Schotz v. Samuels, No. 13-1811, 2014 WL 5472185 (D.D.C. Oct. 30, 2014) (Howell, J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for costs
- Litigation Considerations, Jurisdiction: The court notes that "[a]s an initial matter, the defendant argues that the complaint should be dismissed for want of subject matter jurisdiction because the plaintiff has named the BOP Director as the defendant instead of the agency." "The Court hereby substitutes the Department of Justice, of which BOP is a component, as the real party in interest and dismisses the complaint against [the] BOP Director . . . under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." "Consequently, the defendant's motion to dismiss under Rule 12(b)(1) is denied."
- Exemptions 7(C) and 7(F): "Because the plaintiff has completely failed to come forward with any evidence to rebut the defendant's properly supported justifications for withholding information, the Court will grant summary judgment to the defendant on this aspect of the complaint." The court notes that "the plaintiff has not questioned the bases of BOP's redactions, which the Court finds properly justified under FOIA exemptions 7(C) and 7(F)."
- Litigation Considerations, Adequacy of Search: "[T]he Court will grant summary judgment to the defendant on this aspect of the complaint as well." The court finds that "defendant's declarant has reasonably explained that a search of the plaintiff's central file was likely 'to locate and provide all [responsive] documents' because it is the location where the requested documents are routinely maintained." "Furthermore, the plaintiff has not identified any documents he believes exist (and where) that were not produced." Therefore, the court finds that "plaintiff has proffered no evidence to call into question the adequacy of the defendant's search for responsive records."
- Attorney Fees: "Since the plaintiff has not contested the defendant's claimed exemptions and the Court has found them properly supported, any request for litigation costs is denied." The court explains that "[a]lthough additional records were released during the course of litigation, the plaintiff has pointed to nothing in the record to support a finding that the defendant has acted in bad faith or for oppressive reasons."
Schultz v. FBI, No. 05-0180, 2014 WL 5486346 (E.D. Cal. Oct. 29, 2014) (Ishii, S. J.)
Re: Request for records concerning plaintiff and two informants
Disposition: Denying defendant's motion for summary judgment without prejudice; granting plaintiff's motion to order production of Vaughn Index
- Litigation Considerations, Vaughn Index: "[T]he court finds that any possible exception to document-by-document review requirement does not apply under the facts of this case" and, therefore, "the court is obliged to require that Defendants produce a Vaughn index or its equivalent of documents responsive to Plaintiff's FOIA requests and provide in sufficient detail facts supporting the withholding of specific documents under specific FOIA exemptions." The court explains that "the issue now before the court is not whether the documents Plaintiff has requested should be withheld by Defendants pursuant to the asserted exemptions; the issue is who is tasked to examine the documents requested to see if the claimed exemptions apply and by what method that examination is to be conducted." The court finds that "a Glomar response is not available in the context of an informant whose identity has been officially confirmed." Additionally, "a categorical approach to Plaintiff's FOIA requests in this case" cannot be used because "[p]laintiff's FOIA requests do not request information from a discrete category of information" and "[p]laintiff's request is at least arguably aimed at the practice of each Defendant agency with regard to making adequate Brady disclosures with regard to the use of informants in criminal prosecutions."
Richmond v. Minnesota, No. 14-3566, 2014 WL 5464814 (D. Minn. Oct. 27, 2014) (Schiltz, J.)
Re: Plaintiff's contention that defendants failed to turn over certain records to plaintiff
Disposition: Adopting Magistrate Judge's Report and Recommendation; dismissing plaintiff's complaint
- Litigation Considerations, Jurisdiction: The court finds that "because each of the parties to this litigation is a citizen of Minnesota (and thus jurisdiction based on diversity of citizenship does not apply), this Court has jurisdiction over this lawsuit only if the action arises 'under the Constitution, laws, or treaties of the United States.'" The court notes that "[t]he only federal law referenced by Richmond in his complaint is the Freedom of Information Act." The court holds that "[n]o federal agency is a party to this litigation, and thus FOIA has no relevance to this suit." "Any claim under FOIA fails, and consequently, there is no federal question presented to support jurisdiction in this Court."
Kelly v. U. S. Census Bureau, No. 10-04507, 2014 U.S. Dist. LEXIS 149671 (N.D. Cal. Oct. 20, 2014) (White, J.)
Re: Request for records concerning plaintiff's employment with the United States Census Bureau
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court addresses defendant's action on multiple requests. Regarding the first request at issue, the court finds that "the record demonstrates that the Census properly responded to [plaintiff's] request for documents." Concerning plaintiff's arguments, "the Court finds sufficient evidence in the record to demonstrate there was no . . . misinterpretation" of plaintiff's request. "[T]he Court finds no evidentiary support with respect to [plaintiff's] argument that Census responded in bad faith to his FOIA request." The court finds similarly concerning plaintiff's second request, holding that "the Census determined which offices should receive the request and search for responsive documents." The court notes that defendant "describe[d] the search and how it was calculated to uncover all documents responsive to [plaintiff's] request." Additionally, "the Court finds that any possible deficiency in the Census's earlier response to the request for the same documents is moot as it was cured by the Census's subsequent search." The court also finds that plaintiff's "presents no evidence to demonstrate why the Census's method was inadequate." Regarding a third request at issue, "[t]he Court thus finds that even if [a letter submitted by plaintiff can be considered] a new request, it did not necessitate the Census to conduct a new search because the first search, for the same documents, was adequate." The court explains that "[plaintiff] does not suggest new documents were generated after his request."
- Litigation Considerations, Mootness and Other Grounds for Dismissal: Regarding a fourth request at issue, "the Court grants the Census's motion for summary judgment" because "[a]lthough [plaintiff] asserts that he received no response, the Census timely supplied [plaintiff] with a copy of all responsive documents."
Farkas v. Office of the Special Inspector Gen., No. 13-309, 2014 WL 5320540 (E.D.N.C. Oct. 17, 2014) (Fox, J.)
Re: Request for records concerning plaintiff
Disposition: Denying plaintiff's motion to compel
- Litigation Considerations: "The court construed [plaintiff's] Motion to Compel to be asking the court to reopen the case, and either enforce the settlement agreement or restore the case to the active docket." The court holds that "[b]ased on the information contained in the Government's response and exhibits thereto, . . . reopening this case pursuant to Rule 60(b)(6) is not warranted, because there has not been a breach of the Settlement Agreement." "Although the pace of the document production has not been satisfactory to [plaintiff], the court does not find that any of the circumstances indicate that the Government has failed to comply with the terms of the Settlement Agreement."
Rollins v. Dep't of State, No. 13-1450, 2014 WL 5020009 (D.D.C. Oct. 8, 2014) (Boasberg, J.)
Re: Request for records concerning death of plaintiff's son
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Litigation Considerations, Adequacy of Search: "In light of the search that State conducted, which was reasonably calculated to locate all responsive records, the Court concludes that it fulfilled its obligation under FOIA." Addressing plaintiff's arguments, the court finds that plaintiff's "only concern is that she did not receive a handful of records referenced in those produced." "Yet she does not suggest that the disclosed documents provide any leads to other offices, databases, or files that should have been searched, or even to additional search terms or methods the agency should have used." "There is also no evidence that State has non-public information that should have prompted it to search in additional locations, use additional search terms, or interview particular officials." "Finally, [plaintiff] offers no evidence that the referenced documents still exist, and her suggestion to the contrary is purely speculative."
- Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege: "On the basis of State's declarations and its own in camera review of the disputed documents, the Court concludes that the agency properly withheld the redacted portions under Exemption 5." "All of the redacted e-mail exchanges clearly fall into one of two categories: 1) emails among agency personnel deliberating about the agency's authority to undertake certain actions and discussing what next steps to take in regard to [plaintiff's son's] death, and 2) e-mails among agency attorneys and staff made for the purpose of securing or providing legal advice about the agency's authority."
- Exemption 6: First, the court agrees with defendant that the information withheld is "not responsive to Plaintiff's request" because it concerns another death and "therefore, is not encompassed by Plaintiff's request, which sought only 'records that discuss or describe the circumstances of the death or the cause of death of [plaintiff's son]....'" The court finds that "[e]ven if that were not the case, the information", "the name of a third party on a cover memo that transmitted the reports of two deaths abroad", "is also properly withheld under Exemption 6." "The information withheld in this case clearly satisfies the 'similar files' requirement." Additionally, "[d]isclosing the third party's name here would also 'constitute a clearly unwarranted invasion of personal privacy.'" The name was of "a deceased individual", however, the court finds that release "could result in unwanted attention for or harassment of the individual's surviving family members." The court holds "[t]hat balance here ultimately tips in favor of privacy" because "[t]here is . . . no public interest in disclosure." "Plaintiff offers no evidence or argument that this individual died in mysterious circumstances or that disclosure of his or her identity would shed any light on the Department's performance of its statutory duties."
- Litigation Considerations, "Reasonably Segregable" Requirements: "The Court's in camera review has demonstrated that there are no meaningful redacted portions of the records that were segregable and should have been produced."
Ibeagwa v. IRS, No. 14-369, 2014 WL 4978320 (W.D. Wis. Oct. 6, 2014) (Crabb, J.)
Re: Request for plaintiff's tax documents
Disposition: Denying defendant's motion to dismiss
- Litigation Considerations, Adequacy of Search: The court "den[ies] defendant's motion to dismiss." First, the court "agree[s] with plaintiff that defendant's motion is not framed properly as a question of mootness or jurisdiction." Instead, the court finds that the relevant issue is "whether the agency conducted a search that was 'reasonably calculated to uncover all relevant documents.'" The court notes that "defendant admits that it has not produced everything plaintiff requested." The court finds that "there are substantive problems" with defendant's search. The court finds that defendant's declaration "describes the steps [it] took to locate plaintiff's requested documents, but [it] does not explain why [it] chose to look where [it] did and whether there may be other places the documents could be found." Additionally, "[e]ven with respect to the places defendant searched, it is not clear whether the search was reasonable."
ACLU v. FBI, No. 11-7562, 2014 WL 4979251 (S.D.N.Y. Oct. 6, 2014) (Pauley III, J.)
Re: Request for records concerning government's use of section 215 of USA PATRIOT Act
Disposition: Granting defendant's motion for summary judgment in part; denying plaintiff's motion for summary judgment in part
- Litigation Considerations, In Camera Inspection: The court holds that "because this Court has little faith in the Government's segregability determinations, [certain] documents in the Government's Vaughn index must be submitted for in camera review." The court explains that multiple "inconsistencies shake this Court's confidence in the Government's submissions."
- Exemptions 1 & 3: The court finds that "it is clear from the affidavits alone that the Government is entitled to provide a Glomar response with respect to documents relating solely to the bulk collection of information other than telephony metadata, whether the Government intended to give such a response or not." "[I]t is appropriate to invoke Glomar here, to preserve the secrecy of the existence or non-existence of a covert intelligence program." The court relates that "the Government asserts that the fact of whether the Government is engaging in the bulk collection of information other than telephony metadata is itself exempt from disclosure under Exemptions 1 and 3." Here, defendant relies for Exemption 3 purposes on "§ 102A(i)(l) of the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (codified at 50 U.S.C. § 3024(i)(1))."
Additionally, the court holds that "[d]espite the searching inquiry this Court will give the Government's segregability determinations, the Government's affidavits are entitled to deference on whether disclosure of certain information would harm national security." "The reasons for this Court's skepticism about the Government's segregability determinations are not a basis to second guess its national security assessments."
Stalcup v. CIA, No. 13-2329, 768 F.3d 65 (1st Cir. 2014) (Howard, J.)
Re: Request for records concerning crash of TWA Flight 800
Disposition: Affirming district court's grant of defendant's motion for summary judgment
- Exemption 5, Deliberative Process Privilege: The First Circuit holds that "the CIA properly withheld [certain] materials under exemption 5." The court first "note[s] at the outset that the Ninth Circuit has recently addressed a nearly identical challenge to the exact materials at issue here." "Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964 (9th Cir.2009)." The court states that "[t]hough [it is] not bound by that conclusion, and would independently arrive at the same result based on this record alone, [it] do[es] find Lahr to be persuasive." The court finds that "[t]he Ninth Circuit's conclusion coheres with the CIA's declaration and Vaughn index in this case." One document, the court finds, "has the label 'draft' on it, was shown to the NTSB but never finalized, contains analytical opinions, assessments, and judgments, and was passed on to agency management for possible policy changes." Another document "is also labeled 'draft', includes opinions and information relevant to calculating the flight path, identifies challenges to conducting the analysis, and was also provided to agency management but never finalized." "[Plaintiff] has provided no reason to question those descriptions." The court also notes that, in Lahr, "the CIA released—and provided to [plaintiff] in this case—certain radar data, graphs, and headings from those documents." "[Plaintiff] has failed to raise a genuine dispute that any additional information is severable." The court relates that plaintiff "argues that the CIA determined the cause of the crash in 1997, but only created the two documents at issue in 1998 after it had reached that decision." However, the court finds that the documents were predecisional because "[t]he roadblock in [plaintiff's] path is that the CIA's task did not end in 1997 when it reached its initial conclusion." The court also declines plaintiff’s invitation to "endorse a government misconduct waiver" drawn "from the civil litigation context," finding that "[t]o the extent that [it] might similarly recognize a narrow waiver doctrine in the FOIA context, it would not apply in this case." "Even assuming that [plaintiff] could show a scintilla of support for his claim, he still fails to connect the requested materials to the alleged government misconduct[,]" which "is fatal to his claim."
- Exemption 7(C): The First Circuit finds that Exemption 7(C) was appropriately used. The court first addresses plaintiff's argument "that . . . eyewitnesses have an insignificant privacy interest" and finds that "[t]his argument ignores the Supreme Court's observation that an individual's privacy interest is 'at its apex' when he or she is involved in a law enforcement investigation." Second, the court finds that plaintiff's argument "that the NTSB's subpoena power minimized the privacy interest, is equally unavailing" because "[i]t mistakenly assumes that the mere possibility of being called as a witness is somehow equivalent to an individual voluntarily abdicating his or her privacy." Third, the court finds that plaintiff's "argument presumes that individuals start with a minimal threshold of privacy and gain more through government action" "is based on a faulty assumption" because "it ignores an individual's inherent privacy interest irrespective of any government intervention." Last, the court finds that plaintiff failed to show how "release would further his purported public interest."
- Litigation Considerations, Adequacy of Search: The court holds that defendant "provided extensive detail on how the agency conducted its search" and "cogently explained why the CIA believed that a lone department, the directorate of intelligence, would house the responsive records." Defendant's "declaration provided a reasonable explanation for the agency's process and, at a bare minimum, created a presumption that the CIA acted in good faith." The court additionally finds that "[plaintiff's] attempt to rebut that presumption goes nowhere." "The absence of the single photograph (one, it should be noted, that was analyzed by an agency within the Department of Defense and not the CIA) does not warrant reversal."
Ocasio v. DOJ, No. 13-921, 2014 WL 4954404 (D.D.C. Oct. 3, 2014) (Chutkan, J.)
Re: Request for OIG investigation file concerning complaint plaintiff filed with the FBI
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court holds that "despite its initial failure to timely respond, DOJ eventually performed multiple searches and located the file," and "DOJ's motion to dismiss with respect to the timeliness of DOJ's response is therefore granted." The court explains that "[plaintiff] cannot properly challenge the timeliness of DOJ's response, as 'the FOIA does not create a cause of action for an agency's untimely response to a FOIA request.'"
- Procedural Considerations, Searching for Responsive Records: "The Court . . . finds that the search was adequate; the timeliness of DOJ's search does not render it inadequate given that the requested documents were eventually located." The court explains that "even though the search was untimely, DOJ did eventually search the only database where responsive documents were likely to be found and used the detailed information provided in the FOIA request to guide its search."
- Exemption 7(C): The court holds that "DOJ shall either redact from the documents withheld pursuant to FOIA Exemption 7(C) information that would identify protected third parties and then provide [plaintiff] with those redacted documents, or provide a more detailed explanation, including a Vaughn index, as to why those documents are exempted in full and do not contain segregable information." First, the court finds that "DOJ has clearly articulated a privacy interest sufficient to invoke Exemption 7(C)" because "[plaintiff] requested the file of an identified third party regarding an FBI investigation into allegations of wrongdoing." However, the court also finds that it "cannot conclude that there is no public interest in the disclosure of the records." The court then finds that "[e]ither DOJ has not adequately explained the categorical rule it used, or it did not rely on a categorical rule at all." The court explains that it "cannot assess on the record before it whether DOJ actually engaged in a balancing test todetermine what portions of the file were exempt under 7(C)." Additionally, "[e]ven if DOJ did engage in the balancing analysis, it has not provided the Court with enough information to determine whether the records were properly withheld because the privacy interests outweighed the public interest in disclosure." The court explains that "DOJ . . . argues that because the requested file focuses on one individual, the entire file cannot be released." "This is not enough to guide the Court regarding proper application of Exemption 7(C)." "It is simply impossible for the Court to determine on the basis of the DOJ declarations whether there is any reasonably segregable portion of the record that could be disclosed."