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

November 30, 2009

FOIA Post

Summaries of New Decisions -- October 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 October 2009.

WEEK OF OCTOBER 5

1. Watson v. Neighbors Credit Union, No. 09-1464, 2009 WL 3163063 (8th Cir. Oct. 5, 2009) (unpublished disposition) (per curiam)

Re: First-party request

• Proper party defendant: The district court correctly ruled that the federal FOIA only applies to federal agencies, and not to any of the defendants named by plaintiff.

1. Newport Aeronautical Sales v. Dep't of the Air Force, No. 04-1283, 2009 WL 3193150 (D.D.C. Oct. 7, 2009) (Kessler, J.)

Re: Requests for 155 Air Force Technical Orders

• Exemption 3 (10 U.S.C. § 130): The parties acknowledge that 10 U.S.C. § 130 is "an established Exemption 3 statute." Defendant is correct that its prior release of earlier versions of responsive manuals does not preclude it from asserting an applicable exemption as to more recent versions of the manuals. Plaintiff challenges DOD's application of its regulations. However, the court's jurisdiction is limited to a determination of whether 10 U.S.C. § 130 qualifies as an Exemption 3 statute. Finding that it is, "the Air Force need only show that the information in question falls within its boundaries." The court finds that the "Air Force's showing is sufficient to establish that the information requested is exempt from FOIA under 10 U.S.C. § 130."

2. Love v. FBI, No. 08-1802, 2009 WL 3193149 (D.D.C. Oct. 7, 2009) (Walton, J.)

Re: First-party request

• Exhaustion: "There is no genuine dispute on the record before the Court that well before the plaintiff filed this civil action, that the FBI, EOUSA, and DEA had each responded acknowledging plaintiff's FOIA request and indicating either that it would process the request or that it had already done so. There also is no dispute that at the time this lawsuit was filed, the plaintiff had not pursued, let alone exhausted, his administrative remedies. Thus, the plaintiff's claim of constructive exhaustion is without merit, and his lawsuit was prematurely filed and therefore is not ripe for adjudication in this forum."

3. Hull v. IRS, No. 09-00024, 2009 U.S. Dist. LEXIS 93204 (D. Colo. Oct. 6, 2009) (Shaffer, Mag. J.)

Re: Documents pertaining to U.S. West pension plan

• Litigation considerations: Because a question of fact - whether U.S. West Pension Plan qualifies as a "taxpayer" under 26 U.S.C. § 6103 - remains unsettled, the court cannot determine whether plaintiff's request, which did not include consent from the pension plan, constitutes a proper FOIA request. Therefore, defendant's motion to dismiss is denied without prejudice.

4. Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.)

Re: Records pertaining to Special Counsel interview of former Vice President Cheney

• Exemptions 1 & 3: Upon consideration of DOJ's declaration, as well as in camera review of the documents, the court determines that DOJ has made a sufficient showing to justify its use of these exemptions.

• Exemption 5 (law enforcement, deliberative process, and presidential communications privileges): Though the two sides disagree on whether a law enforcement privilege should be recognized by the court under Exemption 5, the court need not reach the issue for even if the privilege were recognized the court finds that DOJ has not carried its burden for the reasons outlined in the Exemption 7(A) section of the opinion. Conversely, the court finds that DOJ properly applied the deliberative process privilege to withhold records that, though created after relevant decisions had been made, reflect the agency's predecisional deliberations. The court disagrees with plaintiff's contention that the interview materials are "'purely factual.'" Indeed, "the withheld records contain statements directly relating to communications that took place as part of the deliberative process." Furthermore, regardless of whether withheld information is publicly available, it "is protected precisely because it might compromise what information was considered and what role it played in the deliberative process. . . . 'This limited approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive [information].'" As to the presidential communications privilege, DOJ has now established that the very limited volume of material it is protecting under this privilege "'is comprised of direct confidential communications between the Vice President and the President [that] falls within the core of the privilege.'" The court further agrees with defendant that the former Vice President's interview with the special prosecutor, in which he revealed some of the information now withheld, does not constitute a waiver of the deliberative process or presidential communications privileges. Plaintiff's claim that such disclosure should be considered waiver unless the disclosure was made to someone with a common interest "appears nowhere in the relevant caselaw." The court agrees with DOJ that the conversations between the former Vice President and the special prosecutor are "more appropriately considered a protected interagency disclosure." Because of this, the former Vice President's "failure to formally invoke any executive privileges did not preclude the White House's future reliance on those privileges."

• Exemptions 6 & 7(C): Defendant properly applied these exemptions to protect the identities of non-government employees, law enforcement personnel, and low level government employees who were not the subject of any investigation. Plaintiff's "argument that the alleged illegal activity giving rise to the FBI interview weighs in favor of disclosure is unpersuasive primarily for the reason advanced by DOJ - law enforcement records will almost by definition be generated as a result of illegal or possibly illegal activity. Indeed, protecting individuals against the stigma of being mentioned in the context of a law enforcement investigation is the precise purpose of Exemption 7(C). CREW points to no evidence that disclosure of the personal information contained in the records would shed light on illegal activity by DOJ or White House officials."

• Exemption 7(A): The court finds that DOJ has not identified "a class of concrete prospective or otherwise reasonably anticipated enforcement proceedings." The court further finds that "DOJ may be correct that the precise scope of an investigation or the statute under which a proceeding is likely to be brought need not be discerned in order to conclude that a proceeding is 'reasonably anticipated' under Mapother's reasoning. Under this Court's reading of the statute and the relevant caselaw, however, the category of proceedings must be more narrowly defined than simply any investigation that might benefit from the cooperation of some senior White House official at some undetermined future point regarding some undefined subject." Because of the hypothetical nature of any future proceedings, "the Court is not in a position to assess the reasonableness of DOJ's assertion that the disclosure of the requested records may discourage senior White House officials from engaging in voluntary interviews with law enforcement officials." Indeed, "[a]ny attempt to predict the harm that disclosure of these records could have on such proceedings is therefore inherently, incurably speculative."

5. Oleskey v. DOD, No. 05-10735, 2009 WL 3149754 (D. Mass. Sept. 30, 2009) (Stearns, J.)

Re: Records related to conditions of confinement at Guantanamo Bay detainment facility

• Adequacy of search: "The court finds that the seven affidavits [submitted by DOD] adequately 'describe, in a detailed and nonconclusory fashion, the structure of the agency's file system, the scope of the search performed, and the method by which it was conducted. ' . . . In the aggregate, the seven affidavits present a comprehensive picture of the relevant system of records located within DOD." By contrast, plaintiff "puts forward no new arguments beyond the generic assertion that the government could have done more. [Plaintiff], however, fails to specify in a concrete fashion any omitted or overlooked avenues of search." Plaintiff "fails to identify . . . the additional files that [defendant] should have searched in response to his request. DOD's affidavits consistently demonstrate that all places where responsive records could be expected to be found were in fact searched." Plaintiff's "criticisms of supposed disorganization at Guantanamo also have no bearing on the legal sufficiency of the searches and their results. . . . FOIA contains no requirement that the government maintain its files in a particular way so as to facilitate . . . a [particular type of] search." Though plaintiff asserts that additional responsive records must exist, he "fails to explain why the declarations by knowledgeable DOD officials that their search efforts were exhaustive are misleading or incorrect. In making this argument, [plaintiff] focuses wrongly on the results of the search rather than on the search itself." DOD's search effort in responding to this request amounted to almost six years worth of employee hours, an effort that "was 'virtually unprecedented.'"

6. Coven v. OPM, No. 07-1831, 2009 WL 3174423 (D. Ariz. Sept. 29, 2009) (Broomfield, J.)

Re: Job vacancy data

• Litigation considerations: Plaintiff's motion to strike portions of OPM's response is denied. First of all, Federal Rule of Civil Procedure 12(f) only allows for the striking of immaterial matter from pleadings. Plaintiff has asked the court to strike portions of OPM's response, which is not a "pleading" for these purposes. Furthermore, on the merits the portions plaintiff asks the court to strike are not immaterial, as they address an issue - attorney fees and costs - that is clearly material to this litigation. As to plaintiff's challenge based on the expedited processing provision of the FOIA, 5 U.S.C. § 552(a)(6)(E)(iv) explicitly states that this court does not have jurisdiction to review plaintiff's request for expedited processing when the agency has already responded to plaintiff's underlying request.

• Procedural matters: The court finds that OPM is not obligated to continually provide plaintiff with daily, updated versions of the records he requested on an ongoing basis. This would be a departure from the general rule that an agency has no obligation to produce records created after a FOIA request has been made. Plaintiff's claim that the agency should be required to do this has no support in the relevant caselaw. Plaintiff's claim that a ruling against him will cause irreparable harm because of the short time job vacancies remain open is irrelevant, as he is not seeking a preliminary injunction. "Further, the 'short time frame' for federal hiring activities is not an 'unusual circumstance' requiring . . . the 'more extreme remedy' of ordering OPM to provide ongoing, daily copies." Finally, because OPM has indicated its ability to produce the records plaintiff has requested in the (electronic) format he prefers, the parties' motions on this issue are moot.

• Fee waiver: Plaintiff's request for job vacancy data "does not explain at all, much less with 'reasonable specificity,' how disclosure of that data will contribute to public understanding for purposes of FOIA's fee waiver provision." Plaintiff cannot attempt to bolster this claim before the court with arguments he failed to make to the agency at the administrative stage. Furthermore, the availability of this information on OPM's own website suggests that further dissemination by plaintiff would be unlikely to contribute significantly to public understanding of government operations. Additionally, plaintiff did not establish in the administrative record before the agency that he does not have a commercial interest in the responsive records. Plaintiff also made no attempt to claim status as an educational institution or a non-commercial scientific institution, nor has he made any showing that he qualifies as a representative of the news media. Plaintiff's claim that the fees charged by OPM were excessive is not part of the record before the court, so the court has no means of evaluating and ruling on it given the "limited scope of its review." Moreover, OPM's defense of its fee estimate, which is a part of the record, is sufficient.

• Attorney fees & costs: As a pro se litigant, plaintiff is ineligible for an award of attorney fees. His motion for costs is denied without prejudice as premature because the court has yet to enter final judgment in this case.

7. Dasta v. Lappin, No. 08-1034, 2009 WL 3069681 (D.D.C. Sept. 25, 2009) (Sullivan, J.)

Re: Records pertaining to menu policies at BOP institutions

• Litigation considerations: As BOP has established that it released in full the responsive records, plaintiff's complaint is now moot.

• Costs: Plaintiff is not entitled to an award of costs incurred in pursuing his case because he has not shown that "his 'claim is not insubstantial.' . . . Plaintiff's interest in and intended use of the information appears to be personal. This is not a case where the public derives some benefit from plaintiff's claim or the BOP's release of the information plaintiff requested."

WEEK OF OCTOBER 12

1. Anderson v. Dep't of State, No. 09-569, 2009 WL 3286117 (D.D.C. Oct. 14, 2009) (Huvelle, J.)

Re: Documents related to presentation that formed basis of speech to UN by former Secretary of State Powell

• Exhaustion: Because plaintiff neither paid fees nor appealed the agency's denial of his fee waiver request, he has not exhausted his administrative remedies as to this issue.

• Adequacy of search: "The limited nature of the documents coupled with the specificity of the search and the detailed description of the records examined provide sufficient detail about the scope and methods of the search, and therefore allow the Court to conclude that defendant's search was reasonably calculated to uncover all relevant documents." Moreover, "[d]efendant has described the various keywords and methods it used to examine its electronic records, has listed all of the various databases it searched, and has averred that it searched 'any and all records systems reasonably expected to contain the information sought by the plaintiff.'" The court finds that the State Department's choice of keywords "was reasonable and systematic and could reasonably be expected to produce the information requested."

2. Detroit Int'l Bridge Co. v. Federal Highway Admin., No. 09-13805, 2009 WL 3271314 (E.D. Mich. Oct. 13, 2009) (Duggan, J.)

Re: Challenge to agency decision to release 2007 inspection report concerning Ambassador Bridge

•Litigation considerations: Venue is proper in the Eastern District of Michigan because plaintiff "resides" in that district. Despite defendant's claim that plaintiff's suit is now moot, "the Court may be able to 'fashion some form of meaningful relief,' even if it cannot 'return the parties to the status quo ante.'"

• "Reverse FOIA": Plaintiff's "complaint does not state a cognizable reverse FOIA claim because the complaint fails to assert a claim under the APA [Administrative Procedures Act] and consequently fails to set forth allegations that [defendant's] conduct violated the relevant standards in the APA." Plaintiff "must identify some law independent of the FOIA that bars disclosure in order to state a claim under the APA."

3. Moore v. Nat'l DNA Index System, No. 06-362, 2009 WL 3259065 (D.D.C. Oct. 13, 2009) (Sullivan, J.)

Re: First-party request for DNA records

• Adequacy of search: Because plaintiff is a state, rather than federal, convict, the FBI lacks the capacity to tie records in its DNA database to him. "Therefore, both a futile search and not searching are methods equally reasonably calculated to uncover responsive documents." When it is not possible to identify records, "not searching satisfies the FOIA requirement."

•Exemption 3: Even if plaintiff could definitively link himself to specific DNA records maintained by defendants, 42 U.S.C. § 14132(b)(3) forbids release of this type of information under the FOIA.

• Exemptions 6 & 7(C): Plaintiff has requested DNA records identified by a specific ID number, but cannot establish that these records pertain to him. "Thus, the defendants are not at liberty when responding to [plaintiff's] FOIA request to disclose the specific records he requested, but which they cannot verify do not belong to someone else."

4. Holub v. EOUSA, No. 09-347, 2009 WL 3247000 (D.D.C. Oct. 12, 2009) (Walton, J.)

Re: First-party request

• Adequacy of search: "[T]he Court finds that the defendants have provided a 'reasonably detailed affidavit' . . . that establishes the reasonableness of the defendants' efforts to locate responsive documents. They conducted a thorough search of both electronic and non-electronic files located in the [office] most likely to possess the documents requested by the plaintiff. Further, the defendants' extensive efforts were especially reasonable and adequate given the plaintiff's agreement to limit the search to only two hours." Plaintiff has "failed to proffer any evidence showing the inadequacy of the search procedure or the bad-faith of the defendants."

WEEK OF OCTOBER 19

1. Smith v. FBI, No. 07-1183, 2009 WL 3347186 (D.D.C. Oct. 19, 2009) (Roberts, J.)

Re: First and third-party requests

• Adequacy of search: Though defendant may have improperly indexed a responsive record, its "failure to uncover the memorandum from [its] otherwise adequate search 'does not demonstrate the inadequacy of [the] search.'"

• Exemption 6/Glomar: Plaintiff previously failed to show an overriding public interest in the records he requested concerning an FBI Special Agent. "Because defendant's confirmation of records concerning '[a]ny adverse action or disciplinary reports on [its Special Agent]' would necessarily reveal the precise information Exemption 6 shields, the Glomar response was proper."

• Exemption 7(D): Defendant has now provided sufficient justification of its claim that there was an implied grant of confidentiality to sources it utilized in its investigation. The FBI has asserted that "'plaintiff has a propensity for violence,'" and informed the court that plaintiff has made threats against his victim and a witness. This additional information, along with the fact that plaintiff was prosecuted for child sexual exploitation, are enough to justify FBI's use of Exemption 7(D) "based on an implied grant of confidentiality." Furthermore, "[p]laintiff's general claim of prior disclosure through trial testimony fails to carry his burden of identifying with specificity the exact testimony that is duplicated in withheld materials."

• Segregability: Defendant has now provided the court with sufficient information to demonstrate that its segregability decisions were proper. Plaintiff's assertion that the FBI should have released materials to him that were allegedly provided to him during the criminal discovery process is unfounded. "[A]n agency responding to a FOIA request is not foreclosed from asserting exemptions to withhold information that it had previously disclosed to a party in a non-FOIA proceeding."

2. ACLU v. DOD, No. 08-437, 2009 WL 3326114 (D.D.C. Oct. 16, 2009) (Lamberth, C.J.)

Re: Records concerning fourteen detainees held at Guantanamo Bay, Cuba Naval Base

• Litigation considerations: The court has determined that defendants' "declaration is sufficiently detailed that in camera review is not necessary."

• Exemptions 1 & 3: "[T]he Court finds that plaintiffs have not satisfied their burden of proving that the government officially disclosed the specific information withheld. . . . Plaintiffs assert that the government's release of the declassified [Office of Legal Counsel] memoranda and the [Inspector General] Report demonstrates that the information they seek is in the public domain. These documents contain general information regarding defendants' interrogation program. . . . The redacted information at issue in this case, however, is specific and particular to each detainee and would reveal far more about the CIA's interrogation process than the previously released records." Furthermore, "the redacted information relates not just to the use of [enhanced interrogation techniques, EITs], but also to the interrogation methods and procedures that are authorized in the Army Field Manual and are in use today. . . . Release of such information would seriously damage national security by compromising intelligence sources and methods . . . even if the damage is not apparent to the casual observer." Given the fact that defendants reprocessed the responsive documents and made additional disclosures, "the Court can 'see no reason to question [defendants'] good faith in withholding the remaining [information] on national security grounds.' . . . The Court also finds that plaintiffs' reliance on the report authored by the . . . Red Cross is misplaced. This report does not constitute an official disclosure by the government. Without official disclosure, classified information is not considered to be public." Furthermore, "the Court does not see how the President's order prohibiting the use of EITs and closing the CIA's prisons justifies full disclosure of the records sought. Plaintiff's theory would require the government to fully disclose the details of every classified program that the government discontinues. This simply is not true." Similarly, plaintiffs' assertion that defendants cannot "redact portions of the detainees' statements that would expose 'intelligence sources and methods" is incorrect. "It is within defendants' broad discretion to determine 'whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process.'" Finally, "[t]he Court finds that defendants have shown that damage to national security would reasonably result if the detainees' statements were disclosed, and that defendants did not classify portions of the detainees' statements to conceal violations of the law or prevent embarrassment. . . . The redacted information . . . relates only to specific information that has not yet been disclosed to the public because of the damage its release would cause to national security." Plaintiffs have failed to show that this information was classified "in order to conceal violations of the law."

3. Gonzales v. FBI, No. 09-13590, 2009 U.S. Dist. LEXIS 96289 (E.D. Mich. Oct. 16, 2009) (Cleland, J.)

Re: Request for surveillance tape

• Litigation considerations: Plaintiff's application to proceed in forma pauperis is granted. "Complaints filed by a plaintiff proceeding in forma pauperis are subject to the screening requirements of 28 U.S.C. § 1915(e)(2)" which "requires district courts to screen and to dismiss complaints that are frivolous, fail to state a claim upon which relief can be granted, or that seek monetary relief from a defendant who is immune from such relief. . . . A complaint is frivolous and subject to sua sponte dismissal under § 1915(e) if it lacks an arguable basis in either law or fact." Plaintiff claims that defendants have not released records to her and that she is "therefore entitled to damages in the amount of seven million dollars." The FOIA, however, does not authorize damage awards. "Because Plaintiff does not have even an arguable claim to relief, the court will dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted."

4. Petit-Frere v. U.S. Attorney's Office for the S. Dist. of Fla., No. 09-1732, 2009 WL 3319985 (D.D.C. Oct. 15, 2009) (Roberts, J.)

Re: Records pertaining to investigation of plaintiff

• Exhaustion: Because defendant informed plaintiff prior to plaintiff's filing of his complaint that the agency was responding to his request, "plaintiff's claim to constructive exhaustion is incorrect." Since plaintiff has not exhausted his administrative remedies, his "lawsuit is premature and not ripe for adjudication in this forum."

WEEK OF OCTOBER 26

1. Nat'l Ass'n of Waterfront Employers v. Solis, No. 07-2250, 2009 WL 3436913 (D.D.C. Oct. 27, 2009) (Collyer, J.)

Re: Adoption by Department of Labor of new administrative rule relating to listing of claimants under Longshore Act and Black Lung Act

• Procedural: Though the FOIA governs how and whether an agency may redact information from already created documents, it has no application to an agency's decision on how to create a document in the first place. Thus, a requestor has no FOIA claim concerning an agency's decision to change how parties will be listed in documents yet to be created by the agency. (posted 11/30/2009)

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