Baird v. DOI, No. 14-1879, 2015 WL 9315746 (E.D. La. Dec. 23, 2015) (Morgan, J.)
Re: Request for records concerning plaintiff's "claims of harassment, retaliation, and hostile work environment"
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: The court holds that "[d]efendants in this case have exceeded their obligations under FOIA." "Not only did the Defendants conduct an adequate search in response to Plaintiff’s initial FOIA request, Defendants have conducted several subsequent searches in an attempt to amicably resolve Plaintiff’s FOIA claims." Additionally, "[t]he Court disagrees" with Plaintiff's argument that documents "must exist." "As noted above, 'the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'"
- Exemption 5, Deliberative Process Privilege: "Having reviewed the unredacted documents in camera, as well as the applicable law, the Court finds the redactions to be proper." The court relates that "[p]laintiff . . . express[ed] concern over the Defendants’ redactions under the 'deliberative process' or 'pre-decisional' exemption in 5 U.S.C. § 552(b)(5)." The court finds that "[t]he redactions withhold information that can fairly be characterized as 'deliberative' or 'pre-decisional' and are necessary to protect the integrity of the Defendants’ decision-making processes in this case."
Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015) (Kavanaugh, J.)
Re: Request for recommendation as to whether to grant alien’s request for asylum in United States
Disposition: Affirming district court's grant of defendant's motion for summary judgment
- Exemption 5, Deliberative Process Privilege: The Court of Appeals for the District of Columbia Circuit holds that "[i]n [plaintiff's] case, the Assessment to Refer was both pre-decisional and deliberative." "The Assessment was pre-decisional; it was merely a recommendation to a supervisor." "The supervisor, not the official writing the Assessment, made the final decision." "The Assessment was also deliberative; it was written as part of the process by which the supervisor came to that final decision." "The Assessment itself had no 'operative effect.'" Responding to one of plaintiff's arguments, that defendant "adopted [the Assessment to Refer] as the 'final decision[,]'" the court finds that "[t]hat is incorrect." "The Department publicly explained its final decision through a Referral Notice." "That Referral Notice represented the final decision." "The Notice did not mention the Assessment at all." Further, the court found that the fact that the supervisor initialed the Assessment "does not transform the Assessment into the Department’s final decision." "Initialing a memo may suggest approval of the memo’s bottom-line recommendation, but it would be wrong and misleading to think that initialing necessarily indicates adoption or approval of all of the memo’s reasoning." Moreover, the lack of a "give-and-take in the agency’s process" was an unavailing argument given that "[a] recommendation to a supervisor on a matter pending before the supervisor is a classic example of a deliberative document." Finally, responding to another of plaintiff's arguments, "that the Department is estopped because it has not always invoked the deliberative process privilege for other Assessments[,]" the court finds that "[p]ut simply, an agency does not forfeit a FOIA exemption simply by releasing similar documents in other contexts."
Bagwell v. DOJ, No. 15-00531, 2015 U.S. Dist. LEXIS 169270 (D.D.C. Dec. 18, 2015) (Cooper, J.)
Re: Request for records concerning Pennsylvania State University child-sex-abuse scandal
Disposition: Deferring resolution of parties' motions for summary judgment; ordering defendant to file supplemental memorandum in support of its motion for summary judgment and allowing plaintiff opportunity to respond to defendant's supplemental memorandum
- Litigation Considerations, Adequacy of Search: "The Court cannot conclude, based on the record before it, that DOJ's search for responsive records was adequate." The court finds that, "[a]t present, DOJ has failed to demonstrate beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents." The court finds that it "has no way of knowing . . . the method by which DOJ searched for and located . . . particular emails and thus cannot determine whether the search was likely to have captured all responsive emails." Moreover, the court finds that "[w]hile 'an agency's failure to find a particular document does not necessarily indicate that its search was inadequate,' . . . in this instance the search's apparent failure to uncover any material [referenced in public statements] raises a legitimate question as to thoroughness of the search."
- Exemption 3: The court holds that "DOJ has also failed adequately to justify its invocation of FOIA Exemption (b)(3), specifically as it relates to what DOJ labels 'grand jury material.'" The court finds that "DOJ does provide some information on this front, but not enough" for the court to determine "that all 2,700 pages and 86 gigabytes of withheld material would reveal some secret aspect of the grand jury's proceedings or deliberations."
- Litigation Considerations, Vaughn Index/Declaration: "Because the Court finds that DOJ's 'Vaughn Index and explanations of the withholdings are insufficient as a whole,' it cannot grant summary judgment for the agency." The court finds that "[t]he four-page Vaughn Index DOJ submits is plainly insufficient." "In addition to being exceptionally short, its descriptions of withheld documents are quite general and vague, and it links categories of withheld documents to corresponding FOIA exemptions in a purely conclusory manner." "The affidavits, too, merely parrot the statutory standards that correspond to each exemption rather than provide any new detail."
- Litigation Considerations, "Reasonably Segregable" Requirements: "The Court lacks both an adequate 'Vaughn ind[ex] and copies of the redacted records,' . . . which limits its ability to find that 'all reasonably segregable records and portions of records have been released to [the] plaintiff[.]'" "As a result, the Court is unable to make a segregability finding at this time."
Bartko v. DOJ, No. 13-1135, 2015 U.S. Dist. LEXIS 169112 (D.D.C. Dec. 18, 2015) (Boasberg, J.)
Re: Request for records concerning plaintiff's criminal case
Disposition: Granting defendant's motion for summary judgment in part; ordering release of certain records
- Exemption 3: "Having reviewed the contents [of records withheld under Exemption 3 in camera], the Court is satisfied that the records were properly withheld as containing information about the names of recipients of federal grand-jury subpoenas; information that identifies specific records subpoenaed by a federal grand jury; and copies of specific records provided to a federal grand jury in response to such a subpoena." "In light of this, [the court finds that] the FBI appropriately declined to articulate the precise contents of the thumb drive so as to avoid 'reveal[ing] statutorily protected Federal Grand Jury information.'" However, regarding the withholding of one page, the court finds that "[w]hile other exemptions might appropriately justify the FBI's withholding – Exemption 7(C), for example – since it has only claimed Exemption 3 and that exemption does not seem appropriate here, the Court will order that this record be released."
- Exemptions 6 and 7(C): "With one exception . . . the Court finds that the privacy interests indisputably outweigh any potential public interest there may be in the records." The court finds that, "[t]o begin, it is undisputed that the records in question were created for law-enforcement purposes." "'Plaintiff's investigative main file was compiled by the FBI during its criminal investigation of plaintiff and others for the crimes of conspiracy to commit mail fraud, the sale of unregistered securities and money laundering, and engaging in unlawful monetary transactions . . . .'" Next, "[t]he Court finds substantial each of the privacy interests the FBI has asserted." The court relates that the FBI withheld "the names and/or identifying information of: (1) FBI special agents and support employees; (2) third parties of investigative interest; (3) non-FBI federal-government personnel; (4) third parties merely mentioned; (5) recipients of federal grand-jury subpoenas, trial subpoenas, administrative subpoenas, and individuals supplying responses; (6) third-party victims; (7) third parties who provided information to the FBI; and (8) state law-enforcement employees." Finally, the court finds that "although [plaintiff] does allege prosecutorial misconduct as the basis for both his own interest in accessing these FBI records, and also as the public interest in their release, he has not identified how the records sought will provide 'compelling evidence that the agency is engaged in illegal activity,' . . . nor does the Court find such evidence based on its review." The court also finds "that the FBI appropriately declined to specify which of the 7(C) exemption categories applied to [a] thumb drive in order to preserve the privacy of the individual(s) whose records were contained therein." However, "[t]he Court will . . . order that [the U.S. District Court for Eastern District of North Carolina sentencing schedule] be released" because it "does not understand either why this seemingly public information should be withheld for privacy reasons or how Exemption 7(C) relates to it."
- Waiver: "Absent specific identification of substantially identical records already released, the Court finds Plaintiff's public-domain argument does not alter the calculus that permits the FBI to withhold relevant records." The court relates that "[a]ll that [plaintiff] claims is that prior USPIS releases '[m]aterially [d]iminish' the privacy interests that motivate the FBI's claim of Exemption 7(C)." However, "[h]e provides no specific details in his Motion or affidavit of the precise information released by USPIS that 'appears to duplicate that being withheld.'"
- Exemption 7(E): The court holds that "the FBI has failed to meet its burden, and the Court sees no reason to withhold [the pages withheld under Exemption 7(E)] from Plaintiff." The court explains that it "is uncertain whether [defendant's] rationale was specified in error, as the exempted records do not appear to fit [defendant's] description." "Nor are these documents on their face in any other way appropriately withheld under Exemption 7(E)."
In re Williams, No. 15-5222, 2015 U.S. App. LEXIS 21827 (D.C. Cir. Dec. 15, 2015) (per curiam)
Re: Request for records concerning petitioner
Disposition: Denying petitioner's petition for writ of mandamus
- Litigation Considerations, Jurisdiction: The Court of Appeals for the District of Columbia Circuit holds "that the petition for writ of mandamus be denied" because "it appears that the Eastern District of North Carolina has jurisdiction over petitioner's Freedom of Information Act claims, . . . and the district court did not otherwise grossly abuse its discretion in transferring appellant's complaint to a judicial district where 'a substantial part of the events or omissions giving rise to the claim occurred.'"
Schreane v. Ebbert, No. 15-0146, 2015 WL 8781497 (M.D. Pa. Dec. 14, 2015) (Caputo, J.)
Re: Request for investigative report on former BOP staff member
Disposition: Dismissing plaintiff's FOIA claims
- Litigation Considerations: The court holds that "[plaintiff] may not [c]hallenge the denial of his FOIA [r]equest in a [h]abeas [p]roceeding." The court finds that "this matter will be dismissed without prejudice to any right [plaintiff] may have [to] challenge the denial of his FOIA claim via a properly filed action pursuant to 5 U.S.C. § 552."
Long v. ICE, No. 14-00109, 2015 WL 8751005 (D.D.C. Dec. 14, 2015) (Mehta, J.)
Re: Request for metadata and database schema from certain databases
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Exemption 7, Threshold: "The court thus concludes that the withheld records easily qualify as records or information 'compiled for law enforcement purposes.'" The court notes that "[p]laintiffs concede that Defendants use the EID and IIDS databases for law enforcement purposes—to assist ICE and CBP with deporting people who are unlawfully in the United States, to arrest those who violate federal immigration laws, and to track investigations and court proceedings of those apprehended." Additionally, the court finds that there is a "clear connection between the records and possible security risks or violations of law."
- Exemption 7(E): "Based on the present record, the court cannot find that Defendants have carried their burden of showing that disclosure of the IED and IIDS metadata and database schema increases the risk of a cyber-attack of the kind Defendants posit." First, "[a]lthough the court views [defendant's] Declaration as providing a rather thin explanation for why the metadata and database schema qualify as a law enforcement technique, procedure, or guideline, the court ultimately agrees with Defendants." However, second, the court finds that "[t]he sole risk that Defendants claim might be heightened by the release of metadata and database schema is that of a [Structured Query Language ("SQL")] injection attack." "On the present record, however, it is undisputed that a SQL injection attack requires an external point of entry, such as a website or point-of-sale machine, and that the IED and IIDS databases are not so exposed." "The court is thus left unconvinced, at this juncture, that the sole risk of circumvention of the law claimed by Defendants—a SQL injection attack—would be increased if the requested metadata and database schema were disclosed." However, "the court will permit Defendants to supplement the record with additional affidavits or other evidence to establish that disclosure of the IED and IIDS metadata and database schema will increase the risk of a cyber-attack, data breach, or any other circumvention of the law."
- Exemption 3: The court holds that "[d]efendants’ claim that the requested materials can be withheld pursuant to Exemption 3 fails." The court explains that "[t]he statute upon which Defendants rely—the Management Act—was repealed in its entirety on December 18, 2014—after this case was filed—and replaced by the Federal Information Security Modernization Act of 2014 . . . 44 U.S.C. § 3551 et seq. (2014)." "As the Modernization Act is the law in effect at the time the court is rendering its decision, it is the controlling law in the present dispute." The court finds that "[t]he Modernization Act does not enable Defendants to invoke Exemption 3 here for two reasons." "First, because the Modernization Act was enacted after the OPEN FOIA Act of 2009, for it to protect records from disclosure under Exemption 3 it must 'specifically cite[ ] to [Exemption 3].'" "It does not do so." "Second, to the extent that the Modernization Act does cite to FOIA, it does not alter agencies' obligations under the FOIA statute." "The Modernization Act expressly states that '[n]othing in this subchapter ... may be construed as affecting the authority of ... the head of any agency, with respect to the authorized use or disclosure of information, including ... the disclosure of information under section 552 of title 5.'"
- Procedural Requirements, Responding to FOIA Requests: "[T]he court finds that Defendants have demonstrated that producing and redacting . . . requested snapshots [concerning transfer of data] would be unduly burdensome." The court explains that, "when [the] data is collected, organized, and transferred to a functional database . . ., no reproducible extract or copy of the transferred data, or snapshot, is created to provide to a FOIA requester." The court notes that, "[h]ere, Defendants’ declarant . . . has attested, based on his specific knowledge of and experience with the . . . database and associated datamarts that replicating and redacting the snapshots would create an undue burden on the agencies." "Plaintiffs’ declarant, though an expert in the field of database systems and management, has not offered any evidence that specifically rebuts [defendant's] assertions about the agencies’ present technological capabilities as to the [specific] database [at issue] and associated datamarts or regarding the burden that reproduction and redaction of the snapshots would impose on them." "Instead, [plaintiff] offers only observations about commercial databases in general."
- Litigation Considerations, Discovery: "Plaintiffs’ request for discovery is denied." The court finds that "[p]laintiffs have not offered any evidence that is specific to the . . . databases at issue in this case, to create a factual dispute that might otherwise justify allowing Plaintiffs to take discovery."
- Procedural Requirements, Searching for Responsive Records: "The court agrees with Plaintiffs’ first contention that Defendants have not explained what search, if any, they undertook to locate extract identification and preparation records sought." "Indeed, the government does not even respond to this argument." "Because Defendants do not address what search, if any, they conducted, the court will deny summary judgment as to the adequacy of their search in response to [this portion of plaintiffs' requests]." However, the court "finds that Defendants’ search of [a] repository for [certain] requested records was adequate." The court finds that plaintiffs "have not offered any reason to believe that responsive records—other than the database schema and codes themselves, which Defendants are not required to produce at this juncture—would be found within [certain] databases." "Absent such a showing, the court is satisfied that Defendants conducted a proper search for the . . . database schema and metadata."
Ramey v. Bd. of Governors for the Fed. Reserve, No. 14-220, 2015 WL 8493998 (N.D.W.V. Dec. 10, 2015) (Keeley, J.)
Re: Request for records concerning plaintiff
Disposition: Adopting Magistrate Judge's Report and Recommendation; granting defendant's motion or summary judgment
- Procedural Requirements, Adequacy of Search: "[T]he Court [adopts] the Report and Recommendation in its entirety . . . [and] [grants] the motion to dismiss or for summary judgment." The court relates that the Magistrate Judge "found that the Court lacked jurisdiction because the BOG lacked any records responsive to [plaintiff's] request." "Further, even if the Court did have jurisdiction, the R&R found that the BOG’s lack of documents entitled it to summary judgment." "The R&R recommended that the Court grant the BOG’s motion to dismiss or for summary judgment and dismiss with prejudice [plaintiff's] complaint."
Wilson v. DOL, No. 15-02141, 2015 U.S. Dist. LEXIS 167064 (D.D.C. Dec. 10, 2015) (Walton, J.)
Re: Request for agreement concerning plaintiff
Disposition: Dismissing plaintiff's complaint without prejudice
- Litigation Considerations, Exhaustion of administrative Remedies: "It does not appear that plaintiff has exhausted his available administrative remedies . . . and the Court will dismiss the claim without prejudice."
AAR Airlift Group v. U.S. Transp. Command, No. 15-373, 2015 WL 8215522 (D.D.C. Dec. 8, 2015) (Moss, J.)
Re: Reverse FOIA action in which plaintiff sought injunction against agency’s contemplated release of line-item pricing information included in contract with defendant
Disposition: Granting plaintiff's motion or summary judgment; denying defendant's cross-motion for summary judgment; remanding to defendant for further consideration
- Reverse FOIA: "[T]he Court agrees with [plaintiff] that the rationale given by USTC . . . is insufficient to sustain the agency’s decision to disclose the line-item pricing information." Based on "the administrative record of the parties' correspondence," the court finds that, "[i]n short, the record indicates that the parties have been talking past one another." "The Court cannot . . . affirm USTC’s disclosure determination based on a rationale that was not in fact considered or relied upon by the agency." Therefore, " [t]he Court concludes that remand to the agency is appropriate." "If the problem were simply that the agency 'fail[ed] to explain [its] administrative action [so] as to frustrate effective judicial review,' the Court could resolve the matter by 'obtain[ing] from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.'" "In this case, however, the problem is that USTC’s current explanation of its rationale is in tension with the contemporaneous record of its decision." "Any 'new materials' requested by the Court at this stage would more likely constitute 'new rationalizations' for the agency’s decision that the Court may not consider on the present record, as opposed to being 'merely explanatory of the original record.'"