to revise or reconsider its earlier grant of summary judgment to defendant in response to plaintiff's FOIA suit.

16. Bansal v. DEA, No. 06-3946, 2007 WL 551515 (E.D. Pa. Feb. 16, 2007)

• Exhaustion: In this suit against 3 DOJ components and the IRS, the court ruled that plaintiff failed to exhaust his administrative remedies with regard to his request to the IRS because he had not provided proper identification, and failed to exhaust with regard to his request to EOUSA because he has not paid fees. Plaintiff has exhausted his administrative remedies with regard to his request to DEA because DEA failed to provide a sufficient response to plaintiff's initial request. Plaintiff has also exhausted his administrative remedies with regard to his request to FBI Headquarters to the extent that he is challenging the adequacy of the FBI's search for records.

• Fee calculation/fee waiver: "[M]ere supposition that the time for searching is exaggerated" is insufficient to refute agency's evidence regarding the time it will take to conduct the search. A fee waiver was properly denied when plaintiff sought his own investigatory file.

17. Tax Analysts v. IRS, No. 96-2285, 2007 WL 914537 (D.D.C. Feb. 7, 2007)

• Exemption 5: On remand, court considers in camera 34 Tax Assistance Memoranda withheld by agency. Those that concern, for example, comments on a proposed tax form, possible legislative changes, and proposed amendments to the Internal Revenue Code were withheld appropriately, as were those that discuss concerns with the wisdom of a particular policy, that contain suggestions or recommendations on current or proposed legislation, and that reflect ongoing debate within the agency. Conversely, memoranda that discuss specific taxpayer situations and contain interpretations of internal revenue laws must be released, as they explain established policy.

18. Long v. Department of Justice, No. 00-0211 & No. 02-2467 (D.D.C. Feb. 2, 2007)

• Segregability: On defense motion for reconsideration, the court rejects as untimely agency's claim that any further effort to segregate out releaseable material would be unduly burdensome. The court also rejects defense claim that "criminal lead charge" field in responsive records contains information that is not reasonably segregable from non-exempt information in that field.

• Exemption 7(A): For ongoing terrorism-related cases, the Court recognizes the agency's concern that the very act of redaction would cause harm by identifying the records that pertain to terrorism. The Court orders additional redactions to address that concern. The agency can redact certain specified categories in the "other information" field in national security cases where the agency has been allowed to withhold the "program category" field.

19. Nicholas v. NSA, No. 05-2800, 2006 WL 4071922 (D. Md. May 11, 2006)

• Adequacy of Search/Jurisdiction: Agency has met its burden of showing that it conducted a reasonable search; plaintiff's allegations that responsive records exist are not enough to create a genuine issue of material fact. Court's jurisdiction stems from improper withholding of records, but here no records were found. An agency cannot be said to have improperly withheld that which it does not possess.

WEEK OF MARCH 12

District Courts

1. Cruz v. Pennsylvania State Police, No. 06-2414, 2007 U.S. Dist. LEXIS 17117 (M.D. Pa. Mar. 9, 2007)

• Procedural: FOIA does not allow for claims against a state agency, such as a state police force.

2. Shearson v. DHS, No. 06-1478, 2007 U.S. Dist. LEXIS 16902 (N.D. Ohio Mar. 9, 2007)

• Adequacy of Search: The agency's affidavit was sufficient to establish that search by Customs and Border Patrol (CBP) was adequate; but summary judgment was denied as to DHS, which failed to conduct any search and merely routed the request to CBP.

• Exemption 2: Use of Exemption 2 to redact certain marking codes was
appropriate; however, the agency failed to demonstrate that other uses of the
exemption were not, as the information withheld was not predominantly internal,
nor was it trivial, nor was there a risk of circumvention.

• Exemption 5: Agency affidavits were insufficient to establish that use of this exemption (via the attorney-client and attorney work-product privileges) was appropriate. Affidavits do not establish that withheld information concerned the giving or receiving of legal advice, or that the information in question was confidential. Neither do affidavits establish that withheld document was prepared by an attorney or that it was prepared in anticipation of litigation.

• Exemption 7(A): Agency's use of this exemption was not appropriate because agency could not point to any specific pending or contemplated enforcement proceeding. Government's claim that border investigations are "ongoing" is not sufficient.

• Exemption 7(C): Names, social security numbers, telephone numbers, and employee identification numbers were properly exempt.

• Exemption 7(E): Government failed to meet its burden in establishing how release of document discussing events transpiring after plaintiff's name generated an alert would jeopardize agency's mission. However, agency does not have to disclose what types of inspections are performed at borders.

3. Adenodi v. DOJ, No. 06-1112, 2007 WL 701136 (E.D. La. Mar. 1, 2007)

• Mootness/Jurisdiction: Plaintiff's "failure" lawsuit was mooted by the agency's subsequent "no records" response to his request; plaintiff's challenge to the agency's response was not properly before the Court.

4. Smith v. Abrahamian, No. 06-3612, 2007 WL 680735 (D.S.C. Mar. 1, 2007)

• Jurisdiction/Agency Records: FOIA does not apply to federal courts. A presentence report, "as a court document," is not subject to the FOIA even if in the possession of executive branch agencies.

5. MacLean v. U.S. Dep't of the Army, No. 05-1519, 2007 U.S. Dist. LEXIS 16162 (S.D. Cal. Mar. 6, 2007)

• Adequacy of Search: No evidence to support plaintiff's allegation of bad faith by agency; record shows that agency's search was adequate.

• Relief Requested: While a requester may file a lawsuit in light of an agency's failure to respond to his request in a timely manner, the FOIA does not contain a mechanism for a court to provide declaratory relief.

• Exemption 7 (threshold): Records related to professional responsibility investigations of military attorneys, which could result in sanctions, criminal charges, and court martialing, are law enforcement records.

• Exemptions 6/7(C): Agency's withholding of records responsive to plaintiff's request for investigatory records of agency attorneys responsible for issuing illegal subpoenas in plaintiff's criminal case acceptable under either Exemption. Agency attorneys retain a privacy interest in this information even if some portion "is or has been available to the public." Plaintiff's request, which is targeted against a small set of attorneys, is too narrow to provide useful information about agency performance, and would instead only provide personal information about a handful of agency attorneys. Thus, the only interest served by release of records would be plaintiff's personal interest in challenging his conviction. Additionally, the fact that the employees who were the subjects of the requests were junior officials, and the fact that their wrongdoing appeared to be closer to negligence than "intolerable malfeasance," weighed against disclosure.

• Glomar: The agency's Glomar response to request for records was appropriate, even though a different agency faced with a similar request chose to acknowledge the existence of records.

6. Parker v. USDA, No. 05-469, 2006 WL 4109672 (D.N.M. July 30, 2006)

• Adequacy of Search: Agency declarations sufficient to establish that search was reasonably calculated to discover all responsive documents; plaintiff's conclusory allegations do not meet his burden of challenging agency statements on the search.

• Exemption 5: Upon in camera review, the Court determines that agency withholdings were appropriate under the deliberative process privilege. The agency withheld comments on a draft environmental assessment and a draft environmental impact statement. The agency also withheld a draft report containing underlining and comments in the margins and comments on a draft statement. All of these were found to be deliberative and predecisional, as they are "part of the process resulting in final versions" of the documents. Plaintiff's allegation that these documents are no longer predecisional because the agency has now made the relevant decisions has no support in case law.

WEEK OF MARCH 19

District Courts

1. Missouri Coalition for the Environment Foundation v. U.S. Army Corps of Engineers, No. 05-02039, 2007 U.S. Dist. LEXIS 19774 (E.D. Mo. Mar. 20, 2007)

Re: Communications between task force and agency regarding flood risk profiles.

• Exemption 5: Advisory group created by agency to advise on agency project
qualifies as consultant for purposes of Exemption 5 threshold. Documents withheld
pursuant to the deliberative process privilege, including e-mails, meeting notes,
and proposed meeting agendas, were both antecedent to agency decision and reflect
advice and suggestions of those involved in decisionmaking process, thereby
making withholding appropriate.

• Vaughn Index: Agency's Vaughn Index, which was nineteen pages long in spreadsheet form, was sufficiently detailed in its descriptions of withheld records.

• Waiver: Agency's selective disclosure of some documents does not constitute waiver as to similar, but undisclosed documents. Similarly, public availability of similar information does not preclude agency's withholding of all information on the same subject.

• Attorney's Fees: Even though favorable judgment for plaintiff is not necessary for award of attorney's fees, plaintiff cannot show that its action was necessary to obtain information in question and that lawsuit had causative effect on release of information.

2. Lipsey v. DOJ, No. 06-423, 2007 U.S. Dist LEXIS 18948 (D.D.C. Mar. 19, 2007)

Re: First-party request

• Adequacy of Search: Agency affidavit sufficient to show that agency's search was good faith effort to find responsive records; plaintiff has not made compelling argument that other records existed.

• Exemption 2: The exemption was used appropriately to withhold the FedEx account number for the U.S. Attorney's Office; there was "not a public interest in the information sufficient to override the agency's appropriate interest maintaining the secrecy of this information."

• Exemption 5: The attorney work-product privilege was appropriately used by the agency to protect prosecution memo, notes, and memorandum written by an AUSA in connection with the prosecution of plaintiff.

• Exemption 7(C): Agency appropriately utilized this Exemption to withhold the names of federal, state, and local law enforcement personnel, as well as names and personal information concerning third parties connected to plaintiff's prosecution. Plaintiff has not shown any public interest to overcome the substantial privacy interests at stake here. Rather, he seeks this information merely for challenging his conviction.

3. Ruston v. DOJ, No. 06-0224, 2007 WL 809698 (D.D.C. Mar. 15, 2007)

Re: First-party request for a psychological examination

• Adequacy of Search: Review of the declarations shows that the agency's search was adequate; plaintiff has articulated no challenge to the search.

• Exemption 4: Ruling on agency's use of this Exemption postponed until such time as the producers of copyrighted test materials in agency files have had the opportunity to state their objections, if any, to release of these materials. Once objections to release have been ascertained, defendant may renew its motion for summary judgment as to these documents.

• Exemption 5: Notes of doctor who performed psychological evaluation of plaintiff pursuant to court order were not properly withheld. Agency did not show that these notes were tied to any agency decisionmaking process, rather they were utilized by the court in ascertaining plaintiff's fitness to stand trial.

• Exemption 7 (threshold): Records compiled in evaluating plaintiff, a federal inmate, and used by BOP in carrying out its law enforcement mission, qualify as law enforcement records.

• Exemption 7(C): Agency use of this Exemption to withhold the names of third parties mentioned in plaintiff's file, including a psychology department staff member, was appropriate. These third parties have strong privacy interests; plaintiff has not articulated any corresponding public interest to overcome the privacy interests. Plaintiff's vague allegations of agency wrongdoing were not enough to constitute valid public interest; his main interest in this information is tied to his own criminal case.

• Exemption 7(F): Agency's use of this Exemption to withhold information gathered during psychological evaluation of plaintiff was inappropriate. Claim of risk of harm to examining doctor too remote, given fact of plaintiff's incarceration and substantial distance between plaintiff and doctor. With regard to notes reflecting information supplied by plaintiff himself during evaluation, absent "compelling argument to the contrary," court is "reluctant" to utilize FOIA to withhold information concerning the requester himself.

• Segregability: For some withheld documents, the agency has not shown that it has released all reasonably segregable portions, thus preventing court from making a segregability ruling with regard to these documents.

4. Peay v. DOJ, No. 04-1859, 2007 WL 788871 (D.D.C. Mar. 14, 2007)

Re: First-party request

• Exemption 2 (high): FBI properly withheld information concerning funds expended on certain FBI activities related to criminal investigation of plaintiff. The information is predominantly internal, and release of this information would allow the general public to learn how FBI funds certain law investigative activities, thus risking circumvention. Plaintiff's public interest argument is irrelevant to evaluation of defendant's use of "high" 2.

• Exemption 3: Defendant appropriately applied this exemption to withhold a variety of grand jury information, including names and identifying information of individuals who testified, records subpoenaed, and wiretap information obtained through Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. Plaintiff's argument that this information should be released because it is already in the public domain is unavailing; his supporting evidence is too vague to support a showing that grand jury evidence was revealed at trial. Defendant's use of Exemption 3 to protect the dates on which the grand jury was convened was inappropriate; defendant ordered to release this information to plaintiff.

• Exemption 5: Defendant's use of the deliberative process privilege to withhold draft search warrants and draft affidavits was acceptable. Factual information on these documents was so intertwined with deliberative portions that withholding of facts was acceptable as well.

• Exemption 7(C): Defendant appropriately withheld the names of federal, state, and local law enforcement agents and support personnel, third parties of investigative interest to law enforcement agencies, individuals who provided information to the FBI, and other third parties who were merely mentioned in the responsive files.

• Exemption 7(D): Implied promise of confidentiality acceptable to protect identities and information supplied by sources, because investigation centered on violent drug organization with which plaintiff is associated, and to which several murders have been attributed.

• Exemption 7(E): Court upholds agency's use of this exemption to redact information rating the effectiveness of FBI investigative techniques.

• Segregability: The agency properly withheld in full when factual information was "closely intertwined" with exempt information or when release would have yielded "nonsensical words and phrases."

5. Goodley v. U.S. Penitentiary Beaumont, No. 06-471, 2007 WL 776549 (E.D. Tex. Mar. 9, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Exhaustion: Inmate plaintiff's failure to avail himself of internal BOP administrative remedies before filing his lawsuit alleging failure of BOP to timely respond to his FOIA request constitutes failure to exhaust administrative remedies (adoption of magistrate's recommendation).

6. Owens v. DOJ, No. 04-1701, 2007 WL 778980 (D.D.C. Mar. 9, 2007)

Re: Records compiled during investigation of attacks on U.S. embassies in East Africa in 1998

• Purpose of request/identity of requester: Plaintiffs' claim that their record request is tied to an attempt to vindicate the rights of victims of terrorism is irrelevant, as is plaintiffs' claim that they would only disclose the withheld records to former FBI agents hired as expert witnesses.

• Waiver: Plaintiffs' claim that some of the withheld records are in the public domain fails because plaintiffs' generalized assertions are not enough to sustain their burden of showing that information is in the public domain.

• Exemption 7(A): Defendant's burden of showing a pending or future law enforcement proceeding is met by its assertion that the agency is still seeking fugitives connected with terrorist bombings, and that the agency is still conducting interviews and collecting investigative materials. Defendant's burden of showing that release would impair an investigation is met by a declaration demonstrating that release of documents would reveal FBI's investigative strategy, endanger sources, and lead to destruction of evidence.

• Exemption 7(C): Agency appropriately used this exemption to withhold names of FBI special agents and support personnel.

• Exemption 7(D): Implied promise of confidentiality proper for sources providing information relating to terrorist bombings; showing by defendant of relationship between source and the crime is not an "absolute requirement."

7. Associated Press v. DOJ, No. 06-1758, 2007 WL 737476 (S.D.N.Y. Mar. 7, 2007)

Re: Petitions sent to the Office of the Pardon Attorney by John Walker Lindh requesting a reduction in sentence

• Exemptions 6/7(C): DOJ properly withheld a petition for commutation of sentence which contained personal information and arguments in which Mr. Lindh had a privacy interest. There is no public interest in disclosure, as the agency's affiant specifically attested that the petition "does not address, contain, or elaborate on any allegations that the Government . . . has engaged in any form of misconduct.

WEEK OF MARCH 26

District Courts

1. Kean v. NASA, 480 F.Supp. 2d 150 (D.D.C. 2007)

Re: Historical documents concerning an object that allegedly fell from the sky and crashed in Pennsylvania in 1965

• Adequacy of Search: Descriptions of the agency's search which fail to provide descriptions of which databases were searched, what methodologies were employed, and which search terms were used are inadequate to meet the agency's burden of proof regarding the adequacy of its search. Furthermore, evidence supplied by plaintiff that additional records do exist was sufficient to call into doubt the agency's claim that such records do not exist or are not maintained by the agency.

• Exemption 5: Upon in camera inspection, two e-mails sent from the agency's FOIA officer to agency counsel concerning an interview request were found to be both predecisional and deliberative.

2. Physicians Comm. for Responsible Medicine v. HHS, 480 F. Supp.
2d 119 (D.D.C. 2007)

Re: Records reflecting make-up of an interagency committee

• Fee Waiver: Plaintiff's allegation that the composition of the relevant agency board has had a negative impact on the board's carrying out of its mandate is sufficient to satisfy the "reasonably specific" standard for a claim that a fee waiver will contribute to the public understanding of government operations. Plaintiff's claim that it will publish the requested information in its free quarterly newsletter, which is sent to its 120,000 members, and that it will send out a press release concerning this information to the "entire media spectrum" is sufficient for plaintiff to meet its dissemination burden.

3. Skull Valley Band of Goshute Indians v. Kempthorne, No. 04-339, 2007 WL 915211 (D.D.C. Mar. 26, 2007)

Re: Communications regarding lease of reservation land for temporary storage of spent nuclear fuel rods

• Request: Plaintiffs' description of the circumstances leading to their FOIA request are irrelevant; a party's need for documents or intended use of them has no bearing on the merits of the party's claim.

• Motion to strike: FRCP 12(f) cannot be used to strike Plaintiffs' Notice of Final Administrative Decision in Related Proceeding.

• Adequacy of Search: Agency declarations describing where searches were conducted were sufficient to meet the agency's burden. Delay in the release of documents does not show bad faith on the agency's part, nor does gradual, piecemeal release of documents, including documents released after plaintiffs filed suit. Plaintiffs' "self-serving speculation" that additional records exist is insufficient to call into question the adequacy of search. The agency is not obligated to identify the source of each responsive document, and it provided plausible explanations for why certain documents were not considered responsive to plaintiffs' request.

Vaughn Index: The agency's Vaughn Index was sufficiently detailed for the court to evaluate defendant's withholdings. Plaintiffs' speculations as to the content of the documents does not render the Vaughn Index insufficient.

• Exemption 5: Draft letters were appropriately withheld under the deliberative
process privilege. Plaintiffs' allegations that letters were shared with the
Governor of Utah is only speculation and does not establish waiver. The agency
also appropriately invoked the attorney-client privilege for documents that
were either written by or sent to agency attorneys concerning legal advice.
The agency's withholding of an employee's notes taken in preparation for a meeting
and ones made during the course of a meeting was appropriate; even if the documents
contain factual information concerning the actions of third parties. A personal
note, including a selection of facts thought relevant by its author, is covered
by the deliberative process privilege, as it reflects one individual's take
concerning an on-going policymaking process. A document discussing relevant
policy options that the agency might pursue was appropriately withheld, even
if it contains discussion of positions taken by non-executive branch individuals,
as the document reflects the agency's deliberative process.

4. Anderson v. DOJ, No. 05-2294, 2007 WL 915221 (D.D.C. Mar. 26, 2007)

Re: Statistical information regarding drug trafficking in New Orleans

• Exhaustion: Plaintiff's failure to file an administrative appeal of the agency's response to one of his FOIA requests constitutes failure to exhaust as to that request.

• Adequacy of search: It is not a violation of the FOIA for an agency to fail to locate records that were destroyed in accordance with the agency's record retention policy. A local law enforcement agency's participation in a DEA task force does not make it subject to the FOIA, nor does it obligate DEA to maintain the local law enforcement agency's records. An agency is not required to create records in response to a request, nor is it required to answer questions or respond to FOIA requests that are requests for explanations of agency policies and procedures. The agency's declarations were sufficient to establish that searches were reasonably calculated to discover all relevant documents. Plaintiff failed to provide evidence to rebut the presumption of good faith accorded agency affidavits.

• Exemption 2 (low): The agency's withholding of matters such as the format for staffing a request for a task force was appropriate; such matters are both predominantly internal and sufficiently trivial.

• Exemptions 2 (high) and 7(E): The agency appropriately withheld techniques for law enforcement investigations and guidelines for law enforcement operations.

• Exemption 6: The agency's use of this exemption to withhold the home address of a retired DEA agent was appropriate. Release of this information would not further the FOIA's purpose.

5. Bey v. DOJ, No. 05-1076, 2007 WL 915218 (D.D.C. Mar. 26, 2007)

Re: Telephone records on plaintiff and third-parties.

• Adequacy of Search: The agency's search was adequate, in spite of its
failure to find some of the requested records. Additionally, plaintiff's evidence
suggesting that more responsive records exist is irrelevant where the agency
has shown that it thoroughly searched the files specified by plaintiff in his
request.

6. O'Neill v. DOJ, No. 05-0306, 2007 WL 983143 (E.D. Wis. Mar. 26, 2007)

Re: Complete copies of four Special Agent reports

• Lit Con: Because litigation was previously closed administratively due to plaintiff's placement in solitary confinement, plaintiff's motion for summary judgment was not untimely. However, because plaintiff's motion is based only on mootness and jurisdiction, his motion is terminated and his arguments considered only in response to the agency's motion for summary judgment. Exhibits submitted by plaintiff for which he can offer no evidence that he is an affiant through whom the exhibits can be submitted into evidence are disregarded.

• Summary Judgment: Because plaintiff's request can be construed as in part a claim that the government has a policy of failing to make reasonable attempts to locate requested doucments, and because the government has not responded to this claim, defendant's motion for summary judgment is construed as a motion for partial summary judgment.

• Venue: Venue is proper because one of the disputed documents is located in the court's district and because the government has withdrawn its argument with regard to the other three.

• Mootness: Even though the agency has released documents, plaintiff's
claim is not moot because he has challenged agency policy with regard to the
processing of his requests.

• Exemption 7(C): The agency appropriately withheld information concerning ATF agents and a local law enforcement agent. Plaintiff's unsupported allegations of government misconduct are insufficient to create a public interest high enough to overcome the substantial privacy interests at stake.

• Waiver: With regard to two of the withheld documents, plaintiff has pointed to specific information in the public domain, i.e., evidence that they were moved into evidence during plaintiff's trial, that appears to duplicate the information being withheld, thereby creating a genuine issue of material fact on this issue.

7. Citizens for Responsibility and Ethics in Washington v. Department of Labor, No. 06-743, 2007 WL 860890 (D.D.C. Mar. 22, 2007)

Re: E-mail exchanges between DOL and lobbyist Richard Berman

• Exemption 5: The deliberative process privilege protects an email string
containing information prepared to assist the Secretary of Labor in determining
how to respond to projects proposed to her. The agency declaration makes clear
that the withheld material was not merely a factual recitation. The agency is
not required to indicate precisely what policies were under consideration. The
deliberative process privilege also protects an email string concerning how
the agency might respond to newspaper articles. Plaintiff's claim that the redacted
information contains the agency's decision on the matter is unavailing in light
of the agency's declaration to the contrary. Additionally, plaintiff's claim
that the documents are not protected because they relate to a "political" rather
than a "policy" decision is unavailing. Finally, the privilege also
protects emails containing a discussion of how the agency should respond to
an outside group's request for agency support. The e-mails reflect agency deliberations
on whether to offer support. (posted 9/4/2007)

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