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

March 6, 2008

FOIA Post

Summaries of New Decisions -- February 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 February 2008.

WEEK OF FEBRUARY 4

District Courts

1. Hodes v. HUD, No. 07-161, 2008 WL 246358 (D.D.C. Jan. 31, 2008)

Re: Identities of individuals and companies on an Unclaimed Funds List
(UFL)

• Exemption 3: Under the Gramm Leach Bliley Act (GLBA), HUD qualifies as
a "nonaffiliated third party" and is therefore subject to its nondisclosure
requirements. Plaintiff's claim that government entities are not subject to
these requirements is unpersuasive. Plaintiff's suggestion that "HUD
[must] prove a negative" by showing that no notice was given to consumers, "reverse[s]
the presumption" of confidentiality under GLBA and is "patently
implausible." However, the Court finds that GLBA's confidentiality provisions
apply only to the records of individuals, and do not apply to the records
of commercial entities, an assertion found not to have been refuted by defendant.

• Exemption 4: The Court finds that defendant has not shown that release
of the names of the companies on the UFL will cause substantial competitive
harm to these companies. If these companies truly wish to remain anonymous,
they could do so by identifying themselves to HUD, thereby enabling them to
receive the payments owed to them and "avoiding inclusion" on the
UFL. Moreover, the Court finds that defendant's declarant "fails to provide
any specific information supporting the notion that such entities would prefer
their anonymity even at the expense of receiving funds indisputably owed to
them."

• Exemption 6: As commercial entities do not have protectible privacy interests under this exemption, the Court finds that HUD's invocation of Exemption 6 to protect information concerning companies on the UFL was improper.

WEEK OF FEBRUARY 11

Courts of Appeal

1. Ayanbadejo v. Chertoff, No. 06-20866, 2008 WL 344142 (5th Cir. Feb. 8, 2008)

Re: First-party requests

• Pleadings: The district court's denial of plaintiffs' motion to amend their complaint to add claims under the FOIA was proper. Plaintiffs' FOIA claims were mooted when USCIS produced the records responsive to plaintiffs' requests.

District Courts

1. Gillon v. Bureau of Prisons, No. 06-02383, 2008 WL 350115 (D.
Colo. Feb. 7, 2008)

Re: Request for BOP Special Housing Unit Entry Log

• Mootness: Grants defendant's unchallenged motion to dismiss plaintiff's
FOIA claim as moot because it has provided plaintiff with the document he
requested.

WEEK OF FEBRUARY 18

Courts of Appeal

1. Multi AG Media LLC v. Dep't of Agriculture, No. 06-5231, 2008
WL 398442 (D.C. Cir. Feb. 15, 2008) (dissenting opinion by Chief Judge Sentelle)

Re: Agricultural subsidy and benefit programs databases

• Exemption 6: "Exemption 6 applies to financial information in business
records when the business is individually owned or closely held, and 'the
records would necessarily reveal at least a portion of the owner's personal
finances.'" The vast majority of the farms whose information is contained
in the responsive databases are "family owned," thus disclosure
of the withheld information "'would necessarily reveal at least a portion
of the owner's personal finances.'" The fact that in many cases the
owner's personal assets may be "significant" is irrelevant to this
analysis. "[T]he privacy interest that would be compromised by disclosure
of the files is greater than de minimis." However, the Court determined
that although some of the withheld information "may not directly say
anything about a particular subsidy program, it says everything about whether
a particular farm is eligible to participate in the benefit programs in the
first place. . . . [T]he public has a significant interest in being able to
look at the information the agency had before it" when determining program
eligibility. Other withheld records would enable the public to evaluate defendant's
performance in monitoring compliance with the benefit program. Thus, the public
interest in release outweighs the privacy interests at stake. The dissent
is "in disagreement" on the outcome of the balance and finds that "the
public interest involved in the disclosure of these files sits lightly upon
the scales of balance."

2. Miccosukee Tribe of Indians of Florida v. United States, No. 06-13309, 2008 WL 397390 (11th Cir. Feb. 15, 2008)

Re: Documents concerning EPA review of state amendments to the Everglades Forever Act and the Phosphorus Rule for the Everglades Protection Area

• Personal knowledge requirement: The Court need not make a ruling on whether an affidavit concerning EPA's search submitted by an individual who did not personally participate in the search is sufficient because the Court also has before it deposition testimony from individuals who personally participated in the search.

• Adequacy of search: Plaintiff's argument that EPA should have provided depositions from all sixteen individuals involved in the search for responsive records "would place too heavy a burden on an agency." The testimony provided by EPA was sufficient for the Court to determine whether EPA "'conducted a search reasonably calculated to uncover all relevant documents.'" However, "inconsistencies in [the agency's] testimony indicate that the process employed by the EPA was defective, thereby rendering its FOIA search and response inadequate." In particular, "there are material issues of fact regarding whether those conducting the search reasonably made an effort to contact all employees who had responsive records and whether the search efforts were properly coordinated." With regard to EPA's supplemental disclosure of additional documents not found at the time of its initial search, EPA provided the district court an adequate explanation for its actions, thus the district court correctly did not draw any adverse inferences against EPA based upon its late production of records.

• Procedural requirements/factual issue: The Court finds a disputed issue of fact surrounding EPA's decision to exclude "publicly available" documents from its search. The issue is remanded to the district court.

• Standard of review: In reviewing a district court's ruling on the applicability of FOIA exemptions, the Court will determine whether the district court had an adequate factual basis for its decision, and whether the decision reached by the district court was clearly erroneous.

Vaughn Index: There is no support in this Court for plaintiff's argument that an agency defendant is required to detail "the role of each specific document in the decision-making process and the role of each sender and receiver in the decision-making process for the withheld documents" in order to sustain a deliberative process privilege claim. EPA's Vaughn index, which explained that documents were withheld pursuant to this privilege because release would "have a chilling effect on the agency's decision-making processes and would cause public confusion about the reason for the EPA's decision[,]" was detailed enough that "both the Tribe and the district court were able to understand why each document or portion of a document was withheld as exempt from disclosure."

• In camera review: The district court had enough information available to it upon in camera review to accurately determine the legitimacy of EPA's exemption claims.

• Exemption 5: The district court correctly upheld EPA's use of Exemption 5 to withhold documents under the deliberative process, attorney work-product, and attorney client privileges. EPA provided "extraordinary substantiation" of its use of the privileges.

• Segregability: There is no support in 11th Circuit precedent for plaintiff's claim that the district court was required to make a separate segregability ruling with regard to each of the withheld documents. Given that the district court also undertook in camera review, this case is not the proper vehicle to examine whether the circuit should impose stricter requirements "when reviewing a claim of privilege under FOIA."

District Courts

1. Carson v. U.S. Office of Special Counsel, No. 06-1834, 2008 WL
441522 (D.D.C. Feb. 19, 2008)

Re: Records concerning court referrals made to the Office of Special Counsel
(OSC) under the FOIA and any OSC findings based upon those referrals

• Mootness: Plaintiff has conceded that the records he requested do not
exist, thereby mooting his claim under the FOIA.

• Jurisdiction: A federal court's jurisdiction under the FOIA "extends
only to claims arising from the improper withholding of agency records." Thus,
the Court has no authority under the FOIA to order OSC "to create records
or to render opinions that plaintiff believes the agency is required to maintain."

2. Carson v. U.S. Merit Sys. Prot. Bd., No. 07-0261, 2008 WL 441507
(D.D.C. Feb. 19, 2008)

Re: Records relating to the Merit System Protection Board's compliance
with statutory provision regarding studies of civil service

• Mootness: Defendant has released to plaintiff all responsive documents
within its possession, therefore plaintiff's complaint is moot.

• Jurisdiction: Plaintiff's complaint that defendant has failed to create documents he would like to have does not state a claim for relief under the FOIA.

3. Lawyers Comm. for Civil Rights v. U.S. Dep't of the Treasury,
No. 07-2590, 2008 WL 425940 (N.D. Cal. Feb. 14, 2008)

Re: Records related to "Specially Designated Nationals" list

• Proper requests: Several of plaintiff's "requests" do not qualify
as requests for records under the FOIA, but are more appropriately characterized
as questions, or attempts by plaintiff to "seek[] abstract information." Another
of plaintiff's requests was "incomprehensible." Several other of
plaintiff's requests, if read "liberally," do constitute proper
requests for records under the FOIA and the responsive records must be disclosed.

• Adequacy of search: Defendant's most recent declaration is sufficient to demonstrate that defendant's search for records was adequate. Plaintiff's argument that further records exist is rejected; there is no evidence that defendant acted in bad faith.

• Discovery: Because defendant's search was adequate, no discovery is required. Furthermore, defendant is correct that plaintiff's discovery requests are simply an attempt to attain the records it requested under the FOIA through another guise.

4. Robinson v. Attorney Gen. of the United States, No. 06-2050,
2008 WL 391244 (D.D.C. Feb. 14, 2008)

Re: First and third-party requests

• Adequacy of search: Defendant United States Marshals Service (USMS) conducted
an adequate search, searching its record systems likely to contain records
responsive to plaintiff's first-party request, and using "means reasonably
calculated to locate responsive records."

• Exemption 2: USMS used this exemption to withhold internal agency case numbers, vehicle identification numbers associated with assets turned over to law enforcement agencies, and the website address for an internal DOJ database. However, USMS did not indicate whether it was withholding these materials under "low" or "high" 2 (or both). To the extent USMS was asserting "high" 2, it "offer[ed] at best conclusory statements of the risk of . . . circumvention." Summary judgment is denied without prejudice on this issue.

• Exemption 7(C): USMS "properly withheld the names of and identifying information about law enforcement personnel and third parties." Plaintiff only contested defendants' (FBI, EOUSA, and DEA) Glomar responses in reply to his requests for records on two third-parties who plaintiff claims were confidential informants. Plaintiff's assertion that one of these individuals gave false testimony at plaintiff's trial does not eliminate this individual's privacy interests. Similarly, the fact that plaintiff claims to know the identities of third parties mentioned in law enforcement files does not lessen any claims to privacy these individuals have. "Nor does the fact that a third party testified at a public trial waive his privacy interests." Additionally, the public interest plaintiff claims would be served by release of records -- assistance to him in challenging his conviction -- has repeatedly been held not to qualify as a public interest under the FOIA.

• Segregability: USMS's declaration does not address segregability. Furthermore, the Court is unable to "determine which documents were released in full or in part." USMS is "directed to address this matter in a subsequent motion."

5. Tamayo v. DOJ, No. 07-21299, 2008 WL 413963 (S.D. Fla. Feb. 13,
2008)

Re: Third-party request

• Discovery: Discovery in FOIA actions is generally disfavored. Plaintiffs'
discovery requests, if answered, would "shed very little light on how
[the relevant legal issues] should be resolved." Furthermore, plaintiffs'
attempt to use discovery to gain information about the existence of the requested
files is inappropriate where granting the request would reveal content about
the files themselves, information to which plaintiffs have not been able to
show entitlement. Using discovery in this manner is "clearly inappropriate." "Plaintiffs,
at this point, have not shown that discovery is materially required to address
the issues raised in the pending summary judgment motion."

6. Hodges v. U.S. Attorney Gen., No. 07-3076, 2008 U.S. Dist. LEXIS
10968 (D. Kan. Feb. 13, 2008)

Re: First-party request

• Jurisdiction: To the extent that plaintiff's complaint is construed as
an initial request for records directed to a federal court, he has not stated
a claim for relief, as the FOIA does not apply to federal courts.

• Exemption 3: If plaintiff's request is construed as a request for records
from DOJ, he is not entitled to any relief, because the records he seeks --
transcripts of grand jury balloting -- are clearly protected from release
under Exemption 3, through Rule 6(e) of the Federal Rules of Criminal Procedure.

WEEK OF FEBRUARY 25

District Courts

1. Thomas v. FCC, No. 07-0069, 2008 WL 485088 (D.D.C. Feb. 25, 2008)

Re: Request for agency regulations

• Exhaustion: In the absence of any evidence that plaintiff actually submitted
a FOIA request to defendant, plaintiff's complaint is dismissed for failure
to exhaust his administrative remedies.

2. Jackson v. U.S. Dep't of Labor, No. 06-02157, 2008 U.S. Dist.
LEXIS 13807 (E.D. Cal. Feb. 25, 2008) (magistrate's recommendation)

Re: First-party request

• Adequacy of search: Defendant conducted a reasonable search to determine
if any written notes existed of a meeting; its determination that no such
notes exist is reasonable.

• Duty to search: Agencies are not required to "pursue" records which may exist but may be in the possession of a retired employee.

• Procedural requirements: Defendant was not required to create a system of Internet access to the records plaintiff requested where such a system did not previously exist. Defendant's release of copies of the responsive records in both paper and electronic formats was sufficient. Creation of "an entirely new system of public access[] to internal documents" was not required.

3. Arizechi v. IRS, No. 06-5292, 2008 U.S. Dist. LEXIS 13753 (D.N.J.
Feb. 25, 2008)

Re: First-party request

• Exhaustion: Plaintiff failed to exhaust administrative remedies with
regard to one of his requests. Although defendant's response to that request
was made outside the twenty-day statutory limit, the response came before
plaintiff filed suit. Thus, defendant's response re-imposed upon plaintiff
his obligation to file an administrative appeal before proceeding to court.

• Exemption 3: "It is well settled that [26 U.S.C.] § 6103(e)(7) is a statute which prohibits disclosure." Under the terms of this statute, the IRS can withhold a taxpayer's own return information from him if disclosure would "seriously impair Federal tax administration." The IRS has shown that release of the requested records would in fact cause such an impairment. The records "do not 'contain solely information already known to plaintiff,'" and release would "identify the specific activity that is the focus of [the IRS's] investigation."

• Exemption 5: Defendant properly withheld Special Agent interview notes that reflect "pre-decisional thought processes, analyses, and deliberations of IRS personnel."

• Exemption 7(A): Defendant submitted sufficiently detailed justifications for its decision to withhold summonses issued to witnesses in its criminal case against plaintiff.

• Segregability: "Redaction of names and addresses of the witnesses and releasing a blank summons would serve no purpose and is not required."

4. Pickering-George v. ATF, No. 07-0899, 2008 WL 501375 (D.D.C.
Feb. 22, 2008)

Re: Application for gun restoration privileges

• Jurisdiction: Plaintiff's complaint, which relates to his petition to
restore gun privileges pursuant to 18 U.S.C. § 925(C), does not state a cause
of action under the FOIA. Plaintiff has not made a request for records. Thus,
the Court lacks jurisdiction over his FOIA claim.

5. Ginarte v. Mueller, No. 06-2216, 2008 WL 461372 (D.D.C. Feb. 21, 2008)

Re: First-party request

• Proper party defendant: Individual agency employees, including the Director of the FBI and the Attorney General, are not proper party defendants in a FOIA action. Only agencies are proper party defendants. Although there is some disagreement in prior cases as to whether individual agency components can be proper party defendants, a determination of this question is not necessary to resolution of this case.

• Adequacy of search: Defendant provided an affidavit detailing the methods it employed to search for responsive records. "[Plaintiff] has provided no evidence that the records he requested exist or that the scope or method of the Government's search was such that it was unlikely to succeed." Accordingly, the Court finds the agency's search adequate.

6. Martinez v. Soc. Security Admin., No. 07-01156, 2008 WL 486027 (D. Colo. Feb. 18, 2008) (order on motion for reconsideration)

• Jurisdiction: The "FOIA allows this Court to direct the Defendant to produce information responsive to a FOIA request, even in aggregate form."

• Exhaustion: Plaintiffs did not fail to exhaust administrative remedies
with regard to their request for aggregate data. Although the word "aggregate" did
not specifically appear in plaintiffs' initial request, the Court finds that
"[t]he request for aggregate data was encompassed within the Plaintiffs' FOIA
request. . . ."

• Fee Waiver: The Court had previously found that the records it ordered defendant to release "implicate[d] a public interest." It now finds that disclosure is not primarily in plaintiffs' commercial interest. "Claims for damages do not constitute a commercial interest -- at least not when the claims are grounded in tort." The released records "will assist [plaintiffs] in an underlying class action" by demonstrating the amount of loss to class members. Interest in compensation is "not an interest in commerce, trade, or profit." Thus, defendant is required to either waive or reduce the fees owed by plaintiffs. The Court finds that "[b]ecause the Defendant may elect to reduce the fee, rather than waive it, the Court considers what a reasonable fee would be prior to any reduction." Defendant's current fee estimate of $6,298.99 is appropriate in light of its regulations, except for a $300 charge for possible "cost overruns." If defendant "elects to reduce" plaintiffs' fees rather than waive them altogether, "then it may in its discretion require payment of a fee of less than $5,998.99." Because plaintiffs owe more than $250 in fees, "both FOIA and the Defendant's regulations clearly authorize it to require advance payment."

• Misc.: There is no need for a Court order directing defendant to act "in a reasonable manner," nor is there any need for the Court to order defendant to provide documentation of its search efforts; plaintiffs' new request for such an order is untimely. (posted 3/06/2008)

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