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

July 16, 2009

FOIA Post

Summaries of New Decisions -- June 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 June 2009.

WEEK OF JUNE 1

1. Radcliffe v. IRS, No. 08-1513, 2009 WL 1459449 (2d Cir. May 27, 2009) (unpublished disposition) (summary order)

Re: First-party request

• Adequacy of search: Defendant's declarations and search for responsive documents "were adequate, if barely so."

1. Antonelli v. U.S. Parole Comm'n, No. 07-1932, 2009 WL 1497186 (D.D.C. May 29, 2009) (Kollar-Kotelly, J.)

Re: First-party request

• In camera review: In camera review "is unnecessary when, as here, 'a district court finds that a law enforcement agency's affidavits sufficiently describe the documents and set forth proper reasons for invoking an exemption [.]' Plaintiff has provided no factual basis for questioning the agency's declarations, which are otherwise accorded 'a presumption of good faith[.]'"

• Adequacy of search: Defendant's declaration "describes a reasonable search," notwithstanding plaintiff's unsupported contention that one of the released records is not responsive to his request. Plaintiff's claim that additional responsive records exist in the files of other DOJ components "does not advance his claim against the Parole Commission because an agency component is obligated to produce only those records in its custody and control at the time of the FOIA request."

2. Pearson v. DHS, No. 08-1885, 2009 WL 1474837 (N.D. Tex. May 26, 2009) (Boyle, J.) (adoption of magistrate's recommendation)

Re: First-party request

• In camera review: "[N]either party addressed whether their dispute can be resolved short of in camera inspection of the documents requested by Plaintiff." Because of the "burdensome" nature of this remedy, the court instead orders defendants to produce a Vaughn index detailing the bases for their withholding of documents.

WEEK OF JUNE 8

1. Pietrangelo v. U.S. Army, No. 07-3124, 2009 WL 1580183 (2d Cir. June 4, 2009) (unpublished disposition) (summary order)

Re: Records related to issuance of Bronze Stars during Iraq war

• Procedural: The court finds no need to decide whether to recognize a FOIA claim based on "a pattern or practice," given that "the District Court did not err in granting summary judgment for the Army on this claim."

• Litigation considerations: The district court did not abuse its discretion by denying plaintiff's motion for discovery on his pattern or practice claim. The district court appropriately relied on the Army's affidavits on this issue, plaintiff having made no showing of bad faith on the Army's part.

• Costs: "[T]he District Court did not abuse its discretion in concluding that Pietrangelo was not entitled to litigation costs."

2. Pietrangelo v. U.S. Army, 568 F.3d 341, (2d Cir. 2009) (per curiam)

Re: Records related to issuance of Bronze Stars during Iraq war

• Attorney fees: The Second Circuit joins its "sister Circuits" in holding that an attorney appearing pro se in a FOIA suit is not eligible for an award of fees. As the Supreme Court found in Kay v. Ehrler, an analogous fee shifting provision, 42 U.S.C. § 1988, was intended to encourage plaintiffs to obtain counsel. By contrast, a rule which allows fee awards to pro se attorneys "'create[s] a disincentive to employ counsel.'" The policies behind the FOIA and 42 U.S.C. § 1988 are "substantially similar."

3. Pickering-George v. DEA, No. 08-5227, 2009 U.S. App. LEXIS 12064 (D.C. Cir. June 3, 2009) (unpublished disposition) (summary order)

Re: Request for DEA "special instruction"

• Exhaustion: The district court properly ruled that plaintiff was required to exhaust his administrative remedies before filing suit, and that plaintiff did not provide any grounds for the court to reject the DEA declarant's assertion that it had no record of having received a FOIA request from plaintiff.

• Litigation considerations: The district court did not abuse its discretion when it denied plaintiff's motion to amend his complaint.

• Attorney fees: Plaintiff was not eligible for an award of fees, both because he was a pro se litigant and because he did not substantially prevail in his litigation.

4. Callaway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941 (D.C. Cir. June 2, 2009) (unpublished disposition) (per curiam)

Re: Records related to plaintiff's criminal trial

• Summary judgment: The district court erred in granting defendant EOUSA summary judgment on the issue of whether EOUSA had redacted any information from an audiotape it released to plaintiff. Plaintiff provided sufficient evidence to create a factual dispute on this issue.

• Adequacy of search: The district court should not have granted summary judgment to defendant United States Customs Service (USCS) on the adequacy of its search for records. "USCS should not have limited its search to the appellants' criminal investigative files, when the request appears to encompass additional material. . . ." Moreover, "the affidavits submitted by the USCS do not support the conclusion that the agency's search was reasonably calculated to locate all responsive records stored on microfiche."

• Waiver: "[I]t appears appellant has met his initial burden of pointing to specific information in the public domain that he asserts is the same as the information requested and withheld under an otherwise valid exemption. The trial transcripts should be compared to the grand jury transcripts to determine whether any portion of the grand jury transcripts is identical to the public transcripts."

• Segregability: "[T]here was insubstantial support for the district court's determination that the government has withheld only exempt material, and has segregated and released any responsive, non-exempt materials. The government's affidavits state only legal conclusions regarding segregability, and the Vaughn index does not explain why responsive documents containing information such as names or administrative codes could not be redacted and released."

1. Antonelli v. BOP, No. 07-2016, 2009 WL 1593701 (D.D.C. June 9, 2009) (Kollar-Kotelly, J.)

Re: First and third-party requests

• Exemptions 2 & 7(F): BOP properly withheld "'internal procedures related to [its] Administrative Remedy Program,'" in some cases pursuant to Exemption 2, and in others pursuant to both 2 and 7(F). As to a different part of plaintiff's request, BOP failed to justify its use of these two exemptions to withhold four pages of material "identified only as '[h]andwritten undated documents' and one-page identified only as a '[d]ocument/drawing.'" BOP did "not state which of the information contained therein is exemption 2 material and which is exemption 7(F) material and correlate said material with the asserted harm."

• Exemption 5 (attorney work-product and deliberative process privileges): Pursuant to the attorney work-product privilege, BOP properly withheld documents prepared in connection with tort claim investigations, including staff memoranda and documents created by investigators working at the behest of agency counsel. As to a memorandum concerning "security and policy related issues," BOP "has not specified" which portions contain Exemption 5 information and which portions contain Exemption 7(F) information. BOP properly utilized the deliberative process privilege to withhold communications containing recommendations for adjudicating administrative complaints, as well as a draft resolution created for one of the complaints.

• Exemptions 7(C) & 7(F): BOP properly utilized these exemptions to withhold the names of BOP inmates from records responsive to plaintiff's request for an incident report.

• Segregability: With the exception of attorney work-product documents, which are appropriately withheld in their entireties, BOP did not meet its burden of showing that it could not have segregated out and released portions of otherwise exempt documents. Though BOP's declarant claimed that "'no meaningful portions [of withheld documents] could be released without destroying the integrity'" of the document, that "is not significantly probative of the issue." Instead, "an agency must demonstrate that the 'exempt and nonexempt information are "inextricably intertwined," such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.'"

2. Mitchell v. DOJ, No. 08-1980, 2009 WL 1537890 (D.D.C. June 1, 2009) (Bates, J.)

Re: First-party request

• Litigation considerations: Plaintiff has failed to respond to defendants' Motion for Summary Judgment, thus the court will take defendants' motion as conceded.

WEEK OF JUNE 15

1. Ith v. U.S. Forest Serv., No. 08-0235, 2009 WL 1664495 (D. Alaska June 12, 2009) (Sedwick, J.)

Re: Records pertaining to plaintiff's late husband

• Litigation considerations: Defendant is ordered to produce an affidavit that describes the search and certifies that all records responsive to plaintiff's request have either been produced or accounted for in a Vaughn index and states that it is submitted in good faith.

• Attorney Fees: The Forest Service's failure to oppose plaintiff's motion for attorney fees is taken as an admission "'that the motion is well taken.'" Thus, the parties are ordered to confer on a fee award.

2. Ye v. Holder, No. 09-104, 2009 WL 1649997 (D.D.C. June 12, 2009) (Huvelle, J.)

Re: First-party request

• Exhaustion: "There is no competent evidence in the record to support [plaintiff's] contention" that defendant ever received plaintiff's FOIA request, and, by contrast, defendant has provided a sworn declaration that it received no such request. Thus, plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.

3. Defenders of Wildlife v. U.S. Border Patrol, No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.)

Re: Records pertaining to defendants' compliance with environmental statutes

• Adequacy of search: Defendants' "declarations do not leave either the plaintiff or this Court confident that the agencies have conducted searches reasonably calculated to uncover all relevant documents. The declarations make conclusory statements that the searches were adequate, but fail to provide necessary details for the Court to determine if this was in fact the case." The declarations "provide virtually no detail about the agencies' filing systems, the likely location of responsive documents within the agencies, the rationale for searching certain locations and not others . . ., or the search methods used." Furthermore, apparent confusion within DHS about responsibility for the processing of certain requests makes it "difficult for a court to conclude that those agencies conducted adequate searches as required by the FOIA."

Vaughn Index: Though defendant DHS's Vaughn index describes each withheld document (and/or the withheld portions) and lists the exemption(s) cited, it fails to include other relevant information, including the originating component, the author, and the recipient. "[D]etails such as these are necessary 'to enable the court and the opposing party to understand the withheld information in order to address the merits of the claimed exemptions.'" Furthermore, "DHS's descriptions of the documents withheld and the reasons for withholding them are unduly vague and general." Additionally, defendant DHS has not provided sufficient justification for its use of exemptions. "An agency's claims, in affidavits, declarations or a Vaughn index may not 'merely recite the statutory standards.'"

• Exemption 5 (deliberative process privilege): DHS has not adequately explained its use of this exemption and privilege. It has provided "no explanation of how any of the documents are predecisional or deliberative or what deliberative process is involved. It simply is not sufficient to state that all withholdings relate to 'a decision or decisions on how best to implement the Arizona Border Control Initiative.'"

• Exemption 7(E): "Other than accepting the agency's summary conclusion on its face or reviewing the document itself, the Court has no basis to determine" whether DHS has satisfied the requirements for use of this exemption.

• Segregability: DHS has not shown that its efforts to segregate out and release material from otherwise withholdable documents was adequate. DHS has "'not "show[n] with reasonable specificity why the documents cannot be further segregated" and additional portions disclosed.'"

4. Carvajal v. DEA, No. 06-2265, 2009 WL 1619209 (D.D.C. June 10, 2009) (Urbina, J.)

Re: First-party request

• Litigation considerations: Plaintiff has failed to oppose defendants' motion for summary judgment, thus defendants' motion will be treated as conceded.

5. Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.)

Re: Records pertaining to Hatch Act violations, prohibited personnel practices, and other investigations conducted by defendant

• Adequacy of search: "[Defendant] has carried its burden of showing that it conducted adequate searches reasonably calculated to uncover relevant information in response to [plaintiff's] FOIA requests. [Defendant] has provided the court a detailed description of the search methodology used to recover relevant information, including a description of its automated case management system."

• Jurisdiction: The court lacks authority under the FOIA to order defendant to create new documents that plaintiff believes defendant was required to create.

• Exemptions 2, 5, 6, & 7(C): Defendant has shown that its use of these exemptions to withhold information was proper.

WEEK OF JUNE 22

1. Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.)

Re: Records related to explosion of TWA flight 800

• Adequacy of search: Though plaintiff claims that the documents released to him prove that additional responsive documents exist, he "presents no persuasive evidence . . . that these records now exist and either evaded discovery during the agencies' searches or were purposely and improperly withheld." Plaintiff also "presents no evidence that would undermine the district court's conclusion" that there was no bad faith on the government's part, and his "contentions are too speculative to support the conclusion that the . . . searches were inadequate. Even if [additional] documents did exist when the agencies conducted their searches, the failure to produce or identify a few isolated documents cannot by itself prove the searches inadequate."

• Procedural: The district court did not err in determining that the inputs to one of defendants' computer programs were outside the scope of plaintiff's request, as that program did not contribute to one of the government's findings concerning the explosion that plaintiff contests.

• Litigation considerations: Plaintiff waived his right to argue that "evidence of government misconduct, crime, and fraud bars the application of Exemption 5" by not raising this issue in the district court. Though appellate courts "do have limited discretion to consider purely legal arguments raised for the first time on appeal," this is only true "where 'consideration of the issue would not prejudice the [opposing party's] ability to present relevant facts that could affect [the] decision.' . . . Here, considering the issue for the first time on appeal would unfairly prejudice the government." Plaintiff's claim that defendants' Vaughn indices do not provide enough information in several instances fails. Additionally, though plaintiff is correct that "an agency's proven misconduct can undermine the presumed veracity of its affidavits[,] [h]e points to no authority . . . that proof of fraud obviates the general rule applicable in FOIA cases that an affiant need not have personally conducted the search. Furthermore, [plaintiff's] complaints about the CIA's handling of his FOIA requests might suggest some bureaucratic mismanagement, but they do not prove fraud in that regard."

• Exemption 3: Defendant NSA properly relied on the NSA Act of 1959 to withhold a computer simulation program. Upon in camera review of NSA's affidavit, the court determines that the affidavit establishes "that the program is used to analyze foreign weapons, and outlines specific reasons why release of the program, including the data inputs, would put the agency's sources and methods at risk."

• Exemption 5 (deliberative process privilege): Upon in camera review, the court determines that defendants properly withheld several documents under the deliberative process privilege. The documents are both predecisional and deliberative, and release would "expose . . . internal deliberations in such a way that would discourage candid discussion and effective decisionmaking."

• Exemptions 6 & 7(C): The district court erred in ordering the release of the names of eyewitnesses to the explosion, as well as of FBI agents. As to the former, though "concerns about connecting private individuals to criminal investigations are not present here . . . [t]he potential for unwanted contact by third parties, including the plaintiff, media entities, and commercial solicitors, nonetheless remains. The case law establishes that protection from such unwanted contact facilitated by disclosure of a connection to government operations and investigations is a cognizable privacy interest under Exemptions 6 and 7(C)." Though some witnesses have come forward and publicly identified themselves, "[i]t is presumably the[ ] heretofore silent witnesses whom [plaintiff] wishes to contact. [T]hese witnesses have by their silence indicated that contact is unwelcome." As to the FBI agents, "courts have recognized that agents retain an interest in keeping private their involvement in investigations of especially controversial events." Moreover, "lower level officials, like the FBI agents involved here, 'generally have a stronger interest in personal privacy than do senior officials.'" Thus, "[s]hould the names of the FBI agents mentioned in the requested documents be revealed, there is some likelihood that the agents would be subjected to unwanted contact by the media and others, including plaintiff, who are skeptical of the government's conclusion. Under the case law of this court and others, this potential is sufficient to establish a cognizable privacy interest." Furthermore, though "an investigator's privacy interest may be reduced when there are doubts about the integrity of his efforts . . . [t]here is no evidence here . . . that the particular FBI agents mentioned in the requested documents themselves behaved improperly, or that their individual efforts were unreliable." Plaintiff apparently wishes to contact these agents to inquire about possible impropriety by other agents, but "we cannot say that an FBI agent's privacy interests are reduced because of speculation that he may have information about general improper conduct by the FBI." By contrast to the important privacy interests at stake, there is little public interest in release of the eyewitness or agent names, in light of the fact that defendants released the substance of the eyewitness accounts and agents' views. "The only way that the identities of the eyewitnesses and FBI agents mentioned in the documents already released would have public value is if these individuals were contacted directly by the plaintiff or by the media. . . . [S]uch use is insufficient to override the witnesses' and agents' privacy interests, as the disclosure would bring about additional useful information only if direct contacts, furthering the privacy intrusion, are made."

2. Public Citizen, Inc. v. OMB, No. 08-5004, 2009 WL 1709216 (D.C. Cir. June 19, 2009) (Tatel, J.) (concurring/dissenting opinion filed by Williams, J.)

Re: Documents related to agency bypass of OMB's legislative and budgetary clearance process

• Exemption 2 (high): The district court ruling upholding use of Exemption 2 for withholding of the responsive documents is reversed. "[T]he mere fact that the documents were intended for internal OMB use and have never been circulated outside the agency cannot alone render them 'predominantly internal.' Otherwise, agencies could effectively avoid disclosure of any manner of information simply by stamping it 'for internal use only.'" Similarly, the fact that the documents were used in internal discussions is not dispositive on whether they should be considered predominantly internal, as such documents may still be involved in matters affecting the public. Furthermore, OMB is incorrect in its claim that Exemption 2 applies because the documents only "concern other government agencies rather than the public at large." Instead, "[f]or Exemption 2 to apply, . . . the documents would have to relate predominantly to the internal practices of OMB itself, not of the government as a whole." Given that OMB's "primary function involves oversight and coordination of other government agencies," if its view of Exemption 2 were upheld, then "OMB . . . would be largely exempt from FOIA." Though OMB claims that the documents do not regulate public behavior, "the documents determine OMB's interaction with outsiders -- an interaction having real-world effects on the behavior of both bypass and non-bypass agencies." This is particularly true because there is a strong indication that the withheld documents contain OMB's own opinion on which agencies should be treated as having bypass authority.

• Exemption 5 (deliberative process privilege): "OMB claims that because of its 'unique role and position in the Executive Branch' as advisor to the President, its documents are '"by their nature"' predecisional and deliberative and cannot constitute
'"working law."' OMB's advisory role may well mean that some -- indeed, even many -- documents it produces are predecisional in nature, but the blanket application of Exemption 5 it seeks goes too far: carried to its logical conclusion, the argument would exempt virtually all OMB documents from disclosure." Thus, "[t]o the extent the documents at issue in this case neither make recommendations for policy change nor reflect internal deliberations on the advisability of any particular course of action, they are not predecisional and deliberative despite having been produced by an agency that generally has an advisory role. And although it might well be difficult to determine at what point OMB's recommendations about the suitability of a particular piece of proposed legislation have been sufficiently adopted to qualify as 'working law,' . . . . [d]ocuments reflecting OMB's formal or informal policy on how it carries out its responsibilities fit comfortably within the working law framework." Similarly, "an agency's application of a policy to guide further decision-making does not render the policy itself predecisional." Neither do the documents qualify as predecisional because "they 'serve as a starting point for discussions within OMB concerning possible changes to OMB's practices.'" If this were true, "it would be hard to imagine any government policy document that would be sufficiently final to qualify as non-predecisional and thus subject to disclosure under FOIA." Furthermore, even if OMB were correct, the documents would still not qualify as deliberative, because they merely explain current policies, rather than making recommendations. Finally, a list of agencies that do not submit materials to OMB for clearance is itself factual. The district court is ordered to perform a segregability analysis to ensure that OMB has only withheld predecisional, deliberative materials.

3. Chambers v. U.S. Dep't of Interior, No. 08-5165, 2009 WL 1658635 (D.C. Cir. June 16, 2009) (Henderson, J.)

Re: First-party request

Procedural: An agency may not destroy records responsive to a request after receiving the request in order to avoid releasing the documents. In this case, there was a genuine issue of material fact as to whether defendant had engaged in such behavior.

1. Natural Res. Def. Council v. EPA, No. 08-1429, 2009 WL 1767570 (D.D.C. June 23, 2009) (Friedman, J.)

Re: Records pertaining to use of pesticide clothianidin

• Litigation considerations: The court agrees with plaintiff's objection to EPA's proposed litigation schedule, including the creation of a "Withholding List" that would not meet the requirements of a Vaughn index, as well as EPA's proposed requirement that plaintiff identify which documents allegedly containing confidential business information it seeks disclosure of. "Although it is prefereable for FOIA litigants to work out a production schedule among themselves, plaintiff is under no obligation to agree to a schedule other than what would typically be legally required." EPA has also not sufficiently justified its request for "a prolonged summary judgment briefing schedule."

2. Sliney v. BOP, No. 07-1425, 2009 WL 1703234 (D.D.C. June 18, 2009) (Friedman, J.)

Re: Tape recordings of phone calls

• Litigation considerations: BOP has demonstrated that it has released to plaintiff a tape of his portion of several phone conversations, "[plaintiff's] bare assertion[s]" to the contrary notwithstanding.

• Costs: Plaintiff is not entitled to an award of costs because his claim is insubstantial. BOP's initial refusal to release the tapes to plaintiff was reasonable because BOP had not received advance payment from plaintiff.

3. Curran v. Holder, No. 08-1559, 2009 WL 1687566 (D.D.C. June 17, 2009) (Friedman, J.)

Re: First-party request

• Litigation considerations: Plaintiff has not challenged defendant's claim that she has failed to show that she would suffer irreparable harm absent a preliminary injunction ordering release of documents requested by plaintiff.

4. Judicial Watch, Inc. v. DHS, No. 08-2133, 2009 WL 1743757 (D.D.C. June 15, 2009) (magistrate's report and recommendation) (Robinson, Mag. J.)

Re: Videotapes showing incursion by Mexican police officers into Texas

• Attorney fees: "Plaintiff is clearly eligible for an award of attorney's fees," as "[it] easily satisfies the requisite showing" under the OPEN Government Act. Defendant did not respond to -- or even acknowledge -- plaintiff's FOIA request until after plaintiff filed the instant claim, nor did it notify plaintiff that it sought an extension of time with which to respond. The court "finds Defendant's attempt to justify its delay in responding to Plaintiff's FOIA request wholly insufficient and inapposite to the mandates of the FOIA." As a result, "Plaintiff has met its requisite showing that 'the prosecution of the action [was] reasonably . . . regarded as necessary to obtain the [requested] information[.]" Plaintiff is also entitled to an award of fees. It has clearly shown a strong public interest in matters related to control of American borders, and that release of the requested records will "contribut[e] to the public forum and fund of information from which citizens may make political choices." Defendant has not challenged plaintiff's assertion that it has no commercial interest in the requested records, or that its interest in the records is in gathering and disseminating government information. Finally, defendant has not shown that its withholding of records was reasonable. The court does find, however, that plaintiff's claim for fees is excessive and must be reduced by twenty percent. Plaintiff is granted the $350.00 in litigation costs it seeks.

WEEK OF JUNE 29

1. Trentadue v. FBI, No. 08-4207, 2009 WL 1886696 (10th Cir. July 2, 2009) (Hartz, J.)

Re: Records concerning bombing of Murrah Federal Building in Oklahoma City

• Adequacy of search: The court notes that "the focal point of the judicial inquiry is the agency's search process, not the outcome of its search," and finds that the district court's order granting plaintiff's motion to depose two prisoners concerning the FBI's search for records was an abuse of discretion. "[Plaintiff] has provided no reason to doubt" the adequacy of the FBI's search. Indeed, "the FBI's declarations provide an internally consistent and uncontradicted record that it conducted an adequate search." Moreover, "there is no reason to believe that the depositions could produce evidence of the existence of unproduced responsive records." Plaintiff "has failed to show any possibility that the depositions of [the two prisoners] would produce any relevant evidence in this case." The prisoners "clearly have no knowledge regarding FBI procedures in filing and searching for records -- which are the only relevant matters in FOIA litigation challenging an agency's records search. Only present or past agency employees would have knowledge of those matters." Finally, even if the two prisoners could provide evidence as to the existence of certain FBI records, their declarations do not mention the subjects of plaintiff's requests which are at issue in this litigation.

2. Wright v. Potter, No. 08-4685, 2009 WL 1863387 (3d Cir. June 30, 2009) (per curiam)

Re: First-party request

• Adequacy of search: "[B]ecause [plaintiff] received all available information he sought, and the Postal Service conducted an adequate search, the District Court did not err in granting the Postal Service's motion for summary judgment."

3. Summers v. DOJ, No. 07-5315, 2009 WL 1812760 (D.C. Cir. June 26, 2009) (Ginsburg, J.)

Re: Records concerning Bebe Rebozo

• Attorney fees: The attorney fees provision of the OPEN Government Act (OGA) does not apply retroactively. Though "there is no per se rule against retroactive application of a statute," the general rule is against it, especially where, as here, such application "would impose an 'unforeseeable obligation' upon the defendant by exposing it to liability for attorneys' fees for which it clearly was not liable before the passage of the 2007 Act." The court notes that defendant's "calculus in settling [this] case would have been different" had it known that it might be liable for attorney fees, and that the "decision to settle reflects a calculation that the cost associated with disclosing the disputed information . . . was less than the cost of further litigation." Plaintiff "argues that the presumption of the general rule against retroactive application of a statute is overcome by the clear intent of Congress in passing the 2007 Act, but the evidence of intent he adduces is neither powerful nor even relevant." Plaintiff's supposed evidence on this issue not only does not speak to overall congressional intent (as opposed to the alleged intent of a single member of Congress or congressional committee), but also does not speak at all to the issue of retroactivity. Additionally, plaintiff is not eligible for a fee award under the pre-OGA Buckhannon standard. The only "relief" he received from the district court was three orders directing the parties to file joint status reports. These orders did not require the FBI to release any documents. "Consequently, the status reports do not affect a 'court-ordered change in the legal relationship between the plaintiff and the defendant.'" Similarly, the settlement agreement the parties entered into does not constitute relief ordered by the court.

1. Habeus Corpus Res. Ctr. v. DOJ, No. 08-2649, 2009 WL 1883724 (N.D. Cal. June 30, 2009) (Wilken, J.)

Re: Records pertaining to regulation for certification process for state capital counsel systems

• Exemption 5 (deliberative process privilege): Upon in camera review, the court determines that DOJ's use of this exemption was proper.

• Exemption 6: DOJ properly used this exemption to withhold certain information concerning an attorney it hired, except for two instances where it is ordered to disclose the identities of recipients of e-mails.

2. CareToLive v. FDA, No. 08-005, 2009 WL 1794489 (S.D. Ohio June 23, 2009) (Frost, J.)

Re: Letters written concerning application of drug Provenge

• Adequacy of search: Defendant's "declarations unquestionably establish that Defendant met its burden by making a 'good faith effort to conduct a search for the requested records using methods reasonably expected to produce the requested information.'" Plaintiff's arguments that the small number of responsive documents call into question the quality of the FDA's search "do not establish 'countervailing evidence' nor do they indicate an 'apparent inconsistency of proof' provided by Defendant in its declarations."

• Litigation considerations: Plaintiff's motion for discovery is denied. Plaintiff's submissions are insufficient for the purposes of Federal Rule of Civil Procedure 56(f). The affidavit was not signed under penalty of perjury, and "utterly fails to set forth facts sufficient to support a Rule 56(f) motion." Furthermore, the "unfounded assertions [in plaintiff's motion] are not enough to defeat Defendant's Motion for Summary Judgment." Plaintiff's unsupported claims that additional documents "must" exist "fall woefully short of showing bad faith and, indeed, are completely at odds with the evidence before this Court." (posted 7/16/2009)

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