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

April 21, 2010

FOIA Post

Summaries of New Decisions -- March 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 March 2010.

WEEK OF MARCH 1

1. Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010) (Tatel, J.)

Re: Architectural blueprints for buildings on campus of USDA's research center

• Adequacy of search: Plaintiff argues that the fact that defendant spent
roughly two hours searching for responsive documents by itself demonstrates
that the search was inadequate. However, "[t]he government's affidavits
describe these searches in detail, and amicus has presented no evidence calling
into question the efficacy of the search beyond speculating as to the employees'
ability to thoroughly search a filing cabinet or electronic database within
the indicated time period." Similarly, the court has no evidence before
it to contradict USDA's declarant's assertion that the agency had put together
a complete list of responsive documents it would need to search for.

• Exemption 2 (high): The court agrees with defendant that the blueprints
are predominantly internal, despite the fact that some of the requested blueprints
have been released to the Maryland Historical Trust, especially since plaintiff "is
presumably not seeking those blueprints that are housed at the Maryland Historical
Trust, but rather wants those that remain exclusively under the agency's control."

As to whether the blueprints "relate to 'rules and practices governing
agency personnel,'" it is true that "unlike manuals and guidelines,
blueprints give agency employees little explicit guidance about how to do
their jobs. Information need not take the form of a rule or practice, however,
to fall within the high 2 exemption. Rather, the exemption expressly protects
from disclosure material 'related' to agency rules or practices."

Furthermore, "with respect to high 2 materials, where the asserted government
interest is, by definition, to prevent circumvention of law, the threshold
inquiry may be somewhat less demanding than for low 2 matters, for which we
require a tighter nexus between the withheld information and personnel rules
or practices." Moreover, at the district court, plaintiff did not raise
the issue of whether the blueprints are sufficiently related to internal rules
and practices; he may not do so for the first time on appeal. Similarly, plaintiff
did not raise at the district court his current claim that USDA "failed
to demonstrate that release of the blueprints would pose a 'significant risk'
to national security."

• Segregability: Though plaintiff failed to challenge USDA's determination
on segregability at the district court, the court was required to rule on
the issue itself, and did so, "ultimately concluding that no reasonably
segregable portion of the blueprints could be released without presenting
a risk of circumvention."

2. Allen v. EEOC, No. 09-14640, 2010 WL 653329 (11th Cir. Feb. 24, 2010)
(per curiam) (unpublished disposition)

Re: EEOC investigative file

• Exhaustion: The district court correctly ruled that plaintiff had failed
to show that he exhausted his administrative remedies because he did not establish
that he filed an administrative appeal of the EEOC's initial response to his
request.

3. Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010)
(Haynes, J.)

Re: Records pertaining to IRS audit of plaintiff

• Adequacy of search: "We conclude that, based on [defendants'] declarations,
the IRS has demonstrated that it performed a search reasonably calculated
to yield responsive documents." Though plaintiff "asserts that
other documents may exist that were not located in the search, we must decide
only whether the search was adequate."

• Litigation considerations: Because the court is ordering defendant to produce
a new Vaughn index, the court need not reach the question of whether plaintiff
is entitled to discovery.

• Exemption 3 (26 U.S.C. § 6103(a) & 26 U.S.C. § 6103(e)(7)): The IRS
cited the first of these statutes to withhold third party tax information.
However, "it is impossible to tell from the [IRS] declaration and the
rest of the summary judgment record what information is contained within the
'case history notes and information from private sources' and whether, in
whole or in part, the documents contain third party taxpayer information."

The lower court "did not make any factual descriptions of the documents
in this case or conduct an in camera review. Nor does it logically follow
that case history notes and information from private sources contain exclusively
third party tax information, rather than segregable portions." In a
situation "where the agency affidavit fails to identify the particular
type of the document being withheld - and the party seeking disclosure contests
the type of information it contains - a district court may not simply rely
on a broad categorical approach to withholding."

Though the court "assume[s] that the IRS is telling the truth in its
affidavits, its conclusory 'say so' does not, alone, carry its burden of establishing
an exemption." Similarly, the IRS provided insufficient information
in its declarations to justify its use of § 6103(e)(7). "The declarations
fail to describe with specificity the documents constituting 'information
from public and private sources as well as interview notes' or why the IRS
believes that release of these documents would impede its ability to collect
any taxes owed." The court "cannot discern the type of information
contained within the documents from the declarations."

• Exemption 5 (deliberative process privilege): IRS appropriately withheld
documents reflecting revenue agents' "'development and analysis . . .
as well as their opinions and recommendations as to the direction of the examination
and a possible criminal referral.'" However, the court has "no
factual findings to review as to whether the [withheld documents] include
factual information as [plaintiff] asserts and, if so, whether that information
is segregable." Defendant will be required "to provide 'at least
the minimal information necessary to make a determination.'"

• Exemptions 6 & 7(C): The court finds that the IRS failed to provide
a sufficiently detailed description of the documents that were withheld under
this exemption for the court "to meaningfully review the applicability
of this exemption." Indeed, "the ambiguity in the type of documents
withheld and the information contained therein makes it impossible to determine
whether the individuals named in the documents have a viable privacy interest." The
IRS's "broad, conclusory descriptions of the documents afford [plaintiff]
no opportunity to challenge the withholding and offer this court no opportunity
to meaningfully review the applicability of the claimed exemptions."

• Exemption 7(A): The court finds that "it is impossible to determine
the exact type of documents that the IRS asserts are exempt under 7(A)." Though
Exemption 7(A) does allow for the categorical withholding of certain types
of documents, defendant has not provided enough information for the court
to determine whether the withheld documents are of those type. As to the IRS's
use of this exemption to withhold an agent's working papers, though these
documents are of a type that might be subject to a categorical withholding,
the court lacks sufficient information in order to determine whether the documents
contain segregable information that must be released to plaintiff. type

• Attorney fees/costs: The issue of plaintiff's entitlement to fees and costs
is not yet ripe for review.

1. Essex Electro Eng'rs, Inc. v. U.S. Sec'y of the Army, No. 09-372, 2010
WL 710595 (D.D.C. Feb. 26, 2010) (Leon, J.)

Re: Unit prices contained in winning contract

• Exemption 4: The offeror "was required to provide the Army with the
unit pricing information in order to compete for" the contract. "In
this case, despite [plaintiff's] argument that any harm from releasing the
unit prices is highly speculative because unit prices are based on multiple
factors, the Army has demonstrated that releasing the withheld information
would cause substantial competitive harm because the requested information
could reveal [the submitter's] business strategy and cost structure." The
winning offeror "was the first private entity to be awarded the items
in [the contract], thus the prices were not known in the industry, further
supporting the need to prevent their release." Plaintiff is also incorrect
in its assertion that the Federal Acquisition Regulation (FAR) requires disclosure,
as the FAR's disclosure requirements have an exception for information exempt
from release under the FOIA. Similarly, plaintiff's claim that the information
withheld here is of a type routinely disclosed by the Army is inaccurate.

2. Nat'l Bus. Aviation Ass'n v. FAA, No. 09-1089, 2010 WL 675529 (D.D.C.
Feb. 26, 2010) (Collyer, J.)

Re: Reverse FOIA case seeking to prevent disclosure of aircraft registration
numbers on Block Lists, which indicate aircraft that are filtered out of real-time
tracking data feeds

• Standard of Review: Reverse FOIA cases are brought under the Administrative
Procedures Act and the scope of review is "narrow." "The agency
action under review is 'entitled to a presumption of regularity' and the court
must consider only whether the agency decision was based on relevant factors
and whether there has been a clear error of judgment."

• Exemption 4 (commercial or financial threshold): Plaintiff's claim that
the aircraft registration numbers constitute commercial information is overly
broad, "especially in light of the [D.C.] Circuit's admonition that 'not
every bit of information submitted to the government by a commercial entity
qualifies for protection under Exemption 4.' . . . The FAA's decision that
the Block List does not include any commercial information is 'entitled to
a presumption of regularity' and this Court should consider only whether the
decision was based on relevant factors and whether there has been a clear
error of judgment."

Plaintiff "speculates that if the Block List is released, competitors
will be able to
discover[] sensitive commercial information." However, "the FAA
determined that the aircraft registration numbers themselves do not constitute
commercial information. The FAA's determination was reasonable, as the Block
List is a list of numbers only, unaccompanied by narrative. The release of
Block List information would not provide the requester with any real-time
or near real-time data regarding aircraft location [given that] [a] FOIA request
takes days or weeks to process." Though "the release of the registration
numbers whose location information was blocked from the [Aircraft Situation
Display to Industry (ASDI)] data stream in days and weeks past would enable
the recipient to determine the owner of the aircraft, a description of the
aircraft, and historical location[,] [i]t information would not enable the
recipient to (1) determine the identity of the occupants of any particular
flight; (2) discover the business purpose of any flight; (3) track the flight
in real-time or near real-time; or (4) discern the reasons why the aircraft
owner sought to block the flight information from the ASDI data feed. . .
. [Plaintiff's] speculation that the registration numbers might be used to
obtain historical location information and that location information might
be used for insight into the nature of a company's business dealings does
not convert the aircraft registration numbers themselves into commercial information.

[Plaintiff's] prediction of the dire consequences of release of the aircraft
registration numbers was countered by the FAA's reasonable determination that
the Block List simply does not contain commercial information. The FAA's decision
that the Block List does not contain commercial information was not arbitrary,
capricious, or an abuse of discretion." Plaintiff's claims that release
of the Block List "will compromise the privacy and security of the blocked
aircraft and their often high profile occupants[,] . . . do not support [plaintiff's]
contention that the information is exempt from disclosure under Exemption
4, which deals with confidential commercial information and not with personal
privacy or security." Morever, "it is highly unlikely that the
disclosure of the List would impact the security of aircraft or aircraft passengers."

3. Fieger v. FEC, No. 08-14125, 2010 U.S. Dist. LEXIS 17284 (E.D. Mich. Feb.
26, 2010) (Lawson, J.)

Re: Documents related to investigation of possible violations of the Federal
Election Campaign Act by plaintiff's law firm, its partners, and employees

• Litigation considerations (standing): "[A] person whose name does
not appear on a request for records has no standing to prosecute a lawsuit
to compel disclosure of those records." The court finds that "[i]t
is not possible to discern from the two letters [the requester] sent to the
FEC a request for documents by or on behalf of plaintiff. . . . [Plaintiff]
did not sign the letters, and nowhere in either letter is there a statement
or suggestion that [the requester] was making the requests on [plaintiff's]
behalf. Nor does the context of the request compel an inference that the true
requesting party is plaintiff . . . himself." Though the identity of
a FOIA requester is generally irrelevant to "'the exercise of the rights
provided by the Act,' 'the nature of an entity suing under the FOIA is not
without relevance.'" This is because "[a] plaintiff who has neither
made a request for information on his own nor explicitly through counsel cannot
show an injury in fact, which is a necessary constitutional requirement of
standing."

Furthermore, "[t]he weight of authority cuts against recognizing third-party
standing in the FOIA context, even when the request is made by a lawyer, in
the absence of a clear statement that the request is being made on behalf
of a named client." Though plaintiff claims that the requester was acting
on his behalf, "federal FOIA jurisprudence leaves no doubt that a lawyer's
request for information must plainly spell out the representative capacity
and the identity of the client before that client can bring a FOIA action
in her own name." Though the requester eventually mailed defendant a
letter establishing his representative capacity to the plaintiff, this letter
was not sent until after the complaint had been filed. "'Jurisdiction,
including standing, is "assessed under the facts existing when the complaint
is filed."' . . . Developments occurring after the lawsuit has been filed
cannot confer standing that did not exist when the case was commenced."

4. Long v. OPM, No. 05-1522, 2010 WL 681321 (N.D.N.Y. Feb. 23, 2010) (Mordue,
C.J.)

Re: Names, duty stations, and organizational codes of federal employees in "sensitive" occupations,
and award dollar amounts for various IRS employees

• Litigation considerations: Plaintiffs have provided no legal basis for
their request for an order "directing OPM to provide 'an "audit
trail" from the execution of OPM's program(s) that generated the copies
furnished [to the court]' to enable [them] to determine whether OPM properly
marked all redactions."

• Exemption 6: The court finds that "[i]n view of the potential for
harassment or attack," OPM has demonstrated that federal employees who
work in nineteen different "sensitive" occupations (including, inter
alia, correctional officer, U.S. Marshal, nuclear materials courier, internal
revenue agent, game law enforcement, immigration inspection, customs and border
interdiction, and border protection) "have a 'more than de minimis' privacy
interest in their names and duty stations." The court further determines
that OPM is correct "that any link between the names of employees in
the occupations at issue and the function of the government agencies they
work for is too attenuated to warrant disclosure. . . . In this case, the
names themselves would reveal only the identities of all employees in 'sensitive'
occupations; once the lists of names are public, it would take further investigation
and analysis before plaintiffs, or anyone else, could glean anything useful
about the agencies for which they work."

However, as to plaintiffs' request for duty stations and organizational component
codes of these individuals, "OPM only asserts that disclosure of duty
station and organizational component code would increase the 'possibility'
in some instances [that identities would be revealed]. OPM, however, does
not explain how employees could be identified from the disclosure of their
duty stations and organizational component codes. . . . The Court finds that
this information does not involve a measurable privacy interest because it
is not the kind of information 'that a person would ordinarily not wish to
make known about himself or herself.'" Though OPM has also asserted
that release of this information might hamper law enforcement operations by
revealing the government's allocation of resources, this is not a basis for
withholding of this information under Exemption 6.

As to OPM's decision to redact performance and individual cash awards made
to
IRS employees, "[i]t is undisputed that each total award amount, or lack
thereof, is linked to an individual IRS employee and his or her employment
performance, and could, as [plaintiffs] admit[], at the very least, reveal
that an employee's appraisal score was too low to merit an award. . . . That
an employee's name is not connected to the award amount is inconsequential
here because the award, or absence of one, is linked directly, and unique[ly]
to that employee. Award information is private and disclosure implicates more
than a de minimis privacy interest." Plaintiffs have asserted a public
interest in "'being able to see whom the government is rewarding' and
ensuring that the IRS is complying with regulations prohibiting it from 'using
records of tax enforcement results to evaluate employees or impose production
quotas or goals.' Plaintiffs, however, provide no evidence of IRS wrongdoing
or the issuance of improper rewards. On balance, therefore, the Court concludes
that employees' interest in keeping performance based
awards, or the lack thereof, private outweighs any public interest in disclosure
of this information."

WEEK OF MARCH 8

1. Pub. Citizen, Inc. v. OMB, No. 08-5004, 2010 WL 820479 (D.C. Cir. Mar.
11, 2010) (Tatel, J.)

Re: Documents related to agency bypass of OMB's legislative and budgetary
clearance process

• Note: The court reissued its June 19, 2009 decision. The holding remains
consistent with the opinion that it superceded, which was reported in Decision
837, i.e., the documents are not related predominantly to OMB's internal practices
and so do not qualify under Exemption 2, and are not protected in their entireties
under Exemption 5. The case is remanded to the district court.

2. Pototsky v. DHS, No. 09-15247, 2010 WL 737751 (9th Cir. Mar. 3, 2010)
(unpublished disposition)

• Re: Request for records pertaining to plaintiff's encounter with U.S. Customs
and Border Patrol employees

• Litigation Considerations: The court reviews the district court's findings
of fact for clear error and its conclusions of law regarding the applicability
of FOIA exemptions de novo.

• Exemptions 7(C) and 7(E): The court holds that the district court "did
not clearly err" in concluding that Exemptions 7(C) and 7(E) apply, because "[t]he
redacted material 'could reasonably be expected to constitute an unwarranted
invasion of personal privacy' and 'would disclose techniques and procedures
for law enforcement investigations or prosecutions.'"

1. Gov't Accountability Project v. HHS, No. 07-1702, 2010 WL 779774 (D.D.C.
Mar. 9, 2010) (Kollar-Kotelly, J.)

Re: Request for clinical study data regarding drug ciprofloxacin ("cipro")

• Exemption 4: Defendants contend, and plaintiff does not dispute, that the
records at stake were not provided voluntarily to the government by drug companies,
because "the government requires submission of the information at issue
as part of the drug application process." Accordingly, the court evaluates
whether the disclosure of the withheld information would "'cause substantial
harm to the competitive position of the person from whom the information was
obtained.'" The court finds that "even assuming that Defendants
have sufficiently shown the existence of actual competition," they have "failed
to meet their burden of showing 'a likelihood of substantial competitive injury'" because
they "proffered only vague and conclusory allegations in support of their
claim that release of the information at issue will likely cause competitive
harm" to the submitters.

As an initial matter, the court dismisses two of defendants' arguments as
irrelevant to the central issue of whether Exemption 4 was properly applied.
First, the court notes that although defendants, in an effort to explain
the lack of evidence showing that actual competition exists, point to the
regulatory provisions prohibiting the FDA from disclosing information about
pending drug applications, they "make no argument that they are precluded
from releasing the withheld material because it is drawn from a pending
drug application and therefore cannot be publicly disclosed." Second,
the court finds that defendant's arguments concerning 21 U.S.C. § 355(l)(1)
and its implementing regulations, which govern public disclosure of certain
safety and effectiveness data, are immaterial because plaintiff has not
challenged defendants' disclosure obligations under these provisions. The
court also stresses that "while Defendants affirmatively argue that
the relevant statutory and regulatory provisions do not require them to
disclose the raw data related to the cipro oral suspension, they do not
argue the reverse - i.e., that the provisions explicitly prohibit them
from disclosing the withheld material."

With respect to whether the withheld material was properly characterized
as confidential commercial information under Exemption 4, the court finds
defendants' arguments that "'a competitor could use that [] information
to support its own new drug application without having to incur the time and
expense involved in developing the information itself'" to be "conclusory." Defendants
fail to explain how the specific categories of information at issue would
cause substantial competitive injury. Additionally, defendants' contention
that "'the withheld information could permit a compet[ing] generic manufacturer
to more easily design around the patent(s)'" likewise is too general
to support withholdings under Exemption 4. "Defendants offer no explanation
whatsoever as to how a competitor could use the information at issue to support
their own drug applications, simply concluding that such information could
be used in some unspecified manner to the submitters' disadvantage." Lastly,
the court concludes that defendants' assertion that the owners of the information
could sue the FDA for improperly releasing information that would harm their
competitive position "even if true - is not the type of alleged harm
that qualifies as a 'competitive injury' under FOIA Exemption 4." For
the foregoing reasons, the court grants plaintiff's motion for summary judgment
with respect to Exemption 4 and directs defendants to release all of the material
characterized as confidential commercial information.

• Litigation considerations: After reviewing the agency's Vaughn index, plaintiff
concedes that Exemption 6 was properly applied. Accordingly, the court grants
defendants' motion for summary judgment in part with respect to the information
withheld under Exemption 6.

• Segregability: Since the court ordered the release of information withheld
under Exemption 4, segregability is not at issue for that material. With regard
to the information withheld pursuant to Exemption 6, the court finds that
defendants demonstrated that they had disclosed all reasonably segregable
information where the declaration asserted that the relevant records were
reviewed "'page-by-page and line-by-line'" as well as reviewed again
for accuracy and that the redactions were limited to "specific references
to patient initials, patient hospital admission dates, names of low-level
employees and other identifying information."

2. Pohl v. EPA, No. 09-1480, 2010 WL 786918 (W.D. Pa. Mar. 3, 2010) (Standish,
J.)

Re: Requests for certain scientific records and research data

• Litigation Considerations: "[T]he Court is not persuaded that principles
of sovereign immunity preclude us from requiring the Government to participate
in a form of ADR which would require it to expend funds on its own behalf."

3. Reynolds v. BOP, No. 09-3096, 2010 WL 744127 (E.D. Pa. Mar. 2, 2010) (Bartle,
C. J.)

Re: Requests for records pertaining to investigations concerning plaintiff

• Litigation Considerations: Plaintiff contends that, prior to his hearing
before the Merit Systems Protection Board (MSPB), he did not receive a copy
of a certain investigative report that was entered into evidence. He further
complains that "he did not have the opportunity to verify the report's
authenticity and that his ability to present an effective defense during his
MSPB hearing was hindered by the defendants' refusal to transmit the document" before
the proceeding. Since plaintiff has also submitted a FOIA request for the
report, he raises this claim under the FOIA. Defendants counter that plaintiff's
claim is "essentially a discovery dispute in connection with the matter
presently pending with the MSPB and that the MSPB is the proper forum for
resolution of whether the document was improperly withheld." The court
concurs with the defendants and, accordingly, dismisses the FOIA claim "without
prejudice to its assertion before the MSPB."

WEEK OF MARCH 15

1. Schwaner v. Dep't of the Army, No. 09-0476, 2010 WL 938802 (D.D.C. Mar.
17, 2010) (Sullivan, J.)

Re: Records pertaining to particular class of Army personnel

• Exhaustion: By not filing an administrative appeal of the Army's initial
response to his request, plaintiff failed to exhaust his administrative remedies.
The court is "not persuaded" by plaintiff's claim that he never
received the Army's response, "because he submits no declaration or other
evidence to support his contention that he did not receive a response, whether
timely or not, to his FOIA request. . . . Although defendant responded to
plaintiff's FOIA request beyond the time limits set forth by statute, its
declarant demonstrates that the Army responded before plaintiff filed this
civil action. At that point, plaintiff was obligated to exhaust his administrative
remedies, and he fails to establish that he did so."

• Exemption 6: "Even if plaintiff had exhausted his administrative
remedies prior to filing this action, the Court concludes that defendant would
have prevailed" on its use of Exemption 6. The court notes that in November
2001 DOD began withholding the names of its personnel. Although neither DOD's
policy memo nor its supporting declaration "directly address the personal
privacy interests of enlisted military personnel," the court finds that "[i]t
is easy to conclude . . . that [enlisted] personnel, like any individuals,
have a recognized privacy interest in avoiding disclosure of personal information." Indeed,
this court has previously recognized the privacy interests of military personnel.
By contrast, plaintiff has not shown any public interest in release of this
information.

2. King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy,
J.)

Re: First-party request

• Exhaustion: It is undisputed that plaintiff has not paid the search fees
required in order for the DEA to search 29 possibly responsive files. Thus,
he has not exhausted his administrative remedies as to this part of his request.

• Exemptions 7(C) & 7(F): Plaintiff's only challenge to the use of these
two exemptions is to claim that Exemption 7(C) should not apply because the
DEA's investigation of him is complete. Plaintiff is incorrect that privacy
interests diminish with the passage of time.

• Exemption 7(D): The court declines plaintiff's request that it conduct
an in camera review to ascertain whether DEA applied this exemption correctly. "In
the absence of any cause shown, the Court will accord to the agency declaration
the good faith to which it is entitled. . . ."

• Waiver: Although plaintiff makes a general assertion that the withheld
information has previously been released into the public domain, he makes
no showing to support the claim.

3. Strunk v. Dep't of State, No. 08-2234, 2010 WL 931197 (D.D.C. Mar. 15,
2010) (Leon, J.)

Re: Requests for records pertaining to President Obama

• Exhaustion: Because plaintiff did not submit a written authorization from
President Obama for release of information pertaining to him, plaintiff cannot
be said to have submitted proper FOIA requests to defendants State Department
and DHS, because these agencies require such authorizations for third-party
requests. As a result, plaintiff has failed to exhaust his administrative
remedies.

4. Calhoun v. DOJ, No. 08-1663, 2010 WL 893680 (D.D.C. Mar. 15, 2010) (Walton,
J.)

Re: First-party request

• Exhaustion: It is undisputed that plaintiff has failed to exhaust his administrative
remedies because he has not filed a FOIA request. Plaintiff claims that the
BOP's confiscation, per agency regulations, of his presentence report constitutes
the denial of a FOIA request. "This argument lacks merit."

5. FPL Group, Inc. v. IRS, No. 09-652, 2010 WL 890219 (D.D.C. Mar. 12, 2010)
(Huvelle, J.)

Re: Documents pertaining to IRS determinations on tax deductions claimed
by plaintiff

• Adequacy of search: IRS correctly determined that documents related to
a proposed settlement of plaintiff's dispute with the IRS were not responsive
to plaintiff's requests. Plaintiff's requests asked for documents pertaining
to the IRS's decision to reject "plaintiff's request for a blanket retroactive
change in accounting methodology," and do not cover documents pertaining
to settlement discussions which occurred after the IRS made this determination.
However, the court agrees with plaintiff that the IRS should have made attempts
to locate additional copies of documents that were destroyed by their "likely
custodian." In particular, the IRS did not show "that it would
have been 'fruitless'" to search the email records of agency employees
who exchanged messages with the employee who destroyed his own copy of the
records in question. IRS will be required to search the email records of these
employees and to submit a new affidavit attesting to the result of the additional
searches. If the IRS locates any additional documents and wishes to withhold
them, it will be required to submit them for in camera review.

• Exemption 5 (threshold, deliberative process, attorney work-product, and
attorney-client privileges): The IRS properly asserted the deliberative process
privilege to withhold in full draft memoranda pertaining to its ultimate revenue
ruling pertaining to plaintiff, except as to two pages where the IRS's description
of the documents and their connection to agency deliberations is insufficient.
Similarly, defendant has not provided sufficient information to justify its
withholding in part of 39 redacted pages. The IRS will produce the two withheld
in full pages and the 39 redacted pages for in camera review along with an
affidavit explaining any claimed basis for withholding.

As to a set of 265 pages for which defendant claimed the attorney work-product
and attorney-client privileges, the IRS has satisfied its burden as to 235
of those pages. However, as to 30 pages from this group, the IRS has only
claimed that the documents were "prepared 'during' active litigation." This
is insufficient for purposes of Exemption 5, because it does not establish
that the documents were created "in anticipation of" or "for" litigation.
Similarly, defendant has not provided enough detail for the court to determine
if these documents were subject to the attorney-client privilege. Defendant
must provide these documents for in camera review, along with an affidavit
explaining any withholdings. As to another set of documents, several of the
documents do not appear to meet the Exemption 5 threshold, because they were
submitted by an outside party. As to other documents, for some of them defendant
has provided sufficient information to justify its use of the deliberative
process privilege, but has failed to do so for others. The appropriately described
documents include "'notes taken by employees in internal meetings' or
documents 'exchanging thoughts and opinions about various legal and policy
decisions.'" The IRS also appropriately withheld draft documents. Conversely, "defendant
has failed to satisfy its burden with respect to eight documents whose descriptions
suggest that they could contain unprivileged agency working law, particularly
because they may 'concern[] specific taxpayers or classes of taxpayers.'" The
IRS also "has too vaguely described 62 documents as 'regarding' the proposed
revenue ruling or agency attorneys' 'comments' on or 'concerns,' 'problems,'
or 'issues' with that proposal. Plaintiff correctly observes that these descriptions
do not permit the Court to determine whether the documents '"discuss
the wisdom or merits of a particular agency policy"' or '"simply
explain and apply established policy."'"

Additionally, "[d]efendant . . . also fails to describe the contents
of six sets of handwritten notes that were redacted from documents provided
by non-governmental entities. [Defendant's] declaration that members of the
drafting team wrote these notes 'during' - i.e., concurrently with - the [policy
guidance creation] process is insufficient to establish the role of these
notes in that process." Defendant's submissions are similarly lacking
with regarding to other sets of handwritten notes. The IRS also did not meet
its burden with regard to another document because it did not adequately describe
the decisionmaking process or the role in that process of the memo's author.

Finally, defendant did not sufficiently justify its use of the attorney work-product
privilege as to eight documents. "[I]t is not enough that these documents
involve 'discussions' among agency employees 'regarding' . . . litigation,
the revenue ruling, or future related litigation; rather, the documents must
have been prepared 'for' or 'in anticipation of' litigation. . . . The privilege
log's descriptions of these eight documents also say nothing about whether
they were created for or in anticipation of litigation."

6. Bailey v. Callahan, No. 09-10, 2010 WL 924251 (E.D. Va. Mar. 11, 2010)
(Spencer, C.J.)

Re: Questions pertaining to staffing levels and work activities of Department
of Homeland Security employees

• Procedural: The first item of plaintiff's request, a request for the number
of DHS personnel and contractors working in several named locations on a day
named by plaintiff "is not so much a request for records as it is a question
seeking an answer for which Defendant has confirmed DHS does not maintain
records. Additionally, compiling this data, if possible, would place an undue
burden on DHS." Similarly, plaintiff's request for the number of DHS
personnel traveling on certain flights on a particular day "places an
undue burden on DHS because these records are not in existence and could not
be compiled with a reasonable amount of effort." Finally, plaintiff's
request for the number of "Judicial Warrants" regarding activities
on a given day obtained by DHS "seeks an answer in the form of a record
for which DHS does not maintain records."

7. Ioane v. Comm'r of IRS, No. 09-00243 (D. Nev. Mar. 11, 2010) (Jones, J.)

Re: First-party request

• Exhaustion: Plaintiff did not mail his request for IRS records to any of
the locations designated by IRS regulations as recipients of FOIA requests.
As such, plaintiff cannot be said to have submitted a proper FOIA request
to the IRS, and therefore did not exhaust his administrative remedies. The
fact that the Department of Justice received plaintiff's request is irrelevant
to plaintiff's claim against the IRS.

• Litigation considerations: Plaintiff's motion to add a fourth cause of
action is granted even though at the time it was made defendant's response
time under the FOIA had not yet run. "Though prior leave to amend weighs
heavily against granting subsequent leave to amend, the same is not true for
leave to supplement." Indeed, "[c]onsiderations of judicial economy
favor granting Plaintiff's motion. . . . Allowing Plaintiff to supplement
his pleading avoids the necessity of Plaintiff filing a new and separate complaint
against Defendant." Plaintiff's motion to add the Department of Justice
as a party will not be granted, though plaintiff retains the option of filing
a motion to amend with an amended pleading so that the matter may be fully
considered by the court. Plaintiff's motion for a Vaughn index is premature
prior to the filing of dispositive motions.

8. Shannahan v. IRS, No. 08-0452 (W.D. Wash. Feb. 11, 2010) (Robart, J.)

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

• Attorney fees and costs: "[T]he court finds that [plaintiff] has
not submitted 'convincing evidence' that this FOIA action caused 'a voluntary
or unilateral change in position by the agency.' Notably, [plaintiff] has
not shown that the IRS changed its position regarding the Original Documents
[i.e. original accounting and ledger records] in the course of this litigation,
nor that the IRS released the Original Documents to [plaintiff]. Although
the IRS may have cooperated with [plaintiff] in contacting the U.S. Attorney's
Office regarding the Original Documents, it does not follow that the IRS's
assistance in helping [plaintiff] request and obtain the Original Documents
from another agency satisfies the catalyst theory of entitlement." Furthermore,
even were he eligible, the court finds that plaintiff would not be entitled
to an award of fees. Plaintiff "has shown no meaningful public benefit
from disclosure. The Original Documents, in and of themselves, appear to have
no public use. These documents are not intended for public dissemination,
nor does [plaintiff] suggest that they will have any public effect if disclosed.
The court is also not persuaded that this FOIA action vindicates the alleged
public interest in promoting cooperation with governmental investigations." Additionally, "the
court finds that disclosure of the Original Documents is reasonably likely
to result in a commercial benefit to the Entities and that they hold a commercial
interest in the documents." This assessment is based upon plaintiff's
own declaration submitted to the court. Finally, "the court finds that
the IRS's withholding of the records was reasonable." Defendant's "position
that the Original Documents were not agency records is colorable in light
of its contention that the Original Documents were not under its control at
the time of [plaintiff's] FOIA request."

WEEK OF MARCH 22

1. United Technologies Corp. v. DOD, Nos. 08-5435 & 08-5436, 2010 WL
1030053 (D.C. Cir. Mar. 23, 2010) (Henderson, J.)

Re: Reverse FOIA suit seeking to prevent disclosure of Corrective Action
Requests (CARs) and audits pertaining to plaintiff's products

• Standard of Review: Reverse FOIA suits are brought under the Administrative
Procedures Act, under which the court "will reverse the agency action
only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.' . . . This 'standard is narrow and a court is
not to substitute its judgment for that of the agency. Nevertheless, the agency
must examine the relevant data and articulate a satisfactory explanation for
its action including a ' rational connection between the facts found and the
choice made.'"

• Exemption 4: The submitters do not challenge the district court's finding
that the information was a mandatory submission. The court finds that "[c]alling
customers' attention to unfavorable agency evaluations or unfavorable press
does not amount to an 'affirmative use of proprietary information by competitors.'
. . . In other words, Exemption 4 does not guard against mere embarrassment
in the marketplace or reputational injury." DOD "correctly rejected" this
argument from the submitters.

However, the court finds that defendant has not responded sufficiently to
the submitters' claim that release of the records will reveal proprietary
information about plaintiffs' manufacturing and quality control processes.
DOD claims it redacted all sensitive information, but "the documents
describe, in part, how the contractors build and inspect helicopters and/or
engines. Once disclosed, competitors could, it appears, use the information
to improve their own manufacturing and quality control systems, thus making
'affirmative use of proprietary information' against which Exemption 4 is
meant to guard. We believe that [DOD] failed to provide a reasoned basis for
its conclusion to the contrary. . . . [W]here, as here, a contractor pinpoints
by letter and affidavit technical information it believes that its competitors
can use in their own operations, the agency must explain why substantial competitive
harm is not likely to result if the information is disclosed." DOD has
only provided conclusory statements of its position.

2. Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., No.
09-3795, 2010 WL 986665 (2d Cir. Mar. 19, 2010) (Jacobs, C.J.)

Re: Records pertaining to loans made under Discount Window loan program

• Agency records: The Court finds that the Federal Reserve Banks do not issue
loans on behalf of the Board of Governors of the Federal Reserve System (Board). "However,
'Records of the Board' also include such records that 'are maintained for
administrative reasons in the regular course of business in official files
in any division or office of the Board or any Federal Reserve Bank in connection
with the transaction of any official business.' . . . The Board argues briefly
that it interprets this regulation as well to include only those records created
'under delegated authority from the Board.' This interpretation does not withstand
scrutiny." The regulation of the Board "provides that certain records
of the twelve Federal Reserve Banks are records of the Board and those records
must be searched."

"[B]ecause the district court ruled categorically that collateral information
is protected from disclosure by Exemption 4[,] [i]t is unclear if such general
collateral information was requested, or whether, under [the court's ruling
in Bloomberg], such information could be withheld." This issue is remanded
to the district court for an initial ruling.

• Exemption 4: For the reasons discussed in the Bloomberg decision, the court
overturns the district court's ruling that the records requested by plaintiff, "the
identity of the borrowing bank, the dollar amount of the loans, the collateral
securing the loans, and the loan origination and maturity dates," are
protected by Exemption 4. The case is remanded and the Board will be required
to release this information.

3. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., Nos. 09-4083 & 09-4097,
2010 WL 986527 (2d Cir. Mar. 19, 2010) (Jacobs, C.J.)

Re: Documents reflecting "discount window" loans authorized by
the Federal Reserve Board and designed to provide "emergency liquidity" to
institutions "during times of systemic stress"

• Exemption 4: The court affirms the lower court ruling that the requested
information, "the identity of the borrowing bank, the dollar amount of
the loans, the loan origination and maturity dates, and the collateral securing
the loan . . . was not 'obtained from' the borrowing banks within the meaning
of FOIA Exemption 4."

Plaintiff's request did not seek loan applications, which would likely be
obtained from a "person." Rather, it seeks records of loans actually
made by defendant, and these records, generated by defendant itself, cannot
be said to have been obtained from outside the agency. This is true regardless
of the fact that "disclosure of loan terms allows one to back into information
about the borrower." Cases that "have extended the protection of
Exemption 4 to information beyond the raw data gathered from persons by the
government" are irrelevant to "the present case, where what is requested
is . . . disclosure of the agency's own executive actions." Defendant
argues that the loans are granted "as a matter of course," hence
the information in the loan approvals is a mere "translat[ion of] the
loan requests." The court finds, however, that this contention "is
not supported by the record," which indicates that "approval is
required for the loan." Moreover, "even if the loans were granted
automatically, they did not come into existence until the Federal Reserve
Bank took executive action by granting the loan. The only information sought
is a summary report of actions that were taken by the government. And it cannot
be said that the government 'obtained' information as to its own acts and
doings from external sources or persons."

Defendant's alternative argument is that the Federal Reserve Banks are "persons" from
whom the Board received the information in question, and that disclosure would
harm the Board in performance of its mission. The court finds that "[t]he
'program effectiveness' test [(recognized by the First and D.C. Circuits)],
if applied as the Board invokes it, would give impermissible deference to
the agency, and would be analogous to the 'public interest' standard rejected
by the Supreme Court in the context of Exemption Five." Although finding
the arguments made regarding program effectiveness harm to be "plausible," the
court declines to adopt the test as not within the scope of Exemption 4 as
drafted by Congress.

1. Bilderbeek v. DOJ, No. 08-1931, 2010 WL 1049618 (M.D. Fla. Mar. 22, 2010)
(Antoon, J.)

Re: Documents pertaining to DEA investigation of plaintiffs and of Llanos
Oil Exploration, Ltd.

• Exemption 7(threshold): "Despite the [plaintiffs'] protestations
that the DEA has been 'duped' into investigating their purported criminal
activity, the Court concludes that a plausible basis existed for the agency's
decision to investigate. . . . In light of Plaintiff's own statement that
Colombian government officials implicated them in violations of federal law,
a plausible basis for the DEA's decision to investigate Plaintiffs and their
company existed."

• Exemption 7(A): "In the instant case, the Department defines the
three categories of records - Investigative, Administrative, and Publicly
Known - and their component subcategories, states that each document responsive
to the FOIA request was reviewed and placed in its appropriate category or
subcategory, and explains to the Court with adequate information how the release
of each category of documents would interfere with enforcement proceedings." Defendant
has also "explained with reasonable specificity why the records at issue
cannot be further segregated."

• Exemption 7(C)/Glomar: Plaintiffs have sought information concerning a
number of third parties who were alleged to have connections to the DEA's
investigation of plaintiffs. "Numerous courts, however, have held that
the disclosure of information relating to an individual's involvement in law
enforcement proceedings constitutes an unwarranted invasion of personal privacy
under Exemption 7(C). . . . Other than vague assertions of an improper investigation,
the Plaintiffs have articulated no genuine public interest in the release
of the records at issue. Accordingly, the Court finds that the Department
properly issued a Glomar response pursuant to Exemption 7(C)."

2. Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy,
J.)

Re: First-party request

• Litigation considerations: "To successfully challenge an agency's
showing that it complied with the FOIA, the plaintiff must come forward with
'specific facts' demonstrating that there is a genuine issue with respect
to whether the agency has improperly withheld extant agency records. . . .
[Plaintiff's] boilerplate allegations of bad faith do not constitute the 'specific
facts' required to threaten the good faith presumption."

Additionally, plaintiff's "request for an index of the asserted exemptions
is frivolous. . . . The FBI produced to [plaintiff] copies of records that
show the precise location and extent of the redaction in context, and that
correlate the claimed exemptions with each redaction. A separate index of
redactions would not only be redundant . . . but would provide less, not more,
information to him, because the index would remove the context." Finally,
plaintiff's request for in camera review is denied, as he has not provided
any justification for this request.

• Adequacy of search: Plaintiff complains that the FBI did not search its
I-drive, as he specifically requested. However, "there is good reason
to conclude that no documents responsive to his information request would
be found on an I-drive in 2006 or later. Furthermore, it is not even clear
that the Chicago Field Office maintains an I-drive, as some field offices
now have a shared drive that is identified by some other letter. . . . These
facts illustrate why the law does not require an agency to conform its search
to the dictates of a requester, but rather to conduct a search that is reasonably
expected to produce the information requested." Plaintiff "has
not offered any specific facts to support a conclusion that the FBI's decision
not to search its I-drive was unreasonable or fell short of the requirements
of the law to conduct a search that is 'reasonably expected to produce the
information requested.'" Similarly, plaintiff's assertion that the FBI
must have additional records on him is not convincing, both because he "is
not entitled to records about other persons . . . and [because] the FBI is
but one of multiple DOJ components that might have created and maintained
records in the investigation leading to [plaintiff's] prosecution."

• Exemptions 2 & 7(D): "On their face, these exemptions justify
withholding the agency's assigned identification code number for a [confidential
source], and the information that was gleaned from the [confidential source]."

• Exemptions 2 & 7(E): Defendant properly asserted these two exemptions
to withhold "its internal assessment ratings of publicly known law enforcement
techniques and procedures." Plaintiff's claim that the exemptions only
apply to "techniques or procedures that are not generally known to the
public" is incorrect. The FBI's "investigative techniques 'are rated
numerically to memorialize their effectiveness' and . . . '[i]f the form contains
a numerical rating adjacent to one or more of the listed investigative techniques,
all columns of ratings are excised in order to preclude disclosure of both
the particular investigative techniques used in the investigation and the
effectiveness of the individual techniques.'"

• Exemptions 6 & 7(C): "[T]he application of these exemptions [to
withhold information about third parties] appears justified on their face." Plaintiff
claims that the withheld information is already in the public domain, but
he "has not '"point[ed] to specific information in the public domain
that appears to duplicate that being withheld,''' as the law requires him
to do before a court can find that the exemption has been waived by the public
domain doctrine.

3. Edwards v. EOUSA, No. 08-1956, 2010 WL 1038465 (M.D. Fla. Mar. 19, 2010)
(Convington, J.)

Re: Third-party request

• Waiver: Plaintiff's only challenge to defendant's withholdings is to claim
that EOUSA cannot withhold the records in question because it previously released
them to him. "The Court finds that Plaintiff's assertions fail to raise
a genuine issue of material fact that precludes summary judgment."

4. Santana v. DOJ, No. 09-300, 2010 WL 1031009 (D.D.C. Mar. 18, 2010) (Leon,
J.)

Re: Third-party request

• Adequacy of search: Defendant's "declaration does not specifically
identify what information" it categorically denied access to and what
information it conducted a search for. "On this record, the Court cannot
determine what parts of the plaintiff's FOIA request were allocated to each
of the two searches opened by the defendant, and therefore, cannot assess
the agency's responses in light of the subject matter to which the responses
relate. Furthermore, the Court cannot determine either the scope and method
of the search conducted in relation to No. 07-158, or whether a search was
conducted at all in response to No. 07-159. Without a declaration that explains
in reasonable detail and in a non-conclusory fashion the scope and method
of the agency's search . . . including identifying which systems of records
were searched and the search terms used to conduct the search, the Court cannot
assess the reasonableness of any search." Defendant is ordered to submit
a renewed dispositive motion within 30 days.

5. Ramstack v. Dep't of the Army, No. 08-0658, 2010 WL 966210 (D.D.C. Mar.
18, 2010) (Urbina, J.)

Re: First-party request

• Litigation considerations: "The applicable statute of limitations
for FOIA actions is set forth in 28 U.S.C. § 2401(a), which requires that
a complaint be filed within six years of the accrual of a claim." Under
the FOIA, a "claim first accrues 'when the plaintiff has actually or
constructively exhausted his administrative remedies.'" Defendant Department
of State closed its case files pertaining to plaintiff's requests in 1988
and 1990, and then, pursuant to document destruction schedules, "destroyed
these files in 1994 and 1995 based on the absence of activity. . . . Because
the DOS destroyed the relevant files in 1994 and 1995, the court has no record
of whether the DOS responded to the plaintiff's requests or whether the plaintiff
appealed any such response by the agency. . . . [H]owever, the absence of
such records does not prevent the court from reaching a disposition of these
claims." If the State Department did not respond to plaintiff's request,
the statute of limitations would have commenced ten business days after plaintiff's
1987 request. If the State Department did respond, and if plaintiff filed
an administrative appeal, "any such activity must have concluded by 1995,
when the DOS destroyed the files at issue, as the DOS recovered no subsequent
correspondence or records reflecting activity in connection with these requests." Under
either scenario, the statute of limitations on plaintiff's claims would have
run long before 2008, when plaintiff filed his complaint with the court. Thus,
the court does not have subject matter jurisdiction over plaintiff's claims
against the Department of State.

• Adequacy of search: Defendants CIA and Army assert that their most recent
searches "were thorough and adequate and warrant summary judgment in
their favor. . . . The plaintiff does not dispute the adequacy of these new
searches." Instead, plaintiff claims that defendant Army must explain
how it could find no records pertaining to plaintiff even though the Department
of Veterans Affairs has records reflecting plaintiff's enlistment in the Army. "The
plaintiff has not provided any evidence that the defendants' affidavits are
in bad faith. . . . In the absence of any contrary suggestion by the plaintiff,
the court concludes that the new searches conducted by the CIA . . . and the
Army . . . were adequate." Defendants were not required to explain the
purported existence of VA records pertaining to plaintiff, but they "have
gone above and beyond their strict obligations under the FOIA by providing
an explanation of the VA records in question."

6. Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539 (D.D.C. Mar.
18, 2010) (Kollar-Kotelly, J.)

Re: First-party request; request for documents pertaining to possible violations
of Federal Acquisition Regulation by USAID

• Proper party defendant: Though plaintiff brought suit against defendant
in his official capacity as USAID Administrator, "FOIA actions may be
brought only against an agency."

• Adequacy of search: Defendant's searches for responsive records "were
targeted by key phrases that correlated to the substance of [plaintiff's]
requests. The declarations are relatively detailed and not conclusory in nature.
[Plaintiff] argues that the agency's search was not adequate because it did
not turn up every record that [plaintiff] believes to exist and was conducted
in bad faith. . . . However; 'the focus of the adequacy inquiry is not on
the results.' . . . The fact that other responsive records may exist does
not render a search inadequate. . . . As for bad faith, [plaintiff's] allegations
are conclusory and unsupported by evidence in the record."

However, since plaintiff specifically requested that USAID search back-up
tapes, the agency "must, at the very least, explain whether or not such
back-up tapes exist, were searched, or were likely to contain responsive records." Moreover,
though defendant has explained which offices were searched, its declarations "do
not aver that the five offices searched were the only offices likely to contain
responsive information. Accordingly, the Court cannot determine, based on
the present record, whether or not USAID's search was adequate." Contrary
to his claims, however, plaintiff has not demonstrated that he is entitled
to summary judgment on this issue, either, "because he has not shown
based on undisputed facts that USAID's search was inadequate as a matter of
law."

• Reasonably described records: Defendant appropriately determined that plaintiff's
requests for documents that might reflect any "'possible violations of
FAR 16.505'" since 1995 were vague and overbroad. These requests "would
require the agency to 'locate, review, redact, and arrange for inspection
of a vast quantity of material.' . . . In addition, the agency would need
to make a complicated judgment call in order to determine what records might
indicate a 'possible violation' of fair opportunity provisions."

• Litigation considerations/timeliness: Plaintiff "argues that he should
be entitled to relief because USAID was not timely in its production of documents
in response to his requests. However, 'a lack of timeliness or compliance
with FOIA deadlines does not preclude summary judgment for an agency, nor
mandate summary judgment for the requester.' . . . Moreover, to the extent
that [plaintiff] seeks as a sanction monetary relief such as a fee waiver,
his claim is not authorized by FOIA."

• Exemption 5 (attorney work-product & attorney-client privileges): The "evidence
clearly shows that the documents withheld or redacted constitute legal advice
or communications with agency counsel regarding either [plaintiff's] legal
proceedings or the agency's use of Iraq funds. Thus the agency had a reasonable
basis for withholding or redacting information based on the attorney-client
and attorney work-product privileges pursuant to Exemption 5."

• Exemption 6: USAID properly redacted the home phone numbers of its employees
as well as the identities of USAID employees not connected to plaintiff's
requests. In both cases, there are legitimate privacy interests at stake,
and little or no public interest in disclosure.

7. Barnett v. U. S. Dep't of Labor, No. 09-146, 2010 WL 985225 (E.D. Tex.
Mar. 15, 2010) (Hines, Mag. J.)

Re: Witness statements

• Exemption 7(C): The court finds that the public interest in the requested
records outweighs any privacy interest, except as to personally identifying
information of the witnesses, including "names, addresses, telephone
numbers, social security numbers and similar personal identifiers."

• Exemption 7(D): Because the witnesses were given express assurances of
confidentiality, Exemption 7(D) applies, but only in order to protect information
protected under Exemption 7(C) "plus any substantive factual information
that reasonably can be expected to disclose the identity of a witness. The
court has conducted a segregability analysis, and has determined that some
of the withheld factual information reasonably could be used to link information
to a confidential source whereas some could not." A confidential witness's
handwritten statement can be withheld in full since "handwriting analysis
could be used to link the statement to its source." The transcribed
version, on the other hand, can be released in part.

WEEK OF MARCH 29

1. Bigwood v. DIA, No. 08-1431, 2010 WL 1189850 (D.D.C. Mar. 30, 2010) (Urbina,
J.)

Re: Records pertaining to Columbian paramilitary leader Carlos Castaño

• Litigation considerations: Plaintiff's claims are time-barred. He submitted
his request in April 2001, meaning that the six-year statute of limitations
that applies in FOIA cases began to run on May 21, 2001, twenty business days
after plaintiff made his request (to which defendant did not respond). Plaintiff
claims that the statute of limitations was re-started in 2005 when he made
a request for expedited processing of his initial request, but "he offers
no legal authority for his position . . . and the court is unaware of any
case law that would support such a result." Thus, plaintiff's time for
filing suit expired in May 2007, more than one year before he filed his claim.
Furthermore, even were the court to accept plaintiff's argument that his request
for expedited processing re-started the statute of limitations, then plaintiff's
claim would be dismissed for failure to exhaust administrative remedies, since
he did not file an administrative appeal of defendant's denial of his request
for expedited processing.

2. Concepcion v. FBI, No. 07-1766, 2010 WL 1189832 (D.D.C. Mar. 30, 2010)
(Urbina, J.)

Re: Records related to criminal investigation of plaintiff

• Sealing Orders: Defendant has not provided sufficient justification for
its claim that the sealing order issued by the judge in plaintiff's criminal
case should be read to bar release of a draft affidavit that is identical
to an affidavit that was filed with the court under seal. The sealing order "itself
presents no rationale for its issuance" and "defendant presents
no transcript or other documentation to cast light on the factors that motivated
the court to impose the seal."

• Exemption 7(C): The FBI appropriately asserted this exemption to protect
the name of an FBI Special Agent who supervised the criminal investigation
of plaintiff. Such information is "routinely withheld under Exemption
7(C) on the ground that . . . disclosure could reasonably be expected to constitute
an unwarranted invasion of the officers' personal privacy."

• Exemption 7(D): Defendant properly used this exemption to withhold the
identify of and information provided by a cooperating witness. Defendant's
affidavit explains that the withheld information is "'singular in nature,'
and that the release of the information 'could reveal the informant's identity.'"

3. Gov't Accountability Project v. U.S. Dep't of State, No. 08-1295, 2010
WL 1222156 (D.D.C. Mar. 29, 2010) (Leon, J.)

Re: Documents pertaining to the Foundation for the Future (FF)

• Exemption 1: The State Department properly withheld telegrams sent from
U.S. embassies that "convey[ed] the views of foreign government officials.
. . . The telegrams include information obtained in confidence during the
course of the conduct of U.S. foreign relations." Defendant's declaration
establishes that "the original classification authority in the State
Department determined that disclosure of the withheld information could reasonably
be expected to cause damage to national security and describes such damage." In
particular, "disclosure of the information in question would cause foreign
governments to become less willing in the future to furnish information important
to the conduct of U.S. foreign relations."

• Exemption 4: Though plaintiff "appears to argue that the withheld
information is not commercial," the D.C. Circuit "has found that
'the terms "commercial" and "financial" in the exemption
should be given their ordinary meanings' and that the commercial information
provision is not confined to only those records that reveal 'basic commercial
operations.'" The withheld documents, which pertain to the possibility
of FF establishing operations in certain areas as well as other matters pertaining
to FF operations, show that "defendant has demonstrated FF's commercial
interest in the information withheld under Exemption 4." Moreover, defendant "has
shown that the information withheld under Exemption 4 was submitted voluntarily
and 'was provided with the expectation of confidentiality.' . . . In addition,
the defendant has demonstrated that releasing the withheld information 'would
harm the competitive position of the FF vis-a-vis other foundations working
in the same region and competing for similar high-quality projects.' . . .
This information concerning FF's internal deliberations is certainly not the
type that would '"customarily" be made public.'"

• Exemption 5 (threshold & deliberative process privilege): The court
finds that documents created by a contractor hired by defendant meet the Exemption
5 threshold, even though the contractor was hired to provide advice and assistance
to FF, and not to the State Department itself, directly. "[I]t is obvious
that the Eurasia Foundation acted as a consultant to the State Department,
and not in any adversarial capacity that would negate the consulting relationship."

As to defendant's use of the deliberative process privilege, "[i]t is
apparent that [the] documents [withheld pursuant to the deliberative process
privilege] are pre-decisional. Furthermore, the descriptions of these documents
indicate that they contain advice and recommendations that were an integral
part of identifiable decisional processes and were deliberative in nature.
. . . Plaintiff's argument that the defendant failed to produce a specific
decision for any of the documents is unconvincing in light of the specific
decisions clearly at issue for each of the challenged documents. In addition,
I agree with defendant's assertion that disclosure of this information is
likely to interfere with the candor necessary for open and frank discussions
on the defendant's preferred course of action regarding the FF."

• Exemption 6: Defendant properly withheld "personal email addresses
of several individuals, the names and curriculum vitae of individuals who
were considered for the FF board but were ultimately not selected, and any
purely personal information contained in the curriculum vitae of the successful
applicants for the board." In this case, "the private individuals
mentioned in these records have a clear privacy interest in avoiding the disclosure
of their personal email address. . . . Furthermore, releasing their email
addresses serves no public interest because these email addresses would not
reveal 'what the government is up to.'"

4. ACLU v. DOJ, No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson,
J.)

Re: Documents pertaining to use of cell phone tracking in criminal investigations
and prosecutions

• Adequacy of search: DOJ's affidavit "adequately demonstrates that
the search was reasonable. . . . The fact that the search did not yield final
versions of certain draft documents does not render the search itself inadequate.
Final versions may not exist, and, even if they do, a search need not yield
every document to be adequate. . . . The ACLU erroneously argues that it was
the government's burden to show that a more extensive search would be unduly
burdensome. That is not the rule where, as here, the government has conducted
a search that fully addresses the scope of the request."

• Exemptions 2 & 7(E): DOJ properly withheld "guides or samples
that AUSAs use in drafting applications, orders and declarations to obtain
authorization for cell phone monitoring. These documents are not final applications
or orders, so it is quite evident that they are 'predominantly internal.'
And, the government provides adequate affidavit support for its argument that
release of the redacted information would risk circumvention of the law because
it would reveal information about how co-conspirators can be identified, the
conditions under which cell phone tracking would not work, and details about
the conditions necessary for cell phone tracking to be effective." DOJ
also appropriately withheld "information on law enforcement techniques
that are not readily available to the public." "As the government
correctly points out, the first prong of Exemption 7(E) permits withholding
of information that would disclose techniques and procedures for law enforcement
investigations or prosecutions without a showing [of] risk of circumvention." The
withheld records "reveal[] limitations of the law enforcement techniques,
details about what the cell phone records can capture, and uses of the records
that are not obvious or well-known."

• Exemptions 6 & 7(C): Plaintiff seeks the case names and docket numbers
of cases "in which courts granted applications to obtain cell phone location
data without probable cause determinations." The court "allocate[s]
a greater privacy interest to persons who were acquitted, or whose cases were
dismissed or sealed (and remain under seal), and a considerably lesser privacy
interest to persons who were convicted, or who entered public guilty pleas." Plaintiff
asserts that there is a public interest in release of this information because
it will explain "'to what extent and to what end the government is engaged
in cell phone tracking, to what extent these surveillance activities lead
to prosecutions, and to what extent these prosecutions are successful.'" However,
plaintiff "provides only a meager explanation of just how the release
of case names and docket numbers will advance that interest."

In the court's view, the ACLU's interest is in "find[ing] and pursu[ing]
the juiciest cases - the ones that would best illustrate the Fourth Amendment
argument the ACLU is apparently developing. The easier it becomes to pursue
such follow-up investigations, however, the more likely it is that unwarranted
invasions of personal privacy will occur." The court finds that the
public interest in release outweighs the privacy interests at stake as to
those defendants who have been convicted or who entered guilty pleas, but
that the privacy interests of defendants who have been acquitted or whose
cases have been and remain sealed outweighs the public interest in release
of case names and docket numbers. As to docket numbers from applications for
cases yet to be prosecuted, ACLU concedes that the names of unprosecuted targets
are exempt. Given the fact that after such names are redacted, nothing would
be left but "in re" lines, the court "will not order the government
to make such a meaningless production." As to docket numbers for cases
subject to seal, disclosure "could reveal surveillance targets yet to
be prosecuted," thus the redactions are appropriate.

5. Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan,
J.) (parties' motions for summary judgment denied without prejudice)

Re: First and third-party requests

• Adequacy of search: Plaintiff's request to defendant U.S. Postal Inspection
Service (USPIS) specifies that the search not be limited to criminal files,
but USPIS's declaration "does not explain why plaintiff's requests for
information about himself are presumed to implicate investigative files maintained
in the [Inspection Service's Integrated Information System]. Moreover, the
USPIS does not explain sufficiently its interpretations of plaintiff's FOIA
requests." As a result, USPIS has "not demonstrate[d] that it has
searched the files or systems of records most likely to contain records responsive
to plaintiff's FOIA requests."

• Litigation considerations: "Neither plaintiff's status as a Native
American or his intended use of the requested records leads inexorably to
the conclusion that he is entitled to the release in full of all the records
he requested."

• Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E): The court finds that USPIS
has not adequately justified its decision to invoke these exemptions to withhold
records. Defendant's Vaughn index "falls short . . . both in its failure
to discuss the nature or type of information withheld and its tendency to
restate the statutory language of the exemptions claimed as its sole justification
for withholding the relevant information. The accompanying declaration offers
no additional information to compensate for the Vaughn index's deficiencies." USPIS's
declaration repeatedly fails to establish that its withholdings were consistent
with statutory standards.

• Exemption 7 (threshold): Defendant BOP failed to show that the records
it withheld under Exemptions 7(C) and 7(F) were compiled for law enforcement
purposes. "[T]he agency appears to rely solely on its status as a law
enforcement agency as the premise from which the Court should conclude that
any record it maintains was compiled for law enforcement purposes." This
is insufficient.

• Exemption 7(A): Defendant USPIS "offers no justification" for
its assertion of this exemption "beyond two conclusory statements."

• Exemption 7(F): BOP "does not explain 'whether there is some nexus
between disclosure and possible harm' to . . . third parties."

6. Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar.
26, 2010) (Waddoups, J.)

Re: Records pertaining to bombing of Murrah federal building in Oklahoma
City

• Litigation considerations: "[T]he court concludes that [plaintiff]
has not made any credible argument or proffered any evidence that suggests
that the CIA acted in bad faith in withholding any of the documents in this
case." Moreover, he "points to no authority suggesting that a long
delay in responding to FOIA requests alone will support a finding of bad faith
by a withholding agency."

• Exemption 1/In camera review: The CIA properly invoked this exemption to
withhold several classified documents related to the Oklahoma City bombing.
Defendant's "Vaughn index and . . . affidavits" are sufficient.
Though plaintiff asserts that there is no showing that an attorney who made
notes on one of the documents had a proper security clearance, "that
fact can be inferred from the fact that [the attorney in question] was allowed
access to review classified documents." The court disagrees with plaintiff
that in camera review is required, especially in light of the fact "that
courts are ill-equipped to properly weigh national security interests and
accordingly, 'if the agency . . . diligently and conscientiously submits affidavits
summarizing the matters withheld wherein it clearly indicates the rationale
for the claimed exemption, the trial court need not undertake an in camera
inspection of the documents.'"

• Exemption 5 (attorney work-product privilege): Defendant appropriately
withheld several memos from CIA attorneys to DOJ attorneys related to prosecution
efforts in light of the Oklahoma City bombing. Plaintiff incorrectly asserts
that Exemption 5 is limited to the attorney-client privilege. While the court
agrees with plaintiff "that facts are not covered by the work product
doctrine . . . how the CIA attorney described the records and his or her mental
impressions of them . . . would not have been subject to discovery." Plaintiff
is further incorrect in his assertion that the CIA was required to segregate
out and release factual materials, "because attorney work product 'shields
both opinion and factual work product from discovery.'"

7. Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25,
2010) (Mordue, C.J.)

Re: Records pertaining to Civil Division's case management system database
[CASES]

• Adequacy of search: Plaintiff challenges defendant's good faith in carrying
out its search. Chiefly, plaintiff asserts that defendant changed the names
of data fields in the responsive records in order to make them appear more
appropriate for withholding. However, defendant's declaration "explains
that the changes were made by [agency] staff in order to assist the FOIA office
in making exemption determinations and to reflect defendant's understanding
of what those fields contain. Thus, plaintiffs have failed to rebut the presumption
of good faith to which the declarations are entitled."

• Procedural matters/marking documents: The court accepts defendant's explanation
that it would not be technically feasible to show redactions for sealed cases
in the released portions of the requested records. Defendant's "declarations
are specific, and explain in detail that defendant cannot indicate redactions
for sealed cases because the method required to do so would cause 'system
run-time problems'" and the designated "query would not produce
a result."

• Exemption 2 ("low" & "high"): DOJ appropriately
withheld user IDs for its internal computer network [JCON]. "It is undisputed
that JCON IDs relate solely to the [Civil] Division's internal rules and practices
regarding use of the JCON system. Further, there is no public interest in
the JCON IDs. Indeed, plaintiffs seek disclosure of the JCON ID fields solely
to determine which attorney is handling each filed case, not because any JCON
ID intrinsically discloses anything about the workings of the agency. Even
if there were an identifiable public interest in a user's login information,
defendant has established that disclosure of JCON IDs would violate its network
security policies."

• Exemptions 2 & 6: Defendant has not provided the court with enough
information to justify its withholding of information describing structured
settlements. This information includes number of payments, amount received,
dates that checks were written, and beneficiary name. "Defendant's declarations
contain no details; they do not explain how or why these records are internal,
nor do they explain the kind of cases to which the records are connected." Defendant
will be given an opportunity to supplement its filings on this issue.

Similarly, defendant did not adequately justify its decision to withhold
alien registration numbers or "non-employee identification numbers 'assigned
by the government to identify private individuals.'" Defendant offers
no details on "how disclosure could lead to identity theft." The
court agrees with plaintiff that defendant "failed to specify the privacy
interest" for most of the withheld numbers, nor has it demonstrated to
the court that it could not segregate out releaseable from protected information.
Defendant will be given an opportunity to supplement its filings on this issue.

• Exemption 5 (deliberative process & attorney work-product privileges):
The court finds that defendant has not provided sufficient detail to justify
its decision to withhold a field that reflects the amount of damages one party
seeks, either when this amount has been formally stated by the plaintiff,
or is merely an estimate by a DOJ attorney of what a plaintiff will seek. "Defendant
does not explain what disclosure of the information in the 'government exposure
amount, based on attorney estimate,' 'monetary value for undisposed event
awarded to the opposition' fields would reveal; it states only that they 'reflect
the mental impressions of attorneys regarding particular cases.' Thus, the
court has no factual basis on which to assess how the amounts are determined,
what the amounts are based on, and how they relate to the litigation process." Furthermore,
defendant "has failed to indicate the proportion of exempt and nonexempt
information in any of the declarations on which it relies." Defendant
will be given an opportunity to file a renewed declaration. Similarly, defendant
has not provided enough information for the court to determine whether it
appropriately withheld a data field indicating the amount of damages considered
punitive in a given case.

The court finds that defendant appropriately withheld, as attorney work-production
information, attorney time records reflecting the amount of time DOJ attorneys
have expended on ongoing cases. Defendant's "declarations show that the
time records reflect the intensity of the government attorneys' efforts in
handling individual cases. This information would reveal to opposing parties
the amount of time the government's attorneys were spending on particular
cases and provide insight into the government's litigation strategy at future
stages." Plaintiff's argument that such information should be revealed
as to certain allegedly completed "stages" of open cases does not
account for the fact that these ostensibly completed stages may still be contested
by the parties.

Conversely, defendant has not provided enough information for the court to
determine whether it appropriately withheld fields containing "'notes
either input directly by attorneys or based on contractor interviews with
attorneys,'" that "'relate to litigation activities and can contain
an attorney's thoughts and legal analysis of a case.'" "[D]efendant
offers no specific description of what an attorney note might contain . .
. or any examples of what 'other information which cannot be entered in the
CASES data fields' might consist." Thus, plaintiff has not been afforded
sufficient opportunity to challenge defendant's withholding decisions as to
these records. Defendant will be given an opportunity to supplement its submissions
on this issue.

• Exemption 6: The court finds that defendant improperly withheld the "'date
vaccine administered' and vaccine type" fields. The Vaccine Act, upon
which defendant relies for its conclusion that such information should be
withheld in order to protect the privacy of the vaccine recipients, specifically
contemplates the release of this information. "[T]he Court finds no
basis for defendant's decision to withhold vaccine date and type from disclosure
under Exemption 6."

Defendant did not adequately explain its decision to withhold phone and fax
numbers and email addresses of attorneys who appeared in the cases listed
in the CASES index, but will be given an opportunity to supplement its original
filings on this issue.

8. Lieff, Cabraser, Heimann & Bernstein, LLC v. DOJ, No. 09-00157, 2010
WL 1063785 (D.D.C. Mar. 24, 2010) (Kennedy, J.)

Re: Records pertaining to requests for leniency under Antitrust Division's
[ATD] investigation of anticompetitive practices in the sale of municipal
derivatives products

• Exemption 7(A): Defendant properly invoked this exemption to withhold correspondence
exchanged between the ATD and a participant in the leniency program. Disclosure
of this information would reveal the names of potential witnesses to defendant's
investigation, would reveal information about the bank's participation in
the leniency program and what evidence it provided to defendant, and would
also indicate how much evidence defendant has gathered and where its investigation
stands. "The D.C. Circuit has previously held that the withholding of
information about an investigation, even where the fact that the investigation
was ongoing was known, was appropriate because the disclosure of particular
documents could provide details about the 'particular types of allegedly illegal
activities being investigated' as well as the names of potential witnesses,
who would then be 'less likely to cooperate fully with the [investigating
agency].'" Plaintiff claims that some of the withheld information is
in the public domain, but it has failed to make any evidentiary showing to
bolster this claim.

• Exemption 7(A)/Glomar: Defendant ATD properly refused to confirm or deny
the existence of correspondence between itself and any other entities regarding
requests for leniency in this particular market. Disclosing "the existence
of another confidential source within the cartel under investigation would
lead members of the cartel to attempt to identify and intimidate the leniency
applicant and to more carefully hide information."

• Segregability: The court finds that the ATD has made a sufficient showing
that there were no releaseable portions of its correspondence with the bank
participant. ATD's declaration "describes concerns about releasing dates,
letterhead, and information about the length of the records in addition to
disclosing any of their content." However, ATD "has conceded that
it could redact exempt material from the [leniency] letter. The concern that
releasing the letter even without the exempt material would compromise the
confidentiality policy on which the Bank and other actual and potential leniency
applicants rely is neither logical nor grounded in law." Thus, "[t]he
letter must be produced with appropriate redactions."

9. Dorsey v. EEOC, No. 09-519, 2010 U.S. Dist. LEXIS 28714 (S.D. Cal. Mar.
23, 2010) (Benitez, J.)

Re: First-party request

• Proper party defendant: Plaintiff's complaint is dismissed as to defendant
Surfer Restaurant and Hotel, because it is not a federal agency subject to
the FOIA. Plaintiff will be allowed to maintain his action against defendant
EEOC. (posted 04/21/2010)

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