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

December 21, 2007

FOIA Post

Summaries of New Decisions -- November 2007

As announced previously by OIP, we are now posting up-to-date summaries of
new court decisions. To facilitate their review, the cases are 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 November 2007.

WEEK OF NOVEMBER 5

District Courts

1. Public Citizen, Inc. v. OMB, No. 07-409, 2007 WL 3254740 (D.D.C. Nov. 6, 2007)

Re: Documents related to "bypass" of OMB's legislative and budgetary processes

• Exemption 2: OMB properly invoked Exemption 2 to withhold documents that "contain instructions to OMB personnel that govern the relationships between OMB and other agencies." These documents "offer guidance to OMB officials," making them "plainly intended for internal use only." Furthermore, there is no evidence to suggest that the documents were ever used by anyone outside OMB. Release of these records would "benefit those agencies who [sic] are seeking to avoid their legislative obligations." Under prevailing circuit law, the circumvention risk required for "high" 2 withholdings need not be limited to a criminal statute.

• Exemption 5: OMB's use of Exemption 5 was acceptable in light of the fact that the documents at issue "represent a discussion between OMB and other agencies about the prospective relationship between OMB and those agencies vis a vis the legislative clearance process." The documents reflect predecisional deliberative dialogue which took place prior to any final agency decision, and thus satisfy the requirements for the deliberative process privilege.

2. Sindram v. Fox, No. 07-0222, 2007 WL 3225995 (E.D. Pa. Oct. 31, 2007)

Re: First-party request, as well as constitutional, tort, and other non-FOIA claims

• Exhaustion: Plaintiff has not countered defendant's assertion that plaintiff failed to exhaust his administrative remedies. Thus, plaintiff's claim is dismissed.

3. O'Neill v. DOJ, No. 06-0671, 2007 WL 3223303 (E.D. Wis. Oct. 26, 2007)

Re: First-party request (renewed motion for summary judgment)

• Adequacy of search: The affidavit submitted by the FBI is sufficient to show that it conducted an adequate search in the only records systems it maintains that were likely to contain responsive records. Plaintiff has provided no legal support for his assertion that the FBI should be made to interview its employees and other agencies' employees as to the whereabouts of any responsive records. Plaintiff has not made a showing of bad faith sufficient to undermine defendant's evidence on this issue.

• Scope of request: Because plaintiff's request was limited to a single FBI field office, any requests for records concerning actions taken by other agencies concerning him must be submitted by him to those agencies.

WEEK OF NOVEMBER 12

District Courts

1. Ruston v. DOJ, No. 06-0224, 2007 WL 3333464 (D.D.C. Nov. 9, 2007)

Re: First-party request

• Exemption 4: The Federal Bureau of Prisons properly withheld materials used to conduct a psychological examination of plaintiff. The withheld records are "'highly confidential proprietary trade secrets,'" and their release could "'severely compromise'" test validity, which would "likely . . . damage the value of investments made by" the test creators.

2. Battle-El v. Merit Transp. LLC, No 07-2029, 2007 U.S. Dist. LEXIS 83865 (S.D. Cal. Nov. 9, 2007)

Re: First-party request

• Proper party defendant: Defendant, a private corporation, is not an "agency" under the FOIA. As such, plaintiff's FOIA complaint against it is dismissed sua sponte for failure to state a claim upon which relief can be granted.

3. Heitzman v. United States, No. 07-444, 2007 WL 3357712 (W.D. Wash. Nov. 8, 2007)

Re: Taxpayer dispute

• Exhaustion: The Court lacks jurisdiction because plaintiffs "have failed to allege a request, refusal and exhaustion of administrative remedies."

4. Reliant Energy Power Generation, Inc. v. Fed. Energy Regulatory Comm'n, No. 04-774, 2007 WL 3307214 (D.D.C. Nov. 8, 2007) (adoption of magistrate's recommendation)

Re: Records related to investigation of plaintiff

• Litigation considerations (waiver of exemption): FERC did not waive its right to claim Exemption 4 as the basis for some of its withholdings by not raising this claim in its first Motion for Summary Judgment, instead raising it in its second. Under prevailing circuit law, agencies cannot "'make new exemption claims to a district court after the judge has ruled in the other party's favor.'" However, the Court's denial of FERC's first Motion for Summary Judgment was not a ruling in plaintiff's favor, as plaintiff's own Motion for Summary Judgment was denied as well. Allowing FERC to include new bases for withholding is not inconsistent with FOIA's goals of "'efficient prompt, and full disclosure of information.'" (The Court applied the same analysis to FERC's invocation of the attorney-client privilege and Exemption 6).

• Exemption 4: Plaintiff has not challenged FERC's assertion that the records it withheld under Exemption 4 contain confidential information that was voluntarily submitted to the agency, and that release of this information "would impair FERC's ability to collect this data in the future." Thus, the withholding was proper.

• Exemption 5: FERC appropriately withheld draft documents created during its investigation into plaintiff's activities. "Release of these documents would allow a reader to probe too deeply into the thought processes of the drafters and would have a chilling effect on communication between agency employees," notwithstanding plaintiff's claim that the documents are unprotected because their creation "involved a factual investigation rather than a policy formulation." FERC also correctly withheld documents reflecting internal discussions concerning the investigation of plaintiff, as release would inhibit internal agency deliberations. Once again, plaintiff's claim that the documents are unprotected because they arose in the context of a factual investigation is unavailing. It was also acceptable for FERC to withhold spreadsheets and tables used in its analysis of plaintiff's actions. Even though these documents themselves are factual, "their use by agency employees in writing the Staff Report renders them part of the deliberative process." Analysis of this information involved deliberative judgments on the part of agency employees. FERC also appropriately applied the attorney-client privilege to documents that were "'created with the expectation of privacy'" and that "involve[d] requests for and the provision of legal advice in the context of an attorney-client relationship."

• Exemption 6: FERC utilized Exemption 6 to withhold "e-mail addresses of persons not directly involved" in its investigation, as well as personal phone numbers, and personal information concerning an agency employee. Plaintiff has not asserted a public interest in any of this information that would outweigh the privacy interests at stake.

• Segregability: Even if FERC's declaration is "deficient" with regard to this issue, in camera review reveals that the agency has met its segregability obligations.

5. Leal v. DHS, No. 06-0425, 2007 WL 3299022 (D.D.C. Nov. 8, 2007)

Re: Forensic investigative techniques

• Adequacy of search: DHS conducted "adequate and reasonable searches," notwithstanding the fact that no responsive records were found. Additionally, "[p]laintiff offers no meaningful opposition to defendant's showing that adequate searches were conducted."

WEEK OF NOVEMBER 19

Courts of Appeal

1. Whitfield v. Dep't of Treasury, No. 06-5298, 2007 U.S. App. LEXIS 26897 (D.C. Cir. Nov. 16, 2007)

Re: First-party request

• Adequacy of search: The district court's ruling that Treasury's search was sufficient is affirmed. Plaintiff's "challenge to the adequacy of the search fails because he has not provided sufficient evidence to raise 'substantial doubt' concerning the adequacy of the search." Treasury's failure to locate certain documents does not show that its search was inadequate. The district court's refusal to order discovery was not an abuse of its discretion. Treasury's belated production of documents held by another agency was not evidence of bad faith.

District Courts

1. Smith v. Env't and Natural Res. Div., No. 07-0015, 2007 WL 4127647 (D.D.C. Nov. 21, 2007)

Re: Records related to jurisdiction over private land plot

• Adequacy of search: ENRD's affidavit establishes that its search for responsive records was adequate. Plaintiff's challenge to defendant's actions, which focuses on whether the federal government has legitimately exercised jurisdiction over two pieces of land in California, is irrelevant for purposes of a FOIA action. To the extent that plaintiff has challenged ENRD's search, he has failed to meet his evidentiary burden.

2. Johnson v. DOJ, No. 06-1248, 2007 WL 3408458 (E.D. Wis. Nov. 14, 2007)

Re: Third-party records

• Exemption 7(C): The district court held that the use of a "Glomar" response by EOUSA was inappropriate under the facts presented. Defendant had previously filed a writ of habeas corpus ad testificandum for the subject of plaintiff's request. Even though this individual did not testify at plaintiff's criminal trial, "it would be unlikely that the government would file a petition for a writ of habeas corpus ad testificandum for [the subject] without first taking a statement from him." Thus, it would not invade the subject's privacy interest for EOUSA to acknowledge the existence of a statement made by the subject. EOUSA must conduct a search for such records.

WEEK OF NOVEMBER 26

Courts of Appeal

1. AIDS Healthcare Found. v. Leavitt, No. 05-56636, 2007 WL 4180223 (9th Cir. Nov. 27, 2007) (unpublished disposition)

Re: Records pertaining to plaintiff's grant applications

• Standard of review: Under 9th Circuit law, the court first determines whether the district court had an adequate factual basis for its judgment. This determination is made by reviewing the underlying facts for evidence of clear error. If the court determines that the district court did have an adequate factual basis for its judgment, it then reviews de novo the lower court's judgment on the application of FOIA exemptions to responsive documents.

Vaughn Index: HHS's Vaughn index and supporting declarations "were reasonably detailed, and described the records and facts sufficiently to establish an exemption." There was no need for in camera review by the district court.

• Exemption 5: Documents that were circulated before HHS made its funding decisions and which contributed to the process of deciding which grants to award were predecisional and deliberative. It was also acceptable for HHS to withhold the identities and affiliations of the reviewers of plaintiff's proposals. While HHS released a list of all of its reviewers, release of information that would tie individual reviewers to particular applications would make it "'impossible to have any frank discussions.'"

District Courts

1. Klamath Siskiyou Wildlands Ctr. v. U.S. Dep't of the Interior, No. 07-325, 2007 WL 4180685 (D. Or. Nov. 21, 2007) (adoption of magistrate's recommendation)

Re: Records concerning the Kelsey Whisky Project

• Exemption 5: Interior properly invoked the deliberative process privilege. All of the withheld documents were created antecedent to agency decisions regarding two timber sales. Furthermore, the documents "contain recommendations, discussions, suggestions, and inquiries." Their release "would stifle honest and frank communication among agency personnel and discourage candid discussions within the agency." Plaintiff's need for the withheld documents does not outweigh Interior's interest in withholding them.

2. Anderson v. DOJ, No. 06-119, 2007 U.S. Dist. LEXIS 86561 (D. Idaho Nov. 21, 2007)

Re: Third-party request

• Exhaustion: Any FOIA claim plaintiff may have is premature because he has not shown that he has made a proper FOIA request, or that an agency recipient of a request has denied it, or that he has exhausted his administrative remedies.

3. Hoff v. DOJ, No. 07-094, 2007 WL 4165162 (S.D. Ohio Nov. 19, 2007)

Re: First-party request

•Jurisdiction/adequacy of search: FBI's declarations establish that its search for responsive records was reasonable and that no responsive documents were found. Plaintiff has offered no evidence to show that the FBI has possession of any responsive records. Because plaintiff cannot show that defendant improperly withheld agency records, her claim is dismissed for lack of subject matter jurisdiction. (posted 12/21/2007)

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