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

August 14, 2009

FOIA Post

Summaries of New Decisions -- July 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 July 2009.

 

WEEK OF JULY 6

1. Or. Natural Desert Ass'n v. Locke, No. 06-35851, 572 F.3d 610 (9th Cir. 2009) (Thompson, J.)

Re: Documents pertaining to the effects of livestock grazing on Columbia River Steelhead

•    Attorney fees: The district court appropriately relied on Buckhannon as the basis for judging whether plaintiff was eligible for attorney fees, and it awarded fees on three of plaintiff's four claims after finding plaintiff to be a "substantially prevailing party . . . [who] obtained an enforceable judgment which materially altered the legal relationship of the parties." Plaintiff incorrectly asserts on appeal that the catalyst theory, instituted into the FOIA by the OPEN Government Act (OGA), should govern its claims for fees. A fee shifting statute is a waiver of sovereign immunity, and as such must be interpreted narrowly based upon the boundaries of the waiver contained in the statute. As the OGA contains a new waiver of sovereign immunity for attorney fees and does not explicitly state that its new fees provision should be applied retroactively, it should not be read that way by the court. In line with this, the district court should not have found plaintiff eligible for fees with regard to two of its claims. Defendant released the documents involved in these claims prior to the court's ruling on them, so their release was not due to a court order. The district court correctly ruled that plaintiff is eligible for fees with regard to its successful challenge to defendant's cut-off regulation, which governs its processing of FOIA requests. "We construe the phrase 'any case under this section' in 5 U.S.C. § 552(a)(4)(E) to include a case challenging the validity of a regulation governing the processing of FOIA requests. The relief obtained . . . therefore[] meets the Buckhannon standard because [plaintiff] obtained that relief when the district court ruled in its favor on the merits of that claim."

1. White v. Lappin, No. 08-1376, 2009 WL 1921337 (D.D.C. July 2, 2009) (Roberts, J.)

Re: First-party request

•    Litigation considerations: Defendant's motion to dismiss is granted as to the records that it has established it has provided to plaintiff. As to the remaining records, defendant is ordered to file a renewed motion, as well as "an opposition or other response to plaintiff's motions for sanctions and for costs."

2. Evans v. McConnell, No. 08-97, 2009 WL 1913293 (W.D. Pa. July 2, 2009) (Gibson, J.) (adoption of magistrate's recommendation)

Re: Records pertaining to weapons technology

•    Exhaustion: Plaintiff did not send his FOIA request and administrative appeal to defendant's correct address, as listed in the Code of Federal Regulations, though he apparently did send his correspondence to an incorrect address provided in a FOIA response letter by the Department of the Army. Because of this, defendant never received plaintiff's request. As such, plaintiff cannot be said to have exhausted his administrative remedies, a condition precedent to his filing suit. Though in his appeal of the magistrate's ruling plaintiff claims to have now exhausted his administrative remedies, even if this is true, "exhaustion only after initiation of suit is not satisfactory."

3. Am. Small Bus. League v. SBA, No. 09-1098, 2009 WL 1916896 (N.D. Cal. July 1, 2009) (Chen, Mag. J.)

Re: Telephone records of SBA official

•    Exhaustion: SBA's response to plaintiff's administrative appeal was timely, having been made on the twentieth business day following its receipt of the appeal. The court further finds that the response was a sufficient determination of the appeal, holding in effect that the appeal was premature because SBA was still processing additional records. However, because these additional records were eventually released in full, any subsequent appeal by plaintiff would likely have been futile. Thus, defendant's motion to dismiss for failure to exhaust is denied.

•    Adequacy of search/Agency records: The records requested by plaintiff were not created by SBA, but by its wireless phone carrier. While defendant did at one point obtain the records, by the time of plaintiff's request, SBA "was no longer in possession of the records, and it had no obligation to retain the records." The court finds that SBA was not obligated to try to reacquire the records from its phone carrier. "The Supreme Court has specifically stated that . . . an agency should not be 'required to retrieve documents which have escaped its possession, but which it has not endeavored to recover.'" The instant case is different from cases where the agency has contracted with an outside party to create the records; in these cases "the records were effectively created by the agency." Plaintiff "cites no authority requiring a governmental agency to obtain records from an independent third party who was not obligated to create and maintain records on the agency's behalf." Further, SBA's phone carrier was not hired by the agency "for the purposes of records management," which would make its records agency records. Rather, the carrier was hired for the purposes of providing wireless phone service. The fact that the carrier is willing to provide access to the records it created as part of its contract with SBA does not mean that the carrier was hired for the purpose of records management.

4. Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.)

Re: Third-party statements

•    Adequacy of search: Plaintiff's claim of bad faith as to DEA's conduct of its search is denied. His claim was filed prematurely, as DEA had not at that point completed its processing. Plaintiff's claim that DEA was guilty of bad faith in failing to identify a particular DEA-6 report in its Vaughn Index is countered by defendant's explanation that the DEA-6 report in question was not responsive to plaintiff's request.

•    Litigation considerations: Plaintiff's motion to supplement his complaint is denied. "Plaintiff admits that his supplemental complaint contains many challenges to Defendant's motion for summary judgment." As such, "the Court agrees with Defendant that to allow Plaintiff to supplement his complaint at this juncture, that is, after a motion for summary judgment has been filed, is prejudicial to Defendant." The court will grant plaintiff's request to rule on all outstanding motions, to rely upon the parties' prior arguments, and also to consider plaintiff's request "under the new policy directives issued by the Obama Administration." The court further grants plaintiff's motion to submit his own signed affidavit.

•    Exemption 2 (low): DEA correctly applied this exemption to withhold "file numbers, geographical drug enforcement program identifiers and a distribution division identifier for the report, all of which are related to Defendant's rules and practices for its personnel for which the public has no legitimate interest and they are routine matters of merely internal significance for Defendant as an agency."

•    Exemptions 7(C) & 7(D): DEA appropriately withheld names of individuals mentioned by the subject of plaintiff's request in an interview with DEA, as well as sections of the interview that did not discuss plaintiff. However, DEA cannot withhold the entirety of the subject's interview on the basis of his status as a confidential source because plaintiff has shown that the subject testified against plaintiff at plaintiff's trial (a fact that has also been recognized by the Third Circuit Court of Appeals). Furthermore, the court disagrees with DEA's conclusion that "segregation would provide incomprehensible phrases to Plaintiff" and instead "finds that the information contained in DEA-6 can be released to Plaintiff in some segregable form." DEA is directed to make further disclosures as detailed by the court in its opinion.

•    Exemptions 7(C) & 7(F): The court finds that DEA properly utilized these exemptions to withhold the names of its agents, other law enforcement personnel, and supervisory personnel.

•    Segregability: Though the court disagrees with DEA's conclusions on segregability, the court finds that DEA addressed this issue in good faith, and is not guilty of bad faith, contrary to plaintiff's assertion.

 

WEEK OF JULY 13

1. Lion Raisins, Inc. v. USDA, No. 08-00358, 2009 U.S. Dist. LEXIS 59635 (E.D. Cal. July 13, 2009) (Wanger, J.)

Re: Records pertaining to records maintenance policies and procedures, inspections of plaintiff

•    Adequacy of search: As to one of plaintiff's requests, defendant's "declarations fail to create a sufficient factual record upon which to determine the adequacy of the search for responsive records." The declarations "fail to specify which records were searched," and also "provide[] no description of the process or procedure employed by [defendant's processor] to search for responsive records." Moreover, USDA's first declarant "states in a conclusory fashion that the searches performed were 'reasonable and thorough,'" but fails to explain why defendant's search was limited to certain files and did not include others. This declaration also "does not mention whether, or what, search terms or key words were utilized by the USDA." The declaration "also fails to specify, with reasonable particularity, the scope of the search for responsive records," and "at times . . . suggests that [the declarant] is simply relaying hearsay . . . and that he lacks personal knowledge of [the processors'] efforts." Similarly, USDA's second declaration "provides no meaningful information on what records were searched, what method or procedure was employed to search for responsive records, whether, or what, search terms were utilized or the scope of the search." Furthermore, "the USDA's consistent unwillingness to confirm or even discuss, in a straightforward fashion, the existence or non-existence of [a certain series of records], or the USDA's inability to find them, appears evasive and not reflective of good faith." Plaintiff will be permitted limited discovery on the issue of whether these records exist. As to plaintiff's second request, USDA's declarations are again deficient. The first declaration does not specify what files were searched or by what method. It also "appears to contain two levels of hearsay." Defendant claims that it was not required to maintain records reflecting the destruction of other records, but "does not provide a copy of the 'policies and procedures' that purportedly indicate that a document need not be created to record the destruction of inspection documents." USDA's declaration is also "completely silent" on other important issues regarding its claim to have no responsive records. A subsequent "search" that USDA claims to have undertaken was not actually a search for records at all, but a search for USDA policies governing records retention and creation. USDA's second declaration "is devoid of details on the searches for responsive records." Once again, "USDA has ignored [plaintiff's] main argument in its FOIA appeal and raised again in its summary judgment briefing. If federal regulations require the creation of documents to record when documents are destroyed, why are there no destruction records?" At oral argument, USDA finally asserted that "it has never interpreted . . . federal regulations as requiring the creation of a document to record the destruction of another document." However, "USDA's past unwillingness to address [plaintiff's] argument . . . raise[s] questions about the USDA's good faith." Plaintiff will be allowed limited discovery as to this request as well. On plaintiff's third request, USDA has again failed to show that it conducted a reasonable search. Its declarant "did not sufficiently explain his or his staff's 'efforts' to search for responsive records." Plaintiff will be allowed limited discovery on this request.

•    Litigation considerations: The parties have agreed that, as to two of plaintiff's claims, defendant has responded and the claims are dismissed. As to another, plaintiff has agreed to pay the fees assessed by USDA, thereby mooting this claim. Plaintiff has asserted a further claim for bad faith. As this claim "does not assert a stand alone compensable claim for relief, summary judgment . . . is granted in favor of the USDA."

•    Exemption 7(A): As to plaintiff's fourth request, USDA is no longer asserting Exemption 7(A) to withhold these documents and has indicated that it intends to produce the responsive documents. Once USDA establishes that it has completed this, plaintiff's claim on this request will be mooted.

2. Booth v. IRS, No. 09-0637, 2009 WL 2031766 (E.D. Cal. July 9, 2009) (O'Neill, J.)

Re: First-party request

•    Exhaustion: Plaintiff mailed his request to an incorrect address, thereby failing to comply with IRS regulations for making a FOIA request. Thus, he has not exhausted his administrative remedies and cannot invoke the court's jurisdiction over his claim.

•    Litigation considerations: "This Court construes [plaintiff's] lack of opposition as his concession that his FOIA request is invalid and fails to trigger FOIA obligations."

3. Reynolds v. Att'y Gen. of the U.S., No. 09-0434, 2009 WL 1938964 (S.D.N.Y. July 7, 2009) (Stein, J.)

Re: First-party request

•    Fee waiver: Defendant properly denied plaintiff's fee waiver request, as plaintiff "provided no explanation of how the information sought might contribute to the public's understanding of governmental activities." Because of the amount of the estimated fee to process plaintiff's request, defendant properly refused to process it until it received payment.

•    Litigation considerations: Plaintiff has failed to respond to defendant's motion, and his complaint is "based on allegations that are implausible and appear to lack any connection to reality."

 

WEEK OF JULY 20

1. McGrady v. Mabus, No. 06-752, 2009 WL 2170141 (D.D.C. July 22, 2009) (Kessler, J.)

Re: Documents prepared as part of United States Marine Corps officer promotion procedures

•    Exemption 3: The Master Brief Sheets (MBS) plaintiff requested are not withholdable under 10 U.S.C. § 618(f), as they do not qualify as "proceedings." Though the term "proceedings" is undefined in the statute, and therefore the agency's definition of the term (which it bases on Black's Law Dictionary) is entitled to deference, even under defendant's definition the MBSs do not qualify. The MBSs are not an "'act or step [in the promotion process],'" but rather are "a compilation of data, and a tool, albeit a very important one, used by Selection Boards. Plaintiff correctly states that 'deliberation about the import of the data contained within the Master Brief Sheets could be a 'step in the proceeding' but the Master Brief Sheet itself cannot be." Furthermore, defendants already release other documents similar in nature to the MBSs (defendants' attempts to distinguish these documents notwithstanding), thus they cannot withhold the MBSs. Finally, defendants' assertion that Navy regulations prohibit release of the MBSs is incorrect. The regulations defendants cite "are aimed not at regulating disclosure by the agency as a whole, but instead at preventing disclosure by individual Board members." Furthermore, the regulations in question "are not coextensive with Section 618(f)," meaning that "the regulations do not prevent the release of Master Brief Sheets and Sampled Master Brief Sheets."

•    Exemption 5 (deliberative process privilege): Defendants incorrectly applied Exemption 5 to the MBSs. The MBSs "are used as a tool in the decision-making process, and serve as an important factor in the final promotion decision. However, they reveal only the data used during the [promotion] process, not the substance of the deliberations. . . . Defendants' own definition of Master Brief Sheets suggests that they contain no information about the content of Selection Board proceedings, but rather provide only facts that are used during the proceedings." Moreover, "it is unlikely that candor would be inhibited during Selection Board proceedings because releasing Master Brief Sheets reveals no information about the content of Board members' deliberations, or about the weight that a particular fact was given in a decision on any individual officer." Finally, "Exemption 5 covers only 'memorandums or letters.' Master Brief Sheets are neither. They are data." Exemption 5 is similarly inapplicable to the Sampled MBSs, which are a small portion chosen from the whole body of MBSs to serve as a representative sample. Though "the process by which the President of the Selection Board selects the Sampled Master Brief Sheets does require deliberation, the sampling process itself is not the relevant deliberation for analysis. . . . The sampling process has no impact on the officer selection proceedings, and samples do not reveal anything more about the deliberative process than the current practice of releasing the names and basic statistical information of officers selected for promotion. It would distort the purpose of the deliberative process privilege-to protect the consultations that precede decisions on important legal or policy matters-if tangential deliberations could be used as a bootstrap for withholding information that otherwise is not protected by the privilege." Furthermore, "disclosing the samples will not inhibit dialogue or discourage candor at future Selection Board proceedings because they reveal no information about individual Board members and no substantial information about the content of the deliberations."

•    Exemption 6: Plaintiff has made clear that he does not seek to have personal identifiers included in the records he has requested. Defendants assert that personally identifying information will still be disclosed. "In the absence of any 'personal identifiers,' it is highly unlikely-if not impossible-that disclosure would threaten an individual's privacy interests. Defendants have not shown that a citizen would be able to use the redacted Master Brief Sheets to identify any particular individual described."

2. Knittel v. IRS, No. 07-1213, 2009 WL 2163619 (W.D. Tenn. July 20, 2009) (Breen, J.)

Re: Information concerning IRS employees

•    Procedural: The FOIA does not require agencies to provide requesters with certified copies of agency records.

•    Exemption 6: "[T]he IRS has submitted no evidence regarding the alleged privacy interests. In fact, the Defendant has not provided this Court with any guidance as to the nature of the materials requested or their contents. Without knowing the general substance of the information for which disclosure is sought the Court is unable to assess the privacy interests at stake, and therefore is unable to conduct the requisite balancing test." Defendant "has not submitted a Vaughn index or any affidavits that specifically indicate its reasons for non-disclosure. Thus, it has failed to explain, through an evidentiary showing, its reasons for denial." Furthermore, defendant is incorrect in its assertion that it is only required to disclose information about employees specifically listed in 5 C.F.R. § 293.311(a)(1)-6), as the categories mentioned are clearly not intended to be exhaustive. "Thus, the Defendant is still required to submit sufficient proof to establish that disclosure of the other information requested by the Plaintiff would infringe an individual's privacy interest to the extent that the public interest in free disclosure should be considered subordinate."

3. Ruiz v. DOJ, No. 08-1968, 2009 WL 2143826 (D.D.C. July 20, 2009) (Kollar-Kotelly, J.)

Re: Bond information

•    Procedural: Plaintiff has made no showing of bad faith on defendant's part. A disagreement between the initial processing unit and an agency's appellate authority is not a sign of bad faith on the agency's part.

•    Adequacy of search: "To the extent that plaintiff is also challenging defendant's search for records . . . the Court is satisfied . . . that defendant performed a search reasonably calculated to locate all responsive records."

4. Rodriguez v. Providence Police Dep't, No. 08-003, 2009 WL 2059038 (D.R.I. June 23, 2009) (Magistrate's Report and Recommendation) (Hagopian, Mag. J.)

Re: Records pertaining to arrest of plaintiff

•    Litigation considerations: Defendant has not provided any relevant information pertaining to its processing of one of plaintiff's two FOIA requests. As a result, defendant "has failed to satisfy its burden to establish either a lack of subject matter jurisdiction or that it is entitled to judgment as a matter of law." Defendant will be allowed to submit a new brief which addresses this request.

 

WEEK OF JULY 27

1. Prudential Locations LLC v. HUD, No. 09-00128, 2009 WL 2243780 (D. Haw. July 27, 2009) (Mollway, C.J.)

Re: Documents pertaining to investigations of possible violations of Real Estate Settlement Practices Act (RESPA) by plaintiff

•    Exemption 6: HUD properly withheld the names and identifying information of individuals who alleged RESPA violations against plaintiff, as well as the name of one of plaintiff's agents who was involved in one of the allegedly illegal transactions. Plaintiff has indicated its intent to contact (and possibly sue) the individuals who made the allegations; "the individuals certainly have an interest in avoiding such an invasion of privacy." By contrast, "[t]he identities of the individuals filing complaints with HUD do not shed any light on the agency's activities." Furthermore, "there is no suggestion that the motives of the individuals involved affected the outcome of the HUD investigation or somehow biased the agency." Thus, "[t]here is no indication that the identity of the informant would reveal any misconduct by HUD. Nor do the disclosure requirements in FOIA turn on the accuracy of information given by private individuals."

2. Columbia Riverkeeper v. FERC, No. 08-936, 2009 WL 2244196 (D. Or. July 24, 2009) (Hubel, Mag. J.)

Re: Mailing list of landowners on proposed pipeline route

•    Litigation considerations: Because plaintiffs have an adequate remedy for their claims under the FOIA, the court has no subject matter jurisdiction to hear claims under the APA.

•    Adequacy of search: "Although FERC's response to plaintiffs' FOIA request #1 was, at best, a very poor job, [the court is] unpersuaded that the record supports a finding that FERC acted arbitrarily and capriciously." FERC, which "concedes that it failed to conduct an adequate search," is ordered to do so.

•    Exemption 6: Plaintiffs have established that defendant has previously posted on its website unredacted landowner lists similar to the one plaintiffs requested. Defendant failed to show any reason for its distinction between the list currently at issue and the ones it has posted, nor can it claim that the prior postings were inadvertent. Furthermore, given that the "list is of landowners in the path of a possible pipeline," and so the individuals on the list "took no action to get either on or off" it the court finds that prior Supreme Court rulings regarding addresses do not support withholding here. FERC has also not responded to the claim that it has already shared the list in question with a private entity, nor has it responded to plaintiffs' claim that the landowners would suffer "'very low personal consequences'" from release of their names and addresses. Plaintiffs have shown a public interest in release of the documents, namely whether FERC is fulfilling its obligation of notifying all landowners who might be affected by the proposed pipeline. Plaintiffs also submitted evidence that FERC has failed to notify at least some of those affected. FERC is ordered to produce the requested mailing list.

3. Deininger & Wingfield, P.A. v. IRS, No. 08-00500, 2009 WL 2241569 (E.D. Ark. July 24, 2009) (Holmes, J.)

Re: Materials disseminated at IRS training session

•    Litigation considerations: The IRS admitted in its Answer to plaintiffs' Complaint that the requester had made the request on behalf of his firm. Therefore, the firm has standing to make a claim for attorney fees.

•    Attorney fees: This suit, which was filed in 2008, is governed by the "current version of the fee-shifting provision" of the FOIA. Utilizing the "catalyst theory" the court finds that "[t]he months of unexplained delays in fulfilling the request for documents followed by the IRS's relatively quick production of documents after [plaintiff] filed suit shows a causal connection between the filing of the complaint and the release of documents." Thus, plaintiff is eligible for attorney fees. "[H]owever, it is undisputed that when the documents were released, there was no information that directly and substantially benefitted the public." Plaintiff's interest in the documents is "mixed; it is partly commercial . . . partly scholarly, and partly for the public good that can be achieved by improving the IRS. As it turned out no good was accomplished when the documents were obtained," and so the second and third entitlement factors "do not weigh in favor of or against an award of attorneys' fees." The IRS did not establish a reasonable basis for its withholding of documents. It "never provided an explanation for the delays to its own self-imposed deadlines that lasted almost a year, and its excuse of administrative ineptitude falls short of a meaningful justification." In this case, "[c]onsideration of the four factors . . . does not yield a clear result." However, "[c]onsidering each factor independently, the Court concludes that the fourth factor justifies an award of fees here." Plaintiffs are ordered to submit an itemized request for the claimed fees.

4. Browder v. Fairchild, No. 08-15, 2009 WL 2240388 (W.D. Ky. July 24, 2009) (Heyburn, J.)

Re: First-party request

•    Attorney fees: Plaintiff is not eligible for an award of fees because he has not shown that his claim was not insubstantial. "[T]he Court does not believe the lawsuit was necessary for Plaintiff to receive his requested information. . . . Nothing indicates that Plaintiff could not have achieved the same production of documents by explaining the situation via letter or other communication short of filing a lawsuit." Furthermore, pro se litigants such as plaintiff are generally not entitled to attorney fees. Additionally, "[t]he benefit to the public from this case is minimal. Plaintiff was not providing a service to anyone other than himself." Plaintiff had a personal interest in release of the documents, and was not motivated by the possibility of obtaining a fees award. "Finally, although Defendant does not seem to have any legal basis for withholding the information . . . [defendant's] "ministerial errors [in the processing of plaintiff's request] do not shift the balance of equities to justify awarding costs and fees."

5. Carter, Fullerton & Hayes, LLC v. FTC, No. 07-1041, 2009 WL 2222364 (D.D.C. July 24, 2009) (Lamberth, C.J.)

Re: Documents related to regulation of alcoholic beverages

•    Adequacy of search: The fact that defendant found additional responsive documents after its initial reply to plaintiff does not by itself show that defendant's initial search was inadequate. The court finds that FTC acted in good faith. Plaintiff has no evidence to the contrary, "other than mere conclusory accusations."

•    Exemption 3: Defendant has shown that it properly used this exemption in conjunction with § 21(f) of the FTC Act to protect documents submitted to it as part of its investigation of state liquor regulations.

•    Exemption 5 (deliberative process and attorney work-product privileges): Previously, the court ruled that the FTC had not sufficiently justified its assertion that it could not segregate out and release factual material. FTC has now explained that some of the withheld documents were withheld pursuant to the attorney work-product privilege, thereby eliminating the need for segregation of factual material, given that "factual material is itself privileged when it appears within documents that are attorney work-product." As to factual information in deliberative documents, FTC has established that "'revelation of the facts themselves, or more specifically, what the author decided and selected as pertinent facts or information, would expose the deliberative process.'" Defendant has also offered adequate explanations for its decision to withhold factual information from several other documents, including drafts of a speech given by an agency official. These drafts "were properly withheld in full because 'revelation of the facts themselves, or more specifically, what the author decided and selected as pertinent facts or information, would expose the deliberative process.'" As to more recently discovered documents, defendant has made appropriate withholdings. FTC's explanations for its withholdings "are sufficiently explanatory for the Court to discern sua sponte their predecisional and deliberative nature." Furthermore, "plaintiff is incorrect in its assertion that defendant needs to identify a specific FTC policy decision to which many of these documents are antecedent to."

•    Exemption 7(A): Contrary to plaintiff's claims, the court finds that FTC "does not lack 'the authority to conduct an investigation into possible anticompetitive effects of state liquor control board regulations.'" Though "states have substantial control over the importation and sale of alcohol, this power does not preclude the FTC from an investigation into unfair methods of competition in or affecting commerce." FTC has further shown that its investigation is pending or prospective and that release of documents "could reasonably be expected to cause some articulable harm."

6. United States v. Boyce, No. 06-20, 2009 WL 2231475 (W.D.N.C. July 23, 2009) (Thornburg, J.)

Re: First-party request

•    Proper party defendant: "Federal courts . . . are expressly excluded from the definition of 'agency' for purposes of FOIA disclosure requirements." Thus, plaintiff cannot make a valid FOIA request to the clerk of this court.

7. Thelen v. City of Elba, No. 08-1150, 2009 WL 2208161 (D. Minn. July 22, 2009) (Ericksen, J.) (adoption of Magistrate's Report and Recommendation)

Re: Access to meeting

•    Proper party defendant: The federal FOIA does not apply to a city government or to one of its officials.

8. Waage v. IRS, No. 08-2065 (S.D. Cal. July 15, 2009) (Huff, J.)

Re: Investigative records pertaining to plaintiff and his law firm

•    Attorney fees: Plaintiff did not obtain relief from the magistrate judge's order documenting the settlement of his FOIA claim. "While a judge may designate a magistrate judge to determine pretrial matters, conduct hearings and submit recommendations, magistrate judges may not rule on motions for injunctive relief or render summary judgment." However, plaintiff can claim to be a prevailing party under the catalyst theory because plaintiff's "initial request for information and administrative appeal were unsuccessful," but documents were released after litigation commenced. Plaintiff is not entitled to an attorney fee award. The documents he requested "are of personal concern only to Plaintiff and his law firm." Furthermore, plaintiff had a private, commercial interest in release of the records. Finally, plaintiff has not demonstrated that the IRS's initial decision to withhold records "lacked a reasonable legal basis." The fact that the IRS decided to release "previously withheld information in a voluntary settlement cannot establish that the initial withholding was baseless." (posted 8/14/2009)

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