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

September 21, 2007

FOIA Post

Summaries of New Decisions -- May 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 May 2007.

WEEK OF MAY 7

Courts of Appeal

1. Lion Raisins Inc. v. USDA, 231 F. App'x 565 (9th Cir. 2007)

Re: District court ruling upholding agency's decision to withhold investigative reports concerning plaintiff under Exemption 7(A)

• Standard of review: The agency's declarations provided a sufficient factual basis for the district court's conclusion that the agency's use of Exemption 7(A) was appropriate. There is no evidence in the record of bad faith by the agency, thus plaintiff's attempt to challenge the agency's factual findings fails. The district court's ruling on the agency's use of Exemption 7(A) was not clearly erroneous.

2. Lion Raisins Inc. v. USDA, 231 F. App'x 563 (9th Cir. 2007)

Re: District court ruling upholding agency's decision to withhold "worksheets for certificates of quality" under Exemption 7(A)

• Standard of review: The agency's declarations, which described the ongoing proceedings and how release of the worksheets would harm the investigation, provided an adequate factual basis for the lower court's decision. The lower court's determination that the agency appropriately utilized Exemption 7(A) was not clearly erroneous.

District Courts

1. Elec. Frontier Found. v. DOJ, No. 06-1708, 2007 WL 1334973 (D.D.C. May 7, 2007)

Re: Request for records related to tools used by the FBI in electronic surveillance

• Open America: Significant staffing shortages caused by the transfer of much of the FBI's FOIA processing operations to Frederick County, Virginia constitute "exceptional circumstances" of the sort required for a court to grant an Open America stay. Furthermore, the FBI has demonstrated its due diligence in achieving a significant reduction of its backlog of requests. While rejecting the agency's request for a two-year stay, the court agreed to a one-year stay with the possibility of a further extension. During the interim, the agency will make releases to the requester approximately every four weeks and will file status reports with the court every ninety days concerning its continued progress in processing plaintiff's request.

2. Williams v. VA, No. 05-2313, 2007 WL 1341123 (M.D. Fla. May 4, 2007)

Re: Multiple first-party requests

• Exhaustion: Plaintiff's failure to administratively appeal the agency's responses to all but three of his approximately thirty requests constitutes failure to exhaust administrative remedies as to all of his requests except for the three for which he did file appeals.

• Adequacy of search: The agency's affidavits establish that the agency conducted an adequate search for all records requested by plaintiff.

• Exemption 5: Pursuant to the attorney-work product privilege, the agency appropriately withheld e-mail exchanges between agency attorneys discussing plaintiff's FTCA claim, as well as legal memoranda and exhibits prepared by agency attorneys representing the agency in connection with plaintiff's FTCA claim. Pursuant to the attorney-client privilege, the agency appropriately withheld communications between an agency hospital and agency counsel.

• Exemption 6: The agency appropriately withheld the personnel file of an agency employee who plaintiff had accused of wrongdoing. Even if plaintiff's accusations were valid, release of the employee's personnel file would not enlighten the public as to agency activities. Therefore, the public interest in release of this information was outweighed by the employee's privacy interests.

3. Hornes v. EOUSA, No. 04-2190, 2007 WL 1322088 (D.D.C. May 4, 2007)

Re: First-party request

• Personal knowledge: Agency declarant, whose declaration was based upon his personal knowledge, review of agency files and records, and information he acquired in the performance of his official duties, meets the personal knowledge requirement.

• Adequacy of search: The agency's declaration demonstrated that the agency had conducted a reasonable search, searching offices and records systems most likely to contain responsive records, notwithstanding the fact that the agency located no "criminal bond" records concerning plaintiff.

4. Yonemoto v. VA, No. 06-00378, 2007 WL 1310165 (D. Haw. May 2, 2007) (magistrate's recommendation)

Re: First-party request

• Exemption 6: The agency appropriately utilized this Exemption to withhold portions of e-mails in which the authors of the e-mails expressed their opinions of plaintiff. Even though these records do not "appear similar" to personnel or medical files, the authors' interests in non-disclosure is similar to the interests that individuals have in non-disclosure of their medical and personnel records. Furthermore, the agency's Vaughn Index demonstrates that the withheld material was of a personal, not business, nature. The authors of the e-mails have a cognizable privacy interest because release of their opinions about plaintiff could subject them to "annoyance . . . in either their official or private lives." The fact that agency employees are informed that they have no expectation of privacy in their use of agency computers does not mean that the e-mail authors have no interest in preventing release of the material in question. The public interest served by release of this material is minimal, at best.

5. Evans v. Iredell County Sheriff Dep't, No. 06-3582, 2007 WL 1302684 (D.S.C. May 2, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Procedural: The federal FOIA does not apply to state or county agencies.

WEEK OF MAY 14

District Courts

1. George v. IRS, No. 05-0955, 2007 WL 1450309 (N.D. Cal. May 14, 2007)

Re: First-party request

• Adequacy of Search: The agency's declaration, which provides a "detailed description of the searches undertaken" is sufficient to show that the agency's search was adequate. Plaintiff's unsupported allegations of bad faith by the agency are not enough to call into question the presumption of good faith accorded to agency declarations.

• Exemption 3: The agency appropriately applied this Exemption, through 26 U.S.C. § 6103(a), to withhold third party tax return information located in IRS files concerning plaintiff. The agency also made use of this Exemption, through 26 U.S.C. § 6103(e)(7), to withhold an investigator's notes prepared in advance of an interview with plaintiff. This Exemption 3 statute prevents the disclosure of taxpayer return information where such disclosure would seriously impair federal tax administration. Release of the notes would "allow Plaintiff to determine the nature, direction, scope, limits, strengths and weaknesses of the IRS's investigation." Finally, the agency appropriately applied this Exemption 3 statute to withhold case history notes on plaintiff's case, as release of these notes would assist any attempt by plaintiff to evade tax liability.

• Exemption 5: The agency also withheld the investigator's interview notes and the case history notes pursuant to the deliberative process privilege. Both sets of notes reflect the agency's deliberations antecedent to final decisions on how to proceed in their investigation of plaintiff. The agency further utilized the deliberative process privilege to withhold internal correspondence exchanged between agency employees discussing matters that came up during the agency's investigation of plaintiff. These materials contain information gathered by an agency investigator as well as his analysis of the material, and also contain recommendations concerning how to proceed in the investigation of plaintiff.

• Exemption 6/7(C): The agency legitimately used these two Exemptions to withhold the names and identifying information of IRS employees. IRS employees have a very strong privacy interest in not being the target of harassment as they attempt to carry out their duties. Plaintiff did not show any meaningful public interest that would be served by release of this information. The agency also appropriately used Exemption 7(C) to withhold information on private individuals it gathered in the course of its investigation of plaintiff. There is no public interest in the release of personal data on these individuals, and these individuals have substantial privacy interests at stake.

• Exemption 7(A): The internal correspondence is also withholdable pursuant to Exemption 7(A), as its release would assist plaintiff in concealing his sources of income and "generally interfere with the IRS's ability to determine plaintiff's compliance with the tax laws." Thus, release of this information could reasonably be expected to interfere with enforcement proceedings.

• Exemption 7(E): The investigator's notes were also exempt under Exemption 7(E). The agency declarations show a "sufficient nexus" between the agency's investigation of plaintiff and its enforcement duties to make the use of this Exemption allowable. The agency has "broad authority" to withhold records under Exemption 7(E). The agency also appropriately utilized Exemption 7(E) to withhold discriminant function system (DIF) scores. These scores form the primary basis for agency decisions of which tax returns to select for further review. Release of DIF methodology would reveal a special investigative technique, thereby facilitating circumvention of internal revenue laws.

2. Nelson v. City of Plano, No. 06-102, 2007 WL 1438694 (E.D. Tex. May 14, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Procedural: The federal FOIA does not apply to a municipal government.

3. Pena v. Customs and Border Patrol, No. 06-2482, 2007 WL 1434871 (E.D.N.Y. May 14, 2007)

Re: First-party request

• Adequacy of search: The agency's declaration was sufficient to establish that the agency did not have any records responsive to plaintiff's request. Not only did the agency appropriately refer plaintiff's request to the State Department, it also searched its own files for responsive records but found none.

4. Pena v. BOP, No. 06-2480, 2007 WL 1434869 (E.D.N.Y. May 14, 2007)

Re: First-party request

• Adequacy of search: The agency's declaration indicates that it undertook a reasonable search for plaintiff's file, including requesting it from the National Archives. This file was sent to the BOP by NARA, and was then misplaced by the BOP, which was not able to locate it, in spite of an "exhaustive and comprehensive search." However, the agency's search will only be deemed "adequate" once it has requested from NARA any additional copies it may have of plaintiff's file. The agency's motion for summary judgment will be held in abeyance until this process is completed. If NARA has no further copies of plaintiff's file, the BOP is directed to file an affidavit with the Court so indicating.

5. Hersh & Hersh v. HHS, No. 06-4234, 2007 WL 1411557 (N.D. Cal. May 11, 2007)

Re: Request for records concerning allegedly defective defibrillators

• Exhaustion: Intervenor defendant moved to dismiss plaintiff's suit because plaintiff did not file an administrative appeal of the agency's initial response to its request before filing suit. However, plaintiff has now filed an administrative appeal of the agency's final response. The agency has not yet filed a response to this administrative appeal. Thus, even if a jurisdictional flaw existed at the time plaintiff first filed suit, this flaw has now been cured, and nothing would be gained by making plaintiff re-file its claim. Thus, intervenor-defendant's motion to dismiss is denied.

6. Emory v. HUD, No. 05-00671, 2007 WL 1424893 (D. Haw. May 10, 2007)

Re: First-party request

• Proper party defendant: Only federal agencies, and not individual agency employees, are proper party defendants in a FOIA action.

• In camera review: The agency is directed to provide to the court for in camera review the only document which it is withholding from plaintiff.

7. California ex rel. Brown v. NHTSA, No. 06-2654, 2007 WL 1342514 (N.D. Cal. May 8, 2007)

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

• Procedural: The agency's redaction of nonresponsive information from otherwise responsive documents was proper. Agencies are not obligated to disclose information that is not responsive to a request.

• Exemption 5: The agency's affidavits did not satisfactorily explain why release of factual information contained in the responsive documents would reveal the agency's deliberative process. Thus, the agency has not met its burden for withholding these documents under the deliberative process privilege. The documents must be submitted to the court for in camera review.

8. Ray v. FBI, No. 05-0876, 2007 WL 1404445 (D.D.C. May 10, 2007)

Re: First-party request

• Summary judgment: When a plaintiff fails to meaningfully respond to defendant's motion for summary judgment, the motion will be taken as conceded. In this case, plaintiff's response was to restate his objection to publication of the court's earlier opinion, while at the same time seeking disclosure of the records addressed by that opinion. These "demands are inconsistent" and cannot be achieved through a FOIA action.

WEEK OF MAY 21

District Courts

1. Berger v. IRS, 487 F. Supp. 2d 482 (D.N.J. 2007)

Re: Records related to tax investigation of plaintiff

• Adequacy of search: The IRS's declarations indicate that its search was reasonable. Plaintiffs have offered no evidence to the contrary.

• In camera review: The agency's declarations and Vaughn Index are sufficiently detailed so as to make in camera review of the withheld documents unnecessary.

• Exemption 3: 26 U.S.C. § 6103, which prohibits the disclosure of third-party tax return information, has long been held to be an Exemption 3 statute. The IRS appropriately utilized this statute to redact third-party tax information contained in the responsive files. Plaintiffs' claim that the IRS should have simply redacted information identifying the particular taxpayers and released the return information itself is contrary to the Supreme Court's ruling in Church of Scientology v. IRS. The IRS also properly treated 31 U.S.C. § 5319 as an Exemption 3 statute and applied it to withhold information taken from Bank Secrecy Act reports.

• Exemption 5: The IRS correctly withheld a letter that outlined the basis for pursuing prosecution of one of the plaintiffs, and also contained recommendations on whether to proceed with prosecution. The factual information in the letter was "selectively present[ed]," thereby connecting it to the agency's deliberative process. Plaintiffs' argument that the letter merely memorializes the final decision not to prosecute is unconvincing in light of the fact that the final decision on whether to prosecute does not lie with the office where the letter was composed. In camera review of this letter is not required. The letter is also protected by the attorney-work product privilege, as it was written by the U.S. Attorney for the District of New Jersey in contemplation of possible litigation against one of the plaintiffs. Furthermore, an agency is not required to segregate out factual material from documents protected under this privilege, as the privilege "simply does not distinguish between factual and deliberative material."

• Exemption 6: The IRS properly withheld time records prepared by an agency employee who was responsible for the civil investigation of plaintiffs. This employee has a privacy interest in her time sheets, as they would include information concerning hours spent investigating people other than plaintiffs, as well as information concerning any leave time taken by the employee. Disclosure of this information would not constitute a significant contribution to the public's understanding of agency operations. Any minimal public interest in these time sheets is outweighed by the employee's privacy interest in them. Given the extensive personal information concerning the agency employee on these time sheets, it would not be possible to segregate the sheets without invading the employee's privacy. Thus, it was acceptable for the IRS to withhold them in full.

Exemption 7: Documents that were "routinely generated" by the agency qualify as law enforcement records because they were created in connection with the IRS's investigation of plaintiffs.

Exemption 7(C): The IRS correctly withheld third-party information contained in plaintiffs' files. This information concerned third-parties who were not targets of the investigation but were "merely mentioned" in plaintiffs' files. The agency only redacted information necessary to prevent disclosure of personal information concerning third parties. Plaintiffs' argument that some of the withheld information appears to only concern the plaintiffs is unavailing; even if the information does concern plaintiffs, if it reveals personal information about third parties the agency's decision to withhold it is correct. There is no significant public interest in disclosure of this information. This analysis is not changed by the fact that the IRS, in some cases, provided to plaintiffs lists of individuals it contacted as part of its investigations. In these cases, the agency appropriately redacted further personal identifying information concerning these individuals. In camera review of these documents is not necessary.

WEEK OF MAY 28

Courts of Appeal

1. Abdelfattah v. DHS, 488 F.3d 178 (3rd Cir. 2007)

Re: First-party request

• Standard of review: Under prevailing circuit law, the court first determines if the district court had an adequate factual basis for its decision. If it did, the court of appeals will reverse only "if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or [if] the district court has misapprehended the weight of the evidence."

• Adequacy of search: Citizenship and Immigration Services (CIS) provided sufficiently detailed affidavits describing its search to give the lower court a reasonable basis upon which to base its ruling that the search was adequate. However, the FBI did not submit an affidavit describing its search, thereby depriving the district court of a reasonable basis for its conclusion that the FBI's search was adequate. Thus, the case is vacated in part and remanded to the district court for further proceedings on this point.

• Exemption 5: The lower court had an adequate factual basis for its conclusion that the Bureau of Immigration and Customs Enforcement properly withheld pursuant to the deliberative process privilege a draft report that contained discussions between agency subordinates and superiors. Additionally, there is no evidence in the record indicating that the report was adopted or incorporated by reference by the agency.

• Exemption 7 (threshold): There is no requirement under the Exemption 7 threshold that an agency "identify a particular individual or incident as the object of an investigation into a potential violation of law or security risk." However, in this case, CIS's Vaughn Index failed to meet the test of being able to show a rational nexus between its authority to enforce a law or regulation and the withheld information. Thus, the district court's ruling on this point is vacated and remanded.

• Segregability: CIS failed to provide a basis for the district court's ruling that all reasonably segregable portions of its withheld documents were released. This again necessitated that the lower court ruling be vacated and remanded to the district court for further consideration on this point.

District Courts

1. Elliott v. USPS, No. 06-2134, 2007 U.S. Dist. LEXIS 38770 (D.D.C. May 30, 2007)

Re: Request for information concerning a street address

• Adequacy of search: USPS read plaintiff's request as a request for information regarding whether a particular street address is a valid delivery point for mail. USPS determined that it no longer was, and that it had no records concerning this address. USPS's search was reasonable, and plaintiff has not provided anything to overcome the presumption of good faith accorded USPS's submissions.

2. Duncan v. DEA, No. 06-1032, 2007 U.S. Dist LEXIS 38769 (D.D.C. May 30, 2007)

Re: First-party request

• Adequacy of Search: The defendants' declarations established that their searches for records were reasonable and were undertaken in the record systems where responsive records were most likely to be located.

• Procedural: Defendants' referrals of documents to their originating agencies did not result in the improper withholding of records.

• Exemption 2: Defendant DEA properly utilized this Exemption to withhold GDEP codes and NADDIS numbers, including numbers given to confidential informants. Release of this information would reveal the priority the agency gives to particular investigations and activities, and could allow suspects to avoid detection by the DEA. Similarly, defendant USMS correctly applied Exemption 2 to internal agency case numbers. Disclosure of this information would compromise law enforcement activities and allow circumvention of the law. There is no significant public interest in release of the information withheld by either defendant.

• Exemption 7(C): Defendants appropriately withheld personal information on third parties, the identities of federal, state, and local law enforcement officials, and names of prisoners in defendant USMS's custody. With regard to personal data on private individuals that is contained in law enforcement files, privacy interests are "at [their] apex." The withholding of the names of law enforcement personnel has been routinely upheld due to the threat of harassment against these individuals. Plaintiff has not identified a public interest that would outweigh the substantial privacy interests at stake.

• Exemption 7(D): DEA declarations establish that informants who are only identified in the responsive files by code names received express assurances of confidentiality in return for the information they provided, thereby satisfying the requirements of Exemption 7(D).

• Exemption 7(E): Defendant USMS appropriately used this Exemption to withhold records that describe "techniques and procedures" for locating fugitives. The agency's declaration clearly establishes how disclosure of these documents could create a risk of circumvention of the law.

3. Summers v. DOJ, No. 97-1715, 2007 WL 1541402 (D.D.C. May 24, 2007)

Re: Request for records on a deceased FBI agent

Adequacy of search: Plaintiff's bare allegation that additional records exist is not enough to overcome the presumption of good faith accorded to an agency's declarations concerning the reasonableness of its search.

Agency records: Defendant correctly determined that a one-page transcript of a congressional hearing held in Executive Session and given to the FBI under a "borrowing" agreement remains the property of Congress and is therefore not an agency record.

Procedural: Agencies are obligated to make a "reasonable effort" to determine whether individuals mentioned in a particular file have died. They do this by making "reasonable use of the information readily available," which will differ from case to case. Given the large number of responsive documents and the likely similarly large number of names at issue, FBI met its burden through use of its "100-year rule," consultation of the publication Who Was Who, reliance on the institutional knowledge of FBI employees, and on information gained from prior FOIA requests.

Exemption 1: Defendant properly withheld the name of a foreign government that cooperated with the FBI but wanted its cooperation to remain confidential, as well as the file number of a target of an investigation, where revealing the number would reveal a specific intelligence method. The FBI's declaration describes each document, its classification level, the location of all redactions, and a description (to the degree possible) of the withheld information. The FBI's explanation of the possible threat to national security from release meets the standard of being "logical or plausible." Plaintiff's claim that some of the withheld information is already in the public domain is unavailing, as it does not eradicate the possibility that further disclosures may cause harm.

• Exemption 2: Defendant appropriately withheld source symbol numbers and a file number pertaining to a source. Such information has routinely been held to be predominantly internal and lacking any significant public interest.

• Exemption 6: Defendant's redaction of names and personal information about former FBI agents and other third parties (including one who served as an FBI source and requested confidentiality) was proper. The fact that plaintiff may have been able to identify one of the agents in question (an individual who plaintiff claims is a "public figure") does not diminish this individual's privacy interest. Plaintiff's interest in contacting the agents whose names were withheld does not qualify as a public interest under the FOIA, for such an interest is completely unrelated to the FOIA's purpose of shedding light on an agency's performance of its statutory duties. This is also true with regard to the individual who requested confidentiality, notwithstanding plaintiff's "doubts" about whether this person still would like to remain anonymous. Plaintiff has also failed to identify any public interest in release of information concerning the other third parties identified in the responsive documents.

Exemption 7(C): The FBI appropriately withheld the names of FBI Special Agents, the name and source number of a third party, the names of other third parties, and the names of other sources. Plaintiff has not identified any public interest that would outweigh the substantial privacy interests of these individuals.

• Exemption 7(D): The agency correctly withheld a source symbol number and the name of a confidential informant. The FBI declaration establishes that all symbol numbered informants work under express assurances of confidentiality. Thus, the agency has met its burden under this Exemption.

4. O'Neill v. DOJ, No. 06-0671, 2007 WL 1521530 (E.D. Wis. May 23, 2007)

Re: First-party request

• Adequacy of search: In response to plaintiff's request for "all records related to any electronic surveillance" of plaintiff, it was not reasonable for the FBI to restrict its search to its ELSUR database. It is possible that records that relate to the FBI's alleged electronic surveillance of plaintiff might exist in the FBI file on plaintiff that is located in its Central Records System database. Further, even if the CRS file does not contain responsive information, the FBI's affidavit does not assert that it "does not have some other third information storage system that could contain responsive documents."
(posted 9/21/2007)

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