FOIA Post (2008): Summaries of New Decisions -- April 2008

May 12, 2008

FOIA Post

Summaries of New Decisions -- April 2008

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 April 2008.

WEEK OF APRIL 1

1. Hidalgo v. FBI, No. 06-1513, 2008 WL 852622 (D.D.C. Mar. 31, 2008)

Re: Records concerning FBI informant

• Exemptions 2 & 7(E): The Court finds that the FBI's arguments for using these exemptions to withhold information concerning payments made to a well-known informant fail. "The FBI has not shown that there is a 'significant risk' that its future investigations will be circumvented by disclosing the nature of the payments made . . . ." The Court finds it "hard to imagine how the payments made to [the source] in an investigation conducted over a decade ago could inform future traffickers seeking more effective strategies for exhausting FBI funding." Nonetheless, "the scope of the required production is narrow." Permanent source symbol numbers, telephone numbers of FBI personnel, third party information, and "internal agency data in which there is no public interest" are withholdable, "under Exemption 2 and other applicable exemptions."

• Exemptions 6, 7(C), 7(D) & 7(F): Plaintiff has raised allegations that the FBI intervened on its informant's behalf, in particular alleging that the FBI prevented prosecutions of the informant for criminal acts he committed. The Court finds that the informant's privacy interest "is far more limited than that of the typical confidential informant." His "status as a government informant is 'open and notorious.'" Furthermore, "[t]he public has a strong interest in ascertaining the truth of such serious allegations of government misconduct," especially because the information regarding the informant's criminal record and his interactions with the FBI "shed light on allegations of agency misconduct, [and do] not focus unwarranted public scrutiny on" the informant. "[T]he FBI's briefs and affidavits are utterly silent on how disclosure of information related to the FBI's misconduct in handling [the informant] would further endanger [his] life or reveal his identity as an informant when his identity as an informant is manifest and could not be any clearer to [plaintiff]."

• Exemption 7(A): The Court finds the FBI's use of this exemption appropriate. Defendant need not show that the informant's business is still in operation and in use as an investigative tool. Rather, it need only show that "'the material withheld relates to a concrete prospective law enforcement proceeding.'" Because the FBI continues to search for co-conspirators, it has satisfied its burden.

2. Hunton & Williams, LLP v. DOJ, No. 06-477, 2008 U.S. Dist. LEXIS 26015 (E.D. Va. Mar. 31, 2008)

Re: Records concerning BlackBerry patent litigation

• Exemption 5: DOJ properly invoked Exemption 5 and the "common interest doctrine" to protect documents exchanged between various government agencies and a private contractor with whom the government had entered into a common interest agreement related to ongoing litigation concerning BlackBerry devices. The agreement created "a symbiotic relationship between [the contractor] and the government analogous to that of co-counsel." Furthermore, in this instance "DOJ was not distributing government benefits between adverse parties. Instead, the DOJ partnered with [the contractor] in a joint effort to ensure that an injunction would not prevent the government or its private contractors from using the BlackBerry systems." A government agency, "like any private party, has the right to prepare for litigation and partner with others to form a joint legal strategy in an effort to do so." The common interest rule "is an extension of the attorney-client privilege and the attorney work product doctrine." DOJ was able to show that it shared a common interest with the contractor in preventing an injunction affecting BlackBerry use, irrespective of the contractor's additional business interest in preventing the injunction. It is not clear that plaintiff is correct in suggesting that the use of this privilege requires the presence of a common litigation opponent, but even if plaintiff is correct, there was such a common opponent. For the privilege to apply, however, there must have been "indicia of joint strategy" between DOJ and its contractor, though a written agreement need not have been entered into. Any documents created prior to the existence of these indicia of joint strategy are not protected by the privilege. Of these documents, all but one are protected by the deliberative process, attorney work-product, and attorney-client privileges. They "include analysis and opinions on legal and policy matters . . . and drafts of declarations and other pleadings." One document, which contains a list of government agencies that use BlackBerrys, is not protected by Exemption 5.

3. Walker v. U.S. Dep't of Energy, No. 07-15467, 2008 U.S. Dist. LEXIS 25395 (E.D. Mich. Mar. 31, 2008)

Re: Records relating to testing on a rock

• Adequacy of search: "[T]he declarations proffered by Defendants are reasonably detailed and sufficient to demonstrate that the . . . searches were adequate. . . . Plaintiff's speculation that all documents were not released is insufficient to establish that Defendants' searches were inadequate."

• Litigation considerations: Plaintiff's motion to amend his complaint is denied as futile. It is clear that no documents were withheld from him.

4. Citizen Action v. U.S. Dep't of Energy, No. 06-0726 (D.N.M. Mar.
31, 2008)

Re: Site plans and records related to storage of radioactive materials

• Pattern and Practice: The Court finds that "[i]n light of the Kafkaesque review process adopted by defendant, it is not surprising that the delay in this case stretched many months beyond the statutorily prescribed time frame." Accordingly, the Court finds that the Department of Energy has engaged in a continuing pattern and practice of unlawful delay with regard to the processing of plaintiff's requests for records. "Unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA . . . ." Defendant's claim that it cannot be found to have engaged in an unacceptable pattern or practice of delay because its procedures are not published "runs counter to the language of the statute and relevant case law." This analysis is not changed by the "complexity and sensitive nature of the documents at issue." Furthermore, defendant has not claimed that exceptional circumstances have prevented it from responding to plaintiff's requests in a timely manner. Plaintiff's motion for an injunction enjoining future similar delays by the Department of Energy is granted; the parties are ordered to confer on a schedule for the processing of pending requests and future requests.

5. Barbosa v. DEA, No. 07-1052, 2008 WL 833103 (D.D.C. Mar. 28, 2008)

Re: Records regarding alleged DEA informant

• Exemptions 6 & 7(C): DEA's use of a "Glomar" response, refusing to confirm or deny the existence of responsive records, was appropriate. Plaintiff requested law enforcement records on an individual he alleged was a DEA informant, but plaintiff did not provide a waiver from this individual or proof of his death. "Plaintiff has not demonstrated that an overriding public interest warrants
disclosure. . . ."

• Exclusion (c)(2): Though not an issue raised by either party, plaintiff's apparent claim that the subject's alleged informant status has been officially confirmed warrants consideration of whether this exclusion applies. "[P]laintiff has not provided any documentation from his criminal trial record that even suggests official confirmation" of the subject of the request "as an informant." Thus, DEA "could have properly treat[ed] the records as not subject to the [FOIA's] requirements."

6. White v. Nicholson, No. 79-1426, 2008 WL 821710 (D.D.C. Mar. 28, 2008)

Re: Agent Orange Program Guide (AOPG)

• Procedural: The AOPG did not announce a binding, substantive rule. "Neither the language nor the context of the AOPG suggests that it was intended to establish a binding rule of decision." There was no showing that agency officials were required to act in accordance with the AOPG. As such, plaintiffs' claim that the VA violated the FOIA's (a)(1) Federal Register publication requirement is denied.

7. Mauldin v. United States, No. 07-0496, 2008 WL 821523 (M.D. Tenn. Mar. 27, 2008) (adoption of magistrate's recommendation)

Re: Records related to Pre-Sentence Investigative Report

• Proper party defendant: The United States Probation Office is part of the Judicial Branch. It is not an "agency" for purposes of the FOIA and is thus not subject to the FOIA's requirements.

8. Peterson v. Prosser, No. 08-4005, 2008 WL 835728 (N.D. Iowa Mar. 25, 2008)

Re: Claims against local police official

• Proper party defendant: State and local agencies and officials are not subject to the federal FOIA.

• Damages: "[T]here is 'no private right of action for money damages under FOIA.'"

9. O'Neill v. DOJ, No. 05-0306, 2008 WL 819013 (E.D. Wis. Mar. 25, 2008)

Re: Reports written by ATF special agents

• Litigation considerations: Plaintiff did not file a response to DOJ's proposed findings of fact. Therefore, the Court must accept DOJ's findings as undisputed unless specifically contradicted by plaintiff's own proffered affidavits submitted in support of his motion for summary judgment.

• Exemption 7(C)/public domain: Plaintiff claims that ATF's withholding of two documents was improper because the documents have entered the public domain through being introduced at trial. Plaintiff bears the initial burden of production on such a claim. In fact, "[t]he undisputed evidence . . . reveals that neither [document] was entered into evidence in plaintiff's criminal case. Further, there is no evidence before the court suggesting that these documents were read into the record in their entirety." Indeed, "the uncontested evidence shows that unredacted versions of [the documents] were not made public in the instant case." Because of this, ATF's decision to withhold portions of these documents was appropriate.

• Pattern and practice: Plaintiff alleges that ATF has a pattern and practice of violating the FOIA by failing to conduct adequate searches by not contacting agency personnel with a nexus to the documents. However, he "has not pointed to any written, generally applicable FOIA guideline setting forth the alleged improper policy. In addition, there is no evidence that the plaintiff submitted substantially identical requests to the ATF for documents and received substantially identical responses which would support the existence of a crystallized policy or practice by way of repeated specific conduct." Further, "[t]he evidence in this case shows that the ATF's decision to contact agency personnel is made on a case-by-case basis, as opposed to a blanket policy against contacting agency personnel as suggested by the plaintiff." Therefore, plaintiff has failed to show that "ATF had a policy of violating the FOIA, [and so] his claim is not ripe for judicial review."

• Judicial notice: Plaintiff's motion to have the court take judicial notice of the sections of the Code of Federal Regulations that are relevant to his "pattern and practice" claim is granted.

WEEK OF APRIL 7

1. Kelly v. FAA, No. 07-00634, 2008 U.S. Dist. LEXIS 28505 (E.D. Cal. Apr. 8, 2008) (magistrate's recommendation)

Re: Records relating to hiring of Designated Pilot Examiners (DPEs) by FAA

• Exemption 2: FAA properly invoked "high" 2 to withhold a grading sheet used to rank DPE applicants. "[I]f an applicant could discover the ranking methods used on the grading sheet, it would provide a route to circumvent the regulatory requirements by allowing embellishment of the applicant's experiences to match those treated most favorably by the grading sheet. The government argues persuasively that circumvention puts aviation safety at risk because DPEs perform the practical tests that are 'aviation safety's first line of defense' against accidents."

2. O'Neill v. DOJ, No. 06-0671 (E.D. Wis. Apr. 7, 2008)

Re: First-party request

• Litigation considerations: Plaintiff's motion to reopen his case against the FBI is denied. "The defendant in this case is the FBI, not the entire federal government." If "EOUSA, rather than the FBI," has the requested records, plaintiff "will have to file a new action against the proper defendant regarding the appropriate FOIA request."

3. Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, No. 08-01023, 2008 WL 920469 (C.D. Cal. Apr. 4, 2008)

Re: Records related to communications with Members of Congress or telecommunications carriers concerning amendments to Foreign Intelligence Surveillance Act (FISA)

• Expedited processing: Plaintiff's motion for a preliminary injunction is granted. Defendants have agreed that plaintiff's requests are entitled to expedited processing, but defendants have failed to complete their processing within the FOIA's statutory deadline, and have not demonstrated that compliance would be "impracticable." Moreover, "[t]he Court finds . . . that irreparable harm exists where Congress is considering legislation that would amend the FISA and the records may enable the public to participate meaningfully in the debate over such pending legislation." Furthermore, "[t]he Court finds that the public interest favors the requested relief."

4. Adamowicz v. IRS, No. 06-3919, 2008 WL 918699 (S.D.N.Y. Mar. 31, 2008)

Re: Audit records

• Personal knowledge requirement: Because defendant's declarant is only attesting to the reasons for the final decisions to withhold documents from plaintiffs, the declaration must only demonstrate that the declarant was personally familiar with the documents themselves, "which she indisputably [was]." Similarly, a declaration submitted by an individual with supervisory responsibility over those who conducted IRS's search was sufficient. There is no requirement that an agency prepare an affidavit "'from each individual who participated in the actual search.'"

• Litigation considerations: There is "no support" for plaintiffs' claim that the IRS waived its right to invoke Exemption 5 for some of its withholdings by not raising the exemption at the administrative level or in its first responsive filing. "[T]he failure to raise an exemption prior to an adverse determination does not give rise to waiver."

• Adequacy of search: IRS's declaration "is sufficiently specific and . . . the search it describes was reasonably calculated to return all the documents responsive to Plaintiffs' FOIA request."

• Scope of request/duty to search: IRS properly interpreted plaintiffs' request. Since plaintiffs requested records pertaining to their audit examination, IRS reasonably did not include records pertaining to plaintiffs' appeal of the initial audit determination.

• Exemption 3: The Court finds that IRS properly withheld records whose disclosure would reveal taxpayer "return information" concerning third parties. Plaintiffs claim that the withheld information does not constitute "'return information' because there is no allegation that it was collected 'with respect to a return' of the relevant third-parties." However, the "more plausible" reading of the relevant Exemption 3 statutes suggests that "the specifically identified information, if in the hands of the IRS at all, is categorically sheltered from disclosure, regardless of whether it was collected 'with respect to a return.'"

• Exemption 5: The Court finds that IRS's declaration and Vaughn Index do not provide sufficient specificity to determine whether IRS's use of the deliberative process privilege to protect handwritten notes taken by one of its agents was appropriate. The Court is unable to determine whether any of the notes "describe[] non-privileged 'factual matter' or the degree to which any given note is 'merely peripherally' related to policy formation. Indeed, the Government's offering with respect to the first category of withheld documents reveals nothing at all about the information withheld but instead only discusses the documents on which those notes are located." The IRS declaration which asserts that documents withheld pursuant to the attorney work-product privilege were prepared by agency attorneys in connection with Tax Court litigation, is sufficient to establish that IRS's use of that privilege was appropriate. Conversely, IRS has not provided enough information to confirm that it appropriately used the attorney-client privilege. IRS has not established that the withheld information actually reflects attorney-client communications, nor has it established that the withheld information does not constitute agency working law that is "'applied routinely as the government's legal position in its dealings with taxpayers.'"

• Exemption 7(C): IRS appropriately invoked Exemption 7(C) to withhold personal information concerning IRS agents and other third parties. Plaintiffs claim that the information should be released because of its connection to alleged wrongdoing by IRS agents, but they have "offer[ed] nothing beyond their own unsupported allegations of improper use of taxpayer information. . . . Such a speculative public interest is not sufficient to overcome the real privacy interests of individual taxpayers." Similarly, plaintiffs' speculations are not enough to "outweigh the particularly strong privacy interests of law enforcement personnel."

• Exemption 7(D): IRS's declarations, which attest that an individual provided information to the IRS after receiving explicit assurances of confidentiality, were sufficient to show that IRS's use of the exemption was appropriate.

5. Hersh & Hersh v. HHS, No. 06-4234, 2008 WL 901539 (N.D. Cal. Mar. 31, 2008)

Re: Records concerning corporate plea agreements

• Personal knowledge requirement: Plaintiff's objection to HHS's declaration is overruled. There is no requirement that defendant's declarant have personally conducted the search for responsive records. Furthermore, defendant's declaration incorporates the accompanying Vaughn Index, which supplies additional rationales for defendant's withholding decisions. Plaintiff's claim that defendant cannot rely on information provided in a declaration supplied by an intervenor is incorrect where the intervenor was the original source of the withheld documents. Plaintiff has also provided no evidence to support its allegations of bad faith in the declarations of either defendant or the intervenor. There is no evidence that the declarations attest to things which are untrue, nor is there evidence of unreasonable delay.

• Exemption 4: HHS properly invoked this exemption to withhold information it received from the intervenor as part of a corporate integrity agreement. Participation in such an agreement is voluntary, and much of the information submitted by participants is proprietary or confidential. If such information were released, companies would be reluctant to provide complete disclosure of information to the government as part of these agreements, thereby impairing the government's ability to obtain such information in the future. To the extent that any of the withheld information is already available, it is through an inadvertent disclosure by defendant, and therefore does not provide a basis for "a waiver argument."

• Exemption 6: The Court finds that HHS's use of this exemption to protect the names and business contact information of some of intervenor's employees was inappropriate. Release of the names, signatures, and business contact information of intervenor employees would help ascertain the intervenor's compliance with the terms of its agreement with HHS. This public interest is enough to outweigh the "not strong" privacy interest in release of business information pertaining to these private sector employees.

• Waiver/inadvertent release: Documents that defendant inadvertently disclosed to plaintiff, but which it has made consistent and repeated efforts to have returned, must be returned to defendant. It is clear that defendant sought the return of these documents as soon as it became aware of the inadvertent disclosure. Any such documents filed in the public docket by plaintiff are ordered withdrawn from the docket.

WEEK OF APRIL 14

1. Judicial Watch, Inc. v. FBI, 07-5158, 2008 WL 996103 (D.C. Cir. Apr. 11, 2008)

Re: Request for videotapes of 9/11 terrorist attacks

• Attorney fees: An agreement between the parties -- approved and signed by the district court -- that the FBI will produce requested videotapes by a specific time is sufficient to make plaintiff a "prevailing party" for purposes of fee eligibility. Because plaintiff is therefore eligible for attorney fees even under the Buckhannon standard, the Court need not address the question of whether the recently enacted amendments to the FOIA (which re-establish the "catalyst theory" standard for attorney fees eligibility) should apply to cases which were pending at the time the amendments were enacted. The case is remanded to the district court for a determination on plaintiff's fee entitlement.

2. Nw. Coal. for Alternatives to Pesticides v. EPA, No. 07-5116, 2008 U.S. App. LEXIS 7732 (D.C. Cir. Apr. 8, 2008) (unpublished disposition)

Re: Requests for "substantiation comments"

• Attorney fees: The district court's ruling is affirmed. An order from a court that required EPA to explain what was withheld and why did not make plaintiff a "prevailing party" for purposes of FOIA's fee shifting provision.

1. In Def. of Animals v. NIH, No. 04-1571, 2008 WL 1708413 (D.D.C. Apr. 14, 2008)

Re: Records related to Alamogordo Primate Facility (APF) and chimpanzees housed there

• Exhaustion: Plaintiff has exhausted its administrative remedies. NIH did not notify plaintiff of its right to file an administrative appeal from NIH's initial response until after its third and final release and plaintiff had filed suit. NIH's previous correspondence to plaintiff, in which NIH told plaintiff that it could inform NIH "'[i]f you feel that any material has been omitted that should have been made available," in which case NIH would "consult" with its agency FOIA officer, "does not meet the notice requirement as set forth in 5 U.S.C. § 552(a)(6)(A)(I)." Plaintiff's nonpayment of fees is not a bar to judicial review because plaintiff filed a timely appeal of NIH's denial of a fee waiver.

• Adequacy of search: "Defendants have advanced no justification of any kind in this case" for their choice of the date NIH's search began as the cut-off date for the search "other than relying on unspecified agency policy." NIH "never contest[ed]" plaintiff's allegation that this choice of cut-off date was unreasonable. NIH also failed to inform plaintiff of its chosen cut-off date. Therefore, NIH will be required to utilize a cut-off date not earlier than the date of the order accompanying this opinion, and to inform plaintiff of the date it chooses.

• Agency records: Medical records concerning the chimpanzees housed at the APF are agency records and must be processed, despite the fact that the day-to-day operations of the APF are under the control of a private contractor in a facility owned by NIH. NIH owns the APF and the records maintained there have been "obtained" by the agency. Furthermore, NIH "owns" the relevant files and can access them. The Court will not order NIH to search for and produce records from plaintiff's "other subject categories" merely on the basis of an unsupported assertion by plaintiff that these records are also "likely" kept at the APF.

• Exemption 4: Incentive payments paid by NIH to its contractor, though negotiated between the parties, do not qualify as information "obtained from a person," and are therefore not eligible for protection under Exemption 4. NIH has not demonstrated that the contractor, rather than the agency, was the source of this information. NIH has dropped its claim of Exemption 4 to protect the answers given by its contractor in response to questions posed by NIH's Technical Review Group.

• Exemption 5: The deliberative process privilege does not protect the incentive payments or the question answers submitted by the contractor. As to the former, "'these fixed, dollar amount numbers do not reflect'" the agency's deliberative process. Additionally, the disclosure of this information to an outside party bars the application of Exemption 5. Similar considerations preclude the use of Exemption 5 to protect the answers supplied by the contractor.

• Exemption 6: Exemption 6 cannot be used to protect information including the square footage of the APF, daily animal inventories, floor plans and wiring diagrams, and locations of animals and animal records. NIH claims that release of this information could be used to harass animal care workers, but it has not been able to show that release would "disclose any personal, individualized information such that Exemption 6 would properly apply."

• Segregability: On two documents where NIH has properly withheld information, NIH has not fulfilled its duty to segregate out releasable information and must disclose additional information.

• Fee waiver: Plaintiff is entitled to a fee waiver. "[T]he subject matter of the requested documents relates to the activities and operations of the NIH." Plaintiff has shown that release of the requested information will "'shed light on the NIH's oversight and management of the care of the chimpanzees at the APF.'" Plaintiff has also demonstrated its ability to disseminate the requested information to a sufficiently large audience through the use of its newsletters, its network of media contacts, and its web site, which receives more than 1.6 million visits per month. NIH has not shown that the requested information is already generally available to the public. "[E]ven if some of the requested information is available to the public upon request, courts have been reluctant to treat information that is technically available, through a reading room or upon a FOIA request, as part of the public domain." Plaintiff's dissemination goals are far more ambitious than NIH's. Furthermore, "the Court is unconvinced by Defendants' statement that disclosure would not reveal any meaningful information about government operations or activities that is not already public knowledge."

• Referral: Documents referred by NIH to the Air Force have now been released. Therefore, plaintiff's claim that this referral caused improper delay is now moot.

2. In Def. of Animals v. NIH, No. 04-1571, 2008 WL 1708388 (D.D.C. Apr. 14, 2008)

Re: Records related to Alamogordo Primate Facility (APF) and chimpanzees housed there

• Motion for reconsideration: The Court's March 31, 2007 Order was not a final decision because it imposed an additional requirement upon NIH to search for and release records. Because of this, FRCP 54(b) provides the appropriate basis under which to consider NIH's motion for reconsideration. "The Court has broad discretion to hear a motion for reconsideration brought under Rule 54(b)," but "there must be a 'good reason' underlying the parties' re-addressing an already decided issue."

• Agency records: The records housed at the APF are agency records. NIH owns the APF and owns the chimpanzees housed there as well as the animals' clinical records, records which are critical for care of the animals. Though NIH's contractor maintains the animals' records, these files "are subject to onsite inspection by NIH." NIH has offered no basis upon which the Court can conclude that its prior holding was in error.

• Exemption 2: NIH has provided no factual basis for its allegation that records related to the APF building are used solely for internal purposes. NIH has not shown that the information is trivial, especially in light of plaintiff's claim that the information is "crucial" in light of concerns over the care and treatment of animals at the facility. NIH's circumvention argument also fails. The agency has not shown that the withheld information is in fact "'essentially a blueprint'" of the APF, nor has it shown any connection between release of the information and possible criminal activity. "NIH does not explain how the requested information could lead to criminal activities; instead, it references a fire and several other criminal activities that have occurred at other locations not involving Plaintiffs."

• Exemption 4: NIH has provided no basis to support its claim that release of information provided to NIH by its contractor in response to questions from NIH would subject the contractor to substantial competitive harm. NIH has not shown "what it means by 'cost and rate information'" that would be released, nor how release of such information "could be used by competitors to cause substantial competitive harm to [the contractor]."

• Exemption 6: NIH has provided no basis for the Court to conclude that its prior ruling, that information related to the APF building itself could not be protected under Exemption 6 because it does not relate to "any particular individual," was in error.

3. Kozacky & Weitzel, P.C. v. United States, No. 07-2246, 2008 U.S. Dist. LEXIS 29779 (N.D. Ill. Apr. 10, 2008)

Re: Documents related to IRS decision to perform audit

Vaughn Index: Though there is no per se rule requiring the use of a Vaughn Index, IRS's categorical descriptions of documents withheld was insufficient.

• Discovery: "The history of the case suggests that the IRS may have made a less-than-diligent effort to respond to [plaintiff's] FOIA requests." Because of this, IRS will be required "to answer those interrogatories that are directed to the adequacy of its search." However, most of plaintiff's proposed interrogatories "go beyond the scope of what is appropriate;" IRS will only be required to respond to those which "may help illuminate whether the IRS has done what FOIA requires."

• Exemption 3: The Court finds that defendant's declaration is "too curt" in its justification of the use of this exemption to allow the Court to determine if the withholdings were proper. IRS's treatment of one of the withheld documents (which the Court read in its entirety) calls into question "whether the IRS has, with regard to the other documents involved in this case, done what FOIA requires." IRS must submit a Vaughn Index in order to better explain its withholding decisions, as well as to address its segregability obligations.

• Exemption 5: Defendant's declaration does not provide enough information to enable the Court to ascertain whether documents that were unreviewed draft outlines of points for consideration withheld pursuant to the deliberative process privilege were both predecisional and deliberative. IRS must provide additional information in support of this exemption as well as to address its segregability obligations.

• Segregability: The Court finds that IRS's "generalized blanket statement" concerning all the documents at issue is inadequate.

4. The Los Angeles Gay & Lesbian Cmty. Services Ctr. v. IRS, No. 06-6122 (C.D. Cal. Mar. 12, 2008)

Re: Records related to application for tax-exempt status

• Attorney fees: Plaintiff is eligible for and entitled to an award of attorney fees. Release of the requested records, which document plaintiff's attempt to become the first openly gay organization to receive tax-exempt status, serves a public benefit. Defendant's claim that there is no such benefit because its initial denial "merely reflected" contemporary animus towards homosexuals "hardly warrants response." If anything it is precisely documenting plaintiff's struggles against such attitudes that provide a benefit to the public. Nor does the availability of other documents which detail the fact that the IRS "imposed unusual restrictions on homosexual groups that sought tax-exempt status . . . diminish the public benefit conferred by documentation of Plaintiff's treatment." Plaintiff's treatment by the IRS "has unique historical significance." Additionally, "Defendant's success in finding responsive documents is not as limited as it suggests." And, "even if the production was limited, Plaintiff's legal action had public benefit in that it enforced Defendant's compliance with FOIA with regard to a search of public value." It is also clear that "Plaintiff received no commercial benefit from this action." As to the amount of the award, the Court disagrees with defendant's claim that the amount plaintiff seeks is out of proportion to the result, in which defendant only produced twenty-nine pages of responsive records. Not only did plaintiff "prevail[] in full," but "the pages produced - though small in number - contained valuable information." The IRS "cannot put Plaintiff through the time and expense of enforcing compliance with FOIA and then complain that the resources expended were out of proportion to the good obtained." Additionally, "Defendant's objection that Plaintiff did not utilize attorneys familiar with the IRS and FOIA is not well-founded." As to the calculation of hourly rates, the rates suggested by plaintiff "appear to be on the high side of reasonable." The Court also finds that "Plaintiff's counsel has established the requisite degree of skill and experience" for the hourly rates it is charging. However, certain "block bills" were excessive and must be reduced by twenty percent. Similarly, further reductions are in order for fees claimed for certain "relatively simple" tasks. Plaintiff is entitled to $240,000 in fees and $2,2516.10 in costs.

WEEK OF APRIL 21

1. Canaday v. U.S. Citizenship and Immigration Services, No. 08-158, 2008 WL 1780172 (D.D.C. Apr. 21, 2008)

Re: USCIS Central Office correspondence files

• In camera review: Upon inspection of the withheld documents, the Court orders USCIS to release material from six pages previously withheld.

• Exemption 5: USCIS's use of the deliberative process privilege was proper. All documents withheld under this exemption and privilege were "purely internal, predecisional documents that reveal the thought processes of the decisionmaker(s) who wrote them."

• Exemption 6: USCIS properly invoked Exemption 6 to withhold the names of certain federal employees. "The Court agrees that there is a privacy interest in the identifying information of the Federal employees even though the information may have been public at one time." Release of this information "would not shed any light on the workings of USCIS." USCIS also appropriately withheld some (though not all) information relating to "'potentially excludable aliens,'" including medical information. "There is an obvious privacy interest in medical information," however some of the withheld information "is general enough that it cannot be said to identify the particular alien at issue. Moreover, the release of such information sheds light on how the agency carried out its obligations under the law." This information, which was evaluated in camera, must be released.

2. Francis v. Federal Bureau of Investigations, [sic] No. 06-0968, 2008 WL 1767032 (E.D. Cal. Apr. 16, 2008) (magistrate's recommendation)

Re: Records related to disappearance of plaintiff's brother

• Proper request: A letter to an agency which asks the agency to identify an individual from a picture "is not a proper FOIA request." Responding to this inquiry "would involve speculation and opinion rather than identification of specific documents. 'FOIA does not require agencies to provide explanations or answers in response to questions disguised as FOIA requests or to create documents or opinions in response to an individual's request for information.'"

• Exhaustion: The Court finds that plaintiff's request for a fee waiver should not be dismissed for failure to exhaust administrative remedies. "Where the agency provides a response to the FOIA request rather than substantively addressing a request for fee waiver, the exhaustion requirement may be waived. . . . Given the FBI's failure to address Plaintiff's contention that he could not afford copying costs and instead providing a substantive response to his FOIA request, the Court finds that requiring Plaintiff to pay the fees would be futile." In this case, "requiring Plaintiff to exhaust the fee issue would not provide the Court with additional factual information relating to Plaintiff's actual claim. Nor would the Court be interfering with the FBI's process, as it appears the FBI has already passed on the opportunity to decide a waiver of fees when it provided documents to Plaintiff."

WEEK OF APRIL 28

1. Benavides v. USMS, No. 07-1232, 2008 WL 1869014 (D.D.C. Apr. 28, 2008)

Re: Records pertaining to agreements between USMS and prison contractor

• Proper party defendant: USMS's contractor is a private entity, and is therefore not subject to the FOIA.

• Litigation considerations: Plaintiff's failure to respond to defendant's dispositive motion means that defendant's factual assertions are taken as admitted.

• Adequacy of search: USMS's declaration establishes that its search for responsive records was adequate.

• Exemptions 2 & 7(C): These two exemptions "appear to have been appropriately asserted and have not been disputed by the plaintiff."

2. Antonelli v. ATF, No. 04-1180, 2008 WL 1849839 (D.D.C. Apr. 28, 2008)

Re: First and third-party requests

• Exhaustion: "[P]ayment or waiver of assessed fees or an administrative appeal from the denial of a fee waiver request is a prerequisite to filing a FOIA lawsuit in . . . district court." Therefore, "plaintiff's failure to pay fees to which he had agreed 'within 30 days of the [billing] date' provided an adequate basis for defendant to require payment 'before [beginning] to process a new request or [continuing] to process a pending request from that requester.'" Plaintiff's failure to pay previously owed fees before commencing this litigation entitles defendant to summary judgment on all claims arising from plaintiff's non-payment of fees, notwithstanding plaintiff's alleged payment of fees "some three years" after the current litigation was under way.

• Exemption 3: EOUSA properly withheld "'a form that pertains to securing a third party individual witness' testimony before a grand jury, and discusses the anticipated testimony to be elicited therefrom'" pursuant to Federal Rule of Criminal Procedure 6(e). Grand jury materials may be withheld where their release would "'tend to reveal some secret aspect of the grand jury's investigation.'"

• Exemption 5: EOUSA appropriately invoked the attorney work-product privilege to withhold communications from an Assistant United States Attorney to the Bureau of Prisons made in anticipation of litigation. The withheld documents "'discussed litigation strategy'" and were properly withheld in full. Furthermore, EOUSA's use of this privilege as an additional basis for withholding the grand jury materials withheld under Exemption 3 was also proper.

• Exemption 7(C): EOUSA invoked Exemption 7(C) to withhold two pages of documents referred to it by the Parole Commission. However, the Court finds that EOUSA's declaration fails to establish that the records were compiled for law enforcement purposes, or that the "requisite harm" would occur if they were disclosed. Because plaintiff's failure to pay fees is not related to these referred records, the Court's ruling on the fees issue does not preclude it from ruling on defendant's use of this exemption.

3. Roberts v. Hood, No. 06-272, 2008 U.S. Dist. LEXIS 34448 (E.D. Tex. Apr. 28, 2008) (adoption of magistrate's recommendation)

Re: Records pertaining to BOP incident report involving plaintiff

• Exhaustion: Though BOP failed to respond to plaintiff's request within twenty business days, it did respond to plaintiff prior to plaintiff's filing of his suit. This action by BOP reimposed upon plaintiff his obligation to file an administrative appeal in order to exhaust his administrative remedies. Plaintiff's argument that he was prevented from appealing because he did not receive BOP's response until after his time to file an administrative appeal had lapsed is unavailing. "Given the circumstances, it is possible that petitioner would have been granted an extension of time to appeal. Even if the appeal was rejected as untimely, petitioner's request for records would have been exhausted because it would have been presented to the head of the agency for review."

4. Jones v. IRS, No. 06-322, 2008 U.S. Dist. LEXIS 34148 (W.D. Mich. Apr. 25, 2008)

Re: Tax return information

• Adequacy of search: IRS's affidavits establish that it "carefully considered each of [plaintiff's] requests for information, searched IRS sources using methods reasonably likely to yield the requested information, and responded thoroughly to his requests."

• Exemptions 3, 6, & 7(C): IRS's withholding of an employee's "Pocket Commission" was appropriate under all three of these exemptions. (The relevant Exemption 3 statute is 18 U.S.C. § 701, which prohibits reproduction of government employee identification badges.)

5. Stephanatos v. United States, No. 06-781, 2008 WL 1851769 (Fed. Cl. Apr. 21, 2008)

Re: Information concerning plaintiff contained in his tax returns

• Jurisdiction: The Court lacks jurisdiction over plaintiff's claim for damages arising from the government's alleged failure to remove erroneous information concerning plaintiff from his file. The Court of Claims lacks jurisdiction over tort claims, and the FOIA does not create a right to collect money damages.

6. Nuclear Watch New Mexico v. U. S. Dep't of Energy, No. 06-221 (D.N.M. Sept. 19, 2007)

Re: Ten Year Comprehensive Site Plans for Los Alamos National Laboratory

• Procedural matters: The Court finds that "[g]iven [DOE's multi-tiered review] process, it is not surprising that Plaintiff received its first response more than 17 months after the initial FOIA request. This makes a mockery of the 20-day target set by the Act and violates congressional intent." The Court further finds that defendant has "offer[ed] no rationale" for the "multi-layered, cross-country process" it employs. Furthermore, its claim that the delays caused by its review process do not constitute a "pattern and practice" of unlawfully withholding agency records because its procedures are not written down is unconvincing. "[T]he fact that a citizen's FOIA request is not dealt with in a timely fashion based on an unpublished process of multiple layers of bureaucracy does not insulate it from judicial scrutiny." DOE has not claimed that "exceptional circumstances" prevent it from processing these requests in a more timely fashion. (posted 5/12/2008)

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