Boyd v. Albany Cnty. Dept. of Soc. Servs., No. 14-1386, 2015 WL 3447608 (N.D.N.Y. May 28, 2015) (Kahn, J.)
Re: Request for records concerning plaintiff
Disposition: Adopting Report and Recommendation of Magistrate Judge; dismissing plaintiff's claims with prejudice
- Procedural Requirements, Entities Subject to the FOIA: The court holds that "[t]o the extent Plaintiff alleges that [Albany County Department of Social Services] improperly withheld documents pursuant to FOIA, such claim must be dismissed as that entity does not fall within the definition of 'agency' under that federal statute."
Baird v. Jewell, No. 14-1879, 2015 WL 3409470 (E.D. La. May 27, 2015) (Morgan, J.)
Re: Request for records concerning plaintiff
Disposition: Denying defendant's motion to sever; granting in part defendant's motion to dismiss plaintiff's FOIA claim
- Litigation Considerations: The court denies "[d]efendant['s] mo[tion] to sever the Title VII claim from the FOIA claim." The court explains that "the Title VII claim and the FOIA claim are substantially interrelated," "[t]here is no reason the Court cannot adjudicate [the FOIA] motions while allowing the Title VII claim to proceed under the same case number," "[a] scheduling order is in place [and] [s]everance would upset these deadlines for no good reason," and "the Court cannot conceive of any prejudice that would result from a denial of severance."
- Litigation Considerations, Pleadings: The court holds that "[Secretary of the Department of Interior] is not amenable to suit under FOIA" and, therefore, "[p]laintiff shall amend his complaint to name the proper party defendant(s)."
Petrucelli v. DOJ, No. 11-1780, 2015 WL 3372345 (D.D.C. May 26, 2015) (Walton, J.)
Re: Request for records concerning plaintiff's arrest and eligibility for death penalty
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations: In response to "plaintiff['s] claim [of] an entitlement to the release of all the records he has requested under the FOIA . . . because the withholding of information pertaining to these witnesses amounts to a violation of the Confrontation Clause," the court finds that "[a] FOIA case simply is not a process a person can use to raise a constitutional challenge to his criminal conviction." "[P]laintiff fails to recognize that the government's obligations in a FOIA case are not the same as its obligations in the underlying criminal case."
- Exemption 7(D): The court holds that "[t]he FBI has adequately demonstrated that the sources whose information it seeks to withhold [are] under an implied assurance of confidentiality, and, therefore, its reliance on FOIA Exemption 7(D) is proper." The court relates that "[t]he FBI has withheld 'the names, identifying information, and investigative information concerning [the] plaintiff's violent criminal activities provided by third parties under an implied assurance of confidentiality.'" "According to the FBI's declarant, the sources 'were interviewed under circumstances from which an assurance of confidentiality may be implied,' based in large part on plaintiff's association 'with . . . well know[n] violent criminal organizations.'" The court also finds that "plaintiff offers nothing more than speculation as to both the identities of the FBI's sources and content of the information withheld by the FBI under FOIA Exemption 7(D)." "His unsupported assertions neither demonstrate his entitlement to summary judgment nor defeat the defendant's representations."
- Procedural Requirements, Searching for Responsive Records: The court holds that "none of the plaintiff's FOIA requests seeks records pertaining to third parties" and "[t]he FBI is not obligated to search for or to release records other than those specifically requested by the plaintiff."
- Exemption 7(C): The court holds that it is "preclude[d] . . . from granting the defendant summary judgment on the request made to the EOUSA." The court explains that "it is unclear whether the EOUSA relies solely on FOIA Exemption 7(C), or whether it continues to maintain that FOIA Exemptions 7(D) and 7(F) apply with respect to the same information." "And if, for example, the EOUSA continues to withhold information regarding the identities of confidential sources and the information these sources provided, it has failed to demonstrate that or explain why FOIA Exemption 7(C) . . . protects not only confidential sources themselves but also 'information furnished by ... confidential source[s].'"
- Exemption 7(E): The court holds that "[t]he FBI adequately has demonstrated that the ratings column of FBI Form FD–515 has been properly withheld under FOIA Exemption 7(E)." The court explains that the ratings column contains "'a numerical rating from 1 to 4 to rate each technique/assistance' employed" and that the FBI stated that "plaintiff and others involved in criminal activity 'could change their activities and modus operandi in order to circumvent and avoid detection and/or surveillance in the future.'" The court finds that the FBI "also has demonstrated, and the plaintiff has not rebutted, that release of a form detailing 'the case being investigated, contemplated actions[,] potential techniques to be used, personnel needed, coordinating efforts, etc.,' . . . and that the release of information 'obtained from non-public databases utilized by the FBI in law enforcement investigations,' . . . likely would cause the harm FOIA Exemption 7(E) is designed to prevent." The court finds that "[r]elease of the techniques themselves and the ways the FBI deploys them 'would nullify their effectiveness, especially [for] investigating organized crime families'" and "'[w]ith prior knowledge' of the FBI's strategies and techniques, 'criminals could predict the FBI's investigative approach, structure their activities in a manner that avoids detection and disruption by the FBI and deprive the FBI of the utility of these techniques.'"
Wadelton v. Dept. of State, No. 13-412, 2015 WL 3372378 (D.D.C. May 26, 2015) (Chutkan, J.)
Re: Request for records concerning plaintiff
Disposition: Denying defendant's motion for partial summary judgment
- Procedural Requirements, Searching for Responsive Records: The court holds that "[a]lthough it is true that Defendant is entitled to limit its search to locations most likely to contain responsive documents, . . . Defendant's justification for limiting its search in this case raises more questions than it answers, and does not confirm that [the Director of the office in question's] files were the only files 'likely to contain responsive documents.'" Additionally, the court finds that "[i]f documents of former employees existed at the time of the search, it makes no difference whether the individuals who created or maintained those documents were still employed by the State Department because FOIA imposes a disclosure obligation only as to documents in the agency's possession at the time of the FOIA request." Also, "[w]ithout evidence regarding whether State destroyed the records of these other employees and, if so, at what point in time those records were destroyed, the court cannot yet conclude that State conducted a reasonably thorough search." Additionally, the court finds that defendant "does not provide any information from which the court can conclude that these two individuals were the only individuals in that office likely to have emails or other electronic documents about [plaintiff]." Regarding a different portion of the search, the court finds that "[n]either [of defendant's] statement[s] confirm the reasonableness of the decision to search for only emails."
Regarding the searchers themselves, the court holds that "[p]laintiffs' assumption that [two employees who conducted a portion of the search] must have acted in bad faith because they were at one point named as defendants in [plaintiff's] lawsuit against the Government does not rise to the level of proof necessary to overcome [defendant's] presumption [of good faith]." The court finds that "searches conducted by those who created or maintained the documents—even against a backdrop of allegations of wrongdoing—have been deemed reasonable when challenged."
- Litigation Considerations, Vaughn Index/Declaration:The court rejects plaintiff's contention that defendant's declaration and index are conclusory. The court finds that "[defendant's] Declaration outlines State's understanding of the relevant exemptions, which are then applied to the specific withholdings in a 56–page index (the Vaughn index)." Both documents contain "sufficient information to enable the court to evaluate the asserted exemption, which is all that is required of the Defendant."
- Exemption 5, Attorney Work-Product: The court finds that while "neither party offers to the court an explanation or argument about aspects of the OSC and OIG investigations: the nature of each office's relationship with the State Department and [plaintiff], how the investigations were initiated, the findings of each investigation, the ramifications of the investigations, and so forth," "[i]t is clear [based on the court's review] that both OSC and OIG were investigating 'particular transaction[s],' such that documents related to the investigations ought to fall within the scope of the work-product protection."
- Exemption 5, Deliberative Process Privilege: The court holds that "the documents [at issue] contain material clearly protected by the deliberative process privilege." The court finds that "generally these documents are both deliberative, in that they reflect comments about the pros and cons of various promotion selections, and predecisional, in that they were made prior to any decision." However, the court also finds that "State's statement that the document 'may or may not reflect' a final decision raises the possibility that State did not properly segregate the exempt material from the non-exempt material." "Similarly, questionnaires sent by OIG 'to board members as part of the OIG's investigation into [plaintiff's] grievances, including the board members' responses to the questions[,]' appear to be predecisional and deliberative." The court explains that "[t]he board members' answers describing the procedures and decisions made with respect to [plaintiff] are privileged to the 'extent they recount or reflect predecisional deliberations.'"
- Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "the Government's conclusory assertion that it satisfied its segregation mandate is particularly troubling in the context of the handwritten notes which 'may or may not reflect' raters' final decisions on promotion." "If the final decision is reflected somewhere in those notes, that decision is likely not shielded from disclosure and, to the extent reasonable and practicable, should have been produced with redactions over the legitimately privileged material." "Either the final decision is not reflected in the documents, in which case full withholding is appropriate, or the final decision is reflected in the documents, in which case State must provide additional information justifying the decision not to redact the predecisional material and produce the final decision." The court finds that "[a]bsent that showing, summary judgment on the issue of segregability is improper at this time."
Yagman v. BOP, No. 14-55826, 2015 WL 2445100 (9th Cir. May 22, 2015) (per curiam)
Re: Request for full name, prison number, and mailing address of every person in BOP custody
Disposition: Affirming district court's grant of defendant's motion for summary judgment
- Exemptions 6 and 7(C): The Court of Appeals for the Ninth Circuit holds that "[t]he district court properly concluded that FOIA Exemptions 6 and 7(C) apply because disclosure of the requested documents would constitute an invasion of the inmates' privacy, and [plaintiff] failed to demonstrate how disclosure of the information would further the public's interest in shedding light on government action."
- Exemption 7(F): The Court of Appeals for the Ninth Circuit holds that "[t]he district court also properly concluded that FOIA Exemption 7(F) applies." The court explains that "[e]ven if [it] read[s] Exemption 7(F) narrowly—as [plaintiff] suggests—as only protecting individuals associated with law enforcement personnel, prison guards and inmates in witness protection programs fit this category."
- Litigation Considerations, Discovery: The Court of Appeals for the Ninth Circuit holds that "[t]he district court did not abuse its discretion in denying [plaintiff's] request for discovery." The court explains that "[t]he district court considered the declarations submitted in the Vaughn index and reasonably concluded that no factual dispute remained."
Am. Civil Liberties Union v. CIA, No. 13-1870, 2015 WL 2406825 (D.D.C. May 20, 2015) (Boasberg, J.)
Re: Request for two records related to former detention and interrogation program
Disposition: Granting defendant's motion for summary judgment
- Procedural Requirements, "Agency Records": The court considers the Senate Select Committee on Intelligence report and finds that it is not an agency record. The court first notes that "[n]either party . . . disputes that at the time SSCI drafted the Full Report, it constituted a congressional document exempt from FOIA." Instead, the court explains, the issue "is whether the Report, once transmitted to Defendants, became an 'agency record' subject to FOIA." The court first notes that "[i]n its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation 'remain congressional records in their entirety and disposition,' such that 'control over these records, even after the completion of the Committee's review,' would 'lie[ ] exclusively with the Committee.'" "[I]it continued, 'As such, these records are not CIA records under the Freedom of Information Act, or any other law.'" The court finds that "[b]y its express terms . . . the SSCI–CIA agreement . . . applies both to 'documents generated on the network drive' and to 'any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or members'" and this "language encompasses the Final Full Report." The court then considers a note that was written contemporaneously with transmission and finds that "[it] . . . need not confine its consideration to the moment of transmission." However, "[w]hile [the contemporaneous note] does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless." "Most significantly, the dissemination authorized by the [contemporaneous] letter is limited to the Executive Branch alone." "It plainly does not purport to authorize the agencies to dispose of the Report as they wish—e.g., to the public at large." The court finally finds that "[its] conclusion is further reinforced by SSCI's divergent treatment of the Executive Summary." The court explains that "SSCI's deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff's theory that Congress intended to relinquish control over the document only days later."
- Exemption 5, Deliberative Process Privilege: "The Court sees no reason to disturb its prior conclusion: the Panetta Review is properly characterized as both predecisional and deliberative." The court relates that it previously held in Leopold v. CIA, No. 14–48, 2015 WL 1445106, (D.D.C. Mar. 31, 2015), "that 'Exemption 5 acts as a complete shield' over the contested documents." The court explains that it found that the document was both predecisional, because it was "generated by lower-level employees 'to aid senior agency officials' deliberations about how to respond' to SSCI's ongoing investigation into the CIA's former detention and interrogation program, as well as 'how to deal with other policy issues that might arise therefrom,' as well as deliberative, because it was "'[I]ntended to facilitate or assist development of the agency's final position on the relevant issue[s].'" The court also holds that "[a]lthough it may well be that some of the facts contained within the Panetta Review have been otherwise disclosed, the Court does not believe that the official-acknowledgement doctrine has resonance in this case." The court explains that "'[e]ven if the information sought is exactly the same as the information which was acknowledged, . . . "the very fact that a known datum appears in a certain context or with a certain frequency may itself be information that the government is entitled to withhold."'"
Davis v. U.S., No. 14-9173, 2015 WL 2415348 (N.D. Ill. May 19, 2015) (Alonso, J.)
Re: Complaint that defendant did not inform plaintiff of requests concerning plaintiff; requests for certain records
Disposition: Granting defendant's motion to dismiss
Procedural Requirements, Proper FOIA Requests: The court dismisses plaintiff's claim. The court relates that "plaintiff seeks a declaration that the VA violated the Freedom of Information Act . . . because it: (1) did not tell plaintiff that FOIA requests had been made for his file or provide him with information about those requests; and (2) failed to respond to two FOIA requests he made in 2013." The court holds that "[t]he former allegations do not state a FOIA claim because the statute does not require the VA to tell plaintiff about other parties' FOIA requests." "The latter allegation does not state a FOIA claim because, absent a description of the documents plaintiff sought, it is impossible to tell whether his request fell within the parameters of the statute."
Neary v. FDIC, No. 14-1167, 2015 WL 2375395 (D.D.C. May 19, 2015) (Jackson, J.)
Re: Request for all candidates interviewed by FDIC's Corporate Employee Program from inception to present
Disposition: Granting defendant's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: "The Court finds that the FDIC's no-records response to plaintiff's request for the applicants' ages was proper since the agency does not 'require or request that CE Program applicants provide their dates of birth or ages in connection with job applications or during interviews.'"
- Exemption 6: "[T]he Court concludes that defendant properly withheld the requested job applicant records." The court relates that "FDIC withheld records containing the full names and addresses of applicants for the CE Program, the applicants' interview dates, and the applicants' hiring status." The court first finds that "[i]t is undisputed that the requested information is contained in personnel files, which satisfies the threshold requirement of exemption 6." The court notes the privacy interest in this information and then finds that "plaintiff has not shown an overriding public interest to compel disclosure of the exempt information." The court explains that "plaintiff's interest in gathering information for use in civil litigation he seeks to initiate is not sufficient to give rise to a public need for the information." "Moreover, plaintiff's unsubstantiated allegations that the FDIC engaged in age discrimination are not evidence." Additionally, the court holds that "[p]laintiff has not shown that the requested applicant information 'is permanently in the public domain,' . . . so as to require its release 'to the public as a whole.'" The court explains that plaintiff has not "'point to "specific" information identical to that being withheld'" and "lists—such as those offered here—created for use at a job recruitment event while 'technically public may be practically obscure [,] . . . [and] in such circumstances, an individual's privacy interest in limiting disclosure or dissemination of information does not disappear just because it was once publicly released.'"
Pinson v. DOJ, No. 12-1872, 2015 WL 2347018 (D.D.C. May 15, 2015) (Contreras, J.)
Re: Request for all documents concerning plaintiff and variety of other records
Disposition: Granting in part and denying in part plaintiff's Motion for a Protective Order or Appointed Counsel and Sanctions
- Procedural Requirements, Responding to FOIA Requests: The court holds that "whether the FBI and OIG correspondence must be disclosed pursuant to FOIA is a separate matter from whether [plaintiff], who is incarcerated, is entitled under BOP rules and regulations to possess the correspondence at issue while he is incarcerated." Moreover, the court holds that "FOIA litigation is not the proper vehicle for Mr. Pinson to challenge BOP security policies."
- Litigation Considerations: The court holds that "because the BOP's mail policy prohibits [plaintiff] from accessing some documents responsive to his FOIA requests," "[plaintiff] is currently unable to view documents relevant to this litigation, and in light of the fact that a number of his FOIA claims have proven meritorious and survived Defendants' motions for partial summary judgment, appointment of counsel is appropriate and will serve the interests of justice."
Leopold v. CIA, No. 13-1324, 2015 WL 2255957 (D.D.C. May 14, 2015) (Boasberg, J.)
Re: Request for Senate Select Committee on Intelligence's report regarding CIA's former detention and interrogation program; at issue are specific amounts agency spent on certain activities related to program
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations: "[T]hough the Court agrees that it would have been helpful—and an easier case—had the Agency broken the expenditures out further in its affidavits, it believes that the CIA has nonetheless provided adequate specificity to allow for summary judgment here." The court holds that, "although the CIA did not walk through the redactions one by one, its affidavits, read in conjunction with the released portions of the Executive Summary, provide sufficient detail for [plaintiff] and the Court to evaluate whether they fall within the scope of Exemptions 1 and 3." The court finds that "[t]he content of the information withheld is clear." The court explains that "the agency's affidavits also 'linked the substance of each exemption to the [redactions] common elements.'"
- Exemption 3: The court holds that "the Agency has adequately demonstrated that [the] release [of the material withheld under Exemption 3] could reveal sensitive information about its sources and methods." The court relates that "the CIA principally invokes Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), which provides that '[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'" The court finds that "[g]iven the considerable deference that the Court owes to the Agency in this context, it finds this explanation to be reasonable." "It is, for instance, plausible that disclosing most of these expenditures, including '[t]he amount of money offered to an unknown country for hosting a CIA detention facility,' 'the cost of [a] CIA detention facility' in an unidentified country,' [sic] and '[t]he amount of money offered to 'show appreciation' for support of a program,' . . . could provide insight into which countries aided the CIA's efforts." "It is also not difficult to conclude that unveiling the redacted sums, including the size of proposed budget cuts and the amounts given to detainees upon their release, could shed light on the funds that were available for particular activities, which could, in turn, divulge the agency's capabilities and priorities." In response to plaintiff's argument, the court finds that "[i]n essence, [plaintiff] asks the Court to credit his judgments about the effects of disclosure over those of the agency." "This is something it clearly cannot do." Finally, the court finds that "[f]ar from casting doubt on the Agency's judgments about which sums could lead to the unauthorized disclosure of its sources and methods, the release of other expenditures suggests that the CIA has only withheld those that would unjustifiably compromise our national security."
- Exemption 1: The court holds that "[b]ecause the CIA has thus complied with the procedural and substantive requirements for classifying the information under Executive Order 13,526, it may also properly withhold it under Exemption 1." The court first finds that "[t]he first two requirements are easily addressed." "[Defendant's declarant] declares—and Plaintiff does not dispute—that she has been delegated original Top Secret classification authority, and that the information is within the United States' control." Regarding the third requirement, the court finds that "[g]iven the lengthy analysis above . . . it is clear that the information falls within § 1.4(c) because it 'pertains to' intelligence activities, sources, and methods." Additionally, the court finds that "[w]hile satisfying that category alone would be sufficient, [defendant] has also shown that these sums also relate to foreign activities and relations." The court notes that "all of them concern 'payments provided to foreign governments and foreign nationals, the amount of money expended to construct facilities abroad, and amounts reflecting the resources devoted to the former detention and interrogation program which took place overseas.'" Regarding the last consideration, "[t]he Court finds [defendant's] predictions of harm both logical and plausible, and it sees no reason to second guess them." The court finds that "the information could 'reveal broader intelligence priorities and the source and methods of certain intelligence collection'" and that "'[r]elease of the specific amounts would ... adversely impact current and future operations as countries and individuals would be able to use these monetary figures as a starting point for negotiations on other matters.'"
- Litigation Considerations, "Reasonably Segregable Requirements": The court holds that "[g]iven the discrete nature of the information [plaintiff] seeks, it is rather obvious that the Agency could not disclose anything further without revealing what is protected." "The agency has stated that it conducted a 'page-by-page and line-by-line review ... and concluded that all reasonably segregable non-exempt information has been released."