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

October 2, 2009

FOIA Post

Summaries of New Decisions -- August 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 August 2009.

WEEK OF AUGUST 3

1. Milner v. U.S. Dep't of the Navy, 575 F.3d 959 (9th Cir. 2009) (Tallman, J.) (dissenting opinion by Fletcher, J.)

Re: Records pertaining to locations of and potential blast ranges of stored explosive ordinance

• Exemption 2 (high): In line with the position adopted by the D.C. Circuit, the court finds that "Exemption 2 shields those personnel materials which are predominantly internal and disclosure of which would present a risk of circumvention of agency regulation." Though the exemption covers law enforcement materials, its coverage is not limited to such records. Limiting Exemption 2 to law enforcement documents "has no basis in either Supreme Court precedent or the statute." Indeed, "[i]t would be incongruent if FOIA protected sensitive information when it is contained in a classified or law enforcement document, but not when it is contained in a document developed predominantly for use by agency personnel." Furthermore, limiting Exemption 2's coverage to law enforcement materials would render Exemption 7 redundant. The withheld documents "are essentially an extension of [a Navy manual], which governs operations on [the Naval Magazine Indian Island (NMII)]." As such, they "constitute one part of the internal policies and procedures that NMII personnel are bound to follow when handling and storing explosive ordnance." Plaintiff argues that if the Navy wishes to withhold this material it should have it classified, but "not all internal information can be classified, for legitimate reasons of personal and national security. Classifying such information may present logistical challenges that could actually impede safe and effective operations." The fact that the Navy has shared information in the withheld documents with local officials does not render it no longer internal. "The decision to share otherwise internal information with emergency responders does not necessarily place the information outside the bounds of Exemption 2. . . . Agencies must be permitted to grant limited, confidential access to other federal and local agencies without risking broader disclosure. [Furthermore], limited disclosure for official purposes does not violate the standard that information must be 'predominantly internal.'" Additionally, "the personnel procedures . . . are certainly not written to regulate the public. [They] have absolutely no legal or enforcement ramifications whatsoever on the citizens of the Puget Sound region. Nothing about the data even could be codified in any logical way to regulate public behavior. . . ." Finally, "[t]he Navy has described in detailed affidavits precisely how public disclosure would risk circumvention of the law - [the withheld documents] sought here point out the best targets for those bent on wreaking havoc. . . . A terrorist who wished to hit the most damaging target or a protester who wished to disrupt the Navy's monitoring and transportation protocols would be greatly aided by such information." Indeed "[d]isclosure . . . 'would quickly render those documents obsolete for the purpose for which they were designed.'" They were "created . . . to prevent catastrophic detonations"; disclosure "would make catastrophe more likely." It is irrelevant that similar information pertaining to a nuclear submarine base has been released.

1. Bretti v. DOJ, No. 08-450, 2009 WL 2371508 (N.D.N.Y. Aug. 4, 2009) (Hurd, J.)

Re: First-party request

• Adequacy of search: The FBI's Vaughn index and declaration indicate that it performed a reasonable search for responsive records.

• Exemption 2: The FBI appropriately used this exemption to withhold confidential source symbol numbers and source file numbers.

• Exemption 3: The FBI properly invoked this exemption in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure as well as 18 U.S.C. § 2517 to withhold grand jury records and lawfully recorded tape conversations, respectively.

• Exemptions 7(C) & 7(D): The FBI properly withheld the identities of confidential sources pursuant to this exemption, notwithstanding the fact that some of these sources may have testified against plaintiff at his criminal trial. The Court stated that "information furnished by a confidential source requires no balancing test and no consideration of the public interest in disclosure, if such information may reveal the confidential source's identity." Additionally, "plaintiff has failed to show how his actions will benefit the public, as plaintiff brought this suit to benefit himself."

2. Lardner v. DOJ, No. 08-1398, 2009 WL 2341719 (D.D.C. July 31, 2009) (Kollar-Kotelly, J.)

Re: Names of unsuccessful applicants for presidential pardons and commutations

• Litigation considerations: Defendant is not collaterally estopped from asserting Exemption 6 in its attempt to withhold the responsive documents. Plaintiff's prior requests and litigation, though on a similar subject matter, are not identical to the requests that are the subject of the instant litigation. "[T]he circumstances in which the withholdings were made vary substantially between the two matters."

• Exemption 6: The court finds that unsuccessful applicants have a "minimal and limited" privacy interest in the release of their names. Plaintiff has not sought any additional information about the applicants or about the crimes for which they have been convicted. Instead, he has only requested the names of those who have applied for, and been denied, clemency. Because "only a very small minority of clemency applications are actually granted. . . . Rejection is therefore not 'so rare an occurrence as to stigmatize the [rejected] applicant.'" Thus, "the Court is not persuaded that . . . public disclosure of the President's decision to deny clemency will 'reflect poorly upon [an individual applicant's] current level of rehabilitation and good character.'" Furthermore, "clemency applicants have no reasonable expectation that [the Office of the Pardon Attorney (OPA)] will not publicly disclose either the existence of their clemency application or the President's eventual decision whether to grant or deny clemency." This is in keeping with "OPA's long-standing practice to freely disclose to any member of the public both that an individual has applied for clemency and that the President has denied the request for clemency whenever it receives an inquiry about an individual by name." In cases in which there is a "'substantial public interest,'" OPA may prepare a press release discussing a clemency denial. Applicants are well aware of these possibilities for disclosure, but most proceed with the applications anyway. The court "is not . . . persuaded" that "the recent nature of the clemency denials and the sheer number of applicants covered by Plaintiff's request in this case create a greater privacy interest than was held to exist [in the litigation over plaintiff's previous request]." The court's ruling in the first case was not in any way tied to the age of the files involved, and the volume of applicants at stake does not magnify a particular individual's privacy interest. OPA's reliance on Reporters Committee "is misplaced," as that case involved release of extensive information about individuals, whereas here, plaintiff has only sought "disclosure of the applicant's name and the fact that he applied for and was denied clemency." Furthermore, whereas in Reporters Committee the government had accumulated the records in question on its own initiative, here the withheld records are only in OPA's possession due to a voluntary act on the part of the clemency applicants. By contrast to the minimal privacy interests at stake, "the Court finds that disclosure of the names of unsuccessful clemency applicants directly serves the main 'purpose of the [FOIA] - the preservation of "the citizens' right to be informed about what their government is up to."'" Release of the names "shines a light on the most basic information about the executive's exercise of his pardon power - who is and who is not granted clemency by the President." The names of successful applicants are posted on DOJ's website, which "confirms the public's interest in opening up the clemency process and in ensuring that the exercise of the executive's clemency power is not veiled in a cloak of secrecy." The value of this information about successful applicants is enhanced by release of the names of unsuccessful applicants. Additionally, the court disagrees that release of applicant names "can never provide insight into the process by which OPA investigates and issues its recommendation to the President," a recommendation upon which the President has "'traditionally relied heavily.'" Finally, because a denial of clemency generates an "official record of the President's action," the records at issue here are not records that an agency "'happens to be storing.' Rather, the information requested is drawn from the reports of and reflects the official actions of a Government official. . . . This information serves as 'a record of "what the Government is up to,"' and thus falls squarely within FOIA's statutory purpose."

• Exemption 7 (threshold): OPA has not argued that it is a law enforcement agency. Even if it were held to be one, the Court finds that it has not established that the records plaintiff requested are law enforcement records. Though clemency application files may well be law enforcement records, this does not mean that lists of clemency applicants are law enforcement records, as these lists "'exist[] independently of the clemency file on any applicant.'" The fact that the lists are maintained in the same database as the actual application files does not change this analysis. OPA's claim that the lists are created using the clemency applications themselves is unsupported by the record.

3. Alvanez v. U.S. Dist. Court, No. 09-1939, 2009 U.S. Dist. LEXIS 67127 (D. Md. July 31, 2009) (Chasanow, J.)

• Proper party defendant: "Federal courts are not 'agencies' covered by the Freedom of Information Act."

4. Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., No. 09-272, 2009 WL 2345097 (S.D.N.Y. July 30, 2009) (Hellerstein, J.)

Re: Records pertaining to loans made under Discount Window loan program

• Adequacy of search/Procedural: The court finds that defendant's search "was reasonably calculated to identify all responsive documents." In particular, defendant was not required to search for records at the regional branch Federal Reserve Banks (FRBs). "[D]efining all FRB records as [Federal Reserve] Board records goes against the fundamental importance of an FRB's autonomy." According to the Board's regulations, "not all records kept by the FRBs are records of the Board; only those reflecting delegated functions or those held at an FRB for the Board's 'administrative discretion.'" Moreover, "[t]he Board's interpretation of which records belong to the Board and which belong to the FRBs is consistent with the overall Federal Reserve System structure established by statute." Plaintiff's claim that data might have been "left out" of reports is speculative and the board is not required to reconstruct the data feeds. Defendant's failure to use computer experts to attempt to retrieve destroyed records does not render its search inadequate. However, defendant should have searched an attachment to an e-mail received by Board staff. The fact that the attachment had not been opened prior to plaintiff's request does not mean it is not an agency record. "The attachment was both obtained by the agency and within the agency's control 'at the time of the FOIA request.'"

• Exemption 4: The requested information ("borrowers' names, loan amounts, and pledged collateral") was "obtained from a person," i.e. the borrowers who participated in the Discount Window program, because it "originated with the borrower[s]." The loans in this case "'implicate' potentially 'personal' and sensitive financial information." Furthermore, disclosing that a particular institution participated in the Discount Window program may suggest that the institution has a serious financial problem. "'A primary dealer would suffer competitive and reputational harm if its name and the relevant collateral it posted were disclosed to the public,' for the public is likely to draw inferences of its relative financial strength and viability. . . . Similarly, the Board's concern is real that disclosure would reveal proprietary trading information of borrowers, their trading strategies and the size and nature of their portfolios of assets." Finally, as participants in the program expect their participation to be confidential, the court accepts defendant's assertion that the Board's program effectiveness would be compromised if the requested information were disclosed.

5. Cochran v. EOUSA, No. 08-1446, 2009 WL 2256186 (D.D.C. July 28, 2009) (Collyer, J.)

Re: Criminal bond information concerning plaintiff

• Litigation considerations: As plaintiff has failed to oppose defendant's Motion for Summary Judgment, and has in fact informed the court that he agrees with defendant's position, defendant's motion is taken as conceded.

WEEK OF AUGUST 10

1. Thomas v. HHS, No. 08-0831, 2009 WL 2447407 (D.D.C. Aug. 11, 2009) (Huvelle, J.)

Re: Records pertaining to two businesses' banking operations

• Adequacy of search: The regulation that plaintiff cites in support of his assertion that one of the businesses was required to provide the information he is seeking, does not, in fact, support his allegation. Consequently, there is no "basis on which to doubt the thoroughness of" the agency's search. As to the second part of plaintiff's request, defendant has not indicated that it searched under the name of the business listed in the second part of plaintiff's request. Thus, the court cannot conclude, on the basis of the record before it, whether defendant conducted a reasonable search as to this portion of plaintiff's request.

2. Davis v. DOJ, No. 09-0008, 2009 U.S. Dist. LEXIS 69318 (D.D.C. Aug. 7, 2009) (Leon, J.)

Re: First-party request

• Litigation considerations: Plaintiff was advised of his obligation to respond to defendant's Amended Motion for Summary Judgment. As he has not responded, the motion is taken as conceded.

3. Nikelsberg v. FDIC, No. 08-1899, 2009 WL 2423470 (D.D.C. Aug. 6, 2009) (Robertson, J.)

Re: Names and contact information for under-insured depositors at two failed banks

• Exemption 4: Though the withheld information was provided to defendant as part of a mandatory submission, "[p]laintiff concedes that the information . . . is of a type 'customarily not released to the public.'" The court finds that "[i]t is thus unnecessary to analyze the 'competitive disadvantages' to banks and account holders that might result from disclosure of information involuntarily provided to the government." Furthermore, "[e]ven if the contact information of businesses is not 'confidential,' to require FDIC to sort through depositor records trying to decide which businesses are closely held or individually owned and which are not might well compromise its efficiency and effectiveness."

• Exemption 6: "Individual account holders have a privacy interest here because disclosure [of their names and contact information] would allow public scrutiny of their financial information." By contrast, "[p]laintiff's assertion that disclosing the requested contact information would in some way 'she[d] light on [the FDIC's] performance of its statutory duties' . . . seems to rely on the highly implausible suggestions that FDIC's roles as regulator, insurer and receiver are in conflict with one another, and that the agency makes its receivership determinations via a 'secret process.' But plaintiff makes no effort to explain how the requested names and contact information could possibly shed any light on his suggestions."

4. Feinman v. CIA, No. 08-2188 (D.D.C. Aug. 6, 2009) (Sullivan, J.)

Re: Records pertaining to kidnapping and murder of Daniel Pearl

• Litigation considerations: Plaintiff lacks standing to bring her motion to amend because before she made her motion, defendant FBI had agreed to process her request without requiring her to provide privacy waivers. Thus, as of the time of her motion, plaintiff had not suffered an injury. The claim that plaintiff will be subjected to FBI's allegedly "illegal policy" of requiring such waivers in the future is mere "'unadorned speculation'" and is not sufficient to give her standing. Furthermore, "Plaintiff's assertion that she wishes to challenge the legality of the policy itself rather than a particular application of that policy does not permit her to simply sidestep the constitutional standing requirement."

• Exhaustion: Plaintiff asserts that her failure to direct her administrative appeal to the proper location does not constitute failure to exhaust her administrative remedies. However, "the burden under the statute and regulations lies with the requester to properly submit the appeal for exhaustion so that any subsequent judicial review may commence." The requirement that agencies make a good faith effort to confer with requesters regarding factual or procedural problems with initial requests does not apply to administrative appeals. Thus, "Plaintiff fails to provide any support for the proposition that the FBI's receipt of an inadvertently faxed appeal triggered an affirmative duty to accept and forward the letter to the [Office of Information Policy]." Furthermore, there was no reason for the FBI to suspect that what it received was sent in error, as opposed to being a duplicate or courtesy copy of a properly filed administrative appeal. Though plaintiff has argued that the court should waive the exhaustion requirement in this case, doing so "would substantially undermine the purposes of exhaustion," depriving the agency of the "opportunity to correct its own mistakes [and] to compile a complete record. . . . Plaintiff has presented no evidence that a full administrative appeals process would be futile, and, by pointing out that she has already submitted a second, identical FOIA request to the agency, essentially concedes that she is not prejudiced by the application of the exhaustion requirement."

WEEK OF AUGUST 17

1. Hawkins v. DEA, No. 09-1451, 2009 WL 2512418 (7th Cir. Aug. 18, 2009) (unpublished disposition)

Re: Inducements made to witnesses at plaintiff's criminal trial

• Exemption 7(C): Plaintiff "offers no hint of government misconduct that would be brought to light by records of inducements in his case." Instead, the only interest he asserts is in challenging his conviction, which is not a qualifying public interest under the FOIA. Witnesses who testified at plaintiff's trial "did not wholly extinguish their privacy interests," and "their remaining privacy interests . . . outweigh the nonexistent public interest in disclosure in this case."

2. Neyrges v. FAA, No. 09-50246, 2009 WL 2482065 (5th Cir. Aug. 14, 2009) (unpublished disposition) (per curiam)

Re: Investigative records

• Exhaustion: By failing to appeal from an FAA determination letter (which advised plaintiff of his right to file an appeal with the FAA Administrator), plaintiff failed to exhaust his administrative remedies. The court does not accept plaintiff's contention that the determination letter was the "final ruling" by the FAA, given that it clearly gave appeal rights to plaintiff.

1. Penny v. DOJ, No. 08-1467, 2009 WL 2568900 (D.D.C. Aug. 21, 2009) (Urbina, J.)

Re: First and third-party records

• Adequacy of search: The court finds "that the defendant's combined searches were reasonably calculated to retrieve all responsive records and, thus, [were] adequate."

2. Covington v. McLeod, No. 08-1220, 2009 WL 2525933 (D.D.C. Aug. 19, 2009) (Bates, J.)

Re: Records pertaining to plaintiff's criminal trial and trial of his co-defendants

• Proper party defendant: Individual government employees are not proper parties to FOIA actions.

• Exemption 3: "It is well-settled law in this circuit that Rule 6(e) [of the Federal Rules of Criminal Procedure] operates through FOIA Exemption (b)(3) to allow an agency to withhold grand jury materials that, if disclosed, would 'tend to reveal some secret aspect of the grand jury's investigation, such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.' . . . There is no doubt that records of what occurred before the grand jury and, in particular, records of statements made by the plaintiff's co-defendants to the grand jury are exempt from disclosure under FOIA Exemption (b)(3)." Though plaintiff asserts that the grand jury minutes have been released, he "has not established that the [minutes are] broadly available within the Department of Justice or in the public domain, or that he is entitled to [them]." Moreover, "[t]o the extent that the plaintiff means to argue that his need for the grand jury minutes outweighs the interest in maintaining them as secret, his argument is misplaced in a FOIA action."

• Exemption 7(C): Defendant properly withheld statements made by one of plaintiff's co-defendants. "A co-defendant's interest in keeping private the statements he made to law-enforcement officials is readily apparent, and disclosure could reasonably be expected to lead to embarrassment and humiliation." Furthermore, plaintiff "has not . . . explicitly argued or shown that a public interest, rather than his personal interest, tips the balance in favor of disclosure when weighed against the co-defendant's privacy interest." An "implicit" Brady argument is insufficient.

Segregability: Given that plaintiff seeks "a record of a [third-party's] proffer and what occurred before the grand jury," no segregation is possible. "The nature of the information requested in this particular case is simply incompatible with segregation."

3. Rush v. FBI, No. 09-1557, 2009 WL 2516368 (D.D.C. Aug. 18, 2009) (Walton, J.)

Re: Records pertaining to plaintiff's criminal trial

• Exhaustion: "Plaintiff has not permitted the administrative process to be completed by first obtaining an initial determination of a withholding." Instead, he filed this action after agreeing to pay estimated duplication fees and then submitting a "'follow-up request'" to defendant. Plaintiff's action is dismissed for failure to state a claim upon which relief can be granted.

4. Wells v. U.S. Dep't of Educ., No. 09-456, 2009 WL 2475434 (M.D. La. Aug. 12, 2009) (Brady, J.) (adopting magistrate's report and recommendation)

• Procedural: "[P]laintiffs have failed to 'reasonably describe' the records sought through their alleged FOIA requests."

• Exhaustion: Plaintiffs have not alleged that they exhausted their administrative remedies prior to filing suit.

• Litigation considerations: The FOIA does not create a cause of action for monetary damages.

5. Percy Squire Co. v. FCC, No. 09-428, 2009 WL 2448011 (S.D. Ohio Aug. 7, 2009) (Watson, J.)

Re: Investigative documents

• Exhaustion: Although the FCC did not respond timely to plaintiff's FOIA request, it "cured the failure" when plaintiff "agreed to a phased response for the tens of thousands of pages of documents which are responsive to the FOIA request." Thus, plaintiff cannot be said to have exhausted its administrative remedies.

WEEK OF AUGUST 24

1. Zarcon, Inc. v. NLRB, No. 08-2330 (8th Cir. Aug. 27, 2009) (Shepherd, J.)

Re: Request for affidavit

• Attorney fees: The court "agree[s] that Buckhannon's reasoning eliminating the 'catalyst theory' as a basis for recovering attorney's fees extended to FOIA prior to the enactment of the OPEN Government Act." Thus, the only question expressly before the court is whether the OPEN Government Act (OGA) has retroactive effect. "[T]he [OGA] made recovery of attorney's fees possible in circumstances where they had been previously forbidden. At the time the NLRB settled this case, our cases clearly demonstrated that the 'catalyst theory' would not be an available means of recovering costs under FOIA. Applying the [OGA] to this case would, therefore, increase the NLRB's 'liability for past conduct, [and] impose new duties with respect to transactions already completed.' . . . Given that 'the statute would operate retroactively [if applied to this case], [the] traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.'" Plaintiff has not been able to show evidence of such intent.

• Litigation considerations: "[A]s the NLRB produced the requested documents and [plaintiff] withdrew its complaint pursuant to settlement of the case . . . further discovery is unneeded." Thus, plaintiff's appeal of the district court's denial of plaintiff's request for admissions and further discovery is dismissed as moot.

2. Bonaparte v. DOJ, No. 08-5381, 2009 U.S. App. LEXIS 18984 (D.C. Cir. Aug. 20, 2009) (per curiam) (unpublished disposition)

Re: Oaths of office and letters of appointment for two Assistant United States Attorneys

• Litigation considerations: Plaintiff's motion for appointment of counsel is denied. "With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits."

• Adequacy of search: The district court's ruling that defendant conducted an adequate search is affirmed. "Appellant's challenge to the adequacy of the search fails because he has not provided sufficient evidence to raise 'substantial doubt' concerning the adequacy of the search." Moreover, "the Executive Office for United States Attorneys is not obligated to search for or reacquire documents it did not retain to satisfy plaintiff's Freedom of Information Act request." It was also reasonable to limit its search to the district that was the "'likely' location [of] the requested documents."

1. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., No. 08-9595, 2009 WL 2599336 (S.D.N.Y. Aug. 24, 2009) (Preska, C.J.)

Re: Documents reflecting "discount window" loans authorized by the Federal Reserve Board and designed to provide "emergency liquidity" to institutions "during times of systemic stress"

• Agency records: Federal Reserve Board regulations establish that certain records maintained by the Federal Reserve Bank of New York (FRBNY) are agency records of the Board. "[A]ccording to the plain language of its own Regulations, the Board, by way of the Secretary of the Board, obtains and controls records in the possession or control of the FRBs, and those records qualify as 'agency records' for purposes of FOIA requests addressed to the Board. However, not all records at the FRBs are within the custody of the Secretary of the Board because the Regulations elsewhere limit the scope of 'Board records' . . . to a subset of documents in the possession or control of the FRBs." At a minimum, "if a record is kept in the Board's official files at a FRB, the Secretary of the Board is its official custodian, regardless of its subject matter, and thus it qualifies as a Board 'agency record.'" These records must be searched. The court, however, rejects plaintiff's "constructive obtainment and control" theory for all records of the FRBs. Supreme Court rulings in this area "certainly do not compel" its adoption. Finally, the court need not reach the question of whether the FRBs are themselves agencies subject to the FOIA for the purposes of this litigation, which involved a request made to the Reserve Board.

• Adequacy of search: Because the Board failed to conduct a search at the FRBNY, and because at least some of the FRBNY's records qualify as Board records, defendant failed to conduct an adequate search.

• Exemption 4 (threshold): The court finds that the withheld documents were not obtained from a person, and therefore do not qualify for protection under Exemption 4. "The only information in the [requested] Remaining Term Reports [RTRs] that the FRBNY and other FRBs could possibly have obtained from the borrow[er]s is the borrowers' names; the FRBs generated all the other information from internal data regarding their lending programs." Though borrowers did provide information to the FRBs, none of this information (other than the borrowers' names) is included in the withheld records. "Rather, the [RTRs] describe the originating FRB districts of the loans, individual loan amounts extended by the FRBs, the types of FRB lending program borrowed from, and loan origination and maturity dates." Indeed, though "the [RTRs] certainly include information about the FRBs' interactions with the borrowers, it is a non sequitur to say that information about a person is obtained from that person."

• Exemption 4 (confidential communications): "The Board has not met its burden of proving that disclosure of the information contained in the [RTRs] will cause substantial harm to the competitive position of the borrowers. . . ." Defendant's affidavits "say nothing about how borrowers' competitors will affirmatively use the information that the borrowers participated in the Federal Reserve lending programs. . . . [T]he risk of looking weak to competitors and shareholders is an inherent risk of market participation; information tending to increase that risk does not make the information privileged or confidential under Exemption 4." The court declines to "import or apply the program effectiveness test in this action." The court finds that "[c]onjecture, without evidence of imminent harm, simply fails to meet the Board's burden of showing that Exemption 4 applies."

• Exemption 5 (Commercial privilege): Plaintiff "does not dispute that the [RTRs] qualify" as intra-agency documents, but the Board has not met its burden to show that they are privileged. "The Merrill Court certainly did not intend to create a sweeping new privilege for any sensitive information, the immediate release of which would significantly harm the Government's monetary functions or commercial interests." Furthermore, "while the [RTRs] were circulated to Board and FRBNY staff, the Reports do not contain any information remotely similar to the type of information discussed in Merrill: information that provides guidance or directives. Instead, they provide historic data."

2. Calvert v. United States, No. 08-1659, 2009 WL 2584766 (D.D.C. Aug. 24, 2009) (Urbina, J.)

Re: Request for signature sample of FBI Special Agent

• Exhaustion: The court finds that plaintiff exhausted his administrative remedies. Though plaintiff did not provide a privacy waiver for the subject of the request, DOJ regulations do not require the submission of such a waiver as a condition precedent to the processing of a FOIA request.

• Exemption 6: "The recognized privacy interest of FBI agents . . . does not 'imply blanket exemption [.]' . . . To justify its exemption 6 claim, then, the defendant must show that the threat to [the agent's] privacy in his signature - assuming it to be an agency record - is real rather than speculative."

• Exemption 7(C): "The current record does not establish the threshold law enforcement purpose nor does it provide [ ] a factual basis for determining the asserted harm."

3. Sowe v. State of Md., No. 09-0621, 2009 U.S. Dist. LEXIS 74990 (D. Md. Aug. 24, 2009) (Quarles, J.)

Re: First-party request

• Proper party defendant: The Maryland State Police is not subject to the federal FOIA.

4. Mingo v. DOJ, No. 08-2197, 2009 U.S. Dist. LEXIS 74830 (D.D.C. Aug. 24, 2009) (Kollar-Kotelly, J.)

Re: First-party request

• Litigation considerations: Plaintiff's assertion that defendant has not produced allegedly exculpatory information about him that he is entitled to "mistakenly conflates the government's statutory obligation to disclose records under the FOIA with its separate constitutional obligation established by Brady v. Maryland. . . . The fact that plaintiff may have received a document during discovery in a criminal proceeding is not material to the issue of whether ATF fulfilled its statutory obligations under the FOIA." Indeed, "Brady does not foreclose the government from asserting FOIA exemptions even as to information that may have been previously disclosed to a defendant in a criminal proceeding."

• Adequacy of search: "Plaintiff has not proffered any evidence that creates a triable issue on defendant's search, which the Court finds was reasonably calculated to locate all records responsive to plaintiff's FOIA request." (posted 10/02/2009)

Go to: Main FOIA Post Page

Topic(s): 
FOIA Post