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

August 13, 2010

FOIA Post

Summaries of New Decisions -- July 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 July 2010.

WEEK OF JUNE 28 - JULY 2

1. Dolin, Thomas & Solomon LLP v. U.S. Dep't of Labor, No. 08-9181, 2010 WL 2607153 (W.D.N.Y. June 30, 2010) (Larimer, J.)

Re: Requests for records pertaining to certain "DOL Wage and Hour Division Opinion Letters"

• Exemption 5 (deliberative process & attorney-client privileges): The court determines that DOL cannot rely on the deliberative process privilege to protect "enclosure and status-listing letters" where it appears that "what has been excised is nothing more than dispassionate and brief references to the status of the opinion letters" and that "[n]othing in the context of the redactions or the adjacent material suggests that the redactions could possibly reflect 'the give-and-take of the consultative process.'" Additionally, these letters do not qualify for protection under the attorney-client privilege because they were not "sent by or between agency counsel for the purpose of requesting or rendering legal advice." With respect to records containing the DOL's "generalized procedures for responding to opinion letter requests and drafting opinion letters," the court concludes that "any communications . . . which were not made in connection with the agency's requests for or receipt of legal advice, and which outline the agency's generalized procedures for creating opinion letters . . . are not subject to the deliberative process privilege and must be disclosed."

The court holds that DOL properly withheld drafts of the opinion letters because "[t]o the extent that the letters are identical to the DOL's final determination, they are duplicative of information already produced to plaintiff, and to the extent they differ, they pose a substantial risk of confusing the public, and/or intruding on the deliberative process privilege by revealing the DOL's chain of reasoning."

The court concludes that DOL cannot withhold "communications containing legal orders, advice, discussion and interpretations of internal DOL policies which govern opinion letter decision-making" to the extent those communications "pertain to the decision-making process generally utilized by DOL, are not specific to the opinion letters at issue, and are not otherwise subject to the attorney-client privilege." DOL also cannot withhold prior published opinion letters and legal research materials in full because they "[do] not reflect DOL's deliberations concerning the [opinion] letters" at issue. However, the agency may redact "handwritten notations or passages [on those pages] drafted by or to counsel in connection with a request for legal advice." Lastly, the court finds that DOL properly withheld "e-mail communications by and between attorneys in the Office of the Solicitor and employees in the Wage and Hour Division concerning the drafting of opinion letters" pursuant to the attorney-client privilege because these communications "were made for the purpose of requesting or rendering legal advice."

• Adequacy of search: The court deems the search adequate where "DOL has attested to multiple thorough searches for responsive documents, describing in detail the scope of the search, and listing files and persons from whom information was sought."

2. Vinzant v. United States, No. 06-10561, 2010 U.S. Dist. LEXIS 65615 (E.D. La. June 30, 2010) (Drell, J.)

Re: Discovery request for contact information of federal inmates who were witnesses to an automobile accident

• Litigation considerations: The court rejects the government's argument that FOIA exemptions prohibit disclosure of contact information requested by plaintiff in his interrogatories. The court finds that the FOIA may not "act as a prospective bar to discovery in a case in which no FOIA proceedings have been instituted, or FOIA arguments raised, by the party seeking discovery."

3. Meza v. DOJ, No. 09-1580, 2010 WL 2572613 (D.D.C. June 25, 2010) (Kollar-Kotelly, J.)

Re: Request for various records pertaining to the detention and search of Panamanian ship and ensuing criminal case

• Adequacy of search: Although EOUSA initially failed to identify any responsive record, its subsequent search premised upon a broader interpretation of plaintiff's request in "all record systems likely to contain responsive records" was adequate. The court finds that plaintiff "has not shown how [the probable cause affidavit that he proffered] calls into question the reasonableness of the otherwise adequate search." Similarly, the court concludes that Coast Guard's multiple searches of "its electronic databases and its hard copy files" using plaintiff's name and the name of the detained vessel as search terms were sufficient. The court notes that Coast Guard provided plaintiff with "documents contained in the personal file" of a tactical law enforcement team member involved in the case, which "'are not documents held by the Coast Guard, nor otherwise implicated by the FOIA.'" Additionally, the court observes the Coast Guard "reasonably surmises" that due to the age of the records '"any responsive documents are likely to have been destroyed in accordance with [the Coast Guard's document retention] policy.'" With regard to the affidavit proffered by plaintiff, the court determines that he "[h]e has not shown how this court document raises a triable issue on the Coast Guard's otherwise adequate search [for records]."

• Exemption 5 (attorney work product and deliberative process privileges): The court finds, that based on the agency's declaration, "DOJ properly justified withholding eight pages in full containing attorney work product and deliberative process material." The court also adds that "'[i]f [as shown here] a document is fully protected as work product, then segregability is not required.'"

• Exemptions 6 & 7(C): EOUSA properly asserted Exemption 7(C) to withhold identifying information of third parties "inasmuch as such information contained in law enforcement files is 'categorically exempt' from disclosure under this exemption in the absence of a showing that an overriding public interest warrants disclosure." The court notes that Coast Guard redacted identifying information pursuant to Exemptions 6 and 7(C) from the personal records provided to plaintiff, and which were not challenged.

4. Pohl v. EPA, No. 09-1480, 2010 WL 2607476 (W.D. Pa. June 25, 2010) (Standish, J.)

Re: Request for certain data provided to EPA by private researcher

• Amending the complaint: The court grants plaintiff leave to amend her complaint to add new claims under the Administrative Procedures Act (APA) and the federal mandamus statute, join new private defendants, and amend allegations to include additional background facts in support of her new claims. The court dismisses defendants' arguments against amendment, finding that "[i]t is not unusual for a plaintiff to seek to amend after the defendant has filed its answer and it becomes evident that there are defenses the plaintiff did not anticipate." Additionally, the court permits defendant to proceed with claims under the APA and the federal mandamus statute as well as under the FOIA. The court finds that these theories of relief are not duplicative because plaintiff's amended complaint establishes "two separate scenarios" alleging that defendants "violated FOIA by failing to provide the Requested Data" or, in the alternative, violated the Shelby Amendment by allowing a federal grant recipient to withhold the requested data. However, the court dismisses one of plaintiff's proposed amendments as futile to the extent that the claim "rests on an alleged violation of FOIA" by a private hospital and private citizen. The court allows plaintiff's breach of contract claim against private defendants to stand, noting that "[i]t could well be that during the course of this litigation, the Government Defendants might find themselves bringing claims against the Research Defendants or vice versa." The court also rejects the government's argument that "resolution will be delayed if [they] are forced to sit through litigation on [] matters that are separate to [their] own obligations under FOIA" and allows the joinder of private defendants to the action.

5. Kromrey v. DOJ, 09-376, 2010 WL 2633495 (W.D. Wis. June 25, 2010) (Conley, J.)

Re: Request for any investigatory records generated in response to plaintiff's complaints

• Adequacy of search: The court concludes that the FBI's second search, which was conducted after it received the complaint for the instant action, was adequate. "While plaintiff alleges that there must be more records, he has produced no evidence that there are any additional records, nor does he dispute the fact that the FBI conducted a search reasonably designed to yield documents responsive to his request." The court further notes that "[a]t most, the FBI might be faulted with hindsight for failing to examine its local office records, but it is very difficult to tell if plaintiff provided enough information, at least in his initial request, to expect the FBI to make that connection."

6. Union Pac. R.R. v. EPA, No. 08-235, 2010 WL 2560455 (D. Neb. June 24, 2010) (Camp, J.)

Re: Requests for records related to EPA's findings with respect to the Omaha Lead Site

• Litigation considerations: The court grants plaintiff's motion for a temporary restraining order enjoining defendants from destroying records potentially responsive to FOIA requests. The court finds that "Union Pacific has identified evidence from which this court can draw an inference that EPA has engaged in a practice of deleting relevant emails in response to [its] FOIA requests" and further concludes that "[i]ssuance of the injunctive relief requested will not likely cause significant harm to third parties." The "temporary restraining order merely preserves the status quo by ensuring that no records relating to the FOIA requests are destroyed until the issues can be fully adjudicated."

WEEK OF JULY 5

1. Judicial Watch, Inc. v. BLM, No. 08-5379, 2010 WL 2651292 (D.C. Cir. July 6, 2010) (Griffith, J.)

Re: Request for records showing communications between the Bureau of Land Management (BLM) and Nevada Congressional delegation about a transaction involving federal lands

• Attorneys' fees: The D.C. Circuit reverses the decision of the district court and vacates its fee award. The court finds that application of the OPEN Government Act's provision on attorneys' fees "would have impermissible retroactive effects" where BLM "unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards." The court notes that "[t]he disclosure [of the requested records] was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment." Because the settlement "is without relevance to the Bureau's possible liability for attorney's fees," "the timing of the settlement has no bearing upon the question of retroactivity."

2. Davis v. DOJ, No. 09-5189, 2010 WL 2651297 (D.C. Cir. July 6, 2010) (Griffith, J.)

Re: Request for tape recordings made during an FBI investigation of New Orleans mob boss

• Attorneys' fees: The D.C. Circuit affirms the decision of the district court denying plaintiff attorneys' fees. The court dismisses plaintiff's argument that Summers v. DOJ, in which a three judge panel of the court determined that the OPEN Government Act does not have a retroactive effect, was wrongly decided. "Because reliance on the 2007 Act would give rise to liability for attorneys' fees where none existed before, Summers precludes its application." The court also rejects plaintiff's reliance on a magistrate's judge's finding that attorneys' fees were appropriate. The court observes that the magistrate "did not rely on any pre-existing authority," which would have allowed for the availability of attorneys' fees, and that his "legal error [that the 2007 Act had retroactive application] has no bearing on our own retroactivity analysis."

1. Mass. Mfg. Extension P'ship v. Locke, No. 09-0788, 2010 WL 2679835 (D.D.C. July 7, 2010) (Friedman, J.)

Re: Plaintiffs assert that the Department of Commerce violated the 5 U.S.C. § 552(a)(1)(D) of the FOIA by failing to publish its interpretation of the America COMPETES Act (ACA) in the Federal Register

• Procedural: The court finds that plaintiffs did not "satisfy all of the elements of a cognizable FOIA claim." Plaintiffs failed "to establish that [they] did not have actual notice of Commerce's interpretation of the ACA or that they suffered adverse effects because Commerce did not publish a notice in the Federal Register announcing that agency did not interpret the ACA to make major changes to the [Manufacturing Extension Partnership] program."

2. Boyce v. United States, No. 08-535, 2010 WL 2691609 (W.D. N.C. July 6, 2010) (Reidinger, J.)

Re: Motion made pursuant to FOIA and Privacy Act for all evidence used by federal government in connection with plaintiff's criminal case and his "motion [for] discovery of evidence"

• Procedural: The court finds that the waiver contained in plaintiff's plea agreement, whereby he waived his rights to receive any records related to the investigation and prosecution of his criminal case, precludes his motion for such records.

3. Exxon Mobil Corp. v. U.S. Dep't of Interior, No. 09-6732, 2010 WL 2653353 (E.D. La. June 29, 2010) (McNamara, J.)

Re: Requests for various records pertaining to decisions of Mineral Management Services (MMS) on request for suspension of production (SOP) related to off-shore federal leases

• Jurisdiction: "[T]o the extent that [plaintiff] seeks documents which are located outside the Eastern District of Louisiana (e.g. documents maintained by at the MMS Office of Congressional Affairs [located in Virginia]), the court lacks subject matter jurisdiction."

• Adequacy of search: The court directs MMS to locate certain records that it had indicated were available on its public website, but which plaintiff was unable to find.

• Litigation considerations: "[T]he court finds that ordering MMS to produce a Vaughn index would be premature and too burdensome when [plaintiff] can reduce the scope of its requests to certain SOPs." The court concludes that MMS will be required to provide a Vaughn index, if upon responding to the narrowed request, the agency withholds records pursuant to exemptions.

• Reasonably described: The court concludes that plaintiff's requests seeking "'any and all documents,' 'any documents,' or 'all documents' . . . are "impermissibly broad and do not comply with FOIA's requirement that the request for records 'reasonably describe[] such records.'"

WEEK OF JULY 12

1. ACLU v. DOD, No. 04-4151, 2010 WL 2787645 (S.D.N.Y. July 15, 2010) (Hellerstein, J.)

Re: Requests to various agencies pertaining to treatment of detainees

• Exemption 3: The question before the court is "whether notwithstanding prior official disclosures and an official repudiation of underlying intelligence programs, the Government may, under Exemption 3, properly withhold the information at issue in this action. Plaintiffs contend that the detention and interrogation programs . . . are not an 'intelligence source [or] method' within the meaning of the National Security Act and the CIA Act [of 1949]" because they "violate domestic and international law and have been officially repudiated." The court finds that "[p]laintiff's contention, to limit Exemption 3 to 'lawful' intelligence sources and methods, finds no basis in the statute." The court notes that "[t]he case law and the plain language of the statutes are clear," "[c]ourts are not invested with the competence to second-guess the CIA Director regarding the appropriateness of any particular intelligence source or method." With respect to plaintiff's argument regarding "[t]he [CIA] Director's obligation to 'ensure compliance with the Constitution and laws of the United States,'" the court find that such an obligation is the Director's, and that "Exemption 3 should not be a means for a district court judge to second-guess the CIA Director's judgment regarding what constitutes 'an unacceptable risk . . . [to] the Agency's intelligence-gathering process,' or to require the Director to give detailed account to the judiciary that would analyze the nature of the intelligence source or method, the value to the overall CIA program, and the risk that disclosure might pose to national security."

• Waiver: The court rejects plaintiff's assertion that the government's "prior official disclosures prevent Defendants from withholding the records at issue." The court concludes that the government has not waived its right to withhold these records because "the information at issue is more extensive and more detailed than the previous disclosures" and further notes that "[t]he difference between the information officially released and the CIA operational records here is different in quality, degree, and kind."

2. Mosby v. Hunt, No. 09-1917, 2010 WL 2794250 (D.D.C. July 15, 2010) (Bates, J.)

Re: First-party request

• Exemption 7(F): After conducting an in camera review of a one-page memorandum and one-page form pertaining to a request for a prison transfer, the court finds that BOP properly redacted information about plaintiff pursuant to Exemption 7(F). The court states that "[b]y its terms, exemption 7(F) protects 'any individual'" and here "[p]laintiff does not appear to have waived the protection contemplated by [that] exemption." The court concludes that release of the "information could 'jeopardize the safety of individual(s),' including plaintiff."

3. Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.)

Re: Requests for records pertaining to requester's criminal case

• Adequacy of search: The court finds the FBI conducted an adequate and good faith search for responsive records. "The Court rejects plaintiff's arguments that defendant's failure to produce documents until after it changed its disclosure policies, or until after litigation commenced, evinces bad faith or an inadequate search." Although the FBI provided inconsistent accounts of the number of responsive records located, the court observes that such "mistakes do not imply bad faith" and, "[i]n fact, the agency's cooperative behavior of notifying the Court and plaintiff that it had discovered a mistake, if anything, shows good faith." Moreover, the FBI "relies upon a relatively detailed, non-conclusory declaration that demonstrates the adequacy of the search." The FBI's declaration explains which systems of records were searched and the procedures "used to determine whether individuals with protected identities can be presumed dead in order disclose as much information as possible" to the requester. The court dismisses plaintiff's contention that the fact that two specific records were not produced "represent[s] more than an isolated omission by the FBI" and demonstrates "'that the process was defective.'" The court notes that there is no indication that the FBI "ever had possession of these documents" and concludes that "'speculation as to the existence of additional records . . . does not render the searches inadequate.'"

• Litigation considerations/waiver: The court treats as conceded the FBI's arguments with respect to "the exemptions and categories not challenged by plaintiff" and therefore grants summary judgment to the agency for those withholdings.

• Exemption 1: With respect to certain records "marked at the 'Secret' level," the court is satisfied that the FBI's declaration "elaborates on the nature and uses of the information and the risks involved in its disclosure with sufficient detail to persuade the Court that it is properly classified pursuant to [Executive Order] 12958." The court comments that "[g]iven the need for deference to agency affidavits, plaintiff's bewilderment at the classification falls far short of overcoming the FBI's expert judgment that the disputed information must be withheld pursuant to E.O. 12958 because it is reasonably connected to national defense or foreign policy."

• Exemption 5 (deliberative process privilege): The court determines that the FBI properly asserted the deliberative process privilege to protect drafts of a settlement agreement related to plaintiff's criminal case which were prepared by the U.S. Attorney's Office. The FBI adequately described the role of these documents in the deliberative process. The FBI's declaration explained that the drafts "were part of the government's negotiations and preparations for a final settlement agreement, and as a result of their advisory nature their release could affect employees' candor with their colleagues on similar matters in the future." The drafts "are predecisional because, as proposed terms for a document which the government would later sign, they had a concrete role in a decision-making process." Lastly, the court concludes that "the redacted terms composed advice and not facts, thus constituting deliberative material."

• Exemption 7(F): The court determines that the FBI properly invoked Exemption 7(F) to protect identities of confidential sources. The court finds insufficient plaintiff's assurances that "he does not personally pose a threat to any individual, no individual's life or physical safety can be put at risk by releasing the records." The court observes that the FBI's declaration identifies as a harm reports of death threats against the protected sources by plaintiff and other individuals. The court further notes that, even if it were to accept plaintiff's denials that he has made such threats, "he does not challenge [the FBI's] assertion that other individuals have threatened the confidential sources in question."

• Segregability: The court finds that the FBI has satisfied its segregability obligations and that its "conscientious efforts at segregation are manifest by the agency's disclosure to plaintiff of 1,108 partially redacted pages of records compared with only 48 pages withheld in full." The court finds that "[t]he exemptions at work here and the defendant's reasons for withholding implicate sensitive information." Further, "'there is nothing in the record to indicate that such [withholdings] are inappropriate,'" and the "non-exempt information is so intertwined with exempt information that the FBI could not release any meaningful portion without disclosing exempt information."

4. Int'l Counsel Bureau v. DOD, No. 08-1063, 2010 WL 2724201 (D.D.C. July 12, 2010) (Bates, J.)

Re: Request for records pertaining to four individuals detained at Guantanamo Bay Naval Base

• Adequacy of search: Despite plaintiff's assertion that DOD should have searched the Office of the Secretary of Defense, the court finds persuasive DOD's explanation as to why it did not conduct such a search. DOD's declarations explained that the Office of the Secretary "'neither creates nor receives and maintains records of individual detainees'" and that a responsive image identified by plaintiff as originating with that Office was actually produced by a different office that had already been searched to plaintiff's satisfaction. With respect to a discrepancy identified in DOD's declarations, the court notes that plaintiff "again does not challenge the Department's explanation for this inconsistency." The court adopts DOD's proposal to conduct another set of searches in response to plaintiff's contention that it "failed to search other iterations of the detainees' names when searching USCENTCOM's files." The court accepts DOD's assertion that it would be unduly burdensome to search specific video camera footage where "according to the Department, 'it would take a team of, at a minimum, 12 persons thoroughly familiar with the images of the detainees in question to work in shifts sorting through all the hundreds of thousands of images, over a year to be able to separate the requested images if available.'" The court rejects plaintiff's proposed solution that DOD search "one year's worth" of footage, in part, to ascertain the amount of time such a search would entail because the court is not in position "to evaluate whether even a somewhat [more] narrowed search would impose an undue burden on the agency."

• Exemption 2: The court finds that DOD did not meet its burden to demonstrate that an audiorecording and videos depicting "forced cell extractions ('FCEs')" qualify for protection under "high 2." Although both agency declarations state that disclosure of the videos pose a risk of circumvention, "[n]either … offers any assessment as to the likelihood that such harms will result if the videos are released."

• Exemption 1: The court holds that portions of the FCEs were properly withheld pursuant to Exemption 1 to the extent that they show "how military personnel at Guantanamo Bay forcibly move prisoners in and out of their cells" on the basis that those "'sensitive internal procedures,' if released, would permit individuals 'to develop counter-tactics,' thus 'placing military members at risk.'" However, with respect to videos taken during periods in which detainees were not present, the court requires DOD to supplement its declarations with additional details describing how the "'participation of U.S. military personnel' in post-extraction activities . . . 'could reasonably be expected to result in damage to national security.'" Likewise, the court finds that DOD fails to adequately justify its withholding of the remaining audiorecording because its declarations do not "indicate, even vaguely, how the audiorecording might identify intelligence sources and methods" and "fall short of establishing that release could reasonably be expected to harm national security."

• Exemption 6: The court rejects DOD's assertion that disclosure of photographs of detainees "'would risk both [their] safety upon release, through reprisals, and would undermine their likely willingness to cooperate with the intelligence collection activities.'" Instead, the court concludes that "[t]he Department's concerns about the detainees' safety and intelligence value . . . have little to do with privacy." The court further comments that "the government has already released a substantial amount of information about these detainees, including, among other things, their names, the names of their families and friends, and their employment histories." Conversely, the court finds unavailing DOD's argument that there is no public interest in the photos, noting that "[t]he press has taken a substantial interest in the Guantanamo Bay detainees, and has reported extensively on them and their condition." The court grants plaintiff's motion for summary judgment with respect to these photographs "[b]ecause there is only a slight privacy interest in withholding [them] from public view, and because the public has a substantial interest in their disclosure."

Vaughn Index: The court notes that it will permit DOD a "further - and final - chance" to supplement its declarations with respect to information that it withheld pursuant to Exemptions 1 and 2 "primarily because of the national security concerns assertedly at issue." The court directs DOD to "ensure that its declarations or a new Vaughn index subdivide the recordings into manageable parts cross-referenced to the relevant portion of the claimed exemption" and contain details demonstrating that "it has complied with its segregability obligations."

5. Nulankeyutmonen Nkihtaqmikon v. BIA, No. 05-188, 2010 WL 2720961 (D. Me. July 9, 2010) (Woodcock, J.)

Re: Request for records related to an approval of a ground lease between a certain Native American tribe and a corporation

• Attorney fees & costs: In a previous order, the court held that plaintiff had substantially prevailed and authorized an award of attorney fees. In the instant decision, the court dismisses the Bureau of Indian Affairs' argument that the attorney fees should be denied or reduced on the basis that its withholdings were reasonable. The court finds that BIA's initial position that it maintained only one document '"which Plaintiff already possessed, . . . "was manifestly unreasonable" "in light of the cascade of subsequent released documents." Moreover, the court notes "[i]t is difficult to characterize the BIA's shifting and contradictory rationales [before the district and appellate courts] as 'reasonable.'" "The court expressly finds that the BIA's 'withholding of [certain] reports to have been unreasonable'" and that to the extent that it had upheld BIA's redactions, plaintiff "has excluded work on those issues from its bill."

Additionally, the court concludes that plaintiff "substantially prevailed in this FOIA case and to the extent that it did not, [it] has excised the fees attributable to the unsuccessful parts of the case: with one exception." Plaintiff is not entitled to attorney fees with respect to billing entries related to its motion for sanctions which, although raised before the First Circuit, was not "refiled, renewed, or granted." The court permits plaintiff to recover fees incurred at the appellate level despite its failure to comply with Circuit court rules on the issue. The court finds that the appellate work was "fairly confined," comments that it "has a basic understanding" of the appellate arguments and the wins and losses, notes that denying attorney fees for the successful portion of the appeal "seems contrary to FOIA's fee shifting directive," and observes that "BIA has not specifically objected to [plaintiff's] itemization of appellate work."

After the court determines that "law students who while working under the supervision of a clinic attorney . . . may be eligible for attorney fees," it ultimately denies the request for student legal fees because "the student work is superfluous and, to the extent it is not, [plaintiff] has not provided the Court with [a] sufficiently detailed justification" for its reimbursement.

The court rejects "BIA claims that two lawyers should have been sufficient" and does not consider the use of three or, at times, four attorneys "to amount to overstaffing." After scrutinizing fee entries related to the FOIA case and companion litigation, the court disallowed several items that it deemed duplicative, including multiple billing for a single event, intra-clinic conferences and purely supervisory activity. The court also reduces plaintiff's fee request in order to subtract "'unproductive, excessive, or otherwise unnecessary time.'" Lastly, the court reduces plaintiff's attorney fee award for a "notable lack of proper documentation" in its billing records.

WEEK OF JULY 19

1. Covington v. McLeod, No. 09-5336, 2010 U.S. App. LEXIS 14871 (D.C. Cir. July 16, 2010) (Per curiam)

Re: Requests for information related to plaintiff's criminal case, including grand jury minutes and a co-defendant's proffer statement

• Exemptions 3 & 7(C): The court grants defendant's motion for summary affirmance on the basis that the agency properly withheld grand jury material in its entirety pursuant to Exemption 3, and a co-defendant's proffer statement under Exemption 7(C). The court finds that plaintiff has "failed to demonstrate that the contents of either [sets of documents] are in 'the public domain' and therefore are no longer secret . . . or that the public interest in disclosure outweighs the privacy interests involved."

• Segregability: The court concludes that "because the exempt and non-exempt information in the grand jury material and proffer statement are 'inextricably intertwined,' any excision of exempt information would impose significant costs on the agency and produce edited documents with little informational value."

1. Utahamerican Energy, Inc. v. Mine Safety & Health Admin., No. 08-1780, 2010 WL 2882361 (D.D.C. July 23, 2010) (Roberts, J.)

Re: Requests for any records, including emails, related to Crandall Canyon Mine and any documents pertaining to two accidents at the mine that were forwarded by the Mine Safety and Health Administration (MSHA) to Senate and House Committees or the Department of Labor's Office of Inspector General

• Adequacy of search: The court concludes that MSHA did not conduct an adequate search for "non-email" documents pertaining to the Crandall Canyon Mine "because it centered the search around the Congressional and OIG requests for documents, and not around [plaintiff's broader] FOIA request." "The scope and date limitations contained in the OIG, Senate, and House Committee requests and the subpoena prevent the search in response to those requests from necessarily satisfying the FOIA request." The court finds that "the record does not show that MSHA readjusted its original search parameters to satisfy the broader FOIA request . . . which contained no subject matter restrictions - other than that the documents relate to the mine - and no date restrictions." Likewise, the court determines that MSHA's search for responsive emails was deficient. MSHA failed to search for emails containing an alternate term to which the mine was sometimes referred. The court notes that "omitting from the search an alternative name by which the subject of the search is known renders the search inadequate, even if [other] search terms . . . were likely to reveal many emails responsive to [plaintiff's] request." Additionally, the court also concludes "the search was not sufficiently reasonably designed to discover documents that related generally to the mine but did not explicitly involve the accidents." However, the court rejects plaintiff's argument regarding MSHA's failure to search the files of a deceased mine inspector because plaintiff "agreed to limit the search of emails to three [other] MSHA officials." The court also dismisses plaintiff's assertion that the "emails released did not predate the dates of the accidents" where "MSHA recognized its own error and corrected the mistake, and the initial omission does not render the search inadequate, as there is no evidence that the omission was a result of the agency acting in bad faith."

2. Judd v. FCC, No. 10-0837, 2010 WL 2802654 (D.D.C. July 16, 2010) (Friedman, J.)

Re: Request for all information related to enforcement complaints made by plaintiff

• Litigation considerations: The court "concludes that - unlike the other claims in plaintiff's complaint - [his] claims under the FOIA and the Privacy Act are not frivolous and may proceed" where the FCC responded to his FOIA request and informed him of his right to seek judicial review of its decision. The court adds that plaintiff has not properly served the agency but allows him "additional time to effect and prove service" "in light of the fact that [his] efforts presumably are hampered by his incarceration."

3. Schwarz v. DOJ, No. 10-0562, 2010 WL 2836322 (E.D.N.Y. July 14, 2010) (Cogan, J.)

Re: Requests for records pertaining to two monetary awards to which plaintiff alleges she is entitled in connection with whistleblower activity

• Exhaustion of administrative remedies: The court determines that plaintiff's failure to file an administrative appeal in connection with her FOIA requests to the Coast Guard and the FBI "does not affect the Court's subject matter jurisdiction." The court further finds although plaintiff's claims against those agencies could be dismissed for failure to exhaust, "the existence of subject matter jurisdiction does not make dismissal on that ground mandatory." Instead, the court concludes that it is appropriate to adjudicate the case on the merits, because "[t]here are no prudential reasons for avoiding a final resolution of plaintiff['s] claims." The court notes that to hold otherwise "would create the anomalous situation" whereby claims against the Coast Guard and the FBI could be dismissed without prejudice, but claims against DOJ "leave the potential for a dismissal with prejudice" since plaintiff is deemed to have exhausted her claims against that third defendant.

• Adequacy of search: The court concludes that the defendants' searches were sufficient. "The affidavit of each agency demonstrates a thorough, careful search in every place where documents responsive to plaintiff's request might have been located." Moreover, plaintiff failed to present evidence to call into question the adequacy of those searches. The court notes that "[n]otwithstanding [its] advice to plaintiff about how to obtain evidence from the unnamed woman [who could confirm her allegations], plaintiff has taken no steps nor offered any evidence to show defendants are dissembling, nor has plaintiff suggested what more defendants should have done."

WEEK OF JULY 26

1. White v. Lappin, No. 08-1376, 2010 WL 2947355 (D.D.C. July 29, 2010) (Roberts, J.)

Re: Request for plaintiff's medical and dental records

• Litigation considerations/award of costs: The court concludes that plaintiff is not eligible for or entitled to an award for costs "to cover the portion of the filing fee he has paid, and typewriter ribbon and copy fees" where he "cannot show that the BOP voluntarily or unilaterally changed its position because of the lawsuit." Here, BOP demonstrated that it had "no record" of receiving a request from plaintiff at the time that he filed his complaint and, accordingly, it would have had "no reason to search or produce records [or] . . . to [otherwise] respond." Moreover, the court determines that an award of costs is not warranted by the factors enumerated by the D.C. Circuit in Davy v. CIA. "Although plaintiff derives no commercial benefit from these records, it does not appear that the public benefits in any way from their release." The court also notes that once BOP received notice of the request, it "acted promptly" to release certain records to him at no charge and also "promptly provided him 'the opportunity to view all of [his] medical x-ray films'" and "made arrangements for copying the films and sending them to the physician of plaintiff's choice."

2. James v. U.S. Secret Service, No. 06-1951, 2010 WL 2947762 (D.D.C. July 29, 2010) (Kessler, J.)

Re: Request for contents of a recorded conversation allegedly maintained by Secret Service's Chicago Field Office

• Litigation considerations: The court denies plaintiff's motion for relief pursuant to Federal Rule of Civil Procedure 60(b) from an earlier order which granted summary judgment for defendants in connection with past FOIA requests. Plaintiff cannot "challenge the disposition of his April 15, 2009 FOIA request by reopening his action challenging the disposition of his September 15, 2005 requests, instead of filing a new complaint." The court concludes that plaintiff has not "present[ed] any new facts or arguments showing that the Court's July 23, 2007 judgment upholding Defendants' disposition of his . . . 2005 FOIA requests was unjust" and, accordingly, "has failed to present the kind of extraordinary circumstances required under Rule 60(b)."

3. Jacobs v. BOP, No. 09-2134, 2010 WL 2891174 (D.D.C. July 26, 2010) (Sullivan, J.)

Re: Requests for records pertaining to prices charged for commissary items at a federal prison; plaintiff's placement in a special housing unit; and his prison transport

• Litigation considerations: The court finds that "BOP's untimely response does not entitle plaintiff to judgment in his favor."

• Adequacy of search: The court concludes that BOP conducted a reasonable search for records pertaining to plaintiff's three requests where its declaration detailed the various offices and systems of records searched and explained reasons for the lack of certain documents.

Vaughn index: Although plaintiff did not contest BOP's decision to withhold certain information under Exemptions 2, 5, 6 and 7(C), the court reviews the withholdings on the merits due to plaintiff's status as a pro se litigant. The court concludes that the Vaughn index and declaration submitted by BOP "falls short" for its "failure to discuss the nature or type of information withheld and its inadequate explanation of the reasons for withholding information under the claimed exemption," and lack of segregability analysis.

4. Kemmerly v. U.S. Dep't of the Interior, No. 07-9794, 2010 U.S. Dist. LEXIS 75622 (E.D. La. July 26, 2010) (Berrigan, J.)

Re: Plaintiff's refusal to pay fees associated with five FOIA requests

• Exhaustion of administrative remedies: The court concludes that it lacks jurisdiction to review plaintiff's FOIA claims with respect to three of his requests. The court notes that plaintiff appealed one request based on DOI's failure to timely respond, but since he did not "resolve[] [the] fee issues as is required before his request could be processed," his administrative appeal "was properly closed according to DOI regulations." Additionally, the court finds that plaintiff's decision to wait one year for DOI to respond to two administrative appeals before filing a lawsuit on the underlying requests "prevents him from alleging constructive exhaustion of administrative remedies."

• Fee estimate: The court declines to review plaintiff's claims, under the Administrative Procedure Act, that DOI's fee estimates were "arbitrary, capricious, excessive, and unreasonable" where he refused to pay the fees associated with those requests and therefore failed to exhaust his administrative remedies as required by DOI regulations.

• Attorney fees: The court determines that "the OPEN Government Act of 2007 does not apply retroactively for the purposes of this case and the awarding of the plaintiff's attorney's fees is controlled by the Buckhannon and OCAW decisions." Applying the pre-OPEN Government Act standard, the court finds that since plaintiff "has not received a judgment on the merits in his favor, he is not entitled to an award of attorney's fees." The court observes that even assuming, arguendo, that the attorney fee provision of the OPEN Government Act applies to plaintiff's action and that he "substantially prevailed" with respect to one of his requests, he would not be entitled to such an award because the "benefit to the public . . . is negligible" and "there would be a substantial commercial benefit to the plaintiff." Moreover, DOI "had a reasonable basis for its withholding of the documents." Lastly, the court "finds persuasive" a D.C. Circuit case holding that "pro se attorney-litigants are not entitled to attorney's fees under FOIA's fee-shifting provisions."

5. JCI Metal Prods. v. U.S. Dep't of the Navy, No. 09-2139, 2010 WL 2925436 (S.D. Cal. July 23, 2010) (Gonzalez, J.)

Re: Reverse-FOIA case; plaintiff seeks to prevent disclosure of information, including line item prices, related to a past contract with the Navy

• Exemption 4: The court determines that plaintiff failed to show a likelihood of "substantial competitive injury" from the release of the requested information. For one, the court noted that plaintiff disclosed "seventeen of its purported confidential prices" by filing a document containing a list of that information on the court's publicly available electronic filing system. "[B]ecause these prices have been in the public domain for the past nine months, and because they were not subsequently sealed, destroyed, or otherwise rendered unavailable, they cannot be exempt from production under FOIA." With regard to the unit prices that were not publicly disclosed, the court finds that "the presence of too many fluctuating variables . . . makes it unlikely that JCI's competitors would be able to deduce JCI's overall bid strategy and be able to underbid JCI in the future" and that even if competitors "could potentially deduce some of its strategy, JCI has failed to demonstrate that any resulting harm would be 'substantial.'" The court also rejects plaintiff's argument that release of the prices themselves would cause competitive harm where plaintiff only presents qualified claims that the unit prices contained in an expired contract would remain similar or unchanged in future contracts. Additionally, the court concludes that "public interest outweighs any confidentiality concerns JCI might have in its unit prices." Regarding plaintiff's Trade Secrets Act causes of action, the court finds that "because the information in this case is not protected by Exemption 4, neither can it be protected by the Trade Secrets Act."

6. Smith v. Cummings, No. 10-1891, 2010 WL 2925880 (D. Md. July 22, 2010) (Messitte, J.)

Re: Request for personal information related to a former Kansas correctional employee

• Litigation considerations: Due to his pro se status, the court construes plaintiff's complaint liberally "as a hybrid request for mandamus relief directed to the Social Security Administration and, alternatively, a request from that agency filed pursuant to the Freedom of Information Act." With respect to the FOIA claim, the court finds that plaintiff has not exhausted his administrative remedies, because there is "no indication" that he attempted to do so "or, if he has filed a claim with the agency, that a disclosure decision has been made by the agency."

7. Schulze v. FBI, No. 05-0180, 2010 WL 2902518 (E.D. Cal. July 22, 2010) (Ishii, J.)

Re: Requests for various records pertaining to individuals alleged to be informants

• Exemptions 6, 7(C), 7(D), 7(F)/Glomar: The court concludes that the FBI and DEA "failed to show a statutory basis for application of the Glomar response based on the FOIA exemptions they relied upon in refusing to confirm or deny the existence of records, or to conduct a search to determine the existence of records responsive to Plaintiff's request for information pertaining to [two alleged informants.]" With respect to the defendants' assertions of a Glomar response based on Exemptions 6 and 7(C), the court finds that the "privacy exemptions contemplate requests for information pertaining to third parties where the waiver of privacy is not obtained" and "[b]ecause privacy interests are not absolute under these exemptions, an agency cannot categorically refuse to undertake the search for such records or at least afford the requesting party the opportunity to meaningfully oppose the non-disclosure of the records based solely on those exemptions."

With regard to the application Glomar and Exemption 7(D), the court concludes that "[n]otwithstanding the fact that the protection of the identity of confidential sources under FOIA exemption (b)(7)(D) is categorical if it is applicable, the disclosure of the mere existence of records responsive to Plaintiff's FOIA request pertaining to [the two individuals] does not create any harm cognizable under that exemption because, at its broadest, Plaintiff's request asked for all records in possession of FBI or DEA pertaining to those third parties" and "the disclosure of the existence of records pertaining to a third party does not identify that third party as a confidential source." The court finds that despite plaintiff's characterizations of the individuals' activities "as governmental witnesses and informants, such requests are made within the broader context of Plaintiff's request for all records pertaining to the two third parties." Additionally, the court finds that plaintiff "is entitled to challenge" whether the source can be considered confidential under Exemption 7(D) and "such challenge . . . would be unduly disadvantaged by the refusal of the agencies to disclose even the existence of records responsive to Plaintiff's request." The court also notes that to the extent that the agencies produced any documents to plaintiff through discovery in connection with his criminal case, the agencies "cannot refuse to acknowledge the existence of those same documents in response to a subsequent FOIA request." With respect to use of Exemption 7(F) Glomar, the court finds that "Defendants have failed to show that the acknowledgment of the existence of records responsive to Plaintiff's FOIA requests would cause the harm prohibited by the exemption; that is, would endanger the lives of [the two individuals.]"

• Agency declarations: The court determines that the FBI and DEA affidavits are insufficient because they "have offered essentially no record-specific justifications" with respect to information requested by plaintiff pertaining to the two third-parties. "[T]he agencies cannot support their refusal to confirm or deny the existence of the records requested on the grounds of privacy or protection of identity of confidential informants because the exercise of those exemptions, as well as the exemption for protection of persons from probable death or physical harm, require record-specific explanation and justification to the court." The court directs defendants to justify their claims of exemption, but cautions "that consideration of information ex parte and in camera is appropriate only where the exemptions cannot be justified on the basis of information that can be made available by public affidavits, Vaughn indices, or the like." (posted 08/13/2010)

Go to: Main FOIA
Post
Page

Topic(s): 
FOIA Post