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Court of Appeals Decisions

ACLU v. DOJ, Nos. 10-4290, 10-4289, 10-4647, 10-4668, 2012 WL 1829579 (2d Cir. May 21, 2012) (Wesley, J.). Holding: Reversing the district court's judgment insofar as it required disclosure of portions of two memoranda prepared by OLC and transcripts of an in camera, ex parte proceeding; and affirming the district court's determination with respect to the withholding of records and a photograph pursuant to Exemption 3. The Second Circuit agrees with both parties that "the district court's compromise, whereby the Government could avoid public disclosure of the redacted information by substituting a purportedly neutral phrase composed by the court, exceeded the court's authority under FOIA" because "FOIA does not permit courts to compel an agency to produce anything other than responsive, non-exempt records." The Second Circuit finds that "[i]f the Government altered or modified the OLC memoranda in accordance with the compromise, the Government would effectively be 'creating' documents – something FOIA does not obligate agencies to do." Moreover, the Second Circuit determines that "[t]he district court's apparent reliance on the Classified Information Procedures Act . . . as a basis for the compromise was erroneous" because that law "applies exclusively to criminal cases."

District Court Decisions

National Security Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2012 WL 4903377 (D.D.C. Oct. 17, 2012) (Howell, J.). Holding: Concluding that plaintiff has standing to pursue certain claims under FOIA and the APA; granting CIA's motion to dismiss on certain claims and denying CIA's motion to dismiss for certain claims. The plaintiff sought "database listings sorted by various criteria." The court finds that when responding to a request for "aggregate data," an agency "need not create a new database or reorganize its method of archiving data," but also notes that "searching that database does not involve the creation of a new record." The court continues that "sorting a pre-existing database of information to make information intelligible does not involve the creation of a new record." "[I]t is just another form of searching that is within the scope of an agency's duties in responding to FOIA requests." However, a request for a "listing or index of a database's contents that does not seek the contents of the database, but instead essentially seeks information about those contents, is a request that requires the creation of a new record, insofar as the agency has not previously created and retained such a listing or index." After analyzing the issue, the court concludes that the plaintiff's claim regarding the existence of a policy and practice concerning database listings is insufficient because it is based on a single request which "could just as easily have been an isolated incident."

Thompson v. DOJ, No. 11-272, 2012 WL 1066729 (D.D.C. Mar. 30, 2012) (Walton,J.). Holding: Granting FBI's motion for summary judgment on the basis that it conducted an adequate search and properly justified its claims of Exemptions 7(C) and 7(E). The court further notes that beyond demonstrating an adequate search, "[t]he FBI is under no obligation under the FOIA to respond to questions... or to authenticate documents produced in response to a FOIA request."

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