FOIA Post (2009): Summaries of New Decisions -- April 2009

May 13, 2009

FOIA Post

Summaries of New Decisions -- April 2009

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 April 2009.

WEEK OF APRIL 6

1. Bangoura v. U.S. Dep't of the Army, No. 05-0311, 2009 WL 961536 (D.D.C. Apr. 8, 2009) (Robinson, Mag. J.)

Re: Records pertaining to plaintiff's arrest

• Litigation considerations: Under the FOIA, declaratory relief is appropriate only in limited circumstances. Defendant's late response to plaintiff's initial request, "does not present a 'cognizable danger of recurrent violation' or 'an illegal agency policy'" that could give rise to declaratory relief. Additionally, contrary to plaintiff's claim, defendant was not required to produce a Vaughn index prior to plaintiff's filing of the instant case.

• Exemption 2 (low): The Army properly withheld internal sequencing numbers used to identify its agents when the agents are engaged in routine administrative functions. "[T]he sequence numbers are tools for the special agents to perform their duties. Moreover, the sequence numbers are akin to the use of initials or signatures which is the type of information contemplated for non-disclosure under the 'low 2' exemption."

• Exemption 6: Defendant properly withheld the names of Special Agents and Military Police officers, third parties interviewed as part of the investigation of plaintiff, and third parties mentioned in plaintiff's file. Plaintiff's challenge to these withholdings amounts to a challenge to the adequacy of defendant's search. However, he "cited no authority to support disclosure of such information to help him determine whether Defendant properly fulfilled its search obligations pursuant to the FOIA."

2. Amsinger v. IRS, No. 08-1085, 2009 WL 911831 (E.D. Mo. Apr. 1, 2009) (Fleissig, Mag. J.)

Re: Records pertaining to trust of which plaintiff is a beneficiary

• Adequacy of search: "Defendant has introduced sufficient evidence to show that its search for the requested documents was reasonable." Plaintiff has made no showing to challenge this. Plaintiff has requested discovery, but discovery is "'generally inappropriate' in FOIA cases," especially "'where the plaintiff has made no showing of agency bad faith.'"

• Litigation considerations: Contrary to plaintiff's claim, President Obama's FOIA Memorandum does not affect the outcome of this case, as it does not create new rights. Furthermore, the Memorandum only affects the release of documents when an agency possesses them, and thus has no application to a situation such as this one, where the agency had no responsive documents. Additionally, two subsequent requests made by plaintiff are not part of this litigation, and thus have no bearing on the outcome.

3. Judicial Watch, Inc. v. FDA, No. 00-2973, 2009 WL 873999 (D.D.C. Mar. 31, 2009) (Leon, J.)

Re: Records pertaining to mifepristone (RU-486)

• Attorney fees: Section 4(a) of the OPEN Government Act, pertaining to eligibility for attorney fees, does not apply retroactively. "As a general matter, courts must construe statutes waiving sovereign immunity strictly, and such a waiver 'is to be read no more broadly than its terms require.'"

4. Javier H. v. Garcia-Botello, No. 02-0523, 2009 WL 899674 (W.D.N.Y. Mar. 30, 2009) (Schroeder, Mag. J.)

Re: Investigative records pertaining to defendants

• Litigation considerations: Plaintiffs' motion to compel the contractor defendants to provide privacy waivers to the agency defendant, which would allow the processing of plaintiffs' third-party requests, is denied. "The Court agrees with defendants that 'FOIA is not intended as a discovery device' and that a subpoena is the appropriate discovery device for obtaining documents from a government agency pertaining to private litigation."

WEEK OF APRIL 13

1. Hall v. DOJ, No. 06-01540, 2009 WL 982206 (D.D.C. Apr. 10, 2009) (Kennedy, J.)

Re: Investigative report concerning plaintiff

• Exemption 5 (deliberative process privilege): Upon in camera review, the court finds that DOJ's use of this privilege was proper.

2. City and County of Honolulu v. EPA, No. 08-00404, 2009 WL 973154 (D. Haw. Apr. 9, 2009) (Kobayashi, Mag. J.)

Re: Documents related to decision concerning waiver for wastewater treatment plant

• Litigation considerations: Plaintiff's motion for an order compelling EPA "'to disclose certain specified and limited information relative to the withheld documents specified herein'" is denied. Not only is discovery limited in FOIA cases, but the information plaintiff seeks through its motion will be produced by defendant in its Vaughn index. The court will not order EPA to produce its index before it files its motion for summary judgment.

3. Haralson v. Stoverink, No. 09-00056, 2009 U.S. Dist. LEXIS 30456 (E.D. Mo. Apr. 9, 2009) (Hamilton, J.)

Re: Request for plaintiff's military records

• Litigation considerations: "The Court finds no merit to plaintiff's motion for reconsideration." Moreover, as the court has previously noted that the FOIA only applies to agencies, and not to individual agency employees, plaintiff's motion to add a named federal employee as a defendant is denied. Finally, plaintiff's motion for leave to attach collateral exhibits to his complaint is denied.

WEEK OF APRIL 20

1. Catledge v. Mueller, No. 08-3550, 2009 WL 1025980 (7th Cir. Apr. 17, 1999) (per curiam) (unpublished disposition)

Re: National Security Letters (NSLs)

• Exemption 7(E)/Glomar: The FBI appropriately refused to confirm or deny whether plaintiff is the subject of an NSL. FBI's declarant "explained that disclosing the subjects of NSLs would enable terrorist groups to vet their members and circumvent the law by shifting operations to those free of government suspicion. [FBI's declarant] further noted that if the information was disclosed, these groups could analyze which of their members were investigated to learn when and how NSLs are issued and thus avoid raising suspicion in the future."

2. Mayer Brown LLP v. IRS, No. 08-5143, 2009 WL 1025344 (D.C. Cir. Apr. 17, 2009) (Brown, J.)

Re: Records pertaining to "lease in/lease out" (LILO) settlement practices

• Exemption 7(E): The IRS appropriately withheld records that divulge the agency's "acceptable settlement ranges" in LILO cases. "[D]isclosure of the information can create an incentive for increased evasion" by allowing potential lawbreakers to more accurately calculate the actual risk involved in breaking the law. Furthermore, "LILO settlement ranges could be used as a baseline or a reference point for analogous schemes," which might have the effect of "convinc[ing] potential evaders that a questionable scheme is worth the risk." The court rejects plaintiff's "extremely narrow" view of Exemption 7(E). "Rather than requiring a highly specific burden of showing how the law will be circumvented, Exemption 7(E) only requires that the IRS 'demonstrate[] logically how the release of [the requested] information might create a risk of circumvention of the law.'" Release of the requested information might also discourage past violators from coming forward, thereby further impeding the IRS's enforcement efforts. "The decision to evade the legal consequences of the initial violation is not just made once; it is a decision that is made anew when there is additional information." Thus, "it may influence future conduct."

1. Lewis v. DOJ, No. 09-0178, 2009 WL 1069138 (D.D.C. Apr. 22, 2009) (Huvelle, J.)

Re: Third-party request

• Litigation considerations: Plaintiff raises a claim in his opposition that was not in his complaint, which concerns a request that is still "pending," but which is beyond the scope of this litigation. Defendant's Rule 12(b)(1) motion for dismissal for lack of subject matter jurisdiction is denied. Plaintiff's allegation that defendant improperly withheld records responsive to plaintiff's third-party request is sufficient to confer jurisdiction upon the court.

• Exhaustion: Plaintiff's failure to provide a privacy waiver from the subject of his request does not constitute failure to exhaust administrative remedies.

• Waiver: In making a claim that defendant waived its right to withhold records through prior disclosure "to him during his criminal proceedings," plaintiff has the initial burden of showing that the requested records are identical to those previously released. "Plaintiff has not come close to satisfying his burden." Furthermore, given that these alleged disclosures were made during plaintiff's prosecution, "in any event 'a constitutionally compelled disclosure to a single party simply does not enter the public domain.'"

• Exemption 7(C): Law enforcement records pertaining to third parties are "'categorically exempt' from disclosure under exemption 7(C), in the absence of an overriding public interest in its disclosure. . . . In order to demonstrate an overriding public interest in disclosure, plaintiff must show that the withheld information is necessary to 'shed any light on the [unlawful] conduct of any Government agency or official.'" In order to do this, "plaintiff must assert 'more than a bare suspicion' of official misconduct." It is well established that plaintiff's personal interest in challenging his conviction does not qualify as a public interest under the FOIA. His allegation of misconduct against the third party in question "'reveals little or nothing about an agency's own conduct.'" Because of this, "whether defendant actually searched for records . . . 'is immaterial . . . because that refusal deprived [plaintiff] of nothing to which he is entitled.'"

2. Islamic Shura Council of S. California v. FBI, No. 07-01088 (C.D. Cal. Apr. 20, 2009) (Carney, J.)

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

• Procedural requirements: In camera review is required to determine whether the FBI appropriately concluded that certain information was outside the scope of plaintiffs' requests. "Although the government has no obligation to disclose information that falls outside the scope of a FOIA request, the government should construe a request for information broadly." Given the breadth of plaintiffs' requests, "it is difficult to imagine that any document containing a plaintiff's name would not be responsive."

• Adequacy of search/Exhaustion: The FBI must search its electronic surveillance database and perform a cross-reference search for the two remaining plaintiffs for whom such searches have not already been conducted. No further exhaustion is necessary.

3. Am. Small Bus. League v. SBA, No. 08-00829, 2009 WL 1011632 (N.D. Cal. Apr. 15, 2009) (Patel, J.)

Re: List of entities and contract amounts that form the basis of SBA report

• Attorney fees: The court finds that "there is convincing evidence that [plaintiff] needed to bring a legal action against the SBA in order to obtain the requested information." Furthermore, "[t]here is also convincing evidence that a court order favoring plaintiff had a substantial causative effect on the delivery of the requested information." Thus, plaintiff has met the eligibility requirements for an award of attorney fees. As to entitlement, "[e]ven though plaintiff does not present a specific argument that releasing the information would benefit the public, it does not follow that no benefit exists." Indeed, its intent of informing the public whether the recipients of SBA grants were indeed small businesses constitutes a benefit to the public. "Because the public benefits from releasing the requested information in order to verify the SBA's public claims about the amount of federal contracts awarded to small businesses," the nature of plaintiff's interest and lack of commercial benefit favor plaintiff. Finally, the court previously determined that the requested records were under SBA's control at the time of the request and "to argue otherwise" represents "the kind of bureaucratic foot-dragging that FOIA was designed to avoid." Though plaintiff has made an adequate documentation of the hours its spent on this case, several of its charges should be "reduced or excluded because they encompass work that was unrelated to the instant action." The hourly rate claimed by plaintiff is reasonable, and it has provided adequate documentation related to its claim for costs.

4. Pavlenko v. IRS, No. 08-61534 (S.D. Fla. Apr. 1, 2009) (Marra, J.)

Re: Records pertaining to refund check issued to plaintiff's grandmother

• Litigation considerations: Even were plaintiff to prevail, the court lacks the authority to award her the monetary damages she seeks. "Under FOIA, a plaintiff can only seek injunctive relief to compel the agency to release withheld records."

• Adequacy of search: The IRS has explained that it does not maintain copies of returned IRS checks. "[O]n the face of the Complaint alone, the [IRS] has not 'improperly withheld agency records.'" Further, the IRS "presents affidavits and exhibits demonstrating that it has produced all documents responsive to Plaintiff's FOIA requests, and it has been unable to locate any additional documents responsive to Plaintiff's FOIA requests after conducting reasonable searches."

5. Allard K. Lowenstein Int'l Human Rights Project v. DHS, No. 06-1889, 2009 WL 763620 (D. Conn. Mar. 20, 2009) (Kravitz, J.)

Re: Records pertaining to immigration enforcement program, "Operation Frontline"

• Exemptions 2 (high) & 7(E): The FBI must release a sentence on one document discussing its "history of cooperation with" the INS. "The Court cannot fathom how this information is predominantly internal to the FBI or how this is a record compiled for law enforcement purposes, the disclosure of which would risk disclosure of law enforcement techniques or assist potential law enforcement evaders in circumventing the law." On two other pages, the FBI properly redacted information, including material "discussing the specifics of certain investigative techniques used in Operation Frontline." Release of this additional material "could risk disclosing ongoing law enforcement techniques and may assist persons seeking to evade FBI law enforcement action."

WEEK OF APRIL 27

1. Peltier v. FBI, No. 07-1745, 2009 WL 1139363 (8th Cir. Apr. 29, 2009) (per curiam)

Re: First-party request

• Litigation considerations: The district court's decision to review in camera a sample of withheld documents, as opposed to all withheld documents, was not an abuse of discretion. Plaintiff did not request in camera review of all documents at the district court, but instead agreed to the limited review the district court performed. Moreover, the district court's review procedure was adequate and "provided 'sufficient information' to decide whether the FBI properly withheld responsive material." Though the FBI engaged in some improper conduct during plaintiff's criminal trial, the court is "not persuaded that there is a strong inference that the agency in this case is likely to withhold documents improperly to avoid embarrassment for actions taken in the 1970s."

• Litigation considerations/Exemption 7(D): On appeal, plaintiff for the first time claims that the FBI waived its right to claim Exemption 7(D) because many informants testified in public proceedings. "A party may not raise an issue for the first time on appeal as a basis for reversal, except in narrow circumstances, such as where the 'obvious result of following the rule would be a plain miscarriage of justice or would be inconsistent with substantial justice.'" Given that "several courts of appeals have held that public testimony does not 'waive' the applicability of Exemption 7(D)," the court "see[s] no basis to conclude that entertaining [plaintiff's] new argument on appeal is necessary to avert a plain miscarriage of justice."

• Exemption 7(C): Plaintiff has failed to show a public interest in disclosure sufficient to overcome the privacy interests at stake. "Accepting, for purposes of analysis, that a public interest might be served by disclosures about a particular conviction where the records also relate to matters of 'general applicability' or 'unique intrinsic public significance,' . . . we are not persuaded that the interests in disclosure asserted by [plaintiff] are sufficient to outweigh the recognized privacy interests." Plaintiff has misinterpreted the Supreme Court's ruling in Favish. A showing of governmental wrongdoing does not require disclosure, rather it only "establishes a public interest that must be weighed in the balance." Plaintiff's "brief overstates" the improper action that has "been established and its legal significance in the analysis of Exemption 7(C)." Though "this court has found certain improprieties on the part of the government, they are not so severe and extensive as to create a general public interest in disclosure regarding all matters related to [plaintiff's] case that overrides the privacy interests of third parties recognized by Exemption 7(C)." Moreover, the court is "also not convinced that there is a substantial nexus between [plaintiff's] FOIA request and the specific public interest asserted by [plaintiff]." Thus, "[a]ny benefits to the public from disclosure on the grounds asserted by [plaintiff] are too uncertain and remote to overcome the privacy interests of third parties, confidential sources, and law enforcement personnel." Finally, "the records to which [plaintiff] directs most of his attention" are also withheld under Exemption 7(D), "which does not entail a balancing of public and private interests."

1. Asarco, Inc. v. EPA, No. 08-1332, 2009 WL 1138830 (D.D.C. Apr. 28, 2009) (Magistrate's Opinion, Report and Recommendation) (Facciola, Mag. J.)

Re: Records pertaining to recontamination study at Omaha Lead Superfund Site

• Litigation considerations: "Discovery is not favored in [FOIA] cases and [is] only allowed under rare circumstances." Plaintiff's "arguments as to its entitlement to discovery defeat themselves." Plaintiff "does not specifically identify the genuine issues of material fact to which such discovery should be devoted." Plaintiff "demands discovery in the very document in which it trumpets that the record is already so clear that the government's motion for summary judgment must be defeated. Discovery in a FOIA case, however, is not a punishment for a deficient agency performance. The remedy for such a deficiency is a remand to the agency to complete an adequate search, not discovery."

• Adequacy of search: Plaintiff's claim that EPA's keyword search was inadequate "is well taken." EPA is ordered to conduct a second search utilizing additional keywords set by the court. "[F]ollowing completion of" the second search the magistrate recommends granting summary judgment to EPA.

2. Sanders v. DOJ, No. 09-0721, 2009 WL 1076704 (D.D.C. Apr. 21, 2009) (Bates, J.)

• Litigation considerations: Plaintiff's suit is dismissed, as it is clearly not an appeal of agency action pursuant to the FOIA, but instead is an effort to get the court to rule on "the authenticity of the arrest warrant in [plaintiff's] underlying criminal proceeding." However, "[t]he FOIA affords no private right of action for a forensic examination or determination of the authenticity of a document produced in response to a FOIA request." (posted 5/13/2009)

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