FOIA Post (2009): Summaries of New Decisions -- February 2010

Summaries of New Decisions -- February 2010

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 2010.

WEEK OF FEBRUARY 1

1. Clay v. DOJ, No. 09-0179, 2010 WL 325587 (D.D.C. Jan. 29, 2010) (Walton, J.)

Re: Records pertaining to 2002 drug case

• Adequacy of search: The fact that defendant EOUSA subsequently located a responsive record it did not find in its initial search "does not raise a genuine issue of material fact with regard to the otherwise adequate search." Though it "is unclear why the EOUSA did not process the record after it was located," plaintiff, who appears to already have an unredacted copy of the record, "has not challenged the EOUSA's failure to process it."

• Exemption 2 (high & low): Defendant DEA properly asserted "high" 2 to withhold violator identifier codes whose disclosure could cause circumvention of DEA's law enforcement efforts by enabling suspects to "'change their pattern of drug trafficking in an effort to respond to what they determined DEA knows about them.'" DEA also appropriately withheld "internal accounting codes and similar numbers" under "low" 2.

• Exemption 7(C): DEA properly withheld information concerning various third parties, including suspects, co-defendants, and confidential sources. "Such information is 'categorically' protected from disclosure under exemption 7(C) absent the plaintiff's showing that 'a significant public interest exists for disclosure.'" Plaintiff alleges that one of defendant's confidential informants testified at plaintiff's trial, but even if true, "an individual does not waive privacy rights merely by testifying at a trial." Plaintiff also claims that he has a due process right under the Constitution to discovery information, but "the FOIA is not a substitute for discovery rules which govern civil and criminal litigation. . . . Because the FOIA is concerned only with the disclosure of agency records, the requester's identity and purpose for the disclosure are generally immaterial." Furthermore, unlike in discovery, where disclosure may be limited to a single party, under the FOIA, disclosure "is 'to the public as a whole.'" As a result, "'not all documents available in discovery are also available pursuant to FOIA,' and vice versa." Finally, plaintiff alleges that the responsive records must be disclosed in order to reveal that the government bribed a witness against plaintiff at his trial, but the statute that plaintiff alleges was violated specifically allows for payment of witness fees. Moreover, "any personal interest the plaintiff may have in the withheld material [and specifically in challenging his conviction] does not qualify as a public interest favoring disclosure under FOIA exemption 7(C)."

2. Ullman v. United States, No. 09-3208 (E.D. Pa. Jan. 27, 2010) (Sánchez, J.)

Re: Records from bankruptcy filing

• Proper party defendant: A United States Bankruptcy Court is not an "agency" for purposes of the FOIA.

• Litigation considerations: "Plaintiffs do not allege the various Defendants have failed to search for the missing document; rather, they claim the document is missing and seek injunctive relief and damages based upon its absence from the bankruptcy file. A FOIA claim requires [that] the agency involved possess the requested documents. . . . Because Plaintiffs do not claim Defendants actually have custody of the document they seek, they have failed to state a FOIA claim."

3. ACLU v. DOD, No. 04-4151, 2010 WL 308810 (S.D.N.Y. Jan. 26, 2010) (Hellerstein, J.)

Re: Records pertaining to treatment of military detainees

• Litigation considerations: The court grants plaintiffs' motion for reconsideration. "The issues, of extraordinary public moment, demand full adversarial treatment. The in camera procedures that [the court] developed for review of the documents did not permit such adversarial treatment." The court determines that "[v]itally important questions need to be briefed and argued, "including, inter alia, whether "documents describing the techniques and procedures allegedly used by the CIA in questioning persons detained by the armed forces of the United States and its allies [are] exempt from disclosure under FOIA if those techniques and procedures allegedly violate applicable law[.]"

4. Houston v. Manheim-New York, No. 09-4544, 20s10 WL 304513 (S.D.N.Y. Jan. 22, 2010) (Yanthis, Mag. J.)

Re: Litigation disclosures

• Proper party defendant: Defendants, all of which are private entities, are not subject to the federal FOIA.

• Litigation considerations: The FOIA "does not establish a cause of action for a violation of privacy. . . ."

WEEK OF FEBRUARY 8

1. Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 595 F. 3d 949 (9th Cir. 2010) (Hawkins, J.)

Re: Records reflecting discussions pertaining to the granting of retroactive liability protection for telecommunications carriers that participated in NSA's warrantless electronic surveillance program

• Exemption 3 (50 U.S.C. § 403-1, 50 U.S.C. § 402): Defendants rely on these statutes to protect the names of telecommunications carriers because "[r]evealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program." Because this claim was not addressed by the district court, the case is remanded to the district court in order for defendants' claim to be considered.

• Exemption 5 (threshold): The court finds that the district court's ruling ordering release of all documents withheld under Exemption 5 was overly broad, as it did not distinguish between documents that were circulated outside the Executive Branch and those that remained wholly within the Executive Branch. On remand, the district court must give more thorough consideration to the distinction between these two classes of documents. For those documents the district court determines meet the threshold standard, the court will then have to determine whether these documents were subject to any privilege asserted by defendants.

• Exemption 6: The court affirms the lower court ruling that the public interest in disclosure of the names of agents of the telecommunications carriers who communicated with the government in connection with proposed amendments to the surveillance law outweighed any privacy interest. The court finds that "the few cases considering a private party attempting to influence government policy typically find in favor of disclosure, lacking countervailing concerns not present in this case." Furthermore, "[t]here is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. . . . With knowledge of the lobbyists' identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions." The court also finds that this public interest is not outweighed by any privacy interests the lobbyists may possess. "[G]overnment acknowledgment of a lobbyist's lobbying activities does not reveal 'sensitive personal information' about the individual rising to a 'clearly unwarranted invasion of personal privacy.' . . . Unlike situations in which private citizens find themselves in a large government database because of conduct unrelated to the inquiry underlying the FOIA action, when '[t]he applicant is petitioning the government for the performance of a public act; this is not a situation where he is a third-party who finds himself in government records through no action of his own.'" However, "we find no corresponding interest as to the carriers' agents' email addresses. Yet we can easily envision possible privacy invasions resulting from public disclosure of the email addresses." As a result, this portion of the district court's ruling is overturned, and the agents' email addresses are protected from disclosure unless they are the only way to identify the agent in question.

1. Harrison v. BOP, No. 07-1543, 2010 WL 374529 (D.D.C. Feb. 3, 2010) (Friedman, J.)

Re: First-party request and requests relating to prison matters

• Procedural matters: Plaintiff continues to complain that defendant's responses to his FOIA requests did not address questions raised by plaintiff. However, "[a]s he has been informed previously, the FOIA does not require an agency to answer questions or to do research."

• Adequacy of search: Though the court previously found that defendant had not adequately described the search it undertook in response to one of plaintiff's requests, defendant has now cured this defect through the filing of a supplemental declaration. This declaration "describes in detailed, non-conclusory terms the search conducted with respect to" the request in question. As to two other of plaintiff's requests, defendant has also now adequately explained its original searches. Plaintiff incorrectly asserts that the court's prior order required a new search by defendant. "Additional searching is not needed where, as here, the original search satisfied the Court's requirements, even if the original description of the search was inadequate." Plaintiff has also alleged bad faith on defendant's part, but "has not offered specific information sufficient to demonstrate bad faith on the part of the agency. . . ." His allegation that additional records exist does not show bad faith on the agency's part.

• Exemption 5 (attorney-client privilege): The court previously found that defendant had not adequately justified its use of this exemption to withhold four pages. Defendant's supplemental declaration explains that the pages in question were an investigation memorandum prepared by the Warden, that the investigation was undertaken in reasonable anticipation of litigation, that the memorandum was "provided to Regional Counsel in anticipation of litigation," and that release "'would tend to inhibit open and frank communication between Bureau of Prisons employees.'" The attorney-client privilege "exists to protect 'open and frank communication' between counsel and client, and . . . both counsel and client in this case are 'Bureau of Prisons employees.'"

• Attorney fees: Plaintiff is not entitled to attorney fees because he is not a prevailing party.

2. Dobyns v. United States, No. 08-700, 2010 WL 391510 (Fed. Cl. Feb. 1, 2010) (Allegra, J.)

Re: First-party, other requests

• Jurisdiction: The FOIA confers jurisdiction in FOIA suits upon federal district courts, and not the Court of Federal Claims.

WEEK OF FEBRUARY 15

1. Moore v. FBI, No. 09-2345, 2010 U.S. App. LEXIS 3114 (7th Cir. Feb. 17, 2010) (per curiam) (unpublished disposition)

Re: First-party request

• Adequacy of search: "The FBI submitted a 'reasonably detailed' and 'nonconclusory' affidavit describing its [search] efforts . . . and [plaintiff] did not contest the agency's version of events." The fact that the FBI had years earlier destroyed some potentially responsive records does not invalidate its search, nor does the fact that plaintiff speculates that additional responsive records exist. Any complaint that plaintiff might have that the FBI did not initially include its Chicago Field Office in its search is mooted by the fact that plaintiff has now received records from that field office.

• Litigation considerations: The adequacy of the Chicago Field Office's response to plaintiff was not properly before the district court at summary judgment, because plaintiff had not exhausted his administrative remedies with regard to the field office's actions. Additionally, though plaintiff argues that the FBI was obligated to help him reformulate a request the district court found was too broad, the FBI did in fact ask him to provide more information concerning his request in order to facilitate its processing.

1. Lasko v. DOJ, No. 08-1850, 2010 WL 537551 (D.D.C. Feb. 17, 2010) (Friedman, J.)

Re: First and third-party requests

• Proper party defendant: Plaintiff's complaint is dismissed as to various state government officials and agencies, as the FOIA only authorizes claims against federal agencies.

• Adequacy of search: "Plaintiff is intent on litigating issues pertaining to his criminal trial rather than responding substantively to the arguments set forth in defendant's motion for summary judgment." Thus, he has raised issues pertaining to handling of evidence in his criminal trial, rather than issues pertaining to the adequacy of defendants' searches. "On this record, the Court concludes that the methods by which the FBI and DEA staff searched for responsive records were reasonable under the circumstances." FBI's "'no records' response was appropriate."

• Exemption 2 (high): Defendant DEA appropriately withheld "violator identifier" codes assigned to suspects. Release of this information "'would help identify priority given to narcotic investigations, types of criminal activities, and violator ratings.' . . . With this information, suspects could change their behavior so as to avoid detection and otherwise thwart the DEA's investigative and law enforcement efforts." These sorts of records "fall within the scope of Exemption 2 and routinely are withheld."

• Exemption 7 (threshold): "The DEA has met its threshold obligation by showing that . . . the responsive records [including investigation reports, reports of drugs seized, an arrest warrant, and a criminal complaint] were compiled for law enforcement purposes."

• Exemption 7(C): DEA properly asserted this exemption to withhold the names of its Special Agents, other DEA personnel, and state and local law enforcement officers. All of these individuals have significant privacy interests in protecting their identities. By contrast, "[p]laintiff articulates no public interest in disclosure. . . . His intention to use information in these records to prove his claim of innocence is not a public interest."

• Exemption 7(D): Defendant DEA used this exemption to withhold material provided by a confidential source acting under an implied grant of confidentiality. "Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides information to investigators."

2. McKevitt v. Mueller, No. 09-3744, 2010 WL 532508 (S.D.N.Y. Feb. 16, 2010) (Koeltl, J.)

Re: Third-party request

• Jurisdiction/exhaustion: "This case does not arise under the FOIA and thus there is no jurisdiction under the FOIA, because the FOIA administrative process was never used. The plaintiff never filed a FOIA request under the DOJ's procedures for such requests. . . . The plaintiff did not make a FOIA request, have it denied, and then appeal in the DOJ. Rather, he sought evidence under the Hague Evidence Convention. The Government declined to produce documents under the rationale of FOIA exemptions, but the Government's response was not a response to a FOIA request because no such FOIA request was ever made." Additionally, "the plaintiff's argument that the DOJ failed to respond timely is unavailing. The plaintiff did not file a FOIA request, and therefore the FOIA's time for response provision was never triggered." Furthermore, "[t]he defendants are plainly correct that even if the plaintiff had standing, there has not yet been administrative exhaustion and the plaintiff cannot sue at this time."

3. Thomas v. Comptroller of the Currency, No. 09-794, 2010 WL 532063 (D.D.C. Feb. 16, 2010) (Kennedy, J.)

Re: First-party request

• Exhaustion: The court finds that plaintiff constructively exhausted his administrative remedies. It is undisputed that defendant did not respond to plaintiff's request within the statutorily mandated deadline, and that plaintiff did not receive two follow-up letters sent by defendant to him. Thus, under defendant's own regulations, plaintiff exhausted his administrative remedies.

• Procedural: It was reasonable for defendant to not perform a search for responsive records without obtaining from plaintiff additional information concerning his request (chiefly the name of the agency or supervised bank that he believed maintained responsive records) that would have allowed defendant to conduct a search with a "'reasonable expectation of finding responsive documents.'" Furthermore, "it is clear that the information [plaintiff] requested is not the type of information [defendant] maintains." Finally, "[t]o the extent that plaintiff's FOIA requests were questions or requests for explanations of policies or procedures, these are not proper FOIA requests."

WEEK OF FEBRUARY 22

1. Allen v. EEOC, No. 09-14640, 2010 U.S. App. LEXIS 3779 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished disposition)

Re: First-party request

• Exhaustion: Plaintiff provided no evidence that he filed an administrative appeal of EEOC's initial response to his request. Thus, the district court correctly concluded that plaintiff did not exhaust his administrative remedies.

2. Houghton v. CIA, No. 09-3936, 2010 WL 582628 (3rd Cir. Feb. 19, 2010) (per curiam) (unpublished disposition)

Re: First-party request

• Adequacy of search: The district court correctly concluded "that the detailed affidavit submitted in this case establishes that the CIA's search was adequate."

• Litigation considerations: Because defendant did not actually withhold any documents from plaintiff, it was not required to invoke a FOIA exemption to justify its actions.

3. Sindram v. Fox, No. 09-1802, 2010 WL 582625 (3rd Cir. Feb. 19, 2010) (per curiam) (unpublished disposition)

Re: First-party request

• Litigation considerations: The district court appropriately dismissed plaintiff's FOIA claim because he failed to file in a timely manner anything containing evidence that he had exhausted his administrative remedies. Though plaintiff has attempted to cure this defect before this court, his new submissions were not part of the record before the district court.

1. Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.)

Re: Documents pertaining to unauthorized disclosure of confidential information

• Litigation considerations: The court will not grant plaintiff's motion for in camera review and discovery. As to the former, for now the court will require defendant to make additional submissions where needed. As to the latter, the court has not previously addressed the adequacy of OPR's Vaughn index.

• Exemption 2 ("high" and "low"): The court finds that defendant OPR's justification for its use of high 2 to withhold filing numbers, allegation codes, and location codes is conclusory. "[T]he nature of the information itself does not make clear how the public's knowledge thereof would risk circumvention of agency regulation, i.e. in this instance, how such knowledge would allow an individual to 'circumvent the security of OPR's computerized databases' and obtain unauthorized access thereto. OPR provides no additional information in that regard, and, indeed, does not even define the terms 'location code' and 'allegation code.'" Similarly, OPR has not justified any use of low 2 to withhold this information, information whose absence plaintiff asserts will prevent him from cross-referencing the released documents. "Although OPR argues that [plaintiff] needs to explain more clearly his need to cross-reference, [plaintiff's] filings provide sufficient information to allow OPR to meaningfully respond to his asserted need for the additional information he seeks." OPR is given an opportunity to provide further justification.

• Exemption 5 (deliberative process privilege): "The Court finds OPR's Vaughn Index is sufficient to demonstrate that [3 documents] constitute predecisional documents reflecting OPR's internal deliberative process in handling 'leak' investigations. . . . OPR has not, however, sufficiently supported its assertion that the documents contain 'no reasonably segregable information that could be released.'" The court reaches the same conclusion as to several other documents withheld in full. OPR is given an opportunity to submit new filings on the issue of segregability of factual material. As to several documents withheld in part, the court finds that OPR appropriately utilized Exemption 5.

• Exemptions 6 & 7(C): The court finds that OPR's Vaughn index does not provide sufficient information about the "third-party individuals" about whom information was withheld for the court to make a judgment about the appropriateness of OPR's withholdings. In particular, "to the extent that any such 'third-party individual' may be a government employee, OPR's Vaughn Index lacks the detail required to enable the Court to balance the public interest against such individual's privacy interest." OPR will be given the chance to provide more detailed submissions.

• Exemption 7(E): "It is readily foreseeable that the manner in which OPR investigates leaks and makes recommendations as to the handling of its investigations could assist individuals who seek to make or receive unauthorized disclosures. In short, OPR has shown that further disclosure of [the withheld document] would 'risk circumvention of the law.'"

2. Grieco v. Dep't of the Treasury of P.R., No. 09-1859, 2010 WL 623465 (D.P.R. Feb. 22, 2010) (Casellas, J.)

Re: First-party request

• Proper party defendant: The "Court finds that Puerto Rico's Department of Treasury is a state agency," and thus not subject to the federal FOIA.

3. Robinson v. BOP, No. 09-1443, 2010 WL 610756 (N.D. Ohio Feb. 18, 2010) (Adams, J.)

Re: First-party request

• Litigation considerations: Defendant has not shown that its evidence on the adequacy of its search for responsive records is sufficient to deny the court jurisdiction over plaintiff's complaint.

4. Wright v. ATF, No. 09-2204, 2010 U.S. Dist. LEXIS 14293 (N.D. Cal. Feb. 18, 2010) (Breyer, J.)

Re: Documents pertaining to firing pin of a particular weapon

• Adequacy of search: "Plaintiff's objection to ATF's search is founded solely on his speculation as to what ATF 'must' have. However, agency affidavits reflecting a reasonable and thorough search 'cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'"

5. Sellers v. DOJ, No. 08-0840, 2010 WL 545939 (D.D.C. Feb. 17, 2010) (Kennedy, J.)

Re: First-party request

• Adequacy of search: Plaintiff has not challenged the adequacy of the FBI's search for responsive records, but instead alleges that the search was not completed in a timely manner. "Even if this were true, a delay in an agency's search for records does not render the search inadequate."

• Exemptions 2 & 7(E): The FBI properly invoked these two exemptions to withhold portions of an investigative form which defendant uses to rate the effectiveness of certain of its investigative techniques. Plaintiff's assertion that this information may be withheld only as to techniques that are not well-known is incorrect.

• Exemption 7 (threshold): The FBI's declaration establishes that the responsive records were "'compiled as a result of the FBI's legitimate law enforcement activities,'" and plaintiff does not dispute that.

• Exemption 7(C): The FBI appropriately withheld the names of and identifying information concerning Special Agents and support personnel, state and local law enforcement personnel and emergency services personnel, and various third parties, including individuals interviewed by the FBI or local law enforcement as part of an investigation, third parties merely mentioned in FBI files, and third parties of investigative interest to the FBI. Even as to Special Agents who may have testified at plaintiff's trial, FBI's actions were appropriate. "A witness does not waive his or her interest in personal privacy by testifying at a public trial." Furthermore, plaintiff's asserted interest in the withheld information - that such information could allegedly be used to overturn his conviction - has repeatedly been held not to qualify as a "public interest" under the FOIA. Relatedly, "the courts 'have consistently supported nondisclosure of names or other information identifying individuals appearing in law enforcement records, including investigators, suspects, witnesses, and informants.'"

• Exemption 7(D): Though the sources used by the FBI in this case provided information only under implied grants of confidentiality, "[c]ourts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source." Plaintiff alleges that the withheld information has been released into the public domain, but he has not met his burden of proof on this issue, as he has "fail[ed] to point to any specific record, document, or information identical to what is being withheld under the claimed exemption. Accordingly, there is no showing from which the Court can conclude with any confidence that the information sought by plaintiff truly is in the public domain." The FBI also properly asserted Exemption 7(D) to withhold information it received from South Carolina law enforcement officials. "The message printed on [the South Carolina] documents suggests that [the state agency] shared information with the FBI only on the understanding that the contents would be kept confidential." (posted 04/06/2010)

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