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

September 17, 2008

FOIA Post

Summaries of New Decisions -- August 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 August 2008.

WEEK OF AUGUST 4

1. Antonelli v. BOP, No. 07-2016, 2008 WL 2959931 (D.D.C. Aug. 4, 2008)

Re: Third-party request

• Summary judgment/res judicata: Plaintiff's motion for summary judgment against defendants Immigration and Customs Enforcement (ICE) and United States Marshals Service (USMS) based on their alleged "blatant and flagrant violation of the statutory time limits of the FOIA" is denied. As to defendant ICE, "[p]laintiff has not established his entitlement to judgment . . . because the underlying claim is not based on an original FOIA request made to ICE to trigger the statutory time limits." Plaintiff's claim against defendant USMS is barred by res judicata "because the current claim stems from [an] earlier related case in which the Court had granted summary judgment to the Marshals Service based on plaintiff's non-payment of the processing fee . . . . Thus, to the extent that plaintiff had an issue with the timing of the Marshals Service's processing of his request, he should have raised it in the prior action. Besides, the Marshals Service's subsequent release of records [after receipt of fees] negates the timing issue."

• Exhaustion: Plaintiff claims that he filed an administrative appeal of his request to defendant USMS with the Office of Information and Privacy (OIP), "'appeal[ing] the delay by USMS'" and that he also "'asked OIP to reopen his appeal 05-1520.'" OIP's declarant has asserted that OIP has no record of having received such an appeal, and further notes that appeal 05-1520 was not an appeal from an action taken by defendant USMS. "In the absence of any evidence contradicting the Marshals Service's evidence that it did not receive plaintiff's administrative appeal of the release determination at issue, the Court concludes that the Marshals Service is entitled to judgment as a matter of law on [this count], based on plaintiff's failure to exhaust administrative remedies."

• Exemption 2: Defendant ICE properly withheld a "file number used for indexing, storing, retrieving and distributing information in investigative files, as internal information of no genuine public interest." ICE's use of Exemption 2 to protect an employee's direct phone number was also acceptable, due to the risk of harassing phone calls, which "would thereby inhibit the ability of ICE to carry out its statutory and regulatory responsibilities."

• Exemption 7(C): ICE appropriately withheld the names of two law enforcement agents. Such "third-party information contained in law enforcement files is 'categorically exempt' from disclosure under exemption 7(C), in the absence of an overriding public interest in its disclosure." The Court noted that "[p]laintiff has not disputed ICE's assertions."

2. Gov't Accountability Project v. HHS, No. 07-1702, 2008 WL 2952212 (D.D.C. Aug. 4, 2008)

Re: Clinical study data concerning drug Ciprofloxacin (Cipro)

Open America: Defendants' motion for a stay until August 15, 2009, in order to complete the processing of plaintiff's request is denied. The court finds that "defendant have failed to demonstrate exceptional circumstances and due diligence sufficient to justify the stay." Defendants are required to file a status report with the court by September 5, 2008, detailing the status of plaintiff's request, including where it stands in the queue, "so that the court can set an appropriate processing schedule." Defendants have actually experienced a significant decrease in the number of incoming requests, and have not shown that these requests are necessarily more complex (and therefore require greater effort to process) than the requests defendants have received in the past. Thus, defendant cannot claim that it has been "deluged" with requests. Furthermore, the time taken by defendant in posting more of its records on the Internet (an undertaking which it claims accounts for some of the reduction in number of requests) only establishes that defendants' workload has been, at most, roughly similar to that of past years. Recent cases in which courts have denied Open America stays to defendants under "strikingly similar" circumstances are "highly persuasive." Though defendant DIDP is faced with an increase in requests for documents from Congress, this increase has been ongoing since 2004, and therefore "Congressional requests appear to be more of a predictable agency workload than a deluge of unanticipated responsibility." Similarly, defendants have not been able to establish that their recent litigation workload represents "an unpredictable agency workload, or that DIDP's resources were insufficient to handle the work." Defendant's claim that it faces a greatly increased workload due to increased responsibilities imposed by the Food and Drug Administration Amendments Act of 2007 (FDAAA) is unavailing. Defendant has not shown that the new requirements "represent a current tax on its resources." Furthermore, the record shows that "defendant DIDP's staffing level has increased dramatically over the past five years." The court also finds that although defendant "is exercising due diligence processing FOIA requests, as a general matter," with regard to this request, "defendants' conduct . . . cannot be described as a model of due diligence."

3. Battle-El v. VA, No. 07-2376, 2008 U.S. Dist. LEXIS 58941 (S.D. Cal. Aug. 4, 2008)

Re: First-party request

• Exhaustion: "Plaintiff has not alleged that he made a FOIA request for records. In the absence of a request for records, the agency has no duty to produce records and there can be no records improperly withheld by defendants. Because plaintiff has not exhausted his administrative remedies, the Court will dismiss this case without prejudice."

4. Wolf v. CIA, No. 01-0729, 2008 WL 2937561 (D.D.C. July 30, 2008)

Re: Records related to Jorge Eliécer Gaitan (assassinated Colombian presidential candidate)

• Adequacy of search: CIA's declarations "'explain in reasonable detail the scope and method of the search conducted by the agency [sufficient] to demonstrate compliance with the obligations imposed by the FOIA.'" The Court stated that "the CIA's decision to not disclose the names of the databases it searched does not render its description of its search inadequate." CIA also has shown that it performed an adequate search of its operation files for responsive records; its demonstration of this moots plaintiff's complaint that such files were not searched. The court further finds that CIA has established that requiring it to search its microfilm records for responsive material would be unduly burdensome. Such a search "would take approximately 3675 hours." Furthermore, "[e]ven if the CIA undertook such a task, due to the CIA's past record retention practices, it is possible that none of the reports were retained." Plaintiff is not entitled to discovery on the issue of defendant's search "because [he] has not rebutted the presumption that [CIA's] affidavits are adequate nor shown that the CIA conducted its search in bad faith."

• Litigation considerations: Plaintiff's motion to join the National Archives (NARA) as a defendant is denied. Such an amendment to plaintiff's complaint "would result in a 'radical' change to the 'scope and nature' of this litigation." If plaintiff wishes to file a separate claim against NARA, he is free to do so.

5. Sussman v. DOJ, No. 03-3618, 2008 WL 2946006 (E.D.N.Y. July 29, 2008)

Re: First-party request

• Adequacy of search: "[T]he government's search was adequate and Plaintiff has made no showing of bad faith."

• Exemptions 2 & 7(E): "[O]n the present record the Court cannot determine whether disclosure of the name of the investigation [as opposed to a description of the technique used in this type of investigation] would risk circumvention of the law." In camera review is required.

• Exemption 5: Upon in camera review, the court finds that defendant TSA's use of Exemption 5 to withhold a draft response letter as well as a draft policy position was proper. "Preliminary drafts to proposed responses are exempt under the FOIA because 'the information in draft form represents the personal opinion of the author, not yet adopted as the final position of the agency.'" The draft policy "was drafted to assist in making a final decision and was part of the process by which a policy was formulated." Release of this document "would expose the public to elements of the deliberative process that occurred as the TSA developed policies for composing watchlists as the policy went through rounds of edits -- exactly the outcome that Exemption 5 was intended to protect against." The final policy adopted by TSA is not the same as the draft policy, and does not reference the draft policy, therefore there can be no claim that the draft policy was adopted or incorporated by the agency.

• Exemption 7(C): Defendants withheld identifying information concerning third parties involved in possible criminal activity, as well as information about the activities themselves. Plaintiff does not seek the former, and defendants do not adequately address the latter. "The Court in [sic] unable to determine on the present record whether the information that is subject to disclosure is so inextricably intertwined with properly exempt information that redaction would be burdensome or that the redacted document would be unintelligible." In camera review is required.

WEEK OF AUGUST 11

1. Berger v. IRS, No. 07-2796, 2008 WL 3286782 (3rd Cir. Aug. 11, 2008) (unpublished disposition)

Re: First-party request

• In camera review: The district court did not abuse its discretion by choosing not to review the withheld documents in camera. "In camera review . . . should not be resorted to 'routinely' and is unnecessary if agency affidavits or other showings are specific."

• Exemption 6: The court finds that time records of an IRS officer who investigated plaintiff are protected by Exemption 6. The officer "has a privacy interest in her records as a whole because they are a personal recording of how she spent her time at work." Disclosure of this information "would not 'contribute significantly' to the public understanding of the operations of the IRS." Rather, "disclosure of her records would only serve appellants' narrow interest in knowing how she investigated their particular case."

1. Keys v. DHS, No. 07-465, 2008 WL 3271985 (D.D.C. Aug. 11, 2008) (magistrate's Statement of Reasons in compliance with remand order)

Re: First-party request

• Procedural matters: Defendant DHS's decision to refer documents to their originating agencies was proper. "[T]he Court accepts Defendant's representations that the Secret Service believed that the information contained in these documents originated with other agencies." DHS's referral of documents to the United States Marshals Service (USMS) did not have "the net effect of significantly impairing Plaintiff's ability to obtain [his] records." The court finds that though the Executive Office for United States Attorneys (EOUSA) responded promptly to the referral from DHS, that neither it nor DHS has sufficiently defended EOUSA's withholding decisions. Further, DHS has not explained why plaintiff would be required to file an additional request in order to receive 120 pages of public records which were part of the referral to EOUSA. DHS's referral of documents to the FBI did not "result[] in an improper withholding," in spite of an initial processing error by the FBI which it later corrected "because, aside from this limited redaction, the FBI responded to Plaintiff in a prompt manner." DHS's referral to the Court Services and Offender Supervision Agency (CSOSA) constituted an improper withholding because "'the net effect' of the referral was to significantly increase[] the amount of time plaintiff had to wait to receive a response to his FOIA request." DHS did not verify whether or not CSOSA had responded to plaintiff; CSOSA eventually determined that the referral had been improper and returned the documents to DHS. DHS's referral to the Bureau of Prisons (BOP) also constituted an improper referral because of the length of time BOP took to respond to plaintiff. However, all documents referred to BOP have now been released. DHS properly withheld plaintiff's presentence report (PSR). It would be inappropriate for the Court to "second-guess" BOP's policy of barring inmates from receiving copies of their PSRs, which is based on safety and security reasons, as long as inmates have "a meaningful opportunity to review them," which the record shows that plaintiff had.

• Exhaustion: The court finds that even though plaintiff failed to file an administrative appeal of EOUSA's action on the documents referred to it by DHS, the court does not lack jurisdiction over plaintiff's claim as to these documents. "'[F]ailure to exhaust is by no means an automatic bar to judicial review.'" The court notes that one of the rationales "for the exhaustion requirement is to allow the agency 'to correct or rethink initial misjudgments or errors,'" and that because a year had elapsed since the withholdings, "[EOUSA] has had ample time [to] correct its error."

• Exemption 7(C): USMS properly withheld information that would have identified agency personnel. "Law enforcement personnel have a 'substantial privacy interest' in their personal information." Furthermore, "[t]he Plaintiff has not offered, and the Court cannot find, any public interest in disclosure that outweighs this substantial privacy interest." Similarly, DHS appropriately withheld the name of an agency employee.

2. Speight v. BOP, No. 07-0481, 2008 U.S. Dist. LEXIS 61228 (D.D.C. Aug. 11, 2008)

Re: First-party request

• Summary judgment: The court finds that because defendant has not adequately explained why the sole responsive document is dated after the conclusion of BOP's investigation into plaintiff, or why other documents referred to in this document were not processed by BOP, summary judgment would be inappropriate, as there are genuine issues of material fact.

• Segregability: "The Court is not entirely satisfied that all material that could be reasonably segregated and disclosed to the plaintiff has been segregated and disclosed."

3. Cozen O'Connor v. U.S. Dep't of Treasury, No. 05-4332, 2008 WL 3271154 (E.D. Pa. Aug. 7, 2008) (denying summary judgment and directing Treasury to submit supplemental declaration)

Re: Documents pertaining to terrorism related designations of individuals, entities, and foreign states

• Adequacy of search: The court finds that Treasury did not sufficiently explain the scope of its search and has not provided enough information for the court to determine whether its search methodology was acceptable.

• Procedural matters: "Here, there is no evidence of bad faith. The length of time in responding to the requests was not inordinate . . . . Treasury did not intentionally refuse to process the requests. It sought to refine them so it could respond." Similarly, there is no evidence of bad faith as regards Treasury's referral of responsive documents to other agencies. "Given the necessity of coordination among the various agencies and the nature of the documents to be reviewed, the time it took to process the documents referred to other agencies was not exceptionally lengthy."

Vaughn Index: The court finds that "Treasury's Vaughn index is more than sufficient." So, too, were the indices submitted by several other defendants. Because the indices submitted by the FBI and Immigrations and Customs Enforcement (ICE) use different pagination systems than did Treasury, there is no way to match the documents to which the FBI and ICE refer with the Treasury documents. Furthermore, as to ICE "the document descriptions are too broad, and the reasons for withholding merely recite statutory language." Thus, the indices the FBI and ICE submitted must be supplemented.

• Exemption 1: The requirements of the executive order were satisfied. "Each agency's classification authority reviewed each page of each document to determine if all or part of the document could be released without endangering national security. The classification authority determined that disclosure could reasonably be expected to cause serious or exceptionally grave damage to national security."

Exemption 2: Exemption 2 was properly invoked to withhold non-public telephone and fax numbers, case assignment numbers, confidential source identifying codes and symbol numbers, administrative record numbers, and database and computer codes. There is no public interest in internal telephone and fax numbers; release could cause interference with internal agency communications. Release of source codes and database and computer codes could cause circumvention of agency regulations.

• Exemption 3: Defendant FBI properly utilized Exemption 3 to withhold a document reflecting information revealed pursuant to a grand jury subpoena. Release of this information "certainly would reveal what the grand jury was investigating."

• Exemption 4: The court finds that Treasury has failed to provide any basis for its conclusion that release of commercial databases submitted to the agency would cause competitive harm. Treasury properly withheld blocked asset information provided pursuant to a regulation that explicitly provides an assurance of confidentiality, and where "[it] would discourage customers from doing business with [the submitters]." Release would also alert terrorist financiers as to which financial institutions were reporting to Treasury.

• Exemption 5: The FBI withheld a draft of a probable cause affidavit without indicating whether the affidavit was ever signed or filed. "[T]he FBI must demonstrate that it searched its records to determine whether the warrant was ever signed and issued."

• Exemptions 6 & 7(C): Defendants properly redacted personal identifying information from many of the responsive documents. "There is no public interest in this information."

• Exemption 7(A): Treasury properly used this exemption to withhold documents pertaining to a petition to have an entity removed from "the list that designates persons or entities as terrorists or terrorism supporters." Even though in general documents submitted by those seeking such "delisting" are not entitled to the same degree of protection as documents generated by the agency itself would be, documents submitted by such petitioners "would necessarily discuss information that Treasury developed during its designation process, revealing how, what, when and from whom Treasury garners information." Defendant ICE must cure its Vaughn index deficiencies in order for the court to rule on its use of Exemption 7(A).

• Exemption 7(D): The court finds that "[o]ne cannot seriously argue that anyone providing information in the investigation of terrorist organizations and activities would not expect that his identity as a source would be kept secret." Thus, Treasury properly invoked Exemption 7(D). The FBI correctly withheld documents whose release would reveal identities of sources who provided information with an express grant of confidentiality.

• Exemption 7(E): Plaintiff has not challenged Treasury's use of Exemption 7(E) to withhold information related to government and non-government databases and information services. The court finds that "subject to the reservations regarding the commercial databases expressed in the section on Exemption 4, Exemption 7(E) applies to the databases and information services withheld."

• Exemption 7(F): Defendant ICE properly invoked this exemption to protect the identities of its agents and sources.

• Glomar (Exemptions 1 and 7(A)): Treasury appropriately refused to confirm or deny the existence of records on sixteen organizations identified by plaintiff. Acknowledging the existence of such records would allow "a suspect group or person . . . [to] take steps to avoid or divert the investigation." Plaintiff has not been able to establish that Treasury has previously publicly acknowledged investigations of these groups. "[D]isclosing that [Treasury] is or is not investigating a non-designated entity or person would thwart the purpose of the sanctions program and would reveal classified information." Furthermore, "[a]lthough Treasury may have mentioned its 'concerns' during various officials' congressional testimony, it has never publicly revealed that it has opened investigatory evidentiary files on these sixteen organizations nor has it stated that it is actively investigating any one of the sixteen organizations." Similarly, plaintiff has not been able to substantiate its claim that two of the organizations no longer exist, much less that they might not still be the subject of investigation or have assets that Treasury might seek to block.

4. Holloman v. Jacksonville Housing Authority, No. 08-485, 2008 WL 3285743 (M.D. Fla. Aug. 7, 2008)

Re: First-party request

• Proper party defendant: The Jacksonville Housing Authority is not subject to the federal FOIA.

5. Briand v. Watson, No. 08-24, 2008 WL 3200670 (D.N.H. Aug. 5, 2008) (adoption of magistrate's recommendation) (unpublished disposition)

Re: First-party request

• Proper party defendant: The New Hampshire Department of Corrections is not subject to the federal FOIA.

6. Sindram v. Fox, No. 07-0222, 2008 WL 2996047 (E.D. Pa. Aug. 5, 2008)

Re: Records related to investigations conducted by the Department of Education's Office for Civil Rights

• Exhaustion: Although plaintiff alleges that he exhausted his administrative remedies by filing an administrative appeal of Education's initial response to him, the agency has no record of any such appeal. Plaintiff will be given an additional 30 days in which to demonstrate that he did exhaust, including supplying a copy of his appeal letter, or face dismissal of his FOIA claim.

7. Our Children's Earth Found. v. EPA, No. 08-01461, 2008 WL 3181583 (N.D. Cal. Aug. 4, 2008)

Re: Records related to EPA investigations of Honolulu's sewage collection and treatment system

• Litigation considerations: Defendant's motion for transfer of venue to the District of Hawaii is granted. Section 552(a)(4)(B) of the FOIA establishes venue, not jurisdiction. As to venue, plaintiff has "conceded[] Defendants' arguments that transfer to the District of Hawaii would serve the interest of justice." Moreover, the case can be transferred to the Hawaii District Court because "the instant case could have been filed as a crossclaim" in existing lawsuits in Hawaii.

8. People of the State of California ex rel. Brown v. EPA, No. 08-0735, 2008 WL 3154773 (N.D. Cal. Aug. 1, 2008)

Re: Records related to EPA denial of request by State of California for waiver of preemption under the Clean Air Act

• Litigation considerations: The court grants plaintiff's motion to compel EPA to produce a Vaughn index. The court finds that EPA's sample index, which contains descriptions of approximately ten percent of the withheld documents, is insufficient. "That a Vaughn index should include explanations for every withheld document is clear based on Ninth Circuit precedent." A sample index may be appropriate where the volume of documents "'is excessive and it would not realistically be possible to review each and every one.'" However, "EPA has not argued, let alone established, that the volume of records in the instant matter warrants a departure from the more detailed index required by the majority of cases." As to when the Vaughn index needs to be produced, the court finds that "[g]iven the amount of time that has passed between the original FOIA request and the instant motion, as well as the purpose of the index, it is more appropriate for the EPA to produce the Vaughn index now and allow Plaintiff to review it prior to summary judgment."

9. Jerome Stevens Pharmaceuticals, Inc. v. FDA, No. 07-01985 (E.D.N.Y. Jan. 11, 2008) (denying motion for stay of proceedings)

Re: Records related to FDA tests on levothyroxine sodium drugs

Open America: "This Court finds . . . that [FDA's backlog of FOIA requests] constitutes a normal backlog and does not constitute exceptional circumstances. Notably, the requests have decreased significantly over the last few years and cannot be considered anything other than the normal expected workload." Furthermore, the court finds that the reduction in FDA's backlog seems to be more a function of the decrease in requests than of due diligence by the agency in reducing its
backlog.

10. Weinberg v. Von Eschenbach, No. 07-01819 (D.N.J. Oct. 10, 2007) (denying motion for stay of proceedings)

Re: Communications between FDA and drug companies concerning Vioxx and other drugs

Open America: The court finds that "FDA has produced no evidence of a 'deluge' [of FOIA requests] as required by the Open America standard," and indeed has seen its number of incoming requests decrease recently. Defendant has also not established what the actual impact of non-FOIA document requests from Congress has had on its workload, nor has it shown that its litigation workload has been unusually high.

WEEK OF AUGUST 18

1. Pac. Fisheries, Inc. v. United States, No. 06-35718, 2008 WL 3863868 (9th Cir. Aug. 21, 2008)

Re: Tax information concerning plaintiff

• Litigation considerations: The court finds that plaintiff did not waive its right to challenge IRS's use of Exemption 3, even though it did not make its challenge until the filing of its reply brief. Defendant did not release documents until the day dispositive motions were due, which, the court finds, "deprived [plaintiff] of the opportunity to review and challenge the claimed exemptions in its motion for summary judgment. Although [plaintiff] could have raised the argument in its opposition to the government's motion for summary judgment, it was not required to do so. It is enough that [plaintiff] raised the issue in the district court and that the district court rejected the argument on the merits . . . . However, because the government has not briefed the merits of this issue, [the court] remand[s] so that the district court can consider the question in the first instance, after thorough briefing by the parties."

• Exemption 5: The court finds that the district court record "was insufficient because it did not provide [plaintiff] or the district court with specific enough information to determine whether the IRS had properly segregated and disclosed factual portions of those documents that the IRS claimed were exempt under the deliberative process privilege but not the attorney work-product privilege." The district court's ruling is upheld to the extent that it ruled that "factual portions of documents withheld pursuant to the attorney work-product privilege need not be segregated and disclosed."

2. LaRoche v. SEC, No. 06-17278, 2008 WL 3853567 (9th Cir. Aug. 15, 2008) (unpublished disposition)

Re: Required filings made to SEC by registered Broker-Dealers

• Procedural matters: "The district court's conclusion that the SEC was entitled to summary judgment was not clearly erroneous because it is undisputed that the records sought by [plaintiff] are not 'readily reproducible' by the SEC, see 5 U.S.C. § 552(a)(3)(B), in the searchable electronic format [plaintiff] requested, and an agency is not required to create new documents in order to satisfy a FOIA request."

3. Lee v. U.S. Attorney, No. 08-10324, 2008 WL 3524000 (11th Cir. Aug. 14, 2008) (unpublished disposition)

Re: First-party request

• Adequacy of search: "[D]efendants produced detailed affidavits explaining the method of processing [plaintiff's] records request and showing that they conducted a search reasonably calculated to uncover the requested documents. Specifically, defendants searched where the criminal case file should have been stored and, when it did not turn up at that location, searched in the other locations it might reasonably have been found." Furthermore, plaintiff "provided no evidence to rebut the adequacy of the search or to support his claim that defendants acted in bad faith." Finally, "the fact that defendants did not respond to [plaintiff's] request within 20 days of receipt does not support his claim of bad faith."

1. Caston v. EOUSA, No. 07-1816, 2008 WL 3884349 (D.D.C. Aug. 22, 2008)

Re: First-party request

• Procedural matters: The provision in plaintiff's plea agreement whereby he waived his right to request records concerning his case under the FOIA and Privacy Act is upheld. "Plaintiff's protestations notwithstanding, his own exhibits establish that he waived his right . . . that he understood all of the terms of the plea agreement . . . and that he voluntarily entered into the plea agreement . . . . 'Given that the Supreme Court has allowed a defendant to waive constitutional rights, [this court] would be hard-pressed to find a reason to prohibit a defendant from waiving a purely statutory right.'"

2. Natural Res. Def. Council v. EPA, No. 08-2443, 2008 WL 3861328 (S.D.N.Y. Aug. 19, 2008)

Re: Records related to use and safety of pesticides used on potatoes

• Fee waiver: The court finds that plaintiff's request "touches on an issue of the utmost importance: How government agencies interact with private concerns as the agencies set policy affecting the public interest." As such, "disclosure of the information it seeks is likely to contribute significantly to the public's understanding of the EPA's decisionmaking process and the role, if any, played by outside groups in that process." Furthermore, while defendant claims that the requested records will not contribute significantly to the public's understanding on this issue due to the large volume of records already made available by EPA, the previous disclosure "does not . . . provide any meaningful description of the interactions with industry groups that have influenced the EPA in either framing or developing Government policy." Furthermore, the court finds that EPA is incorrect in suggesting that plaintiff was required to show bad faith on EPA's part when it provided its rationale for choosing to hold a hearing in order for plaintiff to meet its public interest requirement. However, plaintiff's request "is far broader [than] its justification for a fee waiver." Because not all of the responsive documents would add to the public's understanding of the underlying issues, plaintiff's request for a fee waiver is only granted as to that portion of its request where responsive documents meet the public interest requirement.

3. Adams v. FBI, No. 08-0138, 2008 WL 3850669 (D.D.C. Aug. 19, 2008)

Re: Question concerning plaintiff's criminal case

• Jurisdiction: The court finds that the FBI's "denial of the request confers jurisdiction upon this Court to review the lawfulness of [FBI's] actions, including its characterization of the request as improper."

• Litigation considerations: Because plaintiff's request was in fact a question to defendant concerning whether a particular agency employee had worked on plaintiff's case, and because the FOIA does not require agencies to answer questions, "defendant rightly advised plaintiff that it had no obligation under the FOIA to answer his inquiry."

4. Boyd v. ATF, No. 05-1096, 2008 WL 3540126 (D.D.C. Aug. 15, 2008)

Re: Records related to ATF's use of confidential informants and surveillance techniques

• Exemption 7(E): ATF properly redacted boxes which indicate whether the agency employed particular surveillance techniques. "It is clear that [defendant] redacted portions of Document No. 9 so that the manner and method of installation of surveillance equipment cannot be discerned." ATF also properly employed Exemption 7(E) to withhold details concerning its attempts to locate a confidential informant. "The manner in which law enforcement procures and locates confidential informants is a vital law enforcement technique and its disclosure would not only potentially endanger future law enforcement investigations, but could also endanger the lives and welfare of prospective and current confidential informants." Furthermore, "information involving how law enforcement physically locates an informant, including the databases and search criteria used, would reveal to suspects which databases would be most useful to infiltrate to find someone in hiding." Plaintiff has failed to explain the relevance of his assertion that ATF did not redact the same information from responsive records in a prior case.

5. Lion Raisins, Inc. v. USDA, No. 05-00062, 2008 WL 3834271 (E.D. Cal. Aug. 14, 2008)

Re: USDA worksheets prepared for inspection of plaintiff's products

• Litigation considerations: Plaintiff's motion for relief from the summary judgment order issued three years ago in this case pursuant to Federal Rule of Civil Procedure 60(b)(5) is denied. The court's prior Order "does not have 'prospective' application." Rather, "it was a one time request for release of information under FOIA that was denied." Plaintiff's motion for relief under Rule 60(b)(6) is also denied. "Relief under Rule 60(b)(6) is only appropriate under 'extraordinary circumstances.'" As to the case at hand, "[t]he fact that [plaintiff] has the ability to file a new FOIA request based on the current conditions before the USDA demonstrates lack of extraordinary circumstances." Furthermore, plaintiff's conclusory allegations of government wrongdoing do "not amount to concrete or compelling evidence of wrongdoing to establish the extraordinary circumstances for a 60(b)(6) motion." Additionally, even were the court to adopt plaintiff's position that defendant's denial of plaintiff's request must be judged in light of current circumstances, and not the circumstances at the time of defendant's decision, plaintiff would still not be entitled to relief, because USDA's action against plaintiff remains ongoing. Finally, Rule 60(b)(6) does not provide plaintiff an avenue to obtain modification of the court's prior order concerning USDA's obligation to maintain original copies of the requested worksheets. "'Rule 60(b) is available only to set aside a prior judgment or order; courts may not use Rule 60(b) to grant affirmative relief in addition to the relief contained in the prior order or judgment.'"

6. Del Rosario v. DEA, No. 08-0079, 2008 WL 3411680 (D.D.C. Aug. 12, 2008)

Re: First-party request

• Litigation considerations: Plaintiff has not responded to defendant's motion for summary judgment, nor has he requested more time to do so. Therefore, DEA's motion is taken as conceded.

WEEK OF AUGUST 25

1. In re Petition of Nat'l Sec. Archive, No. 08-6599 (S.D.N.Y. Aug. 26, 2008)

Re: Grand jury testimony from Julius and Ethel Rosenberg and Brothman/Moskowitz grand juries

• Exemption 3: The government has been unable to ascertain the whereabouts of three of the witnesses who testified before the Rosenberg grand jury. Because of "the publicity given to the proceedings, and the ease and efficiency of expressing any objection to release," the court finds that "the witnesses are either indifferent to release, or lack capacity (because of death or otherwise)." Thus, the testimony of these witnesses should be released. With regard to the Brothman/Moskowitz grand jury testimony, the court finds these records are "also of substantial historical importance." The court orders disclosure and finds that "[o]f the eight witnesses who testified before that grand jury, seven are deceased, and no family member or relative has lodged an objection. The eighth and only living witness . . . now consents to disclosure."

2. Schoenman v. FBI, No. 04-2202, 2008 WL 3893757 (D.D.C. Aug. 25, 2008)

Re: First and third-party requests and requests for records on several organizations

• Adequacy of search: The court finds that defendant Defense Intelligence Agency (DIA) conducted an adequate search for responsive records. The DIA declaration "describes in non-conclusory terms the efforts the DIA undertook in searching for documents responsive to Plaintiff's request."

• Exemption 1: The court finds that DIA's use of Exemption 1 was proper. "Plaintiff's speculation that DIA Document Number One may not have been properly marked is insufficient to establish that the document was not properly classified procedurally." The DIA declaration also "sufficiently establishes that the information withheld from DIA Document Number One is properly classified as CONFIDENTIAL." In prior cases, "courts have repeatedly found information that would identify an intelligence source or methods to be exempt from disclosure under FOIA Exemption 1." Similarly, the court finds defendant Air Force's use of Exemption 1 proper, as the information "was properly classified procedurally," and constitutes source-identifying information, the release of which "'would clearly and demonstrably cause damage to national security and intelligence activities.'" Defendant Army has also sufficiently justified its invocation of Exemption 1. The court finds that "[a]ll procedural classification requirements were followed." The Army withheld "'information gathered through the use of U.S. intelligence methodology.'" Release of such information "'would reveal a U.S. intelligence method of collection,'" resulting in the "'release of intelligence sources or methods [which] would cause damage to the national security interests of the United States.'"

• Exemption 2: The material withheld by DIA under Exemption 2 ("low 2") qualifies as predominantly internal because it "relates to the 'agency's practices as to its internal routing and distribution.'" DIA also established that it used this exemption to withhold records which are "'trivial administrative matters of no public interest.'" Furthermore, plaintiff has not established any public interest in release of this material, as he failed to show "how the apparently trivial information withheld would shed any light on the DIA's activities with regard to Plaintiff [and the other subjects of his requests]."

• Exemptions 6 & 7(C): Defendant Air Force utilized both of these exemptions to withhold names and identifying information of its personnel. The court finds that the Air Force did not establish that the documents in question were law enforcement documents because it did not "establish a 'rational nexus' between [a] law enforcement purpose and the documents at issue here." However, the court finds that the Air Force's use of Exemption 6 for these withholdings was proper. In the aftermath of the September 11, 2001 terrorist attacks, the Defense Department changed its policies with regard to release of the names of its personnel, "carefully consider[ing] and limit[ing] the release of all names and other personal information concerning military and civilian personnel, based on a conclusion that they 'are at increased risk regardless of their duties.'" This privacy interest is more than de minimis. Furthermore, "the 'public interest' Plaintiff identifies is not the public interest cognizable under FOIA Exemption 6," as release of names and identifying information would not "shed any light on the Air Force's performance of its statutory duties." As to defendant Navy, the court finds that it has not shown a "rational nexus" between the withheld document and a law enforcement purpose, and as a result the court cannot grant summary judgment to the Navy on its withholding of the identities of several federal law enforcement personnel. The Navy will be given an opportunity to provide additional factual support for its position. Defendant Army's use of Exemption 6 to withhold names and identifying information (including social security numbers and birthdates) of government employees and other third parties was proper. "[T]he privacy interest of the individuals whose names, social security numbers, and birthdates have been withheld is substantial." Additionally, "to the extent that the Army has withheld the names and other identifying information of military and civilian personnel . . . the privacy interest inherent in such information forms the basis for the [Defense Department's] revised policy limiting the release of such information." The court further finds that "there is no public interest -- of the type cognizable under the FOIA -- in the disclosure of this information." Plaintiff's asserted interest in a more accurate accounting of historical events "does not suggest that the withheld information would shed any light on the Army's conduct, and the public thus has no cognizable interest in the information Plaintiff seeks."

3. SAE Productions, Inc. v. FBI, No. 07-0866, 2008 WL 3906896 (D.D.C. Aug. 25, 2008)

Re: Records concerning the Council on American Islamic Relations (CAIR) and FBI outreach to Muslim community groups

• Adequacy of search: "The specific details contained in the [FBI] declarations about the dates, locations, methodologies, and results of the searches demonstrate that the FBI's efforts were reasonably calculated to uncover all relevant documents." Plaintiff's allegations that additional documents exist are not sufficient to call into question the accuracy of the FBI's declarations. "[I]t is well-established that the conceivable existence of other documents is not enough to defeat a motion for summary judgment." Plaintiff's motion for discovery is denied.

4. Rosenfeld v. DOJ, No. 07-03240, 2008 WL 3925633 (N.D. Cal. Aug. 22, 2008)

Re: Requests for records on several organizations and individuals (including Ronald Reagan)

• Proper party defendant: The court "disagrees" with the FBI's contention that it is not a proper party defendant under the FOIA because it is a component of the Department of Justice, rather than an "agency."

• Exhaustion: The court finds that plaintiff exhausted his administrative remedies in spite of his failure to appeal from an interim response to one of his requests by the FBI. The court finds that "a FOIA claimant cannot be expected to assess the adequacy of a search that is not yet final." Moreover, the court finds, the "FOIA statute does not require, and defendants do not point to any DOJ regulations, that a FOIA claimant appeal every interim release." Additionally, "by periodically appealing the FBI's lack of response, [plaintiff] has demonstrated an effort to fully exhaust his administrative remedies."

• Litigation considerations: Plaintiff made two requests for records concerning Ronald Reagan. The FBI made a final response to the first of these in February 1997. Thus, plaintiff's action is barred by FOIA's six-year statute of limitations as to that request. However, plaintiff's action as to the second "substantially similar" request is not barred by the statute of limitations because plaintiff made that new request in August 2007. The court finds that its ruling "encourages full agency disclosure by preventing agencies from using administrative technicalities as shields from disclosing information."

• Personal knowledge requirement: "[T]he court finds that [FBI's declarant] meets the personal knowledge requirement with respect to the searches at FBIHQ because he supervises the division responsible for processing [plaintiff's] FOIA requests . . . . However, there is no evidence that [FBI's declarant] directly supervises the field offices. And if he does, there is no evidence of the level of contact he has with those offices. Consequently, his declaration with respect to searches conducted at the field offices are inadmissible."

• Adequacy of search: The court finds that too much of the FBI's declaration focuses on the chronology of its search, and not enough on the methodology of the search. As a result, "defendants have failed to provide sufficient evidence about the various automated databases to enable the court to determine the reasonableness of their search." The search terms used to search the Central Records System were reasonable, even though they did not include all the terms suggested by plaintiff. As to the other databases, "the court cannot assess whether the search terms are 'reasonably calculated to uncover all relevant documents requested.'" Defendants also need to provide additional information to the court about databases that were omitted from the searches performed. The court also finds that the FBI has not shown that its system for conducting its search for cross-references is reasonable. The FBI is ordered to conduct additional searches as directed by the court and to provide responsive documents to plaintiff. The FBI is further ordered to provide a declaration establishing how burdensome it would be to conduct a manual search of files in which Ronald Reagan is not indexed as either a main entry or a cross-reference. Additionally, the FBI is ordered to provide further details on the manual searches it conducted in order for the court to determine the reasonableness of these searches. The FBI is also ordered to provide more information concerning those field offices that do not use search slips to document the conduct of their searches, as well as "information about any written records created to document the search." The FBI must provide further explanation concerning its decision not to utilize its abstract card system in searching for records and must provide additional support for its estimate of the costs involved in searching these cards. Finally, for all records the FBI listed as responsive but which the FBI could not locate, the FBI is ordered to provide additional documentation of the efforts to retrieve these records.

5. Pavlenko v. IRS, No. 08-60017 (S.D. Fla. Aug. 21, 2008)

Re: Third-party request

• Litigation considerations: Plaintiff lacks standing to pursue this action. The record shows that the only FOIA requests at issue here were made by plaintiff's wife. However, plaintiff's wife is dismissed from the case because she has made no appearance on her behalf (or through licensed counsel). Furthermore, even if the court was to allow this action to go forward, the record indicates that the documents at issue were destroyed by defendant. As a result, there is no relief under the FOIA that the court can provide to plaintiff inasmuch as "the records Plaintiff seeks . . . no longer exist."
(posted 9/17/2008)

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