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

August 21, 2008

FOIA Post

Summaries of New Decisions -- July 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 July 2008.

WEEK OF JULY 1

1. Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 2008)

Re: Information pertaining to plaintiff

• Exemption 4: Section 83 of the EEOC's Compliance Manual, which allows for disclosure to a third party of confidential business information submitted by a company without providing notice to the submitter, violates EEOC's own regulations implementing Executive Order 12,600. EEOC's regulations require notice to the submitter, as well as an opportunity for the submitter to object to the disclosure. "[Plaintiff] is entitled to an injunction against the release of its confidential information in any manner other than that prescribed in the Commission's FOIA regulations."

2. Moore v. FBI, No. 07-1294, 2008 WL 2521089 (7th Cir. June 25, 2008)

Re: First-party request

• Litigation considerations: The court of appeals finds that the district court incorrectly dismissed plaintiff's complaint for lack of specificity. While the FBI may ultimately assert as a defense to its nonproduction that plaintiff's request lacked specificity, plaintiff has provided "enough detail to give fair notice of what his claim is and the grounds upon which it rests."

1. N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Prot. Bureau, No. 04-2105, 2008 WL 2588055 (D.D.C. July 1, 2008)

Re: Records concerning search of plaintiff's property

• Attorney fees: The court finds that the new fee shifting provision of the Open Government Act, which re-institutes "catalyst theory" for determining whether a plaintiff has "substantially prevailed," does not apply retroactively. There is a general "'presumption against retroactive legislation,'" a presumption that in this case has not been altered by clear direction from Congress to the contrary. "[T]he statutory provision in question is silent with respect to the issue of retroactivity." Plaintiff's argument, that because the issue of attorney fees is "'collateral to the main cause of action,'" retroactive application of the new fees provision would not affect any substantive right of the agency, is unpersuasive and has been previously rejected by the Supreme Court. Furthermore, any waiver of sovereign immunity by the federal government "'must be unequivocally expressed in statutory text,'" and must be "'strictly construe[d]'" by courts. Finally, plaintiff's claim that the new fee shifting provision clarified, rather than changed, pre-existing law is inaccurate.

2. Elec. Frontier Found. v. DOJ, No. 06-1773, 2008 WL 2573278 (D.D.C. June 30, 2008)

Re: Records related to FBI's Investigative Data Warehouse

• Litigation considerations: Defendant's request for an Open America stay is granted, though only until August 1, 2008, not until February 2013, as defendant had previously requested. Exceptional circumstances are present, due to both the increased workload currently facing the FBI and its recent staffing losses caused by relocation of FBI FOIA operations to Winchester, Virginia. Additionally, FBI "has demonstrated both due diligence in processing the FOIA requests submitted to it and is making reasonable progress in reducing its backlog of the requests." Though FBI initially requested a stay until 2013, it subsequently informed the court that it expected to complete its review of plaintiff's request by June 9, 2008. Thus, FBI will be granted a stay only until August 1, 2008.

3. Bonaparte v. DOJ, No. 07-0749, 2008 WL 2569379 (D.D.C. June 27, 2008)

Re: Oaths of office and letters of appointment for two Assistant United States Attorneys

• Adequacy of search: Defendant has now shown that the information concerning one of the AUSAs (now a former AUSA) has been transferred to a component of the National Archives, meaning that defendant no longer has control over the records. Plaintiff may submit a new request to the Archives for these records. With regard to the records pertaining to the other AUSA, defendant has now released the information in question, only redacting certain personal information.

4. Judicial Watch, Inc. v. Bureau of Land Mgmt., No. 07-1570, 2008 WL 2554831 (D.D.C. June 27, 2008)

Re: Records pertaining to land transactions in Coyote Springs Valley, Nevada

• Attorney fees: The court "concludes that Congress intended that the OPEN Government Act fee-shifting amendments operate retroactively, and, furthermore, such application does not produce an impermissible retroactive effect." This is in keeping with "the Supreme Court's general rule . . . that alterations to attorney's-fees provisions would not operate impermissibly if applied retroactively." Additionally, the relevant legislative history "indicates an intent that the amended fee provision be applied retroactively." Equitable considerations also favor retroactive application. Unlike the recent Zarcon v. NLRB decision which ruled against retroactive application, in this case the parties entered into a stipulation which "expressly provided that plaintiff retained its right to seek attorney's fees." Retroactive application is appropriate in spite of the general rule that waivers of sovereign immunity should be construed strictly. This is true because the fee-shifting provision only affects "remedies, not rights." It is also clear that there is "a causal connection between the filing of the complaint and the release of documents." Plaintiff is entitled to an award of fees. The information it sought "would aid individuals in making [electoral decisions]," and plaintiff "maintained no commercial interest in submitting this FOIA request." Furthermore, "[d]efendant's justifications for its inaction fall short of meaningful" and "are all the more unreasonable in view of the revised FOIA statute." Plaintiff is awarded the total amount of fees and litigation costs it sought.

5. Davis v. Attorney Gen., No. 07-1138, 2008 WL 2554830 (D.D.C. June 27, 2008)

Re: Records pertaining to a parcel of land in Lexington, Kentucky

• Litigation considerations: Plaintiff has confused the FOIA with the Privacy Act. Only the latter requires proof of agency intent and provides monetary damages as a remedy. But plaintiff has no cause of action under the Privacy Act. Plaintiff has also provided no evidence to refute defendant's claim that its search for responsive records was reasonable.

6. Patterson v. FBI, No. 08-186, 2008 U.S. Dist. LEXIS 49431 (E.D. Va. June 27, 2008)

Re: First-party request

• Procedural matters: In plaintiff's plea agreement to his previous criminal case, he waived his right to request records under the FOIA and Privacy Act for records pertaining to his case. Plaintiff now asserts that this waiver only applies if he seeks documents for use in claims related to his criminal case and that "it is against public policy to allow enforcement of such a waiver where it restricts his right to pursue civil claims." Plaintiff's claims are "belied by the unambiguous language of the FOIA waiver provision." The court refuses to "read a 'civil action' exception clause into this plea agreement where one does not exist." Plaintiff's claim is dismissed as frivolous.

7. Lippton v. DOJ, No. 07-0329, 2008 U.S. Dist. LEXIS 49210 (E.D. La. June 27, 2008)

Re: First-party request

• Jurisdiction: Once a court determines that a requester has received all documents to which he is entitled, the court has "'no further judicial function to perform.'"

Attorney fees: Because plaintiff did not receive relief through means of a court order, he is not a prevailing party for purposes of the FOIA's fee shifting provision. The new fee shifting provision of the OPEN Government Act does not apply retroactively. "[A]pplying the amended FOIA attorney fee provision retroactively to the government Defendants in this case would have 'a retroactive consequence in the disfavored sense of "affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before its enactment."'"

8. United Transp. Union Local 418 v. Boardman, No. 07-4100, 2008 U.S. Dist. LEXIS 48476 (N.D. Iowa June 24, 2008)

Re: Records pertaining to Federal Railroad Administration (FRA) investigations

• Litigation considerations: Defendant was not required to request an evidentiary hearing for the court to consider FRA's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Furthermore, the court finds that such a hearing is not necessary in this case. FRA has now responded to plaintiffs' FOIA request, thereby mooting plaintiffs' FOIA claim. There is no evidence of bad faith or recurring violations of the FOIA by defendant.

• Attorney fees: Plaintiffs failed to show that their lawsuit caused FRA to respond to the FOIA request. Furthermore, plaintiffs do not qualify as prevailing parties because they "have not received any relief by the court in this case."

• Discovery: Plaintiffs' motion for discovery is denied as unwarranted and unnecessary.

9. S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., No. 06-2845, 2008 WL 2523819 (E.D. Cal. June 20, 2008)

Re: Documents related to NMFS Biological Opinions

• Litigation considerations: Defendant NMFS's failure to respond to plaintiff's three requests in a timely manner, as well as the possibility that this delay could be repeated with respect to a fourth request from plaintiff, make it appropriate for the court to grant plaintiff's motion for a declaratory judgment stating that defendant violated the FOIA. Defendant NMFS is ordered to respond to plaintiff's March 17, 2008 request and all future requests by plaintiff within the FOIA's statutory deadline.

• Procedural matters: Defendant NMFS did not violate the FOIA by referring responsive documents to their originating agencies for processing. This action by defendant NMFS "accords with federal regulations."

• Exemption 5: The court finds that defendants failed to show that their use of the deliberative process privilege was appropriate. Though all of the withheld documents were drafts of final documents, defendants have "not shown that these documents were not shared with the public," which would cost them their predecisional status. Additionally, defendants have not shown that the documents were deliberative. Defendants' Vaughn Index lacks sufficient detail to show that the documents "contain[] the types of analysis, recommendations and opinions that the privilege is created to protect." Additionally, defendants have not shown why factual portions of these documents cannot be segregated out and released. "'[A] report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material.'" Defendants are directed to produce a new Vaughn Index.

• Adequacy of search: Defendants have provided sufficient evidence for the court to make a determination on the adequacy of its searches. The details provided by defendants are "consistent with what other courts have found adequate." Defendant NMFS's use of the day its search commenced as the "cut-off date" for responsive records is consistent with Department of Commerce regulations as well as Ninth Circuit law. "[C]ourts have expressly declined to require agencies to use a rolling cut-off date, or no cut-off date at all." Plaintiff's claim that defendant NMFS's "piecemeal" responses render its search unreasonable is unfounded. Indeed, "courts have held that it is preferable for an agency to release documents to a requester on a rolling basis." Though defendant NMFS's search methods may have "flaws," the court finds that "[t]hese concerns are not so great . . . as to convince the court that defendants [sic] search methods are objectively unreasonable." Finally, plaintiff has not shown that defendants' search methods demonstrate bad faith on defendants' part.

WEEK OF JULY 7

1. Citizens for Responsibility and Ethics in Washington v. DHS, 532 F.3d 860 (D.C. Cir. 2008)

Re: Secret Service logs of visitors to the White House

• Jurisdiction: The government's appeal is dismissed for lack of appellate jurisdiction. The court lacks jurisdiction under 28 U.S.C. § 1291 because the lower court's ruling was not a final order. The district court simply ordered DHS to process the responsive records. The lower court's ruling is also not the sort of interlocutory order that the court has jurisdiction to hear an appeal of under 28 U.S.C. § 1292(a)(1) because nothing has yet been required of the government other than to locate and process the responsive records. Indeed, "it is entirely possible that the government will never have to turn over a single document." DHS's claim that even requiring the President or Vice-President to assert relevant privileges to protect the documents in question is a burden in and of itself raises the possibility that the court would have jurisdiction under the collateral order doctrine. However, in this case the document requests were made to the Secret Service (a DHS component) and not to the President or Vice-President. As a result, there is not the same risk that court orders could place the Judicial Branch on a "collision course" with the Executive Branch. Furthermore, any burden on the President or Vice-President in this case will be minimal, due to the narrow nature of plaintiff's request. "Taking the government's argument to its logical conclusion would mean that the President should never have to assert executive privilege in the Exemption 5 context because doing so is simply too burdensome. But that can't be right."

2. Clemmons v. United States, No. 08-5030, 2008 WL 2669680 (Fed. Cir. July 9, 2008)

Re: Request for increase in compensation and benefits

• Jurisdiction: The court lacks jurisdiction over plaintiff's damages claim. The FOIA does not create a cause of action for damages in this court. Rather, it creates a claim for injunctive relief in federal district courts.

1. Dixon v. Mukasey, No. 07-1687 (D.D.C. July 9, 2008) (unpublished disposition)

Re: First-party request

• Exhaustion: In light of the fact that plaintiff failed to identify which United States Attorney Office(s) he wished EOUSA to search for responsive records, he did not file a proper request to EOUSA. Thus, he did not exhaust his administrative remedies.

• Exemption 3: EOUSA correctly informed plaintiff that grand jury transcripts are exempt from disclosure pursuant to Exemption 3 and Rule 6(e) of the Federal Rules of Criminal Procedure.

2. Bey v. DOJ, No. 05-2241, 2008 WL 2640285 (D.D.C. July 7, 2008)

Re: Request for records on self and on Moorish Science Temple of America

• Mootness: "Based on the current record . . . the Court cannot determine whether dismissal of this case as moot is now appropriate." ATF is ordered to file "a proper dispositive motion" on this issue.

3. Caracciolo v. U.S. Merit Sys. Prot. Bd., No. 07-3487, 2008 WL 2622826 (S.D.N.Y. July 3, 2008)

Re: Records related to disability determination

• Jurisdiction: The court lacks jurisdiction over plaintiff's claim because defendant was able to show that it did not withhold any agency records in its possession that were responsive to plaintiff's request.

4. Ivers v. ATF, No. 07-5656, 2008 WL 2678287 (W.D. Wash. June 30, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Exhaustion: Plaintiff's claim that he filed an administrative appeal of ATF's responses to his FOIA requests "lacks any factual support in the record." Therefore, his suit is dismissed for failure to exhaust administrative remedies.

5. Thames v. Los Angeles Police Dep't, No. 08-1044, 2008 WL 2641361 (C.D. Cal. June 30, 2008) (adoption of magistrate's recommendation)

Re: LAPD investigative reports

• Proper party defendant: The federal FOIA does not apply to the records of local government agencies.

6. Jarvis v. ATF, No. 07-00111, 2008 WL 2620741 (N.D. Fla. June 30, 2008) (adoption of magistrate's recommendation)

Re: First-party investigative records

• Adequacy of search: Plaintiff's unsubstantiated claim that there might be additional documents responsive to his request is insufficient to call into question the adequacy of ATF's search. ATF was able to show that if the documents plaintiff requested exist at all, they exist in the ATF field office in which defendant conducted its search.

• Exemption 7(C): "Defendant has demonstrated without dispute that the witnesses who were interviewed, and the ATF agents and employees who were involved in conducting the investigation into the death of Plaintiff's former wife, have significant privacy interests in their names and the details of their statements." This is true in spite of the fact that many of the witnesses' names may have been disclosed at plaintiff's trial. "[T]he individual privacy exemption in the FOIA is not necessarily vitiated by prior disclosures." Conversely, there is no public interest that would be served by release of this information. "[Plaintiff] has not shown how any particular document would reveal Government misfeasance or would somehow further a similar public interest."

WEEK OF JULY 14

1. Canning v. DOJ, No. 95-2029, 2008 WL 2746079 (D.D.C. July 16, 2008)

Re: Records concerning individuals and groups with ties to Lyndon LaRouche

• Proper Party Defendant: Defendants' motion to dismiss the Treasury Department as a defendant is denied. This litigation commenced while ATF was a component of the Treasury Department and "'all searches and all exemption-claims [sic] were made by Treasury.'" Keeping the Treasury Department as a defendant "will in no way adversely affect the Department of Treasury and, more importantly, will afford Plaintiff the best opportunity to obtain any documents to which he is entitled, as well as ensure full compliance with the Court's orders."

• Adequacy of search: "Although Plaintiff has provided information to suggest that additional responsive information might exist, the Court is satisfied that by searching the official file along with the new databases, the Agency has met its burden of conducting a 'search reasonably calculated to uncover all relevant documents.'" ATF "declarations provide significant detail regarding exactly where . . . the information Plaintiff seeks would be kept."

• Exemption 7(C): The court finds that defendants have not yet shown that they met their obligation, pursuant to a prior court order, to release information identical to information contained in transcripts provided by plaintiff. ATF must prepare an additional declaration on this issue in order for the court to determine whether ATF has complied with its previous order. ATF properly withheld the names of federal, state, and local law enforcement officers, as well as the names and identifying information of individuals interviewed by ATF and the names of persons merely mentioned in the responsive files. Plaintiff failed to show any public interest in the release of this information that would overcome the legitimate privacy interests at stake. With regard to information concerning an individual that was previously released inadvertently, ATF's inadvertent release does not mean that the agency should now be forced to release additional information concerning this individual. "It would be contrary to the spirit of FOIA to deprive an individual of his privacy rights because of an agency's administrative error."

2. Nat'l Sec. Archive v. CIA, No. 06-1080, 2008 WL 2718353 (D.D.C. July 14, 2008)

Re: Plaintiff's status as a representative of the news media

• Mootness: Because defendant has reconsidered its decision to deny plaintiff news media status and agreed to grant plaintiff news media status for its current requests, as well as for all future requests (unless the requests are for commercial purposes), plaintiff's motion for a judgment establishing its status as a member of the news media is denied as moot. Additionally, plaintiff's motion for an injunction barring CIA from denying plaintiff news media status in the future is unripe. CIA has recently revised its relevant regulations to comply with OMB guidelines. Because it is unclear how these new regulations will be applied in the future, "any potential injury that may occur from application of those regulations is far too speculative for adjudication." Plaintiff has presented no evidence that CIA's new regulations are being applied in a way that violates the FOIA. Given the significant changes in CIA's regulations, the court "would benefit from postponement of review until Defendants' 'ongoing policy and practice' has assumed a final form."

3. Hersh & Hersh v. HHS, No. 06-4234, 2008 WL 2725497 (N.D. Cal. July 10, 2008)

Re: Records concerning corporate plea agreements

• Attorney fees: Plaintiff's motion for attorney fees is denied. The vast majority of the documents released to plaintiff were released as a result of defendant's routine processing of plaintiff's request, and not because of the lawsuit filed by plaintiff. (This is true even of a release of documents made after plaintiff filed its complaint, since it is clear that this release "was a continuation of the administrative process.") "The court granted summary judgment . . . in defendant's favor with respect to the vast majority of contested documents," which suggests that plaintiff did not substantially prevail in its lawsuit, especially given the "insubstantial" nature of the information released to plaintiff. "Accordingly, the court finds that plaintiff has demonstrated neither significant relief through a 'judicial order' nor a 'voluntary or unilateral change in position by the agency' with respect to a 'not insubstantial' claim." Furthermore, even if plaintiff was eligible for fees, it did not demonstrate that it is entitled to them. "[T]he commercial benefit to the complainant[] and the nature of the complainant's interest[] strongly counsel against an award of fees." Plaintiff has acknowledged that it filed its FOIA claim because of a separate lawsuit against defendant's contractor, making its strong commercial interest in the information clear. Indeed, "plaintiff essentially used FOIA as a substitute for normal discovery in the separate litigation." Finally, the amount sought by plaintiff was unreasonable in light of the fact that plaintiff made no attempt to segregate out hours spent on its unsuccessful claims from those spent on its successful claims.

WEEK OF JULY 21

1. Public Citizen, Inc. v. Rubber Mfrs. Ass'n, No. 06-5304, 2008 WL 2796873 (D.C. Cir. July 22, 2008)

Re: Disclosure of safety data

• Exemption 3: 49 U.S.C. § 30166(m)(4)(C) is not an Exemption 3 statute, as it does not "'specifically exempt[]' certain matters 'from disclosure' . . . . At most, it specifically exempts [certain safety data] from disclosure under [49 U.S.C.] § 30167(b), a section that expressly states that its disclosure requirement is 'in addition to the requirements of' FOIA."

• Exemption 4: The Exemption 4 issue remains pending

2. Adejumobi v. NSA, No. 08-10286, 2008 WL 2787524 (11th Cir. July 18, 2008) (unpublished disposition)

Re: First-party request

• Exemptions 1 & 3: The ruling of the district court is affirmed. Plaintiff provided no evidence to counter NSA's claim that it could neither confirm nor deny the existence of the requested intelligence records.

3. Brunsilius v. Dep't of Energy, No. 07-5362, 2008 U.S. App. LEXIS 15314 (D.C. Cir. July 16, 2008) (unpublished disposition)

Re: Laboratory test results

• Fee waiver: The district court's ruling is summarily affirmed. Plaintiff "did not adequately demonstrate his ability to disseminate the requested information to the general public in the record before the agency, and therefore, he was not entitled to a few waiver." The Court also found that "[his] indigence and his private litigation interest are not valid bases for waiving fees under FOIA."

1. Gamble v. Dep't of the Army, No. 08-207, 2008 WL 2815445 (D.D.C. July 23, 2008)

Re: Disclosure of personal information

• Proper party defendant: A state national guard unit is normally a state agency and, therefore, not an "agency" for purposes of the federal FOIA. However, when such a unit is activated it becomes a part of the Department of the Army and is subject to the FOIA during its period of activation.

Jurisdiction: The FOIA does not create a cause of action for alleged improper disclosure by a federal agency because "'Congress did not design the FOIA exemptions to be mandatory bars to disclosure.'"

2. Canning v. DOJ, No. 01-2569, 2008 WL 2791856 (D.D.C. July 21, 2008)

Re: Records related to Armored Response Group of the United States (ARGUS)

• Exemption 7(C): The court finds that DOJ's use of Exemption 7(C) was proper. Plaintiff "has failed to prove that there is any public interest in disclosure." He has also "failed to produce any credible evidence 'that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Defendant properly withheld "identifying information," and "justif[ied] the exclusions with particularity, explaining why material was withheld from each document." Plaintiff has not met his burden of showing that defendant improperly withheld documents already in the public domain. The newspaper articles he cites, inter alia, do not "point to 'specific' information identical to that being withheld."

• Exemption 7(D): "[T]he crime of government corruption, while not inherently violent, gives rise to an implied assurance of confidentiality."

• Litigation considerations: The parties will be required to address an apparent contradiction in the record over whether a particular serial has been covered by DOJ's previous filings. DOJ must submit a new Vaughn Index to cover this serial. DOJ has met its obligations with regard to all other documents.

3. Feeley v. U.S. Dep't of Justice Office of Info. and Privacy, No. 07-402, 2008 WL 2788056 (D.N.H. July 15, 2008) (magistrate's recommendation) (unpublished disposition)

Re: First-party request

• Litigation considerations: Plaintiff's complaint "asserts a claim for the improper withholding of properly requested agency records" and, therefore, should be served on defendants. By alleging a request, as well as an administrative appeal, plaintiff has pled a claim of exhaustion of administrative remedies. Plaintiff's other motions, for discovery, appointment of counsel, and transportation to the court, are denied without prejudice as premature.

4. Francis v. FBI, No. 06-0968, 2008 WL 2783234 (E.D. Cal. July 15, 2008)

Re: Records pertaining to the Los Angeles Police Department

• Open America: Defendant's motion for a four month stay is granted. Defendant is ordered to submit monthly status reports until the stay is lifted.

5. Snyder v. DOD, No. 03-4992 (N.D. Cal. Apr. 14, 2008) (unpublished disposition)

Re: Records pertaining to DOD computer modernization and DOD contracting

• Summary judgment: Plaintiff has failed to rebut defendant's "'relatively detailed, non-conclusory' showing of compliance with plaintiff's requests." With regard to certain data requested by plaintiff, plaintiff has not rebutted with "contradictory evidence" defendant's claim that production of this data would require the development of a new computer program, a process which would cost approximately $5,400. Plaintiff has not offered to pay for this, thus defendant is entitled to summary judgment. Finally, as to a third set of data, plaintiff's complaint that defendant "delayed" fixing a problem with the data is not enough to defeat defendant's motion for summary judgment with regard to this information.

WEEK OF JULY 28

1. Stolt-Nielsen Transp. Group Ltd. v. United States, No. 07-5191, 2008 WL 2853214 (D.C. Cir. July 25, 2008)

Re: Antitrust amnesty agreements

• Segregability: The court vacates the district court's grant of summary judgment, finding that the affidavit relied upon by the district court in making its segregability ruling was "conclusory." Relatedly, additional explanations offered by defendant at oral argument to justify its complete withholding of the amnesty agreements requested by plaintiff were found insufficient to show that there was no segregable information that could have been released. Upon remand, the district court is directed to either order additional declarations by defendant or utilize in camera review in order to "strike the balance between protecting [exempted] information and disclosing non-exempt information as required by the FOIA."

2. Hoff v. DOJ, No. 07-4499 (6th Cir. July 23, 2008) (unpublished disposition)

Re: First-party request

• Adequacy of search: The court finds that defendant's "declarations demonstrate that the agency conducted a good faith search using appropriate methods . . . . The fact that the FBI did not locate [plaintiff's] correspondence in response to her initial request does not bear on the adequacy of its search . . . . These documents were kept in a general administrative file, rather than a file bearing [plaintiff's] name, and they were not indexed by her name."

• Litigation considerations: The district court should have granted defendant's summary judgment motion pursuant to Federal Rule of Civil Procedure 56(c), and not dismissed pursuant to Rule 12(b)(1), because "'the jurisdictional question is necessarily intertwined with the merits.'" It was not abuse of discretion for the district court to deny plaintiff's request for discovery, as plaintiff was unable to show that "additional discovery time would have disclosed material facts." Neither did the dismissal violate plaintiff's right to a jury trial. Plaintiff forfeited her right to appellate review of certain other claims by not raising these claims in a timely manner before the district court.

1. Bradley v. BOP, No. 07-68, 2008 WL 2902113 (N.D. W. Va. July 25, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Exhaustion: The only "requests" received by BOP from plaintiff were for the addresses of other institutions, and not for the documents he now seeks. Accordingly, he has not exhausted his administrative remedies.

2. Levy v. USPS, No. 06-1007, 2008 WL 2854158 (D.D.C. July 25, 2008)

Re: Records related to anthrax hoax letters

• Exemption 5: The court finds that USPS failed to show that the documents it withheld pursuant to the deliberative process privilege were either predecisional or deliberative. "The documents consist of correspondence with an outside party and 'external memoranda' . . . and do not fall within the ambit of the deliberative process privilege."

• Exemption 7(C): The court finds that USPS properly invoked Exemption 7(C) to withhold witness statements, information about third parties who played a role in a USPS investigation, as well as information concerning federal, state, and local law enforcement officers. "[T]here are strong privacy interests at stake," and "no countervailing public interest in the disclosure of this material."

• Exemption 7(D): The court finds that "[d]efendant's descriptions of the documents withheld pursuant to Exemption 7(D) are so conclusory that it is impossible for the Court to determine if they were obtained subject to an implied grant of confidentiality."

• Exemption 7(F): USPS properly withheld an interview memorandum that contains information provided by confidential sources and victims of an anthrax hoax. "Although the source of this danger is not specified, it is reasonably conceivable that the release of information given by victims of a hoax involving the deadly anthrax toxin could result in bodily harm or death for those individuals."

3. Manfredonia v. SEC, No. 08-1678, 2008 U.S. Dist. LEXIS 56669 (E.D.N.Y. July 24, 2008)

Re: First-party request

• Litigation considerations: It appears that plaintiff may have failed to meet the FOIA's six-year statute of limitations for filing complaints. However, "in light of plaintiff's pro se status and the liberal construction that is due his pleadings, the sua sponte dismissal of his FOIA claims is not appropriate."

4. Dave Streiffer Co., Inc. v. DHS, No. 07-3012, 2008 WL 2876554 (E.D. La. July 23, 2008)

Re: Documents related to property seizure

• In camera review: Upon completion of in camera review, the court determined that DHS's withholdings were appropriate.

• Costs: Plaintiff is ordered to pay all costs. Plaintiff engaged in "an unjustified 'fishing expedition' that was without merit and based upon representations that were, at best, far fetched - a totally unacceptable use of the FOIA."

5. Barickman v. Bumgardner, No. 07-134, 2008 WL 2872712 (N.D. W. Va. July 22, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Proper party defendant: The federal FOIA does not apply to state agencies.

6. Citizens for Responsibility and Ethics in Washington v. DHS, No. 06-0173, 2008 WL 2872183 (D.D.C. July 22, 2008)

Re: Records related to preparation for and response to Hurricane Katrina

• Exemption 5: DHS appropriately withheld memos containing "'memorialized communications' with the President or his White House advisers or their staff in connection with presidential decisionmaking." "[P]laintiff's argument that the privilege is inapplicable because neither the President nor any other White House employee has seen the . . . documents misses the mark." The withheld documents "are 'revelatory' of presidential decisionmaking because they memorialize actual communications with the President or his staff." Plaintiff "has identified no good reason why the Court should treat these memorialized communications any differently than actual communications." The communications at issue "relate to presidential decisionmaking" concerning the response to Hurricane Katrina.

7. Amsinger v. IRS, No. 08-934, 2008 WL 2845603 (E.D. Mo. July 21, 2008)

Re: Records relating to a trust

• Exhaustion: Plaintiff has failed to allege that he exhausted his administrative remedies. As such, his complaint does not state a claim under the FOIA.

8. Antonelli v. ATF, No. 04-1180, 2008 WL 2856725 (D.D.C. July 22, 2008)

Re: First and third-party requests

• Exemption 7(C): Defendant EOUSA properly redacted third-party names and identifying information from responsive documents, and also withheld in full a ten-page document that does not pertain to plaintiff or a third-party from whom plaintiff had obtained a privacy waiver. Plaintiff has not made any showing that would overcome the strong privacy interests at stake. His claim that documents should be released because of the passage of time "'has no merit' in the absence of an overriding public interest in disclosure." Furthermore, plaintiff has made no showing to support his claim that the withheld documents have been previously acknowledged and/or are in the public domain. (posted 8/21/2008)

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