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

March 12, 2009

FOIA Post

Summaries of New Decisions -- February 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 February 2009.


WEEK OF FEBRUARY 2

1. Stewart v. U.S. Dep’t of the Interior, 554 F.3d 1236 (10th Cir. 2009) (Henry, C.J.)

Re: Records concerning the granting and retiring of grazing permits

• Fee waiver: Defendant’s denial of a fee waiver to search backup tapes for possibly responsive e-mails was appropriate. Interior granted a waiver for records it knew existed, but “there is an obvious and critical difference between granting a fee waiver with respect to printed records (or those available on existing databases) and denying one regarding a request to search 610 backup tapes with no indication that such records may exist.” Furthermore, “the district court was correct in upholding the denial of the fee waiver because the underlying search would be unduly burdensome given the speculative nature of the records requested.” Plaintiff’s argument that Interior “should be responsible for fees because it did not maintain its records in readily reproducible form ignores the fact that the backup tapes simply are not the official means by which the Bureau of Land Management complies with FOIA requirements . . . and that searches for electronic records are not required when they would significantly interfere with an agency’s automated information system.” The district court found that defendant “likely produced all the relevant e-mail communications, and thus any records maintained on the backup tapes would not ‘contribute significantly to public understanding.’”

• Exemption 5 (threshold): The district court incorrectly ruled that Interior could not withhold communications produced by a paid consultant on the basis of the consultant’s “‘deep-seated views’” on the matter for which he was consulted. “We find no support for a limitation on paid consultants that they must lack ‘deep-seated views.’ The fact that they may derive intellectual satisfaction from consulting and possible adoption of their views does not mean that they have a personal or economic stake in the outcome. It would be unusual for an agency to seek out the advice of consultants who lack professional standing or who have not worked in the field, let alone those who have not published their views in their areas of expertise.”

2. Consumers’ Checkbook, Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046 (D.C. Cir. 2009) (Henderson, J.) (concurring/dissenting opinion by Rogers, J.)

Re: Medicare claim information

• Exemption 6: The district court incorrectly ordered release of information that would disclose total Medicare payments to doctors for procedures covered by Medicare. Although this information would not reveal a physician’s total income, “the requested information need not reveal completely an individual’s personal finances to implicate substantial privacy concerns.” Additionally, the court has “recognized substantial privacy interests in business-related financial information for individually owned or closely held businesses because the ‘financial makeup of the businesses mirrors the financial situation of the individual family members.’” Thus, “physicians have a substantial privacy interest in the total payments they receive from Medicare for covered services.” As to the public interest in disclosure, plaintiff argues that release of this information will shed light on HHS’s performance of its duty to promote better quality health care for Medicare beneficiaries. However, this argument rests on the assumption that knowing how often a physician performs a procedure may be used as an indicia of the quality of the physician’s services, a claim upon which “[t]he medical community has not reached a consensus.” Moreover, even if such a correlation did exist, “the data [plaintiff] requests will not indicate total volume because it does not include procedures performed by physicians for non-Medicare patients.” Plaintiff also claims that release of this information will enable the public to determine if physicians with insufficient qualifications or poor evaluations are receiving Medicare funds. However, information which is already publicly available enables the public to determine if doctors with such problems are enrolled in the Medicare program. The records plaintiff requests would only indicate the volume of any specific procedure performed by a particular physician, “but this added knowledge does not shed any additional light on whether [HHS] is following its enrollment procedures. . . .” Additionally, plaintiff provides no evidence for its claim that the requested information will allow for a determination as to whether enrolled physicians “‘are providing all services required to reach standards of recommended care.’” Furthermore, “[e]ven if the requested data could be used to measure the quality of care provided by Medicare-enrolled physicians, it would not shed light on the ‘agency’s performance of its statutory duties.’” Similarly, plaintiff has not provided evidence to support its claim that the information it has requested would reveal fraudulent claims submitted by participating doctors. “[Plaintiff] has not provided any evidence of alleged fraud the requested data would reveal.” The payment information requested by plaintiff “is irrelevant to whether physicians meet the Medicare enrollment requirements.” Plaintiff also incorrectly asserts that the requested information will reveal whether HHS is following its own transparency rules. Instead, “[plaintiff] in fact seeks to use FOIA to compel [HHS] to comply with its transparency initiatives as [plaintiff] views them, not to evaluate whether [HHS] is fulfilling its duties.” As there is no public interest in disclosure, the substantial privacy interests of the affected doctors are protected by Exemption 6.

3. Barbosa v. DOJ, No. 08-5103, 2009 U.S. App. LEXIS 1525 (D.C. Cir. Jan. 27, 2009) (unpublished disposition) (per curiam)

Re: Records regarding alleged DEA informant

• 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.”

• Exemption 7(C)/Glomar: DOJ’s motion for summary affirmance is granted. “[T]he district court properly determined the agency had adequately justified its refusal to confirm or deny the existence of records because that information would be protected under Exemption 7(C) of the Freedom of Information Act.” Plaintiff has not demonstrated any public interest that would overcome the substantial privacy interests at stake. “[His] unsubstantiated assertions of government wrongdoing do not establish a meaningful evidentiary showing that can overcome the presumption of legitimacy accorded to the government’s official conduct.”

1. Scales v. EOUSA, No. 07-0071, 2009 WL 223903 (D.D.C. Feb. 2, 2009) (Kennedy, J.)

Re: Records related to alleged agreement between defendant and witness for testifying at plaintiff’s criminal trial

• Exemption 7(C)/Glomar: EOUSA’s use of a Glomar response was proper. Due to the nature of law enforcement records, an individual’s privacy interests are extremely high. Plaintiff incorrectly asserts that the records he seeks concern information in the public domain or officially acknowledged by defendant. “The mere fact that [the third party in question] testified at [plaintiff’s] trial, or that she acknowledged at trial that there were . . . charges pending against her at that time does not constitute a waiver of her privacy rights to all other related information, as requested by the plaintiff.” Plaintiff asserts a public interest in the information because it may reveal a Brady violation. However, accusations of Brady violations are “appropriately addressed to the court that sentenced the prisoner, not through a FOIA action.” Furthermore, plaintiff has merely asserted the possibility of such a violation, without any underlying evidence. “Such a conclusory assertion does not give this Court any factual basis upon which to conclude that the plaintiff’s interest outweighs the individual’s legitimate privacy interest.”

2. Nunez v. United States, No. 07-1147, 2009 WL 222661 (M.D. Pa. Jan. 29, 2009) (Vanaskie, J.)

Re: First-party request and request for budgetary records

• Exhaustion: The court finds that plaintiff did not exhaust administrative remedies as to either of his requests. As to his first-party request, after the filing of his complaint, plaintiff received a letter advising him of his administrative appeal rights. As to his request for budgetary records, after the filing of his complaint plaintiff received a request from defendant for more specific information regarding the records he was requesting, and in return plaintiff filed a more specific request. The court dismisses the FOIA claims without prejudice.

3. Rogers v. Davis, No. 08-177, 2009 WL 213034 (E.D. Mo. Jan. 28, 2009) (Jackson, C.J.)

Re: Records pertaining to discrimination complaint by plaintiff

• Litigation considerations: To the extent that plaintiff seeks relief in the form of back pay, her action is barred by res judicata, because her discrimination complaint was already denied. “[T]o the extent that [plaintiff] is asserting a true FOIA claim, the action is not barred by res judicata.”

• Exemptions 6 & 7(C): Defendant USDA properly redacted names and identifying information of several third parties, including an individual involved in the decision to terminate plaintiff, agency employees who participated in the review of plaintiff’s complaint, and the individual who was the subject of plaintiff’s discrimination complaint. “[P]laintiff has not articulated what public interest would be advanced by releasing the redacted information. Instead, plaintiff’s interest in the redacted information is purely personal. . . .” Conversely, “[g]overnment employees have a privacy interest in their names and phone numbers, especially when associated with a complaint of misconduct.” Moreover, because “[p]ersonnel investigations of government employees are compiled for ‘law enforcement purposes’ if they focus on ‘specific and potentially unlawful activity by particular employees,’” the withheld records qualify as law enforcement records, making Exemption 7(C) applicable as well as Exemption 6.

4. Gore v. DEA, No. 09-37, 2009 WL 211491 (D.S.C. Jan. 28, 2009) (Herlong, J.) (adoption of magistrate’s recommendation)

Re: Request for expedited processing

• Litigation considerations: “[T]he court finds that [plaintiff’s] objections [to the magistrate’s report and recommendations] are non-specific, unrelated to the dispositive portions of the [report], or merely restate his claims.” The court adopts the magistrate’s finding that plaintiff’s complaint is subject to dismissal under the “three-strikes” provision of the Prison Litigation Reform Act, because plaintiff has filed three prior frivolous cases in this court. As plaintiff is not “under imminent danger of serious physical injury,” he does not meet the exception to the “three-strikes” rule. Thus, plaintiff may not proceed with his complaint without paying the full $350 filing fee. Plaintiff’s motion to proceed in forma pauperis is denied, and his complaint is dismissed without prejudice.


WEEK OF FEBRUARY 9

1. Geter v. Sydnor, No. 08-1863, 2009 WL 320322 (D.D.C. Feb. 9, 2009) (Roberts, J.)

Re: Unclaimed property lists

• Litigation considerations: Because plaintiff failed to respond to defendant’s motion to dismiss or for summary judgment, the facts alleged by defendant in its motion are taken as conceded.

• Exhaustion: Plaintiff did not file an administrative appeal of defendant’s response to his initial request. Because he did not exhaust administrative remedies, plaintiff’s complaint fails to state a claim upon which relief may be granted.

2. Barnard v. DHS, No. 06-1393, 2009 WL 305070 (D.D.C. Feb. 9, 2009) (Kollar-Kotelly, J.)

Re: First-party request

• Litigation considerations: Plaintiff has not demonstrated that the court should reconsider its prior ruling in this case. The fact that plaintiff himself is no longer the subject of an open investigation does not, by itself, call into question the validity of the court’s prior ruling.

• Adequacy of search: Plaintiff’s challenge to DHS’s search is based solely on the fact that the initial search failed to turn up all responsive documents. However, “Plaintiff fails to cite a single case where a court found that an agency conducted an inadequate search simply because it undertook multiple searches to find responsive records.” Defendant’s declarations establish that it conducted an adequate search.

• Exemption 6: Defendant properly withheld the names of federal employees and other third parties who have been in plaintiff’s presence. As to the federal employees, the fact that these employees appear in public wearing name tags does not mean that they have no cognizable privacy interests. As to the latter, “there is no question that Exemption 6 is designed to protect the names of individuals, regardless of the particular file in which they may be found.” Plaintiff has not demonstrated that release of the names of the employees or the other third parties would in any way inform the public as to defendant’s performance of its duties. “Where, as here, the nexus between the information sought and the asserted public interest is lacking, the asserted public interest will not outweigh legitimate privacy interests.”

• Exemption 7 (threshold): “[T]here is no question that [Immigrations and Customs Enforcement] and [Customs and Border Patrol] perform law enforcement activities.” While the declarations publicly submitted by defendant are insufficient, defendant has satisfied its burden through two in camera declarations filed with the court. “Although the Court is aware that in camera declarations should be avoided unless truly necessary, . . . where, as here, an agency indicates that no additional information concerning an investigation may be publicly disclosed without revealing precisely the information that the agency seeks to withhold, the receipt of in camera declarations is appropriate.”

• Exemption 7(A): Defendant properly withheld records under this exemption because even though plaintiff is no longer the subject of an open investigation, “‘[the records in question] contain information related to other on-going investigations.’” Plaintiff’s argument that defendant’s declarations contain inadmissible hearsay is rejected (as the court has rejected similar claims from plaintiff previously). Defendant’s declarations are based upon personal knowledge of the relevant facts, review of the records, and information conveyed to declarants in the course of their official duties. “[T]he declarant is not required to independently verify the information contained in each responsive record.” Moreover, “FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties.” While defendant’s publicly submitted declarations were insufficient to demonstrate how release of the withheld information could reasonably be expected to interfere with ongoing enforcement proceedings, defendant has met its burden through its in camera submissions.

• Exemption 7(C): Defendant properly withheld Special Agent names and other third parties appearing in Significant Incident Reports. “[T]he names of third-parties in law enforcement records are almost always exempt from disclosure.” Plaintiff’s bare allegation of agency impropriety does not create a public interest in disclosure.

• Exemption 7(E): Defendant properly utilized this exemption to withhold Significant Incident Reports, as well as information that would reveal investigative techniques. “[A]n agency may properly withhold information from disclosure where, as here, it would provide insight into its investigatory or procedural techniques. . . .” Defendant has described the withheld information and why release would permit circumvention of the law with sufficient specificity. Plaintiff’s argument that some of the inspection procedures and other techniques employed by plaintiff have been made public fails. “There is no principle of which the Court is aware that requires an agency to release all details concerning these and similar techniques simply because some aspects of them are known to the public.”

• (c)(1) Exclusion: Although defendant “did not initially disclose the existence of these records to plaintiff based on the (c)(1) exclusion,” defendant has now acknowledged the existence of the records, “Plaintiff does not allege” that the exclusion was “improperly invoked,” and “it is immaterial to resolution of the remaining disputes between the parties.”

3. Roman v. NSA, No. 07-4502, 2009 WL 303686 (E.D.N.Y. Feb. 9, 2009) (Bianco, J.)

Re: Satellite time logs focused on New York and New Jersey

• Exemption 1/Glomar: The court found in the alternative that NSA’s use of Exemption 1 to refuse to confirm or deny the existence of responsive records was appropriate. Defendant’s declaration “has adequately demonstrated that the information sought by plaintiff is properly classified under [Executive Order] 12958 as information which could threaten national security and, therefore, is exempt from either agency confirmation or denial of its existence.”

• Exemption 3/Glomar: “[I]t is well-established that FOIA Exemption 3 properly encompasses Section 6 of the [NSA Act of 1959].” NSA has established that confirming or denying the existence of the records plaintiff seeks would threaten the efficacy of NSA’s Signal Intelligence (SIGINT) program. “‘Public disclosure of either the capability to collect specific communications or the substance of the information itself can easily alert targets to the vulnerability of their communications.’” Plaintiff has failed to show bad faith on NSA’s part; instead he has made “conclusory allegations about how the SIGINT program is being employed by the NSA in a presumably illegal fashion.” Furthermore, “the Court concludes that it need not consider any allegation of the underlying illegality of SIGINT as it is clear by the plain language of both FOIA Exemption 3 and Section 6 of the [NSA Act of 1959] that defendant appropriately invoked the Glomar Response.”

4. Milton v. DOJ, No. 08-0242, 2009 WL 281673 (D.D.C. Feb. 6, 2009) (Roberts, J.)

Re: Recordings of telephone conversations between plaintiff and third parties made while plaintiff was in prison

• Exemptions 6 & 7(C): Defendant properly withheld the requested records in order to protect the privacy of the individuals with whom plaintiff was conversing. Plaintiff did not submit waivers from these individuals, nor has he offered a public interest that would overcome the privacy interests at stake. Indeed, plaintiff did not file a response to defendant’s dispositive motion.

5. Lewis-Bey v. DOJ, No. 05-2241, 2009 WL 267552 (D.D.C. Feb. 5, 2009) (Kessler, J.)

Re: Records concerning plaintiff and his organization

• Adequacy of search: “ATF’s inability to locate all of the records Plaintiff desires does not defeat summary judgment as long as it ‘establish[es] that it located no records responsive to plaintiff’s request after a reasonable search using “methods reasonably expected to produce the information requested,’” which it has done in this case. “ATF cannot release records that it does not maintain. . . .”

• Procedural: “All that is before this Court are plaintiff’s bare assertions that the ATF and the FBI files contain the same information.” Consequently, “ATF is not bound by” the processing decisions made by the FBI in response to separate FOIA requests from plaintiff, “whether the information in the FBI’s records is the same as or similar to information found in the ATF’s records.”

• Exemption 2 (high): ATF properly withheld law enforcement codes, internal administrative codes, and confidential source codes. “[R]elease of these codes to the public could allow an individual ‘knowledgeable in computer mainframes and systems to try to circumvent the database and interfere with enforcement proceedings.’” Furthermore, release of this information “‘could aid in the discovery of other . . . sensitive data, such as the identities of confidential informants, law enforcement techniques, and information which would allow a criminal to evade justice.’”

• Exemption 3: Pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, defendant properly withheld records whose release “would reveal protected inner workings of the Grand Jury proceedings, including, most significantly, the substance of the Grand Jury’s investigation and the evidence it considered.” The Grand Jury’s ultimate decision to indict or not “has no bearing” on the applicability of Exemption 3.

• Exemption 5 (deliberative process privilege): ATF properly withheld the portions of Reports of Investigation which contained recommendations of ATF agents to superiors or to fellow agents as to how to proceed with the investigation of plaintiff. This information was clearly predecisional and deliberative, and its release “‘would have the effect of inhibiting the free flow of recommendations and opinions.’”

• Exemption 7(C): ATF properly withheld identifying information of both federal and state law enforcement agents, as well as other personnel involved in law enforcement operations. The fact that some of these individuals may be known to plaintiff or may have testified at his trial does not lessen their legitimate privacy interests. Plaintiff has failed to show evidence of alleged agency wrongdoing, and courts have consistently refused to recognize a requester’s interest in challenging his conviction as a public interest under the FOIA.

• Exemption 7(D): ATF appropriately withheld information that could identify confidential sources. “Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source.” Given plaintiff’s history of violence, including a conviction for murder of a Grand Jury witness, “it is reasonable to conclude that sources provided information . . . with the expectation that his or her identity would be remain [sic] confidential.”

• Exemption 7(E): ATF properly withheld information concerning its electronic surveillance techniques, as well as descriptions of other techniques and procedures used in its investigation of plaintiff. As to the former, “[d]isclosure ‘could lead to decreased effectiveness in future investigations by allowing potential subjects to anticipate . . . and identify such techniques as they are being employed.’” As to the latter, “[d]isclosure . . . could help ‘potential subjects to anticipate the law enforcement techniques and procedures that otherwise would be foreign to them.’”

6. People of California ex rel. Brown v. EPA, No. 07-02055, 2009 WL 273411 (N.D. Cal. Feb. 4, 2009) (adoption of magistrate’s recommendation) (White, J.)

Re: Records relating to discussion of state regulations of motor vehicle carbon dioxide emissions

• Exemption 5 (threshold and deliberative process privilege): Defendants’ declaration and Vaughn index did not provide sufficient facts for the court to evaluate its use of the deliberative process privilege. Thus, defendants are ordered to provide several documents for in camera review. In camera review is also required for several draft documents withheld by defendants because the court finds that defendants have not adequately explained “how the documents would expose the deliberative process.” As to handwritten notes of an agency employee that were withheld, although “the information in the notes may be subject to the deliberative process privilege,” defendants have not met their burden of showing “that the notes were not predominantly factual in nature, and that what has been withheld ‘represent[ed] the mental processes of the agency in considering alternative courses of action prior to settling on a final plan.’” Further briefing or an additional declaration is recommended. Defendants did, however, properly protect documents containing advice provided by an outside contractor defendants consulted for his expertise on matters related to fuel efficiency rules.

• Segregability: Because defendants released additional documents during the course of this litigation, the question of whether defendants have satisfied their segregability obligations is unclear. The parties are invited to re-brief this issue.


WEEK OF FEBRUARY 16

1. Wilson v. United States, No. 08-5022, 2009 WL 387086 (D.S.D. Feb. 11, 2009) (Battey, J.)

Re: Various records concerning federal investigations of the Outlaws and Hells Angels Motorcycle Clubs

• Procedural: Plaintiffs failed to send their requests for FBI records to the proper location for such requests. Plaintiffs have also failed to show that their request to the United States Attorney’s Office for the Eastern District of Michigan was ever received by that office. The United States Attorneys Office for the District of South Dakota properly determined that an address book was not “relevant to plaintiffs’ underlying state case” and so the United States Attorneys Office's determination was “not arbitrary and/or capricious.”

• Proper party defendant: An AUSA is not a proper party defendant to a FOIA action.

• Exhaustion: Defendant ATF failed to respond within twenty days and so plaintiffs are found to have exhausted their administrative remedies as to ATF. Plaintiffs failed to appeal the denial of their requests to defendants DEA, FBI, and DHS, thereby failing to exhaust their administrative remedies as to these requests.

• Adequacy of search: Plaintiffs have failed to credibly challenge defendant DEA’s determination that no records exist as to plaintiffs’ first request. Additionally, the court accepts defendant USMS’s contention that it found no responsive records in the District of Wyoming.

• Exemptions 7(A), 7(C), 7(D), & 7(E): “The very nature of plaintiffs’ request [to ATF for] intelligence reports, investigative reports and copies of surveillance, indicates to the Court that it is seeking information the release of which could interfere with law enforcement proceedings, disclose techniques and procedures of investigations, threaten the identity of confidential sources, and could present an unwarranted invasion of personal privacy.” Additionally, the third-party criminal history records plaintiffs requested would be exempt from disclosure under Exemption 7, as would be the records plaintiffs requested from DHS. Defendant USMS properly withheld records pursuant to Exemptions 7(C) and 7(E).

2. Martin v. Claxton, No. 08-205, 2009 WL 357889 (N.D. W. Va. Feb. 11, 2009) (adoption of magistrate’s recommendation) (Keeley, J.)

Re: Incident reports pertaining to plaintiff’s arrest

• Proper party defendant: Only federal agencies, and not individual federal employees, are proper party defendants to FOIA suits. Thus, the claims against the named defendants are dismissed with prejudice. DOJ is substituted as defendant in this action and is directed to file a response to plaintiff’s complaint.


WEEK OF FEBRUARY 23

1. Lopez v. EOUSA, No. 07-2002, 2009 WL 458679 (D.D.C. Feb. 25, 2009) (Urbina, J.)

Re: First-party request

• Exemption 5 (deliberative process and attorney work-product privileges): Plaintiff has not challenged EOUSA’s use of this exemption. Defendant’s “commendably detailed, informative and comprehensible” Vaughn index establishes that its use of this exemption was proper.

• Exemptions 6 & 7(C): “[P]laintiff’s argument [that privacy considerations are overcome in light of his allegation of a Brady violation] “simply does not comport with the law.” Plaintiff’s only asserted interest in release of the records is to assist him in challenging his conviction, an interest which “is private, not public.” Even were this not the case, EOUSA’s Vaughn index shows that the information plaintiff seeks is not included in the records withheld under these two exemptions. Plaintiff has been unable to show a public interest in release which overcomes the substantial privacy interests at stake.

2. McLaughlin v. DOJ, No. 07-2347, 2009 WL 428925 (D.D.C. Feb. 23, 2009) (Collyer, J.)

Re: First-party request

• Procedural: EOUSA’s practice of treating requests as seeking non-public source records and requiring requesters to make a separate indication of their wish to receive public source records does not demonstrate bad faith on the agency’s part. This practice generally allows those who wish to receive public source records to receive them more quickly, and also keeps the many requesters who do not wish to receive them from being charged for records they do not want.

• Exhaustion: By not paying duplication fees for the records he wished to receive, plaintiff failed to exhaust his administrative remedies. There is nothing in the FOIA or related regulations that would require EOUSA to accept plaintiff’s proposed installment payment plan for the records, and “[plaintiff] has not countered EOUSA’s reasonable explanation for why such a plan is not feasible.”

3. Tybrin Corp. v. U.S. Dep’t of the Air Force, No. 08-002, 2009 WL 425035 (S.D. Ohio Feb. 19, 2009) (Merz, Mag. J.)

Re: E-mails sent to Air Force by one contractor concerning another contractor’s eligibility for participation in agency program

• Exemption 4/Reverse FOIA: The court adopts the D.C. Circuit’s definition of “commercial,” by which documents are considered commercial if the submitter has a “commercial interest” in them. Because the submitter has such an interest, and because the documents were voluntarily submitted and are not the type of documents routinely disclosed by this particular submitter, the Air Force is enjoined from releasing the requested documents.

4. Educap Inc. v. IRS, No. 07-2106, 2009 WL 416428 (D.D.C. Feb. 18, 2009) (Collyer, J.)

Re: Records pertaining to third-party contacts made by agency in course of audit of plaintiff

• Jurisdiction: The court lacks jurisdiction under the FOIA to order the IRS to comply with Section 7602(c) of the Internal Revenue Code.

• Exemption 7 (threshold): An IRS audit is a law enforcement activity.

• Exemption 7(A): The IRS properly withheld interview notes taken while contacting various third parties in connection with the audit of plaintiff. “[T]he IRS’s expressed concern that release of the interview notes could deter potential witnesses from providing information is sufficient to show that disclosure could reasonably be expected to interfere with the ongoing audit. The IRS was not required to further show that the third parties would not have cooperated but for assurances of confidentiality.” The IRS also properly withheld documents provided to the agency by one of the third parties it contacted. Release of this information “‘would prematurely inform plaintiff of the nature and scope of the on-going investigation.’”

• Exemption 7(C): “[T]he names of private individuals appearing in law enforcement records are categorically exempt from disclosure under Exemption 7(C).” While plaintiff argues that Section 7602(c) of the Internal Revenue Code mandates disclosure of the third-party contacts, “[t]here is nothing in the FOIA that precludes the government from relying on an otherwise applicable FOIA exemption when a non-FOIA statute requires disclosure.” The privacy interests of the individuals mentioned in the responsive records are not diminished or lost under the FOIA even if this information must be disclosed pursuant to Section 7602(c). Nor does Section 7602(c) give plaintiff greater rights of access to the requested information via the FOIA than it would otherwise have.

5. Monaghan v. FBI, No. 07-01614 (D. Nev. Feb. 17, 2009) (Jones, J.)

Re: Records documenting debris from planes that crashed on 9/11, and their use to identify which flights crashed

• Procedural: Plaintiff’s first request, which sought information concerning the debris recovered from the crashed planes, and his amended request, which sought information concerning efforts to verify which flights actually crashed, seek different pieces of information. The FBI appropriately treated the amended request as superseding the first request, and read the amended request correctly.

• Adequacy of search: The FBI’s declaration establishes that it conducted a reasonable search; there is no evidence of bad faith on the FBI’s part. The FBI also verified that the identities of the crashed planes has never been in question. “[Plaintiff] has failed to controvert the FBI’s showing that the FBI conducted a reasonable search and failed to yield any responsive documents.” His “bare assertions that such responsive documents exist” are insufficient to call into question the FBI’s declaration.

6. Elliott v. U.S. Dep’t of the Interior, No. 07-1548, 2009 WL 395239 (D.D.C. Feb. 14, 2009) (Leon, J.)

Re: Records pertaining to jurisdiction of National Park Service over property in Beltsville, Maryland

• Adequacy of search: “[D]efendant has provided evidence of an adequate search,” and plaintiff has failed to offer anything to rebut this evidence. Thus, defendant is entitled to summary judgment.
(posted 3/12/2009 )

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