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

April 7, 2008

FOIA Post

Summaries of New Decisions -- March 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 March 2008.

WEEK OF MARCH 3

1. Juarez v. DOJ, No. 07-5064, 2008 WL 564643 (D.C. Cir. Mar. 4, 2008)

Re: First-party request

• Exemption 7(A): Defendant's affidavits were sufficient to meet the exemption's requirements. The affidavits "describe[d] the withheld documents with reasonable specificity." They also confirm that the investigation of plaintiff remains open, and that release of the withheld documents "would compromise the investigation." Relatedly, "so long as the investigation continues to gather evidence for a possible future criminal case, and that case would be jeopardized by the premature release of that evidence, Exemption 7(A) applies." Plaintiff's argument that DEA has failed to establish a "plausible basis" for its investigation of her is "unpersuasive," as is her claim that DEA's lack of interest in interviewing her shows that DEA is not actually investigating her.

• In camera review: Because of the small volume of documents involved, it would not have been an abuse of discretion for the district court to have ordered an in camera review. "But that does not in itself compel a conclusion that the district court's decision not to conduct an in camera review constituted an abuse of its discretion." Neither was it an abuse of discretion for the district court to neglect to specifically address plaintiff's request for an in camera review in its opinion.

• Segregability: Though under DC Circuit law it is normally reversible error for a district court to not issue a ruling on segregability, "in this instance [there is no need to] prolong the case further by remanding it solely for this purpose." The Court is "just as capable of evaluating the DEA's affidavits regarding segregability as is the court below." On making this evaluation, it is clear "that no part of the requested documents was improperly withheld." Defendant "provided sufficient information in its affidavits to allow a court to affirm withholding of the documents in toto." DEA "justified its inability to simply redact sensitive portions," and it also "attested that release of any of [the withheld] information could jeopardize the investigation."

1. West v. Spellings, No. 06-1012, 2008 WL 590867 (D.D.C. Mar. 5, 2008)

Re: Records related to discrimination and retaliation allegations

• Mootness/creation of record: Plaintiff's complaint with regard to one of his requests is moot, because defendant has produced all responsive documents. The Department of Education "does not maintain a list of uninvestigated complaints of discrimination and retaliation, [though] it released to Mr. West documents from which he could make such a list." Under the FOIA, the Department of Education "is not required to create a new document" in response to a request for records. Defendant has also produced records responsive to the second count of plaintiff's complaint, making this portion of the litigation moot as well.

• Adequacy of search: Defendant's affidavit was sufficient to establish that its search for responsive records was reasonable. Though "four files were missing, FOIA does not require [the Department of Education] to account for them, so long as it reasonably attempted to locate them." Plaintiff's allegation that an unnamed agency employee informed him that the agency maintains additional records that would be responsive "is insufficient to overcome [the] presumption of good faith" accorded to agency declarations.

• Litigation considerations: "Plaintiff points to no intervening change in controlling law, no new evidence, and no need to correct a clear error or prevent manifest injustice" and so his motion for reconsideration is denied.

2. Crawford v. Metcalfe, No. 06-00255, 2008 U.S. Dist. LEXIS 16259 (S.D.W.V. Mar. 3, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Litigation considerations: "The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. In addition, failure to file timely objections constitutes a waiver of de novo review and the petitioner's right to appeal this Court's Order." Plaintiff has filed no objections to the magistrate's report, thus the report will be adopted in its entirety.

3. N'Jai v. Floyd, No. 07-1506, 2008 U.S. Dist. LEXIS 16079 (W.D. Pa. Mar. 3, 2008)

Re: Records related to hiring practices

• Proper party defendant: Neither county agencies or officials nor private law firms are proper party defendants under the federal FOIA.

4. James v. U.S. Customs and Border Prot., No. 06-562, 2008 U.S. Dist. LEXIS 15531 (D.D.C. Mar. 3, 2008)

Re: First-party request

• Adequacy of search: The Customs and Border Protection (CBP) affidavit is sufficient to show that it conducted a reasonable search for records. As to a lab report that is referenced in other documents and which plaintiff claims has not been released to him, defendant has established it would not create such reports itself or receive them from other agencies.

• Exemption 2: CBP properly invoked this exemption to withhold telephone and fax numbers, as well as internal file codes and administrative markings. These numbers are of little or no interest to the public, and access to the computer system codes "'could facilitate improper access to sensitive CBP records.'"

• Exemptions 6 & 7(C): CBP's use of these exemptions to withhold names and identifying information concerning agency officers as well as third parties mentioned in its files was proper. "Both law enforcement personnel and third parties have an interest in avoiding public disclosure of their identities from law enforcement records. Moreover, there is no public interest in the release of this kind of information because its dissemination 'would not help explain the activities and operations of CBP.'"

• Exemption 7(E): CBP properly used this exemption to withhold information concerning the type of search it conducted on plaintiff. If this technique became known, it could enable smugglers and others to neutralize its effectiveness.

• Litigation considerations: The Court will not "[a]t this late stage, when the only named [d]efendant will be dismissed from the case," grant plaintiff's motion for leave to file an amended complaint, adding additional defendants "based on different FOIA requests." Plaintiff had close to two years to seek leave to amend, but did not do so.

5. Radcliffe v. IRS, No. 07-0120, 2008 WL 564677 (S.D.N.Y. Feb. 29, 2008)

Re: First-party request

• Personal knowledge: "It is not necessary that the employee
who performed the search supply an affidavit describing it." Defendant's affidavit, submitted by the
employee responsible for supervising the search efforts, is sufficient to meet
the personal knowledge requirement. Similarly, on the issue of whether release of some responsive documents
would interfere with IRS's investigation, it was sufficient for IRS to submit
the declaration of the employee responsible for making that judgment, even if
this individual did not participate in the investigation of plaintiff. 

• Adequacy of search: Defendant's "declaration sets forth who
conducted the search, which files were searched and how the responsive files
were identified." It "is
sufficient to show that by searching databases and contacting several offices,
the IRS made a good faith effort to search for the requested documents, using
search methods that were 'reasonably calculated to uncover all relevant
documents.'"

• Exemption 3: Relying on 26 U.S.C. § 6103(e)(7), defendant withheld information concerning plaintiff's
tax returns. In order to do this,
defendant must show that the "records are 'return information' or were
compiled for law enforcement purposes" and that
release "would interfere with the law enforcement purpose of Federal tax
administration." Plaintiff's claim
that the withheld records are not "return information" because they
consist mostly of credit card account information initially compiled by a
private company is unavailing, since the records were "received by the IRS
pursuant to summonses during an investigation." IRS has further established that release of
the withheld records would interfere with its investigation. Plaintiff's claim that he already has access
to the information contained in the withheld records is meritless.

• Exemption 7(A): The withheld records are also protected
pursuant to Exemption 7(A), for reasons similar to why they are protected under
26 U.S.C. § 6103(e)(7). IRS has shown that release would interfere
with its ongoing enforcement proceeding against plaintiff. In particular, Exemption 7(A) was designed to
prevent the premature disclosure of information concerning an enforcement
investigation where release would impair the investigation. 

• In camera review: "Because we determined that the declarations
are sufficiently detailed and specific to justify withholding the documents,
and because there is no evidence that the IRS has acted in bad faith, in camera
review is not necessary."

6. Coleman v. Lappin, No. 06-2255, 2008 WL 544601 (D.D.C. Feb. 28, 2008)

Re: Third-party request

• Exemption 7 (threshold): The Court finds that the fact that the subject of plaintiff's request is an employee of the Bureau of Prisons does not, by itself, "establish 'a rational nexus between [any investigation of the subject] and the agency's law enforcement duties." Because BOP has not shown that any responsive records would necessarily be law enforcement records, its use of a Glomar response was inappropriate. BOP must submit further briefs on this issue. 

WEEK OF MARCH 10

1. ICM Registry, LLC v. U.S. Dep't of Commerce, No. 06-0949, 2008 WL 651701 (D.D.C. Mar. 12, 2008)

Re: Documents related to proposed development of .xxx domain for the Internet

• Exemption 4: Defendants have established that documents withheld under Exemption 4 were submitted voluntarily, and that the documents are not customarily disclosed by the submitter. Thus, the agency's withholding was proper.

• Exemption 5:  Plaintiff claims that the "misconduct
exception" to the deliberative process privilege (under which the
privilege may not apply to protect evidence of government misconduct) should
prevent use of the privilege under the FOIA in this case because the government
allegedly "can point to no legitimate policy that it could have been
deliberating."  However, "[w]hatever the boundaries of the misconduct exception, they
cannot be as expansive as ICM declares them to be."  Indeed, in cases where the exception has been
applied, "[t]he very discussion was an act of government
misconduct."  Defendants "do
not need to show that they had direct regulatory authority or that they
had any control over the addition of .xxx to the root registry.  Absent some showing that consideration
of domain name and Internet policy is outside these departments' and agencies'
domains --
and none has been made -- or that they
opposed .xxx for nefarious purposes, their action is not misconduct within the
meaning of the exception to the deliberative process privilege."  The withheld documents are drafts of proposed
agency policy positions, "summaries of or commentaries on interagency
conference calls," and e-mail chains reflecting discussions concerning the
proposed .xxx domain, including questions, and answers to questions, and as
such are all predecisional and deliberative.  The exemption also applies to documents which
reflect internal agency discussions on how to present the agency's role to the
public.  "[D]eliberations
regarding public relations policy are deliberations about policy, even if they
involve 'massaging' the agency's public image."

2.  West
v. Jackson
, No. 07-727, 2008 WL 624035 (D.D.C. Mar. 10, 2008)

Re: 
First-party request; request for records on other agency investigations;
requests for agency policies

• Adequacy of search:  HUD's affidavits "indicat[e]
that it in good faith conducted a reasonable and adequate search."  Plaintiff's requests were sent to HUD's
headquarters; HUD "was not obligated to guess which field offices or
records centers might have responsive documents." 

• Mootness:  Because HUD released to plaintiff all
responsive records it located, plaintiff's action is mooted.

Proper request:  Plaintiff requested "'policies'
regarding HUD Section 8 housing." 
"An agency is not required to provide copies of federal regulations
or perform legal research for the requester." 

3.  Citizens
for Responsibility and Ethics in Washington v. DOJ
, No. 07-1620, 2008 WL
624011 (D.D.C. Mar. 10, 2008)

Re: 
Records concerning alleged discussions of explanation for firing of U.S.
Attorneys with public relations firm

• Adequacy of search:  Despite plaintiff's allegations to the
contrary, DOJ identified the files searched and established that these were the
locations most likely to contain responsive records.  DOJ's affidavit provided sufficient
specificity; not only does it assert that all files likely to have responsive
records were searched, it also identifies who did the searching, and in what
manner.  Furthermore, DOJ searched under
the very terms identified by plaintiff. 

4.  Scarver v. McGlocklyn,
No. 05-2775, 2008 U.S. Dist. LEXIS 18270 (E.D.N.Y. Mar. 4, 2008)

Re: 
First-party request

• Adequacy of search:  The agency's affidavit was sufficient to show
that its search for responsive records was adequate. 

• Exemptions 6 & 7(C):  The FBI properly used these exemptions to
withhold the names of two FBI employees as well as the phone number of one FBI
employee. 

• Discovery:  "Plaintiff's allegations are purely
speculative and somewhat delusional." 
Discovery is denied.

5.  Durham
v. U.S. Attorney General
, No. 06-843, 2008 WL 620744 (E.D. Tex. Mar. 3,
2008) (adoption of magistrate's recommendation)

Re: 
Grand jury balloting

• Exemption 3:  The material requested by plaintiff is
generally protectible under Federal Rule of Criminal
Procedure 6(e).  Plaintiff has not
demonstrated a "particularized need" for the grand jury ballots, so
he cannot overcome the general rule of nondisclosure for this type of
information. 

WEEK OF MARCH 17

1.  Banks
v. DOJ
, No. 06-1950, 2008 WL 701211 (D.D.C. Mar. 16, 2008)

Re:  First-party request

• Proper party defendant:  Neither the United States Probation Office
nor the Administrative Office for United States Courts are "agencies"
for purposes of the FOIA.  Thus,
plaintiff's complaint is dismissed as to these two defendants.

• Exhaustion:  Both the Treasury Department and the State
Department have demonstrated that they did not receive FOIA requests from
plaintiff.  Thus, the complaints against
them are dismissed for failure to exhaust administrative remedies.  Plaintiff's complaint against defendant
United States Postal Inspection Service (USPIS) is dismissed because the agency
did not receive proper certification of plaintiff's identity, which is required
under its regulations.  Plaintiff failed
to exhaust administrative remedies with regard to defendant EOUSA by virtue of
his failure to pay search fees associated with his request.  EOUSA's assessment of fees was proper, as was
its aggregation of plaintiff's multiple (but related) requests. 

• Adequacy of search:  The declaration by USPIS, which states that a
"responsible person" searched for responsive records in two USPIS
field offices, is insufficient to show that the search was adequate, because it
in no way "describes the means by which these 'responsible persons'
conducted the search or searches, nor adequately explains the systems of
records or places searched."  Similarly, defendant BOP's declaration did not explain which systems of
records were searched, nor did it establish that BOP's decision of which
databases to search was reasonable. 

• Exemption 7(C):  Defendants USMS and EOUSA properly invoked
Exemption 7(C) to withhold information pertaining to third parties, including
law enforcement officers, prisoners, and other individuals.

2.  Westbrook
v. M-R P'ship
, No. 07-140, 2008 WL 711866 (N.D.
Ind. Mar. 14, 2008)

Re:  First-party request

• Litigation considerations:  Plaintiff's attempt to use a request for
subpoena as a means of avoiding paying fees and avoiding the regular channels
of the FOIA's administrative appeals process is improper.

3.  Mayer,
Brown, Rowe & Maw LLP v. IRS
, No. 04-2187, 2008 WL 682447 (D.D.C. Mar.
14, 2008)

Re:  Records relating to IRS revenue rulings, settlement guidelines, and an
official IRS notice

• Exemption 5:  Because there is "an absence of
proof" that documents withheld pursuant to the deliberative process
privilege have been incorporated or adopted as statements of agency policy,
their withholding was appropriate.  However, withholding documents where the decisionmaking process was determining what information "'should and should not [be]
convey[ed] to a wider
audience'" was inappropriate, because this decisionmaking process is "too removed from an actual policy decision."  IRS also erred in withholding a document that
may express its (unknown) author's opinions but does not appear to have been
shared with anyone.  Though sometimes an
unshared document can contribute to a decisionmaking process by helping the author to "coalesce[]"
his thoughts, there is no evidence that this occurred here.  Furthermore, the document in question appears
to have been postdecisional rather than predecisional.  IRS's
decision to withhold handwritten notes in the margins of released articles was
appropriate.  The notes represent their authors'
opinions on relevant subject matter and contributed to agency
deliberations.  Other handwritten notes
prepared by employees during the deliberations likewise were properly
protected.  IRS also
properly withheld documents that reflected ongoing deliberations on issues
still under consideration and documents that discussed "'areas that needed
more analysis.'"  Draft press
releases must be released.  A portion of
one of the drafts contains sections that were in fact used in interactions with
the public.  As to the other portions,
they must be released because "they do not 'bear on . . . policy
formation.'"  Similarly, drafts of
letters to be sent to the Department of Transportation must be released because
"interagency politics is not the stuff of agency policymaking."  A document which reflects an agency
employee's concerns regarding the agency's analysis of a particular issue
(concerns which were then raised in person to an agency official) was properly
withheld. 

4.  Ctr.
for Biological Diversity v. OMB
, No. 07-04997, 2008 WL 686102 (N.D. Cal.
Mar. 13, 2008)

Re:  Records concerning development of fuel economy standards for light
trucks

• Fee waiver:  The Court finds that OMB's argument that
plaintiff's fee waiver request should be denied because any released documents
are already publicly available fails in light of the fact that plaintiff's
request specifically asks for documents "'not already posted on the [I]nternet.'"  Similarly, OMB cannot refuse to grant a fee waiver on the basis that
most of the responsive documents would be withheld under the deliberative
process privilege.  As an initial matter,
it is unclear that this is definitely true.  The documents are likely to be predecisional,
but there may be significant portions that are not deliberative.  Furthermore, a fee waiver request should be
judged "'based on the face of the request' and the reasons given by the
requester in support of the waiver."  Though the "court is wary of allowing [plaintiff] access to OMB's
documents based upon a generalized allegation that the OMB may be in violation
of law," plaintiff has shown that release would inform the public
concerning OMB's analysis on fuel economy standards. 

5.  Rodriguez
v. McLeod
, No. 08-00184, 2008 WL 683558 (E.D. Cal. Mar. 10, 2008)

Re:  First-party request

• Litigation considerations:  Plaintiff has alleged a violation of the FOIA
by three named defendants, all of whom are employees of the Department of
Justice.  Therefore, service is proper
upon these defendants in their official capacities.  The clerk of the court shall provide
plaintiff with the necessary forms. 

6.  Hall
v. CIA
, No. 04-814, 2008 WL 631247 (D.D.C. Mar. 10, 2008)

Re:  Records concerning POW/MIAs, as well as records pertaining to the
searches for responsive records

• Litigation considerations:  CIA's motion to strike plaintiff's
declaration is granted.  Plaintiff claims that CIA waived any right to challenge his
declaration because it did not challenge a declaration plaintiff filed in a
prior case against CIA and which, allegedly, is "'largely similar'"
to this one.  However, plaintiff
did not attach this earlier declaration, so the court has no basis upon which
to make a judgment regarding the similarity of the declarations.  Even if plaintiff is correct about the
similarity of the declarations, there is nothing in prior case law which
suggests that defendant's failure to challenge the declaration in one case
constitutes waiver of its right to challenge the declaration in an entirely
different case.  In addition, plaintiff
has not made a convincing argument that defendant should be estopped from challenging the declaration.  "'[E]stoppel is applied against the
Government with the utmost caution and restraint.'"  Additionally, "[t]here is no question
that [portions of plaintiff's declaration] contain statements not based on
Hall's personal knowledge."  Plaintiff's
claim that his declaration should not have to conform with the clear personal knowledge requirement of Rule 56(e) is wholly unfounded,
regardless of the purpose the declaration allegedly serves in the
litigation.  Similarly, plaintiff's claim
that his declaration should be admitted because it relies on his
"perception" of things he claims to have been told relies on a
"startling" interpretation of Rule 701 of the Federal Rules of
Evidence.  The logic of plaintiff's
argument would nullify "the entirety of hearsay jurisprudence."  Plaintiff's claim that he does not seek to
admit his statements to prove their truth is "patently
disingenuous."  Plaintiff's attempt
to have his declaration admitted under Rule 807 is also unavailing.  His statements "lack the required
'circumstantial guarantees of trustworthiness.'"  Furthermore, paragraphs in plaintiff's
declaration that reference documents not provided by plaintiff are stricken, as
well as paragraphs where the supporting documents supplied by plaintiff would
force the Court to "search for needles in haystacks."  Finally, even if plaintiff was correct that
he is an "expert," his testimony would still not be admissible.  Any probative value his testimony might have
is "outweighed by its hopelessly partisan nature." 

• Discovery:  Even if the magistrate court's jurisdiction
extended to plaintiff's motion for additional discovery, he has filed no
affidavit in support of this motion, contrary to the clear requirement of Rule
56(f).

WEEK OF MARCH 24

1. Democratic Nat'l Comm. v. DOJ, No. 07-712, 2008 WL 803421 (D.D.C. Mar. 27, 2008)

Re: Records sent to or from "GWB43.com" e-mail address

• Exemption 5: DOJ properly invoked Exemption 5 to withhold e-mails exchanged between the Department and White House staff using the "GWB43.com" e-mail address. Plaintiff's argument that the e-mails cannot be protected because they were sent to or from e-mail accounts created by the Republican National Committee fails; "plaintiff's position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications." In fact, "RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications." The Court noted that the issue of whether the Presidential Records Act was violated is "not before this Court and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5." Plaintiff did not "argue that these documents could not properly be withheld had they been sent through official e-mail accounts."

2. Bestor v. FBI, No. 06-1745, 2008 WL 789099 (D.D.C. Mar. 26, 2008)

Re: First-party request

• Litigation considerations: Plaintiff's motion for reconsideration pursuant to Rule 60(b) is denied as to his requests to FBI Headquarters and to FBI's Seattle Field Office. There is no change in relevant Circuit law to be considered, and plaintiff has provided no newly discovered evidence for the Court to consider. However, pursuant to Rule 59(e) the Court will vacate its ruling as to plaintiff's request to the Washington Field Office because plaintiff has made clear that he never intended to submit this issue to the Court as part of his complaint. But plaintiff's motion for reconsideration regarding Headquarters and Seattle requests is denied under Rule 59(e) as well. Plaintiff's "bald assertion" the that FBI is withholding documents is insufficient to show that the Court's initial ruling was in error. 

3. Zarcon, Inc. v. NLRB, No. 06-3161 (W.D. Mo. Mar. 25, 2008)

Re: Request for affidavit

• Attorney fees: The new fee shifting standard established by the amendments to the FOIA made by the OPEN Government Act do not govern actions taken by agencies prior to the amendments' date of passage, December 31, 2007. To hold otherwise would unfairly require NLRB "to pay fees under a new law that they did not and could not consider at the time that they decided to settle their dispute with plaintiffs." Thus, this case is judged under the previously prevailing Buckhanon standard. Because NLRB released an affidavit voluntarily (as part of a settlement agreement) rather than pursuant to a judicial order, plaintiff does not qualify as a "prevailing party" and therefore is not eligible for an award of attorney fees.

4. Consumer Fed'n of Am. v. USDA, No. 04-1788, 2008 WL 754858 (D.D.C. Mar. 22, 2008)

Re: Request for official calendars of six agency officials

• Adequacy of search: The Court finds that though USDA's initial searches "were inadequate," the agency has now met its burden on this issue, by providing affidavits describing "the comprehensive array of electronic locations searched." 

• Motion for sanctions: Because of the acknowledged inadequacy of USDA's initial searches (a problem which led to the loss of some of the responsive documents), and as a means of deterring future similar problems, plaintiff has moved for sanctions, including possible referral of defendant to its Office of Inspector General or the Office of Special Counsel. This motion is taken under advisement. USDA is ordered to submit a supplemental declaration detailing what steps it will take in responding to future FOIA requests, especially those involving electronic documents, as well as what steps the agency will take in the future to avoid a repeat of the loss of documents that occurred in this case.

5. Banks v. Lappin, No. 07-0309, 2008 WL 760422 (D.D.C. Mar. 22, 2008)

Re: First and third-party requests

• Proper party defendant: Plaintiff's claims against the Offices of the President and Vice-President, as well as his claim against Congress are all dismissed because these entities are not "agencies" under the FOIA and are not subject to its requirements. 

• Exhaustion: All other defendants except for the Library of Congress and EOUSA have established that they did not receive FOIA requests from plaintiff. Plaintiff claims to have mailed these requests, but "[t]he mailing of a FOIA request to a federal government agency does not constitute its receipt by the agency." Thus, plaintiff has not exhausted his administrative remedies. With regard to defendant EOUSA, the Court cannot determine on the current record whether any request by plaintiff was actually received. 

• Proper request: Though defendant Library of Congress did receive correspondence from plaintiff, it was "so broad that it did not qualify as a proper request" because it did not reasonably describe the records plaintiff was seeking. Thus, although the Library of Congress received the letter, "in effect, it received no FOIA request at all." 

6. Columbia Snake River Irrigators Ass'n v. Lohn, No. 07-1388, 2008 WL 750574 (W.D. Wash. Mar. 19, 2008)

Re: Records pertaining to recommendations concerning harvesting of endangered salmon

• Exemption 5: The National Marine Fisheries Service (NMFS) properly invoked Exemption 5 to withhold predecisional, deliberative documents that were generated as part of NMFS's decision on how to respond to a report critical of agency policy. The critical report "exposed underlying conflicts" among private groups whose interests NMFS must balance, and the agency "was forced to exercise 'policy-implicating judgment' in deciding upon an appropriate response." Though plaintiff claims that many of the withheld documents were factual and not deliberative, "the process of prioritizing facts and conclusions and weighing their importance and relevance is often an exercise of judgment that can affect Agency policy. . . . Further, 'disagreement over factual issues and the strength or weakness of factual underpinnings' reflects 'the give-and-take of the consultive process.'" However, for some of the withheld documents, the Court finds that NMFS has not adequately demonstrated what deliberative process was implicated or, in some cases, whether the withheld documents were in fact part of any decisionmaking process. In other documents, the agency may have improperly withheld factual materials. For the documents in which NMFS has failed to meet its burden, the Court will review the documents in camera in order to make a determination. For the documents submitted in camera, NMFS will be allowed to submit an additional brief explaining its decision to withhold. 

7. Information Network For Responsible Mining (INFORM) v. Dep't of Energy, No. 06-02271, 2008 WL 762248 (D. Colo. Mar. 18, 2008)

Re: Records relating to proposed uranium leases

• Mootness: Though defendant did not respond to plaintiff's request by the statutorily imposed deadline, it has now completed its processing of plaintiff's request. Thus, any claims that plaintiff might have had with regard to the timeliness of defendant's response are moot. 

• Adequacy of search: Plaintiff claims that defendant impermissibly restricted its search to its active files. However, "this misstates the evidence. [Defendant's declaration] establishes without question that both active and inactive computer files were searched initially." This search led to a reasonable determination by the Department that only active files would have responsive records. 

• Personal knowledge requirement: Defendant's declaration does not constitute hearsay, as it "does not purport to introduce any statements from the withheld documents for the truth of the matters asserted." Furthermore, the declaration "more than adequately establishes the basis for [defendant's declarant's] knowledge of the matters set forth therein." 

• Vaughn Index: The Department of Energy's Vaughn Index and declarations "identify specifically each document withheld, state specifically the statutory exemption claimed, and explain specifically how disclosure would damage the interests protected by the claimed exemption." 

• Exemption 4: The Court finds that defendant's use of this exemption to withhold mining plans and reports, as well as documents containing royalty information and other "sensitive" information, was proper under both the impairment and competitive harm prongs. The information withheld "would not have [been] voluntarily provided . . . if defendant had not so required." It is "plain common sense . . . that disclosing this information would impair defendant's ability to obtain similar information in the future." Dissemination of this type of information "would potentially give competitors a potent weapon and an unfair competitive advantage in any future bidding on the subject properties." Release of certain of the withheld documents "could allow competitors insight into the [submitters'] business operations and strategic planning process that would detrimentally impact the operators' competitive positions in bidding on other contracts." 

• Exemption 5: The Department properly invoked this exemption to protect documents submitted to it by three contractors the agency hired to assist in the management of its Uranium Leasing Program. Documents created by contractors pursuant to an agreement with the agency to advise the agency qualify as intra-agency documents. The withheld documents "represent the contractors' findings and recommendations regarding management of the subject leases" and as such "[t]here can be little question" that they are "subject to the deliberative process privilege." (posted 4/07/2008)

Go
to: Main FOIA Post Page

Topic(s): 
FOIA Post