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

November 27, 2007

FOIA Post

Summaries of New Decisions -- October 2007

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

WEEK OF OCTOBER 1

District Courts

1. Judicial Watch, Inc. v. FDA, No. 07-561, 2007 WL 2840442 (D.D.C. Oct. 2, 2007)

Re: Communication involving FDA and several U.S. Senators concerning "Plan B" drug

• Mootness: Though FDA claims that the case is moot because it has provided all responsive documents to plaintiff, the Court retains jurisdiction in order to rule on plaintiff's claim that FDA's search for responsive documents was inadequate.

• Adequacy of search: A plaintiff's claim that additional records exist cannot be sustained where the plaintiff "provides no proof that these documents exist [other than] his own conviction" that they do. FDA's declarations establish that it searched each office likely to have responsive records and that its search methodologies were reasonable.

2. Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007)

Re: Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq

• Adequacy of search: A court should consider "the reasonableness of the search performed not the results of the search." However, "[t]he lack of specific search terms and the general nature of the description contained in the affidavit in combination with the evidence that the results of the search failed to produce responsive documents" suggest the need for in camera review in order to decide whether DOD's search was reasonable.

Vaughn Index: DOD's index, "as currently presented, does not afford either the court itself or plaintiffs the opportunity to challenge the withholding of certain documents." Additionally, DOD's index does not "state the specific harms which may result from . . . release," and therefore must be revised.

• In camera review: In addition to supplementing its previously submitted declarations, DOD must submit certain documents for in camera review. While there has been no finding of bad faith on DOD's part, the public perception of possible bad faith warrants in camera review in this case.

• Sufficiency of declarations: Plaintiff has raised a number of challenges to DOD's declarations, accusing DOD of acting in bad faith. However, "many of these assertions have been rebutted by defendants and others are mischaracterizations of the facts," and so "the court sees no such tangible evidence of bad faith."

• Waiver: Plaintiff claims to have obtained from DOD's website a copy of a document that DOD is now partially withholding. However, this document has not been authenticated, and the parties dispute several pertinent facts, including the nature of the posting of the document, whether the posting was official or inadvertent, and the reason for its removal from the website. DOD is ordered to provide additional information to the Court concerning the release of the document and its subsequent removal from DOD's website, as well as a comparison of the document produced by plaintiff with the redacted version released by DOD.

• Exemption 1: Plaintiffs have produced no evidence to support their contention that the documents were classified to avoid embarrassment to the government. Defendants have provided a sufficient description of the classified ROEs. Requiring further detail would risk "subvert[ing] the purpose of the exemption." Plaintiffs also suggest that not all responsive documents have been produced, an issue that will be resolved in light of the Court's order for in camera review tied to the adequacy of the search. Plaintiffs also claim that certain ROEs have been disclosed to the public. However, plaintiffs have failed to produce any evidence that the ROE in question here have been released. Even had they done so, this would not necessarily bar the use of Exemption 1, because "avoiding official confirmation or disclosure of classified information is a valid basis for invoking Exemption 1."

• Exemption 2: Plaintiffs argue that release of ROE would not lead to circumvention because the ROE are already known to the enemy through their use in battle. They provide no evidence to support this claim, but even if they had, it would still "fall well short of official disclosure required to waive the exemption." Plaintiffs' claim that the ROE are part of international law and must therefore be released "is circular and based on questionable assumptions." DOD should, however, provide reasonably segregable portions of these documents, even if these would only contain heading titles. DOD has also not shown how the release of the names assigned to particular routes or units which are already in the public domain would risk circumvention of agency policies. There is no basis in prior case law for plaintiffs' claim that DOD did not timely raise Exemption 2, despite first using it on the administrative appeal of plaintiffs' request. DOD did not give a sufficiently detailed description of "certain administrative information" it withheld under "low" 2. Since by its very nature this information must be trivial in order for it to be withheld, there is no risk that providing further detail will undermine the purpose of the exemption.

• Exemption 3: DOD properly withheld the names and other information concerning military personnel assigned to an overseas or otherwise sensitive unit pursuant to 10 U.S.C. § 130(b). Plaintiff's contention that this withholding was not properly authorized by the Secretary of Defense is meritless, because the power to authorize this withholding was delegated to an appropriate official. Other information that was initially withheld pursuant to 10 U.S.C. § 130(c) has now been referred to the State Department, which determined that the documents should be classified. The Court will reserve judgment on this issue until additional motions are submitted to the Court.

• Exemption 5: DOD has not established that the deliberative process privilege applies, and must submit the documents in question for in camera review.

• Exemption 6: DOD withheld the names of American military personnel (as well as one foreign agent) involved in an incident which was investigated. While the public has a strong interest in learning the names of these personnel (especially if they are people with policymaking or policy implementation responsibilities), this interest is outweighed by the even stronger interest these individuals have in their own privacy where disclosure "would risk harm or retaliation."

3. Long v. OPM, No. 05-1522, 2007 U.S. Dist. LEXIS 72887 (N.D.N.Y. Sept. 30, 2007)

Re: Records from OPM Central Personnel Data File (CPDF)

• Exemption 6: Plaintiffs requested information on employees at a variety of offices within several government agencies. OPM withheld name and duty station location for many of these employees because they work in "sensitive" occupations or work for specific law enforcement components of DOD. For some of these occupations, OPM has submitted "'reasonably detailed explanations'" as to why release of name and duty station information could cause harassment or attack of the identified employees. For others, OPM has not provided a "specific explanation" as to why those employees "would be subject to a heightened risk of harassment or attack if identified by name and duty station" and must submit additional information on this point. As to the former, OPM has identified a more than de minimis privacy interest at stake. Plaintiffs have not shown a sufficiently high public interest in disclosure to overcome this, as disclosure of lists of names of an agency's employees does not, by itself, shed light on agency activities. The fact that some of this information may be available elsewhere does not lessen the privacy interest at stake. Additionally, "an employee's name and duty station are personal in nature and do not relate to the employee's performance of public duties." OPM also withheld the names of IRS employees who operate under pseudonyms, pursuant to statute. The employees in question have used these pseudonyms for more than fifteen years, and there is no evidence that release of their names "'would serve the core purpose of the FOIA.'" OPM also withheld award dollar amounts for certain IRS employees out of concern that providing this information would allow anyone to determine that employee's performance appraisal score. Because it is not clear whether release of this information would, in fact, allow for such "reverse engineering," defendant is directed to submit additional evidence on this issue.

• Exhaustion: Plaintiffs seek an order directing OPM to release the "Organizational Component" field from the requested records. OPM claims that plaintiffs failed to raise this issue at any administrative stage of their request, and therefore have not exhausted administrative remedies. The parties are directed to submit additional briefings on this subject. The parties are also directed to submit further briefings on the issue of whether OPM met its burden of identifying the amount of material redacted from responsive records.

4. Andersen v. Leavitt, No. 03-6115, 2007 U.S. Dist. LEXIS 72185 (E.D.N.Y. Sept. 27, 2007)

Re: Documents related to Medicare reimbursement policies

• Mootness: Plaintiffs' motion for injunctive relief is moot because it is undisputed that the documents have been provided by HHS; "it is inconsequential that the documents were received as part of a discovery production, as opposed to a document labeled the response to their FOIA request."

• Attorney fees: HHS did not produce the documents in response to a judicial order. Thus, there is no "judicially sanctioned change in the legal relationship" of the parties. As a result, plaintiffs are not eligible for an award of fees.

5. Lee v. DOJ, No. 04-1013, 2007 U.S. Dist. LEXIS 72063 (W.D. Pa. Sept. 27, 2007)

Re: First-party request

• Adequacy of search: Any issue with regard to the adequacy of the Marshals Service's first search for responsive records was rendered moot when USMS performed a second search. Therefore, plaintiff's claims on this point are moot.

• Exhaustion: Plaintiff failed to follow the Court's order and exhaust his administrative remedies with regard to USMS's second search for responsive records. His claims with regard to this second search are dismissed.

• Exemptions 7(C) & 7(F): BOP properly withheld identifying information concerning several inmates at plaintiff's institution, and also of BOP investigators. Plaintiff did not demonstrate any public interest in the disclosure of this information to overcome the clear privacy interests the protected individuals have. Use of Exemption 7(F) for this information was appropriate as well because of the risk of retaliatory threats or violence. "[T]he Court will, within limits, defer to the agency's assessment of danger."

6. Nevada v. U.S. Dep't of Energy, No. 06-153, 2007 WL 2821442 (D. Nev. Sept. 27, 2007)

Re: Draft license applications to the Nuclear Regulatory Commission (NRC) for proposed Yucca Mountain waste depository

• Exhaustion: Plaintiff has exhausted its administrative remedies. The District Court finds that DOE's claim that plaintiff's failure to appeal from its first request for the records in question bars subsequent requests for the records "appears to confuse exhaustion with claim preclusion." DOE has not identified any administrative procedure with which plaintiff has failed to comply.

• Exemption 5: The attorney work-product privilege did not support withholding the draft license application. While administrative proceedings can be considered "litigation" for purposes of this privilege, they only qualify when the proceedings in question are sufficiently adversarial. The license application process does not so qualify. Furthermore, DOE has not shown that the license application was prepared in a "substantially different form" due to the prospect of potential litigation. DOE's reliance on the deliberative process privilege to protect these materials was appropriate. Plaintiff's argument that these draft applications must contain segregable factual material is incorrect. The nature of the documents at issue -- draft applications for design proposals -- suggest that agency determinations of what facts to include in the proposal involve important policy judgments on the agency's part. The fact that no final document has yet been "created, approved, and released" is "crucial[ ]" to the court's analysis.

7. American-Arab Anti-Discrimination Committee v. DHS, No. 06-1770, 2007 WL 2812867 (D.D.C. Sept. 27, 2007)

Re: Data on individuals detained by Immigration and Customs Enforcement (ICE)

• Adequacy of search: Declarant's explanation that ICE does not maintain records relating ethnicity, religion, or race is sufficient because it explains why any search would have been futile and unnecessary.

• Exemption 7(A): ICE appropriately invoked this exemption to withhold data concerning the gender and nationality of those detained. ICE "explain[ed] in sufficient detail that some of the methods used by ICE to prioritize leads and target immigration status violators would be revealed by disclosing data on the gender and nationality of those arrested."

8. DeMartino v. FBI, 511 F. Supp. 2d 146 (D.D.C. 2007)

Re: First-party request

• Proper party defendant: As a part of the judicial branch of the federal government, the United States Probation Office for the Eastern District of New York is not an "agency" for purposes of the FOIA. Plaintiff's complaint against this office is dismissed.

• Exhaustion: Plaintiff has not challenged defendants' assertion that plaintiff did not file an administrative appeal of EOUSA's response to plaintiff's request to that office. Therefore, defendants are granted summary judgment with regard to plaintiff's complaint against EOUSA.

• Adequacy of search: Defendants' declaration establishes that BOP's search for responsive records was reasonable, because BOP searched in "the most likely location of responsive records." The fact that BOP did not locate a 911 tape plaintiff believes exist "does not create a triable issue on the search."

• Pleadings: Plaintiff has not contested, and therefore concedes defendants' assertions that it appropriately withheld certain information from the records responsive to plaintiff's request pursuant to Exemptions 2, 5, 7(C), and 7(F). The Court is "satisfied" from a review of the declaration that the information was "properly redacted."

9. Dunleavy v. New Jersey, No. 06-0554, 2007 WL 2793370 (D.N.J. Sept. 26, 2007)

Re: First-party request

• Proper party defendant: The New Jersey Division of Civil Rights is a state government agency, and therefore is not subject to the FOIA. Plaintiff's FOIA claim against this office fails to state a claim upon which relief can be granted, and is dismissed.

10. Citizens for Responsibility and Ethics in Washington v. DHS, No. 06-0173, 2007 WL 2791710 (D.D.C. Sept. 26, 2007)

Re: Records concerning FEMA's preparation for and response to Hurricane Katrina

• Exemption 5: A FEMA contractor consulted for the purposes of developing a "catastrophic planning initiative" for FEMA qualifies as a consultant for the purposes of the Exemption 5 threshold, as does a former Congressman who communicated with FEMA regarding recommendations relating to FEMA's response to the hurricane. State government officials consulted in an effort to coordinate evacuation plans also qualify as consultants. DHS established that the documents it withheld pursuant to the deliberative process privilege were deliberative and predecisional. Documents relating to personnel decisions and possible responses to fires were deliberative, as they related to decisions on how to respond to the ongoing crisis. Documents that included predictions about possible participants in certain internal discussions were also withheld appropriately, as decisions about including certain individuals in these discussions reflect decisions on how the agency responded to the hurricane. Briefing reports withheld by DHS included reports of ongoing problems with the agency's response to the hurricane and included suggested solutions, and were therefore also withholdable. DHS also properly relied upon the attorney-client privilege to withhold a small number of documents. Contrary to plaintiff's assertions, there is no indication that confidentiality was breached with regard to any of these documents, nor is there any indication that the documents in question represent authoritative interpretations of agency law. DHS also appropriately utilized the presidential communications privilege to protect documents that related to presidential decisionmaking and that were authored by, or requested and received by the President's close advisers and their staffs. Plaintiff's claim that DHS must specifically identify the White House advisers involved in these communications in order to assert the privilege is unfounded. However, this privilege cannot be applied to documents that were not "solicited and received by White House advisers or their staff," or documents which merely "reflect" communications with White House advisers or were "intended" for White House advisors.

11. Brunsilius v. Dep't of Energy, No. 06-2202, 2007 WL 2791709 (D.D.C. Sept. 26, 2007)

Re: Records concerning Rocky Flats nuclear facility

• Fee waiver: Plaintiff's indigence, by itself, is not a basis upon which to grant a fee waiver. Neither is plaintiff's interest in pursuing private litigation against the government. Plaintiff claims that release of the requested records would be in the public interest; however, DOE properly concluded that plaintiff, as an inmate, lacks the ability to disseminate the information in question. Because the estimated fee for the processing of plaintiff's request was sufficiently high that DOE required advance payment of fees, plaintiff's request would not be considered "received" until the agency received payment.

WEEK OF OCTOBER 8

Courts of Appeal

1. Sharkey v. FDA, No. 06-11774, 2007 WL 2914212 (11th Cir. Oct. 5, 2007)

Re: Records pertaining to net number of doses distributed per lot of hepatitis B vaccine

• Exemption 4: The district court correctly determined that FDA had demonstrated that drug company submitters are engaged in actual competition as to the sale of the vaccine and that release of the information in question would cause competitive harm. The submitters take "drastic measures" to protect the confidentiality of the requested information. If released, the requested information would reveal market share and sales volume. Knowledge of this information would allow competitors "to better estimate even more confidential information, such as production capacity and manufacturing specifics." This would enable such competitors to gauge the submitters' ability to fill large orders.

• Discovery: It was not an abuse of discretion for the district court to deny plaintiffs' Rule 56(f) motion for discovery. The declaration plaintiffs submitted in support of this motion "merely criticizes" FDA's declarations and "fails to state with particularity the facts [plaintiff] believes discovery will reveal sufficient[ly] to create a genuine issue of material fact."

District Courts

1. Schwartz v. DOJ, No. 06-5581, 2007 WL 2916465 (D.N.J. Oct. 4, 2007)

Re: Various first and third-party requests

• Pleadings/Motion for Injunction/Exhaustion: Plaintiff initially filed a complaint relating to the denial of requests he made for information on several third parties. He, along with his mother, subsequently made requests for certain records pertaining to themselves, and then filed the instant action, a motion for an injunction demanding an emergency hearing and release of the records requested in the second set of requests. Plaintiff's motion fails for two reasons. First, the relief requested in the motion for injunction differs from the remedy sought in his initial complaint. Secondly, plaintiff failed to exhaust his administrative remedies with regard to either of his requests, so the Court will not exercise jurisdiction. Plaintiff did not submit privacy waivers from the subjects of his first request, nor did he submit a certification of identity for his first-party request. Thus, in neither case did he "properly request [the] information."

2. Duggan v. SEC, No. 06-10458, 2007 WL 2916544 (D. Mass. July 27, 2007) (adoption of magistrate's recommendation)

Re: Records concerning three companies

• Personal knowledge requirement: An agency is not required to submit an affidavit from the individual who personally carried out the search, but can rely on an affidavit from an individual who is responsible for supervising the search. SEC's declarations were all from individuals who were responsible for responding to plaintiff's requests or who were responsible for determining whether located documents were responsive and were treated appropriately by SEC, and therefore they were sufficiently familiar with plaintiff's requests to meet the personal knowledge requirement.

• Adequacy of declarations: Plaintiff's challenges to the sufficiency of information provided in SEC's declarations are unfounded. Plaintiff presented nothing other than "'pure speculation,'" which is not enough to overcome the presumption of good faith accorded to the declarations.

• Fee status: Plaintiff's challenge to his fee status classification is moot, as SEC waived the search fee and provided the only responsive document. "FOIA does not create an independent right to a [fee] status determination once a fee waiver has been granted . . . Moreover, to the extent the plaintiff is seeking a declaration of his status with respect to future requests, that issue is not ripe."

WEEK OF OCTOBER 15

Courts of Appeal

1. Dunleavy v. New Jersey, No. 07-1058, 2007 U.S. App. LEXIS 24307 (3rd Cir. Oct. 16, 2007)

Re: First-party request

• Proper party defendant: The district court correctly determined that, as a state agency, the New Jersey Division of Civil Rights is not subject to the FOIA. Plaintiff's FOIA claim against this office was appropriately dismissed for failure to state a claim upon which relief can be granted.

2. Carlson v. USPS, No. 05-16159, 2007 WL 2983702 (9th Cir. Oct. 15, 2007)

Re: Contact information and business hours for all post offices

• Standard of review: The Court of Appeals reviews the factual basis for the lower court's ruling under a clearly erroneous standard. If an adequate factual basis for the ruling exists, the lower court's legal rulings are reviewed de novo. The Court declines to adopt the more deferential standard employed by the First Circuit when reviewing the agency's determination that requested information falls within the scope of an Exemption 3 statute.

• Exemption 3: Because neither party contests the lower court's ruling that 39 U.S.C. § 410(c)(2) qualifies as an Exemption 3 statute, the Court need not address this issue. Though defendant operates in a '"businesslike way,'" it is a government entity, not a business. "Basic information" concerning access to mail service, "such as the location of post offices and their phone number; hours of operation and time of mail pick-up is not information that is commercial in nature," and so does not fall within the scope of the statute.

• Costs: On remand, the district court is directed to consider plaintiff's request for litigation costs as a substantially prevailing party.

3. Leon v. United States, No. 07-2675, 2007 WL 2948566 (3rd Cir. Oct. 10, 2007)

Re: Grand jury records

• Exemption 3: The district court improperly treated plaintiff's FOIA action as a petition for habeas relief and dismissed it. While this was not a proper basis for dismissal, the district court's ruling is still affirmed because plaintiff, in requesting grand jury materials, has asked for records which are clearly protected by Exemption 3, through FRCrP 6(e). Thus, plaintiff has failed to state a claim upon which relief can be granted.

District Courts

1. Harris v. DOJ, No. 06-1806, 2007 WL 3015246 (N.D. Tex. Oct. 12, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Writ of mandamus: Plaintiff has not shown that he is entitled to this extraordinary form of relief from the Court, or that he has exhausted other forms of relief available to him.

• Jurisdiction: Plaintiff has failed to rebut defendant's showing that it did not improperly withhold any responsive records from him, thereby depriving the Court of jurisdiction over his claims.

• Exhaustion: Once defendant responded to plaintiff's requests, plaintiff was obliged to file an administrative appeal in order to exhaust his administrative remedies. Because he did not do this, he is not entitled to relief from the Court.

• Mootness: Because the record indicates that defendant produced all responsive documents, plaintiff's action should be dismissed on mootness grounds, as there is no justiciable cause or controversy.

2. Ebersole v. United States, No. 06-2219, 2007 WL 2908725 (D. Md. Sept. 24, 2007)

Re: Records related to DOJ-DOS interagency task force, training of explosives-sniffing dogs, and 2002 visitors' log

• Adequacy of search: Defendant's declarations were sufficient to show that its searches for responsive records were reasonable, and tailored to the wording of plaintiff's requests. A FOIA suit "is not the forum" to address plaintiff's claims concerning "the content" of the documents or alleged "untoward conduct by ATF officials."

• Exemption 2: Pursuant to "low" 2, ATF properly redacted internal administrative funding codes. This information "satisf[ies] the exemption category of routine or trivial administrative information." Pursuant to "high" 2, ATF properly withheld guidelines for training of explosives sniffing dogs due to the risk that criminals could use this information to prevent detection of their explosives. Plaintiff's argument that this information should be released because it was introduced into evidence at his criminal trial is unpersuasive. Introduction of evidence at a criminal trial is not the same as release of information through the FOIA. The former is subject to control by the trial court. Additionally, plaintiff's claim that the information in question has already been published by Auburn University is unconvincing, as the published information appears to differ from that which is responsive to plaintiff's request.

• Exemption 5: ATF appropriately withheld a draft memorandum of understanding pursuant to the deliberative process privilege. The document is "subject to change" and "does not memorialize a final agency decision."

• Exemption 7(C): ATF correctly applied this exemption to withhold the names of law enforcement agents and other identifying information. Plaintiff has provided "nothing" that would constitute a sufficient public interest to overcome the privacy interests at stake. Plaintiff claims, inter alia, that release of this information would provide him with exculpatory information with which to challenge his criminal conviction. Aside from the fact that plaintiff's claims are "specious," a FOIA suit is not the proper forum by which to challenge a criminal conviction.

WEEK OF OCTOBER 22

District Courts

1. Casaburro v. Volusia County Corp., No. 07-56, 2007 U.S. Dist. LEXIS 78197 (M.D. Fla. Oct. 22, 2007)

Re: Documents pertaining to concerns raised with defendant's use of nonpartisan election system

• Proper party defendant: Defendant, a local government body, is not an "agency" for purposes of the FOIA and is therefore not subject to FOIA claims.

2. Smith v. BOP, No. 06-1797, 2007 WL 3052981 (D.D.C. Oct. 19, 2007)

Re: Information pertaining to BOP program statements, tort claims, and organizational chart of mail room of BOP facility

• Exhaustion: Because plaintiff did not file an administrative appeal of BOP's decision to aggregate his multiple requests, this part of his complaint is dismissed.

• Fee waiver: BOP properly denied plaintiff's fee waiver request. "Plaintiff did not specify the public interest, identify the governmental activity or operation on which he intended to shed any light, or explain how disclosure . . . would contribute to the public's understanding of such activity," nor did he demonstrate any ability to disseminate the requested information.

3. South Yuba River Citizens League and Friends of the River v. Nat'l Marine Fisheries Serv., No. 06-2845, 2007 WL 3034887 (E.D. Cal. Oct. 16, 2007)

Re: Records pertaining to "Biological Opinion" issued by defendant

• Litigation considerations: An agency's failure to release all nonexempt records that are responsive to a FOIA request creates a claim upon which relief can be granted. As defendant acknowledges that it has not fully responded to plaintiff's request, its motion to dismiss will not be granted.

4. Snyder v. DOD, No. 03-4992 (N.D. Cal. Oct. 12, 2007)

Re: Records pertaining to DOD computer modernization and DOD contracting

• Litigation considerations: The Court's prior appointment of a trial master to determine whether DOD has complied with plaintiff's request (which implicates "highly technical issues") has "failed to achieve" its objectives. The master's latest report "contains a rather tendentious description of the parties' positions punctuated by the master's personal reactions . . . and therefore fails to inform the court." Plaintiff's motion to adopt the master's most recent report is denied, and the master's appointment is revoked. Plaintiff has fourteen days to demonstrate to the Court that there remain responsive records to which he is entitled, but which he has not yet received.

WEEK OF OCTOBER 29

Courts of Appeal

1. Elliott v. DOJ, No. 07-5082, 2007 U.S. App. LEXIS 24966 (D.C. Cir. Oct. 23, 2007)

Re: Records related to plaintiff's criminal trial

• Appointment of counsel: Plaintiff's motion for appointment of counsel is denied. Plaintiff has not demonstrated sufficient likelihood of success on the merits to warrant appointment of counsel.

• Summary affirmance: "The merits of the parties' positions are so clear as to warrant summary action." Even assuming that a pro se plaintiff can recover litigation costs in a FOIA case, plaintiff would not be eligible because he did not substantially prevail in his FOIA action. Furthermore, plaintiff's notice of appeal was filed more than two years after the district court's entry of judgment in favor of defendant, making plaintiff's filing untimely. Plaintiff has also provided no grounds for imposing sanctions against defendant.

District Courts

1. Elliott v. USDA, No. 06-0240, 2007 WL 3156287 (D.D.C. Oct. 30, 2007)

Re: Blueprints of buildings within the Beltsville Agricultural Research Center

• Exemption 2: USDA appropriately withheld the blueprints, which are used for predominantly internal purposes. Disclosure of this information could compromise the security of the installation, at which a number of sensitive projects are located. No reasonably segregable portion of the blueprints is releaseable.

2. Elliott v. DOJ, No. 07-0205, 2007 WL 3156286 (D.D.C. Oct. 30, 2007)

Re: Copy of deed ceding jurisdiction of land at Beltsville Agricultural Research Center

• Summary judgment: DOJ asserted that it found no records responsive to plaintiff's request, and filed a motion for summary judgment on this basis. Plaintiff has in no way challenged defendant's assertions or its motion for summary judgment. Thus, DOJ's motion is taken as conceded.

3. Milner v. U.S. Dep't of the Navy, No. 06-1301, 2007 U.S. Dist. LEXIS 80221 (W.D. Wash. Oct. 30, 2007)

Re: Documents related to operations at Naval Magazine Indian Island

Vaughn Index: The Navy's Vaughn index provides sufficient detail so as to enable plaintiff to challenge defendant's withholdings and to enable the Court to determine whether the withholdings were proper.

• Exemption 2: Plaintiff's assertion that the application of "high" 2 in the 9th Circuit is limited to law enforcement records "relies on a superficial and selective reading" of prior case law. In fact, the test that has been applied "bears more than a passing resemblance to the Crooker test" that documents must be predominantly internal and release would risk circumvention of law. Applying this test, the Navy properly applied this exemption. The Navy withheld information concerning the design and structure of ammunition storage facilities. This information is predominantly internal, notwithstanding the fact that it was shared with local municipalities. Release of this information would "significantly risk circumvention of law. The 'law' sought to be circumvented need not be defined by a particular agency regulation or statute." Rather, "[t]hat the information would lose its utility is sufficient." In addition, in cases such as this one, where national security interests are at stake, "courts are more likely to defer to the agency's expertise in assessing the risk of disclosure." It is also clear that "[i]nformation need not be 'secret' to implicate national security." The fact that the Navy has chosen to share the withheld information with local municipalities in order to better prepare disaster responders "does not undermine the legitimacy of the Navy's risk assessment."

4. Elliott v. NARA, No. 07-0204, 2007 U.S. Dist. LEXIS 79905 (D.D.C. Oct. 30, 2007)

Re: Records pertaining to ownership of land on which Beltsville Agricultural Research Center is located

• Adequacy of search: Despite the "vagueness" of plaintiff's request, defendant made a reasonable search for records but found none. The fact that a similar request to another federal agency produced responsive records is irrelevant.

5. Carter, Fullerton & Hayes LLC v. FTC, No. 07-1041, 2007 WL 3102182 (D.D.C. Oct. 25, 2007)

Re: Documents related to regulation of alcoholic beverages

• Adequacy of search: "It was perfectly reasonable for the FTC to limit its search to those offices determined most likely to contain responsive documents." FTC was not required to expand its search beyond this. Plaintiff's assertion that FTC's search was inadequate because of the allegedly low number of responsive e-mails fails, both because it provided no evidence beyond its "'own conviction'" that additional e-mails exist and because FTC's declaration establishes that its search for electronic records was adequate. While defendant inadvertently overlooked one responsive document (which was subsequently released in part) during its initial processing, this oversight does not indicate bad faith on the FTC's part.

Vaughn Index: "While there is some degree of repetition among entries within defendant's Vaughn index, repetition is to be expected," given the similarities among the responsive documents. Plaintiff's claim that FTC's index does not "adequately prove that such documents were kept confidential" fails because there has not been a "specific showing" that confidentiality was lost. FTC's index provides "an adequate basis for determining whether an exemption applies."

• Exemption 5: Plaintiff's assertion that FTC improperly withheld documents pursuant to the work product and deliberative process privileges is unfounded. Plaintiff has not countered FTC's explanation that handwritten notes and an outline prepared by a senior FTC employee in preparation for a speech "were used as 'deliberative aids' in deciding the final content of a Commission sanctioned speech" and were therefore deliberative and "antecedent to sanctioned Commission action." FTC also appropriately withheld notes taken by an FTC employee during a meeting with a trade group. The notes represent the employee's "'thoughts and impressions' of the meeting" and therefore reflect predecisional recommendations as well as the writer's personal opinions. However, for some of the documents where FTC withheld information pursuant to the deliberative process privilege, it offered only "conclusory statements" in support of its assertion that factual material was so inextricably intertwined with deliberative material so as to make it impossible to segregate and release. Defendant has not sufficiently explained why such segregation was not possible, and its motion for summary judgment on this issue cannot be granted.

• Exemption 6: FTC appropriately withheld the names, addresses, and phone numbers of private individuals who filed complaints with the agency. Release of this information would not shed light on the agency's performance of its duties. Thus, any public interest in this information is outweighed by the privacy interests of the individuals in question.

• Personal knowledge requirement: Defendant's declarant established that she had "personal knowledge of procedures used in handling plaintiff's FOIA request." This is enough to "satisf[y] the personal knowledge requirement." [posted 11/27/2007]

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