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

February 19, 2010

FOIA Post

Summaries of New Decisions -- January 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 January 2010.

WEEK OF DECEMBER 28 - JANUARY 1

1. Wilner v. Nat'l Sec. Agency, No. 08-4726, 2009 WL 5158035 (2d Cir. Dec. 30, 2009) (Cabranes, J.)

Re: Request for records showing that government has intercepted plaintiffs' communications related to representation of their detainee clients

• Exemption 3 (Glomar): As an initial matter, the court joins other "Circuits in holding that 'an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception.'" With respect to this specific case, the court concludes that the government may invoke a Glomar response in connection with the Terrorist Surveillance Program (TSP), a program whose existence the government has publicly acknowledged. "The record is clear that, although the general existence of the TSP has been officially acknowledged, the specific methods used, targets of surveillance, and information obtained through the program have not been disclosed." The court confines its analysis to the applicability of the agency's use of the Glomar response in connection with Exemption 3. The court adopts the "thorough analysis" of the district court, which found that Section 6 of the National Security Agency Act of 1959 constitutes a nondisclosure statute for the purposes of Exemption 3 and that NSA's affidavits are sufficiently detailed to demonstrate that the records sought are exempted from disclosure under that law. Moreover, NSA was justified in utilizing the Glomar response in association with that Exemption 3 statute because "the very nature of [plaintiff's] request - which seeks records concerning whether the communications were monitored by the NSA - establishes that any response would reveal 'information with respect to the activities' of the NSA." Despite plaintiffs' arguments to the contrary, the court finds no evidence that "even arguably suggests bad faith on the part of the NSA, or that the NSA provided a Glomar response to plaintiffs' request for the purpose of concealing illegal or unconstitutional actions."

• In camera review: The court rejects plaintiffs' request that it "conduct an ex parte and in camera review of any records (assuming they exist) to provide a more 'probing' judicial review." The court holds that in camera inspection is not warranted in this case because NSA's affidavits "sufficiently allege the necessity of Glomar response." Additionally, the court notes that "a 'searching review' of the kind suggested by plaintiffs would not provide plaintiffs with the information they seek - knowledge of whether they were or are being surveilled in their interactions with their detainee clients."

• Litigation considerations: Plaintiffs' challenge to the legality of the underlying TSP is beyond the scope of this FOIA action.

1. Physicians for Human Rights v. DOD, No. 08-273, 2009 WL 5125893 (D.D.C. Dec. 30, 2009) (Bennett, J.)

Re: Request for records related to a mass gravesite in Afghanistan where Taliban fighters are allegedly buried

• Adequacy of search: Plaintiff contested the adequacy of the defendants' searches on the grounds that they: "(1) failed to contact certain individuals who were alleged to have made statements regarding government investigations into the underlying events; (2) did not conduct a search for responsive documents in Afghanistan; and (3) used flawed search terms and conducted a search that was too limited in its temporal scope." The court examines the three search declarations identified as deficient by plaintiff as well as the agencies' supplemental submissions to those declarations. The court finds that the search affidavit submitted by the Office of the Deputy Assistant Secretary of Defense for Central Asia is "sufficiently detailed" and, accordingly, it is not necessary for that Office to provide "a supplemental declaration in support of the search." Likewise, the two declarations submitted by operations command offices "thoroughly describe[d] the procedures, locations, and people involved in the searches." The declarations provided by DIA "provided significant detail on the nature of the search conducted within the directorates' offices - as much as could be reasonably expected in light of Defendants' legitimate concern in preventing the disclosure of classified information." Moreover, despite plaintiff's arguments to the contrary, the court concludes that the defendants' failure to contact a certain DOD official does not cast doubt on the adequacy of their searches. The court distinguishes the instant case from other cases where agencies did not comply with their search obligations by failing to contact certain individuals. Here, the search "is not focused upon the recovery of any particular document" and there is no indication that the DOD official in question "has ever borne a 'close nexus' to any known and sought-after document." Additionally, the court finds that plaintiff's request to interview a certain DOD official extends "beyond the purview of the FOIA and its focus upon the disclosure of documents." With respect to the geographic scope of the defendants' search, the court concludes that it was "not unreasonable under the circumstances." The defendants conducted searches for both electronic and physical records and contacted "those offices and directorates that were reasonably expected to contain certain documents," which, in turn, searched for responsive records in Afghanistan and "for documents referencing relevant geographic locations in Afghanistan." The court notes that plaintiff's FOIA request did not specify particular provinces in Afghanistan to be searched and that "there are no positive indications in the record that any requested documents were located in any provinces that were not searched." Examining the search terms that were used by the defendants, the court finds that "defendants properly exercised their discretion in crafting lists of search terms that they believed to be reasonably tailored to uncover documents responsive to the FOIA request." The court, however, finds that temporal scope of the search conducted by the U.S. Central Command (CENTCOM) "too narrow" and that it "did not comport with [plaintiff's] FOIA petition" which not only sought records related to the underlying events, but also any subsequent investigations. Accordingly, CENTCOM is directed to conduct an additional search with an expanded date range.

• Exemption 1: The Joint Staff did not adequately justify its use of Exemption 1. The defendant's "submissions provide the most basic identifying information on the withheld portions, they do not describe their content, or explain in specific, non-generic terms - why it fits within the scope of Exemption 1" and, instead, "merely recite the exact language of [Executive Order] 12,958 as a justification for nondisclosure." The court concludes that the declaration provided by U.S. Special Operations Command (USSOCOM) is adequately detailed to support the use of Exemptions 1 and 6. "The redactions in the USSOCOM documents appear to be targeted and precise, and the responsive portions provide the reviewer with some of the surrounding context." DIA's affidavit does not adequately justify its assertion of Exemption 1 where it "merely characterizes [the redactions] as 'non-segerable [sic] classified information' that relates to 'intelligence sources and methods.'" Lastly, the court determines that the Department of State properly invoked Exemption 1 to withhold "top secret" information related "directly to intelligence activities, sources and methods, and foreign relations and activities of the United States." The Court finds that Department of State's declaration "supplies the necessary identifying information and descriptions of the withheld material" and that "the excised material appears to be relatively targeted, and the un-redacted responsive material provides sufficient context to serve as a basis for review."

• Exemption 3: DIA did not provide sufficient detail to justify its assertion of a certain Exemption 3 statute to withhold documents related to agency personnel and its organizational structure.

• Exemption 6: DOD properly redacted names of individuals pursuant to Exemption 6. The court finds that plaintiff did not assert "any public benefit that would result from the discovery of [the withheld] names; nor [was the court] able to divine any meaningful public interest in obtaining 'information about private citizens that is accumulated in various governmental files but that reveals nothing about the agency's own conduct.'"

• In camera review: The court orders two defendants, the Joint Staff and DIA, to submit certain records that it identified for an in camera review where their declarations did not adequately support their claims of exemption.

2. Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.)

Re: Request for records pertaining to permit requests and supporting documentation for development on two islands in the Magothy River in Maryland

• Declarations/Vaughn Index: The court finds that agency's declarations are inadequate because they merely contain categorical descriptions of the withheld records and the harms that would be occasioned by disclosure. Even when the declarations are taken together with the Vaughn index, "they cannot sustain the Corps' withholdings." The Vaughn index "provides some information regarding the withheld records - such as dates and brief descriptions of the records - but it does not describe how the asserted exemptions apply to the withheld documents." The court holds that the agency must provide supplemental submissions if it wishes to maintain its exemption claims.

• Exemption 5 (deliberative process privilege): The court concludes that the agency has not sufficiently justified its assertion of Exemption 5. The agency's declaration, which states "only that '[r]ecords relating to the deliberative process privilege within the Corps or between the Corps and the Maryland Department of Environment were flagged for potential withholding under Exemption 5,'" "provides no basis for concluding that the withheld information is either predecesional or deliberative."

• Exemption 7(A): The agency did not adequately justify its assertion of Exemption 7(A). In particular, the court notes although the agency asserted that the release of certain information would jeopardize an ongoing enforcement action, it failed to "explain how its investigation will be impaired by the release of the information that the targets of the investigation already possess."

• Segregability: The agency's affidavits do not demonstrate that it has satisfied its obligation to release all reasonably segregable information from the withheld records. If the agency continues to withhold information, "it must supply the Court with the necessary tools to perform a review of the segregability [which] includes not only a detailed justification of the reasons for withholding the information, but also a description of the document from which the information was redacted."

3. Brown v. FBI, No. 07-1931, 2009 WL 5102713 (D.D.C. Dec. 28, 2009) (Roberts, J.)

Re: Requests for records pertaining to plaintiff, information related to book authored by plaintiff and for any investigation into that book; asks various "federal questions"

• Exhaustion of administrative remedies: The court finds that plaintiff's request for records pertaining to himself "did not constitute a proper FOIA request and did not trigger an agency's obligation to respond" where he sent his request to an office that is not specified in the agency's FOIA regulations and is not an FBI field office. However, notwithstanding the fact that plaintiff's request was improper, the FBI conducted a search, responded to plaintiff's request and provided him with administrative appeal rights. The court notes that plaintiff contends that he never received the FBI's response and that he submitted an appeal challenging the FBI's alleged non-response to his request. Acknowledging miscommunication between the parties, the court nevertheless concludes that because plaintiff "never properly initiated, let alone exhausted, the FOIA administrative process, he is not entitled to maintain a civil action" with respect to the FBI request. The court also finds that plaintiff failed to exhaust his administrative remedies with regard to a request sent to BOP. First, plaintiff submitted his request "to an office of the BOP which did not accept FOIA requests, [and therefore] he had not even initiated this FOIA request at the time he sent his appeal letter." Second, plaintiff failed to submit an administrative appeal of BOP's response before filing the instant civil action.

• Adequacy of search: The court rejects plaintiff's contention that the FBI located records responsive to his FOIA request regarding an investigation of his book "Tyrant Wanted," finding that "there is nothing in the record to confirm that the released documents came from FBI headquarters in response to his FOIA request." The court also notes that plaintiff "presents no facts to put in dispute the FBI headquarter's response that its search located no documents responsive to his request, which is described in [its declaration] in detailed and nonconclusory terms."

• Litigation considerations: Plaintiff "has no right of action under the FOIA for an agency's non-response to [what he characterizes as] 'federal questions.'" Accordingly, the court dismisses these claims for lack of subject matter jurisdiction.

Vaughn Index: Plaintiff is not entitled to a Vaughn index where "two of the three FOIA requests did not result in any documents being released" and the two pages released in part in response to the third request were addressed in BOP's declaration, which "provides an explanation and justification for redacting the visitors' names from the visitor log" at a prison.

4. Jones v. Mason, No. 09-3012, 2009 WL 5125206 (D.S.C. Dec. 28, 2009) (Norton, J.) (adoption of magistrate's recommendation)

• Litigation considerations: The court dismisses any FOIA claim that plaintiff potentially raises, because he "seeks relief against local government employees," not a federal agency.

WEEK OF JANUARY 4

1. Hunton & Williams v. DOJ, No. 08-1635, 2010 WL 9947 (4th Cir. Jan. 4, 2010) (Wilkinson, J.) (dissenting opinion by Michael, J.)

Re: Communications between DOJ and a telecommunications company related to a patent infringement lawsuit

• Exemption 5 (threshold & common interest doctrine): The court rejects plaintiff's argument that defendant cannot meet the Exemption 5 threshold at all due to the fact that it exchanged documents with Research In Motion (RIM), a private party. "The common interest doctrine permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims. . . . Under [plaintiff's] reading, however, the decision of a party, here the government, to partner with others in the conduct of litigation would somehow subject that party to the loss of its most basic civil discovery privileges. . . . This is a sweeping view, and its impact on the government's ability to conduct complex and multi-faceted litigation would be staggering. We have made clear that the government was entitled . . . to a level playing field. . . . And there is nothing in FOIA that prevents the government from drawing confidential counsel from the private sector." Indeed, when the government communicates with other parties "with whom it shares a singular and unitary litigation interest," "[i]t is that convergence of interests that entitles the government to communicate within the terms of the Exemption." Moreover, "[i]t would eviscerate the meaning of Exemption 5 if we were to read it to exclude communications between federal agencies and their litigation partners where those communications advance an interest that is both common and, in the government's considered view, critical to the public's interest." Furthermore, "[i]t does not matter that RIM was motivated by the commercial benefit that would accrue to it if it succeeded in opposing the BlackBerry injunction while the government was motivated by concern for the public interest. What matters is that there was a unity of interest in preserving a non-disruptive pattern of governmental BlackBerry use." Plaintiff argues that the common interest doctrine should not apply because the doctrine requires the presence of an adverse party. Even if true, "there was ample evidence to support the district court's conclusion that [plaintiff's client] was, in fact, adverse to DOJ and RIM." The court disagrees with the district court's finding as to when the common interest doctrine became applicable, which is the point at which documents exchanged between RIM and DOJ are protectible. "[M]ere 'indicia' of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has been formed." This avoids "[t]he danger . . . that mere lobbying efforts, as opposed to joint litigation strategy, will be removed from FOIA's reach." The court finds that "[w]hile agreement need not assume a particular form, an agreement there must be." In making a determination as to when an agreement was reached, as opposed to an outside party's lobbying of the government, "it is significant if communications were initiated by the private party, if the bulk of the communications came from a private party, and if there are sparse indications that the government had come to terms with the public interest at stake in the case." Furthermore, "[t]he fact that DOJ later concluded it shared RIM's interest does not protect communications between the two before that decision was made." On remand, the district court is directed to make a determination as to when a common interest agreement was reached, applying the principles set out in this opinion.

1. Or. Natural Desert Ass'n v. Locke, No. 05-210, 2010 U.S. Dist. LEXIS 323 (D. Or. Jan. 5, 2010) (King, J.)

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

• Attorney fees: It is not disputed that plaintiff is eligible for fees for work performed on Claim Four of its suit. However, the court finds that interpreting the Ninth Circuit's recent ruling in this case "compels a conclusion that when calculating attorney fees, the hours [plaintiff] spent on any claim other than successful Claim Four were not reasonable." Since plaintiff was only successful on one of its four claims, the court awards it one-fourth of the fees it seeks for time spent on its initial claims. As to plaintiff's appeal, plaintiff was successful in one aspect of its appeal, so it is eligible for an award of fees, though the amount suggested by plaintiff is hereby reduced by 60 percent. As to plaintiff's claim for a fee award for time spent on the remand of the instant case from the Ninth Circuit (on what is called "fees-on-fees work"), the court "did not accept [plaintiff's] argument in the litigation on remand, but . . . also refused defendants' request to award no fees." Plaintiff will be awarded one-fourth of the fees it seeks for work on this part of the case.

2. Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation)

Re: Request for records pertaining to airplane flights around Portland, Oregon

• Litigation considerations: Plaintiff's motion for summary judgment addresses the allegations in his original complaint, rather than his amended complaint. As the amended complaint supersedes the original, plaintiff's motion must be denied for failure to address the allegations made in the amended complaint. The fact that the FAA did not assert Exemption 2 in its initial administrative responses to plaintiff does not mean that the agency was therefore barred from asserting the exemption at the litigation stage.

• In camera review: Defendant has released all documents except for those the court has found were appropriately withheld. Thus, plaintiff's motion for in camera review is denied as moot.

• Exemption 2 (high): The FAA properly utilized Exemption 2 to withhold material which would have revealed the identity of aircrafts involved in surveillance. "[T]he identity of aircraft involved in aerial surveillance is law enforcement material, which, if disclosed, would jeopardize the effectiveness of that surveillance."

• Waiver: Plaintiff did not submit any evidence to show that the FAA has previously released the information he requested, and therefore has not satisfied his burden of showing that the FAA waived its right to withhold the information.

• Costs: Plaintiff has not challenged defendant's claim that he is not a prevailing party. Therefore, plaintiff is not entitled to costs.

3. Shannahan v. IRS, No. 08-0452, 2010 U.S. Dist. LEXIS 112 (W.D. Wash. Jan. 4, 2010) (Robart, J.)

Re: Tax documents pertaining to West Coast International, Ltd.

Vaughn Index: The IRS has now established that it did not select the documents described in its Vaughn index at random, but rather chose them so as to create a representative sample of documents. Thus, the court can now rule that IRS's use of Exemptions 3 and 7(A) was proper as to the entirety of the documents, and not just those included in defendant's sample.

• Exemptions 3 & 7(A): A Special Agent's report, not previously identified, was properly withheld pursuant to these two exemptions for reasons discussed in the court's previous orders.

• Exemption 3 (26 U.S.C. § 6103): The court finds that IRS has met its burden of showing that release of documents obtained through a mutual legal assistance agreement with Hong Kong "would pose a risk of substantial interference with federal tax administration" and would violate the confidentiality portion of the agreement. Morever, "there is not a standing tax treaty in place between Hong Kong and the United States," thus agreements such as the current one are entered into on a case-by-case basis, and their disclosure might discourage Hong Kong from entering into similar agreements in the future. Plaintiff "has not brought forth evidence to controvert [defendant's declarant's] justifications for withholding these documents." Defendant also properly used Exemption 3 to protect information obtained from a confidential source, as revealing the source's identity would make the source less likely to cooperate in the future and would also discourage others from providing information to the IRS. Contrary to plaintiff's claims, defendant has shown how release of this information would identify the source. Plaintiff has failed to show that defendant has already provided sufficient information to identify the source, thus nullifying the impact of additional disclosures. The IRS also properly withheld documents it obtained through subpoenas to third parties. Disclosure of this information would reveal the scope of the IRS's investigation. "[E]ven where documents pertain only to the plaintiff, not to third parties, these documents nonetheless may be withheld under Exemption 3 and 26 U.S.C. § 6103 if they were 'obtained from IRS databases and pursuant to summonses and not from plaintiff.'" Plaintiff has not shown that his clients "have actual possession of the documents as opposed to a general knowledge of their contents," and the IRS's declarant "has articulated a specific basis for his determination that the release of these documents would cause substantial interference with federal tax administration." Additionally, the IRS has established that it properly withheld information from its Electronic Database because release of such information "would seriously impair federal tax administration by providing [plaintiff's clients] with knowledge of the government's theories and analysis of the case [against them]." Disclosure would also have the effect of informing plaintiff's clients "what information the government has not been able to obtain." The court finds that release of any portions of the Electronic Database would provide plaintiff's clients with insight into the case against them, thereby causing a substantial likelihood of interference with federal tax administration.

• Exemption 7(A): The court also finds that the IRS, which "is a law enforcement agency for purposes of Exemption 7(A)," has met its burden of demonstrating that "release of the withheld documents would interfere with enforcement proceedings."

4. Tyree v. Hope Village, Inc., No. 09-2445, 2009 WL 5173784 (D.D.C. Dec. 30, 2009) (Sullivan, J.)

Re: First-party request

• Proper party defendant: Defendant, a privately run half-way house located in the District of Columbia, "is not an agency subject to either the FOIA or the Privacy Act."

• Exhaustion: Even if plaintiff's complaint were construed as an action against the Department of Justice, the record shows that plaintiff has failed to follow applicable regulations for proper submission of a FOIA request. As such, he cannot be said to have exhausted his administrative remedies.

WEEK OF JANUARY 11

1. Wells v. U.S. Dep't of Educ., No. 09-30768, 2010 U.S. App. LEXIS 519 (5th Cir. Jan. 11, 2010) (per curiam) (unpublished disposition)

• Litigation considerations: Because plaintiffs' appeal does not address the district court's reasons for dismissal of their claim (including failure to adequately describe the requested records and failure to exhaust administrative remedies), the district court's ruling is affirmed.

2. DelVecchio v. IRS, No. 09-12400, 2010 WL 104657 (11th Cir. Jan. 8, 2010) (per curiam) (unpublished disposition)

Re: First-party requests

• Adequacy of search: Plaintiffs "failed to present anything more than unsupported conclusory allegations to show that the IRS conducted its search improperly or in bad faith." Indeed, "the IRS submitted an uncontradicted declaration demonstrating that it followed standard procedures in responding to [plaintiffs'] request and that it provided them with all the responsive documents that it located."

• Procedural: Plaintiffs' challenge to the timeliness of defendant's response is "moot because the IRS did in fact provide them documents."

District Courts

1. Goddard v. Whitmer, No. 09-404, 2010 U.S. Dist. LEXIS 1067 (E.D. Ky. Jan. 6, 2010) (Hood, J.)

Re: Request for documents pertaining to allegations of bias against judges in the Eastern District of Kentucky

• Exhaustion/proper party defendant: Plaintiff's complaint must be dismissed both because he did not exhaust administrative remedies and because federal courts are not subject to the FOIA.

2. Gadd v. United States, No. 08-04229, 2010 WL 60953 (E.D. Ark. Jan. 5, 2010) (Wright, J.)

Re: First-party request

• Exhaustion: Because plaintiff did not file an administrative appeal from defendant's denial of his request for records, and did not file his complaint at a time when he had a claim for constructive exhaustion, he has not exhausted his administrative remedies.

WEEK OF JANUARY 18

1. Kaminsky v. NASA, No. 08-3313, 2010 WL 276184 (E.D.N.Y. Jan. 19, 2010) (Ross, J.)

Re: Documents pertaining to reentry of the International Space Station's Early Ammonia Servicer (EAS) into the Earth's atmosphere

• Adequacy of search: Defendant's affidavit establishes that its search for records was adequate. "[I]n the course of responding to plaintiff's . . . request, at least five subject matter experts . . . conducted document searches. [The] declaration provides information as to who - experts in particular offices - searched for the records and the methods used. There is no requirement for an agency to disclose the identity and background of the actual persons who processed the FOIA request. . . . Furthermore, the declaration explains why the documents plaintiff requested . . . would be found at the Johnson Space Center." Conversely, "any claim by plaintiff that additional responsive documents exist . . . are purely speculative and fail to rebut the presumption of good faith accorded to NASA."

2. Blackwell v. FBI, No. 09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.)

Re: Records pertaining to prosecution of plaintiff for insider trading

• Adequacy of search: FBI's declaration "indicates that the FBI conducted a good faith, reasonable search of those systems of records likely to possess the requested information." Plaintiff has made no showing of bad faith on the FBI's part, instead making repeated allegations of improprieties during the course of his criminal trial, "allegations [which] do not bear on [plaintiff's] request for documents under FOIA." Furthermore, plaintiff's "mere speculation regarding the existence and discoverability of other documents is insufficient to rebut [the FBI's] good faith declaration."

• Exemptions 2 & 7(E): FBI properly withheld information pertaining to procedures it used in the forensic analysis of a computer as well as other documents whose disclosure would have revealed "methods of data collection, organization, and presentation." These procedures are internal and "not known to the public." Moreover, "disclosure potentially would aid others in circumventing future FBI investigations."

• Exemption 3 (18 U.S.C. § 2510-2520 & FRCrP 6(e)): "Intercepted wiretap information is exempt from disclosure under Exemption (b)(3)." Similarly, "certain secret aspects of a grand jury investigation" are protected. Here, the FBI properly withheld "'information which explicitly discloses matters occurring before a Federal Grand Jury,'" including information that would identify grand jury witnesses, records subpoenaed, and the dates the grand jury convened. "[D]isclosure of this information would divulge protected aspects of the grand jury investigation."

• Exemption 7(A): FBI properly invoked this exemption to withhold the name of a pending FBI investigation. "Release of the name of the investigation could jeopardize it by identifying suspects."

• Exemption 7(C): FBI utilized this exemption to withhold identifying information pertaining to FBI special agents and support personnel, other federal law enforcement personnel, state and local law enforcement personnel, victims, third parties who provided information to law enforcement agencies, and third parties merely mentioned in the responsive files. "Exemption 7(C) protects the identities of suspects, witnesses, and other persons of investigatory interest who are identified in agency records in connection with alleged criminal activity. . . . Further, law enforcement personnel have a privacy interest in protecting their own identities because disclosure could subject them to annoyance, embarrassment, and harassment in the conduct of their official and private lives." Conversely, plaintiff "has not articulated any public interest that would be served by disclosure. Instead, he seeks disclosure in order to challenge his criminal conviction. . . . It is established, however, that the public interest in disclosure 'does not include helping an individual obtain information for his personal use' to overturn a conviction."

• Exemption 7(D): Defendant properly asserted Exemption 7(D) "to protect the identity of a foreign government agency which provided information under an express assurance of confidentiality." The FBI's declaration establishes that disclosure of the agency's identity "would have a chilling effect on the FBI's future relationship with this foreign government agency."

• Waiver: Although plaintiff contends that the privacy interest of some individuals was "waived because the FBI inadvertently released some names when it produced documents," the court finds that "[t]he FBI's disclosures do not waive the individuals' privacy interests."

• Sealed documents: The court finds that "[t]he FBI also properly withheld documents that are sealed by a February 4, 2005 Order issued by the U.S. District Court for the Southern District of Ohio."

3. Abbott v. Trog, No. 09-00015, 2010 U.S. Dist. LEXIS 2951 (E.D. Mo. Jan. 14, 2010) (Webber, J.)

Re: Records pertaining to bunk and cell assignments at a county jail

• Proper party defendant: Defendants are not federal agencies and therefore are not subject to the federal FOIA.

4. Kelly v. United States, No. 09-260, 2010 WL 128321 (D.N.H. Jan. 13, 2010) (Muirhead, J.) (adoption of Magistrate's Report and Recommendation) (unpublished disposition)

Re: Medical records

• Procedural: Plaintiff does not allege that a federal agency failed to respond to a FOIA request of his. Rather, he asserts that those treating him at his institution should have been required to request his records in order to provide proper treatment. The FOIA, however, "does not require [plaintiff's] current medical providers to request his past medical records."

5. Mambe v. U.S. Dist. Court, No. 10-27, 2010 U.S. Dist. LEXIS 2550 (D. Md. Jan. 13, 2010) (Nickerson, J.)

Re: Records pertaining to plaintiff's criminal trial

• Proper party defendant: Federal courts are not "agencies" subject to the FOIA.

6. Miller v. DOJ, No. 09-1393, 2010 WL 114955 (D.D.C. Jan. 11, 2010) (Leon, J.)

Re: Records pertaining to fingerprint analysis of plaintiff

• Litigation considerations: Though plaintiff was advised to respond to defendant's motion for summary judgment, no response has been filed. Therefore, the court will consider defendant's motion without any challenge from plaintiff.

• Adequacy of search: On the undisputed record, defendant's search appears to have been adequate.

• Exemptions 6 & 7(C): FBI properly asserted these exemptions to withhold the names of FBI support personnel and local law enforcement personnel. "These exemptions appear to be justified and are not disputed by the plaintiff."

WEEK OF JANUARY 25

1. Coleman v. Lappin, No. 06-2255, 2010 WL 299489 (D.D.C. Jan. 27, 2010) (Collyer, J.)

Re: Disciplinary records pertaining to former BOP employee

• Exemption 6: BOP properly asserted this exemption to withhold social security numbers and birth dates of BOP staff members. There is "no public interest in disclosure to outweigh the individuals' privacy interests."

• Exemption 7(C): Defendant appropriately withheld the name and other identifying information of a BOP inmate who cooperated in an investigation. Release of this information "'would not help explain the activities and operations of the BOP,'" but could place the individual in question in danger, "because inmates who cooperate in . . . investigations 'are not viewed favorably' by their fellow inmates." Plaintiff asserts an interest in this information in order to prove the truth of certain allegations he has raised, but his "personal interest in the records is not a cognizable public interest for purposes of the FOIA Exemption 7(C) analysis." BOP also properly withheld other records pertaining to an investigation of a BOP staff member, because release of this information would have identified a cooperating inmate and would have disclosed "'intensely private information'" about the investigated employee. Both the cooperating inmate and the staff member would have been put in serious jeopardy by release of this information. The fact that the investigated staff member was a federal employee does not completely obviate any privacy interest she may have in information concerning herself. The public interest in information pertaining to an investigation of inmates' allegations of misconduct against the former staffer (an investigation which resulted in administrative discipline against the former staffer) "is minimal."

2. Feinman v. FBI, No. 09-2047, 2010 WL 276176 (D.D.C. Jan. 26, 2010) (Huvelle, J.)

Re: Third-party request

• Litigation considerations: In a case of "first impression," the court finds that plaintiff lacks standing to bring a claim on behalf of a FOIA requester "who allegedly assigned all rights and interest in [her request] to [plaintiff]." "[C]ourts have held that a plaintiff whose name does not appear on a FOIA request lacks standing to challenge its denial, because she has not made a formal request within the meaning of the statute." Plaintiff asserts that nothing in the FOIA or its legislative history bars an assignment of rights in a FOIA claim. "This may be true, but it does not answer the question of whether FOIA in particular should be interpreted so as to permit assignment." Though the D.C. Circuit has ruled that a FOIA suit may under some limited circumstances survive the death of the original requester, the instant case is very different because the initial requester (who attempted to assign her rights to plaintiff) "did not invest any time, money, or other effort into pursuing this litigation." Thus, she "never acquired a stake in her FOIA claim that might counsel against letting her investment of litigation resources go to waste." Furthermore, there is no claim here that plaintiff is acting on behalf of the original requester, or that the original requester is incapable of asserting and protecting her own interests herself. The court finds that "strong policy concerns counsel against permitting assignments." Permitting assignment "could undermine [the] statutory distinction between categories of requesters by allowing requesters who need not pay certain fees to 'share' their status, via assignment, with potential plaintiffs who would otherwise be required to pay those fees. In addition, assignments would complicate FOIA administrators' adherence to the principle that disclosure exemptions based on privilege protections should not be invoked against 'first-party' requesters who are the very persons protected by the privilege." Furthermore, "pre-litigation assignments would multiply opportunities for mistake and mischief. . . . For instance, an individual - or even a nonexistent entity [ ] - could seek to thwart an adversary's search for information by claiming falsely to have been assigned a previous requester's FOIA rights." Additionally, "it would be unreasonable to expect overburdened FOIA administrators to verify the validity of an assignment by determining whether it complies with local law and reflects the original requester's actual intent." Thus, the court holds that "institutional regularity at the administrative level weighs against permitting pre-litigation assignments of FOIA rights where, as here, there is no indication (1) that the requester is unable to pursue her own litigation or (2) that the original requester shares the same interests and purposes as the plaintiff-assignee."

3. Washington v. Propes, No. 09-03050, 2010 U.S. Dist. LEXIS 4896 (D.S.C. Jan. 21, 2010) (Harwell, J.) (adoption of Magistrate's Report and Recommendation)

Re: Request for records on civil case

• Proper party defendant/exhaustion: Plaintiff has named a federal court as defendant in this suit, but federal courts are not "agencies" for purposes of the FOIA, and are therefore not subject to it. Moreover, plaintiff has set forth no evidence "that he has even attempted to exhaust his administrative remedies."

4. Sterrett v. Dep't of the Navy, No. 09-2083, 2010 U.S. Dist. LEXIS 4046 (S.D. Cal. Jan. 20, 2010) (Gonzalez, C.J.)

Re: Records pertaining to investigation of plaintiff

• Litigation considerations: As defendant has provided plaintiff with an unredacted copy of its final investigative report on plaintiff, this portion of plaintiff's claim is now moot. As to plaintiff's request for the background material created in the process of producing the investigative report, defendant has not demonstrated that it provided all responsive materials, thus this portion of plaintiff's complaint is not moot.

• Exhaustion: As to plaintiff's request for the background material, she has not exhausted her administrative remedies under the Privacy Act because she failed to comply with the Navy's regulations regarding Privacy Act requests.

• Attorney fees: "Plaintiff is not eligible for a fee award under the FOIA because she cannot show there was a voluntary or unilateral 'change in position' by Defendant." Plaintiff was initially provided with a redacted version of the investigative report, and she does not allege that defendant's redactions were improper. She was then later provided with an unredacted version of the report, and "it appears the decision to release the unredacted report to Plaintiff was not motivated by the filing of the lawsuit. Rather, as far back as June 2009, [defendant] indicated its willingness to release the report as soon as it was completed." Thus, plaintiff's "filing of the action was not 'a substantial causative effect on the delivery of the information,' and Plaintiff is not eligible for a fee award." Because plaintiff is not eligible for an award, the court "need not address whether Plaintiff is entitled to such an award."

5. United States v. Robertson, No. 85-112, 2010 WL 234854 (E.D. Cal. Jan. 14, 2010) (Wanger, J.)

Re: Committee on Uniform Security Identification Procedures bond

• Procedural/exhaustion: Plaintiff has made no showing that the bond he seeks is a federal agency record "or that he has in any way complied with the administrative requirements of FOIA." (posted 02/19/2010)

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