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

July 21, 2008

FOIA Post

Summaries of New Decisions -- June 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 June 2008.

WEEK OF JUNE 2

1. In re Bond, No. 08-1379, 2008 U.S. App. LEXIS 11713 (4th Cir. June 2, 2008) (unpublished disposition)

Re: First-party request

• Litigation considerations: Plaintiff's petition for a writ of mandamus is denied. "Mandamus may not be used as a substitute for appeal." Plaintiff "has appealed from the district court's dismissal of his FOIA action and may obtain any relief to which he may be entitled through his direct appeal."

2. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008)

Re: Agency studies pertaining to broadband access systems

• Exemption 5: The court finds that FCC erred in withholding its studies. "It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment." Furthermore, the deliberative process privilege "'does not authorize an agency to throw a protective blanket over all information . . . . Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only those internal working papers in which opinions are expressed and policies formulated and recommended.'" The court finds that FCC adopted and incorporated by reference the withheld documents. As a result, they can no longer be considered "internal working papers."

1. Fischer v. FBI, No. 07-2037, 2008 WL 2248711 (D.D.C. May 29, 2008)

Re: First-party request

• Exhaustion: The court finds that plaintiff's suit should not be barred in spite of his failure to file an administrative appeal. In response to plaintiff's initial request in 1995, the FBI had withheld in full responsive records pursuant to Exemption 7(A). This determination was upheld on appeal by OIP in 1996. However, in 2006, OIP reversed its prior affirmance and remanded the request to the FBI, determining that continued use of Exemption 7(A) was no longer appropriate. The FBI then re-processed the responsive records, releasing some portions and withholding others pursuant to several exemptions. Plaintiff did not file an administrative appeal of this second FBI determination, but instead filed the current action. The court found that "[h]aving already appealed once, plaintiff, who is not represented by counsel, understandably viewed OIP's latter decision as a victory entitling him to disclosure of the requested documents without the need for further administrative action . . . . Under these circumstances, consideration of the merits would not undermine the 'purposes and policies underlying the exhaustion requirement.'"

2. Ford v. DOJ, No. 07-1305, 2008 WL 2248267 (D.D.C. May 29, 2008)

Re: Case transcripts and criminal file

• Adequacy of search: "An agency's lack of success in locating responsive records does not render the search inadequate where the agency's supporting declarations establish its compliance with FOIA . . . . [T]he Court concludes that defendants' search was reasonable under the circumstances and that its 'no records' response was proper."

• Exhaustion: Although plaintiff initially requested his entire criminal case file, he subsequently narrowed that request to a request for several transcripts. Thus, plaintiff's request for these transcripts is the only request "properly before the Court." (Plaintiff has subsequently made a new request for his entire case file which EOUSA is currently processing).

WEEK OF JUNE 9

1. Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, No. 07-05278, 2008 WL 2331959 (N.D. Cal. June 4, 2008)

Re: Communications with telecommunications carriers and Members of Congress regarding proposed amendments to Foreign Intelligence Surveillance Act

• Attorney fees: "Defendant concedes that plaintiff is eligible for an award of attorney's fees and costs." The court finds that by "securing a preliminary injunction against defendant, plaintiff has obtained 'the judicial imprimatur' necessary to satisfy Buckhannon." The court also finds that plaintiff is entitled to such an award. The preliminary injunction the court granted to plaintiff sped up the production of responsive documents. Such documents were immediately posted on plaintiff's website, thereby "add[ing] to 'the fund of information that citizens may use in making vital political choices.'" Moreover, there is "no evidence" that plaintiff brought this suit to further any commercial interests of its own. "[A]s a nonprofit organization, plaintiff is the sort of requester that Congress intended to recover attorney's fees under FOIA." Finally, the court finds that ODNI "failed to establish a reasonable basis for its refusal to release the documents earlier." Plaintiff's requested fee award was reduced from the original requested amount. While the hourly rates it proposed for work performed during 2007 were reasonable, it did not show that the increased rates for work performed in 2008 were justified. Furthermore, its requested number of hours was too high "in light of the nature of this litigation and the level of skill required." Defendant's request to further reduce plaintiff's award because of plaintiff's alleged "'limited degree of success'" and improper billing methods is denied. Plaintiff's request for costs is granted in full.

WEEK OF JUNE 16

1. Taylor v. Sturgell, 128 S. Ct. 2161 (2008)

Re: Technical documents related to vintage airplane

• Litigation considerations: Overturning a ruling of the D.C. Circuit, the Court held that plaintiff's FOIA suit was not barred by a prior suit seeking the exact same documents filed by an individual with whom plaintiff has a close association. Though there are exceptions to the rule against nonparty preclusion, none of them apply to this case. Prior cases "provide no support for the D. C. Circuit's broad theory of virtual representation." Furthermore, "Congress' provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion." The risk of multiple lawsuits over the same documents is not sufficient to "justif[y] departure from the usual rules governing nonparty preclusion." The case is remanded for a finding on whether plaintiff is acting as the agent of the plaintiff in the prior suit; the burden of proof is on the agency to show such a relationship.

1. Citizens for Responsibility and Ethics in Washington v. Office of Administration, No. 07-964, 2008 WL 2405038 (D.D.C. June 16, 2008)

Re: Records pertaining to alleged loss of e-mail records

• Proper party defendant: The court finds that the Office of Administration (OA) is not an "agency" subject to the FOIA. In making this determination, the court first considers whether OA "exercises 'substantial independent authority'" and whether OA's "'sole function is to advise and assist the President.'" Utilizing this analysis, the court determines that "OA's charter documents make clear that OA was established in order to assist and advise the President." The charter documents do not "invest OA with any authority beyond providing administrative services to the components within [the Executive Office of the President (EOP)]." Furthermore, though "OA has substantial operations," this fact does not establish that it "exercises 'substantial independent authority.'" OA "'does not oversee and coordinate federal programs . . . or promulgate binding regulations,'" nor does it "have statutory duties to report to Congress." Indeed, the court finds that "the record is devoid of evidence that OA has 'substantial independent authority' to direct executive branch officials, [or] 'possess[es] any delegated regulatory authority to supervise agencies,' or has the 'power to issue formal, legally authoritative commands to entities or persons within or outside the executive branch.'" The court further evaluates the issue of OA's status by considering how close operationally OA is to the President, the nature of the delegation from the President to OA, and whether OA has a self-contained structure. Though "OA has a self-contained structure and . . . is not as close to the President operationally as other EOP components that have been found not to be agencies . . . the Court finds that the nature of OA's delegation of authority from the President dispositively establishes that it is not an agency subject to the FOIA." The court finds that "OA is correct in asserting that it 'has no program or policy responsibilities, nor does it have any power to issue formal, legally authoritative commands to entities or persons outside the EOP." This shows that "the nature of OA's delegated authority is entirely dissimilar to that of the other EOP components that the D.C. Circuit has found to be agencies subject to the FOIA." Furthermore, the fact that OA previously considered itself subject to the FOIA "is not 'probative on the question before the court.'" Likewise, the fact that OA complies with other federal statutes "does not bear upon its legal status under the FOIA." Finally, plaintiff's assertion that the records in question should be subject to the FOIA because they were created during a period when OA considered itself an agency is unfounded. "OA was never under a FOIA obligation to provide [plaintiff] with the documents it requested."

2. Muhammad v. U.S. Customs & Border Prot., No. 08-0457, 2008 WL 2390497 (D.D.C. June 13, 2008)

Re: Records related to seizure of money from plaintiff

• Mootness: Although plaintiff claims that Customs and Border Protection's (CBP) initial failure to process and disclose two pages of responsive documents constituted "'gross negligence'" on defendant's part (and that he was prejudiced by the delay in a related proceeding), rather than an "'administrative oversight/error,'" as defendant claims, these claims "are beyond the scope of [the] Court's jurisdiction." Instead, under the FOIA "once the Court determines that the agency has, 'however belatedly, released all nonexempt material, [it has] no further judicial function to perform.'" Because of this, plaintiff's FOIA claim is moot.

• Adequacy of search: Even if plaintiff's claim was not otherwise moot, CBP would be entitled to summary judgment because its search for responsive records was reasonable. CBP's "human error does not render the search inadequate or suggest bad faith on the agency's part."

• Sanctions: Plaintiff's claim for relief for CBP's delayed production of the two records under the FOIA does not meet the statutory requirements. The court has not ordered the production of withheld records or awarded attorney fees, nor has there been a written finding by the court that CBP personnel acted arbitrarily or capriciously.

3. Proctor v. Higher Educ. Assistance Found., No. 07-839, 2008 WL 2390790 (S.D. Ohio June 9, 2008)

Re: First-party request

• Proper party defendant: The federal FOIA does not govern the actions of state agencies.

WEEK OF JUNE 23

1. Miller v. DOJ, No. 05-1314, 2008 WL 2544659 (D.D.C. June 24, 2008)

Re: First-party request

• Adequacy of search: "FBIHQ cured any defect in its first search by conducting a second search. The court concludes that, taken together, the searches of FBIHQ were reasonable and calculated to uncover all relevant records."

• Exemption 1: Defendant Army's declaration "adequately supports [its] decision to withhold information pertaining to military operations" pursuant to § 1.4(c) of Executive Order 13292. Defendants Army and State Department each sufficiently explained their decisions to withhold information pertaining to foreign governments under § 1.4(b), but defendant Air Force has not met its obligation for withholding under this section. Defendants FBI, Defense Intelligence Agency (DIA), State, and Army all appropriately withheld information whose release could compromise intelligence activities, sources, or methods pursuant to § 1.4(c). Defendants State and Army each withheld information in order "'to protect foreign relations or foreign activities of the United States'" under § 1.4(d). Defendant Army properly withheld information "pertaining to vulnerabilities, capabilities or plans relating to national security on the ground that it could reasonably be expected to cause serious damage to national security" pursuant to § 1.4(g).

• Exemption 2: Defendants FBI and Army properly withheld telephone and fax numbers and internal addresses as "low 2" information. "The numbers are predominantly for internal agency use and are trivial administrative matters of no genuine interest to the public." FBI also appropriately withheld a symbol number assigned to a confidential source under "low 2," as this number "is an internal administrative tool of no genuine interest to the public." Defendant ATF appropriately withheld computer codes "'utilized for the organization of data in [ATF's] Firearms Trace System Database,'" both because this information is of "no legitimate interest to the public" and because release of this information "'would risk circumvention of law enforcement and investigatory efforts.'" Defendant DIA properly withheld trivial internal office codes. Defendant DEA properly withheld internal codes that are assigned to particular information and individuals. Disclosure of these records would provide information about individuals and those associated with them, and would also allow requesters to ascertain DEA priorities in its investigations. Defendant FBI also properly withheld a form used to develop psychological profiles of criminals; disclosure could impair FBI's ability to make use of this law enforcement technique.

• Exemption 3: FBI withheld information relating to its use of wiretaps, pursuant to 18 U.S.C. §§ 2510-20. However, its declaration "neither explains that it had no discretion on the decision to withhold this information nor sets forth the particular criteria applied in reaching its decision to withhold the wiretap information in full." ATF properly withheld firearms trace reports taken from the contents of its Firearms Trace System Database (information collected pursuant to 18 U.S.C. § 923(g)), because in the Consolidated Appropriations Acts of 2003 and 2005 Congress specifically barred the expenditure of funds to disclose this information. DIA appropriately withheld information that would "identify the names, office affiliations and titles of DIA personnel," as such information is protected from disclosure pursuant to 10 U.S.C. § 424(a). Defendant EOUSA properly withheld documents whose release would "reveal the scope of [a] grand jury and the direction of [its] investigation."

• Exemption 5: FBI properly withheld records reflecting predecisional, deliberative communications between law enforcement officials in the United States and St. Kitts and Nevis. Pursuant to the attorney-work product privilege, DOJ's Criminal Division appropriately withheld internal memoranda (including drafts) that were prepared in connection with efforts to have plaintiff extradited and in anticipation of prosecuting him on drug charges. The Criminal Division also properly withheld a "formal opinion" prepared by an English attorney who provided expertise on St. Kitts law not possessed by DOJ attorneys. The State Department withheld a draft telegram, however "it is not clear that the information at issue is deliberative in that it 'makes recommendations or expresses opinions on legal or policy matters.'" Pursuant to the attorney-client privilege, State properly withheld a telegram in which a government attorney expressed his opinion concerning an ongoing case, and also withheld portions of telegrams which contained information pertaining to the conduct of the case against plaintiff. EOUSA properly withheld materials relating to a grand jury investigation pursuant to the attorney work-product and deliberative process privileges.

• Exemption 6: Defendants DIA, State, and Army each withheld information which would identify named individuals. In none of these cases would release of this information shed light on an agency's performance of its duties.

• Exemption 7 (threshold): Defendants FBI, Criminal Division, ATF, and DEA all were able to show that the records they withheld pursuant to a subsection of Exemption 7 were law enforcement records. The court finds that defendant State did not show that the records it withheld pursuant to Exemptions 7(C) and 7(D) were, in fact, compiled for law enforcement purposes; State must "clarify its position."

• Exemption 7(C): Defendants FBI, Criminal Division, ATF, and DEA properly withheld the names of agents and support personnel, as well as other federal employees and local and foreign law enforcement personnel. Release of this information could cause harassment of the individuals in question and would in no way shed light on the agencies' performance of their duties. FBI also appropriately withheld information pertaining to third parties of investigative interest to the FBI or other law enforcement agencies. Release of this information could cause harassment, embarrassment, or other forms of harm to these individuals, but would not enhance the public's understanding of the FBI's performance of its duties.

• Exemption 7(D): FBI properly withheld information provided by a symbol-numbered source. Release of the information could identify the source, subjecting the source and his or her family to "embarrassment, humiliation, and physical/mental harm," and would impair FBI's ability to secure the cooperation of other sources. FBI also appropriately withheld the identity of an individual who provided information and who specifically requested confidentiality. "[T]he court accepts [FBI's] explanation that disclosure of this informant's identity 'could subject him/her to violent reprisals.'" FBI also "withheld the identity of and information provided by foreign law enforcement authorities." However, "[i]t remains unclear whether these sources provided information under an express grant of confidentiality." Defendants FBI and DEA properly withheld information provided by sources under an implied grant of confidentiality. Due to the fact that the information concerned drug trafficking activities, it was reasonable to infer confidentiality.

• Exemption 7(E): FBI properly withheld a blank version of a form it uses to develop psychological profiles of criminals. "Although it is common knowledge that law enforcement agencies develop psychological profiles, 'the exact nature and type of information used to develop these profiles . . . warrants protection.'"

• Exemption 7(F): FBI properly claimed Exemption 7(F) to protect information concerning a source, certain witnesses, and other third parties. Given plaintiff's alleged violent activities, it is reasonable to suspect that identifying these individuals could put them at great risk.

2. Wilner v. Nat'l Sec. Agency, No. 07-3883, 2008 WL 2567765 (S.D.N.Y. June 25, 2008)

Re: Request for records showing whether the federal government intercepted communications pertaining to plaintiffs' representation of detainees at Guantanamo Bay, Cuba.

• Exemption 3: NSA properly refused to confirm or deny the existence of the requested information, because even a mere acknowledgment of its existence "would reveal the NSA's organization, functions, and activities, in contravention of Section 6 of the [National Security Agency Act of 1959] (NSAA)." Plaintiffs do not contest that this statute qualifies as an Exemption 3 statute. NSA's declarations establish that acknowledging the existence of the information in question would reveal information about NSA's Terrorist Surveillance Program (TSP) and that TSP is a "signals intelligence program," making it part of one of NSA's primary functions. Plaintiffs claim that TSP is an illegal program, but "[t]he Court need not address plaintiffs' substantive arguments concerning the TSP's legality . . . because the language of FOIA Exemption 3 and Section 6 of the NSAA makes clear that the defendants permissibly refused to disclose the information requested by plaintiffs." The "'potential illegality [of the TSP] cannot be used in this case to evade the unequivocal language of Section 6 [of the NSAA].'" The fact that TSP's existence has been acknowledged does not waive NSA's right to utilize the Glomar response in the "narrow" way it has done so here. "Defendants' affidavits sufficiently explain why disclosure [of the requested information] would violate Section 6 of the NSAA. The law is clear that limited voluntary disclosures by the Government do not necessarily require further disclosures sought through FOIA requests where those disclosures fall within a FOIA exemption."

3. Azmy v. DOD, No. 06-15340, 2008 WL 2501053 (S.D.N.Y. June 22, 2008)

Re: Records pertaining to plaintiff's client, a detainee at Guantanamo Bay, Cuba

• Exemption 1: DOD withheld information on plaintiff's client, including intelligence data and assessments, information pertaining to intelligence methods, photographs of plaintiff's client, and intelligence codes. The fact that some of this information has previously been made public in other contexts does not mandate its release here. "'[S]election of and emphasis on particular facts reveals information about the analyst's thought process, the guidelines being applied to analyze the intelligence data, and the limits of or gaps in available intelligence.'" In addition, "withholding intelligence assessments and conclusions reached by analysts and other Government personnel is proper because its disclosure would reveal how intelligence analysts evaluate intelligence information, what information they find credible and what information they discredit, and how they reach their intelligence conclusions." Release of records which reflect intelligence methods employed by the government "'would be of material assistance to those who would seek to penetrate, detect, prevent, avoid or otherwise damage the intelligence operations of the United States.'" Information provided by foreign governments was appropriately withheld because "public release of such information would impair DOD's ability to obtain information from foreign governments in the future."

• Exemption 2: DOD properly withheld threat level assessments of plaintiff's client. Release of information such as this "could theoretically reveal internal 'guidelines' followed . . . in evaluating individual detainees, 'and thereby risk circumvention of U.S. law enforcement and counterterrorism efforts.'" Disclosure of interrogation techniques could lead to efforts to circumvent these techniques. Disclosure of investigative procedures would allow "'persons hostile to the United States [to] discern the types of information the government looks for in conducting terrorism-related law enforcement investigations. Plaintiff's assertion that DOD is withholding "material 'that sets forth and clarifies [DOD's] substantive and procedural law'" is incorrect.

• Exemption 5: DOD properly invoked the deliberative process privilege to withhold "assessments and recommendations prepared by DOD components." Plaintiff's assertion that portions of the withheld records reflect final DOD positions is incorrect. The fact that the relevant DOD decisionmaker signed certain of the documents indicating his decision on certain question does not change the deliberative nature of the recommendations. "His signature indicating his decision says nothing about how he arrived at the decision or what information he found compelling or persuasive in making his choice."

• Exemption 7(A): DOD properly withheld information gathered for law enforcement purposes whose release "could reasonably be expected to interfere with [the agency's] ongoing terrorism and war crimes investigations."

• Waiver: The court finds "tentatively" that certain records must be released because they have been previously disclosed, but defendant will be given an opportunity to dispute this finding.

4. Robinson v. FBI, No. 06-3359, 2008 WL 2502134 (E.D. Pa. June 20, 2008) (adoption of magistrate's recommendation)

Re: Records pertaining to organization Clan Na Gael

• Exemption 1: "The court recognizes that the Hardy declaration may well be the most specific document defendant is capable of submitting without substantial risk of revealing exempt information . . . . However, the court agrees with Judge Angell that the information on record is too vague to allow for meaningful judicial review. Much of the information is redacted with no context other than that the files are the product of an investigation and the redacted material relates to intelligence activities. This does little more than restate category of exception claimed." FBI's request to file a supplemental affidavit and to provide the withheld records for in camera review is granted.

5. Zied v. Barnhart, No. 06-2305, 2008 U.S. Dist. LEXIS 48011 (M.D. Pa. June 20, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Litigation considerations: Plaintiff's claims with regard to FOIA requests she made in October and November of 1999 are time-barred by FOIA's six-year statute of limitations, which began to run as soon as plaintiff's administrative remedies were exhausted. Plaintiff's alleged 2002 request is not time-barred and is therefore not dismissed. The Court cannot evaluate defendant's claim that plaintiff's claim with regard to this request should be dismissed without the benefit of briefing by both parties.

6. Amnesty Int'l v. CIA, No. 07-5435, 2008 U.S. Dist. LEXIS 47882 (S.D.N.Y. June 19, 2008)

Re: Records relating to certain individuals detained by federal government post-9/11

• Adequacy of search: There is "no reason to set aside the presumption of good faith afforded to the Government's declarations." DHS "did not narrowly construe the Request." Furthermore, while it is unclear whether defendant consulted with plaintiff concerning the request, there is "no law requiring such consultation." Furthermore, defendant has asserted "that it 'did not have difficulty understanding the Request's scope.'" Moreover, "[n]or is the Government's delay in responding to the Request evidence of bad faith," especially in light of "the breadth of DHS's search." DHS's declarations "contain sufficient specificity" in order for the court to determine that its decisions concerning where to search were reasonable. "Plaintiffs' assertion that certain documents 'must' exist is too speculative to require further searches . . . . More fundamentally, the documents specifically referenced by Plaintiffs are not responsive to the Request." As a result, "Plaintiffs have not produced positive indications of additional responsive records." Defendant's declarations on the issue of why certain offices would not likely have responsive records "reasonably describe why a search would be futile." Plaintiff's assertion that defendant read its request too narrowly is unfounded. Indeed, "the government's interpretation was the only reasonable approach allowed under FOIA." Plaintiff's suggested approach would in effect force a reading of its request as posing a question - "Who are the subjects of your secret detention program?" - and the FOIA does not require agencies to answer questions. Plaintiff's assertion that certain documents located by defendant should have been taken as "'positive indications of overlooked materials'" is unfounded. Plaintiff's complaint concerning defendant's electronic searches are largely irrelevant due to the use of hand searches in this case.

• Exemption 6: Defendant properly withheld the name and other identifying information of a private individual. The individual has a recognizable privacy interest, and there is no public interest to be served by disclosure of the information.

7. Long v. IRS, No. 74-724, 2008 WL 2474591 (W.D. Wash. June 13, 2008)

Re: IRS statistical information

• Litigation considerations: As IRS is not in compliance with the court's previous orders, it "is in no position to bring a motion to modify." IRS also may not refuse to disclose portions of the responsive records because of their alleged similarity to other responsive records. Plaintiff cannot respond to defendant's claims regarding this alleged similarity without defendant providing plaintiff samples of the records in question. Additionally, IRS waived its right to claim Exemption 5 for some materials by not raising the exemption "before the Court issued its final appealable order on [plaintiff's] initial motion to enforce."

• Exemption 3: Although some of the information contained in the responsive records contains "'raw tax data,'" this information has been extracted from taxpayers' files into a "statistical tabulation," a process which renders it no longer information concerning an identifiable taxpayer, which the IRS would be prohibited from releasing.

• Exemption 5: Even had defendant not waived its right to claim this exemption, defendant failed to show that its use would be appropriate. "The statistical data . . . are not recommendations and do not relate to any budget or spending policy." Furthermore, [d]isclosure of preliminary data, even if adjusted in a later table, does not reveal an Agency's deliberative process." (posted 07/21/2008)

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