Williams v. FBI, No. 13-00056, 2014 WL 1320262 (D. Utah Mar. 31, 2014) (Nuffer, J.)
Re: Request for memorandum allegedly distributed in 1993 by then-new Director of FBI, Louis Freeh
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion to compel additional searches
- Litigation Considerations, Adequacy of Search: The court holds that "[t]he FBI has conducted a search reasonably calculated to recover the document that Williams requested." The court relates that defendant's declarations "establish [defendant's] personal knowledge and supervisory role with respect to [plaintiff's] FOIA request; . . . provide a detailed explanation of the FBI's file system; . . . discuss the manner in which the FBI searched that system, including the various search terms that it employed; . . . discuss the searches it conducted outside of its electronic file system; and provide reasons that additional searches would be both burdensome and unlikely to recover the Freeh Memorandum." The court finds that "the declarations carry the FBI's burden on summary judgment to show that the searches satisfied the agency's FOIA obligations." The court rejects plaintiff's arguments that alternative searches should have been conducted. The court also finds that plaintiff's "allegations are not sufficient to rebut the presumption that the FBI's declarations were submitted in good faith," explaining "[t]hat the FBI has acted in bad faith in the past does not defeat the presumption of good faith in all subsequent cases." The court also rejects plaintiff's argument that "the FBI's declarations include hearsay evidence that is not admissible" and explains that "'FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties,' even where those statements include hearsay."
Elec. Frontier Found. v. DHS, No. 12-5580, 2014 WL 1320234 (N.D. Cal. Mar. 31, 2014) (Hamilton, J.)
Re: Request for records concerning U.S. Customs & Border Protection's use of unmanned aircraft systems
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment
- Exemption 7(E): First, the court analyzes defendant's withholding of OAM daily reports and holds that "defendant has adequately shown that location-based information from the OAM Daily Reports was properly withheld under FOIA exemption 7(E)." The court finds that the "location of CBP's drone operations do qualify as 'techniques and procedures,' and thus are entitled to the exemption's protections without any further showing." However, the court finds that "even if the court were to require defendant to show risk of circumvention of the law, the court finds that defendant has done so" by stating that "'[r]eleasing the geographic location of the operation would show where OAM has clearance to fly and one could deduce which areas OAM does not have clearance to fly or does not operate,' which would risk circumvention of the law in those areas." Moreover, the court holds that "the specific locations of CBP drone operations are not generally known" to the public. The court then, "[t]urn[s] to operational information," and similarly finds for defendant. The court holds that "absent any evidence from EFF contradicting the supplemental [defendant] declaration, the court is inclined to find that defendant has indeed satisfied its burden to establish that the requested operational information is not generally known." The court explains that "[j]ust because some piecemeal facts regarding drones' operation may be known, that does not mean that defendant is obligated to disclose all information about drone operations."
Second, the court "address[es] CBP's withholdings from the CONOPS report" and finds "that release of location-based information would disclose law enforcement techniques and procedures, and even if defendant were required to show risk of circumvention of the law, defendant would meet that burden as well." The court explains its second point by stating that "[e]ven if other measures (aside from drones) are used, disclosure of the location of drone operations may still increase the risk of circumvention of the law." The court then analyzes the "withholding of operational information" and makes a similar finding, holding that "release of the operational information—which includes CBP's methods for identifying and analyzing threats, as well as drone capabilities and vulnerabilities—would indeed disclose techniques and procedures for law enforcement, thus entitling the information to protection under exemption 7(E)[,] [a]nd even if the court were to require defendant to show that release of the information would risk circumvention of the law, defendant would also meet its burden under that test." The court additionally "finds that defendant has met its burden to show that the location-based information withheld from the CONOPS report is not generally known."
Procedural Requirements, "Reasonably Segregable" Obligation: The court holds that certain information "can be segregated from exempt information, and should not have been redacted under exemption 7(E)." The court therefore denies in part defendant's motion for summary judgment and grants in part plaintiff's motion for summary judgment.
Vietnam Veterans of Am. Conn. Greater Hartford Chapter 120 v. DHS, No. 10-1972, 2014 WL 1284970 (D. Conn. Mar. 31, 2014) (Thompson, J.)
Re: Records concerning use of personality disorder discharges when separating service members from armed forces
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: First, the court addresses plaintiffs' argument that "the searches conducted by the DoD, its components, and the Veterans Health Administration are facially inadequate because the agencies did not construe the plaintiffs' requests to include individual service member files." The court agrees with plaintiffs and finds that plaintiffs' request "makes it clear that the plaintiffs are seeking all records related to the use of personality disorder and adjustment disorder discharges to separate service members." However, the court finds that "'an agency need not respond to a request that is so broad as to impose an unreasonable burden upon the agency, such as one which requires the agency to locate, review, redact, and arrange for inspection a vast quantity of material.'" While plaintiffs, during the course of the litigation “indicated their willingness to narrow their request to a representative sample[,]” the court declines to consider that proposal. "Because the court can only consider the request actually before it—here, the request for all of the individual service members' separation packets—the court concludes that the plaintiffs' original request would have imposed an unreasonable burden on the defendants, and therefore they are not required to respond." The court explains that "defendants argue, and the court agrees, that the court should not consider whether the plaintiffs' proposed narrowed search would be unduly burdensome." The court makes a parallel ruling with respect to plaintiff's request for "[Veterans Administration] files."
- Litigation Considerations, Adequacy of Search: Second, the court addresses the searches themselves, first holding that the declarations submitted by certain components of DoD "do not meet their burden of showing beyond material doubt that the search conducted . . . was adequate." The court holds that various components' declarations "are insufficient" because they "do not describe [all of defendants] filing system[s]," "do not state why [certain] files [searched] were selected to be searched at the exclusion of others," "do not state which search terms ultimately were used," and "do not adequately describe [certain] search[es] to show that [they were] reasonably calculated to find all responsive documents." The court does find that declarations submitted on behalf some of defendant's offices "sufficiently describe the search that was conducted by [those offices] and show beyond material doubt that the search was reasonably calculated to uncover all relevant documents." Additionally, the court notes that the declaration of one component "describes in detail why [that one] component and [its] offices were selected to conduct the searches and averred that based on his experience, no other office was likely to maintain responsive records." The court also notes that this component "describes the kinds of information each office maintains and how such information is stored."
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court finds that "[b]ecause the court has determined that the plaintiffs' requests for the individual service member files are unduly burdensome and the defendants were not required to respond, the issue of whether search and duplication fees may be assessed is moot."
- Litigation Considerations, Vaughn Index / Declaration: The court holds that defendant's "Vaughn index is sufficient." The court finds that "defendants' Vaughn index identifies each document where information was redacted, the type of document it is, the claimed exemption and the basis for redacting the information pursuant to that exemption."
- Exemption 6: The court holds that defendant's "motion for summary judgment is being granted as to the propriety of the redactions." First, the court states that "in light of the fact that rank, dates of service and place of last assignment could be used by knowledgeable individuals to link the service member to highly sensitive material and it is not apparent how this information would shed light on the defendants' use of personality and adjustment disorder discharges, the court finds that redaction was appropriate." Second, "the court finds that the low-level DoD officials have more than a de minimis privacy interest in their names and identifying information because their employment with the DoD could subject them to harassment or attack." Additionally, the court holds that "[t]he public interest in this case is negligible or nonexistent."
Shapiro v. DOJ, No. 13-0729, 2014 WL 1280275 (D.D.C. Mar. 31, 2014) (Friedman, J.)
Re: Request for records concerning Aaron Swartz, recently deceased computer programmer, activist, and doctoral candidate at MIT
Disposition: Granting in part and denying in part defendant's motion for summary judgment; holding parties' cross-motions for summary judgment in abeyance with respect to search issue
- Exemptions 6 and 7(C): The court concludes that defendant properly invoked Exemptions 6 and 7(C). "With respect to [the names of] FBI support personnel," "the Court agrees that the redactions made by the FBI are justified under Exemptions 6 and 7(C)." The court explains that "there is no public interest sufficient to outweigh the privacy interests of [the FBI’s] Special Agents and support personnel." Regarding "the names . . . of third parties who provided information to the FBI, as well as of individuals who were only incidentally mentioned in records responsive to plaintiff's request[,]" " the Court is persuaded that the disclosure of such information would constitute an unwarranted invasion of privacy." Regarding the withholding of "the name of a non-FBI federal employee[,] . . . declarant explains that disclosure of this information could subject the individual to unauthorized injuries and harassment, . . . and the Court agrees."
- Procedural Requirements, Searching for Responsive Records: The court first finds that "plaintiff's request is not confined to records 'of a criminal investigative nature'" and therefore directs defendant "to consider whether responsive records would reasonably reside outside [the system defendant searched], and either perform any additional appropriate searches in databases or records systems outside [the system defendant searched] or explain why additional searches would not be appropriate." The court also finds that "[a]lthough the Court recognizes that a full-text search may not be warranted in every case, it finds the FBI's explanation as to why it was unwarranted here to be lacking." The court therefore "direct[s] the FBI to either conduct a full-text search . . . or provide further explanation as to why such a search is unnecessary in this particular case." Additionally, "[t]he Court . . . is unable to determine whether the FBI's decision to withhold the third-party requests is a reasonable one." Therefore, "[t]he Court will direct the FBI to provide the third-party requests and related documents received after the cut-off date or explain further why its decision to withhold these documents is reasonable." Last, the court notes that "plaintiff raises a number of other challenges to the adequacy of the search, but the Court does not find any of these to have merit."
Brustein & Manasevit v. Dep't of Educ., No. 13-0714, 2014 U.S. Dist. LEXIS 43960 (D.D.C. Mar. 31, 2014) (Jackson, J.)
Re: Request for records concerning DOE computer program, "State and Local Educational Agencies Risk Model," used to identify state and local education agencies at risk of misusing federal funds
Disposition: Denying defendant's motion to dismiss on mootness grounds; granting defendant's motion for summary judgment
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court holds that "[d]efendant's motion to dismiss Plaintiff's complaint on mootness grounds must be denied." The court notes that "[i]t is undisputed that DOE has produced fully the documents that it had originally withheld." However, the court finds that "the production of documents in the context of a FOIA case does not automatically render the case moot, because, as explained above, the plaintiff may still hold 'a cognizable interest' in having a court determine the adequacy of the agency's search for records." The court holds that "[g]iven Plaintiff's insistence that additional responsive documents must exist and that therefore the released records have not been provided after an adequate search . . . the Court concludes that Plaintiff has a cognizable interest in having this Court determine whether the Defendant's search for records was adequate."
- Litigation Considerations, Adequacy of Search: The court concludes that "because Defendant has carried its burden of showing that it conducted a reasonable and adequate search for responsive records, and because Plaintiff has provided no reason for the Court to conclude otherwise, the Court will grant Defendant's motion and enter summary judgment in its favor." The court finds that "the declarations of [defendant]--which are presumed to have been submitted in good faith and are entitled to great weight--are sufficient to carry Defendant's burden of showing that it conducted 'a search reasonably calculated to uncover all relevant documents[.]'"
Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-5223, 2014 WL 1284811 (D.C. Cir. Apr. 1, 2014) (Henderson, C. J.)
Re: Request for records concerning investigation of former House of Representatives Majority Leader
Disposition: Reversing and remanding district court's grant of defendant's motion for summary judgment
- Exemption 3: The court holds that defendant's statement "that the requested documents contain information that 'could be used as evidence before a Federal Grand Jury' or 'may be subpoenaed by a Federal Grand Jury' and therefore that 'any such disclosure would clearly violate the secrecy of the Grand Jury proceedings . . . is insufficient" to support withholding information under exemption 3 and Federal Rule of Criminal Procedure 6(e). The court finds that "[a]lthough we do not doubt that some of the requested records may fall under Exemption 3, the DOJ has not yet supplied sufficient information for a court to make that determination."
- Exemption 7(A): The D.C. Circuit holds that "the DOJ has not met its burden to warrant categorical withholding [under Exemption 7(A)]." The court finds that "[t]he first set of proceedings [cited by defendant] does not justify withholding because the sentencing hearings—and appeals—of [three individuals] are no longer 'pending or reasonably anticipated.'" The court relates that "[t]he second type of proceeding [cited by defendant], ongoing at least in August 2011, consists of 'all related criminal investigations.'" Regarding this second type of proceeding, the court finds that "it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings; 'it must rather demonstrate how disclosure' will do so." Despite its ruling, the court notes that "[o]nce again, we do not hold that the requested information is not exempt." Instead, the court directs that "[o]n remand, the DOJ must clarify whether a related investigation is in fact ongoing and, if so, how the disclosure of documents relating to DeLay would interfere with it."
- Exemption 7(C): The D.C. Circuit holds that "[a]lthough a substantial privacy interest is at stake here, in light of the similarly substantial countervailing public interest, the balance does not characteristically tip in favor of non-disclosure." Concerning the privacy interest at stake, the court finds that "[b]ecause DeLay's public statements confirmed he had been under investigation, the FBI's acknowledgment that it had responsive records would not itself cause harm by confirming that fact, rendering a Glomar response inappropriate." However, the court also finds that "[a]lthough DeLay's action lessened his interest in keeping secret the fact that he was under investigation, he retained a second, distinct privacy interest in the contents of the investigative files." Concerning the public interest at issue, the court finds that "[o]n the other side of the scale sits a weighty public interest in shining a light on the FBI's investigation of major political corruption and the DOJ's ultimate decision not to prosecute a prominent member of the Congress for any involvement he may have had." The court concludes that, while the "balance does not characteristically tip in favor of non-disclosure," "[w]e do not hold that the requested information is not exempt under Exemption 7(C)." "We simply hold that a categorical rule is inappropriate here."
- Exemption 7(D): The D.C. Circuit finds that defendant does not make the required "showing that the source is a confidential one." The court holds that "[t]o invoke Exemption 7(D) on remand, the DOJ must either 'present probative evidence that the source did in fact receive an express grant of confidentiality,'" or "'point to more narrowly defined circumstances that . . . support the inference' of confidentiality."
- Exemption 7(E): The D.C. Circuit holds that defendant's "near-verbatim recitation of the statutory standard is inadequate." The court relates that "[w]e are not told what procedures are at stake." The court directs that "the agency must at least provide some explanation of what procedures are involved and how they would be disclosed."
Conti v. DHS, No. 12-5827, 2014 WL 1274517 (S.D.N.Y. Mar. 24, 2014) (Torres, J.)
Re: Request for records concerning several ICE agents, as well as for records concerning plaintiff
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment without prejudice to renewal
Litigation Considerations, Adequacy of Search: The court grants defendant's motion for summary judgment concerning the reasonableness of defendant's search. The court holds that "DHS has demonstrated that it conducted an adequate search for the documents requested by Plaintiff." The court explains that defendant's "declaration indicates that ICE FOIA searched the record systems, or caused the record systems to be searched, where it believed responsive records were likely to be located." The court also finds that defendant's "declaration shows that each of these searches was conducted reasonably and in good faith." Additionally, the court finds that "[p]laintiff's proof of missing documents fails to render DHS' search unreasonable." Moreover, the court "declines to find DHS' search inadequate simply because DHS conducted supplemental searches which resulted in the release of previously unreleased documents." The court notes that "[i]ndeed, these supplemental searches further demonstrate ICE FOIA's good faith in responding to Plaintiff's FOIA requests."
Exemption 5, Attorney-Client Privilege: The court finds that "[t]he attorney-client privilege  protects all of these communications from release, and ICE FOIA's assertion of Exemption 5 over the communications was proper." The court explains that "[e]ach withheld e-mail communication is between agency employees, on one hand, and an agency attorney from DHS Office of the Principal Legal Advisor . . . , on the other." Additionally, the court notes that "[t]he subject of all of the withheld e-mails was [certain] litigation; all of the communications were made for the purpose of securing or providing legal advice or services; and all of the communications were intended to be, and were kept, confidential."
Exemption 6 and 7(C): The court holds that "[p]laintiff has met his burden of production with respect to [certain documents] as they all match information previously disclosed." However, regarding certain information concerning third parties which was not publically disclosed, the court finds that it was properly withheld and "[p]laintiff has failed to provide a meaningful evidentiary showing of his other vague allegations of government misconduct." Specifically, the court finds that "[r]egarding [an individual's] theft of government property, the public interest is insubstantial because the information sought regarding [this individual] is not ' 'necessary in order to confirm or refute' ' the theft" because "[this individual] has pleaded guilty and been sentenced in federal court; thus, the public interest in confirming or denying [his] misconduct is negligible." Additionally, the court finds that "[p]laintiff's private interest—the use of documents in the MSPB litigation—is immaterial." The court also finds that defendant's Glomar response made in response to plaintiff's request for "investigative files and records relating to third parties" was appropriate. The court holds that "[b]ecause Exemptions 6 and 7(C) protect from disclosure the existence or non-existence of the requested investigative files, DHS' Glomar responses were appropriate."
Exemption 7(E): The court holds that "[s]ummary judgment is denied as to DHS' Exemption 7(E) redactions, as some of the Exemption 7(E) redactions withhold information already in the public domain." The court notes that "ICE FOIA has asserted Exemption 7(E) to protect certain confidential ICE investigative techniques and procedures for law enforcement investigations or prosecutions."
Exemption 7(A): The court holds that "summary judgment is denied on the Exemption 7(A) redactions." The court finds that law enforcement proceedings have concluded and notes that "Judge Esther Salas sentenced [plaintiff's supervisor], making his conviction final."
Litigation Considerations, Vaughn Index / Declaration: The court "finds that the Vaughn indices adequately catalogue each redaction of a witness statement, indicate every application of an exemption, and indicate the exemption's relevance." Specifically, the court "finds that the Vaughn indices here sufficiently describe the redacted documents and correlate the redactions with each particular exemption."
Litigation Considerations, "Reasonably Segregable" Requirements: The court's "[e]xamination of the redacted and un-redacted versions side by side reveals that the redacted portions were covered by the exemptions (until they were publicly disclosed) or at the very least, non-exempt portions of the paragraphs are inextricably intertwined with exempt portions."
Procedural Requirements, Searching for Responsive Records: The court holds that "[p]laintiff is not entitled to documents outside the scope of his request." Additionally, the court finds that "[s]imilarly, it appears that Plaintiff is not entitled to duplicative documents either."
Davis v. FBI, No. 13-1657, 2014 U.S. Dist. LEXIS 39244 (D. Del. Mar. 25, 2014) (Sleet, J.)
Re: Request for information plaintiff provided to FBI
Disposition: Holding that plaintiff's amended complaint may proceed
Litigation Considerations, Pleadings: The court holds that "[l]iberally construing the amended complaint, as the court must, [plaintiff] states what appears to be a cognizable FOIA claim." The court explains that "[t]he amended complaint specifically names as defendants the FBI and the Department of Justice." However, the court also finds that "[a]ll other defendants as named in the original complaint and those referred to in the amended complaint as 'the other defendants [who] range from law enforcement agencies to private individuals' will be dismissed."
Riddick v. Holland, No. 13-240, 2014 WL 1253631 (E.D. Ky. Mar. 26, 2014) (Caldwell, J.)
Re: Plaintiff's request for the court to direct the government to comply with plaintiff's FOIA requests because plaintiff alleges that the federal court in the District of Columbia failed to properly address plaintiff's FOIA requests
Disposition: Holding that plaintiff's FOIA claim cannot proceed
- Litigation Considerations: The court holds that "to the extent that [plaintiff] is attempting in this proceeding to obtain government documents under FOIA, he cannot proceed under [28 U.S.C.] § 2241, which is limited in scope to allowing a federal prisoner to challenge some aspect of the execution of his sentence." Moreover, the court finds that "[t]he FOIA Action is currently pending in the District of Columbia, and [plaintiff] can pursue his FOIA claims in that proceeding."
Riccardi v. DOJ, No. 12-1887, 2014 WL 1254616 (D.D.C. Mar. 27, 2014) (Jackson, J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendant's motion for summary judgment/motion to dismiss
- Litigation Considerations, Adequacy of Search: The court "concludes that summary judgment must be entered in favor of Defendants." The court finds that defendant's "declarations attesting to the multiple searches Defendants carried out and the few responsive documents they turned up are sufficient to carry Defendants' burden of showing that they conducted a reasonable and adequate search for such documents." The court relates that "[i]n response to Defendants' declarations, [plaintiff] merely speculates that Defendants failed to produce responsive records because his defense attorney allegedly told him that, during a plea negotiation meeting, AUSA Berger had ' 'worked from notes and other documents she had in her possession' ' and had ' 'sketched out her thinking on how the sentencing guidelines would be applied under such a plea[.]' '" The court holds that "even if the statement regarding the AUSA's notes and musings during plea negotiations could be construed as evidence that a plea offer document existed at some point in time, [plaintiff] nonetheless fails to establish that there is a genuine issue of fact regarding the adequacy of the search conducted here because 'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'"
- Procedural Requirements, Expedited Processing: The court holds that "[d]efendants' motion to dismiss the claim for expedited processing must be dismissed for lack of jurisdiction." The court finds that it "is divested of jurisdiction over a claim regarding 'an agency denial of expedited processing' once 'the agency has provided a complete response to the request.'" The court notes that "there is no dispute that the agency produced all of the records that it located."