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

September 27, 2007

FOIA Post

Summaries of New Decisions -- June 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 June 2007.

WEEK OF JUNE 4

Courts of Appeal

1. Martin v. DOJ, No. 05-5207, 2007 WL 1574605 (D.C. Cir. June 1, 2007)

Re: Request for alleged Brady material and for third-party documents

• Lit con: Plaintiff is collaterally estopped from challenging the FDIC's partial withholding of a 1991 report because the agency's actions were fully litigated in a prior case, and plaintiff's current claims are identical to those he presented previously. The previous case has preclusive effect despite the absence of appellate review.

• Exemption 5: The FDIC properly withheld a document created at the direction of an FDIC attorney in anticipation of litigation. The document contained "extensive legal analyses" as well as "facts integral to the legal analyses." FDIC did not waive the privilege by sharing the document with the Justice Department. Plaintiff's claim that the document should nevertheless be released because it contains Brady material fails because plaintiff has failed to show that the withheld documents contain such exculpatory information.

• Exemption 7(C): The information withheld by defendants pursuant to this exemption was not Brady material, thus the withholdings need only be judged on the basis of the normal privacy interest vs. public interest standard for this exemption. Applying this test, defendants appropriately withheld third-party information in a law enforcement file concerning a private citizen. This individual has an extremely strong privacy interest and there is no corresponding public interest that overcomes it. Plaintiff's bare, unsupported allegations of governmental misconduct are not enough to establish a significant public interest in disclosure.

District Courts

1. Stewart v. Kempthorne, No. 06-209, 2007 U.S. Dist. LEXIS 40525 (D. Utah June 4, 2007)

Re: Records relating to grazing permits

• Exemption 5: A document submitted by a contractor to an agency and withheld in part pursuant to the deliberative process privilege did not meet Exemption 5's threshold requirement because the contractor was not "sufficiently independent." Other portions of the same document submitted by this same contractor and withheld under the attorney-client privilege do meet the Exemption 5 threshold standard because those portions were excerpts from a legal opinion issued by the Solicitor of the Department of the Interior. In receiving the solicitor's legal opinion, the contractor was functioning as an agency employee, and so disclosure to him was not waiver. Accordingly, after redacting the excerpts from the legal opinion issued by the Department of Interior's Solicitor the remaining segregable portions of the document must be released.

2. Shearson v. DHS, et al., No. 06-1478, 2007 WL 1598631 (N.D. Ohio June 1, 2007)

Re: First-party request

• In camera review: Defendants' motion for leave to file "large portions" of their memorandum in support of summary judgment as well as supporting declarations in camera and ex parte is denied. Much of the information the defendants wish to protect in this manner relates to information the court previously ruled must be released. In addition, much of the information has previously been disclosed by defendants to plaintiff. Given this voluntary prior disclosure, according to the Court, further withholding is not required to facilitate any law enforcement purpose.

3. Makky v. Chertoff, 06-4329, 2007 WL 1560334 (D.N.J. May 31, 2007)

Re: First-party request

• In camera review: Declarations submitted by the FBI and CIA contain sufficiently detailed justifications of the agencies' bases for withholdings so as to make in camera review of the withheld documents unnecessary. These justifications are not contradicted by the record and there is no evidence of bad faith by the agencies.

• Exemption 1: The FBI's declaration provides adequate justification for the agency's withholding of documents containing intelligence information utilized by the FBI to "gather, store or disseminate intelligence information."

• Exemption 3: The CIA properly applied 50 U.S.C. § 403g in refusing to confirm or deny the existence of records responsive to plaintiff's request where such acknowledgment could reveal intelligence methods and activities, or names and locations of internal CIA components.

WEEK OF JUNE 11

Courts of Appeal

1. Abrams v. Dep't of Treasury, No. 06-10811, 2007 U.S. App. LEXIS 13695 (5th Cir. June 11, 2007)

Re: Order of Investigation concerning bank's former Chairman and CEO

• Standard of review: The court will review the lower court's grant of summary judgment de novo.

• Exemption 8: Defendant appropriately withheld a confidential Order of Investigation concerning plaintiff (which plaintiff had a chance to view) that was related to an examination report it prepared on plaintiff. There is no support in the text of the FOIA for plaintiff's claim that defendant be required to show a "direct connection" between the contents of the report and the contents of the order. Rather, the order need only be "related" to the report in order to be protected under Exemption 8. Similarly, there is no basis for plaintiff's claim that the exemption's reference to "matters" does not include documents. There is no requirement under Exemption 8 that the agency release non-confidential portions of the order, inasmuch as under Exemption 8 the entire Order is rendered confidential. Finally, the district court did not abuse its discretion by not requiring in camera inspection of the report in conjunction with its review of the order.

District Courts

1. California ex rel. Brown v. NHTSA, No. 06-2654, 2007 U.S. Dist. LEXIS 42485 (N.D. Cal. June 12, 2007)

Re: Records related to discussions concerning state regulations of motor vehicle carbon dioxide emissions

• Exemption 5: Defendant appropriately withheld three documents under the deliberative process privilege. Two of the documents discuss changes to proposed regulations prior to the issuance of the regulations. The third document contains discussions of possible reactions to proposed regulations. For all three documents, release would interfere with defendant's decisionmaking processes, thereby discouraging frank discussion.

2. Voinche v. Executive Office of the President, No. 06-1272, 2007 U.S. Dist. LEXIS 42268 (D.D.C. June 12, 2007)

Re: First-party request

• Jurisdiction: Plaintiff directed his FOIA request to the "White House Freedom of Information Officer," but no such position exists. Furthermore, the Executive Office of the President (EOP) is not an agency subject to the FOIA (though certain entities within the EOP may be subject to the FOIA). Therefore, the court lacks subject matter jurisdiction.

3. Ginarte v. Mueller, No. 06-1222, 2007 U.S. Dist. LEXIS 42262 (D.D.C. June 12, 2007)

Re: First-party request

• Adequacy of search: The FBI's affidavit was sufficient to show that it had searched in a manner likely to locate responsive records, thereby making it an adequate search. Plaintiff has offered no evidence to challenge this. Though the FBI did not search for responsive records in its field offices, there was nothing to suggest that responsive records would be located there.

4. People for the Ethical Treatment of Animals v. USDA, No. 06-930, 2007 U.S. Dist. LEXIS 41825 (D.D.C. June 11, 2007)

Re: Records concerning alleged misconduct by agency inspectors during slaughterhouse inspection; recording of a witness' phone call regarding the tiger attack on performer Roy Horn; and records naming locations where alleged violations of animal welfare statutes took place.

• Burden of proof: Because the agency did not claim an exemption or other reason for withholding the locations where certain alleged animal abuse took place, this information must be released.

• In camera review: In camera review of an audio CD that contains a phone call from a witness to the tiger attack on Roy Horn is required in order for the court to determine whether the contents relate in any way to agency activities.

• Exemption 7(C): The agency correctly withheld the names of low-level food inspectors who allegedly witnessed abuse of animals but did not stop the abuse from taking place. Because this alleged wrongdoing on the part of agency employees was not a "well-publicized scandal" and because the involved employees were not high-level personnel, the privacy interests of the employees outweighs any public interest in knowing their names.

WEEK OF JUNE 18

District Courts

1. Sakamoto v. OPM, No. 06-1215, 2007 WL 1722424 (E.D. Cal. June 13, 2007) (magistrate's recommendation)

Re: Requests for OPM evaluations of EPA

• Lit con: While defendant failed to reply to plaintiff within the statutorily authorized time limit, its eventual response to plaintiff's request moots plaintiff's "failure" claim. There is no evidence of bad faith on defendant's part, nor is there evidence of a recurring pattern of violations by defendant.

• Exemption 5: OPM appropriately withheld audit reports it prepared for the EPA. These reports recommend personnel actions to be taken by EPA, making them predecisional and deliberative. The factual portions of these audits were also withholdable, because they were not segregable and their release would reveal the "mental processes" of the auditors who prepared the reports.

WEEK OF JUNE 25

Courts of Appeal

1. Taylor v. Blakey, No. 05-5279, 2007 WL 1791094 (D.C. Cir. June 22, 2007)

Re: Request for aircraft plans and specifications

• Standard of review: Review of the district court's application of res judicata is de novo.

• Res judicata: In this case, the district court correctly determined that the current plaintiff had "identical interests" in requesting documents as a previous plaintiff; that those interests were "adequately represented in the prior case and that the two plaintiffs were "close associates." Thus the district court's ruling that the current plaintiff's claim is barred by the doctrine of res judicata stands.

2. Ivey v. Paulson, No. 06-5292, 2007 U.S. App. LEXIS 14873 (D.C. Cir. June 20, 2007)

Re: First-party and other requests

• Exhaustion of administrative remedies: The district court appropriately dismissed plaintiff's action for failure to exhaust administrative remedies. Some of plaintiff's requests were never submitted to the agency. Others were, and while the agency initially failed to respond within the statutorily mandated time limits, the agency did respond before plaintiff filed the instant action. This action by the agency reimposed upon plaintiff his obligation to pursue administrative relief before filing suit.

3. The News-Press v. DHS, Nos. 05-16771 & 06-13306, 2007 WL 1793049 (11th Cir. June 22, 2007)

• Re: Requests for names and addresses of individuals who applied for disaster assistance or made insurance claims in the aftermath of hurricanes which hit Florida in 2004

• Standard of review: Because there is no factual dispute, the lower courts' rulings will be reviewed de novo.

• Exemption 6: Plaintiffs demonstrated that a substantial public interest exists in knowing the addresses of relief applicants, because this information can be compared with maps that show the path of the storms, thereby showing whether applications came from addresses that were not affected by the storms. More generalized data, such as listing aid applications by zip code, would not adequately serve this purpose. Given that FEMA is responsible for distributing millions of dollars of taxpayer money in the form of relief payments and in light of numerous allegations of fraud and waste, the public interest in this case is "substantial." The privacy interests implicated by release of this information are not significant. There is no stigma in having been an applicant for aid from FEMA, and there is no evidence documenting any greater risk of theft to those whose addresses are disclosed. Finally, while release of addresses may lead to some unwanted contact from the media, this constitutes no more than a "modest annoyance." Similarly, there is a public interest in knowing the addresses of buildings that have received federal flood insurance, and no correspondingly strong privacy interest in protecting this information. Conversely, though the release of the names of aid applicants might aid the public in determining whether fraudulent claims were submitted, the public interest in the names is much less strong, as it is not probative on the question of FEMA's performance of its job of distributing aid to locations affected by the storms. Additionally, the privacy interest here is stronger, so the agency appropriately withheld the names of aid applicants.

District Courts

1. Trupei v. U.S. Dep't of the Navy, No. 06-0978, 2007 U.S. Dist. LEXIS 46225 (D.D.C. June 27, 2007)

Re: Request for oath of office, appointment affidavit, and letter of appointment for Navy Special Agent.

• Adequacy of search: Defendant's affidavit was sufficient to demonstrate that its search was adequate, and contained a "plausible explanation as to why no responsive records were located." Plaintiff failed to raise "substantial doubt" concerning the agency's search or its good faith.

2. People for the Ethical Treatment of Animals v. USDA, No. 06-930, 2007 U.S. Dist. LEXIS 46224 (D.D.C. June 27, 2007)

Re: Request for a recording of a phone call allegedly from a witness to the tiger attack on performer Roy Horn.

• Exemption 7(C): Upon in camera inspection, the court determined that USDA appropriately withheld the recording. The caller was not an actual witness to the attack, but instead speculated on possible causes of the attack. The caller did not leave his name, suggesting a wish to remain anonymous, and release of the tape might allow him to be identified, possibly subjecting him to harassment or embarrassment. Release of the tape would not shed light on USDA's performance of its duties in its investigation into the attack.

3. Levels v. U. S. Attorney General, No. 06-2191, 2007 WL 1828028 (N.D. Tex June 26, 2007) (adoption of magistrate's recommendation)

Re: Request for grand jury ballot

• Lit con: Although it is "unclear whether plaintiff exhausted his administrative remedies under FOIA," grand jury materials are protected from release in any event under Exemption 3. Plaintiff has not demonstrated a particularized need for access to the grand jury ballot. Furthermore, plaintiff's conviction was finalized so long ago that any application for post-conviction relief would be time-barred. Plaintiff is engaged in "nothing more than a fishing expedition." As a result, his "FOIA request lacks an arguable basis in law" and his suit is dismissed as "frivolous."

4. Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2007 WL 1817104 (D. Me. June 22, 2007)

Re: Documents related to agreement to build liquified natural gas (LNG) facility on tribal land

• Adequacy of search: Despite a "troubling history of dribbling disclosure" from the Bureau of Indian Affairs (BIA), plaintiff has failed to show that defendant's search was inadequate. Defendant's initial reading of plaintiff's second request as superseding its first request was reasonable (if inaccurate), and plaintiff has not shown that defendant's actions were not taken in good faith. Furthermore, defendant's choice of where to search was reasonable, if later shown to be imperfect.

• Timeliness/Pattern and Practice: While it is troubling that BIA took as long as it did to respond to plaintiff's requests, the facts here are not sufficiently egregious to support a claim that BIA is engaging in a "pattern or practice" of delayed disclosure. The delays, including a delay in release of a document BIA was entitled to withhold, do not suggest that BIA's intent was to be "dilatory."

• Exemption 5: E-mails that contain internal conversations concerning the LNG approval process are exactly the sort of documents intended to be protected by the deliberative process privilege, as they reflect internal, predecisional deliberations, and their release would chill candid discussions. BIA did not waive the privilege as to one of the e-mails by including a member of the Roosevelt Campobello International Park Commission (RCIPC) in the discussion. While it is not clear whether the RCIPC qualifies as an agency, it is clear in this context that it was included in the discussion in order to obtain its advice or insight on a relevant issue, thereby making it sensible to treat it as though it is an agency for these purposes. BIA also appropriately withheld handwritten notes, including marginal notes, taken by agency employees. These notes tend to be selective and deliberative, and their release would thwart the decisionmaking process. The agency also correctly withheld a draft document discussing how to comply with the National Environmental Policy Act. The final version of this document was released. Finally, BIA's use of the attorney-client privilege to withhold documents reflecting communications between BIA and its Solicitor's Office was appropriate.

• Exemption 6: BIA appropriately withheld personal (non-governmental) e-mail addresses. Release of this information would be a clearly unwarranted invasion of personal privacy. This withholding was not challenged by plaintiff.

5. Maringo v. DHS, No. 07-1878, 2007 U.S. Dist. LEXIS 45087 (S.D. Tex. June 21, 2007)

Re: First-party request

• Lit con: Plaintiff's action is subject to dismissal as frivolous. Its factual allegations are "fanciful" and "delusional." The action is also malicious, as it is duplicative of previous actions filed by plaintiff. Alternatively, plaintiff's action is dismissed for failure to state a claim. Plaintiff has requested a writ of mandamus requiring release of documents. However, he has made no showing that he is entitled to such an extraordinary form of relief. He has not shown that the agency has improperly withheld agency records, only that there has been a delay in responding to his request. The agency is making good faith efforts to comply with plaintiff's request. Furthermore, plaintiff has not demonstrated the absence of an alternative remedy to mandamus.

6. Hoffenberg v. United States, No. 05-1352 (W.D. Tenn. June 18, 2007)

Re: Application for attorney's fees and litigation costs

• Attorney's fees/litigation costs: Plaintiff, who proceeded pro se, is not entitled to an award of attorney's fees or litigation costs. Because the agency voluntarily released documents to plaintiff, plaintiff cannot be said to have obtained a "judicially sanctioned change in the legal relationship of the parties," the standard adopted by the Supreme Court in Buckhannon and followed by this court. Neither can plaintiff qualify for an award of costs under FRCP 54(d)(1), which is inapplicable because the FOIA contains its own "specific provision" for awarding litigation costs. (posted 9/27/2007)

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