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

March 12, 2009

FOIA Post

Summaries of New Decisions -- January 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 January 2009.


WEEK OF JANUARY 5

1. Associated Press v. DOD, 554 F.3d 274 (2d Cir. 2009) (Hall, J.)

Re: Documents pertaining to treatment of detainees held at Guantanamo Bay, Cuba

•   Exemption 6: The district court incorrectly concluded that family members of detainees who sent letters to the detainees had no privacy interest in release of their identities. Release of this information would identify these individuals as being related to Guantanamo Bay detainees, and also as being related to detainees “who testified about the Taliban.” This is “information that a person would ordinarily not wish to make known about himself or herself.” Plaintiff “failed to explain how revealing the family members’ names and addresses would inform the citizens about ‘what their government is up to.’” Any public interest in determining “whether DOD properly followed-up on the detainees’ claims of mistaken identity have been adequately served by the disclosure of the redacted information.”

•   Exemption 7(C): Detainees who have made allegations of being subjects of abuse, by either military personnel or other detainees, “have a measurable privacy interest in the nondisclosure of their names and other identifying information.” Abuse victims have a “particularly pronounced” privacy interest in release of their names, since release of this information “could certainly subject them to embarrassment and humiliation.” The district court mistakenly concluded that detainees do not have substantial privacy interests. The district court incorrectly evaluated their privacy interests under the Fourth Amendment’s reasonable expectation of privacy standard. But under the FOIA, “the privacy interest for purposes of Exemption 7(C) is broad and encompasses ‘the individual’s control of information concerning his or her person. . . . Moreover, the district court’s reasoning that the detainees allegedly abused would want their plights publicized is also inapposite to the privacy interest at stake here. That a detainee might want to voluntarily disclose information publicly does not authorize the government to disclose that information, and the district court cites no law to support that proposition, nor do we find any.” Detainees who are alleged to have abused their fellow detainees have significant privacy interests in protecting their identities “[e]ven more so than the victims of this alleged abuse.” As to the public interest involved, “the Supreme Court has explained that where disclosure of the documents themselves adequately serves the public interest, a requester must show how ‘the addition of the redacted identifying information’ would ‘shed any additional light on the Government’s conduct.’” Plaintiff has failed to do this. Plaintiff “has produced no evidence that DOD responded differently to allegations of abuse depending on the nationalities or religions of the detainees involved.” Plaintiff’s argument that if detainee names were released it would be possible to ascertain whether those alleging abuse were treated differently by DOD as a result of these allegations is too “speculative” to overcome the detainees’ privacy interests. Finally, plaintiff’s “derivative use” argument, namely that release of the detainees’ names might allow the public “to seek out the detainees’ side of the story,” possibly leading to discovery of additional information not in the responsive files, is insufficient to overcome the detainees’ privacy interests.

1. Short v. U.S. Army Corps of Eng’rs, No. 07-2260, 2009 WL 27398 (D.D.C. Jan. 6, 2009) (Collyer, J.)

Re: Documents related to jurisdictional determination on land in Worcester County, Maryland

•   Adequacy of search: Plaintiff’s “speculation that the Army Corps maintains other documents in its records that were not released to him is insufficient to rebut the presumption of good faith accorded the Declarations.” Defendant’s declaration “reveals a search reasonably calculated to uncover all relevant documents in response to Plaintiff’s FOIA request.”

2. Ctr. for Medicare Advocacy, Inc. v. HHS, No. 05-2266 (D.D.C. Jan. 6, 2009) (Walton, J.)

Re: Records concerning the use of video-conferencing

•   Attorney fees: “Under the Federal Rules of Civil Procedure, any motion for attorney’s fees arising from a court’s judgment must ‘be filed no later than 14 days after the entry of [the] judgment’ absent ‘a statute or a court order provid[ing] otherwise.’” Plaintiff filed a motion for leave to file a motion for attorney fees fifty-four days after the deadline established by the federal rules. “[T]he Court finds that it is without authority to extend the fourteen-day filing deadline imposed by the Federal Rules of Civil Procedure based on the reasoning advanced by the plaintiff.”

3. Brehm v. DOD, No. 07-1739, 2009 WL 21059 (D.D.C. Jan. 5, 2009) (Urbina, J.)

Re: First-party request

•   Adequacy of search: Based upon the declaration submitted by defendant CIA, “the court is satisfied that the CIA conducted an adequate search for responsive records.”

4. Johnson v. Wennes, No. 08-1798, 2009 U.S. Dist. LEXIS 292 (S.D. Cal. Jan. 5, 2009) (Lorenz, J.)

Re: Third-party request

•   Proper party defendant: Federal judges are not “agencies,” as defined by the FOIA.

5. Carroll v. Prothonotary, No. 08-1683, 2008 WL 5429622 (W.D. Pa. Dec. 31, 2008) (Schwab, J.) (adoption of magistrate’s report and recommendation)

•   Proper party defendant: The federal FOIA does not apply to state agencies.

6. Miller v. South Carolina Dep’t of Probation, Parole, and Pardon Servs., No. 08-3836, 2008 WL 5427754 (D.S.C. Dec. 31, 2008) (Anderson, J.) (adoption of magistrate’s report and recommendation)

Re: First-party request

•   Proper party defendant: The federal FOIA does not apply to state agencies.

7. Hadden v. BOP, No. 07-8586, 2008 WL 5429823 (S.D.N.Y. Dec. 22, 2008) (Freeman, Mag. J.)

Re: Videotape of fight involving plaintiff, who is a prisoner

•   Litigation considerations: This case is more properly handled as a motion for summary judgment under Federal Rule of Civil Procedure 56, rather than as a motion for dismissal under Rule 12(b)(1). Here, defendant did not locate the requested videotape. Although some courts have found that such circumstances mean that the court lacks jurisdiction, “this Court agrees with the authority holding that the matter is more appropriately analyzed under the framework of Rule 56.”

•   Adequacy of search: Plaintiff has failed to challenge defendant’s assertion, made in its declarations, that it conducted an adequate search for, but did not locate, the videotape plaintiff requested. “Here, Defendant’s efforts, as set forth in the submitted declarations, are sufficient to show that not one, but two reasonable searches were conducted,” notwithstanding plaintiff’s “conclusory allegations” that the videotape was preserved.


WEEK OF JANUARY 12

1. McLaughlin v. DOJ, No. 08-5142, 2009 U.S. App. LEXIS 187 (D.C. Cir. Jan. 7, 2009) (per curiam) (unpublished disposition)

Re: First-party request and request for records concerning manufacture of methamphetamine

•   Adequacy of search: The district court correctly ruled that DOJ’s search was adequate.

•   Litigation considerations: The district court appropriately denied plaintiff’s motion for joinder. “Appellant has not shown that, absent of the joinder of the EOUSA, he would be deprived of complete relief with respect to his claims against the appellee.”

•   Segregability: The district court’s order is vacated in part and the case is remanded to the district court for a determination as to whether the withheld records contain segregable, releaseable information.

1. El Badrawi v. DHS, No. 07-372, 2009 WL 103361 (D. Conn. Jan. 13, 2009) (Hall, J.)

Re: First-party request

•   Litigation considerations: Though the court finds, upon in camera review, that the FBI properly utilized Exemptions 1, 2, 3, 5, and 7(E), it also finds that the FBI’s declarations and Vaughn index were insufficient to justify the withholdings. The FBI is ordered to fix these deficiencies, as well as to submit a new declaration providing further details about New Haven Field Office records withheld from plaintiff or a declaration “affirming that no further detail can be provided to the plaintiff without unacceptably compromising the withheld information.” The court also finds that plaintiff’s attorney did not “need to know” the information contained in a classified declaration submitted by defendant Department of State (DOS).

•   In camera review: Upon in camera review, the court finds that defendants Bureau of Immigration and Customs Enforcement (ICE) and Bureau of Citizenship and Immigration Services (CIS) improperly withheld some documents from plaintiff. Other withholdings were appropriate, but were insufficiently justified in defendants’ Vaughn indices. ICE and CIS must remedy these flaws.

•   Adequacy of search: After discovery by plaintiff, the court expects that the parties will attempt to reach an agreement on this issue.

•   Exemption 1: Upon in camera review, the court determines that defendant DOS appropriately classified certain material it withheld from plaintiff. However, because DOS’s declaration and Vaughn index concerning this material are insufficient, DOS must submit a supplemental Vaughn index or a declaration stating that no further details concerning the withheld materials can be provided “without unacceptably compromising the withheld information.”

•   Exemption 2 (high): Defendant Bureau of Customs and Border Protection (CBP) properly withheld information which “involves CBP personnel rules and practices that are of no public interest and that would risk circumvention of the law if disclosed.”

•   Exemptions 2 & 7(E)/Glomar: Defendant FBI established that it has not previously disclosed whether plaintiff is listed in the violent gang/terrorist organization file (VCTOF), and also established the harms that would result from the acknowledgment of such information. Moreover, “‘the law enforcement techniques and procedures contained in VGTOF have not been disclosed by the FBI.’” Thus, “FBI has not waived its right to assert a Glomar response as to any such files.”

•   Exemption 3: Defendants DOS and CBP both improperly relied on a statute that protects from disclosure records concerning the issuance or refusal of a visa to withhold records concerning the revocation of a visa. As to other Exemption 3 withholdings by DOS, in camera review reveals that these records do, in fact, relate to the issuance or refusal of a visa, and thus the relevant Exemption 3 statute was invoked appropriately.

•   Exemption 7(E): Defendant CBP properly withheld records whose disclosure “could reasonably be expected to risk circumvention of the law for the reasons set forth in [its] most recent . . . declaration.”

2. Citizens for Responsibility and Ethics in Washington v. DHS, 592 F. Supp. 2d 127) (D.D.C. 2009) (Lamberth, C.J.)

Re: Records relating to visits to White House and Vice-Presidential residence (VPR) by particular individuals

•   Agency records: In a similar case, the court ruled that White House and VPR visitor records are agency records. Defendant has offered no new theory as to why the court should treat them any differently in this instance.

•   Litigation considerations: Defendant has offered nothing to call into question the court’s prior ruling that where, as here, there is no statutory ambiguity in the relevant statute, “the constitutional avoidance doctrine has no place.”

•   Exemption 5 (presidential communications privilege)/Glomar: “[T]he presidential communications privilege protects only communications; the bits of information contained in the sought records -- names of visitors, dates of visits, and in some case who was visited -- do not rise to the level of protection under the presidential communications privilege. . . . Such negligible intrusion into the presidential consultation process does not justify curtailing the public disclosure aims of FOIA. . . . Because Exemption 5 does not apply here, defendant’s Glomar response is similarly inappropriate.”

3. Citizens for Responsibility and Ethics in Washington v. DHS, 592 F. Supp. 2d 111 (D.D.C. 2009) (Lambert, C.J.)

Re: Records relating to visits to White House and Vice-Presidential residence by particular individuals

•   Adequacy of search: Because of the court’s prior ruling that responsive records transferred to the White House or the Office of the Vice-President “remain under the legal ‘control’ of DHS,” defendant “has not fulfilled its obligation under FOIA to execute an adequate search,” until such time as it searches all agency records under its control.

•   Exemption 5 (presidential communications privilege)/Glomar: The court is not convinced by defendant’s position that the presidential communications privilege extends even to whether or not the President received visits (and, presumably, advice) from certain individuals. “[S]uch an interpretation . . . would undermine the purpose of FOIA while providing little or no additional confidentiality to the President’s deliberations or decisionmaking.” The privilege “extends only to communications. The visitor records sought by plaintiff need only consist of the visitor’s name, date and time of visit, and in some cases the name of the person requesting access for the visitor and in some cases the name of the person visited. Such information sheds no light on the content of communications between the visitor and the President or his advisors, whether the communications related to presidential deliberation or decisionmaking, or whether any substantive communications even occurred.” Though “there may exist some hypothetical situation wherein the factual circumstances surrounding such a visit might reveal the substance of presidential deliberations . . . it would take near-omniscience for an observer to tease any accurate meaning out of the visits for which plaintiff seeks records. Accordingly, the likelihood that public release of these records would ‘“impede the President’s ability to perform his constitutional duty,”’ . . . is not great enough to justify curtailing the public disclosure aims of FOIA. The court further finds that “[b]ecause the records are not covered by the claimed FOIA exemption, the existence or nonexistence of responsive records cannot be covered -- meaning that DHS’s Glomar response is inappropriate.”


WEEK OF JANUARY 19

1. Hughes v. Potter, No. 08-1988, 2009 WL 140880 (E.D. Mo. Jan. 20, 2009) (Autrey, J.)

Re: Records pertaining to disability benefits application by plaintiff

•   Litigation considerations: Because “the Court finds that plaintiff is financially unable to pay any portion of the filing fee,” plaintiff’s motion to proceed in forma pauperis is granted. However, plaintiff’s complaint is dismissed. “While plaintiff has styled this as an action arising under the FOIA, it is clear that plaintiff is actually attempting to relitigate his previous frivolous action” seeking to force defendant to provide him with disability benefits. “As such, there is no ‘public interest’ in the disclosure of the requested materials, and the purpose of the FOIA is not served.”

2. Goodrich Corp. v. U.S. EPA, No. 08-1625, 2009 WL 117539 (D.D.C. Jan. 16, 2009) (Bates, J.)

Re: EPA models prepared in connection with groundwater contamination in Rialto-Colton Basin

•   Exemption 5 (deliberative process and attorney work-product privileges): As to one of the models, it is undisputed that it is in draft form. This model “reflects EPA’s deliberative process because ‘evolving iterations of the Model’s inputs and calibration reflect the opinions of the staff currently developing the Model, which may not represent EPA’s ultimate opinions relating to these matters.’ Therefore, even if the data plugged into the model is itself purely factual, the selection and calibration of data is part of the deliberative process to which Exemption 5 applies.” As to the second model, EPA waived any right to claim the attorney work-product privilege by virtue of its sharing the results of the model with representatives of a state agency, which in turn shared these results with plaintiff’s counsel. EPA did not “‘jealously guard’” the information in question. Further supporting plaintiff’s waiver argument is the fact the request is for a single document, rather than being “for an open-ended list of all documents related to a certain subject matter.” Finally, “disclosure of the model itself would not reveal EPA’s litigation strategies or trial preparations. The model does not contain attorney opinions or mental impressions of counsel.”

•   Exemption 7(A): The court finds that EPA’s issuance of a unilateral enforcement order carries with it a sufficiently high likelihood of a post-order enforcement proceeding to satisfy the “pending or prospective” requirement of Exemption 7(A). However, EPA has failed to satisfy the exemption’s “articulable harm” standard. “Release of the vadose zone model would not threaten the integrity of EPA’s enforcement efforts by enabling [plaintiff] to engage in any inappropriate means to undermine it.” While “EPA would undoubtedly be harmed if the model exonerates Goodrich, as plaintiffs say it does,” such an “advantage” in civil litigation “is not the kind of harm Exemption 7(A) is intended to guard against.”

3. Carroll v. Clerk of Court, No. 08-1684, 2009 WL 112546 (W.D. Pa. Jan. 15, 2009) (Schwab, J.) (adoption of magistrate’s report and recommendation)

Proper party defendant: The federal FOIA does not apply to state agencies.


WEEK OF JANUARY 26

1. Rein v. U.S. Patent & Trademark Office, 553 F.3d 353 (4th Cir. 2009) (Agee, J.)

Re: Documents related to certain patents

•   Adequacy of search: The district court ruling that defendant’s search was adequate is affirmed. The Patent & Trademark Office’s (PTO) “decision to use the searches conducted in response to [prior, similar requests] was not inherently unreasonable and appears to be a practical and common-sense approach. The requests sought similar information related to the same subject matter.” PTO was not required “to perform an entirely new, duplicative search for each request.” Furthermore, the record shows that defendants took additional steps to cover areas where the earlier requests and the current ones differed. The fact that some responsive documents refer to other documents which were not produced does not, by itself, show that defendants’ searches were inadequate. Plaintiffs “have failed to raise substantial doubt as to the adequacy of the Agencies’ searches, which were targeted to the specific individuals and units they believed would likely possess documents responsive to [plaintiffs’] request.” As to additional documents beyond this, “[i]f [plaintiffs] discover leads in the documents produced as a result of their FOIA requests, they may pursue those leads through a second FOIA request specifying locations to be searched.” The agencies were not “required to chase rabbit trails that may appear in documents uncovered during their search.”

•   Exemption 5 (deliberative process and attorney-client privileges)/Vaughn Index: Where defendants’ Vaughn index does not list the author and recipient of withheld documents “it is ‘difficult, if not impossible,’ to determine whether they fall under Exemption 5” because it leaves the court with insufficient information to judge whether or how release of the information would chill agency deliberations. Furthermore, “the Agencies’ descriptions of many of the challenged documents lack the specificity and particularity required for a proper determination of whether they are exempt from disclosure.” These descriptions have not given the court enough information about how or whether the documents relate to defendants’ deliberative processes. “To find such superficial entries to be sufficient would permit the Agencies to evade judicial review because the district court and we are entirely dependent upon the Agencies’ assertions that the documents were appropriately withheld.” As to other documents, plaintiff has failed to produce any evidence to support its claim that the documents in question were shared with anyone outside of the agency. The court further finds that the district court properly ruled that defendants’ use of the deliberative process privilege to withhold certain documents was acceptable. “Contrary to [plaintiffs’] argument, the Agencies were not required to identify the specific policy judgment at issue in each document for which the deliberative process privilege is claimed.” Additionally, the district court’s ruling that defendants properly redacted these documents is upheld. The fact that defendants initially withheld one document but ultimately released it in full does not call into question defendants’ use of Exemption 5 as to other documents. Defendants properly withheld certain factual information, because “disclosing that information as part of a larger document would reveal the very predecisional and deliberative material Exemption 5 protects.” Defendants’ declaration and Vaughn index provide sufficient support for defendants’ use of the attorney-client privilege. There is nothing to support plaintiff’s claim that the privilege was waived by disclosure to a third party. Finally, PTO can invoke the privilege to protect discussions concerning an ongoing patent infringement case, even though it was not a party to the case. “[T]he attorney-client privilege extends beyond communications in contemplation of particular litigation to communications regarding ‘an opinion on the law.’”

2. Haswell v. Nat’l R.R. Passenger Corp., No. 07-16121, 2009 WL 188163 (9th Cir. Jan. 26, 2009) (unpublished disposition) (per curiam)

Re: Documents related to defendant’s hiring of contractor

•   Exemption 4: The district court’s ruling on defendant’s use of this exemption was not clearly in error and is therefore upheld.

•   Exemption 5 (deliberative process privilege): The district court’s ruling on defendant’s use of this exemption was not clearly in error and is therefore upheld.

3. Nash v. DOJ, No. 06-56503, 2009 WL 166506 (9th Cir. Jan. 26, 2009) (unpublished disposition) (per curiam)

Re: First-party request

•   Exemption 5 (attorney work-product privilege): The district court’s ruling that DOJ properly applied Exemption 5 to the withheld documents is affirmed.

1. Isasi v. Office of the Att’y Gen., No. 07-2015, 2009 WL 174939 (D.D.C. Jan. 27, 2009) (Walton, J.)

Re: First-party request

•   Litigation considerations: Although a Bivens action “provides a remedy where a federal officer has committed a violation of an individual’s constitutional rights,” plaintiff does not have a Bivens remedy against any individual defendant related to an alleged violation of the FOIA. “A Bivens remedy is not available where a statute provides a ‘comprehensive system to administer public rights.’”

•   Mootness: Because it is undisputed that defendant has released to plaintiff the only two pages of documents that were the subject of plaintiff’s complaint, plaintiff’s complaint is dismissed as moot.

2. Isasi v. Jones, No. 06-2222, 2009 WL 174932 (D.D.C. Jan. 27, 2009) (Walton, J.)

Re: First-party request

•   Litigation considerations: Although a Bivens action “provides a remedy where a federal officer has committed a violation of an individual’s constitutional rights,” plaintiff does not have a Bivens remedy against any individual defendant related to an alleged violation of the FOIA. “A Bivens remedy . . . is not available where a statute provides a ‘comprehensive system to administer public rights.’”

•   Adequacy of search: Defendants have established that the searches they performed were reasonable.

•   Exemptions 5, 6, & 7(C): Defendants have established that their use of these exemptions to withhold records from plaintiff was appropriate.

3. Fischer v. DOJ, No. 07-2037, 2009 WL 162688 (D.D.C. Jan. 26, 2009) (Huvelle, J.)

Re: First and third-party requests

•   Adequacy of search: Defendant’s declarant has established that the FBI’s search was adequate. “Plaintiff raises no specific challenge to the FBI’s search methodology, but rather he questions the adequacy of the FBI’s search based on the agency’s failure to locate additional records that he believes the agency should have in its possession. However, ‘the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.’”

•   Vaughn Index: Defendant did not produce a separate index, but included in its declarations “codes that indicate the FOIA exemptions being claimed and the nature of the information withheld.” The declarations “include indices that explain the meanings of each code.” This information is “adequate to inform plaintiff of the nature of the information withheld and the reasons therefore and to permit the Court to determine the applicability of each exemption claimed.”

•   Exemption 2: The FBI properly utilized this exemption to withhold phone numbers of Special Agents as well as a permanent source symbol number assigned to a cooperating witness. The telephone numbers “relate solely to the FBI’s internal practices and are of no genuine public interest.” As to the source symbol number, release of this information “‘would reveal information as to the strength, breadth and scope of the informant program,’” and could also lead to identification of the source.

•   Exemption 7(C): The FBI appropriately invoked this exemption to protect names and identifying information of Special Agents and support personnel, third parties mentioned in plaintiff’s file, and the identities and information provided by cooperating witnesses. “The D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses, and informants.” Plaintiff asserts that the withheld information will assist him in proving his innocence, but “it is well established that an individual’s personal interest in challenging his criminal conviction is not a public interest under FOIA because it ‘reveals little or nothing about an agency’s own conduct. . . .’” Moreover, plaintiff has not provided any evidence that the FBI engaged in any illegal activity. Although the D.C. Circuit has held that ‘the privacy interest in nondisclosure of identifying information may be diminished where the individual is deceased . . .’ this factor is irrelevant where, as here, plaintiff has not identified any public interest in disclosure.” Finally, “the fact that plaintiff may have deduced the identities of individuals whose names and identifying information have been withheld or that their identities have previously been disclosed does not diminish their privacy interests.”

•   Exemption 7(C)/Glomar: “[T]he FBI was justified in refusing to address plaintiff’s request for third-party information. . . . If a third party is the target of a FOIA request, the agency to which the request is submitted may provide a ‘Glomar’ response, refusing to confirm or deny the existence of records or information responsive to the request on the ground that even acknowledging the existence of responsive records constitutes an unwarranted invasion of the targeted individual’s personal privacy.”

•   Exemption 7(D): The FBI used this exemption to protect the identity of a “foreign authority” as well as the identities and information provided by several witnesses who provided information under either express or implied grants of confidentiality. While the FBI has not supported its claim that the foreign authority was given an express assurance of confidentiality, “the Court nevertheless concludes that a promise of confidentiality may be inferred,” in light of the “necessarily close cooperation between the FBI and foreign law enforcement authorities.” As to the cooperating witnesses, due to “the inherent risk of harm to such . . . individual[s], it is reasonable to infer that [they] would not agree to such an arrangement absent a promise of confidentiality.”

4. Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Educ., No. 07-0963, 2009 WL 159191 (D.D.C. Jan. 23, 2009) (Urbina, J.)

Re: Records related to Reading First program

•   Fee waiver: As to the first set of documents requested by plaintiff, plaintiff’s request for a fee waiver is mooted by the fact that defendant’s search for these records was included in a search tied to a prior case between this same plaintiff and defendant. “By granting the plaintiff a fee waiver request for the search stipulated in the joint status report in [the prior case], and then including in that search the request for the documents at issue here, the defendant effectively granted the plaintiff a fee waiver for the request.” As to the second and third set of documents, plaintiff qualifies for a fee waiver. Plaintiff has shown, “through reference to the administrative record alone, how disclosure of the requested documents will significantly contribute to the public’s understanding of government operations.” Furthermore, “plaintiff’s aim to elucidate the ties between the defendant and commercial publishers through its analysis and dissemination of the requested documents is particularly significant given Congress’s intention to encourage ‘open and accountable government’ under the FOIA fee waiver provision. . . . The documents that the plaintiff plans to make publicly available, coupled with the plaintiff’s analysis thereof, will allow the public to make a more informed assessment of the ‘ethical propriety’ and wisdom of the actions of the defendant’s officials who administer the Reading First program.” Finally, “contrary to the defendant’s contention, the availability of information regarding the connection between the defendant and commercial publishers in previously released media sources does not obviate the need for further dissemination by the plaintiff or undermine the plaintiff’s satisfaction of the public interest prong.” Instead, plaintiff’s ability to analyze and distribute the information “will further enhance the public’s access to and understanding of commercial publishers’ involvement in the defendant’s administration of Reading First, which is all that the fee waiver provision requires.”

5. Watson v. Neighbors Credit Union, No. 09-00049, 2009 WL 161204 (E.D. Mo. Jan. 22, 2009) (Jackson, J.)

Re: First-party request

•   Proper party defendant: The federal FOIA only applies to federal agencies.

6. ERG Transit Sys. (USA), Inc. v. Washington Metro. Area Transit Auth., No. 07-1924, 2009 WL 145740 (D.D.C. Jan. 22, 2009) (Collyer, J.)

Re: Records concerning contractor’s requests for adjustments to contract with defendant

•   Procedural matters: Defendant’s Public Access to Records Policy “for purposes of this case[] is identical to, and interpreted in accordance with[] the FOIA.”

•   Exemption 4/Reverse FOIA: Defendant incorrectly asserts that the documents submitted by the contractor were mandatory submissions. The contractor may have been required to submit a written “claim” to defendant if it wanted an adjustment to the contract, but that does not mean that all of the information it submitted in connection with this claim should be considered part of a mandatory submission. Defendant is required to re-process the records in question consistent with the applicable standards for voluntarily submitted documents.

7. Campaign for Responsible Transplantation v. FDA, No. 00-2849, 2009 WL 145736 (D.D.C. Jan. 22, 2009) (Urbina, J.)

Re: Records pertaining to xenotransplantation drugs

•   Attorney Fees & Costs: In a prior ruling, the D.C. Circuit held that plaintiff was eligible for an award of fees. The court now finds that plaintiff is entitled to attorney fees and costs. The fact that plaintiff has not won release of any “contested” documents “does not undermine the public benefit of the request for and subsequent disclosure of documents.” Furthermore, FDA’s argument that disclosure is not in the public interest because plaintiff seeks a ban on xenotransplantation is “unconvincing.” Similarly unconvincing is FDA’s argument that plaintiff has a commercial benefit in the records because its membership stands to benefit from a ban on xenotransplantation. “Assuming that it is appropriate for the court to inquire into such derivative benefits, this argument is too attenuated to be of great import.” FDA’s argument that plaintiff sought the records in order to obtain trade secrets fails in light of the fact that the FOIA prevents disclosure of such information. Thus, plaintiff would “have no reasonable expectation to receive trade secrets and no commercial incentive” for requesting them. Finally, the FDA’s withholding decisions were not reasonable, at least as to “the nonexempt documents that it delayed disclosing, despite eventually acknowledging that the documents were nonexempt.” Defendant “has not met its burden of showing an objectively reasonable basis in law for the delay.” Even if this factor favored the FDA, it would not be determinative. The case is referred to a magistrate judge for a calculation of fees and costs.

8. Lion Raisins, Inc. v. USDA, No. 08-00358, 2009 WL 160283 (E.D. Cal. Jan. 21, 2009) (Wanger, J.)

Re: USDA records maintenance policies

•   Litigation considerations: Plaintiff’s motion for discovery under FRCP 56(f)(2) is denied as premature, since defendant has not yet moved for summary judgment. Plaintiff’s basis for its motion under this rule is alleged bad faith and misconduct by USDA. However, because USDA has yet to brief the issue of its response to plaintiff’s request, the court lacks sufficient information to determine whether discovery should be allowed. Plaintiff’s motion for discovery under Rule 26 is also denied because it has not satisfied the meet and confer requirements of Local Rule 37-251. Plaintiff offered no reason for its failure to comply with this rule. (posted 03/12/2009)

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