De Masi v. Lawshy, No. 13-923, 2014 WL 3893852 (S.D.N.Y. Aug. 6, 2014) (Briccetti, J.)
Re: Request for communication between Consumer Financial Protection Bureau and "'Bank of America, Country Wide Home Loans or anyone else'"
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Pleadings: The court holds that "plaintiff's FOIA claim fails because he failed to name the CFPB as a defendant." However, the court also finds that "plaintiff's FOIA claim fails on the merits," noting that "[t]he Court has carefully reviewed the declaration of the CFPB's FOIA Manager and finds the CFPB performed a reasonable search and its redactions were proper under Exemption 6."
Cmty. Ass'n for Restoration of the Env't v. EPA, No. 13-3067, 2014 WL 3870168 (E.D. Wash. Aug. 6, 2014) (Rice, J.)
Re: Requests for records concerning certain dairies in Lower Yakima Valley, Washington, and nitrate contamination in residential drinking water near dairies
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court holds that "all records requested have either been produced or withheld pursuant to a FOIA exemption." The court finds that "[plaintiff] cannot, under the FOIA, challenge the individual timeliness of production or the Agency's compliance with statutory or regulatory guidelines with respect to documents that have been produced." "[Plaintiff] can challenge the EPA's withholdings under the exemptions as well as claim that there is an impermissible pattern or practice in responding to FOIA requests." However, the court finds that "production of requested nonexempt material moots FOIA claims." The court reminds plaintiff that "the D.C. Circuit explicitly held that the agency's penalty for not making a timely determination is that it 'cannot rely on the administrative exhaustion requirement to keep cases from getting into court.'"
Regarding plaintiff's pattern and practice claim, although the court finds that "[plaintiff's] interest in the timely production of the documents is sufficient to meet the 'injury-in-fact' requirement for standing," the court holds that "the undisputed facts show only one violation of the timeliness in responding to CARE's FOIA requests-and demonstrates a delay of only a few days." The court holds that "[c]ommon sense dictates that a single violation cannot constitute a 'pattern' or a 'practice'" and, "[a]ccordingly, the Court finds that CARE's pattern and practice claim must fail."
- Attorney Fees, Eligibility: The court "finds that [plaintiff] has not sustained its burden of showing that the filing of the lawsuit had a 'substantial causative effect' on the EPA's decision to release the records." The court agrees with defendant's "conten[tion] that circumstances changed when, a month after the lawsuit was filed, [one] Dairy sold its cows and ceased operating as a dairy; as such, its production of the documents was in response to those 'changed circumstances' rather than [plaintiff's] lawsuit."
Bartko v. DOJ, No. 13-1135, 2014 WL 3834343 (D.D.C. Aug. 5, 2014) (Boasberg, J.)
Re: Request for records concerning AUSA who secured plaintiff's conviction, as well as records concerning plaintiff
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(C), The "Glomar" Response: Regarding OPR's action on plaintiff's request, the court holds that "[t]he Government's disclosures thus definitively establish that the wheels of an investigation into [the AUSA's] conduct with respect to [plaintiff's] case had at least begun to turn." "[Plaintiff], therefore, has carried his burden of showing that the Government has acknowledged an investigation into [the AUSA's] conduct, and the Government may not submit a Glomar response predicated on [the AUSA's] interest in keeping such an investigation quiet." The court notes that "[a]s the potential subject of an investigation, then, [the AUSA] would ordinarily have a privacy interest in protecting information about that investigation." However, the court finds that "although it was . . . a U.S. attorney—rather than OPR, the defendant in this case—who confirmed that [the AUSA] was under investigation, the prosecutor's decision to acknowledge the investigation is 'enough to trigger the public domain exception,' as both [the U.S. attorney] and OPR work for DOJ." Moreover, the court finds that "[w]hile the Court may not infer official disclosure merely from 'widespread public discussion' of a matter, . . . a statement to the media made by a person authorized to speak for the agency certainly suffices." However, the court also holds that "the Glomar response with respect to other investigations is proper, and the Department need not acknowledge anything further."
- Exemption 7(C):Regarding the FBI's action on plaintiff's request, the court holds that "[t]o uphold the FBI's categorical denial—indeed, its refusal to conduct a search at all—then, the Court must find that [plaintiff's] co-conspirators' privacy interests in the documents 'characteristically' outweigh the public's interest in those documents." The court holds that "[t]he nature of the information that would arise from such a search, however, does not admit of such categorical conclusions."
- Exemption 3: The court holds that the information at issue is "information [the government] properly seeks to withhold." The court explains that "[t]he contested statute here, Federal Rule of Criminal Procedure 6(e) . . . bars the disclosure of matters occurring before a grand jury." The court explains that "the withheld documents 'contain 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 federal grand jury subpoenas.'"
- Exemption 7(A): The court finds that defendant's "[d]eclaration provides no specifics about, for example, the investigation—or even the type of investigation—that could be compromised or how the release of the information requested would interfere with any particular ongoing investigation." Therefore, the court holds that "[u]ntil the FBI provides something approaching this level of specificity—and perhaps certain sensitive information may be provided in camera—the Court will not be in a position to consider its argument for summary judgment on Exemption 7(A)."
- Exemption 7(D): The court holds that it "cannot sanction the withholdings under Exemption 7(D) as the record now stands." The court notes that "[defendant's] Declaration acknowledges that there was no express assurance here; instead, it relies on implied confidentiality." The court holds that it "agrees with [plaintiff] that the details in this description are so sparse that Plaintiff does not have sufficient information to challenge whether the circumstances support an inference of confidentiality." The court finds that "[a]t a minimum, the agency must provide some description of the nature of the crime at issue, the source's specific relation to the crime, and the other Roth factors."
- Exemption 7(E):The court "order[s] the FBI to submit a further affidavit if it hopes to prevail on Exemption 7(E)." The court finds that "[c]onspicuously absent from [defendant's] dive into modern investigative technology, however, is any mention of how disclosure of the bare data contained in [Computer Analysis and Response Team] reports might reveal any technique, procedure, or technological method the FBI uses." The court also finds that "[t]he descriptions of the other categories of information withheld under Exemption 7(E) are similarly deficient."
- Procedural Requirements, "Agency Records": The court disagrees with defendant's argument that "certain records it identified as responsive to [plaintiff's] FOIA request need not be disclosed because they reside on two CDs and a thumb drive," and as “physical items that were presented to prosecutors as evidence” were not “agency records.” The court "order[s] that the FBI either produce the records contained on the CDs and flash drive in question or justify their withholding with reference to one or more FOIA exemptions."
Howard v. U.S. R.R. Ret. Bd., No. 13-00651, 2014 WL 3845939 (S.D. Ohio Aug. 5, 2014) (Spiegel, S. D. J.)
Re: Request for "'information required to receive railroad widow's annuity'" from defendant
Disposition: Denying plaintiff's "'Motion to Vacate Opinion and Order for Judgment and Dismissal For Fraud'"
- Procedural Requirements, Proper FOIA Requests: The court holds that "[h]aving reviewed the matter, the Court does not find Plaintiff's motion well taken." The court finds that "'FOIA does not require agencies to provide explanations or answers in response to questions disguised as FOIA requests or to create documents or opinions in response to an individual's request for information.'" The court notes that "[p]laintiff is mistaken in her assertion that '[t]oday we are adjudicating whether or not [plaintiff's husband] should have received a supplemental annuity of $43 based on statutory law and whether or not the USRRB denied him that benefit, and whether the USRRB practiced 'due diligence' in responding to the original request.'" The court explains that "[d]efendants did not violate the Freedom of Information Act because they never received a proper request for information under it."
Natural Res. Def. Council, Inc. v. DOI, No. 13-942, 2014 WL 3871159 (S.D.N.Y. Aug. 5, 2014) (Engelmayer J.)
Re: Request for records concerning coal mining leases previously awarded by DOI and BLM to private mining companies in Powder River Basin, in southeast Montana and northeast Wyoming
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 4: The court holds that defendant "has not met its burden of showing that the information it has withheld under Exemption 4 is confidential." First, the court rejects plaintiff's argument that "Exemption 4 does not apply because 'the Government's Regulations and the Mineral Leasing Act specifically provide that the withheld information can be released.'" The court finds that "the Mineral Leasing Act and its implementing regulations do not require the Government to release exploration data," but instead "merely permit the Government to disclose the information when it deems appropriate." Additionally, the court finds that "even if the Mineral Leasing Act and the cited regulations compelled, as opposed to permitted, the disclosure of exploration data, such data is not implicated here." Second, the court rejects plaintiff's argument "that the information the Government has withheld under Exemption 4 is the Government's own analysis, not data from an outside 'person,' and is therefore outside of Exemption 4." While the court notes that plaintiff's "argument is an understandable reaction to the sparse Vaughn Indices submitted by the Government," the court finds that defendant "clarifie[d] the basis for [its] invocation of Exemption 4" by "explain[ing] that 'BLM withheld under Exemption 4 only information it has received from mining companies in response to BLM's requests for information in connection with [lease by application requests].'" Third, the court finds that "[w]ith only conclusory claims before it, the Court is unpersuaded by the assertion that Powder River Basin mining companies would be put at a significant competitive disadvantage against other mining companies, with whom they are in limited if any competition for the sites at issue, by the disclosure of dated operational cost information." The court notes that it is "constrained to conclude that the Government, as to its claim that disclosure could enable competitors to underbid one another in selling coal or customers to drive a hard bargain in buying it, has not met its burden to provide 'adequate documentation of the specific, credible, and likely reasons why disclosure of the document would actually cause substantial competitive injury.'" Last, the court rejects defendant's argument that "if forced to disclose the information that the mining companies voluntarily provide in order to assist the Government in estimating fair market value, the companies would cease to divulge that information in the future," and instead agrees with plaintiff's contention that "regardless of whether their bidding materials are disclosed, the mining companies have a strong incentive to provide the BLM with information about their mines, so as to enable them to lease coal tracts."
- Exemption 5, Other Privileges: The court "grants the Government's motion for summary judgment under Exemption 5, to the extent that the Government seeks to withhold (1) its model, and (2) its fair market value estimates." The court notes that "the Government invokes Exemption 5's confidential commercial information privilege." The court "holds that the confidential commercial information privilege under Exemption 5 does not, as a matter of law, automatically and always terminate once a contract is awarded." "Instead, the Court holds that, in rare cases, the Government's legitimate commercial interests may require the protection of information even after a contract has been awarded." The court explains that "[u]nder [the] circumstances [at issue here], disclosure of historical bidding information with respect to tracts in the Powder River Basin would effectively enable a coal company to derive, or come unacceptably close to deriving, the number it must beat in order to lease the next tract for mining." "This, in turn, would deprive the government of the opportunity to obtain meaningfully more than its confidential floor price." "It would injure the Government's—and thereby the public's—valid interest in maximizing the price obtained for leasing its choice land." "FOIA does not require BLM to release its pricing model or its fair market value estimates derived from the same model where doing so would enable the coal company neighboring the next tract up for lease to peg its bid strategically to the government's floor bid." "FOIA does not require that the Government be thus deprived of its ability to secure a good deal for the taxpayer."
However, the court also holds that "[t]o the extent the Government seeks to withhold under Exemption 5 materials divulging its qualitative reasoning process but which do not also divulge its model or its fair market value estimates, the Court cannot, at this point, grant summary judgment to either side."
- Exemption 9: The court finds that it "is constrained not to read Exemption 9 so broadly as to encompass the coal drill holes for which the Government has invoked it here." The court explains that "[s]imply put, there is no basis on which to conclude that the word 'wells' can also refer to drilling holes used to extract coal."
Ajamu v. Willis, No. 14-10258, 2014 WL 3703839 (11th Cir. July 28, 2014) (per curiam)
Re: Request for third party's address
Disposition: Affirming district court's grant of defendant's motion to dismiss
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The Court of Appeals for the Eleventh Circuit holds that "[t]he district court correctly dismissed [plaintiff's] amended complaint." "[Plaintiff] alleged that the [United States Postal] Service violated the [Freedom of Information] Act by withholding an individual's address, but [plaintiff] attached to his original complaint a response in which the Service provided the individual's last known address." "[Plaintiff's] claim about a violation of the Act became moot when the Service produced the address."
Taitz v. Colvin, No. 13-1878, 2014 WL 3739542 (D.Md. July 25, 2014) (Hollander, J.)
Re: Request for Social Security application filed by third party
Disposition: Denying plaintiff's motion to reopen case, and for court to recuse and to transfer case to another judge on ground of actual conflict of interest
- Litigation Considerations: The court holds that "plaintiff has not established grounds to reopen this case under Rule 60 based on 28 U.S.C. § 455(b)(5)(iii)." The court disagrees with "plaintiff['s] assert[ion] that [Judge Hollander] had a duty to disclose that [she] was appointed by President Obama and to recuse [herself] because [her] appointment by President Obama created an actual conflict of interest in regard to the case." Judge Hollander states that "[p]laintiff can rest assured that if any reasonable grounds existed for me to recuse myself from this case, I would have done so, if for no other reason than to avoid spending precious time on such frivolous filings."
Judicial Watch, Inc. v. DHS, No. 12-2014, 2014 WL 3796890 (D.D.C. July, 24, 2014) (Rothstein, J.)
Re: Request for records concerning September 11th hijacker, Mohamed Atta
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that defendant's declaration "is sufficient on its own to establish that the search was adequate, as it is reasonably detailed, states the search terms and type of search performed, and avers that all potentially responsive files were located and searched." The court also rejects plaintiff's argument that "the failure of DHS to identify and produce certain documents pertaining to Atta that had previously been made public by the 9–11 Commission" renders defendant's search inadequate. The court finds that "the record does not demonstrate that the documents were in the custody and control of USCIS at the time of the FOIA request" and "even if USCIS had the documents in its possession, its failure to produce them as part of Judicial Watch's FOIA request does not alone render the search inadequate."
- Exemption 7(A): The court holds that "[i]n light of the deference owed to the agency, . . . the Court concludes that DHS properly withheld the documents." The court finds that defendant's declaration "demonstrates that the information in question is part of an ongoing investigation into the September 11, 2001 terrorist attacks, which may lead to future law enforcement proceedings, and that the FBI determined that disclosure of any of the records in question in the midst of the ongoing investigation is reasonably expected to interfere with enforcement proceedings." The court also finds that "the fact that Atta is dead, as Judicial Watch repeatedly points out, does not render the exemption irrelevant, because the investigation into the 9–11 attacks is still ongoing."
- Litigation Considerations, Vaughn Index / Declaration: The court holds that "[t]he Vaughn Index is sufficient." The court explains that "[t]his Circuit has held that '[b]ecause generic determinations are permitted, the government need not justify its withholdings document-by-document; it may instead do so category-of-document by category-of-document.'" "[B]ecause courts owe 'substantial weight to ... agency explanations in the national security context,' . . . , and DHS claims that 'providing a detailed description of the material within these specific DHS records concerning Mohamed Atta would undermine the very interests that the FBI seeks to protect under Exemption 7(A),' . . . , DHS's grouping of the withheld documents into four general categories satisfies the requirement under 5 U.S.C. § 552(b)(7)(A)."
Landers v. DOJ, No. 12-4045, 2014 WL 3735376 (N.D. Ala. July 24, 2014) (Smith, Jr. J.)
Re: Request for records concerning plaintiff
Disposition: Holding that in camera review of disputed documents is necessary before rendering final decision on motions for summary judgment
- Litigation Considerations, In Camera Inspection: The court holds that "[u]pon review of all the information currently in the record, the court is inclined to conclude that defendant has satisfied its burden of proving it properly withheld and/or redacted portions of the requested information pursuant to the cited exemptions." "Even so, out of an abundance of caution, and, in keeping with the 'strong public policy in favor of public access to information in the possession of federal agencies,' the court will conduct an in camera review of the contested documents to determine whether they fall under any of the applicable exemptions" (quotation marks omitted). The court relates that "[d]efendant relies upon FOIA exemptions 6, 7(C), 7(D), and 7(E) to support its withholding and redaction of certain pages requested by plaintiff," and that "[a]s evidentiary support for the application of those exemptions, defendant . . . spends thirty-six paragraphs, spread over approximately seventeen pages, explaining the reasons for withholding documents pursuant to each exemption." "Defendant also provides copies of all the documents it did produce to plaintiff, and a Vaughn Index detailing, for each category of information requested by plaintiff: the total number of pages; the date of creation; any applicable exemption and an explanation of its application; the FBI's decision on the request; and the corresponding paragraphs of [defendant's] affidavit."
Morley v. DOJ, No. 03-2545, 2014 WL 3640769 (D.D.C. July 23, 2014) (Leon, J.)
Re: Request for records concerning assassination of President John F. Kennedy
Disposition: Denying plaintiff's motion for attorney's fees and costs
- Attorney Fees: The court holds that "plaintiff's Renewed Motion for Attorney's Fees and Costs is [denied]." The court explains that "[t]he Circuit [court] vacated and remanded with instructions to 'apply the four-factor standard in a manner consistent with Davy [v. CIA, 550 F.3d 1155 (D.C.Cir.2008)].'" The court finds that "[t]he public benefit factor requires more than speculation of an unknown potential future benefit" and that "[p]laintiff has not provided the Court with anything beyond conjecture in arguing [the] relevance and importance [of the documents at issue]." The court first notes that "[t]he CIA agrees that the released records identical to the ones transferred to NARA are 'unquestionably [Kennedy] assassination-related' and 'ordinarily would give rise to public benefit.'" However, the court finds that "these documents already were in the public domain and available for consumption at the National Archives." The court then notes that "[t]he CIA does not dispute that  four records convey newly-released information not already in the public domain," but the court holds that "nothing other than pure speculation connects any of it to the Kennedy assassination." Finally, the court finds that "[o]ur Circuit Court directed [it] to reevaluate the four factor standard in light of Davy 's elaboration on the public benefit factor" and that "[its] analysis of the other factors remains the same."