Samahon v. DOJ, No. 13-6462, 2015 WL 857358 (E.D. Pa. Feb. 27, 2015) (Slomsky, J.)
Re: Request for two OLC memoranda concerning recess appointments
Disposition: Granting in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment; reserving judgment on remainder of defendant's motion for summary judgment pending in camera inspection
- Exemption 5, Deliberative Process Privilege: The court holds that the memoranda were covered by the deliberative process privilege. The court explains that "[t]he [first] Memorandum was predecisional because the Memorandum was provided to the President on February 20, 2004—the day that George W. Bush appointed William H. Pryor to the Court of Appeals for the Eleventh Circuit during an intrasession recess of the Senate." "The fact that the [first] Memorandum was dated the same day that President Bush made the appointment does not create an inference that the OLC Memorandum was a 'final agency decision.'" "The [first] Memorandum is also deliberative" because "[i]t was prepared merely to assist and advise on relevant law and policy to aid the President in his consideration of the appointment." Additionally, the court finds that "[t]he [second] Memorandum is clearly predecisional because it was never delivered to Counsel for President Obama." "As a file memorandum, it reflects no final agency policy that was adopted or became a final opinion." "The [second] Memorandum is also purely deliberative in nature." "It contains only possible future advice, and does not purport to express the OLC's final views on recess appointments, much less the views of the DOJ or the President."
The court also disagrees with "[plaintiff's] argu[ment] that by adopting [a third] Memorandum, the Obama Administration by extension has adopted the [first] and [second] Memoranda." The court does find that, "[a]lthough the OLC is not an agency policymaker and its memoranda are not binding on those who request it, an OLC memorandum is still final when it serves as the OLC's last word on the subject matter that was provided to the decisionmaker who requested it." "Here, the [third] Memorandum was in fact the last word by the OLC on the subject of recess appointments during pro forma sessions of the Senate." "The OLC even voluntarily chose to disclose the [third] Memorandum to the public, further evidencing its finality." Additionally, the court finds that "[b]ecause President Obama made the recess appointments during one of the Senate's pro forma sessions, he clearly adopted the conclusion in the [third] Memorandum." However, the court finds that "there is no evidence that President Obama or any member of his administration expressly incorporated the reasoning of the [third] Memorandum, and by extension, the reasoning of the [first] and [second] Memoranda." Additionally, the court finds that "'[t]emporal proximity' between the recess appointments and the [third] Memorandum is too speculative to infer adoption." Also, the court finds that "the connection between  verbal advice, the [third] Memorandum, and [former White House Press Secretary] Carney's comments is too tenuous and speculative to find express adoption of the reasoning in the [third] Memorandum by President Obama." Similarly, the court finds that "Carney's deferral to the [third] Memorandum in response to the reporter's question is an insufficient basis on which to find that the Memorandum's reasoning was adopted on behalf of the President as a decisionmaker, and by extension, the reasoning in the [first] and [second] Memoranda." Also, the court finds that "[b]ecause the NLRB was not the 'decisionmaker' behind the recess appointments, which was the President, its adoption of the analysis is not binding on President Obama and is not relevant to whether the Obama Administration made an adoption of the reasoning of the [third] Memorandum." Also, the court finds that "[e]ven assuming arguendo that the Administration adopted the [third] Memorandum, it does not necessarily follow that by referring to the [first] and [second] Memoranda in the [third] Memorandum, the Administration expressly adopted the reasoning of these two memoranda as a matter of course" because "[t]he [third] Memorandum's citations to the factual material and conclusions in the [first] Memorandum are made without expressly adopting its reasoning" and "the citations to and quotes from the [first] and [second] Memoranda do not contain policy reasons and are minor factual references given the length and overall content of the [third] Memorandum."
The court also holds that "[t]he [first] and [second] Memoranda, as OLC memoranda, do not constitute 'working law.'" "They are not an expression of final agency policy because they are advisory and cannot bind the President in his decisionmaking."
- Exemption 5, Attorney-Client Privilege: The court holds that "[b]oth the [first] and [second] Memoranda are protected by the attorney-client privilege." "At the request of Counsel to the President, the documents were prepared by the OLC in its capacity as a legal adviser to the Executive Branch." "Thus, attorney-client conversations led to the preparation of both memoranda." "These are protected confidential communications." "Thereafter, the memoranda were prepared which offered legal advice concerning the President's authority to make recess appointments during Senate intrasession recesses." "By their very nature, they would contain information relating to communications between an attorney and the client." The court also finds that "the fact that the [second] Memorandum was never delivered to Counsel for the President does not negate the attorney-client privilege."
The court also holds that "[plaintiff's] arguments under the fairness doctrine are not persuasive because he does not distinguish between waiver of the attorney-client privilege through selective disclosure in the traditional litigation context and waiver of the privilege in FOIA cases." "As mentioned, the primary purpose behind the fairness doctrine is to prevent unfair prejudice to a party in litigation." "Thus, [plaintiff's] argument fails because the OLC did not use the selective disclosures of the [first] or [second] Memoranda as a weapon in any litigation context with [plaintiff]."
- Exemption 5, Presidential Communications Privilege: The court holds "that the [first] Memorandum falls squarely within the presidential communications privilege because it was communicated to one of the President's senior advisors—the Counsel for the President—in connection with the President's deliberations and use of his appointment power—a 'quintessential and nondelegable Presidential power.'"
- Litigation Considerations, In Camera Inspection: "[T]he Court will order that the DOJ provide the Court only with the [second] Memorandum for in camera inspection" because "[defendant's] affidavit falls short of [the] standard: it provides no description of the process of separating facts from privileged material and it provides no factual recitation of why certain materials were not reasonably segregable" and the court cannot determine whether the second memorandum contained "factual material that would not reveal confidential communications between attorney and client." However, the court finds that "[b]ecause the [first] Memorandum is protected by an additional privilege, the presidential communications privilege, an in camera inspection of the Memorandum for any reasonably segregable factual material is not required."
Cobar v. DOJ, No. 12-1222, 2015 WL 858802 (D.D.C. Feb. 27, 2015) (Huvelle, J.)
Re: Request for records concerning third party who testified at plaintiff's trial
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Waiver, Exemption 7(D): "[T]he Court rejects plaintiff's contention that official confirmation of a confidential source in any way diminishes the protection offered by Exemption 7(D)." The court explains that "[w]hile the general rule on public disclosure suggests that such information might no longer be protected, 'Exemption 7(D) differs from other FOIA exemptions in that its applicability depends not on the specific factual contents of a particular document; instead, the pertinent question is whether the information at issue was furnished by a "confidential source" during the course of a legitimate criminal law investigation.'" Additionally, the court finds that "[t]o the extent plaintiff is arguing that public knowledge of a confidential source's identity precludes application of 7(D) to protect information provided by that source, that proposition is clearly wrong."
- Exemption 7(D): The court holds that, "with one possible exception, defendant has properly applied Exemption 7(D) to withhold the responsive records." The court finds that "[a]ll of the following documents include information that would identify the confidential source, information that would tend to identify the confidential source, and/or information provided by the confidential source that is protected from disclosure by Exemption 7(D)." However, the court finds that "[b]ased on defendant's declaration and Vaughn index, and the Court's in camera review, the Court is not persuaded that all of the information in [seven confidential source agreements] has been properly withheld." "Specifically, it does not appear that any of the generic conditions set forth in the Confidential Source Agreement, standing alone, qualify for protection under Exemption 7(D)."
- Litigation Considerations, "Reasonably Segregable" Requirements: "The Court is satisfied by defendant's Vaughn index and supplemental declaration, and by its own in camera review, that there is no reasonably segregable, non-exempt information in the properly withheld documents."
Pinson v. DOJ, No. 12-1872, 2015 WL 739805 (D.D.C. Feb. 23, 2015) (Contreras, J.)
Re: Requests for records concerning plaintiff
Disposition: Granting in part and denying in part defendant's motion for partial summary judgment
- Litigation Considerations: "[The] Court finds that [plaintiff] has conceded that the Civil Division conducted an adequate search relating to [one request] and properly withheld a number of responsive documents under the applicable FOIA exemptions." "Accordingly, [the] Court grants the DOJ's motion for partial summary judgment as to [this] FOIA Request."
- Procedural Requirements, Searching for Responsive Records: Regarding another request, the court holds that "[b]ecause the DOJ has not met its burden to 'provide a sufficient explanation as to why search would be unreasonably burdensome,' a grant of summary judgment would be inappropriate." The court explains that "[h]ere, the DOJ has provided a declaration, which states that all Civil Division files would need to be searched in order to locate documents responsive to [plaintiff's] request and that '[s]uch a search would constitute an unreasonable and burdensome effort ... not required under [the FOIA].'" "The DOJ, however, offers no estimate of the time required to conduct [plaintiff's] requested search, the cost of such a search, or the number of files that would have to be manually searched." "Moreover, the DOJ fails to explain why a more limited search would be unfruitful or whether other parts of the Civil Division might have easier access to, at least, some of the requested information." The court also rejects defendant's argument "that [plaintiff's] request lacked specificity and did not align with the manner in which the Civil Division's record system is indexed, making the requested search unreasonably burdensome."
Florez v. CIA, No. 14-1002, 2015 WL 728190 (S.D.N.Y. Feb. 19, 2015) (Stein, J.)
Re: Request for records concerning plaintiff's father
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 1: "This Court concludes that the CIA has met its burden of establishing that FOIA Exemption 1 supports its Glomar response." The court notes that "[p]laintiff does not contest that the information meets the first three requirements of classification; i.e., that (1) [defendant's declarant] is an original classification authority and that she assessed the current classification of the information; (2) the information is under the control of the U.S. government; and (3) any records, should they exist, fall within the category of 'intelligence activities' and 'intelligence sources and methods.'" "Plaintiff contends solely that Exemption 1 is inapplicable because the disclosure of decades-old documents would not, as a factual matter, result in damage to national security." The court finds that "the CIA has outlined how any acknowledgment of the existence of the requested records would reveal classified information regarding intelligence activities, sources, and methods, and why that information should logically remain classified." "Such declarations are given 'substantial weight' when offered in the context of national security." Additionally, the court finds that, "[d]espite plaintiff's exhortations, the age of the requested records does not render [defendant's] declarations 'implausible.'" The court explains that, "[h]ere, the CIA addressed the passage of time in its declarations, explaining that the government's breach of a promise of confidentiality given to a 'human intelligence source,' in the parlance of the CIA, 'whether three or thirty years later' could reasonably impair relations with current sources, deter future recruiting, and provoke retaliation."
The court also finds that "the CIA's Glomar response remains valid" even though "certain information about [plaintiff's father] has in fact already been disclosed publicly by the CIA." The court relates that plaintiff argues that "several documents available publicly from the CIA refer specifically to [plaintiff's father]." "The two documents plaintiff identified do not show that the CIA was employing [plaintiff's father] as an intelligence source or targeting him in any way." "They certainly do not reveal any intelligence activity conducted by [plaintiff's father] or any relationship that he may have had with the CIA."
- Exemption 3: "The Court finds that the CIA's Glomar response is justified under both Exemption 1 and Exemption 3." The court relates that "[t]he CIA relies on two statutes that specifically preclude the disclosure of records plaintiff seeks." "First, Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), requires that the Director of National Intelligence 'protect intelligence sources and methods from unauthorized disclosure.'" Second, Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 3507, provides that, '[i]n the interests of the security of the foreign intelligence activities of the United States and in order further to implement ... the Director of National Intelligence['s] ... responsib[ility] for protecting intelligence sources and methods from unauthorized disclosure,' the CIA shall be exempted from the provisions of any law that 'require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.'" The court finds that "[b]oth the National Security Act and Central Intelligence Agency Act are exempting statutes within the meaning of Exemption 3." The court notes that "[i]n relying upon Exemption 3 to justify its Glomar response, the CIA contends that acknowledging the existence or nonexistence of the records [plaintiff] seeks could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and methods as well as clandestine intelligence activities, which are at the core of the CIA's functions." The court finds that "the fact that 'it is no secret' the CIA may 'use' foreign officials in some capacity does not mean that the CIA can no longer protect the specifics of its tactics."
Richardson v. U.S., No. 13-1203, 2015 WL 709118 (D.D.C. Feb. 19, 2015) (Huvelle, J.)
Re: Request for records concerning plaintiff
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motions for continuance, for discovery, and to amend complaint
- Litigation Considerations, Adequacy of Search: "[T]he Court concludes that defendant has failed to establish that the agency conducted an adequate search." The court finds that, "[a]lthough the adequacy of an agency's search is not generally judged by its results, the unexplained absence of responsive documents whose existence the agency does not deny goes beyond mere speculation and calls the reasonableness of the agency's search into question." The court explains that "there is uncontroverted evidence that defendant released only a partial set of pictures." "Defendant perhaps has an explanation for why it did not locate or release a complete set of pictures, but no such explanation has been provided to the Court." "It did not file a reply, and neither its declarations nor the Vaughn index even mentions videotape pictures, much less describes how or where defendant found the pictures that it did release."
- Exemption 5, Attorney Work-Product: The court holds that "[p]laintiff does not challenge defendant's withholding of [the] records [withheld under Exemption 5], and the Court is satisfied by defendant's declarations and Vaughn index that these records have been properly withheld as attorney work product." The court explains that, "[a]ccording to defendant, the withheld records are attorney work product because they were 'prepared by or at the request or direction of an attorney, and made in anticipation of, or during litigation' and consist of 'information related to trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to plaintiff's criminal case.'"
- Exemption 7(C), Segregablity: The court holds that "[p]laintiff does not challenge defendant's withholding of [the] records [at issue], and the Court is satisfied by defendant's declarations and Vaughn index that these records include information that has been properly withheld pursuant to Exemption 7(C)." "The issue of segregability, though, poses a problem. Defendant makes no representation as to whether it considered segregability in terms of Exemption 7(C), and the descriptions of the documents lack the detail necessary for the Court to conduct its own segregability analysis." "Accordingly, the Court will deny summary judgment to defendant on its claim."
Liberation Newspaper v. Dept. of State, No. 13-836, 2015 WL 709197 (D.D.C. Feb. 19, 2015) (Howell, J.)
Re: Request for records concerning possible payments made to journalists by United States government during course of criminal prosecution of five individuals convicted of being Cuban intelligence agents
Disposition: Granting defendant's motion for summary judgment
- Procedural Considerations, Searching for Responsive Records: The court holds that "defendant conducted an adequate search for responsive records." "The Court is satisfied, based on the three separate and detailed declarations submitted by the defendant, that the defendant conducted an adequate search for responsive records, even though the search yielded no responsive documents and even though the plaintiff uncovered a seemingly responsive document during its independent search of public websites." "The defendant reviewed both hard copy and electronic documents contained in numerous databases across multiple divisions within the State Department." "Beyond the requirements placed upon the defendant, the defendant responded to criticism from the plaintiff and revised its search parameters to provide an even broader search for responsive documents." "Although the plaintiff has pointed to a single document discovered outside of the search process, one such document is not 'sufficient to overcome an adequate agency affidavit,' let alone the three declarations submitted in the present case." "Moreover, the plaintiff points to no circumstances regarding the search sufficient to overcome the presumption of good faith afforded to the defendant's declarations." Additionally, the court finds that plaintiff's "challenge to the adequacy of the search–the lack of detail concerning the search of USIA's retired records–is without merit." "The defendant's declarations explain in detail the process used to review the retired USIA records." Finally, the court holds that while "plaintiff posits that the defendant should have used alternative search terms to yield more responsive documents[,] . . . speculation as to the potential results of a different search does not necessarily undermine the adequacy of the agency's actual search." The court explains that "[w]here the search terms are reasonably calculated to lead to responsive documents, the Court should not 'micro manage' the agency's search." The court finds that "[t]he search terms in the instant case were reasonably calculated to lead to responsive documents."
Nat'l Sec. Counselors v. DOJ, No. 13-556, 2015 WL 674289 (D.D.C. Feb. 18, 2015) (Chutkan, J.)
Re: Request for Manual of Administrative Operations and Procedures ("MAOP")
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for partial summary judgment
- Fees and Fee Waivers, Fees: The court grants defendant's motion for summary judgment on this issue. First, the court finds that, "[t]o the extent Count III challenges the FBI's [FOIA CD interim release policy] fee determination for [plaintiff's] Request, that claim is now moot because the FBI released the entire MAOP to [plaintiff] without charge." Second, even though another plaintiff did not file an administrative appeal, the court finds that, "[g]iven that [other plaintiff's] Count III claim is identical to [plaintiff's], and that OIP's resolution of [plaintiff's] fee determination appeal informs how OIP likely would have resolved such an appeal by [other plaintiff], the Court finds that the purposes and policies of administrative exhaustion would not be undermined by it reaching the merits of [other plaintiff's] Count III FOIA claim along with [plaintiff's]." Third, the court finds that "[t]o the extent Plaintiffs assert a ["''claim that an agency policy or practice will impair the party's lawful access to information in the future''"] in Count III, they have asserted no facts showing that the [FOIA CD interim release policy] and associated fees will impair Plaintiffs' lawful access to information in the future." "To the contrary, the undisputed facts demonstrate that the [FOIA CD interim release policy] provides medium- and large-queue requesters with records faster than if all records were produced simultaneously, that the FBI charges requesters less than it is permitted to for each 500–page CD, and that the [FOIA CD interim release policy] presents requesters with cost savings over hard copy duplication." "Rather than a refusal to supply information, the undisputed facts show that the [FOIA CD interim release policy] is the FBI's attempt to produce portions of large FOIA requests more expeditiously and economically for the agency and requesters and is consistent with its obligation that it 'shall disclose records to the requester promptly on payment of any applicable fee.'" Additionally, the court finds that "[p]laintiffs offer no legal authority that would require the FBI to recognize a requester's attempt to waive the 500–page–per–CD limit of the [FOIA CD interim release policy]."
- Fees and Fee Waivers, Fee Waivers: The court denies plaintiff's fee waiver request. The court first notes that its "review of the fee waiver denials is de novo and is limited to the record that was before the agency when it considered [plaintiff's] requests." The court then notes that "[i]t is undisputed in this case that the requested records concern the operations or activities of the government" and, therefore, "only factors (ii) – (iv) require discussion." The court finds that "DOJ's justification for denying the fee waiver[,]" that "'disclosure of the requested information would not lead to an increased public understanding of the activities and operations of the federal government' since the requested information was 'a matter of public record....,'" "does not pass muster." The court finds that, "[s]trictly speaking, it is true that the requested information is a matter of public record." "However, that information is scattered in courthouses across the United States." "In order to compile the information, NSC would first have to somehow determine what cases in which courthouses hold the information – no small undertaking – and then would have to gather it, which might include considerable travel for court records not electronically available." Therefore, the court finds that "the requested disclosure would increase the public's understanding of the activities of the federal government" and "this factor weighs in favor of waiving the fees." However,"[g]iven the vague plans [plaintiff] presented to DOJ to disseminate the requested information, the fact that it has not demonstrated that it has sufficient statistical expertise to extract meaningful data from the compiled information, the fact that its publication history suggests little actual dissemination, and [plaintiff's] failure to indicate what segment of the public beyond itself may be interested in these highly specific administrative matters, the Court finds that this factor weighs against waiving fees." Lastly, the court finds that "since the record before the agency provided insufficient evidence from which to conclude the public's understanding of the functions of the federal government would be significantly enhanced by dissemination of the requested information, this final factor weighs against waiving fees and the Court concludes that [plaintiff's] request for a fee waiver was properly denied."
- Litigation Considerations, Discovery: The court holds that "[plaintiff's] request in the alternative for discovery is denied." The court finds that "[plaintiff] has not explained how documentation of the agency's internal deliberative process could be considered in this Court's de novo review, where the Court may reach its own conclusion regardless of the agency's determination."
Am. Civil Liberties Union of N. Cal. v. FBI, No. 12-3728, 2015 WL 678231 (N.D. Cal. Feb. 17, 2015) (Illston, J.)
Re: Request for records concerning the "Occupy" movement
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
- Litigation Considerations, In Camera Inspection: "[T]he Court will reexamine the documents for which summary judgment was denied in camera, in light of the government's latest declaration." The court finds that, "[h]ere, the parties agree—and the Court concurs—that in camera review is appropriate in light of the government's prior failed attempts to show, through declarations, that it may withhold certain documents pursuant to the claimed exemptions." "In camera review is also appropriate given that a relatively small number of documents—roughly twenty-seven pages—remain at stake here."
- Exemption 7, Threshold: "The Court finds that [the] additional detail [provided by defendant] is sufficient to establish a nexus between these documents and the stated law enforcement purpose." The court relates that, "[i]n its latest declaration, the government responds by noting that for certain enumerated documents, the potential criminal conduct includes (1) assaulting, resisting, or impeding certain officers or employees; (2) conspiracy to commit offense or to defraud the United States; (3) conspiracy to impede or injure an officer; (4) solicitation to commit a crime of violence; (5) distribution of information relating to explosives, destructive devices, and weapons of mass destruction; (6) malicious mischief–government property; and (7) providing material support to terrorists."
- Exemption 7(A): The court finds that "[u]pon reviewing the document [at issue] in camera, the Court finds that the government must also release [one additional sentence] as it is reasonably segregable." "All other portions withheld pursuant to Exemption 7(A) are sufficiently narrowly tailored."
- Exemptions 6 and 7(C): The court notes that "[t]he FBI applied Exemptions 6 and 7(C) to protect the privacy interests in the names or identifying information of four types of people: (1) FBI agents and support personnel, (2) third parties who have provided information to the FBI, (3) third parties merely mentioned in the documents, and (4) local law enforcement officers." "Plaintiffs do not challenge the first category." "Plaintiffs argue that with respect to the last three categories, the public interest in disclosure outweighs the privacy interests." Regarding third parties, the court finds that defendant failed "to show why it would be reasonable to conclude that the third parties might be subject to retaliation, harassment, or other negative consequences if their names are revealed, and why the release of their names would not shed any light on the FBI's performance of its statutory duties." "Therefore, in camera review is appropriate." However, "[u]pon reviewing the documents, the Court finds that releasing the names of the third parties could reasonably lead to an invasion of their privacy." Regarding local law enforcement officers, "the Court finds that the FBI had sought to withhold only the names of the local law enforcement officers pursuant to these exemptions, and has therefore withheld only non-segregable information."
- Exemption 7(D): The court notes that "[t]he FBI continues to rely on the same justifications which the Court has previously found to be insufficiently detailed to establish the existence of an implied promise of confidentiality—namely, that the source is a member of an allegedly violent group, and that he or she could potentially face retaliation if it is discovered that he or she cooperated with law enforcement." "However, upon reviewing the relevant documents, the Court finds that an implied assurance of confidentiality did in fact exist, such that withholding pursuant to Exemption 7(D) was appropriate."
- Exemption 7(E): The court holds that "[a]ny documents, or portions of documents, withheld solely on the basis of 7(E) must be produced." The court notes that "[t]he FBI asserted Exemption 7(E) for five types of information: (1) database and database information; (2) collection and/or analysis of information; (3) specific law enforcement techniques utilized to conduct national security and intelligence investigations; (4) file numbers; and (5) the identity of FBI units." "Aside from abandoning this exemption as to the first type of information, . . . the FBI largely reiterates the same arguments that this Court has previously found to be wholly insufficient in its two prior orders." Therefore, the court finds that "[h]ere, the government's failure to meet its burden through public declarations appears to be symptomatic of the fact that the claimed exemption simply does not apply to the withheld material." "Accordingly, upon reviewing the relevant documents in camera, the Court finds that the FBI may not rely upon Exemption 7(E) to withhold any information in the documents at issue."
Elec. Privacy Info. Center v. DHS, No. 14-5013, 2015 WL 525183 (D.C. Cir. Feb. 10, 2015) (Rogers, J.)
Re: Request for protocol for shutting down wireless networks during critical emergencies, SOP 303
Disposition: Reversing and remanding district court's grant of plaintiff's motion for summary judgment
- Exemption 7, Threshold: The Court of Appeals for the District of Columbia Circuit finds that "SOP 303 was created to prevent crime and keep people safe, which qualify as law enforcement purposes" and, therefore, "meets Exemption 7's threshold test."
- Exemption 7(F): The Court of Appeals for the District of Columbia Circuit "hold[s] that the Department permissibly withheld much, if not all of SOP 303, because its release . . . could reasonably be expected to endanger individuals' lives or physical safety, and we reverse the grant of summary judgment." The court relates that "the Department maintains that disclosure of SOP 303 . . . 'would enable bad actors to circumvent or interfere with a law enforcement strategy designed to prevent activation of improvised explosive devices' and 'to insert themselves into the process of shutting down or reactivating wireless networks by appropriating verification methods and then impersonating officials designated for involvement in the verification process.'" "[Plaintiff] maintains, however, that Exemption 7(F) requires the Department to identify with some specificity the individuals who would be endangered by SOP 303's disclosure." The court reasons that "the Department does not point to a 'particularized threat to a discrete population,' . . . but rather maintains its non-production falls within Exemption 7(F) because release of SOP 303 would endanger anyone in the United States who happens to be near an unexploded bomb or frequents high value targets." The court finds that "[t]he language of Exemption 7(F), which concerns danger to the life or physical safety of any individual, suggests Congress contemplated protection beyond a particular individual who could be identified before the fact." "Exactly who will be passing near an unexploded bomb when it is triggered somewhere in the United States may often be unknowable beyond a general group or method of approach . . . , but the critical emergency itself provides a limit." Therefore, court finds that "[r]elease of SOP 303 . . . poses a concrete and non-speculative danger to numerous albeit unspecified individuals . . . and the Department thereby asserted a direct nexus between disclosure and a reasonable possibility of personal harm."
Additionally, in response to plaintiff's argument, the court holds that "the possibility of classification and the concomitant protection from disclosure provided by Exemption 1 do not render Exemption 7(F) superfluous."
Ivey v. EOUSA, No. 13-917, 2015 WL 507219 (N.D.N.Y. Feb. 6, 2015) (D'Agostino, J.)
Re: Request for "'disclosure of all criminal bonds, bonding, or otherwise'"
Disposition: Granting defendant's motion for summary judgment
- Procedural Considerations, Time Limits: In response to plaintiff's contention that "'defendant failed to comply with the statutory provisional requirements of tim[liness] set forth in 5 U.S .C. § 552(a)(6)(A),'" the court holds that "[d]ue to Plaintiff's receipt of EOUSA's final determination regarding his FOIA request, 'the only issue for the Court to consider at this point is whether [EOUSA's] response complies with its obligations under FOIA.'" The court explains that "[s]ince Plaintiff responded to Defendant's motion, it can be inferred that Plaintiff now has notice of the final determination regarding his FOIA request." "Therefore, whether Plaintiff received the notice of final determination [in a timely manner] is not material to the outcome of this proceeding."
- Litigation Considerations, Adequacy of Search: The court holds that "[d]efendant's affidavits prove that the search performed in response to Plaintiff's FOIA request was adequate." The court relates that defendant's "affidavit sets out that searches of Plaintiff's name in both the LIONS system and the National Electronic Case Filing System . . . were performed." "The affidavit also includes the search terms [defendant] entered."
Additionally, the court finds that "it does not appear that any reading of Plaintiff's response in opposition can be construed to allege Defendant acted in bad faith." The court relates that "[p]laintiff argues that Defendant did not conduct an adequate search, because [defendant's] affidavit includes [defendant's] belief that 'plaintiff is convinced that the United States government sells federal inmates as commodities on the stock market.'" "[D]espite [its] doubts about the existence of Plaintiff's requested records, [defendant] conducted an adequate search and did not act in bad faith."
- Procedural Considerations, OPEN Government Act: The court finds that "[s]ince Defendant did in fact assign Plaintiff an individualized tracking number, Defendant did not violate 5 U.S.C. § 552(a)(7)(A)." The court explains that "[p]laintiff was assigned an individualized tracking number once EOUSA received his FOIA request, which he does not dispute."
- Attorney Fees, Eligibility: "The Court finds that Plaintiff has not substantially prevailed within the meaning [of 5 U.S.C. § 552(a)(4)(E)], because all of his claims have been dismissed." "Therefore, Plaintiff is not entitled to reimbursement for litigation expenses or court fees."