Agility Pub. Warehousing Co. K.S.C. v. NSA, No. 14-0946, 2015 WL 4183443 (D.D.C. July 10, 2015) (Howell, J.)
Re: Request for plaintiff's communications
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 1: The court first addresses Exemption 1's general applicability and holds that "the NSA has invoked Exemption 1 properly in support of its Glomar response." The court explains that "disclosure 'could reasonably be expected to cause exceptionally grave and irreparable damage to the national security by providing . . . adversaries a road map that instruct[s] them on which communication modes or personnel remain safe or are successfully defeating NSA's capabilities.'" The court also specifically addresses plaintiff's argument that "because the NSA collects everything, disclosure would reveal nothing," and "finds the NSA's explanation regarding the classification and potential national harm," specifically, that any disclosure would "sketch the contours of the program," "to be both 'logical' and 'plausible.'"
- Exemption 3: The court holds that "[t]he NSA's invocation of Exemption 3 is likewise proper." The court relates that "[t]he NSA invokes a recognized withholding statute, Section 102A(i)(1) of the National Security Act of 1947, in support of its Glomar response." "Section 102A(i)(1) protects 'intelligence sources and methods from unauthorized disclosure.'" The court explains that "[t]he plaintiff's challenges to Exemption 3 mirror the arguments made in opposition to Exemption 1" and finds that "plaintiff's Exemption 3 argument is similarly unavailing."
- Exemption 1, Glomar: Turning to defendant's use of a Glomar response specifically, "the Court finds that the NSA has officially acknowledged the collection of certain telephony metadata from Verizon Business Network Services from April 25, 2013 through July 19, 2013, but has not otherwise officially acknowledged its possession of any other records sought by the plaintiff." The court first finds that "the NSA officially acknowledged the collection of telephony metadata information from Verizon Business Network Services, making it neither logical nor plausible for the NSA to deny this fact now." The court points to a "FISC Secondary Order [that] directed Verizon Business Network Services to provide to the NSA 'on an ongoing daily basis . . . all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'" "The Secondary Order was limited to a 90–day period between April 25, 2013 and July 19, 2013, and included the originating and terminating telephone number along with the time and duration of the call." However, the court also finds that, "[w]ith respect to other telephone service providers and other periods of time, the plaintiff has not pointed to any disclosures documenting the specific telephone service providers that participated in the program and during what periods of time." The court finds that plaintiff's "[l]ogical deductions may not substitute for official acknowledgements." Similarly, the court finds that "the plaintiff [also] has made no such showing regarding any of the other electronic communications programs—the PR/TT program, the PRISM program, and the upstream collection program."
- Sealed Documents: The court holds that, "[g]iven the plain language in the [FISC] Primary Order and the general context of the telephony metadata program, the Court will not require the NSA to seek clarification from the FISC regarding whether the Primary Order contemplates prohibiting disclosure under the FOIA." "Rather, as the Primary Order makes clear, the NSA is not permitted to access the requested materials for purposes of complying with a FOIA." The court explains that "[a]n improper withholding does not occur, and the FOIA does not apply, when documents are withheld pursuant to a court order specifically enjoining their release. In such circumstances, the agency 'simply [has] no discretion ... to exercise' and, thus, 'has made no effort to avoid disclosure.'"
- Litigation Considerations, Adequacy of Search: "[T]he Court finds that the declarations are reasonably detailed and the NSA's search was reasonably calculated to lead to responsive documents." Specifically, "the NSA identified the records systems searched, the rationale for searching those records systems, the search terms employed, and averred that all files likely to contain responsive materials were searched." In response to plaintiff's argument, the court also finds that "plaintiff's insistence on its own preferred search terms does not undermine the reasonableness of the NSA's search terms."
Ryan v. FBI, No. 14-1422, 2015 WL 4181033 (D.D.C. July 10, 2015) (Chutkan, J.)
Re: Request for plaintiff's FBI file
Disposition: Granting in part and denying in part without prejudice defendant's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: First, the court addresses plaintiff's argument "that the FBI was required to conduct a search for records held by any and all federal agencies" and finds that "[n]othing in the record suggests that the FBI has transferred any of its records to a government contractor for records management, or that any documents so transferred would not have been found in the searches described above," and also that "FOIA . . . requires only that the agency search for and produce documents in its possession, not search for records across the entire federal government." Second, the court addresses plaintiff's argument that the FBI failed to search certain records systems and that "in other cases . . . the FBI has . . . strategically stored files in unindexed drives in order to avoid disclosure obligations in criminal discovery and FOIA." In response, the court finds that "[g]iven the lack of responsive documents in the comprehensive record systems, . . . it was reasonable to conclude that searching less comprehensive records systems . . . was unnecessary" and also that "prior acts of bad faith do 'not defeat the presumption of good faith in all subsequent cases.'" Third, the court addresses plaintiff's argument that the FBI failed to search one field office and finds that "[g]iven the universal nature of the records systems that were searched, there is no reason to believe that documents created, or physically located, in field offices would not have been indexed in those records systems." However, although the court finds that "[t]he FBI has unquestionably now searched the [Central Records System] with all reasonable permutations of Plaintiff's name," the court finds that "[b]ecause the court is without evidence to conclude that a search [of the Electronic Surveillance Indices] was conducted in such a way that the name on Plaintiff's government-issued identification was included in the search, summary judgment is denied as to this search."
Cavezza v. DOJ, No. 15-182, 2015 WL 4148706 (D.D.C. July 9, 2015) (Boasberg, J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search & Relief: The court holds that "USNCB has presented detailed and unchallenged information on its search [and] the Court believes summary judgment on this point appropriate." The court relates that "USNCB searched the sources that could contain responsive records . . . [using] two separate computerized search engines." The court also finds that "[p]laintiff, in fact, does not contest the adequacy of USNCB's search." "His only argument is that if certain materials were not located, their non-existence demonstrates the illegality of his extradition." "A FOIA suit, of course, is not the vehicle to assert such a challenge."
- Exemptions 6, 7(C) & 7(D): "The Court . . . concludes that [plaintiff] has conceded [these] issue[s] . . . and Defendant's FOIA withholdings warrant summary judgment." "Although the Court does not parse in any detail the applicability of these exemptions, they appear facially valid." "More fundamentally, Plaintiff does not challenge any of these redactions or the claimed exemptions."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "USNCB has clearly segregated the two responsive records here since they are partially, not fully, redacted, and it has adequately explained its decisions on segregability via [its] declaration." "[Plaintiff], moreover, raises no complaint with USNCB's segregation decisions."
- Litigation Considerations, Relief: The court "den[ies] [plaintiff's] request" to "amend his Complaint to add a prayer for damages." "As FOIA does not permit monetary damages . . . amending [plaintiff's] Complaint as he desires would be futile."
Harper v. DOJ, No. 14-02887, 2015 WL 4078425 (W.D. Tenn. July 6, 2015) (Fowlkes, Jr., J.)
Re: Requests for copies of local district office of EEOC's compliance manuals and DOJ's policies and procedures
Disposition: Adopting Magistrate Judge's Report and Recommendation; dismissing plaintiff's complaint without prejudice
- Litigation Considerations, Pleadings: The court dismisses plaintiff's complaint without prejudice. The court agrees with the Magistrate Judge's "determin[ation] that in most respects Plaintiff's pleading failed to intelligibly provide Defendants with notice of his claims in proper form, as dictated by Fed. R. Civ. P. 8(a)." Additionally, the court finds that "[t]he law clearly provides that FOIA actions may only be maintained against agencies" and, "[t]herefore, the Magistrate Judge has correctly recommended that the case be dismissed for failure to state a claim."
Judicial Watch, Inc. v. IRS, No. 13-1759, 2015 WL 4072431 (D.D.C. July 3, 2015) (Sullivan, J.)
Re: Request for records concerning selection of individuals for audit based on information contained in 501(c)(4) tax exempt applications
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court finds that defendant conducted an adequate search. First, the court notes that "[t]he IRS asserted in its motion that its various searches fully discharged its responsibilities under FOIA because by determining that the Tax Exempt and Government Entities Division had not referred any individual for audit based upon information contained in a 501(c)(4) application, the IRS could reasonably conclude that no records exist that are responsive to [plaintiff's] request." The court agrees with defendant and finds that "[plaintiff's] indirect attack on the IRS search of all locations in which a record of a referral of an individual for audit based upon information gleaned from a 501(c)(4) application is rejected." The court explains that "[a]ny correlation between a name on a donor list and an audit cannot, without more, overcome the presumption that the IRS's detailed explanation of its audit-referral processes and its search thereof was complete and correct in determining that no responsive referrals occurred during the relevant time period." Second, "[t]he Court accepts the good faith and detailed declaration of the Director of the Exempt Organizations Unit of the Tax Exempt and Government Entities Division, who stated that any guidance or similar records would either be on the Division's 'intranet website' or would be found in applicable 'sections of the Internal Revenue Manual.'" The court finds that "[a]bsent any reason to doubt the declaration–which is accorded a presumption of good faith . . . –the Court finds that the IRS identified all record-keeping systems that might contain the guidance documents sought by Judicial Watch and searched them thoroughly."
- Procedural Requirements, Searching for Responsive Records: The court agrees with "[t]he IRS['s] argu[ment] that its findings that there are neither official directives nor guidance regarding the use of information in a Section 501(c)(4) application and that no individual audit referrals took place based upon information gleaned from a Section 501(c)(4) application make it unnecessary to search for further documents, including communications, on the subject." The court takes note of the fact that any search for this information "would require the search of approximately 16,000 employee email accounts (of individuals in 442 different cities)." The court agrees with "[t]he IRS['s] argu[ment] that this incredible burden is especially undue because of the unlikelihood that anything responsive would be uncovered." "The IRS's other searches establish–and [plaintiff's] evidence has not controverted–that no individuals were referred for audit based upon information gleaned from a Section 501(c)(4) application." "Therefore, it is speculation at best to say that there exist communications discussing decisions to audit an individual based upon 501(c)(4) applications."
Ctr. for the Study of Servs. v. HHS, No. 14-498, 2015 U.S. Dist. LEXIS 85273 (D.D.C. July 1, 2015) (Kessler, J.)
Re: Request for records concerning health plans offered pursuant to Patient Protection and Affordable Care Act
Disposition: Denying plaintiff's motion for summary judgment; denying defendant's cross-motion for summary judgment
- Litigation considerations, Mootness and Other grounds for Dismissal: The court holds that "the controversy described in Plaintiff's Complaint is not moot but ongoing." The court explains that, although defendant "has released the 2014 and 2015 plan year data that Plaintiff requested," "[t]he Government has made clear that, in future years, it plans to withhold the requested information under Exemption 4." The court finds that "a 'specific request under the FOIA . . . will not moot a claim that an agency policy or practice will impair the party's lawful access to information in the future.'" "Moreover, the time-sensitive nature of annually-updated plan benefits data renders the Government's allegedly unlawful withholding 'capable of repetition yet evading review.'"
- Exemption 4: The court holds that "[b]ecause the Government has failed to show either competitive harm or harm to program effectiveness, its Motion for Summary Judgment must be denied." The court first notes that "the only question [before the court] is whether the requested information qualifies as 'confidential' under 5 U.S.C. § 552(b)(4)." The court then relates that "the Parties agree that the . . . test, applicable to involuntary submissions of information, governs the Court's analysis in this case." Turning first to the issue of competitive harm, the court finds that "the Government has put forth no reliable evidence of actual competition between insurers participating in the FFM." Notably, the court reject's defendant's support in the form of "78 letters from insurers (or their parent companies) stating that disclosure of plan benefits information would likely cause competitive harm" because the court finds that "[t]he authors of the 78 letters HHS relies on were sent a carefully-worded letter presenting HHS' legal interpretation of Exemption 4 and asking whether each insurer's application information for a given plan year may be protected by Exemption 4." The court finds that "it is not surprising that many of the letters describing the potential for competitive harm agree with the Government's position." However, the court also finds that "one could conclude that there is actual competition from the letters' descriptions of competitive harm that would arise from pre-Open Enrollment disclosure of plan benefits data." "Thus, neither Party has submitted sufficient convincing evidence to prevail on its Motion for Summary Judgment." The court then addresses the likelihood of substantial competitive harm and first finds that "[w]hether one concludes that early release of the requested data could lead to undercutting depends on the light in which the evidence is examined." "The record presented by the Parties is so incomplete and confusing on the issue of undercutting, that it alone precludes granting either Motion for Summary Judgment on this issue." However, the court does finds that "Plaintiff is correct that the ACA 'has made it more difficult for [insurers] to compete on the basis of plan benefit design[,]'" and, therefore, "the Government['s position that] release of plan benefits data before the Open Enrollment Period would 'degrade' the 'incentive for innovation'" is not clear. However, the court finds that "the existence of genuine issues of material fact regarding the Government's other grounds for withholding precludes a grant of summary judgment to Plaintiff." In addition to the undercutting concept discussed above, the court also finds that defendant "has failed to show that the harm it claims will arise from consumer confusion would be caused by competitors' use of proprietary information as Exemption 4 requires[,]" and that defendant's argument "that early release of information 'would likely' lead insurers to initially provide the Government with false data and make last minute changes before plan finalization . . . is pure speculation."
PacifiCorp v. EPA, No. 13-02187, 2015 WL 4036192 (D. Colo. July 1, 2015) (Moore, J.)
Re: Request for records concerning WildEarth Guardians v. Jackson
Disposition: Denying plaintiff's motion for attorney fees and costs
- Attorney Fees, Eligibility: "The Court agrees that [plaintiff] substantially prevailed as its lawsuit 'was reasonably necessary and substantially caused the requested additional records to be released'" and, "[t]herefore, [plaintiff] is eligible for a fee award."
- Attorney Fees, Entitlement: The court finds that plaintiff is not entitled to attorney fees or costs. Regarding the commercial benefit to the plaintiff and the nature of the plaintiff's interest in the records sought, the court finds that "[these] factor[s] weigh against an award of attorney's fees." The court explains that "[plaintiff] was motivated by its own private, commercial interest in seeking information under the FOIA and in pursuing this litigation." Also, "[plaintiff's] argument that it derived no commercial benefit from the FOIA requests is similarly unavailing as such bare statement, without more, does not support such a conclusion." Finally, the court rejects plaintiff's argument that "EPA's rulemaking concerning the haze program for Wyoming may affect all entities thereby regulated and the public in general, [because] the evidence shows that is not what precipitated this litigation." Regarding the benefit to the public, the court finds that "there is no evidence that the information sought—and received—were disseminated to the public[,]" and, therefore, "it is unclear how such information facilitated—or could have facilitated—any 'robust public review' as [plaintiff] contends." Regarding whether defendant's withhold of the records had a reasonable basis in law, the court is split on this factor and finds that "as to the release of information under the attorney-work product exemption, this issue was unsettled in the Tenth Circuit and the EPA had a reasonable basis in law for its position." Also, "the Court did find the EPA's initial response was inadequate, but there was no finding of bad faith." "Further, some of the EPA's actions in its initial response were unreasonable (e.g., the initial failure to produce segregable factual material from documents withheld under all privileges claimed)." Overall, the court concludes that "[w]hile this weighs in favor of an award of fees, an award is nonetheless not justified in light of the Court's determination that the other factors weigh heavily against a finding of entitlement to fees."
Gawker Media, LLC v. FBI, No. 15-1202, 2015 WL 4064971 (M.D. Fla. July 1, 2015) (Bucklew, J.)
Re: Plaintiff's motion to intervene in suit regarding request for records concerning FBI investigation
Disposition: Granting intervenor's motion to intervene; denying intervenor's motion for protective order
- Litigation Considerations: "[T]he Court grants [intervenor's] motion to intervene so that [intervenor] may file and the Court may consider the motion for protective order." The court relates that "[intervenor] has filed a motion to intervene under Rule 24 of the Federal Rules of Civil Procedure in order to 'file motions to protect the confidentiality of records being produced in this action.'" The court notes that "[intervenor] asserts that his privacy interests are personal to him and cannot be adequately represented by the existing parties to this lawsuit." "The Court agrees with [intervenor] that he meets the requirements for intervention." "The subject matter of this lawsuit is a FOIA request for documents for use in the state court case in which [intervenor] is the plaintiff." "[Intervenor's] interests in this matter are personal to him and he cannot rely on the existing parties to this case to protect those interests."
- Litigation Considerations, Relief: "[The] Court declines to enter an order directing the parties to comply with the protective order that is in effect in the state court litigation." The court explains that "[the] Court is not in the business of entering orders directing parties to comply with the order of a state court judge in a state court case." "[The] Court is concerned with Plaintiffs' FOIA requests to the FBI and EOUSA and ensuring that the agencies fulfill their obligations under FOIA." "If [intervenor] desires an order requiring [plaintiffs] to comply with the state court protective order, he should bring that matter to the attention of the state court judge."
Kalu v. IRS, No. 14-998, 2015 WL 4077756 (D.D.C. July 1, 2015) (Boasberg, J.)
Re: Request for records concerning plaintiff
Disposition: Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment
- Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that, "[a]s [plaintiff] has thus failed to submit a perfected request, her claim against the IRS will be dismissed." First, the court notes that "[c]ourts thus typically evaluate FOIA-exhaustion claims under Rule 12(b)(6)[,]" not, as defendant suggests, "under Rule 12(b)(1)." The court then analyzes the substance of this issue and finds that defendant's "regulations provide, in pertinent part, that '[i]n the case of a request for records the disclosure of which is limited by statute or regulations,' the request must 'establish the identity and the right of the person making the request to the disclosure of the records in accordance with paragraph (c)(5)(iii) of this section.' 26 C.F.R. § 601.702(c)(4)(i)(E)." "That paragraph provides, in turn, that '[i]n the case of an attorney-in-fact, or other person requesting records on behalf of or pertaining to other persons, the requester shall furnish a properly executed power of attorney, Privacy Act consent, or tax information authorization, as appropriate.' Id., § 601.702(c)(5)(iii)(C)." The court finds that at least one of the two required "form[s] was incomplete and thus inadequate."
- Exemption 3, Glomar: The court finds that TSA's Glomar response was proper. The court relates that "TSA invoked Exemption 3 as the basis for its response" relying on 49 U.S.C. § 114(r)(1) and "agency issued regulations that prohibit the disclosure of 'Sensitive Security Information' . . . includ[ing] '[s]ecurity screening information,' such as '[i]nformation and sources of information used by a passenger or property screening program or system, including an automated screening system.'" The court notes that "[plaintiff] does not challenge the government's assertion of Glomar on the basis of Exemption 3 and 49 U.S.C. § 114(r)(1)." "She argues, instead, that a Glomar response does not excuse the agency from 'its statutory duty to perform a search for all responsive records' and to 'review each record individually[ ] to determine if its 'Glomar' response is in fact appropriate as to each responsive record.'" The court finds that "[plaintiff's] argument misunderstands Glomar, which 'narrows the FOIA issue' to whether an agency must disclose 'the existence of records vel non.'" "If the mere fact that records do or do not exist is protected by a FOIA exemption, that ends the inquiry." "No actual search or record review is required."
Regarding the FBI's similar use of Exemption 3, the court finds that, "[a]lthough [plaitniff's] arguments would appear to lack merit for the reasons discussed in upholding TSA's Glomar response, the Court cannot definitively conclude this without knowing whether the Bureau is still asserting Glomar and, if it is, the basis for that response." The court explains that "[defendant] does not address its Glomar response in its briefs here."
- Procedural Requirements, Searching for Responsive Records: Regarding the TSA, "[t]he Court . . . cannot conclude that the agency's decision to restrict [plaintiff's] request to documents pertaining to credential problems, flight issues, and TSA employee issues was reasonable." The court notes that "[i]t is easy to see that aspects of [plaintiff's] request may have been too broad – in addition to seeking records that 'list' her name, she sought all records that 'otherwise describe[e] or discuss[ ]' her." However, the court finds that defendant "failed to adequately explain why the limiting principles it applied to Plaintiff's request were reasonable under the circumstances." "[T]he Court cannot discern the connection between the vast number of offices and TSA's decision to restrict its search based on subject matter – that is, to records pertaining to credential problems, flight issues, and TSA employee issues."
- Litigation Considerations, Adequacy of Search: "[E]ven assuming that the [TSA] was allowed to narrow the request as it did, TSA would still have failed to establish the adequacy of its search." The court explains that defendant "did not aver that the agency searched all of the FOIA offices likely to contain relevant documents."
DeBrew v. Atwood, No. 12-5361, 2015 WL 3949421 (D.C. Cir. June 30, 2015) (Ginsburg, S.C.J.)
Re: Request for records concerning BOP's list of prohibited acts, plaintiff's telephone records, and the DNA Analysis Backlog Elimination Act of 2000
Disposition: Affirming in part and vacating in part district court's grant of defendant's motion for summary judgment; remanding case to district court
- Litigation Considerations, Adequacy of Search: The Court of Appeals for the D.C. Circuit holds that "[b]ecause [it] cannot determine whether the BoP conducted an adequate search based upon the declarations in the record, [the court] vacate[s] the judgment of the district court on this claim and remand[s] the case to the district court for further proceedings." The court explains that "BoP's third supplemental declaration is not sufficiently detailed to support a summary judgment because it does not disclose the search terms used by the BoP and the type of search performed."
- Procedural Requirements, Searching for Responsive Records: The court "agree[s] with the district court that the BoP did not violate the disclosure requirements of the FOIA by failing to produce recordings of [plaintiff's] telephone conversations because the agency is not obligated, nor is it able, to disclose a record it does not have." The court explains that, "[a]lthough the BoP monitors inmates' telephone calls, . . . [the court] do[es] not think it is 'suspect' that the agency says it did not retain recordings of [plaintiff's] conversations." "[Plaintiff] has not pointed to any evidence showing the BoP has a policy or practice of retaining indefinitely the recordings of an inmate's telephone calls if the recordings are not being used in an investigation or prosecution."
- Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that "[b]ecause [plaintiff] did not exhaust the administrative remedies available to him before filing suit, [the court] affirm[s] the judgment of the district court with respect to his claim that the BoP did not conduct an adequate search in response to his request for records about the 'DNA Act.'" The court agrees with the district court that "[plaintiff's] failure to exhaust his administrative remedies precludes the courts from reviewing whether the BoP conducted an adequate search."