FOIA Post (2007): Summaries of New Decisions -- August 2007

October 17, 2007

FOIA Post

Summaries of New Decisions -- August 2007

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, each case is broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of August 2007.

WEEK OF AUGUST 6

Courts of Appeal

1. Elliott v. U.S. Attorney General, No. 07-5001, 2007 U.S. App. LEXIS 18683 (D.C. Cir. Aug. 1, 2007)

Re: Request for documents relating to Beltsville Agricultural Research Center

• Request for relief: An agency's failure to comply with the FOIA's time limitations does not entitle a FOIA plaintiff to damages.

• Adequacy of search: The district court correctly concluded that defendant's affidavit was sufficient to show that its search for responsive documents was adequate.

District Courts

1. Idema v. U.S. Dep't of State, No. 05-1334, 2007 WL 2258543 (D.D.C. Aug. 6, 2007)

Re: Documents related to U.S. activities in Afghanistan

• Litigation considerations: Because plaintiffs have failed to respond to defendants' motion for summary judgment (despite having been granted additional time in which to respond), defendants' motion is taken as conceded.

2. In Defense of Animals v. USDA, No. 02-557, 2007 WL 2234773 (D.D.C. Aug. 6, 2007)

Re: Records related to USDA investigation of Huntington Life Sciences

• Summary judgment/Exemption 4: Summary judgment is inappropriate where, as here, there is a genuine dispute over a material fact, namely the extent to which release of the withheld information would cause Huntington substantial competitive harm. The parties are directed to "submit a joint status report scheduling further proceedings to bring this litigation to end."

3. Canning v. DOD, No. 04-1464, 2007 WL 2234772 (D.D.C. Aug. 6, 2007)

Re: Records concerning training of Virginia State Police at Fort Picket, Virginia in 1986 and concerning military assistance to civilian law enforcement in 1986

Summary judgment: Plaintiff has failed to comply with the requirements of LRCP 7.1(h) because his statement of material facts combines factual statements with legal arguments. Since defendant's 7.1(h) statement is thus uncontested, it is taken as admitted.

• Adequacy of search: Defendant's seven declarations document the steps it took to locate records responsive to plaintiff's request. These declarations are more than adequate to show that defendant's search was reasonable, as they describe with reasonable specificity the systems of records searched as well as how the searches were conducted. Plaintiff has offered no evidence to call into question the adequacy of defendant's search. The fact that responsive records may once have existed does not mean that the records are still in defendant's custody or that defendant was required to retain the records.

4. Bestor v. FBI, No. 06-1745, 2007 WL 2230267 (D.D.C. Aug. 6, 2007)

Re: First-party request

• Exhaustion: Plaintiff did not file an administrative appeal of the Washington Field Office's response to his request for records. Thus, his claim as to that portion of his complaint is dismissed for failure to exhaust administrative remedies.

• Adequacy of search: When a FOIA request does not specify particular locations to be searched, an agency "has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return." Here, the FBI searched in its central records system for files under plaintiff's name and also performed a cross-reference search for entries related to plaintiff, finding several responsive documents which were released in full to plaintiff. This constitutes an adequate search, reasonably calculated to uncover all relevant documents. Plaintiff has produced no evidence to support his "'purely speculative claims'" that the FBI acted in bad faith. The possible "existence of other documents do [sic] not rebut the presumption of good faith."

5. Ctr. for Pub. Integrity v. HHS, No. 06-1818, 2007 WL 2257324 (D.D.C. Aug. 3, 2007)

Re: Records of, and correspondence to, the Agency for Toxic and Disease Registry and records regarding AIDS relief

• Fee category: Plaintiff's assertion that the records it sought would "'serve as the basis for several press releases and articles'" written by its "'investigative journalists'" and posted on plaintiff's online newsletter coupled with plaintiff's prior history of publication, which includes several award-winning articles was, enough to qualify it as a representative of the news media. Plaintiff's "newsletter, press releases and other articles" demonstrate that it "'gathers information of potential interest to a segment of the public,'" which is then edited by plaintiff, turning it into "distinct work[s]" which are then distributed to a public audience. Defendant argued that plaintiff had not met the requirement of showing a "firm intention" to disseminate the requested materials. However, plaintiff's showing of its "relatively established history of publication activities" as well as its intent to use the requested records as the basis for several similar publications is sufficient.

• Standard of review: In a dispute over fee status or fee waivers, courts conduct a de novo review, but limit their review to the administrative record that was available to the agency at the time of its determination. The fact that plaintiff provided its website address does not mean that the court is required to consider the totality of plaintiff's website as part of its review. Rather, its review is limited to material "provided to or definitively reviewed by the agency," especially because it would be impossible for a reviewing court to know whether the content of a plaintiff's website was the same at the time of court review as it was at the time the agency made its fee determination.

6. Boyd v. ATF, No. 05-1096, 2007 WL 2199305 (D.D.C. Aug. 2, 2007)

Re: First and third-party requests, requests for information regarding agency procedures concerning the use of confidential informants

• Exemption 2: ATF appropriately withheld computer information whose release might enable unauthorized access to ATF computer systems, thereby "expos[ing] the system[s] to circumvention." To the extent that this information contains internal administrative codes, it was correctly withheld as "low" 2 information.

• Exemption 5: ATF appropriately withheld documents containing handwritten notes that express the opinion of ATF agents as to the necessity of acquiring additional information in order to determine the viability of a federal prosecution.

• Exemption 7(D): ATF correctly applied this exemption to protect a source who is "registered confidential with another federal law enforcement agency." The existence of this relationship made it reasonable for ATF to infer that the source provided information to ATF with the understanding that his/her identity and the information he or she provided would remain confidential.

• Exemption 7(E): ATF properly withheld Confidential Informant Orders that "contain policy and instructions relating to informant use and undercover operations." ATF's declarations did not adequately explain the basis for the agency's use of this exemption to protect consensual monitoring data and so the court defers ruling on that issue.

7. Banks v. U.S. Marshal, No. 07-0229, 2007 WL 2238342 (W.D. Okla. Aug. 1, 2007) (adoption of magistrate's report)

Re: First-party request

• Proper party defendant: Only the agency is the proper party defendant, not individual employees.

• Exhaustion: Plaintiff's FOIA requests to the USMS were not sent to the correct address. Because he has not "properly completed even the first step of filing a request," his FOIA claims are "frivolous" and are dismissed.

8. Heath v. Thomas, No. 99-2277, 2007 WL 2229056 (N.D. Tex. July 31, 2007) (adoption of magistrate's report)

Re: Records related to plaintiff's criminal trial

• Litigation considerations: After plaintiff's FOIA claim was dismissed as frivolous because the federal FOIA does not apply to state or local governments, his instant motion, which is treated as a Rule 60(b) motion for relief from judgment, is denied. Plaintiff has not demonstrated any of the "exceptional circumstances" that would justify such relief.

9. Citizens for Responsibility and Ethics in Washington v. Dep't of the Interior, No. 05-2339, 2007 WL 2206905 (D.D.C. July 31, 2007)

Re: Records related to Interior's contact with lobbyists connected with Jack Abramoff, and records related to six Indian tribes

• Exhaustion: Plaintiff failed to exhaust its administrative remedies by filing late administrative appeals of the DOI's initial response to two of its requests and not filing an administrative appeal at all with regard to another of its requests. With regard to the former, plaintiff became aware of potential concerns it might have with regard to DOI's search for responsive records well within the time period it had to file an administrative appeal. Furthermore, to the extent new information raised questions about defendant's search, the "more efficient method of obtaining information rather than attempting to revive an unexhausted claim by filing a late appeal would be for the plaintiff to file an additional FOIA request."

• Adequacy of search: "Because the defendant fulfilled the plaintiff's request by producing" the records plaintiff specifically requested, "there can be no question as to the adequacy of the defendant's search." Plaintiff is "free to file an additional FOIA request" if it believes "other, broader searches" might produce more responsive documents.

• Procedural: Interior's affidavits demonstrate that it sent plaintiff a letter, asking plaintiff to narrow one of its requests, which plaintiff has not responded to, and as a result, that request "remains open" at the agency. Because plaintiff has "failed to sufficiently prove" that Interior did not send this letter, this "remains open" at the agency level, and Interior is entitled to summary judgment on this issue.

10. Bettwieser v. Lucas, No. 06-0142, 2007 WL 2187057 (D. Idaho July 27, 2007)

Re: Employment records relating to plaintiff and others

• Exhaustion: Plaintiff did not file an administrative appeal with the correct office. Thus, he has failed to exhaust his administrative remedies, and his "bare assertions" that filing such an appeal would have been "futile" are insufficient.

WEEK OF AUGUST 13

Court of Claims

1. McNeil v. United States, No. 06-747, 2007 WL 2317513 (Fed. Cl. Aug. 9, 2007)

Re: Tax levy issued by IRS

• Jurisdiction: The Court of Federal Claims is not a district court, and therefore lacks jurisdiction to hear claims raised under the FOIA.

District Courts

1. Jones v. DOJ, No. 06-0248, 2007 WL 2286134 (D.D.C. Aug. 9, 2007)

Re: First-party request

• Summary judgment: Plaintiff has not responded to DOJ's motions for summary judgment or dismissal, despite being warned of his obligation to do so. Thus, DOJ's motions are taken as conceded. DOJ is entitled to judgment as a matter of law.

2. Associated Press v. DOD, No. 05-5468, 2007 WL 2269816 (S.D.N.Y. Aug. 9, 2007)

Re: Information concerning individuals being held in U.S. detention facility at Guantanamo Bay, Cuba

• Exemption 1: The court, relying on a "Top Secret" declaration provided by a high-level DOD official, as well as extensive in camera review, determined that DOD appropriately applied this exemption to a sample of responsive documents. Thus, DOD is granted partial summary judgment as to the redactions on the sample documents and directed to apply similar redactions on similar documents that were not part of the sample. In reviewing Exemption 1 withholdings, courts "'must accord "substantial deference" to agency affidavits that implicate national security.'"

3. Johnson v. DOJ, No. 06-1248, 2007 U.S. Dist. LEXIS 57963 (W.D. Wis. Aug. 8, 2007)

Re: Third-party request

• Discovery: Plaintiff's motion for discovery is denied. Plaintiff's discovery request is not related to EOUSA's decision to refuse to confirm or deny the existence of records, but is instead an attempt to get through discovery what he has been unable to get through the FOIA. He "cannot be allowed to circumvent FOIA's exemptions simply by filing a FOIA lawsuit and obtaining exempted materials through discovery."

4. Simpson v. USDA, No. 07-109, 2007 WL 2263919 (N.D. Fla. Aug. 7, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Proper party defendant: Only federal agencies are proper party defendants to FOIA lawsuits. The FOIA does not create a right of action against individuals.

WEEK OF AUGUST 20

Courts of Appeal

1. Pagan v. Treasury Inspector General for Tax Admin., No. 06-1655, 2007 WL 2348731 (2d Cir. Aug. 16, 2007)

Re: Request for records detailing alleged allegations against plaintiff

• Exemption 7 (threshold): It is well settled that an agency's Inspector General "engages in law enforcement activities within the meaning of FOIA."

• Exemption 7(C)/Glomar: Even assuming the requested documents exist, and the allegations made in them were false, Exemption 7(C) would still apply. Further, a desire to use records for litigation purposes is not a significant public interest.

District Courts

1. Consumers' Checkbook v. HHS, No. 06-2201, 2007 WL 2381005 (D.D.C. Aug. 22, 2007)

Re: Records related to Medicare claims

• Exhaustion: At the time defendant filed its motion for summary judgment, plaintiff had not exhausted its administrative remedies with regard to its request for a fee waiver. However, HHS has now issued a final ruling on plaintiff's fee waiver request, and so plaintiff has exhausted its administrative remedies.

• Fee Waiver: Plaintiff adequately demonstrated that its disclosure of the information will "advance the understanding of the general public." It plans to disseminate the information through its magazine (which has over 100,000 subscribers) as well as press releases which "would be covered by numerous major media outlets." This is sufficient in spite of the fact that plaintiff charges for access to some of this information. Plaintiff has also demonstrated that the public benefit from disclosure will be significant, because it will be able to analyze and synthesize a large volume of data and publish it in "a useful form." While plaintiff does have a commercial interest in the information, this interest "does not outweigh the advancement of the public interest." Plaintiff is a nonprofit organization that charges fees only to fund its activities; its primary interest is in "distributing useful consumer information to the public."

• Exemption 6: Plaintiff requested information on Medicare claims submitted by physicians during 2004. Defendant withheld the names of the physicians because its release would have allowed plaintiff to determine how much these physicians received in Medicare reimbursements for the year. Plaintiff's asserted public interest in analyzing the efficacy of the government's Medicare operations outweighs the "minimal" privacy interests the physicians have in protecting information relating to their "business income." "Exemption 6 provides less protection for information that relates to an individual's business affairs."

2. Seized Prop. Recovery Corp. v. U.S. Customs & Border Prot., No. 05-1570, 2007 WL 2340875 (D.D.C. Aug. 17, 2007)

Re: Request for information on individuals and businesses whose property was seized by defendant

• Exemption 7 (threshold): Because the records at issue were gathered in the exercise of the agency's duty to seize goods for violations of Customs and Border Patrol (CBP) laws, they bear a "clear relationship" to defendant's law enforcement purpose, thereby meeting the Exemption 7 threshold.

• Exemptions 6 & 7(C): Release of the names and addresses of individuals mentioned in files related to asset seizures (some of whom defendant contacted in response to plaintiff's request and who expressed a desire to have their names remain confidential) "would automatically associate the individuals with such law enforcement proceedings and possibly cause comment, speculation and opprobrium." Additionally, release of names and addresses from this file would also likely lead to unwanted commercial solicitations from plaintiff and competitors of plaintiff. There is not a sufficient nexus between plaintiff's asserted public interest -- the ability to contact the individuals in the file and inform them of alleged mistakes made by CBP -- and release of the information in question. The names and addresses themselves do little to inform the public as to CBP's performance of its duties. Furthermore, in balancing the interests, the court "cannot ignore" that plaintiff's primary interest in this information is to solicit business from the individuals named in CBP's files. Finally, in considering whether the individuals themselves might have an interest in disclosure of their names and addresses, that interest is deemed to be too limited here to overcome their strong privacy interests in nondisclosure.

• Exemption 7(A): Even though the original enforcement proceeding which gave rise to the files at issue here has closed, the fact that a different, but related investigation remains open is sufficient for CBP to withhold records under this exemption. CBP has also articulated the potential harm from release of these records in a "logical and reasonably specific" way. Release of the names and addresses of the business entities mentioned in the seizure files could make them alter their practices and so interfere with ongoing proceedings.

3. Dinsio v. FBI, No. 05-6159, 2007 WL 2362253 (W.D.N.Y. Aug. 16, 2007)

Re: First-party request

• Adequacy of search: Defendant's declaration is sufficient to show that the FBI conducted an adequate search, notwithstanding plaintiff's unsupported allegations that additional records exist.

• Miscellaneous motions: Plaintiff's motions for discovery and to have defendant's declarations struck from the record are denied, as they are based on nothing more than unsupported, conclusory allegations.

4. Bloomberg, L.P. v. FDA, No. 06-6552, 2007 WL 2372394 (S.D.N.Y. Aug. 15, 2007)

Re: Correspondence with pharmaceutical companies related to anti-epileptic drug side effects

• Open America stay: According to the district court, evidence submitted by FDA showed that it has not experienced an unusual spike in its workload but rather is operating "squarely within anticipated levels." Congressional inquiries, although increased in number, have not "overwhelmed its resources." As a result, the district court found that FDA did not demonstrate exceptional circumstances justifying a stay. The district court further held that FDA failed to demonstrate sufficient due diligence to support its request for a stay.

• Expedited processing: The information at issue here, which was requested by FDA for its own inquiry, clearly relates to federal government activity. Furthermore, in this case "an exigent need still exists" with regard to the data at issue along with an analysis of the data, notwithstanding the fact that the public at large may not be able to understand the raw data itself.

5. Natural Res. Def. Council v. DOD, No. 04-2062 (C.D. Cal. Aug. 13, 2007)

Re: Records related to health effects of rocket fuel chemical perchlorate

• Exemption 5: Because defendants have not demonstrated that its contractor was acting solely in his capacity as a government agent and was not in any way advancing his own interests, documents shared with him cannot qualify as intra or inter-agency memoranda. Defendants were also unable to establish that the contractor at no time shared the documents in question with colleagues at his non-contractor job. Thus, those documents shared with the contractor are ordered disclosed. Defendants have now established that most of the documents in the sample it submitted are predecisional and deliberative (it failed to so demonstrate for two of the 25 documents in the sample; this small error rate does not call into question the sample as a whole, though the two documents in question must be released). Defendants appropriately withheld clean-up cost estimates, as these figures are more akin to "deliberative judgments" than to "factual information." Defendants failed to adequately demonstrate that documents withheld in full pursuant to the deliberative process privilege did not contain segregable factual information, or that withheld factual information was so inextricably intertwined with deliberative material so as to not be releaseable. A magistrate judge is designated to make final segregability determinations.

6. Pisani v. Van Iderstine, No. 07-187, 2007 WL 2319844 (D.R.I. Aug. 9, 2007) (adoption of magistrate's recommendation)

Re: Records related to invention

• Litigation considerations: Plaintiff's allegation that defendant, in violation of the FOIA, improperly released records plaintiff submitted to the agency is sufficient to state a cause of action.

WEEK OF AUGUST 27

District Courts

1. West v. Spellings, No. 06-1012, 2007 WL 2433876 (D.D.C. Aug. 29, 2007)

Re: Records related to discrimination and retaliation investigations

• Summary judgment: Because plaintiff has not filed a reply to defendant's motion to dismiss or for summary judgment, defendant's motion is taken as conceded, and plaintiff's complaint is dismissed.

2. New York Times Co. v. DOD, No. 06-1553 (S.D.N.Y. Aug. 28, 2007)

Re: Records related to Terrorist Surveillance Program (TSP) run by NSA

• Adequacy of search: The newly submitted DOD declaration provides sufficient "specificity of detail" so as to meet the agency's burden of proof concerning its search for responsive records.

• Exemption 5: Upon in camera review, some of the documents withheld by defendants are predecisional and reflect the agencies' deliberative process, and were therefore withheld appropriately. Other documents, which are not predecisional and were not prepared in anticipation of litigation, must be released.

3. Keeper of the Mountains Found. v. DOJ, No. 06-0098 (S.D.W.V. Aug. 28, 2007)

Re: Records regarding an e-mail concerning post-Katrina rebuilding

Vaughn Index: One of the Vaughn Indexes submitted by defendant is inadequate, as it does not mention or explain the basis for withholding some of the responsive documents. It must therefore be resubmitted (though the parties are also directed to confer as to these documents).

• Exemption 2: This exemption did not support withholding a document consisting of a tally of responses to an internal DOJ e-mail seeking information responsive to a U.S. Senator’s inquiry regarding the involvement of environmental groups, if any, in Army Corps of Engineers projects relating to New Orleans levees. The district court found that the information was not trivial, and also found that the prior disclosure of the contents of the document also did not make the document trivial.”

• Exemption 5: DOJ appropriately applied the deliberative process privilege to e-mails which reflected internal deliberations on how the agency should respond to a Senate inquiry and related media coverage. In camera review of these documents is not necessary. DOJ also appropriately withheld drafts of a letter to a Member of Congress. However, the relevant declaration did not establish that these drafts were reviewed to determine if there was any segregable, releaseable information therein. DOJ is invited to submit additional information to the court on this point. Plaintiff's argument that a draft document becomes a final document if no subsequent document is adopted by the agency is unsupported and has been rejected in prior cases.

4. People for the Am. Way Found. v. Nat'l Park Serv., No. 05-152, 2007 WL 2416113 (D.D.C. Aug. 27, 2007)

Re: Records relating to Park Service video

• Jurisdiction: A claim under the Administrative Procedure Act is precluded when a remedy under the FOIA is available.

• Adequacy of search: Defendant has not established "beyond material doubt" that its search was "reasonably calculated to uncover all relevant documents," as it has "neither identified what search terms were used, nor . . . identified why the scope . . . was limited to the files or personnel listed." Thus, defendant cannot be granted summary judgment on this issue.

Vaughn Index: Defendant's Vaughn Index provides enough detail for the Court to be able to evaluate whether it utilized a particular exemption appropriately, thus defendant is entitled to summary judgment on this issue.

• Segregability: The agency's sworn statement regarding segregability, coupled with further individualized descriptions in its Vaughn Index, is a sufficient showing of segregability analysis.

• In camera review/discovery: Because defendant's Vaughn Index and declaration were sufficient, there is no need for in camera review by the Court or for discovery by plaintiff.

Exemption 5: Documents reflecting preliminary discussions regarding the video, proposed footage as well as suggestions on how to edit it, and agency reactions to media coverage of this story were appropriately withheld as predecisional and deliberative. Certain other documents (including one that listed scholars who defendant might have wanted to consult and a description of the development of the original video) did not necessarily reflect agency deliberations and must be released.

• Exemption 6: Defendant withheld the names and contact information (including home addresses and phone numbers) of private individuals who voluntarily submitted comments to defendant regarding the video. As to the former, defendant has not demonstrated why release of these names would "raise the kind of privacy concerns protected by Exemption 6." Furthermore, any such privacy interest is outweighed by the public interest in knowing the names of individuals who "may be exerting influence" on Park Service officials. As to the latter, there is no public interest to be gained from the release of personal phone numbers and home addresses, so these were properly protected. Since neither side specifically addressed the issue of release of personal e-mail addresses, the Court will allow the parties to now do so.

5. Ctr. for Pub. Integrity v. FCC, No. 06-1644, 2007 WL 2411811 (D.D.C. Aug. 27, 2007)

Re: Request for documents submitted by telecommunications providers

• Waiver: Defendant did not waive its right to claim Exemption 6 as the basis for some of its withholdings by not referencing this exemption in its initial responsive pleading (i.e., its summary judgment motion).

• Adequacy of search: The search is adequate when defendant's declaration "reflects a reasonable and systematic approach to locating the responsive documents."

• Procedural: Plaintiff's proposal that, instead of releasing certain documents, defendant put together new documents that would contain the information plaintiff seeks would amount to a creation of new documents, which is not required by an agency in response to a request.

• Exemption 4: The parties agreed that information was provided "involuntarily" and so must be analyzed under Nat'l Parks. Though release of "zero/non-zero ranges" for all portions of Parts I-III of the responsive documents would disclose competitively sensitive information, such as "customer mix," connections speeds, and deployment strategy, revealing the existence of comments in Part IV of the documents would run no such risk. The FCC appropriately withheld zip code data from Part V of the responsive documents, as this information could reveal where submitters had acquired or lost customers, information which might well be valuable to competitors.

• Exemption 6: Plaintiff did not contest the merits of the FCC's withholding of the names, phone numbers and e-mail addresses of private individuals who prepared filings for the submitters, nor did it dispute that release of this information would in no way advance public understanding of agency activities. Thus, the information properly was withheld.

6. Elliott v. USDA, No. 07-202, 2007 WL 2409511 (D.D.C. Aug. 24, 2007)

Re: Records related to Beltsville Agricultural Research Center

• Adequacy of search: USDA's search was "reasonably calculated to uncover all relevant documents." Plaintiff has raised no challenge to USDA's search.

• Release of documents: USDA has released all responsive documents in full. Plaintiff's "bare assertions" to the contrary "are far too insubstantial to rebut" USDA's presumption of good faith.

7. Elliot v. USDA, No. 07-341, 2007 WL 2421825 (D.D.C. Aug. 24, 2007)

Re: Records related to Beltsville Agricultural Research Center

• Litigation considerations: Because plaintiff's complaint in this case is based on a "nearly identical FOIA request" and because summary judgment in favor of defendant was just granted, this action is dismissed.

8. Sukup v. EOUSA, No. 02-0355, 2007 WL 2405716 (D.D.C. Aug. 23, 2007)

Re: First-party request

• Exemption 7(C): On remand from the Court of Appeals, defendant has demonstrated that this exemption was properly applied to the documents, as release of additional information would allow plaintiff to identify the individuals mentioned in the documents. In the absence of any showing by plaintiff of an overriding public interest in release of such information, it is "categorically exempt."

• Attorney fees/litigation costs: Pro se plaintiffs are not eligible for attorney fees under the FOIA. Plaintiff is also not entitled to recover litigation costs, as he did not "substantially prevail" in the current action.

9. Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007)

Re: Requests for records concerning multiple SEC investigations

• Exemption 2: The SEC appropriately applied this exemption to materials "used to facilitate the administration and management" of its investigations, such as case names and numbers, staff assignment dates, and staff names and phone numbers. Such information "provides no insight on [the] substantive contents of the investigations," and is therefore "purely trivial." Plaintiff's claim that there is a substantial public interest in knowing SEC staff assignment dates is unconvincing. The Court was unable to determine whether on-line complaint forms and e-mail exchanges are lacking in public interest, but these documents were also withheld pursuant to Exemption 5.

• Exemption 4: As to the document produced pursuant to a subpoena (and so considered to be provided "under compulsion"), the SEC filed an affidavit prepared by a submitter which adequately explains the competitive harm the submitter would suffer if its document was released. As to documents which were voluntarily submitted, the SEC has shown that these documents contained commercial information of a type not "ordinarily released . . . to the public" and were thus properly withheld.

• Exemption 5: The SEC correctly used the attorney-client privilege to withhold documents containing attorney recommendations and legal advice. The agency also appropriately used the attorney-work product privilege to protect a range of documents tied to SEC investigations. In all cases, these documents were prepared by agency attorneys in anticipation of litigation. Finally, defendant withheld documents pursuant to the deliberative process privilege. All of these documents were both predecisional and deliberative, in particular reflecting discussions and recommendations as to the conduct of agency investigations. In camera review of these documents is unnecessary.

• Exemption 7(A): The SEC has satisfactorily explained why release of documents withheld under this exemption would harm ongoing investigations. SEC also showed that it had reviewed these documents to ascertain whether there were any segregable, releaseable portions, and in fact did identify releaseable portions of some of these documents.

• Exemption 7(C): The SEC's use of this exemption to withhold names, contact information, and account numbers of SEC staff members and private parties was appropriate. Plaintiff has not identified a public interest that would overcome the substantial privacy interest in the release of such private information. SEC did not waive use of this exemption by the submission of declarations of individuals involved in its investigations, nor is SEC's use of the exemption affected by the fact that plaintiff may be able to identify some of the individuals whose names were withheld.

• Exemption 8: Plaintiff's claim that the SEC was required to refer documents originating with state and federal banking regulators to their originators for an initial determination on disclosure is unsupported. Plaintiff's claim that defendant has failed to release "purely factual" information is similarly unavailing. Defendant submitted a declaration explaining the application of the exemption to the entirety of the relevant documents, and compelling release "would 'undermine the spirt of cooperation between banks and regulating agencies that Exemption 8 attempts to foster.'"

• Attorney fees: Even though the Court denied plaintiff's motion for summary judgment, he has substantially prevailed and is therefore eligible for an award of fees "because his vigorous prosecution of the action compelled the SEC either to produce the requested records or apply proper FOIA exemptions." However, plaintiff is not entitled to an award of fees, because the public benefit from his action is "minimal and incidental." Plaintiff was a commercial requestor, seeking the records in question chiefly for his own private gain.

• Sanctions: The FOIA does not authorize sanctions as a remedy for an agency's failure to disclose documents. (posted 10/17/2007)

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