Hall & Assocs. v. EPA, No. 14-808, 2014 U.S. Dist. LEXIS 178571 (D.D.C. Dec. 31, 2014) (Bates, J.)
Re: Request for records concerning effect of plaintiff's client's lawsuit against EPA
Disposition: Granting defendant's motion to dismiss
- Litigation Considerations, Exhaustion of Administrative Remedies: Regarding the withholdings at issue, the court holds that plaintiff failed to exhaust its administrative remedies. The court first notes that "[c]ourts . . . treat exhaustion as 'a condition precedent to the bringing of a FOIA action,' which means that a plaintiff's failure to exhaust a FOIA claim is 'properly the subject of a motion [to dismiss] brought under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.'" The court then finds that "[plaintiff], in short, failed to raise any specific complaint regarding EPA's withholding behavior, it did not put the Agency on notice of its looming withholding claim, and it therefore deprived EPA--and this Court--of the benefits of exhaustion." The court finds that plaintiff's "background sentence[s] use[d] the words 'withhold' and 'inappropriate,' but these two words could not put EPA on notice that [plaintiff] took issue with the Agency's use of FOIA exemptions to withhold documents." The court finds that "[plaintiff] was obligated to do more than just generally appeal EPA's final response letter." "The firm, instead, was required to clearly and specifically appeal each adverse determination within the response letter that it disagreed with and sought review of--including EPA's determination 'to withhold . . . requested record[s].'"
Regarding the remainder of plaintiff's claims concerning defendant's search and the fees charged for plaintiff's request, the court holds that "[t]o the extent these claims reiterate the arguments from [plaintiff's earlier] appeal letter . . . [plaintiff] has administratively exhausted these claims."
- Litigation Considerations, Adequacy of Search: The court holds that plaintiff's "claim fails because general complaints about the results of a search do not amount to a cognizable FOIA claim." Instead, the court holds that "FOIA recognizes challenges to the adequacy of an agency's search (the methods used in the search, the places searched, etc.), although [plaintiff], of course, did not raise such a claim, focusing instead on the . . . results obtained from EPA's search."
- Fees and Fee Waivers, Fees: The court finds plaintiff's claim relating to fees inadequate. The court holds that "[plaintiff] has not offered any alternative factual allegation to support its excessive-fee claim." Specifically, the court relates that "[plaintiff's] complaint does not challenge any aspect of EPA's invoice--not the number of hours the Agency spent on its search, not the billing rate the Agency used to calculate its fee, etc." "Without more, the Court is left with [plaintiff's] bare assertion that EPA's fee is somehow excessive or inappropriate." "This is not enough to avoid dismissal."
Bosworth v. U.S., No. 14-0283, 2014 WL 7466985 (C.D. Cal. Dec. 30, 2014) (Gee, J.)
Re:Request for recordings of conversations involving plaintiff
Disposition: Dismissing with leave to amend plaintiff's claim; concurring with and accepting findings and conclusions of Magistrate Judge
- Litigation Considerations, Pleadings: The court concurs with and accepts the Magistrate Judge's findings. The Magistrate Judge finds that "[p]laintiff's FOIA/PA claim is confusingly intertwined with his tort and constitutional claims and does not appear to name a proper defendant." "OIP, FBI, and DEA are departmental components of the DOJ; accordingly, none is an 'agency' that can be sued under FOIA."
Am. Immigration Lawyers Ass'n v. EOIR, No. 13-840, 2014 U.S. Dist. LEXIS 176975 (D.D.C. Dec. 24, 2014) (Cooper, J.)
Re: Request for records concerning complaints against judges and final written resolutions of those complaints
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 6: The court "grant[s] EOIR's summary judgment motion as it relates to the redaction of the judges' personal identifying information." "[W]hile the Court recognizes that [plaintiff] has raised important public policy concerns regarding the operation of the nation's immigration courts, [plaintiff] can pursue these objectives through the records EOIR has already released." "Further disclosure of the names, genders, and locations of the IJ mentioned in the complaints would encroach upon the IJs' privacy interests without appreciably illuminating the agency's performance of its duties."
- Procedural Requirements, Proper FOIA Requests: Despite defendant's claim to the contrary, the court holds that "[i]nformation that 'concerned other complaints against the immigration judge or other immigration judges' plainly falls within the scope of [plaintiff's] request for '[a]ll complaints filed against immigration judges' and '[a]ll records that reflect the resolution of complaints filed against immigration judges.'" "As a result, the Court concludes that this information is responsive to [plaintiff's] request and EOIR must release any material withheld from the complaint records on that basis."
- Proactive Disclosures: "The Court agrees with EOIR" and finds "that FOIA does not require publication of the complaint resolutions because they merely deal with internal employee disciplinary matters and are not adversarial adjudications with precedential effect or the force of law." Therefore, "the Court concludes that IJ complaint resolutions do not constitute final opinions or orders under Section 552(a)(2)(A) and, consequently, EOIR need not proactively disclose them."
Platsky v. FDA, No. 13-06250, 2014 WL 7391611 (E.D.N.Y. Dec. 24, 2014) (Townes, J.)
Re: Request for records concerning investigation of plaintiff's concerns with medical procedure he underwent during clinical study
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "FDA has . . . satisfied its burden of showing it conducted an adequate search for responsive records." The court finds that "FDA's declarations set forth in reasonable detail the scope of the search, and the search terms and methods the FDA employed shows the agency's search was reasonably calculated to discover documents responsive to [plaintiff's] FOIA request." Additionally, the court finds that defendant's "declarations aver that all places likely to contain responsive records have been searched." Finally, the court finds that "[plaintiff] has not submitted evidence sufficient to rebut the presumption of good faith accorded to the FDA's declarations, and nothing about these declarations or the FDA's response hints that the FDA's response was incomplete or for any reason unsatisfactory."
Brown v. Perez, No. 13-01722, 2014 WL 7336788 (D. Colo. Dec. 23, 2014) (Moore, J.)
Re: Request for records concerning referee physician selection process
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 4: "The Court finds that the information [requested] is confidential, and that Exemption 4 applies." First, the court finds "that the information sought in this context is clearly commercial in nature." The court agrees with Defendants that, "though [the Office of Workers Compensation Programs] accesses the data [at issue] using its own software, the data that Plaintiffs seek actually comes from a private business entity, thus meeting the Exemption 4 requirement that the information be 'obtained from a person.'" Second, the court relates that "[t]he data at issue is part of a database provided by [a third party] under a commercial license agreement with the government." "[T]he Court finds it less than clear whether National Parks should apply versus Critical Mass." "No matter which test is applied, however, the Court finds that Defendants prevail." "Under Critical Mass, the Court concludes that the information sought by Plaintiffs, specifically, the names and identifiers for physicians in various contexts, would not customarily be released to the public by a private company." "Under National Parks, the Court concludes that disclosure would impair the government's ability to obtain necessary information in the future" because "companies in the business of licensing commercial data to the government would be less likely to do so if their confidential data could be accessed by anyone simply by making a FOIA request."
- Waiver: The court holds that "[t]he public nature of the names, addresses and phone numbers of physicians does not mean that the information is not confidential when it is given in the context of documents that reveal a physician's activities, referrals, clients, etc."
Exemption 6: "[T]he Court will not require disclosure of the redacted identifiers." "In the Court's view, the bottom line with regard to Exemption 6 is that the physicians and private individuals appearing in case files have a clear privacy interest in their personal and business information." "This privacy interest is not outweighed by any public interest that has been articulated by Plaintiffs."
Procedural Requirements, "Agency Records": "The Court agrees with Defendants that FOIA 'does not oblige agencies to create or retain records; it only obliges them to provide access to those which it in fact has created or retained.'" Therefore, the court holds that "[d]efendants will not be required to create and then produce printouts of computer screenshots as requested by Plaintiffs." At issue was plaintiff's request for "printouts of screenshots showing pull down menus, which [plaintiffs] say are 'needed to show the functions that the referee physician software system the PDS can perform.'"
Stott v. IRS, No. 14-176, 2014 WL 7338789 (W.D. Wis. Dec. 22, 2014) (Crabb, J.)
Re: Request for records concerning administrative forfeiture action against certain currency and precious metals seized from plaintiff's residence
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's request for discovery
- Litigation Considerations, Adequacy of Search: The court finds that defendant "describe[s] in detail the search [it] conducted for documents responsive to plaintiff's request." Additionally, the court finds that, "[a]lthough plaintiff seems to take issue with the fact that defendant did not produce these and most of the other documents until after he filed suit in this court, 'continuing discovery and release of documents does not prove that the original search was inadequate, but rather shows good faith on the part of the agency that it continues to search for responsive documents.'" Also, the court finds that, "[a]lthough it is clear that plaintiff believes that defendant's search 'should have' yielded additional unspecified documents, he relies on nothing more than mere speculation."
- Litigation Considerations, In Camera Inspection: The court "conclude[s] that an in camera review of the documents in question is not warranted." The court finds that defendant "has described the withheld and redacted documents with reasonably specific detail" and "the withheld information fits logically within the claimed exemptions." Additionally, the court finds that "there is no evidence of bad faith in this case."
- Exemption 5, Deliberative Process Privilege: The court finds that a "statement made by [defendant] about a possible alternative course of action against plaintiff would be deliberative, and the fact that [defendant] made the statement during an active criminal investigation makes it predecisional." Additionally, the court finds that "[b]ecause [one] email was sent before the initiation of the asset forfeiture action against plaintiff, it is predecisional" and "[a] question concerning next steps would be exempt because it is considered deliberative in nature."
- Exemption 7(C): The court holds that defendant correctly "redacted a third party's name . . . because that party had no involvement in the seizure of plaintiff's assets."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court relates that "[d]efendant has withheld two copies of a one-page memorandum . . . requesting legal advice on the proposed direction of the case and two copies of the responding legal memorandum." The court notes that "[d]efendant contends that these documents are subject to the attorney-client privilege and work product doctrines that fall within exemption 5" and also Exemption 3 in conjunction with Federal Rules of Criminal Procedure 6(e). The court finds that defendant "makes clear in [its] affidavit that [it] is familiar with the statutory requirement that any nonexempt information be disclosed and that [it] released to plaintiff 'every reasonably segregable non-exempt portion of every responsive document.'"
DaSilva v. USCIS, No. 14-30296, 2014 WL 7210953 (5th Cir. Dec. 19, 2014) (Wiener, J.)
Re: Appeal by plaintiff concerning amount of attorney fees awarded by district court
Disposition: Affirming district court's award of $4,170 in attorney fees to plaintiff, which was "a substantial reduction" from [plaintiff's] requested fee of $45,282.50
- Attorney Fees: The Court of Appeals for the Fifth Circuit notes that "[i]n two comprehensive opinions, the district court ruled that [plaintiff] was eligible for and entitled to fees under FOIA, but it questioned the amount requested and awarded only $4,170, less than ten percent of the initial application for $45,282.50." The Fifth Circuit holds that "[t]he district court did not abuse its discretion in . . . awarding $4,170 in attorneys fees under FOIA." The court first "find[s] no error in the district court's rulings, as fees may be awarded only for hours reasonably expended." The court explains that it "agree[s] with the district court that USCIS's processing of the first set of documents did not reflect 'the sort of dilatory litigation tactics that [the attorneys fees] provision was aimed to prevent.'" The court then finds that, "[a]lthough it was within that court's discretion to award a high hourly rate, the district court in this case did not clearly err in staying within the middle of the range" and awarding plaintiff "$200 per hour." Third, the court finds that "in light of the serious concerns that the district court repeatedly expressed about Counsel's timesheets, an additional fifteen percent reduction for lack of billing judgment was not an abuse of discretion." Last, the court finds that "[o]n the issue of fees for reviewing FOIA productions, there is no precedent in this court." "In light of this, and considering our deferential standard of review, the district court's decision to deny fees [for this review] is not an abuse of discretion."
Nat'l Ass'n of Criminal Def. Lawyers v. EOUSA, No. 14-269, 2014 WL 7205392 (D.D.C. Dec. 18, 2014) (Kollar-Kotelly, J.)
Re: Request for DOJ's Federal Criminal Discovery Manual, or "Blue Book"
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 5, Attorney Work-Product Privilege: "Based on the Court's in camera review, the Court finds, for the reasons given below, that the Blue Book constitutes attorney-work product and is exempt in its entirety under FOIA Exemption 5." Because there was disagreement on the contents of the manual, the court first explains that "[t]he Blue Book is a 'litigation manual' available only to DOJ personnel that 'advise[s] federal prosecutors on the legal sources of their discovery obligations as well as the types of discovery related claims and issues that they would confront in criminal investigations and prosecutions.'" Next, "[t]he Court finds the function of the Blue Book analogous to other agency manuals and memoranda which courts in this Circuit have found to be 'prepared in anticipation of litigation.'" The court explains that "the Blue Book provides background information and instructions on discovery practices and advice, strategy, and defenses for litigation related to the government's discovery obligations to attorneys who will be required to litigate on the government's behalf." "Although the Blue Book does contain general background information and agency policies regarding the government's discovery obligations, the Court finds that it contains sufficient advice and litigation strategy for use in actual litigation to qualify as attorney work-product." "Finally, the Court rejects Plaintiff's argument that the Blue Book must be disclosed pursuant to 5 U.S.C. § 552(a)(2) because it constitutes the DOJ's 'working law' or 'secret law' with respect to the government's discovery obligations." The court explains that "simply because the DOJ decided to police discovery obligations internally instead of through passage of federal legislation does not transfer the agency's internal policing manual into agency working law" and, "even if the Blue Book constitutes or contains the DOJ's working law, which, pursuant to § 552(a)(2), must proactively be disclosed, FOIA 'expressly states . . . that the disclosure obligation 'does not apply' to those documents described in the nine enumerated exempted categories listed in § 552(b),' which includes Exemption 5." "As the Court finds the Blue Book is exempt from disclosure pursuant to FOIA Exemption 5, the Court need not reach the DOJ's alternative basis for withholding the Blue Book – Exemption 7(E)."
Procedural Considerations, "Reasonably Segregable" Obligation: The court finds that because "the Blue Book is fully protected, Defendants are not required to evaluate whether all reasonably segregable portions of the requested document have been released."
Agurs v. DOJ, No. 14-0188, 2014 WL 7183594 (D.D.C. 17, 2014) (Contreras, J.)
Re: Request for documents concerning electronic surveillance of five telephone numbers
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Summary Judgment: "[T]he Court will grant summary judgment in defendants' favor." The court first notes that, "[t]o date, plaintiff has neither filed an opposition to the motion nor requested an extension of time." However, "[a]lthough the Court may treat defendants' unopposed motion as conceded, . . . summary judgment is warranted only if 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" The court finds that "[t]he Criminal Division's declarant adequately has explained: (1) the searches for records responsive to plaintiff's FOIA request, . . . (2) the withholding of records under FOIA Exemptions 5, 6, and 7(C), . . . the release of all reasonably segregable information, . . . and the referral of records to the EOUSA and the FBI, . . . and their subsequent release to plaintiff in full."
Manier v. Colo. State Board of Parole, No. 14-02851, 2014 WL 7177402 (D. Colo. Dec. 16, 2014) (Babcock, J.)
Re: Request for records from plaintiff's parole file
Disposition: Dismissing plaintiff's complaint
- Procedural Requirements, Entities Subject to the FOIA: "The Colorado Department of Corrections and Colorado Board of Parole are not federal agencies subject to the FOIA." "Accordingly, [plaintiff's] claim . . . will be dismissed."