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

October 31, 2008

FOIA Post

Summaries of New Decisions -- September 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 September 2008.  

WEEK OF SEPTEMBER 1

1. Singh v. FBI, No. 07-1064, 2008 WL 4056223 (D.D.C. Aug. 31,
2008)

Re: First-party request

• Procedural: The FBI conducted a reasonable search.

• Exemption 1: The FBI appropriately utilized Exemption 1 to
withhold a "numerical designator" for an intelligence source to protect
the identity of the source.

• Exemption 2: Defendants DEA and ICE properly used "low 2" to
withhold internal telephone numbers and computer terminal and other
codes. This information is trivial and of no public interest. Defendant
ICE correctly applied "high 2" to protect certain distribution and
apprehension codes whose release "'would reveal sensitive law
enforcement information' about ongoing investigations, and could
result in 'the alteration or deletion of valuable information contained in
[ICE's] system.'"

• Exemption 3: Defendant FBI's use of Exemption 3 to withhold
the identities of individuals subpoenaed to appear before a grand jury,
as well as the records subpoenaed, was proper. Additionally,
defendant ATF appropriately used Exemption 3 to withhold Firearms
Transaction Records. Congress has prohibited the use of federal funds
to release such records.

• Exemption 5: The court finds that defendant ICE failed to meet
its burden of showing that a document withheld pursuant to the
deliberative process privilege reflected predecisional, deliberative
communications. ICE may file a renewed motion on this issue.

• Exemption 7(C): Defendants FBI and ICE properly withheld
information identifying their agents and support personnel and local
and foreign law enforcement officers. Such withholding "routinely is
upheld." Defendants FBI and DEA also withheld identifying information
concerning third parties who had either assisted the agencies in their
investigations or who were mentioned only incidentally in law
enforcement files. Defendant EOUSA withheld a draft plea agreement
concerning a third party. These withholdings were proper.
"Exemption 7(C) recognizes that the stigma of being associated with
any law enforcement investigation affords broad privacy rights to
those who are connected in any way with such an investigation unless
a significant public interest exists for disclosure. . . . Plaintiff
demonstrates no such public interest."

• Exemption 7(D): Defendant FBI used Exemption 7(D) to
withhold identifying information concerning confidential sources who
provided the FBI information under an implied assurance of
confidentiality. These informants provided information that was
"'singular in nature'" and related to an investigation of plaintiff that
resulted in his indictment on drug charges and passport fraud.
However, the court notes that plaintiff was only convicted of passport
fraud and finds that the FBI did "not establish that there is such
violence and risk of retaliation attendant to the crime for which
plaintiff was convicted" (passport fraud) to justify the use of an implied
grant of confidentiality.

2. Williams v. PNS Stores, Inc., No. 07-2191, 2008 U.S. Dist.
LEXIS 66309 (S.D. Cal. Aug. 28, 2008)

Re: First-party request

• Proper party defendant: "The FOIA does not apply to private
corporations, which defendants claim to be."

• Litigation considerations: Plaintiff is granted leave to amend in
order to plead that defendants are "agencies" as defined by the FOIA.

3. Ramsey v. Mansfield, No. 07-01793, 2008 WL 3984589 (D.
Colo. Aug. 26, 2008) (adoption of magistrate's recommendation)

Re: Information concerning plaintiff

• Litigation considerations: Plaintiff's claim for monetary
damages is dismissed, as the FOIA does not authorize such claims.

4. Am. Small Bus. League v. SBA, No. 08-00829, 2008 WL
3977780 (N.D. Cal. Aug. 26, 2008)

Re: Contracts awarded small businesses by the federal
government

• Procedural matters: The court finds that the records requested
by plaintiff, i.e., a list of the small business entities and contract
amounts upon which a report issued by SBA was based, are agency
records of the SBA, notwithstanding the fact that they are maintained
by the General Services Administration (GSA) and are merely utilized
by defendant. The court finds that "the SBA was in 'control' of the
records at the time the League made its FOIA request because
although it did not have direct access to the raw database, it had the
authority and in fact exercised such authority to direct GSA to analyze
the database and extract information from it." In light of the fact that
Congress has given the SBA the responsibility of promoting the
interests of small businesses, "[t]he court finds curious the SBA's
argument that it does not 'control' the very information it needs to
carry out its duties and functions." The court also finds that the SBA
had "created" the records because "[a]lthough GSA provided to SBA
only an aggregate total value of contracts awarded to small
businesses, in computing that statistic, the underlying raw data
concerning individual firms and the contract amounts awarded must
have already been created and in existence." The court finds that the
failure to print out that information or to save it as a separate file
"does not imply that such records had not been 'created' at the time of
the FOIA request." Finally, the court finds that despite the fact that
GSA "happens to maintain and house the data" while it was SBA that
received the FOIA request, "the relationship between GSA and SBA is
such that the records maintained by the GSA are effectively the
records of SBA itself."

WEEK OF SEPTEMBER 8

1. Sliney v. BOP, No. 07-1425, 2008 WL 4146796 (D.D.C. Sept. 10,
2008)

Re: Tape recordings of phone conversations made from prison
phone

• Mootness: BOP's motion for summary judgment is denied
without prejudice. BOP argues that plaintiff's claim is moot, because
he has been provided with the tapes of his portions of the responsive
phone conversations. However, the court finds that BOP's declarant
has not established that he took sufficient steps to ensure that what
was released to plaintiff was, in fact, a complete recording of
plaintiff's portions of the relevant conversations. BOP may file a
renewed motion.

2. Salas v. OIG, No. 07-1706, 2008 WL 4146789 (D.D.C. Sept. 10,
2008)

Re: First-party request

• Adequacy of search: OIG's "declarant adequately explain[ed]
the agency's reasons for limiting the search to the OIG Investigations
Division database." The evidence submitted by plaintiff pertains to
criminal proceedings against him and "do[es] not pertain the issue at
hand," i.e. whether OIG's search was reasonable.

• Exemption 6: OIG properly withheld names and identifying
information of Border Patrol employees. Plaintiff has failed to show a
public interest in release of this information that is "of such magnitude
that it outweighs the agency employees' substantial privacy interest."

3. Catledge v. Mueller, No. 07-2116, 2008 U.S. Dist. LEXIS 81735
(N.D. Ill. Sept. 10, 2008)

Re: National Security Letters (NSLs) pertaining to plaintiff

• Exemption 7(E)/Glomar: The FBI has shown that while its use
of NSLs is "generally known to the public, 'the manner of use and
subject[s] of the NSLs [are] not.'" Furthermore, it was appropriate for
the FBI to refuse to confirm or deny whether plaintiff is the subject of
an NSL, because doing so "would compromise [NSLs'] effectiveness as
a tool for counterterrorism and counterintelligence investigations."

4. Bullock v. FBI, No. 07-1013, 2008 WL 4147126 (D.D.C. Sept. 9,
2008) (granting summary judgment in part to defendants, but requiring
further justification for other part)

Re: First-party request

• Waiver: An audiotape played in open court during a criminal
trial and admitted into evidence is "part of the public domain and
cannot be withheld under any FOIA exemption." Defendants are
ordered to inform the court whether the audiotape currently being
withheld is one that has been played in court or whether it is some
other tape. DEA-6 reports have not become part of the public domain
because they were not admitted into evidence. The fact that they may
have been "discussed at trial" is not sufficient to "bring them into the
public domain," nor is the fact that they may have been turned over by
the government pursuant to pretrial discovery. Finally, the fact that
these reports may constitute Brady material is not relevant to the
question of whether the reports are part of the public domain.

• Exemption 2: Defendants properly withheld internal codes and
telephone numbers. Defendants also properly withheld "information
about 'law enforcement operations' that would enable violators to
'avoid detection and arrest.' While this [description] is somewhat
vague, courts have generally protected such information under similar
circumstances."

• Exemption 7(C): Defendants properly withheld the names of
law enforcement officers and third parties mentioned in the responsive
records. Plaintiff's "'bare and undeveloped allegations'" that records
were falsified in his case are not enough to call into question
defendants' use of this exemption.

• Exemption 7(D): "Defendants are withholding the [DEA-6]
reports in their entirety because 'information about the plaintiff is
inextricably intertwined with information about the confidential source
and third parties. Release of any of the information could enable the
plaintiff to identify the confidential source.'" Plaintiff's argument that
the information should be released because the alleged "confidential
source is deceased and her identity is publicly known" is unavailing.
"Exemption 7(D) applies even when the source's identity is no longer a
secret," and also applies even after the death of a confidential source.
Plaintiff has not shown that the exact information contained in the
DEA-6 reports was disclosed at trial, thus he has not shown that
defendants waived the right to use Exemption 7(D). Defendants also
showed that the confidential source was given an express grant of
confidentiality.

5. The Edmonds Inst. v. U.S. Dep't of Interior, No. 04-1560 (D.D.C.
Sept. 9, 2008) (Order)

Re: Request for agreements pertaining to removal of biological
materials from National Parks

• Procedural matters: Plaintiff's request for a status conference
related to his civil action, which was terminated two years ago, is
denied. By its own regulations, defendant was not obligated to
commence processing of an August 25, 2005 request until the dispute
over plaintiff's request for a fee waiver was settled. "Because
[plaintiff's] fee waiver issue remained unresolved when the amended
complaint was filed, any claim for the actual production of records
responsive to the August 25, 2005 FOIA request would have been
premature at that time." Plaintiff "retains the option of filing a new
civil action if it now wishes to challenge [Interior's] processing of its
August 25, 2005 FOIA request."

6. Kishore v. DOJ, No. 07-1299, 2008 WL 4126604 (D.D.C. Sept. 8,
2008)

Re: First-party requests

• Litigation considerations: Defendants' motion to dismiss for
lack of subject matter jurisdiction is denied. Even though there is no
record of plaintiff having paid copying fees he owed for released
records, the court "finds it appropriate to proceed to the merits of
[plaintiff's] claim" because of errors defendants made in their initial
processing of plaintiff's request, because defendants claim to have
released all non-exempt records, because defendants "have provided a
record from which the Court may determine the propriety of any
withheld material," and because plaintiff's administrative appeal was
closed due to the filing of his complaint.

• Adequacy of search: The court finds that defendant FBI
conducted a search which "was adequately structured to locate all
responsive records." The court further finds that plaintiff "has not
proffered any evidence to rebut the presumption of good faith
accorded agency affidavits."

• Exemption 2: The FBI properly invoked "low 2" to withhold
telephone and facsimile numbers in which there is "'no legitimate
public interest.'" FBI properly used "high 2" to withhold a form used by
Special Agents "to detail and evaluate search techniques" as well as
information concerning its "'arrest and search operations.'" Release of
this information "could jeopardize the effectiveness of any future"
operations.

• Exemption 3: The court finds that the FBI's use of Exemption 3
to withhold grand jury subpoenas, the identities of those subpoenaed,
and information that would identify records subpoenaed by the grand
jury was proper. "The FBI properly determined that 'disclosure . . .
would clearly violate the secrecy of the grand jury proceedings and
could reveal the inner working of the grand jury." Plaintiff's claim that
he is entitled to receive this information by virtue of the Jencks Act is
"immaterial" to his FOIA request.

• Exemption 5 (Deliberative Process & Attorney Work-Product):
Defendant EOUSA properly applied this exemption to withhold portions
of one page reflecting the "reasons and rationale for" the
government's decision to decline prosecution. Release would have
disclosed "'trial preparation [and] strategy,'" as well as "'predecisional
communications among government personnel such as discussions of
various litigation issues.'"

• Exemption 7(C): FBI's use of this exemption to withhold
identifying information pertaining to "FBI special agents and support
personnel, non-FBI federal law enforcement employees, state and
local law enforcement personnel, victims, third parties who provided
information, and third parties merely mentioned in the files" was
appropriate. The only public interest asserted by plaintiff to overcome
the privacy interests present was plaintiff's interest in challenging his
criminal conviction. "[H]owever, . . . the public interest in disclosure
'does not include helping an individual obtain information for his
personal use' to overturn a conviction."

• Exemption 7(D): FBI properly invoked this exemption to
withhold the identity of and information provided by an informant
under an express grant of confidentiality as well as an implied grant of
confidentiality. As to the latter, the "'violent nature of the crime for
which plaintiff was being investigated . . . murder for hire'" is sufficient
to justify FBI's use of an implied grant of confidentiality. FBI also
properly "withheld confidential information provided by state and local
law enforcement agencies." Such entities are "specifically include[d]
among protected sources."

• Segregability: FBI's declarant "has not identified the 12 pages
that were withheld in their entirety and discussed the applicable
exemptions. Hence the Court is without sufficient evidence to make a
segregability finding with respect to those pages." Defendant's Motion
for Summary Judgment is denied without prejudice for these twelve
pages.

7. Callaway v. U.S. Dep't of Treasury, No. 04-1506, 2008 WL
4150209 (D.D.C. Sept. 5, 2008)

Re: Records related to plaintiff's criminal trial

• Adequacy of search: Defendant EOUSA has supplied additional
information to show how it conducted its search for a proffer
statement. Plaintiff acknowledges that description sufficient and
defendant's motion is granted as conceded.

• Exemption 7(D): Defendant Customs Service has established
that its sources provided information under an express grant of
confidentiality. Its declarant states that it is Customs' policy "'to
provide a source symbol code only for sources who have been
expressly assured confidentiality.'" Plaintiff failed to address
defendant's showing and so defendant's motion is again treated as
conceded.

8. Bonner v. SSA, No. 06-2051, 2008 WL 4078412 (D.D.C. Sept. 4,
2008)

Re: First-party request

• Exhaustion: The court finds that "there is no dispute that
[plaintiff] filed this lawsuit before he had exhausted his administrative
remedies with respect to [four of the five defendants]." With regard to
defendant Department of State, plaintiff "will be treated as having
constructively exhausted his remedies," due to the fact that State did
not respond to plaintiff within twenty business days.

• Litigation considerations: Plaintiff will be given an opportunity
to respond to the State Department's claim that it has no records
responsive to his request. If he does not do so within 30 days, the
State Department's motion for summary judgment will be granted.

9. Batton v. Evers, No. 07-2852, 2008 WL 4605946 (S.D. Tex.
Sept. 4, 2008)

Re: First-party request

• Exemption 3: Under Exemption 3 and 26 U.S.C. § 6103(a), "the
IRS is authorized to withhold documents that are the actual returns of
third parties, the plaintiff's own return information if it would impair
federal tax administration, notes that are of a deliberative nature such
as opinions, documents that, if released, would violate the privacy
rights of third-parties, documents that identif[y] individuals who are
assisting the IRS; and, documents that, if released, might interfere
with enforcement proceedings. . . . The plaintiff has failed to produce
evidence establishing bad faith on the part of the IRS. . . . More
importantly, the plaintiff has not produced evidence or arguments that
the IRS's assessment concerning its needs is incorrect."

10. Keeper of the Mountains Found. v. DOJ, No. 06-0098, 2008
WL 4193978 (S.D. W. Va. Sept. 4, 2008)

Re: E-mail communications to United States Attorneys Offices in
areas affected by Hurricane Katrina

• Litigation considerations: Plaintiff accepts defendant's
representations that the remaining fourteen documents are either
duplicates or were properly withheld, and so "the court need not
review them in camera."

• Exemption 5: Defendant's declaration has established that
there were no segregable, releaseable portions of two draft letters and
thus it was appropriate to withhold them in full.

11. Minnifield v. Att'y Gen. of the U.S., No. 06-818, 2008 WL
4115890 (E.D. Tex. Sept. 3, 2008) (adoption of magistrate's
recommendation)

Re: Grand jury transcripts

• Exhaustion: "Plaintiff did not file a FOIA request for the
documents sought in this lawsuit. Therefore, the case should be
dismissed for failure to exhaust administrative remedies."

12. Schoenman v. FBI, No. 04-2202, 2008 WL 4053457 (D.D.C.
Sept. 1, 2008)

Re: First and third-party requests, and requests for records on
several organizations

• Litigation considerations: "[T]he State Department correctly
notes that [plaintiff's statement of material facts] consists of verbatim
portions of [Plaintiff's Memorandum in Support of his Cross-Motion for
Summary Judgment] broken into paragraphs and supported by
citations to Plaintiff's own Declaration." As such, it is insufficient to
create genuine issues of material facts.

• Fee waiver: Plaintiff's claim that he is entitled to a fee waiver
is mooted by defendant State Department's decision to release
records to him without seeking fees for search or duplication. "Even
assuming plaintiff's claim that he was entitled to a fee waiver is well-founded, Plaintiff has already 'obtained everything that [he] could
recover by a judgment of this court in [his] favor." Moreover, "[t]o the
extent that plaintiff seeks a declaration from this Court that the State
Department's initial refusal to waive fees was incorrect, 'such a
declaration would be an advisory opinion which federal courts may not
provide.'" The Court went on to state that its "conclusion is not
altered by Plaintiff's suggestion that the State Department may change
its course and charge him fees if required to perform future searching
or copying."

•Adequacy of search: The State Department has established that
it conducted a reasonable search for records. "[T]he Court particularly
notes that the State Department searched both its centralized records
system -- the Central File -- and its decentralized records maintained
by those offices considered likely to have responsive records."
Plaintiff's "mere speculation" that additional responsive documents
exist is insufficient to call into question the adequacy of State's
search, especially given that even if the additional documents in
question did exist, there is no reason to think that they would be
"uncovered by State Department's searches." Additionally, State's
decision not to provide plaintiff with records documenting its search
for responsive records is consistent with its regulations, which apply a
"cut off" date for the search as the day the search for responsive
documents begins. Furthermore, "[i]n asking the State Department to
provide him with documentation that may or may not exist but which,
in any event, was created during the course of searching for records
responsive to Plaintiff's FOIA request, Plaintiff essentially seeks to
have the State Department create or retain such documents. The
Court declines to condone such a request."

• Exemption 3: The State Department properly utilized 8 U.S.C.
§ 1202(f), which treats as confidential "records 'pertaining to the
issuance or refusal of visas or permits to enter the United States'" in
order to withhold a name check request tied to a visa application for
an individual other than plaintiff.

• Exemption 5 (Attorney work-product privilege): Defendant
properly withheld a document created by an attorney "in the context
of an ongoing administrative proceeding that eventually resulted in
litigation," as well as a document which discussed State's "'legal
strategy in the event of a criminal prosecution.'"

• Exemption 6: Defendant has properly withheld the name of an
individual who flew to Hanoi with plaintiff. Plaintiff claims that he may
know the identity of the individual in question and that, in the
alternative, learning this individual's identity would assist plaintiff in
writing his memoirs. However, the fact that plaintiff may know this
individual's identity "does not diminish [the individual's] privacy
interests.'" Furthermore, "the alleged public interest to which Plaintiff
points is simply not the public interest cognizable under" the FOIA.

  

• Exemptions 6 & 7(C): Defendant properly withheld the name of
an individual who traveled with plaintiff to meet President Ho Chi-Minh.
Plaintiff's own declaration stating that the individual in question would
not object to release of his name in no way calls into question the
legitimacy of State's withholding, especially in light of "the continuing
controversial nature of travel to North Vietnam during the war and
because [the responsive] document is part of the records compiled for
the underlying investigation into plaintiff's passport eligibility, and the
revocation of his passport during the 1960s.'" Plaintiff again fails to
assert a public interest of the sort recognized by the FOIA. As to an
FBI legal attaché and two FBI agents, State has failed to indicate
whether it attempted to ascertain whether these individuals are alive.
Until it does so, the court cannot rule on State's withholdings of these
three names.

• Exemption 7 (threshold): State's declaration "clearly
establishes that [three documents] were compiled 'in connection with
[an] investigation [ ] that focus[ed] directly on specific alleged illegal
acts which could result in civil or criminal sanctions.'" Plaintiff claims
that State's activities "'were in essence aimed at political objectives,
not law enforcement,'" however, the court finds that "[i]n support of
his claim, Plaintiff offers only his own self-serving Declaration, which
is insufficient to create a genuine issue of material fact regarding the
State Department's asserted law enforcement purpose."

13. Long v. IRS, No. 74-724, 2008 WL 4083172 (W.D. Wash. Aug.
29, 2008)

Re: IRS audit statistical information

• Litigation considerations: Defendant's motion for a stay
pending appeal is denied. The court finds that "IRS has not
demonstrated a likelihood of success on the merits." The court does
not accept IRS's argument that portions of the reports are based on
data "from only one or two taxpayers [and so] contain undisclosable
return information." Additionally, the court holds that because it "finds
that the requested documents do not contain return information,
denying Defendant's requested stay presents no risk of irreparable
harm to any party." Furthermore, the court continued, "if the Ninth
Circuit agrees with Defendant's argument, the IRS can perform
redactions on future productions."

WEEK OF SEPTEMBER 15

1. Missouri Coal. For the Env't Found. v. U.S. Army Corps of
Eng'rs
, No. 07-2218, 2008 WL 4205798 (8th Cir. Sept. 16, 2008)

Re: Documents concerning Flow Frequency Study

Vaughn Index: The Corps' Vaughn index "contained all
necessary identifying information and stated the applicable
exemption." In combination with "the additional information provided
in the affidavits, we cannot conclude that the Vaughn index was, on
its face, inadequate."

• Exemption 5: Though plaintiff argues that it is "unlikel[y]" that
all responsive documents were properly withheld, it is clear that
plaintiff's request was "obviously tailored to ferret out disagreement or
contradiction that arose in the process of creating the [flow frequency
study]. . . . That these documents could reveal the deliberative
process . . . can be fairly concluded from the Vaughn index and its
supporting affidavits." Furthermore, the court is "not persuaded that
the fact that the [flow frequency] report was ultimately released and
that some of the information in the final report was contained in the
requested documentation affects the deliberative or predecisional
nature of the requested documents."

• Segregability: The district court made no ruling on this issue,
thus the case is remanded back to the district court for a
determination as to whether or not the Corps met its segregability
obligations.

1. Ctr. for Medicare Advocacy v. HHS, No. 05-2266, 2008 WL
4294283 (D.D.C. Sept. 17, 2008)

Re: Records concerning the use of video-conferencing

• Fee Waiver: The court finds that plaintiff has met the
requirements for a fee waiver. "[T]he information sought concerns
activities and operations undertaken by the government in developing
the new video-conferencing hearing system." Although "some of the
released documents were brochures and pamphlets submitted by
private parties seeking to do business with the federal government,"
these documents can "provide insight on the options and factors under
consideration by the agency as it designed and implemented the new
hearings system." Furthermore, although much of the requested
material is already publicly available, "plaintiff can make the
information more accessible to members of the public who cannot
readily locate a particular regulation, provision or report on a
government website."

• Exemption 5: Defendant's use of the deliberative process
privilege to withhold documents reflecting "advice, recommendations,
and suggestions" was proper. "The descriptions of the . . . documents
clearly establish that these documents promote [the] objectives" of
the privilege. Defendant also properly invoked the attorney-client
privilege to protect documents containing "confidential attorney-client
communications" relating to matters on which defendant sought legal
advice. Plaintiff's challenge to the use of this privilege on the basis
that some of the documents are undated "is without merit."

2. Jones v. DOJ, No. 07-852, 2008 WL 4210783 (D.D.C. Sept. 16,
2008)

Re: First-party request

• Litigation considerations: "It is settled in this circuit . . . that
exhaustion of administrative remedies in a FOIA case is not a
jurisdictional bar to judicial review and, thus, is not a defense properly
presented by a Rule 12(b)(1) motion."

• Exhaustion: The court finds that as plaintiff has attested that
he did not receive a response to his FOIA request, defendant's motion
to dismiss cannot be granted. The court finds that the dispute of
material fact is genuine, because "[w]ithout proof that [plaintiff]
received [a response to his request from defendant], and in the face of
[plaintiff's] statement under penalty of perjury to the contrary, and
given the number of individuals and agencies involved in the chain of
this disputed communication, it cannot be said that the evidence 'is so
one-sided that one party must prevail as a matter of law.'"

3. Schoenman v. FBI, No. 04-2202, 2008 WL 4191056 (D.D.C.
Sept. 15, 2008)

Re: First and third-party requests, and requests for records on
several organizations

• Exemptions 6 & 7(C): Defendant State Department was
previously ordered by the court to provide additional documentation as
to its efforts to ascertain whether three individuals whose names were
withheld are alive. The State Department is "warn[ed] . . . that, in the
future, it is required to make efforts to ascertain an individual's life
status before invoking a privacy interest in connection with FOIA
Exemptions 6 and 7(C)." As to one of the individuals, defendant has
established that it is unable to positively identify the person in
question because he is only listed by his last name, which "'is a
common one.'" Though the inability of defendant to positively identify
this individual would seem to reduce the risk of a privacy invasion by
release of his name, defendant's withholding of the name is upheld. If
this individual could be identified, he "would have a more than de
minimis
privacy interest in his name being withheld." Plaintiff has
established no corresponding public interest in release of this
information. "While Plaintiff thus attempts to dress up his personal
interest in discovering which government agents were involved in his
passport-related investigation, the information he seeks would, in fact,
'reveal[ ] little or nothing about an agency's own conduct.'" As to one
former FBI agent whose name was withheld, defendants were able to
ascertain that this individual is less than 100 years old, and therefore
cannot be assumed to be dead under the "100 year rule." There is,
however, no other identifying information as to this individual. The
State Department's decision to withhold this individual's name is
upheld. "To the extent that Plaintiff suggests that he would use the
withheld information to attempt to locate the FBI agent, his own
asserted rationale confirms [the State Department's declarant's]
explanation that 'release of the[ ] [FBI agents'] identity could subject
them to hostility and unwarranted harassment.'" Release of the former
agent's name "'reveals little or nothing about an agency's own
conduct.'" As to a second agent whose identity was previously
withheld, defendants were able to ascertain that this individual is, in
fact, deceased. Therefore, a new release of the document in question
has been made to plaintiff which does not redact this individual's
name.

4. DeMartino v. FBI, No. 06-0879, 2008 WL 4200135 (D.D.C. Sept.
14, 2008)

Re: Records concerning plaintiff and a criminal investigation

• Adequacy of search: "To the extent that plaintiff is challenging
the search for records, he has not stated any facts to question the
FBI's declaration establishing . . . that it conducted a search
reasonably calculated to locate responsive records."

• Exemptions 2, 3, 6, 7(C), 7(D), & 7(E): "To the extent that
plaintiff is challenging FBIHQ's claimed exemptions, he has not
pointed to anything in the record to create a genuine issue of material
fact on the FBIHQ's well-documented bases for redacting information
from the released pages."

• Exemption 7(A): The use of this exemption by the FBI's New
York Field Office was appropriate. "Plaintiff does not refute the FBI's
evidence that the law enforcement proceeding has not concluded in
part because his criminal conviction is not final." Plaintiff's argument
that the records should be released "in the 'interest of justice,'" is
insufficient; "Exemption 7(A) does not authorize" a balancing of
interests by the court. Instead, the FBI's showing "that disclosure of
the responsive records could reasonably interfere with pending and
anticipated law enforcement proceedings" is enough to sustain its use
of the exemption.

• Segregability: Because the FBI did not "describe [seven pages
withheld in full] and explain the applicable exemptions," the court
cannot grant the FBI's motion for summary judgment as to these pages
without further explanation by the FBI concerning these documents.

5. Bruzon v. DEA, No. 07-1393, 2008 WL 4181740 (D.D.C. Sept.
12, 2008)

Re: First-party request

• Exhaustion: "[I]t is uncontested that [plaintiff] filed this lawsuit
after the agency had responded to his FOIA request, but before he had
exhausted his administrative remedies. Thus, [plaintiff] has failed to
establish a condition precedent to, an element of, his FOIA claim."

6. Ercole v. DOT, No. 07-2049, 2008 WL 4190799 (E.D.N.Y. Sept.
10, 2008)

Re: Records pertaining to contracts between government and
private contractor

• Mootness: Because it is undisputed that defendants have
provided plaintiff with the document he requested, plaintiff's complaint
is moot. "[R]ather than complain that the documents he received were
inadequate, plaintiff instead argues that he was unhappy with the
manner in which he received them. The Court does not have
jurisdiction over the relief plaintiff seeks."

7. Nielsen v. BLM, No. 07-1349, 252 F.R.D. 499 (D. Minn. 2008)
(adoption of magistrate's recommendation)

Re: Documents pertaining to the Ballardini Ranch and to the
legislative history of the White Pine Conservation, Recreation, and
Development Act

• Proper party defendant: The court finds that a prior district
court ruling from the District of Colorado which classified BLM as a
"'constituent bureau'" of the Department of the Interior, and therefore
not an agency was "contrary to the intent of Congress." The court
further finds that BLM is "an 'administrative unit with substantial
independent authority in the exercise of specific functions,'" and
therefore qualifies as an "agency" for purposes of the FOIA.

• Res judicata: Although plaintiff "had an aligned interest in
obtaining documents related to the attempted acquisition of the
Ballardini Ranch property" with a prior requester of these documents,
the record does not indicate that the prior requester made his request
on plaintiff's behalf. "Further, no evidence was presented to establish
that plaintiff sought to control or did control [the prior requester's]
decisions in connection with [the prior requester's] FOIA request and
subsequent legal action, nor is there any evidence before this Court
that the Colorado court took any precautions to protect plaintiff's
interests." Therefore, plaintiff's claim is not barred by the doctrine of
res judicata.

• Stare decisis: The court finds that defendant's contention that
the court should uphold defendant's decision to withhold documents
on the basis of the prior court's ruling to that effect is "without merit."
" While a decision of a district court in a different district may be
considered persuasive authority, this Court is not bound by such a
decision under the doctrine of stare decisis to reach the same
decision."

• Adequacy of search: The court finds that defendant's search
for records concerning the Ballardini Ranch was reasonable.
Defendant's declaration details the locations searched, the search
terms used, and the search methodology employed. Plaintiff's
challenge to defendant's choice of search terms is unfounded; there is
no "support for the proposition that a FOIA claimant can dictate the
search terms to be used as the benchmark for determining whether an
agency's search is reasonable." The court further rejects plaintiff's
claim that defendant should have conducted a more extensive search
for records concerning the White Pine Act. BLM's decision to search
the offices of its Legislative Affairs Group was reasonable, and BLM
conducted searches of other offices as well. However, the court finds
that defendant employed too early a "cut off" date in its search for
responsive documents and must conduct a new search that employs a
later cut off date. The court also finds that BLM's "detailed
declarations support a finding that [its] search for documents in [BLM
Nevada offices] . . . was reasonable, except to the extent that [BLM
employed too early a cut off date]." Finally, the court finds that
plaintiff did not meet his burden to show that BLM's search was not in
good faith.

• Waiver: The fact that the United States Forest Service had
previously released a document to plaintiff does not act as a waiver of
BLM's decision to invoke a FOIA exemption and withhold that
document from plaintiff.

• Exemption 5: BLM's use of the deliberative process privilege to
withhold a document which reflected an agency employee's reaction
to a newspaper article was proper. The document is predecisional
"because it contains the opinion of the author" on the possible impact
of public misconceptions concerning an agency program, and [i]t is
deliberative because it reflects the consultative process among
agency employees on how to protect the ability of an agency to
acquire a piece of property . . . and on how to deal with the media's
portrayal of its policies. . . . Furthermore, the article is deliberative
because disclosing agency communications regarding how to deal
with a policy decision based on media reports would impede candid
discussion." BLM also appropriately withheld a series of emails
containing "discussions among BLM employees" concerning the
Ballardini Ranch. Plaintiff's argument that the deliberative process
privilege does not apply because BLM did not identify a specific
decision, or a specific decisionmaker, and that "the description of the
emails did not suggest that they contain drafts, proposals, opinions or
advice that would be indicative of a pending policy decision" is
"without merit." "[I]t is clear from [BLM's] description that the BLM
and Forest Service were engaged in a process leading up to a variety
of decisions . . . . The fact that the ultimate decisionmaker of any of
these decisions was not identified does not lead this Court to find that
no decision or final action was going to occur." BLM also properly
withheld a document reflecting discussions on how the agency should
react to a proposed action by a county government. BLM's Vaughn
index "makes it clear that the BLM had not made a final decision on
how to proceed . . . and therefore, the deliberative process privilege
was properly invoked to protect the agency's ability to freely explore
alternative avenues of action without fear of public scrutiny."
Similarly, BLM appropriately withheld an email from the Forest Service
to BLM. Plaintiff claims that the email cannot be predecisional
because it reflects the Forest Service's final decision, but BLM's
Vaughn index indicates that the document reflects the Forest
Service's recommendations to BLM. "This inter-agency back and
forth . . . is the type of communications that the deliberative process
privilege was meant to protect." The court also upholds BLM's
withholding of an email discussing BLM's relationship with a county
government in Nevada. "Plaintiff argued that [the] email fails to
identify a decisionmaker and fails to provide how a decision
implicated a new agency policy." However, as the email considers
how the agency should interact with a local government it "reflect[s]
an ongoing decisionmaking process. If the BLM's 'frank' comments
about Washoe County and its officials and its opinions on how to deal
with the County were made public, irreparable harm to the agency . . .
could result. Further, disclosure of such communications would
discourage future candid intra-agency discussions." Defendant's
redaction of a dollar-figure amount from a draft document does not
demonstrate bad faith on BLM's part and does not indicate that it did
not meet its obligation to segregate out factual material from
otherwise deliberative documents. Rather, the redaction "qualifies as
a simple error." As to another draft document withheld by BLM, the
court "finds that the majority of the materials that were redacted . . .
constituted opinions and views governed by the deliberative process
privilege that were inextricably intertwined with facts." In camera
review of this document is not necessary. BLM also properly
protected draft documents prepared for BLM's central office
concerning the agency's position on the White Pine Act, though there
was no final draft that was publicly released. Though the court rejects
the position that "successive versions of a document" cannot be
released because they "would tend to show the internal development
of an agency's position on a policy matter," in this case "the
comments were used to come up with a final position on the proposed
legislation. Therefore, defendants would not be able to protect
themselves from revealing their internal deliberative process via
segregation if they were required to produce drafts of documents that
were never ultimately released." Plaintiff has offered "only
speculation" that there "must be" segregable material within these
documents; this is insufficient. In camera review is not required.

WEEK OF SEPTEMBER 22

1. Am. Civil Liberties Union v. DOD, No. 06-3140, 2008 WL
4287823 (2d Cir. Sept. 22, 2008)

Re: Photographs depicting abusive treatment of detainees by
United States soldiers in Iraq and Afghanistan

• Exemption 7(C): The court upholds the district court's ruling
that Exemption 7(C) does not bar release of photographs of prisoners
where identifying characteristics of the prisoners have been redacted.
"Even accepting [defendants'] argument that it may be 'possible' to
identify the detainees in spite of the district court's redactions, or that
there remains a 'chance' that the detainees could identify
themselves . . . such speculation does not establish a privacy interest
that surpasses a de minimis level for the purposes of a FOIA
inquiry. . . . Indeed, because the district court has redacted the Army
photos to remove all identifying features, there is no cognizable
privacy interest at issue in the release of the Army photos." The
privacy rights recognized by Exemption 7(C) must be capable of being
tied to particular individuals, and do not apply when the individuals in
question are not identifiable. Furthermore, because the photographs
depict wrongdoing by government officials, there is a strong public
interest in disclosure. Finally, the court finds that the Geneva
Convention does not prevent disclosure of the pictures where they are
redacted and where release of the pictures is not intended to
humiliate those depicted. Thus, there is no need to alter standard
FOIA analysis in order to maintain consistency with the dictates of the
Convention.

• Exemption 7(F): The court upholds the district court's ruling
that Exemption 7(F) cannot be used to prevent release of the
responsive photographs based on the claim that release of the
photographs could incite acts of violence by terrorist groups against
the populations of Iraq and Afghanistan, as well as the members of the
United States Armed Services and civilian employees of the
government serving in these regions. "The plain language of the
phrase 'endanger the life or physical safety of any individual' connotes
a degree of specificity above and beyond that conveyed by alternative
phrases such as 'endanger life or physical safety.' It is true that the
statute does not read 'any named individual,' and we thus understand
it to include individuals identified in some way other than by name. . . .
This does not, however, mean that the 'individual' contemplated by
exemption 7(F) need not be identified at all, or may be identified only
as a member of a vast population. To the contrary, the legislature's
choice to condition the exemption's availability on danger to an
individual, rather than danger in general, indicates a requirement that
the subject of the danger be identified with at least reasonable
specificity." In the court's view, "defendants' argument that 'any
individual' in exemption 7(F) must, due solely to the brute force of the
word 'any,' be interpreted to extend its protection to all persons,
whether or not they can be identified, no matter how remote they are
from the law enforcement investigation in which the disputed records
were compiled, and no matter how small the risk to any particular
individual, is incorrect," especially in light of the fact that the FOIA's
exemptions are to be narrowly construed. "We hold that in order to
justify withholding documents under exemption 7(F), an agency must
identify at least one individual with reasonable specificity and
establish that disclosure of the documents could reasonably be
expected to endanger that individual." In the court's view, "Congress
has always envisioned exemption 7(F) as a shield against specific
threats to particular individuals arising out of law enforcement
investigations, never as a means of suppressing worldwide political
violence."

1. Wiesner v. FBI, No. 07-1599, 2008 WL 4330249 (D.D.C. Sept.
23, 2008)

Re: First-party request

• Adequacy of search: "[P]laintiff's bad faith argument is
specious." The representations that plaintiff claims were made to him
by an FBI employee, even if accurate, do not show bad faith on the
FBI's part. Indeed, plaintiff's contact with the agency demonstrates
instances in which the FBI went beyond its statutory requirements in
order to better assist him. However, the court finds that the
"explanation regarding the adequacy of the FBI's search with respect
to the additional search terms supplied by the plaintiff's attorney . . . is
too vague for the Court to conclude that the search performed by the
FBI was sufficient." The FBI has not provided ample justification for
its decision not to conduct further searches using the additional terms
supplied by plaintiff's counsel. The FBI's citation to its own internal
procedures is insufficient. Additionally, the FBI's declarant did not
support his contention that these additional searches would have
proved fruitless.

2. Brehm v. DOD, No. 07-1739, 2008 WL 4323487 (D.D.C. Sept. 23,
2008)

Re: First-party request

• Proper party defendant: Plaintiff's claim against the CIA's
Information and Privacy Coordinator is dismissed. The FOIA does not
provide a cause of action against individuals.

• Exhaustion: Plaintiff's claim against the Department of Defense
is dismissed. There is no evidence of plaintiff having submitted a FOIA
request to DOD.

• Adequacy of search: The court cannot grant the CIA's motion
for summary judgment because it finds that "the record is wholly
devoid of any specifics about the search for records." The CIA's
declarant "does not provide any specific knowledge about the
searches, and the record does not contain declarations from anyone
with such knowledge."

3. Manley v. Dep't of the Navy, No. 07-721, 2008 WL 4326448
(S.D. Ohio Sept. 22, 2008)

Re: Records related to Naval Academy's Honor Concept

• Fee waiver: The court determines that plaintiff is entitled to a
public interest fee waiver. The requested records "relate to the
operations or activities of the Naval Academy." Furthermore, "plaintiff
requested records that serve to objectively document the actual
implementation and operation of the Honor Concept at the U.S. Naval
Academy -- documents that are not readily available to the general
public." Defendant has failed to substantiate its assertion that "such
information is already publicly available." Furthermore, "[p]laintiff's
explanation is reasonably specific as to how the Honor Concept
documents sought would likely contribute to the public's
understanding of the Naval Academy's operations or activities." The
court rejects the Navy's argument that plaintiff's fee waiver request
should be denied because plaintiff has only shown that he will
disseminate the requested information to "'a narrow segment of
interested persons,'" as opposed to "a 'reasonably broad audience of
persons.'" Prior courts have found that "'[p]ublic understanding is
enhanced when information is disclosed to the subset of the public
most interested, concerned, or affected by a particular action or
matter.'" Moreover, "[p]laintiff has also adequately and credibly
explained his planned methods of disseminating this information to the
public." Finally, the court finds that "[t]he requested information
would not duplicate information already in the public domain and
would provide the public with the objective foundation from which to
assess how the Honor Concept is actually implemented and
administered in practice."

4. Schoenman v. FBI, No. 04-2202, 2008 WL 4287506 (D.D.C.
Sept. 22, 2008)

Re: First and third-party requests, and requests for records on
several organizations

• Litigation considerations: Plaintiff's motion to strike
defendant's declaration is denied. The motion "misunderstands the
personal knowledge requirements for FOIA declarations." The court
finds that "a declarant is deemed to have personal knowledge if he has
a general familiarity with the responsive records and procedures used
to identify those records[;] the declarant is not required to
independently verify the information contained in each responsive
record as Plaintiff suggests." There is simply no requirement that a
declarant have been personally involved in the creation of a withheld
document, a requirement that would be "particularly impractical" in a
case such as this one, involving a document that is 38 years old.
"Such a standard is therefore both legally incorrect and practically
illogical." Plaintiff will also not be permitted to file a substantive
response to defendant's declaration beyond his motion to strike.
"Plaintiff squandered that opportunity when he moved to strike in part
[the Navy's] Declaration rather than filing a substantive response. . . .
Plaintiff's briefing should not be a moving target; Plaintiff is not
permitted to continuously raise new arguments in additional filings."

• Exemption 7 (threshold): The Navy has established a "rational
nexus" between the withheld document and the Naval Criminal
Investigative Service's (NCIS) law enforcement duties. In particular,
the document "contains information regarding an investigation into
allegations in two areas of federal and military crimes: alleged war
crimes and alleged military desertion."

• Exemption 7(C): The Navy's latest declaration indicates what
steps NCIS took to ascertain whether individuals whose names it
withheld are still alive. Defendant is cautioned that "in the future, it is
required to make [such] efforts . . . before invoking a privacy interest."
The court finds that the Navy's efforts in this regard were reasonable.
As to one individual, the Navy has been able to ascertain that he is
deceased, and therefore the Navy will release his name. As to
another, the Navy has been unable to make this determination, due to
an inability to definitively establish the individual's identity. Though
this fact may call into question how much of a privacy interest would
be implicated by release of the name, "[t]he court nevertheless
concludes that the Navy may withhold the name of the individual. . . .
Significantly, whether the individuals at issue are alive or deceased is
not dispositive of the privacy interest versus public interest balancing
required by FOIA Exemption 7(C)." Prior cases have employed a
categorical rule allowing the withholding of the identities of private
citizens mentioned in law enforcement files "'unless disclosure is
"necessary in order to confirm or refute compelling evidence that the
agency is engaged in illegal activity."'" Plaintiff has made no such
showing, nor has he "identified a public interest in the production of
the names." Moreover, "to the extent that Plaintiff has attempted to
identify a purported public interest in the disclosure of names withheld
from documents by other Defendant agencies in this action, he has not
identified the type of public interest cognizable under the FOIA."
Plaintiff's purported public interest -- his own personal interest in
contacting the individuals involved -- does not qualify as a public
interest under the FOIA. However, the Navy will be required to
supplement the record if the Office of Personnel Management or some
other source is able to determine that this individual is in fact
deceased. As to a third individual whose identity was withheld, NCIS
was able to positively ascertain that he is alive, therefore the
withholding of his name was appropriate.

5. Yelder v. DOD, No. 07-1639, 2008 WL 4326990 (D.D.C. Sept. 21,
2008)

Re: First-party request

• Exhaustion: On one of her requests, plaintiff failed to file an
administrative appeal of the agency's response. Therefore, her
complaint is dismissed as to this request for failure to exhaust
administrative remedies.

• Adequacy of search: "[D]efendants have demonstrated, through
detailed affidavits, that their searches were satisfactory. [Defendants]
followed the standard procedure in place for FOIA requests, utilizing
computerized searches of an index to identify responsive documents."
Plaintiff claims that additional responsive documents exist, but "mere
allegations of additional documents are not enough to overcome
defendants' demonstrations that their searches were adequate."

• Exemption 3: Defendants properly treated 28 U.S.C. § 652(d),
which "'prohibit[s] disclosure of confidential dispute resolution
communications,'" as an Exemption 3 statute. As such, defendants
correctly withheld a letter to a mediator whose release would have
divulged the government's position in the mediation.

• Exemption 6: Defendants properly redacted photographs
whose release would have identified various third parties. Defendants
"redacted the pictures because to do otherwise would be a clearly
unwarranted invasion of personal privacy. Indeed, intimate
photographs such as these create a more palpable threat to privacy
than a name or an address." Furthermore, "there has been no
allegation that the public interest demands the disclosure of these
very personal photographs."

6. Simmons v. U.S. Attorney Gen. Dep't of Justice, No. 08-2522,
2008 WL 4283411 (D.S.C. Sept. 17, 2008) (adoption of magistrate's
recommendation)

Re: Grand jury proceedings establishing jurisdiction, information
on status of U.S. Highway 501 as federal property

• Exhaustion: Plaintiff has not made a request for records to any
federal agency, therefore his complaint is dismissed for failure to
exhaust administrative remedies. Furthermore, "plaintiff is not
entitled to court records from his criminal case. A federal court is not
subject to the federal Freedom of Information Act."

WEEK OF SEPTEMBER 29

1. Unidad Latina en Acción v. DHS, No. 07-1224, 2008 WL
4414195 (D. Conn. Sept. 30, 2008) (ruling upon in camera review of
documents)

Re: Documents concerning immigration enforcement action

• Exemptions 2 & 7(E): DHS's decision to withhold computer
coding and web site information from fugitive arrest reports was
proper. This information is internal to DHS and its release "would
disclose information that might significantly risk circumvention of the
law." However, DHS should provide information from this database
concerning the gender of the individuals targeted. DHS also
appropriately withheld records from a "target apprehension chart" that
"were compiled for law enforcement purposes and contain operational
and internal planning information that reveal law enforcement
techniques for such investigations." Plaintiff's contention that this
information has previously been released fails in light of the fact that
what has already been released did not include "the highly specific
information contained in the withheld documents that, if disclosed,
would reveal not only the precise investigative or surveillance
techniques immediately preceding the operation but also operation-specific information that could allow unapprehended targets to evade
law enforcement personnel in the future." Furthermore, "[t]he Court is
convinced that Plaintiffs have not satisfied the requisite burden of
production with respect to the law enforcement techniques they
allege are publicly available." The court further finds that disclosure
of the number assigned to identify DHS investigative teams would not
reveal law enforcement techniques and must be released. DHS
properly withheld cell phone numbers of law enforcement personnel.
Release of this information "could significantly risk circumvention of
the law."

• Exemption 5: The court finds that DHS improperly withheld a
document that "merely lists the purely factual information that would
be needed to respond" to "an inquiry from the New Haven mayor." The
court finds the document to be "neither 'pre-decisional' nor
'deliberative.'" Likewise, draft responses to the inquiry provide only
factual information and must be released for the same reason. Lastly,
a list of "tasks" is not protectible.

• Exemption 7(C): DHS appropriately withheld information that
would have identified individuals linked to its operation. "The Court
finds that no . . . significant public interest exists in disclosing this
personally identifiable information." DHS also properly withheld the
cell phone numbers of law enforcement personnel. There is no
"discernible public interest" in disclosure and there is a privacy
interest in "avoiding hostility and unwarranted harassment."
Additionally, DHS correctly withheld the identities of individuals who
consented to DHS agents entering their premises. Plaintiffs have not
shown that this information is already in the public domain.

2. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL
4405342 (D.D.C. Sept. 30, 2008)

Re: Records concerning specific visitors to White House or to
Vice Presidential residence

• Adequacy of search: Defendant's search of the Access Control
System (ACR) records and its search of records at the Vice President's
residence were adequate.

• Agency records: Workers and Visitors Entry System ("WAVES")
records transferred from DHS to the White House remained under
DHS's control, and are therefore still agency records subject to a FOIA
request, and must be searched.

• Litigation considerations: Plaintiff has not shown evidence of
bad faith on defendant's part. Therefore, discovery, which "is not
common in FOIA cases," will not be allowed.

3. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL
4405341 (D.D.C. Sept. 30, 2008)

Re: Records concerning specific visitors to White House or to
Vice Presidential residence

• Adequacy of search: Because DHS's search did not cover
records over which the court finds it has control, its search cannot yet
be considered adequate.

• Exemptions 2, 7(E), & 7(F)/Glomar: The court finds that
defendant's use of these exemptions and the Glomar response to
withhold Sensitive Security Records was not appropriate.

• Exemptions 6 & 7(C): The court finds that DHS inappropriately
redacted the names of staff members who requested White House
access for visitors about whom information was requested by plaintiff.
"Requester names would shed light on why the visitor came to the
White House. . . . Given the public interest in the information and the
relatively minor privacy invasion associated with this disclosure, the
Court does not consider release of the requester's name to be within
the scope of either Exemption 6 or Exemption 7(C)."

4. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL
4405340 (D.D.C. Sept. 30, 2008)

Re: White House visitor logs showing visits from Jack Abramoff

• Litigation considerations: Plaintiff's motion to compel
compliance with a prior Stipulated Agreement (SA) is denied. Plaintiff
has not proven that additional Access Control Record System (ACR)
records exist. "Representations in newspaper stories or elsewhere of
other Abramoff visits do not prove the existence of undisclosed ACR
records, as ACR records are not created for every single White House
visitor." As to the Workers and Visitors Entry System (WAVES) records
transferred to the White House, though the court rejects defendant's
argument that such records were not subject to plaintiff's request,
defendant's position "at that time may well have been a good-faith
interpretation of the [SA]." Additionally, defendant's redaction of
Abramoff's date of birth and social security number "was not a
material breach of the SA. The information that plaintiff seeks is not
Abramoff's personal details, but rather records of his White House
visits." Defendant's "scratching out" one of Abramoff's visits from a
paper summary of WAVES records also did not breach the SA because
"the summary itself did not exist at the time of the [SA]." Furthermore,
as it was, in fact, a summary, it "cannot fairly be considered a
'responsive record' subject to the [SA]."

• Adequacy of search: "Despite plaintiff's claims that it is
'astounding' and 'preposterous' that defendant's ACR search would not
have uncovered other Abramoff visits, the fact that other records were
not produced does not in and of itself show that defendant's search
was not reasonable. On the basis of its good-faith declarations,
defendant has complied with plaintiff's FOIA request as to ACR
records by making a reasonable search."

• Agency records: The court, citing the four factors governing
agency records determination from its previous discussion in Citizens
for Responsibility and Ethics in Washington v. DHS
, 527 F. Supp. 2d 76,
92-98 (D.D.C. 2007), finds that WAVES records are under the Secret
Service's "control" even after they have been transferred to the White
House and deleted from internal Secret Service files. In spite of the
transfer, defendant "seemed able to use or dispose of the WAVES
records as it saw fit. Defendant appears to use WAVES records in
whatever way it sees necessary." Additionally, "the Secret Service
relies regularly upon the WAVES records." Furthermore, "WAVES
records appear to be integrated into the Secret Service system. . . .
The fact that the records were kept in an agency file system at the
time that they were being regularly accessed and utilized . . . is
enough for this Court to consider them integrated into defendant's
systems."

5. Porter v. CIA, No. 07-133, 2008 WL 4394052 (D.D.C. Sept. 30,
2008)

Re: First-party request

• Litigation considerations: "[I]f Plaintiff's November 2005
request for information is considered an appeal of Defendant's 1998
decision of his 1997 FOIA request, this appeal is barred by the statute
of limitations because Plaintiff initiated it more than six years after his
cause of action first accrued." Plaintiff may not "resurrect" time-barred claims. "If Plaintiff's version of the law is correct, the statute
of limitations would be rendered a nullity, as it could never prevent a
claim from being filed."

• Exhaustion: If plaintiff's November 2005 request is treated as a
wholly new request for records, his complaint is dismissed for failure
to exhaust his administrative remedies. Plaintiff did not file an
administrative appeal of the CIA's response to his request. Plaintiff's
implicit claim that he has the right to "resurrect" a prior request and
thereby be excused from his duty to exhaust administrative remedies
is incorrect. "FOIA does not include an exception to the exhaustion
requirement for new claims that reference time-barred ones."

6. Kurdyukov v. U.S. Coast Guard, No. 07-1131, 2008 WL 4381674
(D.D.C. Sept. 29, 2008)

Re: First-party request and request for records concerning ship
"China Breeze"

• Litigation considerations: "The legality of the Coast Guard's
[law enforcement] action is far beyond the scope of this FOIA action
and in no way pertains to the issues presented here."

• Adequacy of search: The court finds that the Coast Guard's
search was adequate. "An agency's search is not presumed
unreasonable because it fails to find all the requested information. . . .
Furthermore, a requester's challenge requires that he present
evidence rebutting the agency's initial showing of a good faith
search. . . . The plaintiff has failed to meet this evidentiary burden."

• Exemption 2: The Coast Guard properly redacted information
from a spreadsheet concerning its investigation of ships other than the
China Breeze. Release of this information "'may show geographic
areas where there [is] a concentration of seizures . . . [and] the times
of year that certain surge operations have been conducted in the
past'" and could therefore be used to undermine the effectiveness of
Coast Guard law enforcement operations. However, the court finds
that defendant did not provide enough information concerning its
decision to withhold portions of an Intelligence Information Report for
the court to determine whether defendant's actions were appropriate.
Defendant is directed to file a renewed Motion for Summary Judgment
to address this deficiency.

• Exemption 7: The court directs defendant to file a renewed
Motion for Summary Judgment that supports its withholding of
information from the Intelligence Information report pursuant to
Exemption 7 and further specifies which subpart of Exemption 7
defendant is relying upon.

• Exemption 7(C): Defendant properly withheld the name of a
Coast Guard employee from a Case Update Form. "The employee
whose name is withheld certainly has a privacy interest in avoiding the
disclosure of his or her name." Plaintiff has demonstrated no
corresponding public interest in release of this name.

7. Maydak v. DOJ, No. 00-0562, 2008 WL 4381670 (D.D.C. Sept.
29, 2008)

Re: First and third-party requests

• Litigation considerations: The Bureau of Prisons' Motion for
Reconsideration is denied. The court finds that "BOP has provided no
evidence to warrant reconsideration" of the court's prior ruling that it
had failed to justify its use of exemptions. However, the court will
grant BOP's renewed Motion for Summary Judgment. Plaintiff has
failed to contest this motion or to seek additional time in which to do
so.

• Attorney fees: Plaintiff's motion for attorney fees is denied; as
a pro se party, he is not entitled to attorney fees. Additionally, plaintiff
has not shown that he is entitled to an award of litigation costs.
Plaintiff has not shown any public benefit from the release of records
to him. Instead, the record shows that plaintiff is the sole beneficiary
of release. "[A] fee award is 'generally inappropriate' where disclosure
of information is sought for personal or private commercial benefit."
Finally, there is no showing that BOP's position lacked "'a reasonable
basis in law'" or that BOP acted in bad faith. Because the court
declines to assess litigation costs against defendant, "there is no
basis to grant the plaintiff's request for written findings."

8. Citizens for Responsibility and Ethics in Washington v. NARA,
No. 07-48, 2008 WL 4381549 (D.D.C. Sept. 29, 2008)

Re: Records concerning request that Secret Service retain
copies of Workers and Visitors Entrance System (WAVES) records even
after those records are transferred to the White House; any records
concerning Secret Service practice of deleting these records

• Adequacy of search: "[D]efendant has demonstrated 'beyond
material doubt . . . it has conducted a search reasonably calculated to
uncover all relevant documents.'"

• Exemption 5 (deliberative process, attorney work-product, and
attorney-client privileges): As to one of the withheld documents, the
court is unable to determine whether NARA's withholding was proper,
because "the document is silent on whether it relates to discussions
between subordinates and superiors or was prepared in order to assist
an agency decision-maker in arriving at his decision, rather than to
support a decision already rendered." NARA must submit additional
documentation as to its withholding of this document. As to two other
documents, NARA's decision to withhold them under the attorney
work-product privilege was proper. NARA "could reasonably have
anticipated litigation over the question of whether WAVES and related
records were presidential or federal, considering that FOIA requests
for these records had already been submitted. . . . Further, the
documents were written by one of the defendant's attorneys or sent to
him as the defendant's General Counsel in response to specific
questions counsel posed related to the legal status of WAVES
records." As to several other documents withheld pursuant to
Exemption 5, the court finds that in camera review of the documents is
necessary. "This review is required because it is not clear from the
Vaughn index whether the documents were drafted by NARA in
formulating policy or in discharging its statutory duty to act on agency
proposals regarding the disposition of its records. . . . In addition, it is
not clear from the filings whether the documents were prepared in
contemplation of litigation." A document containing a Microsoft Office
PowerPoint presentation related to the issue of retention of WAVES
records was properly withheld pursuant to the deliberative process
privilege. "The presentation contains inter-agency recommendations
and policy options." Pursuant to the attorney-client privilege, NARA
properly withheld documents that reflect communications between
NARA and Department of Justice attorneys "on pending litigation or
responses by NARA staff to NARA's General Counsel concerning
questions about matters related to . . . litigation." NARA also properly
withheld documents which solicited and contained advice from DOJ
attorneys concerning the WAVES records. Pursuant to the deliberative
process privilege, NARA also properly withheld documents which
contain "solicited comments and information from NARA and other
government attorneys about a legal issue and 'reflect a fluid and
evolving exchange of ideas.'" Similarly, NARA's use of Exemption 5 to
withhold documents that "consist of opinions and recommendations of
NARA's staff" was proper.

9. Gerstein v. CIA, No. 06-4643, 2008 WL 4415080 (N.D. Cal. Sept.
26, 2008)

Re: Records related to unauthorized disclosures of classified
information

• Adequacy of search: Defendant NSA's declaration "is
'reasonably detailed,' and 'nonconclusory'; there is no evidence it was
submitted in bad faith, and it demonstrates that NSA conducted a
search 'reasonably calculated to uncover all relevant documents.'"
Plaintiff's argument that additional documents provided to him in
response to a previous request should also have been produced in
response to this request "is unavailing."

• Waiver: Defendant CIA did not waive its right to claim
Exemption 2 as the basis for some of its withholdings as a result of its
failure to raise this claim in its initial motion. This omission was
inadvertent, and "[t]he Court finds [that] the CIA has made an
adequate showing as to excusable neglect and further finds [that
plaintiff] has incurred no prejudice from the delay."

• Litigation considerations: The declaration submitted by the
Justice Department's Office of Professional Responsibility (OPR) is
insufficient for the court to determine whether documents which were
withheld pursuant to Exemptions 2 and 6 contain information withheld
pursuant to other exemptions as well. Furthermore, OPR did not
provide the court with a sufficiently detailed Vaughn index for the
court to judge the propriety of OPR's withholdings. OPR is directed to
supplement its filings to the court.

• In camera review: The court is not persuaded that in camera
review is required. Where, as noted, defendant agencies have failed to
provide the court with sufficient information, those defendants will be
given an opportunity to supplement their current filings. The court will
utilize this remedy, rather than ordering in camera review. Relatedly,
it would be "premature" for the court to order discovery with regard to
these shortcomings.

• Exemption 1: Defendant National Reconnaissance Office's
(NRO) Vaughn index "contains a reasonably detailed description of the
document and facts sufficient to establish Exemption 1's applicability
to the withheld document." NRO's declarant stated that "'[r]elease of
[the withheld] document would . . . allow our enemies to focus their
contermeasure efforts to thwart the confirmed capabilities of our
satellites, thus causing great damage to our national security.'"

• Exemption 3: Defendant NSA properly applied § 6 of 50 U.S.C.
§ 402 to withhold documents that "concern[ ] a 'function' of the NSA
and contain[] 'information with respect to the activities thereof.'" The
court finds that "the NSA has described the nature of the intelligence
activity implicated by each of the withheld documents with sufficient
specificity to show that each such document falls within the scope of
the statute." Defendant CIA properly relied on 50 U.S.C. § 403g to
withhold CIA file numbers on a document. File numbers qualify as
"'information concerning the CIA's internal structure.'" Similarly, CIA
appropriately utilized this statute as well as 50 U.S.C. § 403-1(i)(1) to
withhold documents which discussed the agency's efforts to prevent
unauthorized disclosures. This information constitutes protected CIA
"'intelligence methods.'" However, the CIA has not provided sufficient
justification of its decision to withhold documents referred to it by the
Department of Justice. The court finds that the CIA's declaration does
not "'describe the justifications for nondisclosure with reasonably
specific detail.'" Furthermore, "the CIA's proffered rationale for
withholding said documents is conclusory and thus insufficient . . . .
Further, due to the CIA's treatment of the documents as a group rather
than a discussion of each individual document, the Court is unable to
determine which exemption, of those exemptions listed, the CIA may
be asserting with respect to each of the particular documents, much
less whether any asserted exemption properly applies to each such
document." The CIA will be given an opportunity to submit a more
detailed affidavit.

• Exemption 5 (deliberative process privilege): The Justice
Department appropriately withheld draft documents, many of which
included handwritten marginal notes, as well as e-mails discussing the
preparation of a report by the Attorney General to Congress. DOJ also
utilized Exemption 5 to withhold a variety of documents containing
comments and proposed revisions to agency positions on various
issues. "The disclosure of any of the subject materials, and
particularly the internal assessments and recommendations contained
in memoranda and memorialized in documents emanating from
working groups, would expose the . . . decisionmaking process in a
way that would 'discourage candid discussion within the agency.'"
Similarly, DOJ's Criminal Division correctly withheld documents
reflecting comments and recommendations concerning the issue of
unauthorized leaks. The court finds that the "documents were
'prepared in order to assist an agency decisionmaker in arriving at his
decision.'"

10. Edwards v. Office of Personnel Mgmt., No. 07-2550, 2008 WL
4381978 (D. Kan. Sept. 26, 2008)

Re: First-party request

• Litigation considerations: Plaintiff's motion to reconsider the
court's earlier ruling ordering a stay in the proceedings while the
Office of Personnel Management completes the administrative
processing of plaintiff's request is denied. Plaintiff has not identified a
change in controlling law, nor has he identified any new evidence
requiring a reconsideration by the court. "Plaintiff, through his motion
to reconsider, essentially seeks a second chance to have the Court
review the same and similar arguments and allegations concerning
Defendant's alleged delay of the administrative process."
Furthermore, "Plaintiff has not shown that the Court must reconsider
its Order to correct clear error or prevent manifest injustice."

11. Kurdyukov v. DEA, No. 07-1060, 2008 WL 4356564 (D.D.C.
Sept. 25, 2008)

Re: First and third-party requests

• Exhaustion: "An agency's failure to comply with the FOIA's
statutory time limits does not relieve a requester of his obligation to
exhaust his administrative remedies." Had plaintiff filed
administrative appeals, this would have given the agency an
opportunity to review the actions taken at the initial processing stage
in order to correct any errors which might have been made.

12. Jefferson v. BOP, No. 05-848, 2008 WL 4356952 (D.D.C. Sept.
24, 2008)

Re: First and third-party requests, requests for copies of BOP
policy statements

• Adequacy of search: "Plaintiff's reliance on the results of a
search to assess its adequacy is misplaced." Defendant BOP's
declaration establishes that it searched the only database likely to
contain responsive documents. BOP's reading of plaintiff's request as
asking for current policy statements (as opposed to prior, outdated
ones) was reasonable. Defendant Office of the Inspector General has
also adequately explained its choice of which databases to search for
responsive records. Finally, the FBI's choice of cut-off date for its
search was reasonable in light of the known facts concerning the
subject of the request in question and the specific nature of plaintiff's
request.

• Agency records: "[T]he Federal Register notice that Plaintiff
seeks is maintained by the Federal Register and is not a document
maintained by the BOP."

• Litigation considerations: Plaintiff did not obtain judicial relief
of a sort that would make him a prevailing party in this action. Thus,
plaintiff is not entitled to an award of litigation costs.

13. Bartholomew v. BOP, No. 07-1204, 2008 WL 4400170 (M.D.
Pa. Sept. 23, 2008)

Re: First-party request

• Litigation considerations: Because plaintiff was incarcerated in
a facility located in the Middle District of Pennsylvania at the time he
filed suit, venue is proper in this court, even though he has since been
transferred to a different institution.

• Exhaustion: Because there is no evidence of plaintiff having
submitted a request for his Presentence Report, he did not exhaust his
administrative remedies. Therefore, his claim is dismissed.

14. Bonner v. SSA, No. 06-2051, 2008 WL 4369981 (D.D.C. Sept.
23, 2008)

Re: Third-party requests

• Adequacy of search: The court finds that it is undisputed that
defendant Department of State conducted an adequate and reasonable
search.

15. Talbot v. CIA, No. 07-277, 2008 WL 4343787 (D.D.C. Sept. 23,
2008)

Re: Requests for records about former CIA agents

• Waiver: The CIA's prior release (pursuant to the provisions of
the JFK Assassination Records Collection Act) of aliases used by the
subjects of plaintiff's request "does not establish the existence or non-existence of State Department records under [those aliases]. Indeed,
one agency's acknowledgment of a document (no matter its origin)
does not constitute an official disclosure sufficient to negate the other
agency's invocation of a FOIA exemption." Additionally, plaintiff's
request, seeking all aliases used by the subjects, and not just those
previously released pursuant to the JFK Records Act, means that
plaintiff is not seeking merely the same information previously
released by the CIA.

• Exemptions 1 & 3/Glomar: "The State Department withheld
information about records using aliases of former CIA agents because
the disclosure of the very existence or non-existence of that
information would reveal intelligence sources and methods, and is
therefore protected from disclosure under FOIA Exemptions 1 and 3.
In the national security context, an agency's justification for invoking
a FOIA exemption is sufficient if the agency's position, as detailed in
affidavits, appears 'logical' and 'plausible.'" In this case, the existence
or non-existence of the records in question is classified. Furthermore,
because even the acknowledgment of the existence of information
responsive to plaintiff's request "'can reasonably be expected to lead
to unauthorized disclosures of intelligence sources and methods,'" the
State Department's Glomar response is also supported by an
Exemption 3 statute, 50 U.S.C. § 403-1(i)(1). Under this law, the
Director of National Intelligence is instructed to "'protect intelligence
sources and methods from unauthorized disclosure.'" (posted
10/31/2008)

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