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

June 16, 2008

FOIA Post

Summaries of New Decisions -- May 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 May 2008.

WEEK OF MAY 5

1. Lane v. Dep't of the Interior, 523 F.3d 1128 (9th Cir. 2008)

Re: Request for records concerning investigation of plaintiff's former supervisor and for records concerning an investigation of plaintiff at her former job

• Litigation considerations: The district court was well within its discretion in denying plaintiff's discovery request. "A district court 'has wide latitude in controlling discovery, and its rulings will not be overturned in absence of a clear abuse of' [discretion]." It was wholly reasonable for the district court to determine that plaintiff's discovery request was burdensome, and "to delay . . . until after it ruled on the government's Summary Judgment motion."

• Adequacy of search: Defendant's declarations are sufficient to show that its search for responsive records was adequate.

• Standard of review: Though defendant's affidavit was "'some-what conclusory,'" and "may not constitute an adequate factual basis for the [district] court's decision," on appeal, the full record was available to the appellate court for review. Having undertaken an in camera review, the appellate court concludes there is no basis for remand to the district court.

• Exemption 7(C): The district court correctly concluded that plaintiff's former supervisor has a privacy interest in the withheld records relating to an investigation of the supervisor, as do the individuals who were interviewed as part of the investigation and whose names appear in the file. Conversely, plaintiff "does not clearly articulate the public interest in the disclosure of the requested documents." Even though the public interest is "heightened" because the former supervisor "is a high level employee," plaintiff "must provide more than a 'bare suspicion' of agency misconduct," a burden she has not met. The records plaintiff has requested "will at most provide information about [her former supervisor's] actions on one day . . . [they] will reveal nothing about the activities of the agency as [a] whole."

2. Gupta v. DOJ, No. 06-56818, 2008 WL 1960940 (9th Cir. May 6, 2008)

Re: Third-party request

• Exemption 7(C): The district court correctly concluded that defendant's use of Exemption 7(C) to withhold documents pertaining to a third-party's alleged detention at Logan Airport in September 2001 was appropriate. The disclosure "could reasonably be expected to constitute an invasion of [the third-party's] privacy, and [plaintiff] failed to demonstrate any government impropriety that would support the public interest in the release of the documents."

3. Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021 (9th Cir. 2008)

Re: Report on investigation of fatal fire

• Exemption 6: The court has "little difficulty in concluding that the names and identifying information contained in the Cramer Fire Report meet the 'similar file' requirement of Exemption 6." Forest Service employees who responded to a fire and whose names were mentioned in a report on the fire have a privacy interest in having been mentioned in the responsive file, though this privacy interest may be "diminished" where responsive records might reveal official misconduct or where the affected employees hold more senior-level positions in an agency. The employees mentioned in the report were all "'low and mid-level' employees." Moreover, "although the Forest Service has disciplined six of these employees, none has been accused of official misconduct and the remaining employees were merely cooperating witnesses." Further, it is likely that disclosure of the employee names would lead to unwanted attention from plaintiffs, as well as members of the media. Also, disclosure may subject the employees to "embarrassment and stigma" from being associated with the "heavily critici[zed]" agency response to the fire. Conversely, "by [plaintiff's] own admission, the identities of the employees alone will shed no new light on the Forest Service's performance of its duties beyond that which is already publicly known." Plaintiff "instead seeks to contact these employees itself to determine what occurred at the Cramer Fire and to confirm the veracity of the publicly available reports." The court has "previously expressed skepticism at the notion that such derivative use of information can justify disclosure under Exemption 6."

1. Skrzypek v. U.S. Dep't of Treasury, No. 06-1129, 2008 U.S. Dist. LEXIS 36934 (D.D.C. May 7, 2008)

Re: Records of communications from private individual concerning plaintiff

• Jurisdiction: "NSA's response to what 'in essence is a new FOIA request' [is] beyond the scope of this litigation."

• Adequacy of search: The affidavit submitted by defendant NSA "lists the databases searched . . . and sufficiently explains why those databases are the most likely to have contained records responsive to plaintiff's original request." In light of this, "[t]he court finds no disputed material fact on the adequacy of the NSA's search" and finds the search to have been "reasonable."

• Exhaustion: Defendant FBI's motion to dismiss because of plaintiff's failure to pay fees is denied. Exhaustion is "'a jurisprudential doctrine' rather than a jurisdictional requirement." However, "[b]ecause no factual dispute exists with regard to plaintiff's nonpayment of the assessed fee, the court finds that defendant is entitled to judgment as a matter of law based on plaintiff's failure to exhaust administrative remedies."

2. Davis v. Astrue, No. 06-06108, 2008 WL 1944134 (N.D. Cal. May 2, 2008)

Re: Statistical analysis and investigative reports related to plaintiff's underlying disability claim

• Jurisdiction: The court finds that defendant's assertion that "jurisdiction over a FOIA claim exists only when a party has exhausted administrative remedies prior to filing suit" is an overly "rigid interpretation of the law." Plaintiff has now cured the jurisdictional defects that existed at the time he initially filed suit.

• Litigation considerations: Defendant SSA has not shown that inclusion of FOIA claims in plaintiff's amended complaint would be "futile" based on its assertion that "SSA properly withheld requested documents," because "[t]he pleadings and motions . . . contain no support for this allegation." Therefore, "futility has not been shown." Neither is the court convinced that granting plaintiff's request for class certification will render plaintiff's attempt to amend his complaint futile. Defendant has not shown that "FOIA claims are not amenable to class prosecution."

3. Browder v. Fairchild, No. 3:08CV-P15-H, 2008 U.S. Dist. LEXIS 35603 (W.D. Ky. Apr. 30, 2008)

Re: First-party request

• Exhaustion: Plaintiff did not file administrative appeals of defendant's initial responses to his requests. Therefore, he has not exhausted his administrative remedies and his lawsuit is dismissed.

4. Aguirre v. SEC, No. 06-1260, 2008 WL 1934342 (D.D.C. Apr. 28, 2008)

Re: First-party employment records and records pertaining to SEC investigation

• Adequacy of search: The court finds that "there can be no doubt that the SEC has failed to demonstrate the adequacy of its search." SEC's declaration "lacks detail and it makes no reference whatsoever to the search terms or methods used." However, defendant's claim that it provided a document to plaintiff that plaintiff claims he was not provided with is "'entitled to a presumption of good faith'" and "[p]laintiff has failed to produce evidence that overcomes this presumption."

• Exemption 3: The court finds that "the law does not support the SEC's position that the Investment Advisers Act [15 U.S.C. § 80(b)-10(b)] is an Exemption 3 statute." Because "[t]he Investment Advisers Act does not mandate the withholding of any particular type of information," but instead "gives the SEC unfettered discretion . . . as to what it can withhold, it cannot qualify as an Exemption 3 statute."

• Exemption 4: The court finds that the SEC has provided "no basis upon which to conclude that disclosure [of portions of transcripts] would impact the quality or reliability of the information available to the SEC." The court finds that "witnesses examined by the SEC have a diminished expectation of privacy," because when "the SEC issues a subpoena it informs witnesses that their testimony could be provided to 'bar associations, other professional associations, witnesses, private collection agencies, consumer reporting agencies, members of Congress, other government agencies (local, state, national and foreign), the press, and the public.'" Consequently, the court finds it "hard to understand how disclosure under FOIA would constitute any type of impairment."

• Exemption 6: The court finds that documents concerning a former Associate Director of the SEC and his new, outside employer do not constitute "similar files" covered by Exemption 6. Furthermore, even if they were covered by the exemption, the public interest in disclosure would "greatly outweigh[]" any privacy interest, due to "alleged conflict[s] of interest" involving the former employee, allegations that have been "covered extensively by the national press and [a] Senate Report." The former employee's resignation form and a "personal e-mail about travel" were properly withheld, as were evaluations pertaining to other employees. For these latter documents, "plaintiff has failed to demonstrate how this information is relevant to the [SEC's] investigation or his employment at the SEC." SEC improperly redacted the names of SEC employees mentioned in records pertaining to plaintiff's employment and termination. The court finds that "Exemption 6 does not cover 'information merely identif[ying] the names of government officials who authored documents and received documents '." Furthermore, even if this information was covered by the exemption, the information does "not implicate the privacy interests of the individuals whose names have been redacted." Conversely, the court finds that "the public interest in disclosure is significant," because "[t]hese documents go to the heart of plaintiff's claim that he was fired in retaliation for his work on the [SEC] investigation."

• Exemption 7(C): The court finds that "[w]hile there is a [sic] undoubtedly a strong presumption in favor of withholding law enforcement records under Exemption 7(C), information that is probative of allegations of official misconduct can rebut this presumption." In this case, "[t]he evidentiary standard is easily met." The Senate Report uncovered "potential improprieties" by the SEC, "allegations [which] are much more than 'bare suspicion.'" Furthermore, SEC has "interpreted 'personal information' more expansively than is permitted by the case law." SEC has failed to note the "clear distinction between one's business dealings, which obviously have an affect[sic] on one's personal finances, and financial information that is inherently personal in nature." Even if this information could be said to be covered by Exemption 7(C), there is still a strong public interest in disclosure, because of the records' connection to "the heart of the allegations in this case." Any privacy interest would be "negligible," due to the fact that the records cover information "already widely available in the Senate Report."

WEEK OF MAY 12

1. Hall v. DOJ, No. 06-01540, 2008 WL 2042500 (D.D.C. May 14, 2008)

Re: Investigative report concerning plaintiff

Vaughn Index: The court finds that DOJ's Vaughn Index is not "sufficiently detailed." Additionally, DOJ did "not sufficiently correlate its redactions with particular claims of exemption." For some pages where multiple exemptions were claimed, it was unclear which exemptions applied to which redactions.

• Exemption 5: The court finds that DOJ did not meet its burden for use of the deliberative process privilege for all of the withheld pages. "It is not enough to state the documents relate to a deliberative process, DOJ must identify the specific deliberative process at issue." Similarly, in order to withhold an e-mail pertaining to "contract negotiations and offers," defendant "must identify the specific negotiations and contracts involved and the role the e-mail played in the negotiations and offers." A description of documents as "'reflect[ing] the deliberative process regarding the progress of and procedure used in the Unisys investigation'" is too vague to justify withholding. Finally, "DOJ does not adequately demonstrate that disclosure would harm the decisionmaking process." Its "descriptions are too broad and do not constitute specific proof of the harm that would result from disclosure." Conversely, plaintiff's contention that the Investigative Report must be released as a final agency decision is meritless, since defendant merely took the report into account when deciding whether or not to discipline plaintiff.

• Exemption 6: The court finds that "DOJ merely asserts, in vague and conclusory fashion, that the redacted information relates to a small group of employees and that release of the redacted information will lead to identification and harassment." Furthermore, DOJ improperly withheld names of individuals whose names were disclosed elsewhere in released materials. However, plaintiff's contention that DOJ's release of employee names in some places demonstrates that these employees' privacy interests are de minimis is baseless. Moreover, "[p]laintiffs do not demonstrate how release of the redacted information will benefit anyone but themselves." Therefore, "there is no public interest to balance against the witnesses' privacy interests."

• Segregability: "Because DOJ fails to describe the redacted portions with requisite specificity, and because DOJ does not adequately explain its use of FOIA exemptions, the court cannot reach the issue of whether reasonably segregable information has been disclosed." Further briefing is ordered.

2. Robert v. DOJ, No. 05-2543, 2008 WL 2039433 (E.D.N.Y. May 9, 2008)

Re: Multiple requests, including first and third-party, as well as requests for investigative reports

• Litigation considerations: Plaintiff has moved to withdraw without prejudice several of his claims. With regard to two of these, defendants do not object, but as to the others, defendants object and plaintiff's motion is denied. The court finds that plaintiff "has a documented history as a vexatious litigant." Furthermore, "Defendants have been put to the considerable expense of preparing affidavits and memoranda of law" as to these claims. Finally, plaintiff's "reasons for withdrawing his claims are not convincing." The newly added mediation provision in the FOIA, 5 U.S.C. § 552(h) "does not require or encourage the staying of ongoing FOIA litigation in favor of mediation."

• Adequacy of search: In response to two of plaintiff's requests, defendant EOUSA informed plaintiff that it had no responsive records. As to one of these requests, EOUSA provided an affidavit describing the search for responsive records; summary judgment for defendants is granted. As to the other, EOUSA failed to submit an affidavit describing the search; summary judgment is therefore denied. As to two other of plaintiff's requests, defendant EOUSA did not perform a search because the requested information "was not maintained by the EOUSA." However, the court finds that "[a]n agency may not satisfy its burden to search for documents with a conclusory statement that it does not maintain such documents." In this case, the court finds that "it is not clear that [EOUSA's affiants] have knowledge of EOUSA [operational] practices and procedures sufficient for the court to credit their assertions that EOUSA does not maintain the requested documents." EOUSA is given leave to file a further affidavit on this point. In response to another of plaintiff's requests, defendant SSA's "affidavit provides no detail regarding the structure of the file systems searched and how the search was conducted." Further submissions are ordered.

• Exhaustion: As to two of plaintiff's requests, defendants have attested that plaintiff did not exhaust his administrative remedies, either by failing to file an administrative appeal or by failing to provide proper certification of his identity. Plaintiff has provided no evidence to counter these assertions. Thus, the court lacks subject matter jurisdiction over these claims. As to a third request, plaintiff failed to pay the fees associated with the request, thus the court lacks jurisdiction over this claim as well.

• Exemption 5: The court finds that defendant EOUSA properly utilized the attorney-work product privilege to withhold eight pages of case file notes. Plaintiff "concedes" that point. Because plaintiff "has made no showing of bad faith," EOUSA has satisfied its burden of proof.

3. United States v. Meisner, No. 07-8162, 2008 WL 2026279 (D. Ariz. May 9, 2008)

Re: Request for court reporter's tapes

• Proper party defendant: The judicial branch is not subject to the FOIA.

4. CNA Holdings, Inc. v. DOJ, No. 07-2084-B, 2008 WL 2002050 (N.D. Tex. May 9, 2008)

Re: Records related to a price fixing investigation

• Exemptions 6 & 7(C): DOJ is ordered to produce several court documents. DOJ's Vaughn Index indicates that these documents match documents listed in PACER entries in a related criminal case in the Western District of North Carolina. Thus, these documents are in the public domain and, as such, cannot be withheld. DOJ did not show that the documents are no longer publicly available.

• Exemption 7(D): DOJ's use of this exemption was proper. "The [r]ecords reflect detailed information given by the source to the Special Agent during multiple interviews, including identification of third parties and their involvement in the alleged cartel under investigation." Plaintiff argues that DOJ's source should not be considered a confidential source because he discussed his cooperation with his alleged co-conspirators. However, "the inquiry is not whether [the source] chose to divulge the information he gave to the FBI to others." Instead, the "inquiry is whether, under the circumstances, [the source] believed that the FBI would not openly divulge the information he gave to it." The circumstances of the case clearly indicate that the source spoke to the FBI with the understanding that his conversations would not be divulged. The fact that the source's identity has now been revealed does not enable DOJ to disclose the information he provided; instead, the test is whether the source understood that he would be protected at the time he spoke with the agency. Because the court has found that DOJ correctly treated the source as a confidential source, a letter from the source's attorney to DOJ is also covered by this exemption.

5. Fisher v. DOJ, No. 07-2273, 2008 U.S. Dist. LEXIS 38925 (D.N.J. May 9, 2008)

Re: First-party request

• Procedural matters: The court finds that plaintiff failed to meet the 60-day deadline for filing an administrative appeal of EOUSA's response to his request. Although plaintiff mailed his appeal within 60 days, it was not received by the appellate authority until after the appeal deadline had passed. The "prison mailbox rule," by which plaintiff's appeal would be considered filed as of the day plaintiff presented it to prison officials for mailing, has been held not to apply in connection with "'statutory or regulatory schemes that clearly require[] actual receipt by a specific date.'"

6. Labella v. FBI, No. 07-2330, 2008 WL 2001901 (E.D.N.Y. May 8, 2008)

Re: First and third-party requests

• Adequacy of search: "The FBI has . . . conducted a search 'reasonably calculated to discover' documents responsive to [plaintiff's] FOIA requests." Plaintiff has failed to show that a search using the FBI's National Name Check Program (NNCP) would have provided a more comprehensive search, "on the contrary, it appears that a search using NNCP is . . . like that which has already been conducted in response to [plaintiff's] FOIA request." Instead, plaintiff's insistence on a NNCP search appears to be an attempt to make an end-run around FBI regulations which specify that requests for FBI field office records must be made to specific field offices. The FBI's use of the NNCP to assist other government agencies does not constitute waiver of its right to insist that FOIA requesters comply with its regulations. Furthermore, "[d]efendants' affidavits . . . provide sufficient detail of the scope and method by which their searches were conducted." The affidavits indicate the indices searched and the search terms utilized. Contrary to plaintiff's claim, the "FBI is not required to disclose the actual identities of the personnel who conducted these searches." Finally, the FBI's decision to limit its search for records to the FBI offices to which plaintiff's requests were directed does not constitute bad faith on the FBI's part, neither does defendant's failure to preserve one of plaintiff's requests. Plaintiff has not submitted any evidence to contradict the FBI's claim that this failure was simply "due to a computer glitch."

WEEK OF MAY 19

1. Pickering-George v. Registration Unit, DEA/DOJ, No. 07-1303, 2008 WL 2091307 (D.D.C. May 19, 2008)

Re: Request for DEA "special instruction"

• Litigation considerations: Under the FOIA, federal courts have no authority to order monetary damages or grant mandamus relief.

• Exhaustion: DEA has no record of ever having received a FOIA request from plaintiff, nor did the Office of Information and Privacy locate any administrative appeal from plaintiff. The address plaintiff claims to have sent his request for DEA records is not the correct address for DEA FOIA requests as listed in DOJ's regulations. Because there is no record of plaintiff having correctly filed a FOIA request, he has not exhausted his administrative remedies.

2. Wildlands CPR v. U.S. Forest Serv., No. 06-101, 2008 U.S. Dist. LEXIS 40139 (D. Mont. May 14, 2008)

Re: Records pertaining to Forest Service travel management programs

• Attorney fees: The court finds that the fee shifting provision of the OPEN Government Act (OGA) should be applied retroactively. Under this standard, plaintiff is eligible for an award of attorney fees as a "prevailing party" based upon a voluntary consent decree the parties entered into before OGA's passage. The general rule against retroactive application of new statutes has less effect when it comes to "collateral" matters such as attorney fees awards. The court further finds that holding the Forest Service liable for attorney fees based upon an action that, at the time it was taken, the agency understood would not leave it liable for a fees award does not constitute an "injustice" against the agency. The court also rejects the Forest Service's argument that, because the consent decree provides relief to plaintiff that differs from what plaintiff initially sought in its suit, plaintiff has not "obtained relief" for purposes of a fees award. Language in the consent decree stating that the decree does not establish that plaintiff is a "prevailing party" does not operate as a bar to an award of attorney fees if the statutory requirements are met. "The parties cannot circumvent the law by contract." The court also finds that plaintiff is entitled to an award of fees. There is a public benefit from release of the information plaintiff sought. The court also rejects defendant's claim that plaintiff's request was so unclear and potentially broad that defendant had no way of knowing what information plaintiff actually wanted. "The FOIA contemplates a reasonable reading of requests by the producing agency." Moreover, the court finds that "[c]onstruing any request under the FOIA so as to make the request onerous or absurd is a misapplication of the law and as such it is not reasonable." Plaintiff's fee request is reduced from the amount originally sought by plaintiff. Though the submitted estimate of hours worked by plaintiff's attorneys is "conservative" (and therefore acceptable as submitted), its requested hourly rate for its attorneys is higher than the market rate for attorneys in Montana.

• Exhaustion: Plaintiff did not fail to exhaust its administrative remedies. Defendant failed to respond within the statutory time limit to plaintiff's appeal of the denial of its fee waiver request, thus triggering constructive exhaustion.

3. Davis v. DOJ, No. 88-130 (D.D.C. Apr. 29, 2008) (magistrate's recommendation)

Re: Request for audiotapes from FBI investigation

• Attorney fees: Plaintiff's prior motion for attorney fees was denied on the basis that defendant's release of records was not due to a judicial order. However, because the case continued past the time at which the OPEN Government Act was signed into law, plaintiff's eligibility for attorney fees should now be evaluated retroactively under the standard set out by the newly enacted statute. The court finds that the normal presumption against retroactive application has not been applied to "collateral" issues like attorney fees. Thus, the court will enforce "'the law in effect at the time it renders its decision.'" The court finds that Circuit precedent supports such a holding. The court further finds that plaintiff is entitled to an award of fees. The court finds no need to "decide whether [d]efendant's decision to withhold the tapes had a reasonable basis in law," inasmuch as the other factors to be considered -- including the public interest in release, the absence of a commercial interest in release
on plaintiff's part, and plaintiff's scholarly interest in release of the tapes -- weigh in plaintiff's favor. The court also finds that plaintiff's calculation of the number of hours his attorneys spent working on the case is reasonable.

WEEK OF MAY 26

1. Santini v. Taylor, No. 06-1970, 2008 WL 2190936 (D.D.C. May 27, 2008)

Re: First-party request

• Proper party defendant: The FOIA does not grant courts jurisdiction over individual agency employees, even where these employees are acting in their official capacities. Because plaintiff only sued two individuals, rather than any federal agencies, her complaint must be dismissed with prejudice for lack of subject matter jurisdiction.

2. Diaz v. DEA, No. 07-1671, 2008 WL 2167178 (D.D.C. May 23, 2008)

Re: First-party request

• Litigation considerations: Because plaintiff failed to respond to DEA's opposition and cross-motion for summary judgment, DEA's factual assertions are taken as conceded.

• Exemptions 7(C), 7(D), & 7(F): DEA's use of these three exemptions to protect the identity of and information pertaining to a DEA informant was appropriate. Furthermore, plaintiff made no effort to challenge DEA's invocation of these exemptions.

3. CareToLive v. FDA, No. 08-005, 2008 U.S. Dist. LEXIS 41393 (S.D. Ohio May 22, 2008)

Re: Letters written pertaining to drug application

• Open America stay: FDA's affidavits establish that the agency's FOIA workload is "vastly in excess of that anticipated by Congress." This is particularly true of one of the offices within FDA that was responsible for processing plaintiff's request. Furthermore, "the raw numbers of annual FOIA requests [received by FDA] fail to reflect their size or complexity." The review process for these requests is "extremely time-consuming." Additionally, plaintiff "has failed to overcome the presumption of good faith to which the FDA's affidavits are entitled." The staffing resources available to one of the FDA offices responsible for processing plaintiff's request are "grossly inadequate"; federal courts "routinely recognize that . . . lack of resources should be considered" in ruling on Open America motions. FDA has reduced its backlog of FOIA requests by close to 50 percent over the past five years, thus meeting its obligation to make "reasonable progress" in reducing its backlog. Plaintiff has not addressed FDA's arguments concerning its efforts in this area. FDA has also shown that it has been forced to devote resources to other priorities, including "'unusually heavy litigation demands,'" requests from Congress (the volume of which has increased in recent years), and compliance with multiple legislative enactments. FDA has also shown that it is "exercising due diligence in processing requests on a first-in, first-out basis," which supports a showing that the agency has made a good faith effort "to process [plaintiff's] FOIA request in a timely manner."

• Exhaustion: In its opposition to FDA's request for an Open America stay, plaintiff for the first time claims that it is entitled to expedited processing of its request. Because plaintiff did not raise this claim during the administrative processing of its request, and therefore did not create a factual record sufficient to allow FDA to rule on this claim, plaintiff has not exhausted its administrative remedies on this issue. "[N]o record exists for the Court to review and, therefore, Plaintiff's claim is not 'ripe.'"

4. Donham v. U.S. Forest Serv., No. 07-111, 2008 WL 2157167 (S.D. Ill. May 21, 2008)

Re: Documents related to new Forest Service regulations

• Litigation considerations: One of the requested documents "is a non-governmental copyrighted document, to which [defendant] only has access pursuant to a licensing agreement." This document is available for sale on the web site of American National Standards Institute (ANSI), which created the document. The court finds that under Federal Rule of Civil Procedure 19, ANSI is a required party, therefore, plaintiff is ordered to join ANSI to the suit. A ruling on USFS's withholding of the ANSI document is postponed.

• Exemption 5: The Forest Service's use of Exemption 5 to protect two draft documents was proper. The documents "'reflect[] internal agency discussions and opinions" and do not represent official agency policy. Upon in camera review, the court "agrees" that the documents were both predecisional and deliberative. The documents "are precisely the kind of documents that Exemption 5 and the deliberative process privilege seek to protect from disclosure." The court further finds that the "drafts reflect agency employees' thinking about the merits and consequences of enacting a particular regulation and/or policy." (posted 6/16/2008)

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