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

November 2, 2010

FOIA Post

Summaries of New Decisions -- September 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 September 2010.

WEEK OF SEPTEMBER 6

1. Long v. IRS, No. 08-35672, 2010 WL 3677445 (9th Cir. 2010) (unpublished
disposition)

Re: Request for statistical information

• Exemption 3 (26 U.S.C. § 6103(a)): The court reverses the district court's
decision requiring disclosure of certain cells contained in a statistical table.
The court holds that the cells containing financial information "taken
verbatim from Form 5344 of a particular taxpayer" constitutes "nondisclosable
[tax] return information under § 6103(b)(2)" because "tax data that
starts out as confidential return information associated with a particular
taxpayer maintains that status when it appears unaltered in a tabulation with
only the identifying information removed." However, the court affirms
the district court's determination that certain cells that "are the product
of a combination of two taxpayers' data" do not constitute protected return
information under § 6103(b)(2), because "they fit the definition of reformulated
and amalgamated tax data."

2. Pac. Fisheries, Inc. v. United States, No. 09-35618, 2010 WL 3611645 (9th
Cir. Sept. 15, 2010) (unpublished disposition)

Re: Request for records provided to the Russian government by the IRS pursuant
to a tax convention to aid in its tax investigation of an employee of Pacific
Fisheries

• Litigation considerations/considerations on appeal: The court determines
that the declarations from the IRS "provided the district court an adequate
factual basis from which it could decide whether disclosure would seriously
impair federal tax administration." Additionally, the court concludes
that the district court's findings were "not clearly erroneous" where
the IRS declarations provided "the specific reasons why federal tax administration
would be impaired" and plaintiff did not present any contrary evidence
or show "bad faith on the part of the IRS."

• Exemption 3 (26 U.S.C. § 6103, § 6105): The court "affirm[s] the [district]
court's grant of summary judgment [to the IRS] with regard to the disclosure
of documents under [Exemption 3 in conjunction with the Internal Revenue Code]
16 U.S.C. § 6103. The court also affirms the district court's determination
that plaintiff is not entitled to "access to the documents the IRS provided
to the Russian government," finding that the tax convention requires that "'[a]ny
information received by a Contracting State shall be treated as confidential
in the same manner as information obtained under the domestic laws of that
State.'"

1. Gerstein v. CIA, et al., No. 06-4643, 2010 U.S. Dist. LEXIS 97766 (N.D.
Cal. Sept. 17, 2010) (Chesney, J.)

Re: Request for information pertaining to investigations of unauthorized disclosures
of classified information to the media or the public

• Exemption 5 (Deliberative Process Privilege): The court finds that OPR properly
invoked Exemption 5 and released all reasonably segregated portions of the
documents.

• Exemptions 6 & 7C: The court finds that although OPR's supplemental
declarations "is sufficient to show that government employees were the
subject of OPR's investigation and that the employees ultimately were sanctioned
or disciplined; OPR's submission remains deficient, however, as to the 'nature
of the position' held by such employees.'" As such, the court concludes
that the information provided by OPR is not sufficient "to enable the
Court to balance [the] individuals' privacy interest against the public interest" and,
accordingly, provides OPR with another opportunity to submit more detailed
declarations on the issue.

• Litigation considerations: The court denies plaintiff's request for in camera
review, noting that "[s]uch review is appropriate 'only after the government
has submitted as detailed public affidavits and testimony as possible.'" Moreover,
the court declines to grant plaintiff's request for discovery at this time.

2. Fox News Network, LLC v. SEC, No. 09-2641, 2010 U.S. Dist. LEXIS 98232
(S.D.N.Y. Sept. 14, 2010) (Rakoff, J.)

Re: Request for information received by the SEC regarding any potential violations
of securities law by R. Allen Stanford or the Stanford Financial Group

• Adequacy of search: The court concludes that the SEC's search was adequate
where its declaration described how staff in multiple offices conducted searches
of both hard copies and computer files "for complaints, tips, any records
discussing complaints or tips, SEC responses to such information, and any resulting
investigations" and plaintiff "has not provided an adequate challenge
to the facially sufficient affidavit to impugn the SEC's good faith."

• Exemption 7(A): The SEC properly asserted Exemption 7(A) to fully withhold
the documents responsive to the request. The court notes that the SEC's declarations
detail that disclosure of the documents "'in whole or in part, could reasonably
be expected to interfere with enforcement proceedings in SEC v. Stanford and
with the SEC's ongoing investigation into the circumstances surrounding the
fraud.'" Additionally, the SEC's declaration also "explains how
revealing non-public information could harm the SEC's ability to litigate the
current or future enforcement actions, would reveal the identity of individuals
who may have confidential information, prematurely give witnesses and defendants
information on litigation strategy, or enable others to identify those who
have provided information to the SEC and thus enabling them to seek to intimidate
them." The court notes that its in camera inspection of a sampling of
the documents "confirms the validity of Exemption 7(A) and the potential
harm to the SEC's enforcement actions were the documents to be produced."

3. Judicial Watch, Inc. v. DHS, et al., No. 07-506, 2010 WL 3564260 (D.D.C.
Sept 9, 2010) (Leon, J.)

Re: Request for records concerning a Mexican national who testified against
two border patrol agents

• Exemption 5/deliberative process, attorney-client & attorney work-product
privileges: The court concludes that DOJ properly asserted the deliberative
process privilege to withhold "email messages involving recommendations
and evaluations for how to respond to Congressional and media requests for
information on [the subject's] legal entry into the United States and the grant
of immunity to him," which were exchanged within DOJ and between DOJ and
DHS employees. Even though the emails post-date the original grant of immunity
to the subject, the court finds that "because these documents [were] generated
as part of a continuous process of agency decision making, viz., how to respond
to on-going inquiries, they are pre-decisional" and deliberative. Applying
a similar rationale, the court also concludes that "emails discussing
[the subject's] legal entry into the United States," which post-date his
incarceration, also qualify for protection under the deliberative process privilege.

The court finds that "email messages from a DHS special agent to a DHS
[Office of Inspector General] attorney seeking confidential legal advice regarding
the way in which [the subject] entered into the United States" "clearly
fall within the protection of the attorney-client privilege."

DOJ properly invoked the attorney-work product privilege to protect various
records that "involve[d] the details of an AUSA's preparation for a criminal
prosecution." With respect to certain documents created post-prosecution
that contained discussions of how to respond to Congressional and media inquires,
the court finds that records "contained internal deliberations that included
consideration of privileged attorney work-product from the prior prosecution" and
were properly withheld pursuant to the attorney-work product and deliberative
process privileges.

• Exemption 7(C): DOJ properly withheld personally identifying information
pursuant to Exemption 7(C). As an initial matter, the court determines that "it
is undisputed" that the records meet the threshold of Exemption 7, because
they were compiled in the course of a criminal investigation and prosecution.
In terms of the privacy interests related to the subject of the request, the
court finds that disclosure of "non-public details pertaining to the grant
of immunity . . . as well as non-public details of his entry into the United
States in the context of a government prosecution" "could reasonably
be expected to result in stigmatizing public attention and embarrassment by
engendering comment and speculation." The court further notes that "the
passage of time has not diluted the privacy interest at stake and, if anything,
has actually increased [the subject's] privacy interest as the events surrounding
the [] prosecution have faded from memory." With regard to the public
interest, the court concludes that plaintiff "has made no showing of a
'significant' public interest . . . only obliquely asserting that the information
sought would 'open [] up government action to the light of public scrutiny.'"

Additionally, the court concurs with DOJ's assertion that disclosure of information
about law enforcement personnel and support staff "'may seriously impair
their effectiveness in conducting future investigations,' 'could trigger hostility
towards' these individuals, and could cause them to become 'targets of harassing
inquiries for unauthorized access to information'" and concludes that "[i]t
is well-established that information identifying [these types of individuals]
can be withheld pursuant to Exemption 7(C)." Similarly, the court finds
that the "privacy interests at stake are substantial" with regard
to "third parties merely mentioned" in the records as well as those
of "investigative interest" to the government and concludes that "release
of the withheld information would constitute a clearly unwarranted invasion
of privacy of [these] private citizens."

4. W. Watersheds Proj. & Wildearth Guardians v. BLM, et al., No. 09-482,
2010 U.S. Dist. LEXIS 95379 (D. Id. Sept. 13, 2010) (Dale, J.)

Re: Request for information regarding BLM's ongoing management of livestock
grazing on public lands

• Exemption 6: As an initial matter, the court holds that records pertaining
to two categories of permittees, i.e., "entities listed under a personal
name along with the words 'Ranch' or 'Farm' plus some additional legal designation
such as Inc., Corp., Co., or LLP" and those who "hold[] a permit
under a personal name or in the individual's name plus the word 'Ranch' or
'Farm' without a public designator," constitute "similar files" under
Exemption 6. The court finds that the two categories of permittees have a "minimal" privacy
interest in the disclosure of their names and/or addresses. With respect to
the public interests involved, the court determines that release of "the
requested information would allow the public to better understand the scope
of the BLM's grazing program." Applying the privacy and public interest
balancing test, the court concludes that the "public interest in monitoring
the BLM's rangeland program outweighs the minimal privacy interests held by
both [] categor[ies] [of] permittees."

WEEK OF SEPTEMBER 13

1. Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per
curiam)

Re: Requests for records pertaining to himself, various third parties, and
a business

• Litigation considerations: The court denies appellant's request for appointment
of counsel where he has "not demonstrated sufficient likelihood of success
on the merits."

• In camera review: The court concludes that "an in camera inspection
of withheld records is not necessary, where, as here, 'a district court finds
that a law enforcement agency's affidavits sufficiently describe the documents
and set forth proper reasons for invoking an exemption.'"

• Adequacy of search: The court finds that defendants' failure to produce
records before a certain date "does not demonstrate that the searches
were inadequate, because the failure of a search to produce particular documents,
or 'mere speculation that as yet uncovered documents might exist,' does not
undermine the adequacy of a search.'"

• Discovery: The district court properly limited discovery "because appellant
offered no evidence of bad faith to rebut the agencies' affidavits."

• Allegations of wrongdoing: Appellant's unsubstantiated allegations that "agencies
withheld exculpatory evidence during his criminal proceedings" does not
constitute "'evidence that would warrant a belief by a reasonable person
that the alleged [wrongdoing] might have occurred.'"

1. Hines v. United States, No. 09-1949, 2010 WL 3488252 (D.D.C. Sept 7, 2010)
(Urbina, J.)

Re: Request for records related to specific contract between company and BOP

• Exhaustion of administrative remedies: As a preliminary matter, the court
holds that "the exhaustion requirement is a prudential consideration,
not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust
does not deprive the court of subject-matter jurisdiction," "[b]ut
[that] as a prudential consideration, the exhaustion requirement may still
bar judicial review if both the administrative scheme at issue and the purposes
of exhaustion support such a bar." Here, the court finds that plaintiff
failed to exhaust his administrative remedies because he "does not dispute
that he failed to pay the assessed fee before filing this lawsuit, and there
is no indication that he sought a fee waiver from the agency and was denied" or
that he "sought to [administratively] appeal the matter."

2. Von Grabe v. DHS, No. 09-2162, 2010 WL 3516491 (M.D. Fla. Sept. 3, 2010)
(Presnell, J.)

Re: Request for a "Petition for Alien Relative" form submitted to
and approved by INS

• Litigation costs: Plaintiff cannot recover medical expenses allegedly incurred
as a result of the delayed release of the requested document because the "FOIA
does not provide for an award of 'damages.'" With respect to plaintiff's
request for litigation costs, the court concludes that his "claim is not
substantial" because "he never sent a request to the proper office,
as identified in DHS's regulations" and so failed to exhaust his administrative
remedies. Additionally, the court notes that "[t]here is no evidence of
DHS declaring that it would not provide the document."

• Mootness: Because plaintiff received the form that he was seeking, "this
Court no longer possesses subject matter jurisdiction over this case" and
his claim is moot.

3. Raher v. BOP, No. 09-526, 2010 WL 3488975 (D. Or. Sept. 2, 2010) (Stewart,
J.)

Re: Request for records pertaining to BOP's solicitations, evaluation and
award of "contracts to provide, maintain and operate private detention
facilities for foreign nationals serving criminal sentences imposed by the
federal courts"

• Exemption 2 (high): The court finds that BOP has not adequately justified
its assertion of "high 2" to withhold certain contract documents.
As an initial matter, the court notes that these records "do not appear
to be inherently internal" and concludes that "BOP must show that
the contested information bears on interpretations or instructions involving
internal matters of the agency and was not written to regulate the public." Additionally,
BOP's "conclusory statements that a security risk exists categorically
for all information related to staffing, computers, security, and operations" is
not sufficient "to permit the court to determine whether disclosure reasonably
presents a legitimate, serious risk of circumvention." With respect to
the withholding of past performance records related to a company engaged in
the private prison industry, the court comments that "BOP fail[ed] to
associate the precise reason for nondisclosure with specific documents or parts
of documents [thereby] compromis[ing] [plaintiff's] ability to advocate for
release of that information." The court rejects plaintiff's argument
that records should be disclosed because BOP did not promise confidentiality
to its submitters, nor did they request it. The court finds that confidentiality
is not a requirement of Exemption 2. Lastly, the court orders BOP to submit
supplemental declarations to further support its invocation of Exemption 2.

• Exemption 4: The information was provided "as a mandatory requirement" of
the procurement process. The court concludes that BOP has failed to show actual
competition in the market for private detention of foreign nationals or to
explain how disclosure of the information withheld under Exemption 4 would
likely cause substantial harm to the competitive position of the business submitters.
Regarding actual competition in the marketplace, the court finds that "BOP
is the only customer in the relevant market, and the submitters are among a
small number of entities, perhaps the entire universe of such entities, that
meet the solicitation criteria for the [Criminal Alien Requirement (CAR)] procurement
process and are capable of supplying BOP with the facilities and services required." Moreover, "BOP
has not shown that there were any unsuccessful bidders [for a given contract],
that the submitters bid against each other, or that unidentified potential
contractors exist that could compete in the CAR procurement process." Likewise,
the court observes that "BOP failed to show competition in the contract
renewal process," finding "no persuasive evidence that BOP considered
competing bids when determining whether to exercise its option to renew an
expiring CAR contract." The court also finds that BOP offered no support
for the claim of one of the submitters that "it faces day-to-day competition
from businesses offering similar services."

With respect to pricing information from past of existing contracts, the court
notes that "the assertion appears to be that all pricing information in
existing contracts . . . is categorically protected under Exemption 4." The
court holds that "[s]uch categorical and conclusory assertions do not
provide the particularized explanation necessary to show that disclosure of
a specific document or part of a document would damage the interest in private
competition protected by Exemption 4." The court finds insufficient support
for the argument presented by one of the submitters that competitors "could
use the information from past or existing contracts to underbid [the company]
in the future." The court notes that while "[t]heoretically, disclosure
of the contractor's costs of materials and services, mark up, profit margin,
and other factors used to determine its bid, would permit competitors to estimate
the contractor's bid on a future contract," "[w]ithout evidence and
an explanation of [that] process . . . the alleged harm remains theoretical." The
court determines that "[u]nless BOP can provide more specific evidence
regarding each redaction and explain how a competitor could use the redacted
information to inform its bidding in future competition for similar contracts,
the alleged harm appears to be no more than a theoretical possibility."

Similarly, the court concludes that BOP has not justified its decision to
withhold "option year prices" based on the premise that disclosure
of such information "would enable competitors to induce BOP to forego
its option to extend the contract and then undercut the current contractor's
option price when BOP opens the contract to new bidding." The court notes
that "likelihood that BOP would decline to exercise an option in favor
of a lower price is diminished by its need for continuity of operations and
the significant costs of disruptions in the continuity" and, additionally,
that "nothing would exclude the original contractor from participating
in the rebidding process so that the rival bidder still would not know the
precise bid to undercut." The court orders BOP to supplement its declarations
with respect to information withheld pursuant to Exemption 4.

The court dismisses plaintiff's argument that "none of the redacted information
in the proposals can be protected under Exemption 4 because the submitters
waived any claim of confidentiality by failing to assert it during the bidding
process." Rather, the court finds that "[t]his argument fails because
the test for confidentiality is not based on the subjective expectation of
the submitter that the information is confidential, but is based on an objective
evaluation of the likelihood of substantial injury to the competitive position
of the submitter of the information."

Lastly, the court rejects plaintiff's argument that because documents incorporated
by reference into the contracts are not protected from disclosure by 41 U.S.C.
§ 253b(m), they "should not be deemed confidential information under FOIA
Exemption 4." The court notes that the statute "does not purport
in any way to limit FOIA protection for successful proposals."

• In camera review/protective order: The court declines to conduct an in camera
review of the withheld records, noting that "it lacks sufficient knowledge
concerning BOP's operations and procurement process to meaningfully interpret
the withheld documents under the FOIA." The court also reject plaintiff's
request to release the documents to him under a protective order, because "that
would place BOP in the untenable position of having to enforce any violation
of the protective order and claw back any unwarranted disclosure."

WEEK OF SEPTEMBER 20

1. Wiesner v. FBI, No. 07-1599 (D.C. Cir. Sept. 23, 2010) (unpublished disposition)

Re: First-party request

• Adequacy of search: The court grants agencies' motion for summary affirmance
with respect to the adequacy of the CIA's search, which was the only issue
addressed by the appellant on appeal. The court concludes that "[a]ppellant's
doubts about a second, more expansive search do not rebut the presumption of
good faith to be accorded to the CIA's declaration."

1. Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2010 U.S.
Dist. LEXIS 100870 (E.D. Va. Sept. 23, 2010) (Cacheris, J.)

Re: Request for records concerning an individual and a company

• Litigation considerations/stay of proceedings: The court grants defendant's
request to extend a stay until it can produce a portion of plaintiff's request
referred to as the "Field Files." The court rejects plaintiff's
objection that extending the stay "will prevent it from challenging the
Defendant's redactions of [other requested m]aterials until the stay is lifted." The
court finds that "Plaintiff originally requested all three sets of materials
together; then, only once informed of the cost of production, asked that the
[other m]aterials be produced first, and only later requested the Field Files" and,
accordingly, "[i]t seems unfair to penalize the Government for Plaintiff's
change of heart." The court notes that "once the requested production
is made in full, Plaintiff will be welcome to challenge its adequacy."

2. Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22,
2010) (Walton, J.)

Re: Request for twenty categories of records pertaining to himself, individuals,
businesses and potential internal SEC investigations

• Exhaustion of administrative remedies: The court decides to adjudicate on
the merits several requests for which the plaintiff failed to file an administrative
appeal "[g]iven that the SEC's correspondence with the plaintiff [was]
arguably vague as to whether the plaintiff was appraised that he had the right
to appeal" and "also given that the defendant subsequently responded
to those production requests."

• Adequacy of search: The court finds the SEC's declaration discussing its
search of the Office of the Inspector General (OIG) "woefully lacking" necessary
detail where it "merely states that the declarant 'conducted a search'
by reviewing 'indices of investigations' based on familiarity with internal
SEC investigations and 'determined that the OIG possessed no documents responsive
to these requests.'" Similarly, the court concludes that another SEC
declaration "is not sufficient as it does not indicate with specificity
how the employee files are maintained, how they could be searched, and why
an electronic search of the files is not even feasible." "The Court
does not dispute that searches 'impos[ing] an unreasonable burden on [an] agency'
need not be compelled," but concludes that it cannot rule on that issue
on the present record. The court grants plaintiff summary judgment on this
issue and finds that "[w]hether or not the defendant determines that it
must re-conduct its search to alleviate the identified inadequacies, the defendant
must provide more detail-specific declarations in order for the Court to reassess
the adequacy of the defendant's search efforts."

• Exemption 2: The court orders the disclosure of certain information withheld
pursuant to "low 2," finding that "[w]hile it appears that [the]
records may be 'used for predominantly internal purposes,' . . . the defendant
has not shown that 'the material relates to trivial administrative matters
of no genuine public interest.'" The court further notes that "[i]t
is axiomatic that matters that the SEC determines worthy of investigation are
not trivial, especially when it is the function of the defendant to ferret
out fraud." However, the court finds that to the extent that certain
e-mails regarding "'the logistics of opening [an investigative matter]'" might
contain information that "concerns internal rules and practices, that
information may be redacted."

• Exemption 5 / deliberative process privilege: The SEC failed to adequately
justify that internal e-mails and handwritten notes, which discuss the "'agency
deliberations regarding the proposed discipline of an employee,'" qualify
for protection under the deliberative process privilege. The court finds that "the
defendant's declaration completely lacks any detail regarding any particular
record and does nothing more than generally state that Exemption 5 is satisfied." Moreover, "[e]ven
if these records indexed by the defendant contain such deliberations, . . .
the Court cannot discern from the defendant's representations how these records
could be completely withheld under Exemption 5." The court concludes
that, based on the record before it, the SEC must redact and disclose any "factual
information" or portions of the records that are not predecisional and
deliberative in nature.

• Attorney-client privilege: The court concludes that the SEC's declarations "are
too conclusory" to determine whether internal e-mails containing legal
advice and recommendations are covered by the attorney-client privilege. The
agency bears the burden "'to demonstrate that confidentiality was expected
in the handling of these communications,'" and that steps were taken to
keep the records confidential. The court finds that "[t]he declarants'
assertions that they lack any reason to believe that the records were 'released
outside of the Commission' do not address the issue of whether those communications
were 'circulated no further than among those members 'of the organization who
are authorized to speak or act for the organization in relation to the subject
matter of the communication.'" As such, the court holds that agency must
provide additional proof in order to withhold the records pursuant to the attorney-client
privilege.

• Attorney work-product privilege: The SEC did not adequately demonstrate
that certain records related to the discipline of an employee were shielded
by the attorney work-product doctrine. The court concludes that "[t]he
defendant must submit additional evidence that establishes that all of the
communications were created with litigation in mind" regardless of whether
litigation actually resulted from the personnel dispute.

• Exemption 6: With respect to certain records pertaining to the potential
discipline of an employee for which the SEC invoked Exemption 6, the court
concludes that balancing the privacy interests against the public interests "cannot
be properly conducted based upon the vague assertions provided by the defendant,
as greater detail concerning the content of each record is needed to determine
whether that information is exempted from disclosure." The court notes
that "[t]his particularized examination is required because Exemption
6 is not one of the exemptions that inherently shields records in their entirety,
and information that does not pertain just to any individuals involved in an
investigation, but rather to the logistics of an investigation (such as routing
numbers, dates, stock types involved, and event dates), which defendant acknowledges
is included in these records, is not protected from disclosure." Although
the court acknowledges that "the names of the individuals involved in
the investigations, as well as their contact information may be withheld for
privacy reasons," it concludes that "[u]pon the representations currently
before the Court, . . . redacted versions of the records [i.e., versions with
the personally identifying information excised] must be disclosed."

• Exemption 7(A): The SEC properly asserted Exemption 7(A) to withhold records
that derive from an active and ongoing personnel investigation. The court finds
that "the defendant's showing is sufficient even though it has not specifically
described the basis for the non-disclosure in each instance, because extensive
specificity is not required for Exemption 7(A) where providing such detail
would undermine the precise reason for the non-disclosure." The court
determines that the SEC "described in sufficient detail the records that
it has withheld and the harm that could befall the agency if these records
are prematurely released" and, additionally, it demonstrated that disclosure "might
reveal its investigative strategy and findings concerning the investigation
before they are finalized."

• Exemption 7(C): The court concludes that the SEC's declarations are not
sufficient to support its withholdings under Exemption 7(C), noting that "[n]othing
in the defendant's proffer assists the Court in assessing why redacting the
names and any other identifying characteristics of the persons involved in
the OIG investigations will not adequately protect the privacy interests at
stake."

3. ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20,
2010) (Walton, J.)

Re: Request for six categories of records regarding the death of individuals
in the custody of Immigration and Customs Enforcement (ICE) dating back to
2004

• Adequacy of search: The court finds that searches performed by ICE and DHS's
Office of the Inspector General (OIG) were sufficient. The court finds that
the "declarations explain the nature of the searches conducted . . . ,
the procedures both divisions of the Department used, the manner in which responsive
records were processed and reviewed to assess whether information was exempt
from disclosure, and the reasoning relied on for the exemptions claimed by
ICE and the OIG with respect to the redacted and withheld records." The
court notes that [b]ecause [the parties] negotiated the search terms, the plaintiff's
allegations do not suggest to the Court that the defendants improperly limited
the scope of their searches." Additionally, "[t]he Department's
policy of establishing a cut-off date for the scope of the search, which the
defendants relied upon to limit the scope of their search and any necessary
follow-up searches does not appear under these circumstances to have been unreasonably
utilized to improperly limit the scope of the plaintiff's request." Moreover,
OIG was not obligated "to use its position within the Department to craft
a more accurate list of search criteria, or detainee names, on the plaintiff's
behalf." Similarly, defendants were not required "to conduct new
searches when it was discovered that the plaintiff's first list of detainee
names was incomplete and the plaintiff submitted a second expanded list almost
two years after its initial request." Lastly, the court concludes that
ICE's decision to search "some of its e-mail databases instead of its
entire e-mail system" is reasonable given that "ICE searched the
databases it deemed most likely to contain responsive information and that
searching the entire database would pose an unreasonable burden."

• Exemption 2: ICE properly invoked "high" 2 to "'withhold
information that includes intake procedures, medical procedures and suicide
prevention at detention centers, detention center staffing schedules and shift
reports, and e-mails related to detainee deaths.'" Given ICE's subsequent
processing of these records in order to release portions of them, the court
rejects plaintiff's purely speculative challenges to ICE's withholdings, concluding "that
disclosure of the withheld information would threaten the security of ICE policies
and procedures set forth in the records."

• Exemption 5 / deliberative process privilege: The court finds that defendant
's "apparent inconsistent disclosures" of factual information in
various records "do not amount to inconsistent application of the deliberative
process privilege." "Rather, the record demonstrates that the OIG
was careful to withhold identifying information only where it would, in context,
identify the interviewee or reveal the mental processes of the OIG investigators
because the investigators chose to include those facts in the report." The
court likewise finds that defendants properly invoked the deliberative process
privilege to protect memoranda prepared by the OIG inspectors "so as not
to 'discourage the candid exchange of ideas, analyses, and perspectives that
are required in order for OIG to conduct a thorough, comprehensive, and independent
inspection or audit.'" However, regarding an e-mail "'drafted by
[an anonymous] third party [and] provided to [the] OIG to offer additional
information for [the] OIG's inspection,'" the court notes that "'in
cases where there is no identifying information that would link an individual
to a document '" the disclosure is unlikely "'to stifle honest communication
within the agency.'" Furthermore, defendants' submissions fail to "state
specifically why the wholesale redaction of this document is warranted, given
that the identity of the author is unknown and any information that might make
it possible to identify the author could be redacted."

With respect to "the Civil Rights Office's final report, expert report,
and 'talking points,'" the court determines "[they] are all deliberative
in that they reflect a discourse that occurred during the decision-making process
concerning the Department's conclusions relating to [a detainee's] death and
what strategy the Department should take regarding any litigation that may
arise from the incident." The court further concludes that the talking
points are also predecisional because "[t]he document itself suggests
that a public statement was anticipated at the time of its creation, and given
that no official statement has yet been made, the talking points remain ripe
recommendations that are ready for adoption or rejection by the Department." However,
the court finds that it is not apparent from the record whether the withheld
reports "are pre-decisional" because "it is not clear . . .
whether any decision was ever made by the Secretary to adopt the Civil Rights
Office's recommendation," and they could theoretically "encapsulate
final agency action."

• Attorney-client privilege: The court finds that defendants did not adequately
justify their assertion of the attorney-client privilege to fully withhold
the Civil Rights Office's case memorandum, interview notes, and final report.
The court concludes that "unless defendants can show that [certain] factual
information conveyed between its counsel and its entities 'was not known by
or disclosed to any third party,' the Court cannot grant summary judgment in
their favor."

• Exemption 7(C): The court finds that defendants properly withheld a deceased
detainee's journal entries, handwritten witness statements, and correspondence
with a deceased detainee's family pursuant to Exemption 7(C). Citing Favish,
the court finds that "[t]he writings of a detainee in the days leading
up to her suicide are likely to contain personal information, which sensibly
should be withheld for personal privacy reasons" of her family and "are
not of 'any discernible public interest.'" With respect to handwritten
witness statements, the court concludes that "these documents are properly
withheld under Exemption 7(C), given that the defendants assert that they have
already provided the plaintiff with the actual content of the notes in a typed
form." The court notes that "where the privacy interests and public
interests in disclosure can be simultaneously protected by withholding the
actual handwritten versions of the notes by producing typed renditions, an
appropriate balance is reached." Additionally, the court finds that defendants
properly invoked Exemption 7(C) to withhold correspondence with counsel for
the estate of the deceased detainee, which included the deceased's medical
records provided by her family. The court determines that disclosure of the
communications and medical records "would violate the personal privacy
of the detainee's surviving family members who may have claims against the
defendants" and also that release "of such information could result
in the discouragement of other potential complainants from cooperating with
future Department investigations."

• Exemption 7(E): Defendants correctly asserted Exemption 7(E) to protect
a one-page record related to the Civil Rights Office's "'methods for conducting
investigations.'" The court finds that disclosing the information "would
provide insight into ICE's security measures, which could circumvent those
measures and compromise the safety of detainees and employees at its detention
facilities where its detainees are housed."

• Segregability: "[T]he court's review of the defendants' declarations
justifying the non-disclosure of records, as well as their Vaughn indices,
convinces the Court that defendants have satisfied their burden of demonstrating
that all reasonably segregable information has been disclosed to the plaintiffs."

4. Eldridge v. Hall, No. 10-1597, 2010 U.S. Dist. LEXIS 98855 (D.D.C. Sept.
19, 2010) (Sullivan, J.)

• Jurisdiction: "Because there is no indication from the complaint that
plaintiff properly submitted a FOIA request to an agency, this Court lacks
jurisdiction to entertain such a claim." (posted 11/02/2010)

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