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

October 11, 2007

FOIA Post

Summaries of New Decisions -- July 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 July 2007.

WEEK OF JULY 2

Courts of Appeal

1. Rease v. Harvey, No. 06-15030, 2007 WL 1841080 (11th Cir. June 28, 2007)

Re: First-party request for military disability records

• Standard of review: The district court's grant of summary judgment will be reviewed de novo.

• Exhaustion of administrative remedies: "Even when an agency belatedly responds to a FOIA request, the requester still must exhaust his administrative remedies." Even assuming that plaintiff's initial request was denied, he failed to file an administrative appeal. Because of this, the district court correctly granted defendant's motion for summary judgment on plaintiff's FOIA claim.

District Courts

1. Coleman v. Lappin, No. 06-2255, 2007 U.S. Dist. LEXIS 47647 (D.D.C. July 3, 2007)

Re: Request for disciplinary report filed against plaintiff and for investigatory records concerning that BOP employee.

• Procedural: The Office of Bar Counsel, as a creation of the District of Columbia Court of Appeals, is not a federal agency subject to the FOIA.

Lit Con: Plaintiff has not challenged BOP's assertion that it released the entirety of the disciplinary report plaintiff asked for. Therefore, it is taken as conceded that BOP has provided plaintiff with a full release as to this part of his request.

• Exemption 7: BOP has not demonstrated that disciplinary records on a former BOP employee (if they exist) qualify as law enforcement records. Thus, the agency is directed to file a renewed motion for summary judgment addressing this issue before the court rules on BOP's Glomar response to plaintiff.

2. Finkel v. U.S. Dep't of Labor, No. 05-5525, 2007 U.S. Dist. LEXIS 47307 (D.N.J. June 29, 2007)

Re: Records related to possible workplace exposure to unsafe levels of beryllium

• Proper party defendant: Only federal agencies are proper party defendants. Thus, the Department of Labor (DOL), and not the Occupational Safety and Health Administration (OSHA) is the proper defendant to plaintiff's action.

• Exemption 4: DOL's statement that less than 2% of the files included in a database contained "trade secrets" did not justify withholding certain information from all of the files in the database. In addition, according to the district court, DOL's affidavit did not describe the withheld information with sufficient specificity for the court to determine if the records claimed to be trade secrets so qualified. Inspection ID numbers, OSHA office ID numbers, and inspection dates also were not trade secrets, notwithstanding DOL's claim that this information could be combined with other, already available information to reveal the identities of the employers who provided the samples. Such information is not sufficiently related to the "productive process" to qualify as a trade secret. Inspection information submitted to OSHA pursuant to its regulatory authority was not voluntarily submitted, notwithstanding DOL's argument that the submissions should be considered voluntary because submitters did not insist on OSHA obtaining search warrants for the information. There was no impairment to the reliability of samples obtained by OSHA or to its efficiency. The Supreme Court has previously rejected a claim identical to one made by DOL, that release of this information will lead to an increase in warrants sought by inspectees, there being no evidence of refusals to allow the inspections.

• Exemption 6: DOL has failed to show that release of coded identification numbers consisting of the last 4 digits of OSHA employees' Social Security numbers (an identification system no longer in use) would constitute a clearly unwarranted invasion of personal privacy. The agency has shown no more than a "mere possibility" that release could lead to the disclosure of a particular employee's medical condition.

• Exemption 7: The inspector ID numbers are law enforcement records, because the information was collected in connection with OSHA's statutory authority to inspect workplaces.

• Exemption 7(C): The public interest in release of information that will "increase understanding about beryllium sensitization and OSHA's response thereto" is significant, and outweighs the privacy interest of OSHA employees in their ID numbers. Such privacy interests are "more limited" than the interests of other law enforcement agents in the release of more readily identifying information.

3. The New York Times Co. v. DOD, 499 F. Supp. 2d 501 (S.D.N.Y. 2007)

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

• Adequacy of search: The declaration submitted by the Department of Defense did not include information such as the methods used to conduct the search and what search terms were used. As such, according to the district court, it was insufficiently detailed to establish that DOD's search was adequate, and must be re-submitted in order for the court to make a determination on this issue.

• Exemption 1: The declaration from the former Director of National Intelligence explains why information relating to the TSP program was classified, identifying seven different categories in which information had to be classified in order to protect "the continued successful operation of U.S. intelligence-gathering methods." The various agency declarations all establish that the information withheld pursuant to Exemption 1 falls within one or more of these seven categories, and was therefore properly withheld. Though NSA's declaration was considerably less detailed than the ones submitted by the Defense and Justice Departments, this is acceptable in light of NSA's mission and the constraints under which it operates.

• Exemption 3: Most of the classified documents were also subject to withholding under the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403 - 1(i)(1); 18 U.S.C. § 798; and the National Security Agency Act of 1959, 50 U.S.C. §402 (note).

• Exemption 5: Defendants failed to show that "talking points" created to prepare briefing officials (including the Attorney General) in responding to press inquiries are "contemplative, deliberative, analytical documents." With regard to draft documents, defendants' affidavits did not adequately describe the "function and significance" of these documents in the agencies' decisionmaking processes. For most of the withheld e-mails and notes, defendants' declarations and Vaughn indexes do not provide sufficient detail to determine how these documents were part of the deliberative process. For all documents for which insufficient detail was provided in agency declarations and Vaughn indexes, defendants are directed to submit the documents for in camera review. One document that reflected the advice of the Office of Legal Counsel in response to a request for assistance from other Department officials was properly withheld. Pursuant to the presidential communications privilege, the Department of Justice properly withheld two documents that originated with a presidential adviser and which sought advice concerning a presidential decision. Talking points and a draft editorial were not subject to protection under the attorney work-product privilege, because they appear to have been created for public relations purposes, and not in anticipation of litigation. Two documents that provided guidance for criminal litigation were properly withheld under the attorney work-product privilege.

4. Murillo v. DHS, No. 06-1725, 2007 U.S. Dist. LEXIS 47279 (N.D. Tex. June 28, 2007)

Re: First-party request

• Procedural: DHS component letter to plaintiff informing him that his request had been forwarded to another component does not constitute a "response" to the request that would require plaintiff to file an administrative appeal before filing a claim in court. However, because DHS now responded to plaintiff's request, his suit must be dismissed as moot.

5. Pietrangelo v. U.S. Dep't of the Army, No. 06-170, 2007 U.S. Dist. LEXIS 46495 (D. Vt. June 27, 2007)

Re: Records related to issuance of Bronze Stars during Iraq war

• Fees/fee waiver: Plaintiff's suit is not mooted by the fact that he previously agreed to payment of fees in excess of what he actually owes. The record does not support the Army's contention that plaintiff's interest in the records only relates to his own service. The information sought by plaintiff goes beyond what is currently available on the Army's own website. Plaintiff has been designated by the Army as a representative of the news media, and has also provided a reasonably specific plan for dissemination of the information he seeks. If the information he seeks supports his claim that the awarding of Bronze Stars in the Third Army was corrupt, his dissemination of this information will "almost certainly enhance public understanding about activities in that subset of operations." Thus, plaintiff has met the requirements for a fee waiver.

• Pattern/practice: Despite the fact that the Army did not respond to plaintiff within 20 business days, there is no evidence of bad faith or misconduct on the Army's part, nor is there evidence of a pattern or practice of delay.

• Attorney fees: Attorney fees to pro se litigants in FOIA cases are barred.

• Litigation costs: While there may be a public interest in information about the awarding of Bronze Stars, this issue is not a sufficiently "vital political concern" to entitle plaintiff to litigation costs. Additionally, plaintiff may have some private interest in the information. Finally, the Army's position on whether to grant plaintiff a fee waiver was not unreasonable.

6. Southern Appalachian Biodiversity Project v. U.S. Forest Serv., 500 F. Supp. 2d 764 (E.D. Tenn. 2007)

Re: Records related to alternatives to approved wildlife habitat plan

• Procedural: Delay in responding to plaintiff's request that appears to have been caused simply by an administrative backlog is not evidence of bad faith by the agency, nor does it entitle plaintiff to any form of independent relief.

• Exemption 5: The Forest Service appropriately withheld documents containing preliminary analysis and recommendations; such documents are the "very type of records that Exemption 5 has been construed to protect." Defendant also showed that release of "partially factual" records would reveal the agency's deliberative process. Release of any records under NEPA is still subject to the application of FOIA Exemption 5.

WEEK OF JULY 9

District Courts

1. Mogenhan v. DHS, No. 06-2045, 2007 U.S. Dist. LEXIS 49304 (D.D.C. July 10, 2007)

Re: First-party request

• Procedural: Plaintiff is not entitled to receive files related to her prior employment with the Secret Service, because her request referred specifically (and only) to "investigative files." DHS also properly construed plaintiff's list of questions pertaining to an "investigative file" as a request for the file itself. The agency properly read the request as it was written, not as a requester "might wish it was drafted."

• Fees: DHS is not required to produce additional documents, even though its initial fee estimate turned out to be high.

• Timeliness: The lateness of defendant's initial production of records is now moot, because the records have been released to plaintiff.

• Attorney Fees: DHS voluntarily produced plaintiff's records without requiring a court order or decree. Thus, plaintiff has not "substantially prevailed" and is therefore not entitled to attorney fees.

• Lit Con: Because plaintiff did not contest DHS's assertions that its search was reasonable and its application of FOIA exemptions appropriate, these arguments are taken as conceded (though defendant would likely have prevailed, anyway, even had plaintiff contested them).

2. Stanley v. Dep't of the Treasury, No. 06-072, 2007-2 U.S. Tax Cas (CCH), 50,622 (N.D. Ind. 2007)

Re: Records related to investigation of complaint made by plaintiff against IRS employee

• Exemption 7 (threshold): Records were compiled by an Inspector General "charged with oversight of the administration of tax laws, in response to a complaint of fraud" and so satisfy the threshold.

• Exemption 7(C): An IRS employee has a privacy interest in information contained in government files about him, even information that concerns an investigation into his professional conduct. Plaintiff has not established any corresponding public interest in the information, only a personal interest in it. The fact that the employee in question here is a low-level employee, and that the allegation is of a single instance of misconduct, both weigh against disclosure, as it makes it less likely that disclosure would provide much information to the public as to the IRS's performance of its duties. Plaintiff's claim that Exemption 7(C) is inapplicable because the IRS employee allegedly used "'unauthorized or illegal investigative tactics'" is frivolous, as these allegations do not change the fact that the records in question were compiled not by the employee, but by the agency's Inspector General's office, and so were compiled for a valid law enforcement purpose.

WEEK OF JULY 16

Courts of Appeal

1. Jennings v. DOJ, 230 Fed. Appx. 1 (D.C. Cir. 2007)

Re: First-party request

• Adequacy of search: The district court's ruling that the agency's affidavits suffice to meet its burden of showing that it conducted a reasonable search is affirmed. The agency's failure to turn up records plaintiff claims exist does not establish that the agency's search was inadequate.

2. MacLean v. DOD, No. 05-55883, 2007 WL 2031432 (9th Cir. July 11, 2007)

Re: Request for records on investigation of Navy officer

• Standard of review: As per circuit precedent, the court undertakes a two-step review process, first determining whether the district court had an "adequate factual basis" for its decision, and then reviewing de novo the district court's rulings on an agency's application of FOIA exemptions. In this case, the district court's factual findings are well supported by the record.

• Lit Con: Plaintiff claims that defendants improperly responded to his complaint by filing a motion for summary judgment instead of an answer. However, because this claim was not raised at the district court level, the court will not reach this issue.

Vaughn Index: Defendants' Vaughn Index was sufficiently detailed for the district court to make an informed decision. The district court was well within its discretion when it refused to order additional in camera review of documents beyond that which it had already undertaken.

• Exemption 5: Even though plaintiff does not challenge defendants' assertion that the documents withheld pursuant to this exemption were predecisional and deliberative, he nonetheless argues for an "exception," alleging that the process at issue was "an exercise of governmental misconduct." However, because plaintiff did not properly allege such misconduct, and "available evidence does not indicate that any malfeasance occurred," the court will not create such an exception to the privilege.

• Exemptions 6 & 7(C): The public interest in release of the information requested by plaintiff is "insubstantial" and, conversely, the invasion of privacy to the Navy officer in question would be substantial. Thus, withholding of the records in question was appropriate under both exemptions.

District Courts

1. Pinkney v. DOJ, No. 06-0246, 2007 WL 2059129 (D.D.C. July 18, 2007)

Re: First-party request

• Res judicata: Because EOUSA located additional documents and made additional releases to plaintiff, and in light of the fact that Exemption 7(A) no longer applies, plaintiff's claim is not barred by res judicata.

• Collateral estoppel: To the extent that plaintiff seeks to relitigate issues that were or could have been resolved by his earlier suit against DOJ, he is barred from doing so by collateral estoppel.

• Adequacy of search: EOUSA's subsequent release of additional information that was not located upon its initial search does not, in the absence of a showing of bad faith on the agency's part, call into question the agency's credibility.

• Exemption 5: EOUSA's declaration is sufficient to establish that it properly withheld information under the attorney work-product privilege.

• Exemptions 7(C) & 7(F): Plaintiff has not challenged, and therefore concedes, EOUSA's explanation that video and audio tapes previously withheld pursuant to Exemption 7(A) are properly withheld pursuant to these two exemptions.

• Segregability: EOUSA's declaration establishes that no "meaningful" additional information could be released.

2. Jarvik v. CIA, 495 F. Supp. 2d 67 (D.D.C. 2007)

Re: Request for a fee waiver for CIA records concerning events in Andijan, Uzbekistan

• Fee Waiver: In reviewing an agency's action on a fee waiver request, the court limits its review to the administrative record that was available to the agency at the time of its determination. In this case, a letter sent by plaintiff to the CIA after the CIA's denial of his waiver request is clearly outside of the administrative record to be considered by the court. Plaintiff has failed to show that his request will likely contribute significantly to public understanding of U.S. government operations. In his correspondence with the CIA, he did not establish a connection between the requested materials and U.S. government operations. His claims that such a connection should be "self-evident" are unavailing, especially since such a claim would transfer the burden of establishing a right to a fee waiver from the plaintiff to the agency. Plaintiff's claim that the records in question, which relate to events in Uzbekistan, concern U.S. government operations by virtue of the fact that they were produced by a government agency, is similarly unavailing, as such a ruling would mean that any government records could be obtained for free. Instead, plaintiff should have explained to the court how he planned to glean significant information concerning the activities of the U.S. government from the records in question. Because he failed to do this, the court can only evaluate the records for their intrinsic informational content, which is "limited." A plaintiff seeking a fee waiver must make some effort to identify the type of government activity he is investigating; to hold otherwise would force agencies to subsidize "fishing expedition[s]." Finally, because plaintiff has failed to meet this part of the fee waiver standard, the court need not reach the issue of whether the request is primarily in plaintiff's commercial interest.

3. Thomas v. FAA, No. 05-2391, 2007 WL 2020096 (D.D.C. July 12, 2007)

Re: First-party request

• Exhaustion: Because FBI affidavits establish that the FBI has no record of ever having received a request from plaintiff, he has not exhausted his administrative remedies. Therefore, plaintiff does not have a viable claim for the court to consider.

4. Cummings v. Bush, No. 07-748, 2007 WL 2002455 (M.D. Fla. July 5, 2007) (adoption of magistrate's recommendation)

Re: "Fantastic or delusional" allegations

• Exhaustion: To the extent that plaintiff's complaint, which is "largely a jumble of nonsensical allegations," references the FOIA, he is using his complaint as a means of making requests for documents. Because there is no prior record of an actual FOIA request to an agency, plaintiff has no proper claim before the court.

WEEK OF JULY 23

District Courts

1. Few v. Liberty Mut. Ins. Co., 498 F. Supp. 2d 441 (D.N.H. 2007) (adoption of magistrate's recommendation)

• Procedural: Private corporations and individuals are not "federal agencies" under the FOIA and are therefore not subject to its requirements.

2. Summers v. DOJ, No. 98-1837, 2007 WL 2111049 (D.D.C. July 23, 2007)

Re: Request for attorney fees

• Standard of review: A motion for reconsideration of a magistrate judge's decision is reviewed for clear error.

• Attorney fees: Plaintiff cannot show that he "substantially prevailed," because he did not obtain a "judicially sanctioned change in the legal relationship of the parties." The only orders made by the court to the FBI were procedural in nature, ordering the FBI to file status reports with the court. These orders did not require the FBI to produce documents by a specific date. The private settlement between the parties, which was reached voluntarily and was not ordered by the court, does not make plaintiff eligible for attorney fees.

3. Ginarte v. Rice, No. 06-2074, 2007 WL 2111039 (D.D.C. July 23, 2007)

Re: First-party request

• Proper party defendant: The agency, rather than the head of an agency, is the proper party defendant in a FOIA suit.

• Adequacy of search: While plaintiff asserts that the State Department maintains more records on him than it located, the scope of the Department of State's search was reasonable in light of the minimal information plaintiff provided about himself to guide its search.

• Personal knowledge requirement: There is no requirement in a FOIA suit that an agency's affiant be the person or persons who actually carried out the search. Indeed, an affidavit from an employee charged with supervising the search "may be more appropriate."

• Discovery request: Discovery "is rare" in FOIA cases, and should be denied in situations such as this one, where the agency's declarations are sufficient to resolve all questions of material fact. Plaintiff's claim that summary judgment is premature before discovery is unfounded.

4. James v. U.S. Secret Serv., No. 06-1951, 2007 WL 2111034 (D.D.C. July 23, 2007)

Re: First and third-party requests

• Exhaustion: Because plaintiff failed to file an administrative appeal of the FBI's responses to his requests, he has not exhausted his administrative remedies.

• Adequacy of search: The Secret Service's declaration establishes that it conducted a reasonable search, employing methods likely to produce responsive records.

• Exemption 7(A): Plaintiff's appeal of his criminal conviction qualifies as an ongoing law enforcement proceeding. The Secret Service withheld documents which detail its investigation. That investigation would be harmed (including risk to witnesses and to the government's ability to gather information) if these documents are released while plaintiff's case remains open.

• Exemption 7(C): The Secret Service appropriately used this exemption to withhold names, signatures, and telephone numbers of Secret Service law enforcement personnel, as well as names and other identifying information of third parties who provided information to the agency as part of a criminal investigation, and names and identifying information of third parties who were charged with or suspected of criminal activity. Withholding of these types of information has been routinely upheld due to the risk of harassment to the various people involved if their identities become known. Plaintiff's interest in pursuing his own "private agenda" is "not a proper basis for disclosure."

• Exemption 7(D): The Secret Service did not indicate whether its claimed source provided information under an express or implied assurance of confidentiality, which is a requirement for use of this exemption. However, the material withheld pursuant to this exemption was properly withheld under Exemption 7(C).

5. Lowe v. DEA, No. 06-1133, 2007 WL 2104309 (D.D.C. July 22, 2007)

Re: Third-party request for records concerning informant from plaintiff's criminal trial

• Exhaustion: The DEA's Chicago office is not the office specified in DOJ regulations as the proper recipient for FOIA requests to the DEA. Because plaintiff's request was not submitted properly, he cannot claim to have exhausted his administrative remedies. The fact that the DEA did not notify plaintiff of the re-routing of his request from the Chicago office does not trigger constructive exhaustion. Plaintiff's "speculative" claim that the DEA's Glomar response made it "unreasonable" to expect that an administrative appeal on his part would have succeeded did not relieve him of the obligation to file such an appeal. Finally, discovery is not necessary to the resolution of this case, so there is no need to defer judgment.

WEEK OF JULY 30

Courts of Appeal

1. Sussman v. USMS, 494 F.3d 1106 (D.C. Cir. 2007)

Re: First-party request

• Standard of review: District court decisions granting summary judgment in FOIA cases are reviewed de novo.

• Referrals: Referrals of documents to another agency as a means of processing such documents are proper, under McGehee.

• Waiver in litigation: In its initial motion for summary judgment, the USMS moved for summary judgment on all documents except for those referred to the USPS. Thus, the district court's grant of summary judgment as to these documents was improper. On remand, it will be proper for the court to consider agency arguments concerning the application of exemptions to the referred documents, despite the fact that these arguments were not raised until the reconsideration stage, and as to one exemption, were not raised simply due to a mistake.

• Exemption 2: The district court correctly allowed the USMS to apply this exemption to protect certain internet addresses. However, the district court should not have allowed the use of this exemption to withhold "information reflecting communications between agencies," as this information is not predominantly internal.

• Exemption 3: Rule 6(e) prohibits "certain people" from disclosing matters occurring before a grand jury, though only where disclosure would "reveal some secret aspect of the grand jury's investigation." Furthermore, this secrecy rule only applies to a certain class of persons, described in Rule 6(e)(2)(B). The USMS did not show that release would in fact reveal some secret aspect of the grand jury's inquiry, so the district court's ruling on this point is vacated. On remand, the district court is instructed to make further findings on this issue. It is also instructed to determine whether the information in question has "reached" a USMS employee without violating Rule 6(e) and, if so, whether that employee could disclose the information to plaintiff without herself violating Rule 6(e).

• Exemption 5: The district court properly approved the USMS's use of the deliberative process privilege, including its application to "purely factual materials."

• Exemption 7(A): The USMS declarant's statement that release of information would reveal the focus of a grand jury investigation was insufficient. Instead, the USMS needed to explain how release would have this effect. Agency affidavits are required to provide "specific information about the impact of the disclosures." On remand, the district court must determine whether disclosure could be expected to interfere with enforcement proceedings, and such proceedings must be pending as of the time of the district court's decision, "not merely at the time" of the original request.

• Exemption 7(C): The USMS properly applied this exemption to protect the privacy interests of a variety of third parties, notwithstanding plaintiff's "bare and undeveloped" allegations of governmental misconduct. However, plaintiff produced a privacy waiver with regard to information concerning Keith Maydak. The fact that this waiver was submitted after the USMS had completed its search for records concerning plaintiff is not a bar to disclosure. On remand, the district court must determine whether Maydak's waiver was valid and was given knowingly and voluntarily. It must also determine the effect of Maydak's statement that he authorized disclosure specifically to plaintiff, given that disclosure to plaintiff would entail disclosure "to the world at large" and not just to plaintiff.

• Exemption 7(E): The USMS's use of this exemption to protect confidential details concerning a program whose "general contours" are publicly known was appropriate.

• Segregability: In its initial ruling, the district court made the necessary findings concerning the USMS's segregability obligations. However, to the extent that the district court orders any new disclosures upon remand, new segregability findings will have to be made.

District Courts

1. Gaylor v. DOJ, No. 06-1467, 496 F. Supp. 2d 110 (D.D.C. 2007)

Re: First-party request concerning plaintiff's extradition from Switzerland to the United States

• Adequacy of search: The affidavit submitted by the Criminal Division establishes that it searched in the only office that would maintain extradition records. In the absence of "any facts that would raise a 'substantial doubt'" about the search, the DOJ is entitled to summary judgment. The failure to locate a particular document does not demonstrate that the search was unreasonable.

Lit Con: Because plaintiff did not challenge the DOJ's invocation of FOIA exemptions, he has conceded the appropriateness of the agency's actions on this issue.

2. Board of County Comm'rs v. Dep't of the Interior, No. 06-209, 2007 WL 2156613 (D. Utah July 26, 2007)

Re: Records relating to grazing permits

• Fee Waiver: The DOI appropriately denied plaintiff's request for a fee waiver for e-mails exchanged between the Bureau of Land Management (BLM) and the Grand Canyon Trust. The e-mails that would merit a fee waiver have previously been released, thus searching for and releasing them again would not contribute significantly to the public's understanding of government activities. Plaintiff's claim that a further search would reveal additional meaningful information is purely speculative.

• Burdensome search: Plaintiff's request, which would require the BLM to search 600 computer back-up tapes, is unduly burdensome given the vast amount of resources this search would require, involving "exorbitant" expenditure by the BLM, and only bare suspicion that such a search will produce meaningful results.

• Exemption 5: The BLM appropriately withheld a draft document pursuant to the deliberative process privilege. The BLM also appropriately withheld a document that reflected "its ongoing process" of deliberations concerning grazing policies, notwithstanding the fact that it was created after certain proposed amendments to grazing policies had been released to the public. The BLM improperly withheld documents generated by an outside consultant. Even though the consultant was not seeking a government benefit, his "deep-seated views" on the topic he was consulted on make him not "sufficiently disinterested" to be a consultant for purposes of Exemption 5. The BLM appropriately withheld a briefing paper prepared by its national director for the Secretary of the Interior that discussed possible courses of action on grazing policy. Release of such a document would inhibit candor in the policymaking process.

3. Loving v. DOD, 496 F. Supp. 2d 101 (D.D.C. 2007)

Re: Request for records concerning presidential review of plaintiff's military death sentence

• Exemption 5: The DOD correctly applied the Presidential Communications Privilege (PCP) to three of the withheld documents. All three of these documents contained recommendations as to whether the President should approve plaintiff's death sentence. The Manual for Courts-Martial make clear that the President has solicited such advice as part of his role in deciding whether to approve militarily imposed death sentences. Plaintiff's assertion that the President has not personally invoked the privilege is unavailing, since personal invocation is not required. Finally, plaintiff's argument that his demonstration of need for the documents should overcome the privilege fails as well, because the need of a particular requester are irrelevant in the FOIA context. The DOD's application of the PCP to a memorandum from the DOD to the White House counsel cannot stand, since it is unclear if the document was solicited by the White House. However, the document was appropriately withheld under the deliberative process privilege, since it contained recommendations concerning an effort by the DOD to standardize procedures for its capital cases. Finally, plaintiff's argument that the withheld documents should be treated like presentence reports (PSRs), and therefore released, fails. Whereas there are federal statutes that specifically mandate the release of PSRs to criminal defendants, no such requirement exists with regard to recommendations to the President concerning military death sentences.

• Segregability: The PCP covers the entirety of a document: factual as well as deliberative materials, and both pre and post-decisional documents. With regard to the document withheld under the deliberative process privilege, the DOD has met its segregability burden. (posted 10/11/2007)

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