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

October 12, 2010

FOIA Post

Summaries of New Decisions -- August 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 August 2010.

WEEK OF AUGUST 2

1. Williams & Connolly LLP v. SEC, No. 09-651, 2010 WL 3025030 (D.D.C. Aug. 4, 2010) (Kollar-Kotelly, J.)

Re: Requests for records pertaining to third parties, an investigation and securities enforcement action, a company, a retainer paid by third party to his attorneys, and communications with SEC Commissioners regarding a proposed settlement agreement

• Exemption 5 (attorney work product and deliberative process privileges)/waiver: The court rejects plaintiff's argument that the SEC "'waived the work product privilege as to [the] entire subject matter of handwritten notes'" that were generated in the course of its investigation of third parties by producing them during the criminal prosecution of plaintiff's client. The government's disclosures, which were required by Federal Rule of Criminal Procedure 16, were made "because they were material to [the client's criminal] case." The court declines to extend waiver "to all handwritten notes made by the SEC regarding meetings with [third parties] and their counsel, regardless of the subject matter of those notes [because] this could result in the disclosure of any aspect of the SEC's investigation and reveal the SEC's litigation strategy." The court adds that "[t]o the extent that Plaintiff claims the SEC has waived its privilege about a specific document that was disclosed [in connection with its client's criminal case], such a disclosure renders Plaintiff's FOIA request for that document moot." Additionally, the court emphasizes that "the disclosures on which Plaintiff's waiver argument is premised were made during a criminal prosecution brought by the Department of Justice, not by the SEC" and, as such, are not considered a waiver of SEC's privilege.

Furthermore, where the records "reflect opinions by agency staff that are predecisional and deliberative in nature," "the SEC's withholding of deliberative material in these handwritten notes may alternatively be justified under the deliberative process privilege." Despite plaintiff's argument to the contrary, "[t]he fact that there are no recipients listed on the Vaughn index does not render them non-deliberative; the courts have held that a document may be deliberative even [when] it is not circulated to other employees."

• Waiver: The court considers plaintiff's objection to one document moot, because plaintiff did not contest SEC's subsequent production of a redacted version of that page, and treats as conceded SEC's assertion of Exemption 7(C) to protect another record that plaintiff did not challenge.

• Exemption 6/segregability: The court finds that "[a]lthough it is certainly plausible that a two-page settlement proposal based on personal financial information may be meaningless with the personal information redacted (as the SEC argues in its briefs), the declarations provided by the agency do not show with reasonable specificity that the nonexempt information in [the] document . . . is inextricably intertwined with exempt portions." The court orders to the SEC either to produce the document in question in redacted form or provide further justifications for withholding it in full.

2. Contreras v. DOJ, No. 08-1801, 2010 WL 3021898 (D.D.C. Aug. 3, 2010) (Collyer, J.)

Re: Request for records related to plaintiff's criminal prosecution

• Litigation considerations/award of costs: The court concludes that plaintiff is not entitled to filing fees or costs from DEA because he has not substantially prevailed under the FOIA. The court finds that plaintiff's initial FOIA request "was immensely broad" in scope and did not contain his full name, which "prevented the agency from finding records that pertained to him." Thus, plaintiff's claim was "insubstantial." The court also notes that "[i]t was not the FOIA complaint that spurred the later release of documents; instead, it was the notice from EOUSA to DEA of Plaintiff's full name that finally allowed for the search and release of relevant documents." Accordingly, the court finds that "there was no causal connection between the suit and the release of documents."

3. Hull v. IRS, No. 09-0024, 2010 WL 3034463 (D.Colo. Aug. 3, 2010) (Shaffer, Mag.)

Re: Request for records pertaining to IRS's handling of a pension provider's submission made under the Voluntary Compliance Resolution Program (VCR Program) to correct errors regarding the calculation of its payments to retirees

• Exemption 3/exhaustion of administrative remedies: As an initial matter, the court finds that information submitted by the pension provider under the IRS's VCR Program constitutes tax return information. Additionally, the court rejects plaintiff's contention that the pension provider is not taxpayer as defined by 26 U.S.C. § 6103, noting that "[t]his argument flies in the face of settled case law: a tax-exempt organization is a taxpayer under [that code]." Because tax return information is protected by 26 U.S.C. § 6103 and plaintiff has not presented a waiver from the taxpayer as provided by IRS regulations, the court finds that "the IRS has not received a perfected claim" and "cannot issue a final ruling." As such, the court concludes that it lacks subject matter jurisdiction because plaintiff 's "administrative remedies are not exhausted because the IRS cannot and did not reach a final decision on an unperfected claim." Moreover, the IRS's letter denying plaintiff's administrative appeal and advising her of the ability to file a complaint in district court on the matter, "did not create subject matter jurisdiction, did not constitute a final decision" and is not binding on the court. Lastly, the court observes that "[e]ven if [it] had subject matter jurisdiction, because the requested information was return information protected from disclosure, the IRS properly withheld the information."

4. Dickstein Shapiro LLP v. DOD, No. 08-226, 2010 WL 3057140 (D.D.C. Aug. 3, 2010) (Stamp, J.)

Re: Request for records pertaining to a deceased Guantanamo Bay detainee

• In camera review: Following its review of agency's declarations and Vaughn indices, the court concludes that in camera review is necessary in order to evaluate the appropriateness of defendants' exemption claims. The court orders the review of a representative sample of five percent of the responsive records with defendants and plaintiff each selecting half of the documents for review. Additionally, the court notes that "[t]he selected documents shall fairly and equally represent the particular FOIA exemptions at issue."

5. Sanders v. Obama, No. 09-912, 2010 WL 3001514 (D.D.C. Aug. 2, 2010) (Collyer, J.)

Re: Request for certain records pertaining to plaintiff's criminal prosecution

• Proper party defendant: "The United States Department of Justice, and not its component parts . . . is the sole proper defendant in this action." Additionally, the court dismisses President Obama, and other third parties as defendants to this action since "FOIA only provides for a cause of action based on the actions/inactions of agencies, not individuals."

• Adequacy of search: The court finds EOUSA conducted an adequate search where plaintiff is unable to point to anything "in the record indicating that the search was not reasonable," or was conducted in bad faith. Rather, "Defendants have produced a detailed affidavit explaining the complete process the agency underwent to locate files responsive to [plaintiff's] request which demonstrates a search reasonably calculated to find responsive documents."

• Exemption 3: The court concludes that EOUSA properly withheld grand jury transcripts pursuant to Exemption 3 under the Federal Rule of Criminal Procedure 6(e). The court notes that "[t]o disclose a transcript would be to disclose the inner workings of the grand jury, which is prohibited." Moreover, the court accords no weight to plaintiff's assertion that he needs the transcripts "to ascertain how the government demonstrated probable cause in order to obtain an indictment in his criminal prosecution."

• Jurisdiction: The court declines to entertain plaintiff's arguments disputing the authenticity of certain documents or inquiring into the existence of probable cause in his criminal case. "This Court's jurisdiction is limited to the FOIA request and, thus, falls short of these collateral concerns and requests made by [plaintiff]."

6. Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.)

Re: Requests for records related to the detention and treatment of detainees

• Adequacy of search: With respect to requests for various records pertaining to detainees, the Court determines that the CIA properly confined its search to the Director of CIA Area (DIR Area) - an area that it deemed likely to contain responsive records. The court notes that the discovery of two additional responsive documents "in an area that the CIA determined would probably not lead to uncovering responsive documents does not render the CIA's search inadequate." However, the court finds that the CIA's search for records concerning the interrogation technique,"attention shake," was too narrow. "Even though Plaintiffs did not use the correct terminology, i.e., 'attention grasp,' the accompanying definition was sufficient to put the CIA on notice of the documents Plaintiffs requested."

Additionally, the court finds that "the CIA adequately searched its records for lists pertaining to erroneous renditions." The plaintiffs' request makes it clear that they "were seeking an actual list, not information pertaining to erroneous renditions," and, accordingly, the court concludes that "[h]aving now learned that no such list exists, Plaintiffs cannot recharacterize their request as one for 'information responsive to the underlying request.'" As to plaintiffs' request for cables concerning the waterboarding of two detainees, the court concludes that CIA's search of "the appropriate databases using different variations of the term 'waterboard'" was adequate. Moreover, "[t]he fact that this search did not produce what Plaintiffs consider an appropriate number of documents is irrelevant to the adequacy inquiry."

• Exemption 3: The court rejects plaintiffs' argument the Director of National Intelligence's (DNI's) "'half-page memorandum' authorizing the withholding is insufficient 'to satisfy [his] independent oversight responsibilities'" as required by National Security Act of 1947 (NSA) as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The court finds that "[b]y drafting the DNI Authorization [authorizing the CIA Director to protect sources and methods in connection with this case], the DNI sufficiently executed his duty 'to protect intelligence sources and methods.'" The court disregards plaintiffs' argument that the definition of "intelligence sources and methods" established by the Supreme Court in CIA v. Sims no longer applies after the IRTPA amendments. Using the Sims analysis, the court holds that "the requested records fit within the statutory exemption [of the NSA] allowing the CIA to withhold records that would disclose 'intelligence sources and methods,' . . . or 'the organization, functions, names, official titles, salaries, or numbers of [CIA] personnel.'"

The court finds that even though the CIA has ceased using enhanced interrogation techniques and foreign detention centers Exemption 3 still applies to the requested records because "'disclosure of the [information] reasonably could be expected to result in damage to national security.'" Additionally, the court holds that "because the records at issue fall under the coverage of Exemption 3, the CIA is permitted to withhold their disclosure regardless of the alleged illegality of the practices contained therein."

• Exemption 1: The court finds that information properly withheld under Exemption 3 is also appropriately withheld pursuant to Exemption 1 because the CIA's declarations "contain 'sufficient detail to forge the logical connection between information [withheld] and [Exemption 1].'" Based on its review of the classified version of the CIA's declarations, the court determines that the assertion of Exemption 1 was appropriate because disclosure "would pose a significant risk to national security." Additionally, to the extent some general information concerning the CIA's enhanced interrogation techniques and rendition programs is publicly available, the court finds that "the information contained in the withheld records are more detailed than the information that already exists in the public domain and would seriously damage national security if released." With respect to plaintiffs' contention that further disclosures are not likely to harm foreign relations, the court finds that "Plaintiffs' recitations of countries that have launched investigations [into their own involvement with the CIA's practices], . . . does not overcome the substantial deference the court must afford the agency in matters of national security." Lastly, the court disregards plaintiffs' unsupported assertion that the CIA classified records in order to conceal allegedly illegal techniques. Instead, the court concludes that "the agency's justification for classification [is] both 'logical and plausible [and finds] no evidence that even arguably suggests bad faith.'"

• Exemptions 1 & 3/Glomar: The court dismisses plaintiffs' arguments that the government waived its ability to assert Glomar in connection with Exemption 3, finding that "the public disclosures never acknowledge the existence or nonexistence of operational cables relating to the approval of the use of [enhanced interrogation techniques] as to [two detainees]." Regarding various communications between the CIA and Yemen, the court determines that "an official disclosure by the Yemeni government is not equivalent to an official disclosure by the CIA." Similarly, the court finds the CIA properly asserted the Glomar response in connection with Exemption 1 to refrain from providing official acknowledgment of information which is not public and would harm national security if released.

• Exemption 2: The court concludes that the CIA provided insufficient detail to support its withholdings under "low 2" to protect "administrative, routing, and handling notations" where the declaration "merely offers one conclusory paragraph." However, the court notes that "most, if not all," of this information is covered by Exemptions 1 and 3.

• Exemption 5 (deliberative process, attorney client, attorney work-product & presidential communication privileges): The court finds that the CIA properly invoked the deliberative process privilege to withhold notations made on correspondence with Congress, because "Exemption 5 is not invoked to withhold the letter itself (which is withheld pursuant to Exemptions 1 and 3), but to withhold the handwritten notes from the reviewing official who was commenting on the letter received from the member of Congress." The court also concludes that the assertion of "Exemption 5, standing alone" would not protect a deliberations "from foreign-liaison to CIA attorney" and "from CIA Executive Director to Member of Congress" because they would not meet the intra- or inter-agency threshold of the exemption. With respect to the other records for which Exemption 5 was invoked, including draft documents, the court finds that the CIA's submissions "detail how the withheld documents were prepared to assist [agency] decisionmaking on [ ] specific issue[s]."

Regarding the CIA's assertion of the attorney-client privilege, the court determines that the description provided in the Vaughn index for some of the documents "are conclusory and lack sufficient detail to merit withholding." However, other entries "show that these documents reflect confidential communications or legal advice." The court directs the CIA to prepare a supplemental Vaughn index for certain documents for which the attorney-client privilege is not sufficiently justified and that are not covered by other exemptions.

The court concludes that the CIA's descriptions for the majority of documents withheld pursuant to the attorney work-product privilege is "too general." However, the deficiencies in the CIA's submissions "proves to be inconsequential" because many of the documents are properly withheld in full under other exemptions.

Regarding documents for which the presidential communications privilege was invoked, the "Court finds that all twenty documents reflect or memorialize communications between senior presidential advisers and other United States government officials and are therefore properly withheld."

• Exemptions 6 & 7(C): After conducting the relevant privacy and public interest analysis, the court finds that, pursuant to Exemptions 6 and 7(C), the CIA properly withheld "the names and email addresses of DOD personnel below the office-director level, or officers below the rank of Colonel; the names of OLC line attorneys, persons interviewed by the CIA OIG, and one detainee; and personally identifying information such as dates of birth, social security numbers, and biographical information."

• Exemption 7(A): Upon reviewing its public and classified declarations, the court concluded that the CIA properly invoked Exemption 7(A) because a "law enforcement proceeding was pending,""records have been compiled for a law enforcement purposes" in connection with CIA OIG investigations, and disclosure of information could reasonably be expected to interfere with those ongoing investigations.

• Exemption 7(D): The CIA properly asserted Exemption 7(D) to protect witness statements made during the course of the CIA OIG investigation. "It is clear from the declarations and Vaughn index entries that the statements would be kept confidential except to the extent necessary 'to fulfill the responsibilities of OIG.'" The court comments that these statements would also be protected by the Machin privilege under Exemption 5 even though they are not connected with air crash safety investigations.

• Segregability: The court finds that "the law is clear that the reasonable segregation requirement of FOIA does not require the CIA 'to commit significant time and resources to a task that would yield a product with little, if any, informational value.'"

7. Pa. Dep't of Public Welfare v. Sebelius, No. 09-808, 2010 WL 2976119 (W.D.Pa. July 28, 2010) (Standish, J.)

Re: Allegation that HHS's Departmental Appeals Board (DAB) does not maintain a current index of its final decisions and orders in violation of the FOIA, 5 U.S.C. § 552(a)(2)

• Litigation considerations: The court finds that plaintiff "is not entitled to discovery concerning the search capabilities of HHS's website for DAB decisions pending a ruling" on whether plaintiff has standing to bring this claim.

WEEK OF AUGUST 9

1. Peavey v. Holder, No. 09-5389, 2010 WL 3155823 (D.C. Cir. Aug. 9, 2010) (per curiam)

Re: Requests for military and medical records

• Litigation considerations/summary affirmance: The court grants agencies' motion for summary affirmance where "[a]ppellant has not demonstrated that any agency 'improperly withheld' a record within its possession" and "the district court correctly concluded that the agencies conducted searches reasonably calculated to uncover all relevant documents."

1. Truesdale v. DOJ, No. 08-1862, 2010 WL 3199939 (D.D.C. Aug. 13, 2010) (Friedman, J.)

Re: Request for "a copy of all documents showing the Attorney General has established in the [DOJ] a repository of records of [plaintiff's] 21 U.S.C. § 848 conviction, and all records that determine the validity of said conviction"

• Reasonably described/referral of request: The court declines to consider whether plaintiff's request reasonably describes the records sought where plaintiff alleges that his request was intended for the Office of the United States Attorney General, rather than the recipient of the request, BOP. Plaintiff asserts that "the description set forth in his request [which was submitted to the Justice Management Division's Mail Referral Unit] 'is sufficient for the United States Attorney General or a professional employee that work[s] in the [Attorney General's Office] who is familiar with the subject area of the request to locate the records with a reasonable amount of effort.'" The court finds that DOJ failed to "explain the route by which plaintiff's . . . letter, apparently sent to the Attorney General, made its way to the BOP or to indicate whether the Referral Unit forwarded the request to the BOP and/or another DOJ component." The court notes that "[a]ssuming that the DOJ Referral Unit staff did refer plaintiff's request to the BOP, defendant does not articulate its interpretation of the request or otherwise explain why the BOP was deemed the component best able to process the request, whether it also sent the request to any other component, and if not, why not." Accordingly, "[t]he Court cannot determine on the current record whether the DOJ has improperly withheld records responsive to [plaintiff's request]."

2. Charles v. Office of the Armed Forces Med. Exam'r, No. 09-0199, 2010 WL 3191789 (D.D.C. Aug. 13, 2010) (Urbina, J.)

Re: Request for various records related to the effectiveness of body armor worn by U.S. soldiers serving in Iraq and Afghanistan

• Adequacy of search: As an initial matter, the court finds that plaintiff did not concede that the defendant's search for documents in response to his narrowed request was adequate. "By disputing the defendants' claim that they possess no responsive documents, the plaintiff is, in effect, arguing that the defendants' search was inadequate." Furthermore, the court finds that defendants improperly determined that certain records related to body armor were not responsive "based on a criterion that the plaintiff did not articulate" in his request. The court concludes that "[t]o allow an agency to restrict the number of documents that it deems responsive during a FOIA search based on its interpretation of the plaintiff's purpose in making the request constitutes an unreasonable limitation and is inconsistent with the spirit and purpose of the FOIA." With respect to the request for redacted autopsy reports containing information concerning "fatal bullet wounds in a service member's torso area and/or body armor failures," the court finds that defendants impermissibly "plac[ed] a unilateral limitation on the plaintiff's narrowed request by focusing their search only on documents containing responsive statements." The court directs the defendants to file "a supplemental briefing on the issue of whether any FOIA exemptions apply to the redacted versions of the documents sought under the plaintiff's narrowed request" or to otherwise resolve the issue.

3. Richardson v. DOJ, No. 09-1916, 2010 WL 3191796 (D.D.C. Aug. 13, 2010) (Huvelle, J.)

Re: Request for records related to plaintiff's criminal case

• Proper party defendants: The court dismisses two named individuals as parties to the action.

• Adequacy of search: Based on a supporting declaration from the individual who conducted the search, the court determines that EOUSA's search was adequate even though it did not initially locate any records responsive to plaintiff's request. The court notes that "[t]he timing of an agency's release of records responsive to a FOIA request does not determine whether the agency has complied with its obligations under the FOIA."

• Exemption 3: The court finds that EOUSA properly withheld grand jury transcripts in full pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) because "'[a] grand jury transcript itself epitomizes the sensitive details of the proceedings that Congress sought to keep protected'" and releasing such documents would "'disclose the inner workings of the grand jury.'"

• Exemption 7/threshold: The court finds that, with the exception of a third party's medical records located in plaintiff's criminal prosecution file, EOUSA's declarations established that the responsive records were compiled for a law enforcement purpose. Additionally, the FBI demonstrated, and plaintiff did not dispute, that the two pages of records referred by EOUSA to the FBI also satisfied the threshold of Exemption 7.

• Application of Brady/Jencks Act: The court rejects plaintiff's argument that he is entitled "to the release of all the information he requested because this information would have been available to him during the criminal proceedings either as Brady or Jencks Act . . . material." The court states that "[t]he FOIA confers no such entitlement" and that "[n]either a requester's reason for making his request nor his interest in the requested records is relevant in this context." Additionally, the court notes that "plaintiff's argument is misplaced 'because a Brady violation is a matter appropriately addressed to the court that sentenced [plaintiff], not through a FOIA action."

• Exemption 7(C): Reasoning that redaction of third party information in law enforcement files has been routinely upheld, the court concludes that EOUSA properly withheld identifying personal information of "federal special agents, officers of the Metropolitan Police Department ("MPD"), law enforcement technicians, an Assistant United States Attorney, eyewitnesses to an attempted murder, and other third parties." Additionally, the court finds that the FBI's use of Glomar response with Exemption 7(C) is appropriate where "although 'the FBI acknowledged the existence of responsive information'[], it 'is constrained in the amount of specificity it is able to provide in [its] public declaration regarding an investigative file of a third party.'" The court observes that "absent a showing that release of information about the third parties mentioned in the FBI's records furthers the public interest in the FBI's performance of its duties, their privacy interests prevail."

• Exemption 7(D): The court determines that EOUSA properly invoked Exemption 7(D) to protect "the identities of and information provided by eyewitnesses" "to the attempted murder committed by plaintiff [because they] provided information to the police under an implied assurance of confidentiality." Similarly, the court concludes that EOUSA properly withheld a police report which contained markings limiting its dissemination and that was transmitted by the MPD to the United States Attorney's Office, noting that "[t]he term 'source' for purposes of Exemption 7(D) includes . . . state and local law enforcement agencies" as well as individuals.

• Exemption 6: The court finds that EOUSA properly withheld medical records of a third party pursuant to Exemption 6 where there is no "dispute that this [individual] has a recognized privacy interest in avoiding disclosure of personal information." Moreover, the court rejects plaintiff's "proposed concession" that EOUSA redact personally identifying information, but release information about "the discription [sic] of the wounds" of the third party.

• Segregability: Upon review of EOUSA's declarations and Vaughn index, the court "finds that these submissions adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt."

4. Feinman v. FBI, No. 09-2047, 2010 WL 3191787 (D.D.C. Aug. 13, 2010) (Huvelle, J.)

Re: Requests for information regarding former Panamanian general Manuel Noriega; and the FBI's investigation into 1987 rendition of Jordanian flight hijacker Fawaz Younis

• Litigation considerations/class action certification: The court denies plaintiff's motion for certification pursuant to Federal Rule of Civil Procedure 23(b)(2) "in order secure injunctive and declaratory relief" for a class of persons who submitted FOIA requests to the FBI and EOUSA for information about third party foreign nationals and "'(1) were informed that processing of their respective requests could not begin until they had provided a signed privacy waiver or proof of death; and/or (2) were not provided with notice of their right to administratively appeal the response.'" Although the court finds that class relief may be available under the FOIA, it ultimately determines that plaintiff failed to show under Rule 23(a) that "'the class is so numerous that joinder of all the members is impracticable.'" The court finds that plaintiff's estimate that there are 200 affected parties, "lacks a reasonable basis." "Although [plaintiff] cites to agency data regarding the total number of FOIA requests made and the total number of requests that were denied under Exemption 6, it does not follow from these numbers that there are at least 200 potential class members."

• Litigation considerations/amending complaint: The court grants plaintiff leave to amend the complaint to add a new claim "that expressly alleges that defendants have violated FOIA through their policies of 'permitting FOIA personnel to categorically refuse to process searches for responsive records pertaining to third party foreign nationals absent proof of death, a signed privacy waiver or a demonstration that the public interest in disclosure outweighs the privacy interests of the particular foreign national.'" The court rejects defendants' argument the proposed amendment would be futile because "the facts of this case do not present the justifications for equitable relief upon which the D.C. Circuit relied in Payne Enterprises, Inc. v. United States." The court "is not yet persuaded that the particular facts of Payne define the only possible circumstances under which equitable relief may be justified in a FOIA case." Accordingly, the court finds that "[p]laintiff's proposed allegations 'present [ ] sufficient factual matter, accepted as true to 'state a claim to relief that is plausible on its face.'"

5. United States v. Medley, Nos. 04-304, 04-480, 2010 WL 3220659 (S.D. Tex. Aug. 13, 2010) (Jack, J.)

Re: Request for plaintiff's "case file in its entirety"

• Exhaustion of administrative remedies: The court denies plaintiff's motion to obtain a copy of his case file pursuant to the FOIA. "[T]o the extent [plaintiff] is seeking information under the FOIA from the U.S. Attorney used in the prosecution of the federal charges against him, his request under the FOIA is not properly before this Court because there is no evidence that [plaintiff] has requested the documentation from the U.S. Attorney and been refused."

6. Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.)

Re: Request for information regarding criminal investigation of two third parties for hunting and transporting a bear in violation of the Lacey Act

• Exemptions 6 & 7(C): The court finds that the public interest in disclosure outweighs any privacy interests with respect to "three video recordings of targets of an agency investigation that were created by those targets and obtained during the investigation." The court observes that the privacy interests of the two targets of the investigation in these particular records are "quite attenuated," because "[u]nlike surveillance tapes that capture a person's image without their consent, the videos at issue here were created by [the two individuals] expressly for distribution to the public" "for later use on television or a music video." The court rejects defendants' argument that the subjects' "privacy interests are substantial because the release of the videos could reasonably be expected to lead to embarrassment or harassment." Rather, the court concludes that any privacy interest in the videos is "minimal" and notes that "[t]o the extent that Defendants seek to protect [these individuals] from opprobrium based on their unlawful conduct, such an invasion of privacy is not necessarily unwarranted." The court also dismisses defendants' assertion that portions of the videos showing the interior of the family home of one of the targets would represent an unwarranted invasion of the privacy of family members. The court comments that "Defendants have produced no evidence that the family members (who do not appear in the videos) objected to this footage," expresses that the family members were "presumably aware" of the purpose for which the videos were being recorded, and notes that the contents of one of the videos appeared on national television.

In terms of the public interest, the court finds that "unlike criminal rap sheets and other personal data that happens to be warehoused by the government, . . . the videos in question were gathered by Defendants in the course of investigating federal crimes and were relied on by the government in making the decision to charge [the two individuals] with violations of federal law" and "[t]herefore, the videos will assist the public in learning 'what the Government is up to' with respect to prosecutions for Lacey Act violations." In response to defendants' assertion that the release of the videos will not shed light on their own agencies' conduct, the court states that "the public interest in disclosure under FOIA is not limited to the agency processing the request for records; the public has a right to know what their 'government' is up to, not just what a particular agency is up to."

With respect to images allegedly depicting the individuals, the court determines that although the public interests involved are same as those implicated by the videos, the privacy interests "are quite different," because "there is no similar evidence in the record that establishes that the photographs at issue were ever intended to be distributed publicly." The court rejects plaintiff's contention that the targets of the investigation have diminished privacy interests in the photographs because similar images exist in the public domain, finding that "[a]lthough [they] have a lesser privacy interest in photographs that they voluntarily took, . . . the public interest in showing their faces does not outweigh their privacy interests in protecting their own images." Regarding investigatory records containing redacted names, the court finds that the targets of the investigation "had no involvement in their creation, and it certainly cannot be said that they waived any privacy rights in those records." Accordingly, the court holds that defendants properly withheld the photographs and the redacted investigatory documents.

• Exemptions 3, 6 & 7(C): Defendants properly invoked Exemptions 3, 6 and 7(C) to protect a Presentence Investigation Report prepared by the judge who sentenced the two third parties. The court concludes that the defendants are justified in withholding the report under Exemption 3 pursuant to Federal Rule of Criminal Procedure 32(c)(3)(A) and 18 U.S.C. § 4208(c) to the extent that it reveals "confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties." Additionally, the court determines that use of Exemptions 6 and 7(C) were appropriate because the privacy interest involved is "substantial" and, conversely, that "there is not a significant public interest in disclosure."

• Exemption 7(E): The court finds that defendants adequately justified their use of Exemption 7(E) to withhold certain files that "reveal specific details of surveillance techniques, including equipment used and location and timing of use, the revelation of which could compromise [the United States Fish and Wildlife Service's] ability to conduct future investigations at various National Wildlife Refuges."

• Segregability: The court concludes that defendants have released all nonexempt segregable portions where the declaration indicates that the declarant "personally reviewed each of the documents . . . and conducted a thorough segregability analysis" and the Vaughn index "provides detailed descriptions of each document and portions that are withheld either in part or in whole."

7. Wilson v. DOT, No. 09-1748, 2010 WL 3184300 (D.D.C. Aug. 11, 2010) (Collyer, J.)

Re: Requests for information related to employee surveys and for records pertaining to harassment, discrimination, and Equal Employment Opportunity (EEO) complaints directed against the Office of the Chief Financial Officer (OCFO)

• Exhaustion of administrative remedies: Plaintiff failed to exhaust his administrative remedies with respect to two requests because he did not appeal to the appropriate "DOT official for processing appeals" as required by the agency's FOIA regulations. The court holds that plaintiff's complaints lodged with several DOT offices and his request for mediation were insufficient to exhaust his administrative remedies.

• Adequacy of search/reasonably described: The court finds that the agency's search was not unreasonably limited where "[b]ecause of the ambiguity of the request, the [Federal Highway Administration (FHWA)] sought clarification by proposing a reasonable interpretation of its scope" and plaintiff agreed to that interpretation. Additionally, the court finds that DOT's declaration adequately explains why the survey comments submitted by employees of OCFO cannot be "culled out from the hundreds of comments submitted by all other FHWA employees." The court notes that "the records that [plaintiff] requests simply do not exist in the format that he requests them" and that "[i]t would be 'unduly burdensome,' if not impossible for the FHWA to identify the records responsive to [his] request." Additionally, the court concludes that FHWA's interpretation of plaintiff's FOIA request for "all EEO complaints" as "seeking formal complaints, instead of informal records such as counseling logs" was reasonable. To the extent the FWHA processed EEO counseling logs, the court notes that plaintiff "has not introduced any evidence to contradict DOT's assertion that [] redacted information [related to pre-complaint informal counseling] falls outside the scope of his request."

• Referral: Despite plaintiff's claim that FHWA maintains control of certain responsive EEO complaints, the court finds that FHWA's "referral to the Departmental Office of Civil Rights was consistent with the DOT FOIA regulations, which permit DOT agencies to 'refer the request (or relevant portion thereof) for decision by a Federal agency that originated or is substantially concerned with the records.'"

• Exemption 6: The court concludes that FHWA properly asserted Exemption 6 to protect the identities of EEO complainants "[b]ecause EEO charges often involve matters of a sensitive nature, an EEO complainant has a significant privacy interest" and that "the public interest in disclosure [of that person's name] is 'not substantial.'"

8. Prison Legal News v. EOUSA, No. 08-1055, 2010 WL 3170824 (D. Col. Aug. 10, 2010) (Krieger, J.)

Re: Request for videos of perpetrators and autopsy photos of victim used in the prosecution of a federal death penalty case

• Attorney fees & costs: As an initial matter, the court notes that "the parties do not dispute that Prison Legal News is eligible for an award of attorney fees because they obtained relief through a court order." Based on the four-factor analysis, the court determines that plaintiff is also entitled to attorney fees "[b]ecause three of the four factors weigh in favor of an award." In terms of the public benefit, the court find that, despite the fact that "the population to which this information is likely to be disseminated is relatively small," "information about how the BOP responded to the murder may inform the public as to its effectiveness in maintaining security and order inside [a] prison." Regarding the commercial benefit to the plaintiff and its interest in the requested records, the court concludes that "Prison Legal News is a non-profit organization that does not seek to profit or benefit from the disclosure nor to use the information for its own advancement other than to pursue its mission of providing information about the prison system." However, the court notes that "[t]he fourth factor, whether the government had a reasonable basis in law for withholding the records, weighs against an award of attorney fees" where EOUSA "withheld the entirety of [a] video and [] photographs from disclosure based on two FOIA exemptions dealing with privacy considerations."

The court grants plaintiff's request for forty percent of the total fees incurred in litigating this action - a figure that it represented as commensurate with amount of time it spent litigating the claims on which it prevailed. The court dismisses EOUSA's argument that "Prison Legal News's success was not qualitatively large enough to justify an award based on the hours expended on the case." Instead, the court observes that "the disclosure ordered did not result from the wholesale adoption of either party's position" and, accordingly, grants the award requested by plaintiff because there is "no reasoned way to correlate the fees and costs incurred . . . to the particular information disclosed or not disclosed."

The court significantly reduces plaintiff's award with respect to its request for fees associated with litigating the attorney fee issue. The court reasons that "no substantial time was needed compile or review [plaintiff's work] records," "the legal issues associated with a request for legal fees are neither novel or complicated," and "the attorney fee award request is disproportionate to the entire amount of attorney fees incurred for the entire matter."

WEEK OF AUGUST 16

1. Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.)

Re: Requests for records related to a telephone intercept authorization related to plaintiff; complaints and investigations concerning an Assistant United States Attorney and DEA agents; third parties; and various records pertaining to plaintiff

• Proper party defendant: The court dismisses the District Court for the Middle District of Florida and an individual as defendants to this action.

• Exhaustion of administrative remedies: The court concludes that plaintiff failed to exhaust his administrative remedies with respect to three requests made to DEA. The court rejects plaintiff's arguments that his failure to exhaust "'presented no risk of undermining the purposes and policies underlying the exhaustion requirement.'" As to the three requests for which DEA provided no substantive response until after the filing of the lawsuit, the court finds "it is not reasonable to expect the plaintiff to exhaust his administrative remedies by filing an appeal . . . and the law does not require him to do so." Additionally, the court determines that plaintiff failed to exhaust his remedies with DOJ's Civil Division because he did not submit a proper request. "The plaintiff's [Federal Tort Claims Act] claim does not constitute a proper FOIA request because it neither demands the disclosure of agency records nor describes the records sought."

• Adequacy of search: The court concludes that DEA's search was adequate where DEA explained the reason for searching certain databases, described the search terms used and the results of those searches, and plaintiff "fail[ed] to identify the defect or defects in the searches." However, the court finds that neither EOUSA nor the Office of Professional Responsibility (OPR) "conducted a search reasonably calculated to discover records responsive to the plaintiff's FOIA requests" because little detail was provided about the nature of their searches.

• Exemption 2: DEA did not adequately justify its assertion of Exemption 2 where the Vaughn index indicates that it was invoked "to withhold codes assigned to confidential informants, . . . yet the declaration does not refer to Exemption 2 or otherwise explain the agency's decision to withhold information under [it]." The court adds that "[i]t is unclear whether the DEA relies solely on Exemption 2 to withhold confidential informant codes, or whether Exemption 7(D) may also be a basis for non-disclosure."

• Exemption 3: The court concludes that DEA did not provide a sufficient basis for invoking Exemption 3 in connection with 18 U.S.C. § 2517 to withhold wiretap intercept information. The court notes that while "[i]t is true that information pertaining to wiretaps may be withheld under Exemption 3," DEA "neither explains that the agency had no discretion on the decision to withhold this information nor sets forth the particular criteria applied in reaching its decision to withhold certain information in the draft affidavit."

• Exemption 6: Pursuant to Exemption 6, DEA properly withheld the names of DEA personnel identified in a letter sent by OPR to plaintiff pursuant to Exemption 6. The court comments that although DEA did not sufficiently demonstrate that this letter qualified under the threshold of Exemption 7, it "certainly meets its threshold obligation under Exemption 6, as the information at issue applies to particular individuals." The court finds that "any personal interest the plaintiff may have in the identities of the DEA Special Agents referenced in the letter from OPR does not qualify as a public interest favoring disclosure, and 'it is well established that an individual's personal interest in challenging his criminal conviction is not a public interest under FOIA because it reveals little or nothing about an agency's own conduct.'" Additionally, the court notes that "the so-called evidence on which [plaintiff] relies to establish agency misconduct hardly leads a reasonable person to conclude that the DEA and its agents acted improperly."

• Exemption 7/threshold: The court finds that "'criminal investigative records ... compiled during criminal law enforcement investigations of the plaintiff and several third-parties'" referred by EOUSA to DEA qualify as information "compiled for law enforcement purposes within the scope of Exemption 7."

• Exemption 7(C)/Glomar: The court determines that DEA properly invoked the Glomar response in connection with Exemption 7(C) with regard to acknowledging the existence of any investigative records pertaining to two named DEA agents. The court notes that "[i]ndividuals' privacy interests are substantial given the nature of law enforcement records" and plaintiff "does not . . . argue the existence of a public interest in disclosure." Furthermore, "[i]f the DEA were to confirm the existence of [those] investigative records[,] . . . the DEA necessarily reveals the information its Glomar response is intended to shield."

WEEK OF AUGUST 23

1. Reynolds v. Att'y Gen. of the United States, No. 09-3675, 2010 WL 3370280 (2d Cir. Aug. 26, 2010) (unpublished disposition)

Re: First-party request and fee waiver request

• Fee waiver: The court grants the agency's motion for summary affirmance, concluding that "the District Court correctly upheld the denial of [plaintiff's] fee waiver request by the [DOJ]." The court notes that the record shows that plaintiff "argued only that he should be granted the waiver because he could not afford the fees, and . . . that he did not mention his academic status or interest in publishing a scholarly article until he filed his complaint in the District Court."

• Exhaustion: The court determines, that based on its conclusion with respect to the fee waiver request, plaintiff failed to exhaust his administrative remedies because "he has not yet paid the required fees or narrowed his request to the first two-hours of searching and the first 100 pages of records, which the DOJ's regulations would allow him to receive for free." The court also comments that plaintiff's "argument about the adequacy of the search is also unexhausted because there is no basis in the record upon which any court could evaluate the search at this time."

• Litigation considerations: Based on its review of the record, the court concludes that "the District Court did not abuse its discretion in denying [plaintiff's] reconsideration motion, as the motion largely reiterated the allegations in the complaint and did not demonstrate that the District Court had overlooked any facts or controlling authority that might alter its decision granting summary judgment."

1. Sioux Honey Assoc. v. United States, No. 09-00141, 2010 WL 3377449 (Ct. Int'l Trade Aug. 27, 2010) (Stanceu, J.)

Re: Claim regarding United States Customs and Border Protection's (CBP's) alleged failure to publish guidelines on the exercise of its authority to cancel customs bonds and charges

• Litigation consideration: The court dismisses plaintiff's claim that CBP's "cancellations of [certain shipper] bonds and charges against bonds were unlawful because [the agency] failed to satisfy the requirement in the [FOIA] that an agency publish in the Federal Register, for the guidance of the public, its rules of procedure and substantive rules of general applicability." The court finds that "the assumed existence of such unpublished procedures is not a basis on which any bond or charge cancellations could be held to be invalid" and that "nothing in the [FOIA] states or suggests [such a] conclusion."

2. Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.)

Re: Request for various records pertaining to plaintiff's criminal case

• Adequacy of search: The court concludes that EOUSA's search for responsive records was reasonable where its search of a computerized docketing and case management system and of "criminal case records stored at the Federal Records Center yielded the case file for [plaintiff's] criminal case." The court observed that "[n]otwithstanding plaintiff's understandable impatience and exasperation with the EOUSA's delay in responding to his FOIA request, the plaintiff points to no evidence in the record to undermine the credibility of the defendant's supporting affidavits regarding the scope and method of the search conducted by the [United States Attorney's Office for the District of Columbia]." Similarly, the court finds that the FBI conducted an adequate search of its Central Records System for both "main" and "reference" files pertaining to plaintiff. With respect to plaintiff's claim that the FBI's and EOUSA's declarations do not "indicate[] that the declarant[s] personally conducted a search, or . . . [had] personal knowledge of the handling his FOIA requests," the court accepts the agencies' affidavits because "each declarant has stated his or her familiarity with the component's procedures for handling FOIA and Privacy Act requests, and each declaration is based on the declarant's review of the component's official files."

• Exemption 2: The court determines that the FBI properly asserted Exemption 2 to protect "'the secure website address of the FBI's [internal] Law Enforcement Online ("LEO") computer system,'" the disclosure of which "'could impede the FBI's effectiveness."

• Exemption 7/threshold: The court concludes that the responsive records originating with FBI and EOUSA "readily meet the threshold for Exemption 7 status" because they were compiled in connection with either plaintiff's criminal investigation or his prosecution.

• Exemption 7/public domain doctrine: The court rejects plaintiff's contention that "all the records withheld under Exemption 7 must be released 'because the records have been released into the public domain through judicial proceedings and media outlets.'" The court finds that plaintiff's submission of his own affidavit "does not suffice . . . to meet his 'initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.'"

• Exemptions 6 & 7(C): The court finds that defendants properly withheld identifying information related to federal, state and local law enforcement officers and support staff, where disclosure would create a risk of hostility or harassment. The court notes that redaction of such information "under circumstances similar to those described here has routinely been upheld." Similarly, the court finds that, for individuals merely mentioned in law enforcement records, "Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure" and it further notes that here there is no countervailing public interest in disclosure. Because the court analyzed the withheld information under Exemption 7(C), it declines to "determine whether this same information properly has been withheld under Exemption 6."

• Exemption 7(D): EOUSA properly invoked Exemption 7(D) to protect the identities of and "'information provided by eyewitnesses to the murder for which [the plaintiff] was prosecuted' in circumstances under 'which the assurance of confidentiality could be reasonably inferred.'" In comparison with other instances when courts have permitted the withholding of the identities and the information provided by confidential sources "where the subject of the investigation is known to have committed serious or violent offenses and where the sources are at risk of retaliation, harassment or bodily harm," the court finds "[i]t is equally reasonable in this case to conclude that [the witnesses] provided information to law enforcement with an expectation that their identities would not be disclosed." Additionally, the court determines that the FBI properly invoked Exemption 7(D) to protect "'confidential source material'" provided under an express assurance of confidentiality "'contained in the [Violent Criminal Apprehension Program (ViCAP)] file, as well as in a reference file concerning a Racketeering Enterprise Investigation . . . of gang activity.'"

• Exemption 7(E): The court holds the FBI properly asserted Exemption 7(E) to protect "information in the ViCAP file [that] would 'reveal the characteristics and data [related to crimes of violence] . . . collected and tracked using this system [which] could allow offenders to circumvent discovery'" "' by modifying or avoiding certain behavior/activities connected with his/her criminal conduct.'" The court notes that "absent a showing by the plaintiff that rebuts the declarant's assertion that ViCAP's techniques are not well known to the public, the Court presumes that the declaration is made in good faith and therefore accepts the agency's representation on this point."

• Segregability: The court denies plaintiff's request for an in camera review where it finds that "defendant's supporting declarations and exhibits . . . adequately 'specify in detail which portions of the document[s] are disclosable and which are allegedly exempt."

• Litigation considerations: "[B]ecause the defendant has not established that the BOP has fulfilled its obligations under the FOIA, its motion is denied in part without prejudice."

3. Uhuru v. U.S. Parole Comm'n, No. 09-0566, 2010 WL 3377710 (D.D.C. Aug. 24, 2010) (Leon, J.)

Re: Request for records related to plaintiff's parole eligibility

• Litigation considerations: The court determines that plaintiff is not entitled to judgment in his favor based on solely the U.S. Parole Commission's (USPC's) delay in releasing records responsive to his FOIA request. The court finds that "[w]here, as here, plaintiff concedes that he has received all the records he requested, it cannot be said that the USPC improperly withheld agency records."

• Litigation considerations/award of costs: The court concludes that plaintiff is not entitled to costs from USPC because he has not substantially prevailed under the FOIA. The court reasons that "[b]ecause the USPC released the requested records after plaintiff filed his lawsuit, its actions reasonably can be considered 'a voluntary or unilateral change in position by the agency.'" The court then considered whether plaintiff's claim was "insubstantial." The court first determines that since the requested records pertain to plaintiff's parole hearing, "it appears that the public derives no benefit from this case and that the plaintiff derives no commercial benefit." However, the court finds that notwithstanding its delay in responding, "USPC did not withhold records in this case." Based on the foregoing factors, "[t]he Court concludes that plaintiff's claim is insubstantial." Lastly, the court further notes that "to the extent that plaintiff demands an award of costs as a sanction for the USPC's delay in responding to this FOIA request, the FOIA does not recognize such a claim, . . . and plaintiff is not entitled to costs as a remedy for the USPC's untimeliness."

WEEK OF AUGUST 30

1. Fox News Network, LLC v. U.S. Dep't of the Treasury, No. 08-11009, 2010 U.S. Dist. LEXIS 94451 (S.D.N.Y. Sept. 2010) (Maas, Mag. J.)

Re: Requests for various records related to the federal government's intervention to prevent the financial collapse of American Insurance Group (AIG) and Citigroup, Inc.

• Adequacy of search: The court finds that although plaintiff "questions why Treasury's search terms varied from office to office, there is no requirement that an agency use identical search terms in all of its offices" and that "Treasury has explained how the particular search terms were selected to target [each] office's involvement with AIG, Citigroup, and [Treasury Asset Relief Program (TARP)]." With respect to plaintiff's objection to the individualized searches conducted in one office, the court finds that "FOIA does not require an office to use electronic search terms" and "[i]n the absence of any such duty, or a showing that the individualized searches were somehow defective," the "procedure employed by [that office] was 'reasonably calculated' to find all responsive documents." With respect to plaintiff's assertion that certain search terms should have been used, the court concludes that "Treasury has provided logical explanations for each of the decisions it made as to the search terms to be used and how to conduct the searches." Additionally Treasury is not required to produce a responsive document which post-dated the commencement of its search. The court finds that "utilizing the date the search commences as a cut-off date does not unduly prejudice the requesting party, because it may easily file a follow-up request for documents created after the date the search commenced."

• Exemption 5 (attorney-client, deliberative process and common interest privileges): The court finds that certain documents "exchanged between or among" Treasury and the New York Federal Reserve Bank (NYFRB), Morgan Stanley, Pricewaterhouse Coopers (PwC), Ernst and Young (E&Y) satisfy the "intra-agency" threshold of Exemption 5 in accordance with the "consultant corollary." The court concludes that NYFRB "functioned 'enough like' Treasury's own personnel during [certain loan] transactions 'to justify calling their communications 'intra-agency.'" Additionally, "PwC, E&Y, and Morgan Stanley . . . functioned as consultants in the more traditional sense; indeed, [plaintiff] does not seriously challenge their status as consultants to NYFRB." However, the court concludes that two email threads, in which "NYFRB is stating a preference for how . . . the transfer of funds to NYFRB [] should be conducted," do not meet the Exemption 5 threshold because "NYFRB is not acting as a consultant, but, rather, was functioning as a party to the transaction negotiating with Treasury."

Treasury properly invoked the deliberative process privilege to protect "internal drafts of transactional documents" and documents reflecting "internal discussion as to the transaction terms." The court finds that "the decisions that Treasury made regarding the use of TARP monies and the structure of the transactions with AIG and Citigroup clearly are policy decisions" and, to the extent that they were created before the transaction was finalized and that they reflect internal deliberations, they can be considered predecisional and deliberative. Additionally, the court rejects plaintiff's claim that factual material can be segregated from those draft documents, finding that there is "no way to separate" that information and "[t]o the extent that the drafts contain language that did not exist in the final transactional documents, disclosure would reveal options that the agency did not select."

With regard to certain press releases, the court concludes that "[a]lthough opinions and recommendations regarding press inquiries do not qualify as deliberations about substantive policy decisions, disclosure of the various drafts of the press release at issue here would reveal how Treasury's deliberations with respect to the underlying substantive policy progressed over the course of several days." However, the court finds that a draft of the Secretary's remarks does not qualify for protection under the deliberative process privilege because the "actual document . . . does not appear to contain any suggested revisions that would be disclosed." Treasury properly withheld draft Congressional briefing materials which "do[] not merely reflect [its] decisions in relation to 'massaging' the agency's public image," but rather "reflects internal agency deliberation on matters of substantive policy prior to the Secretary's public announcement of those decisions." Conversely, the court finds that portions of a draft letter from the Secretary to Congressional leaders "[are] not predecisional (because [they] explain[] decisions previously made) and do[] not reflect deliberation on substantive policy-oriented matters." The deliberative process privilege is likewise found to be inapplicable to emails between Treasury and outside counsel related to public relations issues and press inquiries, as well as to a document providing guidance to Treasury staff on how to respond to press inquiries.

The court finds that memos involving "analyses and assessments of the financial condition of AIG and the effect that its collapse would have on the financial system" and "the impact of Treasury's proposed intervention" which "predate Treasury's final decision to invest in AIG" as well as "emails commenting on [those] memos" are predecisional and deliberative. Additionally, documents related to the drafting and revision of agency guidelines and a proposed interim final rule were properly withheld because they "clearly fall[] within the traditional scope of the deliberative process privilege." However, the court finds that the deliberative process privilege is not available for an "AIG implementation timeline" the purpose of which "is to ensure that everyone at Treasury is on the same page with respect to the administrative details of the fast-moving AIG transaction," or for an "redacted email [that] consists of a factual recitation from a Treasury official, relaying information obtained from NYFRB," or for conference call agendas.

The court concludes that "email threads [that] relate to the final terms of the AIG trust instrument,""draft determination memoranda" regarding financial institution's eligibility for TARP funding, and discussion materials prepared by NYFRB and Morgan Stanley for Treasury all qualify for protection because they predate agency's final action and are deliberative in nature. The court holds similarly for emails discussing an AIG executive's compensation and those "discuss[ing] the creation of a data request to be sent by Treasury to Citigroup in order to collect information about Citigroup's compensation plans." Other emails were ordered disclosed when the court found that Treasury had not met its burden to show that they were deliberative and/or predecisional.

• Attorney-client privilege: The court determines that various email threads summarizing an attachment, containing factual predictions, discussing factual questions and the handling of press inquiries, relaying non-substantive communications are not protected by the attorney-client privilege because they are not for the purpose of seeking or furnishing legal advice. By contrast, documents containing legal advice related to "the propriety of AIG's lobbying policies in light of its request for government assistance," "legal analysis of edits suggested by AIG's counsel," and legal consequences or impacts related to certain courses of action were properly protected by the attorney-client privilege.

• "Common Interest" doctrine: The court notes that the common interest doctrine applies with respect to one email containing legal advice to NYFRB, which was copied to Treasury attorney, because "NYFRB and Treasury shared a common legal interest in having AIG make a proper disclosure to the SEC." As a consequence, "the involvement of . . . a third party to the attorney-client relationship [] does not destroy the privilege because the communications are covered by the common interest doctrine."

• Exemption 4: Impairment: The court affirms Treasury's redactions of "bank account information of the entities that received TARP funds under Exemption 4," because "Treasury needs to be able to maintain the confidentiality of sensitive banking records to ensure that it will continue to have an effective working relationship with banks and other similar entities." Obtained from a person: The court holds that Exemption 4 does not protect the name of a commercial bank which applied for, but ultimately, withdrew its application for [Capital Purchase Program (CPP)] funding. Because "the record was generated by the agency, not the bank," it failed to meet the "obtained from a person" threshold.

The court finds that Exemption 4 properly applies to a proposal submitted by BONY to provide services in connection with TARP, because "the 'pricing structure' in the BONY proposal contains proprietary information about BONY, not just a net price or price list." With regard to "documents reflecting the negotiations between Treasury and AIG regarding compensation," the court rejects Treasury's arguments that AIG would suffer competitive harm from "inaccurate speculation about new compensation restrictions" or that disclosure of such information "would allow AIG's competitors to 'poach' key AIG employees." Similarly, the court concludes that, with respect to documents reflecting compensation negotiations between Treasury and Citigroup, "Citigroup also fails to explain adequately how competitors' insights into [its] 'strategies, objectives and approaches regarding compensation of its senior executives,' . . . would give its competitors an unfair advantage."

The court orders the disclosure of documents concerning AIG's negotiations with Treasury. Although "AIG's bottom line, i.e., the favorable terms it gave Treasury, might be helpful to those seeking to purchase AIG assets, [] those terms have already been made public" and AIG has failed to explain "how the disclosure of additional information . . . would put [it] at a disadvantage in future negotiations with non-governmental entities." The court also finds that Citigroup has not established a likelihood of substantial competitive harm with respect to "Citigroup employees' waivers of rights relating to their personal compensation." The court notes that "unless Citigroup expects to require government funding again, there is no reason why its compensation information will become public in the future, and thus no reason why potential recruits should fear the release of their compensation information to the public." Lastly, the court finds that Citigroup "has demonstrated a sufficiently likely competitive injury" with respect to a draft presentation containing "actual data from Citigroup's operations," such as "'the composition of a Citigroup asset pool, its loan loss reserves, its risk classifications, its asset types, and the originating business and geographical location of those assets.'"

2. Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.)

Re: First-party request

• Exemption 7(F): Based on its in camera review, the court concludes that U.S. Marshals Service (USMS) properly invoked Exemption 7(F) to protect names and identifying information of third parties as well as "'information provided by a third-party individual that could pose a potential threat to a judge.'"

• Exemption 7(C): USMS properly redacted pursuant to Exemption 7(C) portions of investigators' interviews with third parties, including "the location of those meeting, and the substance of the interviews, which are sufficiently specific that they could reveal the identities of the interviewees."

• Exemptions 2 (high) & 7(E): The court determines, based on its in camera inspection, that USMS properly withheld the names of investigative databases, noting that it had ruled in an earlier opinion in connection with this case that disclosure "would reveal how the USMS uses databases and conducts investigations, thereby allowing fugitives to circumvent investigative procedures." USMS properly asserted Exemption 7(E) to withhold its methods for conducting threat assessments because disclosure "'would allow other threatening parties to bypass specific investigative channels and would ultimately allow such threateners to circumvent the law and evade detection and develop countermeasures to USMS protective arrangements.'" Likewise, USMS was correct to withhold "information that reveals how the USMS's threat assessment procedures were applied to [plaintiff]," because "disclosing the use of these internal procedures would allow others to circumvent them." The court also notes that the withholding of an internal website address pursuant to Exemption 2 was appropriate.

• Segregability: The court notes that for some records USMS "did not withhold phrases around [information identifying third parties], such as the date on which an event occurred and that someone 'attempted to contact' someone else 'by telephone,' and, accordingly, reasons that other redacted documents "could have been similarly treated." The court also orders the release of plaintiff's name, and "identical information" that had been released in other places on the released pages.

3. Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.)

Re: Requests for records pertaining to several individuals, including Ronald Reagan, and several organizations

• Adequacy of search: The court concludes that the FBI did not conduct an adequate search for seven "summary memoranda," which were explicitly referenced in the subject's file. The court rejects the FBI's explanation that summary pages only "'contain references to other files but do not include substantial information concerning the subject matter' in question." The court reasons that an "FBI agent's decision to index or not to index [such files in the FBI's Central Records System], . . . does not inform the FOIA analysis" and that "the FBI cannot use the make-up of its own internal database as a shield to avoid FOIA mandates." In response to the FBI's assertion that a search for such memoranda would be unduly burdensome, the court notes that the agency "provides no specifics regarding the burden other than [that] legal conclusion."

Noting that it is cognizant that "the additional burden and costs imposed by [] reprocessing are not trivial," the court orders the FBI to "reprocess thirty (30) random files labeled non-responsive and release the files it withheld because it had insufficient information to definitively determine that the file was responsive." The court notes that since "these records were retrieved during a search based on plaintiff's request because the FBI had at one point determined that the record was relevant to the search terms," "[i]t strains credulity for the FBI to now argue that its agents index records to a search term even if the record bears no reference to the indexed search term."

Lastly, the court rules that although the FBI's decision not to search "every database in its possession does not render their search unreasonable, [it] must provide some basis for the court to evaluate whether its decision to not search additional databases was reasonable" by "supply[ing] a declaration listing any database which may contain responsive records that the FBI did not search" and an explanation as to "the burden and expense of searching such databases."

• Litigation considerations/adequacy of declarant: The court dismisses plaintiff's contention that FBI's declarant is inadequate where the declarant supervises FOIA searches and "personally reviewed search notes, search slips, and other documentation regarding search results generated by FBI headquarters as well as the field offices in response to [plaintiff's] requests."

• Litigation considerations: The court rejects plaintiff's claim that the FBI did not abide by processing standards established in an earlier settlement agreement, finding that "in light of the 1996 agreement's explicit limiting terms, [plaintiff's] bare and self-serving allegations are insufficient to require the FBI to reprocess the records at issue here in accordance with that agreement." The court also finds that given that the FBI has agreed to reprocess certain files, which "contain approximately half of the errors identified by [plaintiff]," it is not required at this time to reprocess all of the responsive records as plaintiff requests.

• Exemption 7/threshold & 7(C): The court applies the "rational nexus" test to determine whether the records at issue qualify as information compiled for a law enforcement purpose pursuant to Exemption 7(C). With respect to a records pertaining to Ronald Reagan's political career, the court holds that "since there exists no rational nexus between [identifying] information [related to an acquaintance of Reagan] and a legitimate law enforcement purpose, it must be released." The court also finds that with regard to "all documents dated post-1957, the investigation of an individual's mere membership in, or association with, the Communist Party or other purportedly subversive political movement, is not by itself a legitimate law enforcement purpose." Accordingly, the court order the release of the names certain individuals who were not associated with subversive organizations or the associated with the "violent overthrow of the government." Similarly, the court finds that certain public relations and politically-related records and non-law enforcement memos do not meet the Exemption 7 threshold.

• Exemption 3: The FBI failed to justify its withholding under Exemption 3 in connection with 26 U.S.C. § 6103(a)(1) where it only made the conclusory assertion that certain "information was properly exempted at the request of the [IRS] because the 'information was collected by the IRS with respect to tax return and personal information of third parties.'" The court orders the FBI to submit a supplemental declaration to provide additional detail to demonstrate that the IRS has properly directed the FBI to withhold the tax return information at issue.

• Exemption 6: With respect to the FBI's withholdings pursuant to Exemption 6, the court finds that privacy interests of persons mentioned in 1974 memoranda, which voices the concerns of a retired admiral regarding a film that is critical of the military, "is significantly diminished due to the passage of time, as well as the lack of contact information regarding these individuals." The court also notes that "many of these people thrust themselves into the public arena." Further, the court concludes that there is an overriding public interest in disclosure because the names will shed light on the FBI's investigations into "so-called unpatriotic works of art and charges of communism." Employing a similar rationale, the court orders the disclosure of the identity of individual for whom the FBI requested Reagan's assistance in "distanc[ing] himself from the son of a known figure in organized crime," as well as "the identity of the individual possessing blank United States commissions who may have provided a commission to Reagan." The court concludes that "privacy interest of the target of a 1944 investigation is essentially non-existent because the statute of limitations for the fraud charge has long passed" and that "this information will shed light on how the FBI conducted its operations with respect to people with whom the agency associated, namely Reagan." Lastly, the court finds that "the identity of the employees that investigated allegations regarding homosexuals in Reagan's staff must also be disclosed because the identities will help the public understand the extent of agency wrongdoing, if any, associated with preparing documents for Reagan that were 'not a matter within the investigative jurisdiction of the FBI.'"

4. Taylor Energy Co. v. U.S. Dep't of the Interior, No. 09-1029, 2010 WL 3429470 (D.D.C. Aug. 31, 2010) (Huvelle, J.)

Re: Reverse FOIA seeking to enjoin Minerals and Management Service (MMS) from releasing financial information contained in a trust agreement related to an offshore oil and gas production facility and requests for trust disbursements submitted by plaintiff

• Reverse FOIA/adequacy of administrative record: The court finds that MMS's written decision to fully disclose a trust agreement is "arbitrary and capricious" because its "failure to properly characterize the evidence upon which it relied prevents the Court from concluding that the agency 'examine[d] the relevant data,' as is necessary before the Court can determine whether there was 'a rationale connection between the facts found and the choice made.'" The court notes that MMS's decision "was the first time that 'the question of public availability was apparently brought to [plaintiff]'s attention,' and thus the agency 'ruled on a ground of which [plaintiff] had no prior notice and to which it had had no opportunity to respond." Accordingly, the court vacates MMS's decision, "den[ies] defendants' motion for summary judgment as to the Trust Agreement, and remand[s] the issue to the agency for further consideration and supplementation of the record as necessary on the issue of waiver." The court further notes that "[i]n the event that the agency agrees with plaintiff that no waiver has occurred, it must then address the merits of plaintiff's Exemption 4 arguments."

• Procedural: MMS improperly relied on a failure of the submitter to comply with the agency's submitter-notice regulations, which were a part of the agency's FOIA regulations to justify disclosure of disbursement request letters when there was no FOIA request at issue. The court concludes that "[t]here is no apparent reason why [a straightforward administrative] challenge [involving the Trade Secrets Act] would be governed by the agency's FOIA regulations." In the absence of a sufficient record, the court "remand[s] the issue to the agency so it can determine whether the letters may be disclosed in the absence of a FOIA request" as well as "determine the proper legal standard for disclosure."

5. Watanmaker v. Clark, No. 09-3877, 2010 U.S. Dist. LEXIS 89958 (E.D.N.Y. Aug. 31, 2010) (Bianco, J.)

Re: Requests submitted to state agencies

• Jurisdiction: The court dismisses plaintiff's FOIA claim because "the FOIA requests submitted by plaintiff were all served on state agencies," not federal agencies, and, "[t]herefore, FOIA does not apply."

6. Brown v. DOJ, No. 08-0821, 2010 WL 3398866 (D.D.C. Aug. 30, 2010) (Huvelle, J.)

Re: Request for records related to plaintiff and third parties, including government witnesses in his criminal case

• Proper-party defendant: The court dismisses claims against two individuals and an office within DOJ. Plaintiff concedes that "'[the Office of Information Policy] is an improper party to this action'" and the court notes that "'[i]ndividual federal officials are not proper defendants in a FOIA action.'"

• Adequacy of search: The court rejects plaintiff's argument that the FBI's failure to bates-stamp all of the responsive documents renders its production inadequate. The court notes that "[t]here is no requirement in [the FOIA] that documents released by an agency in response to a FOIA request be bates-stamped or otherwise numbered." Despite plaintiff's arguments to the contrary, the court finds that the FBI sufficiently described its search where it "explains the databases searched, the terms used, where the search was conducted," as well as "the nature of its [electronic surveillance database] and notes that that database [] was searched pursuant to plaintiff's request." Additionally, the court notes that plaintiff's requests for records documenting the search "that do not already exist but that would need to be created by the FBI-are 'inconsistent with Supreme Court precedent holding that the FOIA "does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created or retained.'"

Vaughn Index: The court concludes that the FBI's sampling procedure was appropriate where the declaration affirms that it "'used periodic sampling, selecting every 10th page from the 1,754 pages for a total of 175 pages.'" Plaintiff's mere speculation that the sample documents were not randomly selected "is inadequate to overcome the presumption of good faith accorded to [the FBI's] declaration." The court also approves the FBI's methodology whereby when it "pulled a page that had already been released in full to plaintiff . . . it pulled the nearest subsequent page that did include such redactions." The court finds that "[a]lthough the narrative format of the FBI's Vaughn index differs from the table created by the EOUSA, 'it is the function, not the form, of the index that is important.'"

The court declines to grant plaintiff's request for "printouts of the 'indices of the [FBI's] record systems.'" The court concludes that to the extent that plaintiff is referenced in the indices, "such references would have been located in the FBI's search of documents concerning him, because all of those indices were searched."

• Segregability: The court finds the defendants released all reasonably segregable, nonexempt portions of responsive material. Moreover, "[p]laintiff's argument that the FBI should have released plaintiff's name, cities, and file numbers on documents that are otherwise exempt from production is unavailing; defendant need not expend substantial time and resources to 'yield a product with little, if any, informational value.'"

7. Goodhart v. HHS, No. 09-3299, 2010 U.S. Dist. LEXIS 90012 (N.D. Ga. Aug. 30, 2010) (Thrash, J.)

Re: Requests for records related to certain disputed Medicare overpayments

• Litigation considerations: The court rejects plaintiff's argument that the court should not consider the agency's declaration, because Federal Rule of Civil Procedure 56 "explicitly permits parties to file supporting affidavits." Additionally, the court "finds no support" for plaintiff's argument that "Exemption 5 is not available to an agency during litigation." The court observes that "[t]o the contrary, courts have regularly applied this exemption to documents during civil discovery."

8. Knittel v. IRS, No. 07-1213 (W.D. Ten. Aug. 27, 2010) (Breen, J.)

Re: Requests for "IRS identification document," pocket commissions and specific IRS forms related to certain employees, and Delegation of Authority Order(s)

• Adequacy of search: The court concludes that the IRS's declaration, which describes the searches and explains the reason why certain records do not exist, "is made in good faith, is not conclusory, is relatively detailed, and is adequate to sustain the Defendant's burden or establishing it conducted a reasonable search." The court rejects plaintiff's unsupported "pejorative characterizations of Defendant's employees, searches and responses" and notes that the IRS's delay in responding "necessarily follows from the broad nature of Plaintiff's requests." Additionally, the court observes that the IRS's "continued production of [publicly available] documents and responses, even when not required by law, attest to Defendant's good faith."

• Attorney fees/costs: Plaintiff's request for costs is denied on the basis that he "has not substantially prevailed" in this action. (posted 10/12/2010)

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