FOIA Post (2010): Summaries of New Decisions -- April 2010

June 1, 2010

FOIA Post

Summaries of New Decisions -- April 2010

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of April 2010.

WEEK OF APRIL 5

1. New York v. Salazar, No. 08-CV-0644, 2010 WL 1268018 (N.D.N.Y. Apr. 1, 2010) (Peebles, Mag. J.)

Re: Documents pertaining to decision by Interior Secretary Salazar to take 13,000 acres of land into trust for Oneida Indian Nation of New York

• Jurisdiction: The court finds that it lacks jurisdiction to issue a ruling on plaintiffs' motion to compel production of documents pursuant to the FOIA, as it was not empowered to rule on the merits of plaintiffs' FOIA claims.

2. Kenney v. DOJ, No. 07-1989, 2010 WL 1242273 (D.D.C. Apr. 1, 2010) (Friedman, J.)

Re: First and third-party requests

• Statute of Limitations: Plaintiff claims that the statute of limitations on his claim pertaining to his 1996 request did not begin to run because he had not paid fees owed on his request, meaning he had not exhausted his administrative remedies. However, "the requirement that a requester pay fees before he may be deemed to have exhausted his administrative remedies is for the agency's protection, not the requester's. The Court is not aware of any case in which the nonpayment of fees has worked to a plaintiff's benefit by allowing him to file suit when it otherwise would have been time-barred. . . . Were the Court to adopt plaintiff's position, FOIA requesters would routinely be able to delay the running of the six-year statute of limitations indefinitely by not paying their fees. Such an interpretation would undermine the purpose of the statute of limitations, a limited waiver of sovereign immunity enacted by Congress that must be strictly construed."

Plaintiff is also incorrect in his assertion that the statute of limitations should not have started until the time at which his administrative appeal was resolved. D.C. Circuit precedent "makes clear . . . that plaintiff's cause of action accrued - and thereby started the running of the statute of limitations - twenty business days after he filed his administrative appeal, regardless of the fact that the agency had not yet ruled on that appeal." Indeed, the Circuit specifically held "that the statute of limitations was not tolled 'from the date [the cause of action] accrues until final administrative disposition.'"

Finally, plaintiff's argument that DOJ should be estopped from making its statute of limitations argument because its November 7, 2001 letter explained to plaintiff that he could "'seek judicial review,'" fails because the government did not make a "'definite representation'" to plaintiff as to the deadline for filing suit. Furthermore, "[e]ven if defendant's letter could be interpreted to state that the statute of limitations began to run on the date the letter was received, reliance on such a representation would not be reasonable." Finally, "defendant's actions [cannot] be deemed 'affirmative misconduct'; defendant merely informed plaintiff of the availability of judicial review, which it is statutorily required to do. . . ."

• Exhaustion: As to plaintiff's 2004 request, the FBI responded by informing plaintiff that he would be required to submit privacy waivers or proof of death for the individuals about whom he sought records. "[P]laintiff had two options for proceeding: he could either have complied with the letter by submitting the waivers and/or certificates, or he could have responded and contested the FBI's position that submitting waivers or death certificates was required. . . . [However,] he failed to respond to the letter in any fashion. Plaintiff thus failed to exhaust his administrative remedies. While plaintiff now maintains that he should not have been required to resubmit privacy waivers for individuals who had already signed waivers for an earlier request, he has not presented this argument to the FBI through the administrative process. For the Court to consider plaintiff's argument here without allowing the FBI to address it through the administrative process 'would undercut "the purposes of exhaustion. . . ."'"

3. UtahAmerican Energy, Inc. v. U.S. Dep't of Labor, No. 08-1791, 2010 WL 1252863 (D.D.C. Mar. 31, 2010) (Leon, J.)

Re: Documents pertaining to investigation of adequacy of investigation into 2007 mining accident in Price, Utah

• Adequacy of search: As to plaintiff's first request, "it is clear on this record that the DOL performed an adequate search." As to plaintiff's second request, "the DOL excluded from [its] search any material which had already been processed in response [to] an earlier FOIA request UtahAmerican made directly to the [Mining Safety & Health Administration (MSHA)]." This was appropriate, because "DOL is under no obligation to review the same set of documents twice. Indeed, it is the law of our Circuit that '[t]he Freedom of Information Act does not require that the agency from which documents are requested must release copies of those documents when another agency possessing the same material has already done so.'"

However, defendant inappropriately narrowed the scope of plaintiff's request. "By redefining plaintiff's request for documents 'relied on for [the Independent Review Team's (IRT)] factual findings' to mean documents 'relied on for the final [IRT] report's significant or principal factual findings,' the DOL failed to comply with its 'duty to construe [the] FOIA request liberally.'" As a result, the court finds that defendant's search was not adequate. Defendant also should not have eliminated from its search "certain materials which were referenced in the IRT report." DOL claims that these documents were not relied on by the IRT, but plaintiff's request specifically includes both documents relied upon as well as documents referenced in the report.

• Exemption 5 (Machin privilege): This privilege, cited by defendant, covers confidential statements made to government air crash safety investigators. Defendant reads the privilege as extending to a more generalized "accident investigation privilege," but there is no support in prior precedent for extending the privilege beyond the air crash investigation setting. Thus, DOL cannot rely on Exemption 5 to withhold portions of the IRT transcripts.

• Exemption 7(A): The court finds that DOL has not justified its decision to withhold in full all IRT transcripts. Defendant's claims that release of the witness transcripts "could cause witness collusion or unfairly preview evidence to be presented at trial" are "less than convincing." Defendant has previously published a "report based on the IRT interviews," and "MSHA published a separate accident investigation report based on its interviews, which included 20 of the IRT witnesses." In light of this, "while it is difficult to know exactly how much of these witness accounts were not included in the final published reports, DOL's failure to explain with greater particularity how that information could compromise those ongoing investigations some two years later should not be rewarded by this Court." The court determines that "the risk of witness collusion at this late date, after so much information has been made public, is exaggerated and falls far short of the 'substantial burden' that must be met to warrant the agency's use of this Exemption."

Defendant's claims with regard to possible witness intimidation are similarly unconvincing. "The 59 witnesses' identities are already known publicly, and fortunately, none have been intimidated to date. . . . Given that all of the witnesses' identities are known and the agency's reports have been public for nearly two years, harm to any of these witnesses cannot be reasonably expected in the future and is thus an insufficient basis to rely on Exemption 7(A)."

4. Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.)

Re: First-party requests for tax investigation files

• Procedural matters: IRS regulations specify the date of request as the "cut-off date" for purposes of its search for records. However, the court finds that "[w]ithout a rationale for applying" this date, as opposed to the date upon which the search actually commences, the IRS's policy is unreasonable. The IRS is required to inform the court when it began its search for responsive records.

• Adequacy of search: The IRS limited its search to the case files of one agent. However, "[w]ithout knowing the role of the other agents involved in the investigation [of plaintiffs], this Court cannot determine . . . that the IRS's search was reasonably constructed to find all materials responsive to Plaintiffs' request." Because it is possible that the IRS's search was reasonable "without including every employee who performed some work on the Plaintiffs' case," the court declines plaintiffs' request "to expand its search to an extensive list of IRS and Department of Justice (DOJ) employees." The court will, however, grant plaintiffs' summary judgment on their request "for the names of the employees who performed work on their case."


Exemption 3 (26 U.S.C. § 6103(a)): The court finds that IRS has not shown why its invocation of this Exemption requires withholding documents in full, as opposed to redacting protected materials and releasing other portions. "At a minimum, the IRS may provide the names of the IRS and DOJ employees who sent or received the emails at issue without running afoul of § 6103." The IRS is ordered to release this information, "along with any other information . . . that can be segregated from [properly withheld portions]."


Exemption 5 (deliberative process, attorney work-product, and attorney-client privileges): "[The deliberative process] privilege clearly applies to the communications the revenue agent made in preparing for and conducting examinations of Plaintiffs, because such communications include the deliberations by various IRS and DOJ personnel about what strategies to pursue in Plaintiffs' tax case. Plaintiffs' contention these communications reflect the 'working law' of the IRS are misplaced, as these are not final statements of policy by top officials such that they constitute the 'opinion of th[e] office.' . . . Similarly, Plaintiffs' contention that they are entitled to the 'facts' contained in these communications is misplaced because such facts may be withheld if 'they would indirectly reveal the advice, opinions, and evaluations circulated . . . as part of [the] decisionmaking process.'"

Defendant properly "assert[ed] the attorney-client privilege to withhold correspondence between the revenue agent and the Office of Chief Counsel and the DOJ on developments in the examination and interpretation of law." The court finds that "the bulk of the communications . . . relate to a legal matter, Plaintiffs' tax liability, as to which the revenue agent was seeking advice. However, Plaintiffs correctly note items three and four in Appendix B do not involve communications to or from an attorney, and therefore cannot be exempt under the attorney-client privilege." Defendant is ordered to disclose these items "unless they are subject to another privilege."

The IRS invoked the attorney work-product privilege to withhold documents it claims were created "in response to petitions to quash third party summonses filed by Plaintiffs and third party taxpayers." As to five of the withholdings challenged by plaintiffs, the documents "relate to work done by the IRS and DOJ attorneys in connection with building a tax liability case against Plaintiffs, and thus are properly subject to the work-product privilege even though they may have occurred before litigation formally began. However, items three and four in Appendix C do not appear to involve work-product created by an attorney in anticipation of litigation and therefore are not exempt."

• Exemption 7(A): The court finds that defendant properly asserted this exemption "to withhold [its agent's] notes and summaries of witness interviews . . . conducted during the course of the investigation into Plaintiffs' tax liability." Plaintiffs' claim that the exemption does not apply "because the documents were not created for 'a concrete, prospective law enforcement proceeding' at the time the agency decided to withhold the information" is meritless in light of the fact that "the record shows [that the IRS agent] was preparing a case against Plaintiffs. Thus, [the agent's] interview notes and summaries were created in anticipation of an enforcement proceeding, even if a formal action had not yet been filed." The court accepts the IRS's contention that release of the documents would interfere with the proceedings "by revealing the identities of cooperating witnesses, the available evidence, the transactions being investigated, and the weight the agency places on certain information."

• Exemption 7(C): The IRS properly withheld the names of third parties it contacted as part of its investigation of plaintiffs. "While Plaintiffs argue they seek this information merely to know what the government is 'up to,' such an argument is plainly disingenuous given the ongoing enforcement proceedings against Plaintiffs." Conversely, the court finds that the IRS improperly withheld the names of its own employees involved in the investigation of plaintiffs. "The names and titles of government employees are publicly available information under Office of Personnel Management guidelines, unless disclosure of this data would interfere with law enforcement programs or severely inhibit agency effectiveness. The IRS has not met its burden of showing disclosure of the names and titles of employees who worked on Plaintiffs' case would interfere with its investigation. Therefore, there is no privacy interest to consider and this Court will order the IRS to reveal to Plaintiffs the requested names and titles of IRS and DOJ employees."

• Exemption 7(E): The court finds that the IRS properly utilized this exemption to withhold a "memorandum detail[ing] the guidelines for when and how the agency processes IRS summons issued to U.S.-based entities when records are located abroad. Disclosing this information would supply parties who wish to avoid compliance with the summonses with information on how to circumvent them." Similarly, the IRS properly withheld faxed requests for tax returns from an IRS liaison which contain "information related to a secure internal database of confidential agency information, including third-party tax information."

5. Holub v. EOUSA, No. 09-00347 (D.D.C. Mar. 31, 2010) (Walton, J.)

Re: First-party request

• Litigation considerations: The court finds that Federal Rule 12(b)(1) "is not the appropriate vehicle to dismiss the plaintiff's damages claims pled under the FOIA," because "the defendants do not assert that the Court lacks the power to adjudicate claims that arise out of the FOIA." Instead, "they argue that the Court should adopt a construction of the FOIA that would bar recovery for damages under that statute." As a result, "the issue here is not whether the Court has jurisdiction to entertain the plaintiff's damages claim, but rather whether the Court should dismiss the plaintiff's claims because the FOIA prevents the Court from granting the plaintiff the relief that he is seeking. The proper rule for seeking such a dismissal is . . . Federal Rule of Civil Procedure 12(b)(6)." Nevertheless, "the Court does conclude that the defendants are entitled to summary judgment as to all of the claims asserted by the Plaintiff in his Complaint."

6. Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.)

Re: Request for records pertaining to deceased CIA officer

• Adequacy of search: "The CIA has now explained with sufficient detail how it crafted its search of the three locations which comprise the statutory definition of the agency's 'operational files.' Specifically, the CIA listed its initial search terms, described the amount of material returned by the initial search, and the criteria by which it determined whether the records it reviewed were responsive to plaintiff's request." Plaintiff's challenge to the CIA's search "fail[s] because it neglects the explicit statutory definition of 'operational files,' which is limited to the three directorates searched by the CIA. Because the CIA has described the search of its 'operational files' with more than 'relative [] detail [],' in 'good faith,' and in a 'nonconclusory' way, summary judgment in its favor is appropriate on this point." Plaintiff has not challenged the CIA's search of records previously transferred to the National Archives.

Additionally, the CIA has now adequately demonstrated that it searched for, but did not find, certain monthly reports allegedly filed by the subject of the request. "Plaintiff's continued disbelief in the agency's explanation is not enough to create a material issue of fact on this point. He offers 'nothing more than "mere speculation that as yet uncovered documents might exist," which is not enough to "undermine the determination that the agency conducted an adequate search for the requested records."'" Finally, the CIA has now provided the court with an adequate description of its overarching approach to its search in this case. The CIA's new declarations "explain in sufficient detail the agency's searches in response to [plaintiff's] request." In particular, the CIA has now "explained how it searched for all records relating to [the subject]." Thus, plaintiff's objection to the CIA's failure to include two specific search terms is unavailing.


Exemption 1: CIA properly withheld classified material, including the locations of covert CIA installations, names of CIA employees and sources, intelligence methods, and agency cryptonyms. Plaintiff asserts that this information either should not be classified or has been released previously. As to the former, "'little proof or explanation is required beyond a plausible assertion that information is properly classified.'" As to the latter, plaintiff has not been able "'to point to specific information that was previously released and is now withheld.'"


Exemptions 1 & 3/Glomar: The CIA has now adequately explained the basis for its use of a Glomar response to neither confirm nor deny "the CIA's participation in a covert action." In particular, the CIA has detailed the possible damage to foreign relations that could result from acknowledgment of the existence of records pertaining to an agent's participation in covert activities. The CIA has made an exception to this with regard to two covert projects whose existence the CIA has already acknowledged. Plaintiff has failed to support his allegation that the CIA has previously acknowledged participation by the agent in question in two covert operations.

• Exemption 2 ("low" & "high"): CIA's new declarations explain that the records withheld pursuant to "high" 2 contain information on CIA security practices and that "disclosure of any of this information could lead, through a 'mosaic' approach, to circumvention of the CIA's regulations on the security clearance process, pre-travel briefings, and agency background checks." CIA has also now explained that some of its use of Exemption 2 was for information, including "internal employee rating criteria, details of administrative house- and file-keeping, and other personal employee data, [which] falls under the 'trivial' prong of Exemption 2."

• Exemption 3 (National Security Act of 1947 & CIA Act of 1949): "Given the 'special deference' owed to the CIA's affidavit concerning the inclusion of the withheld material within these statutes' coverage, [the CIA] is entitled to summary judgment on its use of [this exemption]."

• Exemption 5 (deliberative process privilege): The CIA's new declarations have provided sufficient information for the court to determine that its use of this privilege was proper. Defendant has now explained that withheld information "included 'recommendations concerning the waiver of certain reinvestigation methods and practices.' Clearly, the CIA's description of this information is sufficient to demonstrate that what was withheld indeed concerned 'pre-decisional' deliberations. . . . Moreover, these kinds of deliberations are precisely the type covered by the deliberative process privilege." Plaintiff's "objection that this information is not protected because its disclosure would not be 'likely in the future to stifle honest and frank communication within the agency' is simply incorrect. . . . [T]he privilege is not intended merely to prevent embarrassment to those who took part in a given deliberation; . . . it is also intended to prevent chilling future government employees from engaging in frank discussions during the deliberative process. Second, [plaintiff] is simply too speculative when he argues that the appearance of the term 'OK' on one of the documents renders it final rather than pre-decisional."

As to other materials withheld under this exemption, "there is more than enough detail for the Court to determine that what was withheld pertained to pre-decisional consideration of [the former agent's] suitability for employment. Because discussion of an employee's suitability is no doubt part of the 'give-and-take of the consultative process,' it is 'deliberative' and thus subject to the privilege."

• Exemption 6: Defendant CIA has now explained the basis for its use of this exemption. "[M]uch of what the CIA withheld was personal data like social security numbers, dates and locations of birth, tax information, addresses, and phone numbers. . . . [T]he consequences to flow from . . . release could be damaging."

7. Roum v. Fenty, No. 09-00381, 2010 WL 1049021 (D.D.C. Mar. 22, 2010) (Kennedy, J.)

Re: First-party request

• Proper party defendant: Plaintiff has not made any allegations against the named defendants concerning FOIA requests he claims to have made to several federal agencies, thus his FOIA claims must be dismissed

WEEK OF APRIL 12

1. Lewis v. DOJ, No. 09-5225, 2010 U.S. App. LEXIS 7367 (D.C. Cir. Apr. 7, 2010) (per curiam) (unpublished disposition)

Re: Third-party request

• Litigation considerations: Plaintiff's motion for counsel is denied. Appellants in civil cases "are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits." Additionally, "the district court did not abuse its discretion when it denied appellant's motion for a continuance in order to obtain discovery."

•Summary affirmance: Defendant's motion for summary affirmance is granted. "The district court properly determined that [one of plaintiff's requests] was beyond the scope of the litigation. Construing appellant's complaint liberally, the complaint does not adequately notify the government that appellant sought to litigate [that request] in the district court, and appellant failed to move to amend his complaint."

• Exemption 7(C): "[T]he district court properly held that if documents exist responsive to [a request plaintiff made for law enforcement records concerning a third party], their release is barred by Exemption 7(C), because the records were compiled for law enforcement purposes and disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . . To counterbalance the privacy interests protected by Exemption 7(C), appellant has failed to 'produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Plaintiff's "unsubstantiated assertions of the government's misconduct regarding supervision of government contractors cannot overcome the presumption of legitimacy accorded to the government's official conduct." Finally, plaintiff "has not met his burden of showing that the requested information is in the public domain."

1. Mattson v. FBI, No. 08-04331, 2010 U.S. Dist. Lexis 45350 (N.D. Cal. Apr. 12, 2010) (Walker, C.J.)

Re: First-party request

• Attorney fees: The court finds that plaintiff is ineligible for an award of attorney fees because he has not satisfied the two threshold standards established by the Ninth Circuit. He "does not present convincing evidence that the filing of this action was reasonably necessary to recover the documents he requested," and "[b]ased on the FBI's responses to his broad FOIA requests, [plaintiff] fails to establish that filing this action was reasonably necessary to recover the additional information he sought."

Furthermore, plaintiff "also fails to present convincing evidence that the filing of this action had a substantial causative effect on the FBI's release of additional documents. [Plaintiff] contends that the mere fact that the FBI released thirty-seven additional responsive pages . . . after this action was filed . . . establishes that he has substantially prevailed. . . . The court finds that the timing of these two events, without more, is insufficient to establish causation." The additional release of documents "could have been the final result of [a partial remand on the FBI's action at the administrative appeal stage] rather than a change in position in response to [plaintiff's] September 2008 lawsuit." Indeed, the "record paints a picture of an agency with a severe backlog of FOIA requests attempting in good faith to respond, albeit belatedly, to [plaintiff's] multiple requests in the order in which they were received." As the ninth circuit has ruled, "'the mere fact that the information sought was not released until after the lawsuit was instituted is insufficient to establish that a complainant has "substantially prevailed."'" Because plaintiff is not eligible for an award of fees, the court need not address his entitlement to an award.

2. Frankenberry v. FBI, No. 08-1565, 2010 U.S. Dist. LEXIS 35078 (M.D. Pa. Apr. 7, 2010) (Caputo, J.) (adoption in part and rejection in part of Magistrate's and Recommendation

Re: Records pertaining to plaintiff's criminal trial

• Litigation considerations: The court conducts a de novo review of the contested portions of the magistrate's report and recommendation, "provided the objections are both timely and specific." However, "the [relevant statutory provision] permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper," and "[u]ncontested portions of the report may be reviewed at a standard determined by the district court." Additionally, the court orders the magistrate to reconsider plaintiff's motion for summary judgment, as it was not filed prematurely, as well as plaintiff's motion for appointment of counsel. The court affirms the magistrate's ruling denying plaintiff's motion for a temporary restraining order against two state agencies, as they are not parties to this action or agents of the parties to this action.

Vaughn Index: The court finds that the FBI's Vaughn index is inadequate. "There is no specific contextual link provided by the agency between the redacted material and the exemption claimed by Defendants. Without more, it is impossible for this Court to engage in a proper de novo review of the exemptions that Defendants seek to use as justification for withholding documents from Plaintiff." The case is remanded to the magistrate for the purpose of developing a complete factual record.

3. Coven v. OPM, No. 07-01831, 2010 WL 1417314 (D. Ariz. Apr. 5, 2010) (Broomfield, J.)

Re:Job vacancy data

• Attorney fees/Costs: As to attorney fees, the court adheres to its prior ruling that, as a pro se litigant, plaintiff is not eligible for an award of fees. As to plaintiff's motion for costs, "[t]here is a complete lack of supporting documentation for plaintiff's cost request. Plaintiff's motion does not include an affidavit or declaration specifying the nature of the litigation costs which he purportedly incurred, and when he incurred those costs. Without such supporting proof, there is no way to determine whether plaintiff's claimed litigation costs were 'reasonably incurred' within the meaning of the relevant statute."

Though the two sides disagree about whether the 2007 FOIA amendments should apply retroactively, this issue is moot because even were the court to accept plaintiff's position that the 2007 FOIA amendments should have retroactive effect, OPM's declaration described that its release to plaintiff was "'due to a change in [its] policy,'" and that "substantially undermines any theory plaintiff might have that the filing of this lawsuit had a substantial causative effect on his ultimate receipt of the requested information." Because the court finds that plaintiff is ineligible for an award of costs, it need not consider his entitlement to such an award.

4. Int'l Counsel Bureau v. CIA, No. 09-2269, 2010 WL 1416739 (D.D.C. Apr. 2, 2010) (Bates, J.)

Re: Records pertaining to U.S. policy regarding Guantanamo Bay, Cuba

Procedural: The court finds that plaintiff has not submitted a proper FOIA request. Plaintiff claims that it submitted its request to the Office of Administration of the Executive Office of the President (EOP) as a means of submitting a request to the entirety of EOP. However, "[i]t is not up to [plaintiff], as a FOIA requester, to craft the administrative rule for submitting FOIA requests seeking records within the Executive Office of the President. There is no established mechanism by which an individual may submit a FOIA request to the Executive Office of the President as a whole - indeed, the Executive Office as a whole is not a discrete agency for purposes of FOIA. . . . Rather, an individual must submit his request directly to the specific agency within the Executive Office of the President that is the target of the request. . . . By seeking information from the entire Executive Office of the President through the Office of Administration, [plaintiff] has failed to comply with the governing regulations."

WEEK OF APRIL 19

1. Robinson v. BOP, No. 09-1443, 2010 WL 1558683 (N.D. Ohio Apr. 19, 2010) (Adams, J.)

Re: Records pertaining to change in plaintiff's security status

• Costs: Plaintiff's request for costs is denied, as it is clear that his lawsuit "did not have a causative effect upon the release of information," since all responsive records were provided to him before he filed his complaint.

2. Monaghan v. FBI, No. 09-02199 (D. Nev. Apr. 19, 2010) (Leen, Mag. J.)

Re: Records pertaining to investigation of 9/11 attacks

• Fee waiver: Plaintiff's motion to supplement the record by introducing materials that were not part of his FOIA request is denied. "The government is correct that judicial review of a FOIA fee waiver decision is limited to the record before the agency. . . . A person requesting a fee waiver bears the initial burden of satisfying the statutory and regulatory standards for a fee waiver."

3. Rojas-Vega v. Cejka, No. 09-2489, 2010 WL 1541369 (S.D. Cal. Apr. 15, 2010) (Benitez, J.)

Re: First-party request

• Proper party defendant: Plaintiff's claims against two individually named defendants are dismissed, as the FOIA presents a right of action only against federal agencies, and not against individuals.

• Litigation considerations: Plaintiff has failed to show that defendants improperly withheld agency records. The records he seeks are from a state court proceeding. Plaintiff has not shown that defendants maintained the documents in the first place, that they were "agency records," or that they were improperly withheld. Similarly, plaintiff has not shown that defendants "were ever in possession" of documents plaintiff seeks from a 2003 FOIA request. Plaintiff has not refuted defendants' statement that "any missing documents or redactions were made prior to the file being received [by defendants]." Plaintiff's claim is dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2).

4. Taitz v. Obama, No. 10-151, 2010 WL 1525030 (D.D.C. Apr. 14, 2010) (Lamberth, C.J.)

Re: Records allegedly pertaining to Social Security numbers of President Obama

• Exhaustion: Plaintiff failed to exhaust her administrative remedies. She filed her complaint prematurely, less than 20 business days after defendant Social Security Administration received her administrative appeal of the agency's response to her initial request.

• Litigation considerations: Plaintiff has not justified her motion for mandamus relief. "'[T]he exclusive nature of the FOIA precludes mandamus relief.'"

WEEK OF APRIL 26

1. Leitner v. United States, No. 09-471, 2010 WL 1634054 (Fed. Cl. Apr. 16, 2010) (Smith, J.)

• Jurisdiction: The United States Court of Federal Claims does not have jurisdiction over FOIA claims.

2. Saldana v. BOP, No. 08-1963, 2010 WL 1656862 (D.D.C. Apr. 27, 2010) (Bates, J.)

Re: First-party request

• Exhaustion: Because plaintiff was found to owe $140 in search fees to defendant EOUSA that he had agreed to pay in connection with a previous FOIA request, under DOJ regulations, "EOUSA is entitled to refuse to do any more work on any requests from [plaintiff] until he has paid the $140 in arrears." Plaintiff's argument "that because he reformulated his request, the agency's failure to respond is illegal" is "frivolous," as plaintiff's reformulations expanded, rather than narrowed his original request.

Similarly, when defendant BOP informed plaintiff of an estimated search fee of $392 associated with his request, he did not modify his request in a way that would reduce the fee estimate. Thus, plaintiff did not exhaust his administrative remedies as to defendant BOP either.

Conversely, because plaintiff did not agree to pay a copying fee for certain USMS records, defendant USMS cannot claim that he has failed to exhaust his administrative remedies. Plaintiff "is free to decline an offer to copy records he does not want." This decision on plaintiff's part "does not deprive him of his right to challenge the adequacy of the search that produced [these records] or to assert challenges with respect to the two other requests he directed to the USMS."

• Procedural: The letters plaintiff sent to the BOP which merely posed questions do not constitute proper FOIA requests, thus BOP was not obligated under the FOIA to respond to them.

• Adequacy of search: Plaintiff's claim that "handwritten notes of an alleged conversation" that would be responsive to his request must exist is meritless. "A challenge to an agency's search because it did not locate documents that may never have been created in the first instance, or may never have been retained as agency records, cannot succeed." Moreover, "an agency is not required to conduct interviews, to search in places where the requested documents are not likely to be found, or to search exhaustively."

Still, neither defendant USMS nor defendant FBI has sufficiently explained to the court the status of missing files that may contain records responsive to plaintiff's requests. Without further explanation, the court cannot rule that the searches these defendants carried out were reasonable. Thus, USMS and FBI are ordered to submit supplemental declarations on this issue.

• Fee waiver: Plaintiff's "conclusory statements [that the responsive records will benefit the general public] do not entitle him to a fee waiver, and the USMS's decision to deny him a waiver will thus be affirmed."

3. Teck Metals, Ltd. v. U.S. Bureau of Indian Affairs, No. 09-290, 2010 WL 1608864 (E.D. Wash. Apr. 16, 2010) (Suko, C.J.)

Re: Documents pertaining to mining operations on Colville Indian Reservation

• Litigation considerations: The court finds that defendant did not timely respond to plaintiffs' request or administrative appeal, as required by the FOIA. Thus, the court grants plaintiffs' motion for declaratory relief. (posted 06/01/2010)

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