Supreme Court Decisions
Milner v. Dep't of the Navy, 131 S. Ct. 1259 (U.S. Mar. 7, 2011) (Kagan, J.). Holding: Reversing and remanding the decision of Ninth Circuit and holding that: "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources." The Supreme Court reverses and remands the decision of the Ninth Circuit and holds that "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources." As such, the Court determines that "[t]he explosives maps and data requested here do not qualify for withholding under that exemption." Studying the text of Exemption 2, the Court finds that "[t]he key word . . . the one that most clearly marks the provision's boundaries – is 'personnel'" and determines that "[w]hen used as an adjective, as it is here to modify 'rules and practices,' that term refers to human resources matters." The Court also finds supports for this reading in other parts of the FOIA, concluding that "Exemption 2 uses [the term] 'personnel' in the exact same way" as Exemption 6. The Court observes that "all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies – such matters as hiring and firing, work rules and discipline, compensation and benefits."
The Supreme Court further notes that "[c]ourts in practice have had little difficulty identifying the records that qualify for withholding under this reading: They are what now commonly fall within the Low 2 exemption" and concludes that "[o]ur construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . . )." Furthermore, the Court notes that its "reading instead gives the exemption the 'narrower reach' Congress intended, . . . through the simple device of confining the provision's meaning to its words." The Court rejects the Navy's assertion that "Congress did not wish 'to limit the Exemption to employment-related matters,'" finding that it will not "allow[ ] ambiguous legislative history [underlying Exemption 2] to muddy clear statutory language." With regard to the information withheld, the Court holds that "[t]hese data and maps calculate and visually portray the magnitude of hypothetical detonations," which "[b]y no stretch of imagination . . . relate to 'personnel rules and practices,' as that term is most naturally understood."
With regard to the Navy's claim that Exemption 2 shields predominantly internal material if "its 'disclosure would significantly risk[ ] circumvention of federal agency functions,'" the Supreme Court finds that this "High 2 test (in addition to substituting the word 'predominantly' for 'solely,' . . .) ignores the plain meaning of the adjective 'personnel' . . . and adopts a circumvention requirement with no basis or referent in Exemption 2's language." The Court also rejects Navy's argument that a House Report concerning the FOIA supports a High 2 interpretation, finding that "the Senate Report says exactly the opposite, explaining in support of a Low 2 interpretation that the phrase 'internal personnel rules and practices of an agency' means 'rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like." The Court finds that "[w]hen presented, on the one hand, with clear statutory language and, on the other, with dueling committee reports, we must choose the language" of the statute. Additionally, the Court dismisses Navy's argument that Congress' amendment of Exemption 7(E) codified the "'circumvention of the law' standard" endorsed by the D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco and Firearms. Instead, the Court concludes that "[t]he decision . . . to amend Exemption 7(E) suggests that Congress approved the circumvention standard only as to law enforcement materials, and not as to the wider set of records High 2 covers" and that "[t]he 1986 amendment does not ratify, approve, or otherwise signal agreement with Crooker'sinterpretation of Exemption 2." As to the dissent's argument that Crooker "'has been consistently relied upon and followed for 30 years' by lower courts," the Court finds that the clear statutory language controls and comments that not all of the Circuits have accepted or considered Exemption 2 to encompass "High" 2.
The Supreme Court also rejects Navy's argument that "the exemption 'encompasses records concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions.'" The Court instead finds that "the Government's 'clean slate' construction reaches such documents only by stripping the word 'personnel' of any real meaning" and that "[u]nder this interpretation, an agency's 'internal personnel rules and practices' appears to mean all its internal rules and practices." As such, "this odd reading would produce a sweeping exemption, posing the risk that FOIA would become less a disclosure than 'a withholding statute.'" "Interpreted in this way, Exemption2 – call it 'Super 2' now – would extend, rather than narrow, the [Administrative Procedure Act's] former exemption of records relating to the 'internal management of an agency,'" and the Court rejects such an interpretation because it "has no basis in the text, context, or purpose of FOIA." Lastly, the Court notes that "the Government has other tools at hand to shield national security information and other sensitive materials" and identifies Exemptions 1, 3 and 7 as possible bases for justifying such withholdings.
Court of Appeals Decisions
Adionser v. DOJ, No. 11-5093, 2012 U.S. App. LEXIS 22732 (D.C. Cir. Nov. 5, 2012) (per curiam). Holding: Granting motion for partial summary affirmance in part; remanding for further processing of material withheld under Exemption 7(A) and for further briefing on information withheld under Exemption 2. The court orders that "the case be remanded to the district court for further proceedings with respect to the Geographical Drug Enforcement Program codes withheld by DEA pursuant to FOIA Exemption 2," so that the government can "brief the issue whether FOIA Exemption 7(E)" is applicable in light of the Milner decision.
McLaughlin v. DOJ, No. 10-5050, 2011 WL 9080 (D.C. Cir. Jan 3, 2011) (per curiam). The D.C. Circuit finds that appellant does not address the specific reasons given by the agency for asserting Exemption 2 and "therefore fails in his challenge to the withholding of information pursuant to this exemption."
Pub. Citizen, Inc. v. OMB, No. 08-5004, 2010 WL 820479 (D.C. Cir. Mar. 11, 2010) (Tatel, J.) . Note: The court reissued its June 19, 2009 decision. The holding remains consistent with the opinion that it superceded, which was reported in Decision 837, i.e., the documents are not related predominantly to OMB's internal practices and so do not qualify under Exemption 2, and are not protected in their entireties under Exemption 5. The case is remanded to the district court.
Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010) (Tatel, J.). The court agrees with defendant that the blueprints are predominantly internal, despite the fact that some of the requested blueprints have been released to the Maryland Historical Trust, especially since plaintiff "is presumably not seeking those blueprints that are housed at the Maryland Historical Trust, but rather wants those that remain exclusively under the agency's control."
As to whether the blueprints "relate to 'rules and practices governing agency personnel,'" it is true that "unlike manuals and guidelines, blueprints give agency employees little explicit guidance about how to do their jobs. Information need not take the form of a rule or practice, however, to fall within the high 2 exemption. Rather, the exemption expressly protects from disclosure material 'related' to agency rules or practices."
Furthermore, "with respect to high 2 materials, where the asserted government interest is, by definition, to prevent circumvention of law, the threshold inquiry may be somewhat less demanding than for low 2 matters, for which we require a tighter nexus between the withheld information and personnel rules or practices." Moreover, at the district court, plaintiff did not raise the issue of whether the blueprints are sufficiently related to internal rules and practices; he may not do so for the first time on appeal. Similarly, plaintiff did not raise at the district court his current claim that USDA "failed to demonstrate that release of the blueprints would pose a 'significant risk' to national security."
Milner v. U.S. Dep't of the Navy, 575 F.3d 959 (9th Cir. 2009) (Tallman, J.) (dissenting opinion by Fletcher, J.). In line with the position adopted by the D.C. Circuit, the court finds that "Exemption 2 shields those personnel materials which are predominantly internal and disclosure of which would present a risk of circumvention of agency regulation." Though the exemption covers law enforcement materials, its coverage is not limited to such records. Limiting Exemption 2 to law enforcement documents "has no basis in either Supreme Court precedent or the statute." Indeed, "[i]t would be incongruent if FOIA protected sensitive information when it is contained in a classified or law enforcement document, but not when it is contained in a document developed predominantly for use by agency personnel." Furthermore, limiting Exemption 2's coverage to law enforcement materials would render Exemption 7 redundant. The withheld documents "are essentially an extension of [a Navy manual], which governs operations on [the Naval Magazine Indian Island (NMII)]." As such, they "constitute one part of the internal policies and procedures that NMII personnel are bound to follow when handling and storing explosive ordnance." Plaintiff argues that if the Navy wishes to withhold this material it should have it classified, but "not all internal information can be classified, for legitimate reasons of personal and national security. Classifying such information may present logistical challenges that could actually impede safe and effective operations." The fact that the Navy has shared information in the withheld documents with local officials does not render it no longer internal. "The decision to share otherwise internal information with emergency responders does not necessarily place the information outside the bounds of Exemption 2. . . . Agencies must be permitted to grant limited, confidential access to other federal and local agencies without risking broader disclosure. [Furthermore], limited disclosure for official purposes does not violate the standard that information must be 'predominantly internal.'" Additionally, "the personnel procedures . . . are certainly not written to regulate the public. [They] have absolutely no legal or enforcement ramifications whatsoever on the citizens of the Puget Sound region. Nothing about the data even could be codified in any logical way to regulate public behavior. . . ." Finally, "[t]he Navy has described in detailed affidavits precisely how public disclosure would risk circumvention of the law - [the withheld documents] sought here point out the best targets for those bent on wreaking havoc. . . . A terrorist who wished to hit the most damaging target or a protester who wished to disrupt the Navy's monitoring and transportation protocols would be greatly aided by such information." Indeed "[d]isclosure . . . 'would quickly render those documents obsolete for the purpose for which they were designed.'" They were "created . . . to prevent catastrophic detonations"; disclosure "would make catastrophe more likely." It is irrelevant that similar information pertaining to a nuclear submarine base has been released.
Public Citizen, Inc. v. OMB, No. 08-5004, 2009 WL 1709216 (D.C. Cir. June 19, 2009) (Tatel, J.) (concurring/dissenting opinion filed by Williams, J.). The district court ruling upholding use of Exemption 2 for withholding of the responsive documents is reversed. "[T]he mere fact that the documents were intended for internal OMB use and have never been circulated outside the agency cannot alone render them 'predominantly internal.' Otherwise, agencies could effectively avoid disclosure of any manner of information simply by stamping it 'for internal use only.'" Similarly, the fact that the documents were used in internal discussions is not dispositive on whether they should be considered predominantly internal, as such documents may still be involved in matters affecting the public. Furthermore, OMB is incorrect in its claim that Exemption 2 applies because the documents only "concern other government agencies rather than the public at large." Instead, "[f]or Exemption 2 to apply, . . . the documents would have to relate predominantly to the internal practices of OMB itself, not of the government as a whole." Given that OMB's "primary function involves oversight and coordination of other government agencies," if its view of Exemption 2 were upheld, then "OMB . . . would be largely exempt from FOIA." Though OMB claims that the documents do not regulate public behavior, "the documents determine OMB's interaction with outsiders -- an interaction having real-world effects on the behavior of both bypass and non-bypass agencies." This is particularly true because there is a strong indication that the withheld documents contain OMB's own opinion on which agencies should be treated as having bypass authority.
District Court Decisions
Cooper v. DOJ, No. 99-2513, 2012 WL 3939231 (D.D.C. Sept. 11, 2012) (Walton, J.). Holding: Granting defendant's renewed motion for summary judgment in part and denying part; granting plaintiff's "motion for leave and to compel" in part. The court defers a determination as to the appropriateness of the exemptions applied. Noting that the defendant is reviewing previous withholdings under Exemption 2 following the Milner decision, and "will file supplemental information regarding Exemption 2 as it becomes available," the court deems it inappropriate to address the exemptions at this time.
Hetzler v. Record/Info. Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.). Holding: 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; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D). As the "[p]laintiff has 'stipulate[d] that she is not interested in file numbers or source symbols,'" summary judgment is granted as to "the [d]efendants' redaction of confidential source file numbers" and "permanent source symbol numbers of FBI sources" pursuant to Exemption 2.
Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court concludes that the CIA properly asserted Exemption 2 to withhold "information such as the signature of a CIA officer as well as internal filing instructions and administrative routing information" that was of no public interest. The court finds that "[t]his explanation for withholding this information is still in line with the recent Milner ruling" by the Supreme Court. Accordingly, "[n]arrow construction of [Exemption 2], particularly the phrase 'personnel rules and practices of an agency' would include the signature of a CIA officer, internal filing instructions, and an internal cover sheet with administrative routing information." Conversely, the court determines that Exemption 2 is not appropriate to redact internal DEA telephone numbers. The court finds that narrow construction of the exemption "demands that phone numbers fall out of its ambit" because they "are neither 'rules' nor 'practices.'" However, because plaintiff did not contest these redactions, the court finds that summary judgment to defendant is warranted on this issue.
Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding: Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions. In light of the Supreme Court's decision in Milner, which "eliminate[d] the distinction between the formerly-recognized 'High 2' and 'Low 2' exemptions," the court concludes that the FBI cannot assert Exemption 2 to withhold "the internal phone numbers of FBI Special Agents." Quoting from the Supreme Court's decision in Department of Air Force v. Rose, the court finds that "[p]hone numbers are not 'material[s] concerning employee relations or human resources: use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.'" However, the court rules that the FBI's assertion of Exemption 7(C) to withhold that information is appropriate.
Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June 26, 2012) (Roberts, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents. In light of the Supreme Court's decision in Milner, the court denies, without prejudice, the parties cross-motions for summary judgment to the extent that Treasury relied on "high 2" to withhold administrative case tracking numbers. The court provides Treasury with an additional "opportunity to disclose the case tracking numbers, or to justify withholding them under a different exemption."
Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June 8, 2012) (Leon,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld the requested materials categorically under Exemptions 6 and 7(C), as well as Exemptions 2, 3, 7(D), and 7(E). Citing to Milner, the court states that "[a]mong other things, Exemption 2 covers internal information," and then holds that the FBI properly invoked Exemption 2 to withhold "'secure and nonsecure internal telephone numbers and secure internal facsimile numbers of FBI personnel,'" finding them to "fall squarely within this Exemption."
Int'l Counsel Bureau v. DOD, No. 08-1063, 2012 WL 1865413 (D.D.C. May 23, 2012) (Bates,J.). Holding: Granting, in part, DOD's motion for summary judgment with respect to one audio recording for which it claimed Exemption 1 and which plaintiff did not dispute, as well as the adequacy of its search for certain videos; denying, in part, defendant's motion for summary judgment as it pertains to videos for which it asserted Exemption 2 as the basis for withholding in full, and directing DOD to produce a representative sample of those videos for in camera review in order to assess its other exemption claims; and denying both parties' motions for summary judgment as to the issue of segregability and the remaining exemption claims. The court denies, without prejudice, DOD's motion for summary judgment with respect to its withholding of certain videorecordings in full pursuant to "high 2," and orders that a representative sample of the videos be submitted for in camera review so that the court may evaluate DOD's claims that certain portions are protected under Exemptions 1, 3, and 6. For one, the court notes that the Supreme Court's decision in Milner abrogated the "'high 2' exemption as claimed by the Department." Furthermore, the court finds that "[n]o argument has been made here that the videos relate to 'issues of employee relations and human resources' nor would such an argument be viable based on the record currently before the Court."
Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.). Holding: Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2. The court denies, in part, OPR's motion for summary judgment to the extent that it relied on "low" 2 to withhold "'case file numbers, document file path names, fax telephone numbers, and direct dial telephone numbers assigned to specific DOJ staff.'" The court comments that "OPR's supporting declarations were prepared before [the Supreme Court's decision in] Milner [v.Department of the Navy] and therefore do not address whether [these items] are related solely to the office's internal personnel rules and practices." Accordingly, the court "allow[s] the defendant an opportunity to reconsider its reliance on Exemption 2 in light of Milner.
Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court concludes that "[a]s other judges in our court have concluded previously, [Geographical Drug Enforcement Program identifier codes], [Narcotics and Dangerous Drugs Information System], telephone, and fax numbers are properly withheld [by DEA] pursuant to Exemption 2."
Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.). Holding: Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search. The court notes that, due to the Supreme Court's decision in Milner v. Department of the Navy and becauseBLM used Exemption 2 in conjunction with other exemptions, Exemption 2 "is no longer at issue in this case."
Kelly v. U.S. Census Bureau, No. 10-4507, 2011 U.S. Dist. LEXIS 100279 (N.D. Cal. Sept. 7, 2011) (White,J.). Holding: Granting defendant's motion for summary judgment on the basis that defendants' searches were adequate and that they properly withheld information pursuant to Exemption 2 and Privacy Act Exemption (k)(6). The court holds, without analysis, that the responsive documents were properly withheld under Exemption 2 and Privacy Act Exemption (k)(6).
Skinner v. DOJ, No. 09-725, 2011 U.S. Dist. LEXIS 94450 (D.D.C. Aug. 24, 2011) (Friedman,J.). Holding: Granting, in part, defendants' renewed motion for summary judgment based on its withholdings under Exemptions 6, 7(C), and 7(E); denying, in part and without prejudice, defendants' motion for summary judgment with respect to information withheld under Exemption2. In light of the recent Supreme Court's ruling in Milner v. Department of the Navy, the court denies, without prejudice, defendants' motion for summary judgment with respect to internal computer codes, which were withheld under "high 2."
Nat'l Day Laborer Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.). Holding: Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney-client privileges. As preliminary matter, the court notes that plaintiffs do not challenge defendants' claim of Exemptions 2 and 7(E) and, accordingly, "have waived any argument that the exemptions were improperly asserted." As such, the court grants summary judgment to the defendants with respect to "their assertions of Exemption 7(E) throughout the production." In consideration of the Supreme Court's decision in Milner, the court "also grant[s] summary judgment to defendants on their assertions of Exemption 2, where such reference is to what was formerly known as Low 2." The court notes that documents for which only High 2 was asserted "will be addressed at a later date."
Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin,Mag.). Holding: Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F). In light of the Supreme Court's recent decision in Milner, the court finds that Exemption 2 is inapplicable because the withheld information "[b]y no stretch of the imagination . . . relate[s] to 'personnel rules and practices' as that term is most naturally understood." The records instead "concern inmate discipline issues, treatment of inmates and post-incident summaries of actions taken during a prison riot, not the workplace rules governing prison employees or the treatment of prison employees."
Raher v. BOP, No. 09-526, 2011 WL 2014875 (D. Or. May, 24, 2011) (Stewart, Mag.). Holding: Granting, in part, plaintiff's motion for summary judgment with respect to records withheld under Exemptions 3, 7(E) and 7(F) and certain records withheld pursuant to Exemption4; concluding that an evidentiary hearing is necessary to resolve a factual dispute with respect to certain records withheld under Exemption 4; and ordering that BOP supplement the record with regard to its search for certain documents. In light of the Supreme Court's decision in Milner v. Department of the Navy, the court finds that "BOP cannot rely on the High 2 Exemption to withhold any of its documents, and [plaintiff] is granted summary judgment as to Exemption 2." The court notes, however, that "BOP has now taken appropriate action to produce documents withheld based solely on the High 2 Exemption."
Benavides v. BOP, No. 09-2026, 2011 WL 1195800 (D.D.C. Mar. 30, 2011) (Roberts,J.). Holding: Granting BOP's motion for summary judgment in part and denying in part without prejudice and denying plaintiff's motion. "[T]he Court treats as conceded the BOP's arguments with respect to the adequacy of its search for records responsive to plaintiff's FOIA requests and its decision to withhold user identification codes under Exemption 2" where plaintiff's opposition states that it challenges "only the withholdings" related to certain telephone recordings.
ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik,J.). Holding: Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure. In light of the Supreme Court's recent decision Milner v. Department of Navy, "[d]efendant concedes that the investigative techniques and guidelines it has withheld do not fall within [the] limited [scope of Exemption2.]"
Donnegan v. USPS, No. 10-706, 2011 WL 818871 (W.D. Pa. Mar. 2, 2011) (Ambrose, J.). Holding: Granting USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability. The court grants USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability. The court agrees with the USPS's invocation of Exemptions 2, 3 and 5 and cites to other court decisions which affirmed agencies' withholding of various employment application information and hiring criteria. The court denies plaintiff's request to review the exam material in camera, determining that "[p]laintiff cites no law for this 'scenario' and [the court] find[s] no support in the law for it either." The court concludes that "[p]ermitting a review of documents visually is, in essence, the same result as producing the document in hard copy."
Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.). The court holds that, with respect to four categories of responsive documents, BOP has failed to justify its withholdings pursuant to Exemptions 2, 6 and 7(C). For one, the court finds that BOP "has made no attempt at showing that the information withheld under Exemption 2 – apparently the EEOC file numbers – was for predominantly internal purposes or 'that disclosure may risk circumvention of agency regulation, or that the material relates to trivial administrative matters of no public interest.'" In fact, the court notes that "in a case such as this one where the number of responsive pages produced climbs above 11,000, the EEOC files numbers may very much be in the public interest as a means for the effective organization and dissemination of the requested information."
Vazquez v. DOJ, No. 10-0039, 2011 WL 474411 (D.D.C. Feb. 10, 2011) (Leon, J.). As an initial matter, the court finds that "the '[i]nformation detailing which law enforcement agencies query the NCIC database for information is not known to the public,' [ ] thereby satisfying the requirement that the information be predominantly internal" under Exemption 2. The court then determines that "DOJ justified its Glomar response by showing" "how the requested information relates to the FBI's practice of maintaining and exchanging information pertinent to law enforcement investigations and how a targeted individual could use such information to circumvent detection and/or contravene criminal statutes."
Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.). The court concludes that the FBI properly withheld "confidential source symbol numbers and confidential source file numbers" pursuant to Exemption 2. The court cites to the FBI's declarations that describe how source identifiers are "internal administrative tools [used by the FBI] to protect the identity of confidential sources and to facilitate the exchange of information provided by such sources." Additionally, the release of the identifiers could compromise identity of sources, "endanger the lives of those sources and their families and associates" and "impede the FBI's effectiveness in gathering confidential information."
EPIC v. DHS, No. 09-2084, 2011 WL 93087 (D.D.C. Jan 12, 2011) (Urbina, J.). The court holds that defendant properly withheld security training materials and 2,000 images created by body scanning technology, some of which were used as training materials, pursuant to "high" 2. As a preliminary matter, the court treats as conceded TSA's assertion that it properly withheld "non-image" training materials where plaintiff did not contest the withholding. As to images at issue, despite plaintiff's contention that those "images do not constitute 'personnel rules or internal practices of the agency,'" the court finds that they "can be exempt under 2-high [because] they are so closely related to TSA's rule or practice that their disclosure could reveal the rule[s] or practice[s]" used by TSA to enforce transportation security. Because the images "would reveal TSA's detection standards, the court concludes that they relate to the rules and practices of TSA." Additionally, the court notes that "plaintiff does not dispute that the images were prepared solely for internal review and use within TSA" and, accordingly, they are "'used for predominantly internal purposes.'"
Furthermore, the court affirms TSA's assessment that "the disclosure of the images at issue may provide terrorists and others with increased abilities to circumvent detection by TSA and carry threatening contraband onboard an airplane, undoubtedly violating countless penal statutes and regulations" and, therefore, concludes that the agency "has met its burden of demonstrating that the release of the images would allow individuals to circumvent the law."
Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.). The court finds that defendants properly withheld "information related to a security system" pursuant to Exemption 2.
Riser v. Dep't of State, No. 09-3273, 2010 U.S. Dist. LEXIS 112743 (S.D. Tex. Oct. 22. 2010) (Ellison, J.). The court finds that a two-page document, INV-50, which is used by OPM in connection with background investigations, does not qualify as "'predominantly internal'" within the meaning of Exemption 2. The court concludes that "[a]lthough INV-50 discusses the guidelines used by OPM itself in processing agencies' requests for background investigations, it does not exist for internal use by OPM, but rather entirely for the use of other agencies."
Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). The court holds that the FBI properly asserted "high 2" and Exemption 7(E) to withhold an internal questionnaire because its disclosure "undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire." The court also notes that "even if the names of the targets are redacted, people knowledgeable of the facts might still be able to figure out the overall 'pattern,' which would facilitate the 'circumvention of agency regulations.'" Additionally, the court determines that FBI properly withheld "information pertaining to the internal dissemination of information" and "information relating to the dates and types of investigations as well as the basis for initiating them," under "high 2" because disclosure of such information would allow individuals to circumvent agency regulations and/or investigations. The court holds that the FBI also properly invoked Exemptions 2 and 7(E) to withhold information pertaining to investigative tools and techniques. The court observes that "contrary to Plaintiffs' arguments, Exemption 2 may be invoked even with respect to publicly-known investigative techniques and procedures" and also finds "little support for Plaintiffs' allegations that the non-disclosure is improper because Defendants have not accounted for allegedly illegal activities."
Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Based on ATF and the FBI's representations and "absent any substantive challenge from plaintiff, the court finds that defendants properly asserted Exemptions 2 (high) and 7(E) to protect "firearms toolmark examination techniques and search and arrest warrant techniques," "'a form used by FBI [agents] to report investigative accomplishments,'" and "'procedures and techniques used by the FBI [agent] during plaintiff's and other primary subjects' [undercover] drug distribution investigation.'"
The court holds that, pursuant to "low 2," ATF and DEA properly withheld internal file numbers, administrative codes, laboratory case numbers, picture file numbers and an operational telephone number that are of no genuine interest to the public. Additionally, the court finds that ATF properly asserted "high 2" to protect "sensitive code and computer information" associated with federal and local law enforcement databases. The FBI's properly invoked "high 2" to withhold "a cooperative witness file number" on the basis that disclosure "'could ultimately identify the source,'" "'would not serve any public interest . . . [and] would impede the effectiveness of the FBI.'" The court also concludes that DEA appropriately withheld "informant identifier codes" and other internal codes, which indicate certain information related to the criminal investigation of plaintiff, pursuant to "high 2."
Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.). Exemptions 2 & 7(E): The court concludes that the FBI properly withheld informant codes and the file numbers associated with those codes under Exemption 2 as they are "'a matter of internal significance in which the public has no substantial interest.'" However, with respect to the FBI's decision to redact the "current" number of informants from certain responsive documents pursuant to Exemptions 2 and 7(E), the court notes that "[i]t is difficult to imagine how disclosure of the number of individuals informing on the Mafia in the 1960s would create a risk of circumvention of the law in the 2010s." Accordingly, the court finds that the FBI may "attempt to justify withholding" any numbers that "may reasonably be characterized as 'current,'" but may not withhold any "[r]eferences having only historical significance." The court also holds the "Exemption 2 does not apply to operational funds in this case," rejecting the FBI's "cursory" argument that individuals could exploit the information to "'to exhaust the FBI's funding of a particular investigation.'" Lastly, the court determines that "the FBI has provided the Court with no means by which it can determine whether [certain] information withheld [under Exemptions 2 and 7(E)] relates to techniques whose disclosure could result in evasion of the law; [where it] has not made even a cursory attempt to describe the type of techniques and procedures . . . and the context of the redactions reveals little to nothing."
ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20, 2010) (Walton, J.). ICE properly invoked "high" 2 to "'withhold information that includes intake procedures, medical procedures and suicide prevention at detention centers, detention center staffing schedules and shift reports, and e-mails related to detainee deaths.'" Given ICE's subsequent processing of these records in order to release portions of them, the court rejects plaintiff's purely speculative challenges to ICE's withholdings, concluding "that disclosure of the withheld information would threaten the security of ICE policies and procedures set forth in the records."
Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). The court orders the disclosure of certain information withheld pursuant to "low 2," finding that "[w]hile it appears that [the] records may be 'used for predominantly internal purposes,' . . . the defendant has not shown that 'the material relates to trivial administrative matters of no genuine public interest.'" The court further notes that "[i]t is axiomatic that matters that the SEC determines worthy of investigation are not trivial, especially when it is the function of the defendant to ferret out fraud." However, the court finds that to the extent that certain e-mails regarding "'the logistics of opening [an investigative matter]'" might contain information that "concerns internal rules and practices, that information may be redacted."
Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). The court determines, based on its in camera inspection, that USMS properly withheld the names of investigative databases, noting that it had ruled in an earlier opinion in connection with this case that disclosure "would reveal how the USMS uses databases and conducts investigations, thereby allowing fugitives to circumvent investigative procedures." USMS properly asserted Exemption 7(E) to withhold its methods for conducting threat assessments because disclosure "'would allow other threatening parties to bypass specific investigative channels and would ultimately allow such threateners to circumvent the law and evade detection and develop countermeasures to USMS protective arrangements.'" Likewise, USMS was correct to withhold "information that reveals how the USMS's threat assessment procedures were applied to [plaintiff]," because "disclosing the use of these internal procedures would allow others to circumvent them." The court also notes that the withholding of an internal website address pursuant to Exemption 2 was appropriate.
Raher v. BOP, No. 09-526, 2010 WL 3488975 (D. Or. Sept. 2, 2010) (Stewart, J.) . Exemption 2 (high): The court finds that BOP has not adequately justified its assertion of "high 2" to withhold certain contract documents. As an initial matter, the court notes that these records "do not appear to be inherently internal" and concludes that "BOP must show that the contested information bears on interpretations or instructions involving internal matters of the agency and was not written to regulate the public." Additionally, BOP's "conclusory statements that a security risk exists categorically for all information related to staffing, computers, security, and operations" is not sufficient "to permit the court to determine whether disclosure reasonably presents a legitimate, serious risk of circumvention." With respect to the withholding of past performance records related to a company engaged in the private prison industry, the court comments that "BOP fail[ed] to associate the precise reason for nondisclosure with specific documents or parts of documents [thereby] compromis[ing] [plaintiff's] ability to advocate for release of that information." The court rejects plaintiff's argument that records should be disclosed because BOP did not promise confidentiality to its submitters, nor did they request it. The court finds that confidentiality is not a requirement of Exemption 2. Lastly, the court orders BOP to submit supplemental declarations to further support its invocation of Exemption 2.
Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court determines that the FBI properly asserted Exemption 2 to protect "'the secure website address of the FBI's [internal] Law Enforcement Online (“LEO”) computer system,'" the disclosure of which "'could impede the FBI's effectiveness."
Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). DEA did not adequately justify its assertion of Exemption 2 where the Vaughn index indicates that it was invoked "to withhold codes assigned to confidential informants, . . . yet the declaration does not refer to Exemption 2 or otherwise explain the agency's decision to withhold information under [it]." The court adds that "[i]t is unclear whether the DEA relies solely on Exemption 2 to withhold confidential informant codes, or whether Exemption 7(D) may also be a basis for non-disclosure."
Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). The court concludes that the CIA provided insufficient detail to support its withholdings under "low 2" to protect "administrative, routing, and handling notations" where the declaration "merely offers one conclusory paragraph." However, the court notes that "most, if not all," of this information is covered by Exemptions 1 and 3.
Int'l Counsel Bureau v. DOD, No. 08-1063, 2010 WL 2724201 (D.D.C. July 12, 2010) (Bates, J.). The court finds that DOD did not meet its burden to demonstrate that an audiorecording and videos depicting "forced cell extractions ('FCEs')" qualify for protection under "high 2." Although both agency declarations state that disclosure of the videos pose a risk of circumvention, "[n]either … offers any assessment as to the likelihood that such harms will result if the videos are released."
Am. Fed'n of Gov't Employees, Local 812 v. Broad. Bd. of Governors, No. 09-1191, 2010 WL 1976747 (D.D.C. May 18, 2010) (Huvelle, J.). BBG appropriately withheld "'its internal security operating instructions, including instructions BBG security guards are given regarding appropriate security procedure." If such material were disclosed, it would risk circumvention of the agency's security procedures.
Davis v. DOD, No. 07-492, 2010 WL 1837925 (W.D.N.C. May 6, 2010) (Conrad, C.J.). "DOD has sufficiently explained why the (b)(2) high exemption applies. DOD has articulated that the manner in which hunger strikers are secured during involuntary feedings is a non-medical, security procedure. It argues that any more detailed explanation shedding light on the procedure would risk revealing the information that the exemption was intended to protect. It further contends that disclosure of this information would risk circumvention of those procedures by detainees and threaten the safety of the personnel and detainees involved. The Court accepts this argument, especially in light of the importance of deference to the Executive regarding an issue that bears upon national security." Plaintiff's claim that DOD "has failed to index or account for some information that it withheld regarding the method for securing patients," amounts to "no more than an unsubstantiated conclusion."
However, "DOD has not provided the Court with enough information to determine whether, under the three–part test for official acknowledgment, it officially acknowledged [previously] the information that it withheld from Plaintiff regarding securing patients." DOD is ordered to provide these documents for in camera review in order for the court to determine whether these methods for securing hunger strikers have been previously disclosed.
Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). Exemptions 2 & 7(F): The court finds that BOP has not provided sufficient information to justify its use of these two exemptions. BOP's declaration "has not adequately described the redacted information and explained the possible harm in disclosure." BOP is ordered to provide the withheld material for in camera review.
Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.). CIA's new declarations explain that the records withheld pursuant to "high" 2 contain information on CIA security practices and that "disclosure of any of this information could lead, through a 'mosaic' approach, to circumvention of the CIA's regulations on the security clearance process, pre-travel briefings, and agency background checks." CIA has also now explained that some of its use of Exemption 2 was for information, including "internal employee rating criteria, details of administrative house- and file-keeping, and other personal employee data, [which] falls under the 'trivial' prong of Exemption 2."
Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E). The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.
ACLU v. DOJ, No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson, J.). Exemptions 2 & 7(E). DOJ properly withheld "guides or samples that AUSAs use in drafting applications, orders and declarations to obtain authorization for cell phone monitoring. These documents are not final applications or orders, so it is quite evident that they are 'predominantly internal.' And, the government provides adequate affidavit support for its argument that release of the redacted information would risk circumvention of the law because it would reveal information about how co-conspirators can be identified, the conditions under which cell phone tracking would not work, and details about the conditions necessary for cell phone tracking to be effective." DOJ also appropriately withheld "information on law enforcement techniques that are not readily available to the public." "As the government correctly points out, the first prong of Exemption 7(E) permits withholding of information that would disclose techniques and procedures for law enforcement investigations or prosecutions without a showing [of] risk of circumvention." The withheld records "reveal limitations of the law enforcement techniques, details about what the cell phone records can capture, and uses of the records that are not obvious or well-known."
Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). Exemptions 2 & 6. Defendant has not provided the court with enough information to justify its withholding of information describing structured settlements. This information includes number of payments, amount received, dates that checks were written, and beneficiary name. "Defendant's declarations contain no details; they do not explain how or why these records are internal, nor do they explain the kind of cases to which the records are connected." Defendant will be given an opportunity to supplement its filings on this issue.
Similarly, defendant did not adequately justify its decision to withhold alien registration numbers or "non-employee identification numbers 'assigned by the government to identify private individuals.'" Defendant offers no details on "how disclosure could lead to identity theft." The court agrees with plaintiff that defendant "failed to specify the privacy interest" for most of the withheld numbers, nor has it demonstrated to the court that it could not segregate out releaseable from protected information. Defendant will be given an opportunity to supplement its filings on this issue.
Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). DOJ appropriately withheld user IDs for its internal computer network [JCON]. "It is undisputed that JCON IDs relate solely to the [Civil] Division's internal rules and practices regarding use of the JCON system. Further, there is no public interest in the JCON IDs. Indeed, plaintiffs seek disclosure of the JCON ID fields solely to determine which attorney is handling each filed case, not because any JCON ID intrinsically discloses anything about the workings of the agency. Even if there were an identifiable public interest in a user's login information, defendant has established that disclosure of JCON IDs would violate its network security policies."
Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). Exemptions 2 & 7(E). Defendant properly asserted these two exemptions to withhold "its internal assessment ratings of publicly known law enforcement techniques and procedures." Plaintiff's claim that the exemptions only apply to "techniques or procedures that are not generally known to the public" is incorrect. The FBI's "investigative techniques 'are rated numerically to memorialize their effectiveness' and . . . '[i]f the form contains a numerical rating adjacent to one or more of the listed investigative techniques, all columns of ratings are excised in order to preclude disclosure of both the particular investigative techniques used in the investigation and the effectiveness of the individual techniques.'"
Exemptions 2 & 7(D). "On their face, these exemptions justify withholding the agency's assigned identification code number for a [confidential source], and the information that was gleaned from the [confidential source]."
Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). The court finds that defendant OPR's justification for its use of high 2 to withhold filing numbers, allegation codes, and location codes is conclusory. "[T]he nature of the information itself does not make clear how the public's knowledge thereof would risk circumvention of agency regulation, i.e. in this instance, how such knowledge would allow an individual to 'circumvent the security of OPR's computerized databases' and obtain unauthorized access thereto. OPR provides no additional information in that regard, and, indeed, does not even define the terms 'location code' and 'allegation code.'" Similarly, OPR has not justified any use of low 2 to withhold this information, information whose absence plaintiff asserts will prevent him from cross-referencing the released documents. "Although OPR argues that [plaintiff] needs to explain more clearly his need to cross-reference, [plaintiff's] filings provide sufficient information to allow OPR to meaningfully respond to his asserted need for the additional information he seeks." OPR is given an opportunity to provide further justification.
Sellers v. DOJ, No. 08-0840, 2010 WL 545939 (D.D.C. Feb. 17, 2010) (Kennedy, J.). The FBI properly invoked these two exemptions to withhold portions of an investigative form which defendant uses to rate the effectiveness of certain of its investigative techniques. Plaintiff's assertion that this information may be withheld only as to techniques that are not well-known is incorrect.
Lasko v. DOJ, No. 08-1850, 2010 WL 537551 (D.D.C. Feb. 17, 2010) (Friedman, J.). Defendant DEA appropriately withheld "violator identifier" codes assigned to suspects. Release of this information "'would help identify priority given to narcotic investigations, types of criminal activities, and violator ratings.' . . . With this information, suspects could change their behavior so as to avoid detection and otherwise thwart the DEA's investigative and law enforcement efforts." These sorts of records "fall within the scope of Exemption 2 and routinely are withheld."
Clay v. DOJ, No. 09-0179, 2010 WL 325587 (D.D.C. Jan. 29, 2010) (Walton, J.). Defendant DEA properly asserted "high" 2 to withhold violator identifier codes whose disclosure could cause circumvention of DEA's law enforcement efforts by enabling suspects to "'change their pattern of drug trafficking in an effort to respond to what they determined DEA knows about them.'" DEA also appropriately withheld "internal accounting codes and similar numbers" under "low" 2.
Blackwell v. FBI, No. 09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.). FBI properly withheld information pertaining to procedures it used in the forensic analysis of a computer as well as other documents whose disclosure would have revealed "methods of data collection, organization, and presentation." These procedures are internal and "not known to the public." Moreover, "disclosure potentially would aid others in circumventing future FBI investigations."
Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation). The FAA properly utilized Exemption 2 to withhold material which would have revealed the identity of aircrafts involved in surveillance. "[T]he identity of aircraft involved in aerial surveillance is law enforcement material, which, if disclosed, would jeopardize the effectiveness of that surveillance."
Yonemoto v. VA, No. 06-0378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009) (Kurren, Mag.). VA properly invoked Exemption 2 "low" to withhold various e-mail messages containing discussions involving management and personnel changes in the VA office in Hawaii. The court concludes that “[t]he public could ‘not reasonably be expected to have an interest’ in rumors among agency employees, the tone of an employee’s unsupportive email, whether an employee prefers to work for one person over another, and whether an employee is interested in another position.” Additionally, plaintiff "fails to even address these specific emails in any of his moving papers."
Hussain v. DHS, No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.). With respect to DHS's invocation of "low 2," the court finds that some of the withholdings were "amply supported by the case law." However, DHS did not meet its burden to show that certain "third-party records" were "necessarily so trivial as to be of no public interest." Furthermore, certain generalized explanations in the Vaughn index "are simply insufficient for the Court to determine what type of information was redacted, much less whether the information is claimed to be exempt under the low 2 or high 2 exemption." Similarly, USCIS's justifications for withholding information under "high 2" were often deficient. "Even if the Court were to conclude that the titles of the documents are adequate to show that the documents are primarily internal, the government must still prove that disclosure may risk circumvention of agency regulation."
Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.). The court finds that Exemption 2 was properly invoked to protect government e-mail addresses and that plaintiff waived his request for this type of personally identifying information in an earlier court filing.
Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). Plaintiff does not challenge defendant's use of Exemption 2 to withhold the office phone number of an IRS employee as well as the Westlaw ID number of an agency employee.
Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2009 U.S. Dist. LEXIS 109303 (D.D.C. Nov. 23, 2009) (Leon, J.). "[I]nternal file numbers . . . are properly withheld."
Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). The court finds that defendant has not met its burden of demonstrating that the withheld information is too trivial to be of any legitimate public interest. It must either make this showing in its supplemental filing or release the withheld information.
Zavala v. DEA, No. 08-2215, 2009 WL 3617481 (D.D.C. Nov. 4, 2009) (Friedman, J.). DEA properly withheld Geographical Drug Enforcement Program (G-DEP) codes and NADDIS numbers. These codes and numbers provide identifiers for specific suspects and information about their alleged crimes. Release of the former "could help a suspect 'identify priority given to narcotic investigations, types of criminal activities, and violator ratings,'" while release of the latter would provide a requester with "'a means of finding out not only drug violator information about the subject but also personal information about [him], relatives and any third parties identifiable with the violator.'" DEA also properly withheld Originating Agency Identification numbers (ORI). These numbers "are 'internal to law enforcement agency operations' and their 'disclosure could enable violators to gain unauthorized access to, as well as compromise data in, law enforcement communications systems.'" Finally, DEA also appropriately withheld internal telephone and fax numbers.
Kurdykov v. U.S. Coast Guard, No. 07-1131, 2009 WL 3103779 (D.D.C. Sept. 29, 2009) (Walton, J.). "The Court concludes that the agency adequately explains that the administrative codes [it withheld] relate to law enforcement and intelligence matters, that the codes are predominantly used for internal purposes, and that their disclosure may risk circumvention of the laws and regulations it is obliged to enforce."
Abou-Hussein v. Gates, No. 08-783, 2009 WL 3078876 (D.D.C. Sept. 25, 2009) (Leon, J.). "[T]he Court concludes that the defendants are entitled to summary judgment because plaintiff has wholly failed to adduce any evidence raising a genuine dispute as to defendants' compliance with FOIA."
Keep Yellowstone Nuclear Free v. DOE, No. 06-205 (D. Wyo. Opinion on Sept. 24, 2007, supplemental order issued Sept. 14, 2009). The court finds that the accident scenario documents at issue do not constitute documents related solely to the internal personnel rules and practices of the agency. Instead, the documents are "designed to establish and discuss the safety of the ATR and its continued operation." To treat these as documents related solely to internal personnel rules and practices would give an unwarranted breadth to Exemption 2.
Roth v. DOJ, No. 08-822, 2009 WL 3019781 (D.D.C. Sept. 23, 2009) (Huvelle, J.). Based on an in camera review of four documents, the court determines that the FBI properly asserted Exemption 2 to withhold confidential source symbol numbers because "such information is administrative in nature and is of no genuine public interest."
Penny v. DOJ, No. 08-1667, 2009 WL 2929243 (D.D.C. Sept. 14, 2009) (Urbina, J.). Exemption claims: The court treated defendant's exemptions claims as conceded where "plaintiff d[id] not dispute the defendant's justification for the redactions, instead maintaining that the released records were not responsive to his request." The court further noted that, in any case, defendant's assertions of Exemptions 2 (low), 7(C) and 7(F) were justified.
Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). The court finds that BOP cannot invoke the "low" aspect of Exemption 2 to withhold recommendations made to prison staff "regarding implementation of appropriate security measures when interacting with Plaintiff" because "[u]nique prison security measures are not trivial matters in which the public holds no genuine interest." However, that information was properly protected by Exemption "high" 2, because "BOP has shown that disclosing such information to Plaintiff could significantly risk circumvention of BOP regulations or applicable statutes." BOP properly withheld inmate base count numbers under "low 2." BOP also "properly redacted shift times, staff names, and staff position titles from Daily Assignment Rosters" under Exemption "high" 2, because "not only would disclosure of the requested information potentially jeopardize the life or personal safety of the staff," but its release could also create a risk of circumvention with regard to agency regulations and statutes "because public or inmate knowledge of [prison] staffing patterns could assist in escape efforts or facilitate other disturbances both inside and outside prison walls." Likewise, "BOP properly applied Exemption 'high' 2 to redact specific times and locations of area shakedowns" for inmate contraband.
Bretti v. DOJ, No. 08-450, 2009 WL 2371508 (N.D.N.Y. Aug. 4, 2009) (Hurd, J.). The FBI appropriately used this exemption to withhold confidential source symbol numbers and source file numbers.
Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). DEA correctly applied this exemption to withhold "file numbers, geographical drug enforcement program identifiers and a distribution division identifier for the report, all of which are related to Defendant's rules and practices for its personnel for which the public has no legitimate interest and they are routine matters of merely internal significance for Defendant as an agency."
Antonelli v. BOP, No. 07-2016, 2009 WL 1593701 (D.D.C. June 9, 2009) (Kollar-Kotelly, J.). BOP properly withheld "'internal procedures related to [its] Administrative Remedy Program,'" in some cases pursuant to Exemption 2, and in others pursuant to both 2 and 7(F). As to a different part of plaintiff's request, BOP failed to justify its use of these two exemptions to withhold four pages of material "identified only as '[h]andwritten undated documents' and one-page identified only as a '[d]ocument/drawing.'" BOP did "not state which of the information contained therein is exemption 2 material and which is exemption 7(F) material and correlate said material with the asserted harm."
Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.). Defendant has shown that its use of these exemptions to withhold information was proper.
Kensington Research & Recovery v. HUD, No. 08-1250, 2009 U.S. Dist. LEXIS 39797 (N.D. Ill. May 8, 2009) (Gottschall, J.). Plaintiff's argument that Exemption 2 does not apply to the documents in question "rest[s] upon an overly narrow interpretation of the scope of Exemption 2." The court rejects plaintiff's claim that Exemption 2 only covers "'rules and practices.'" Instead, the exemption also covers documents "'related . . . to . . . rules and practices.'" The withheld document "is related to the rules and practices of HUD in that it is a mechanism by which HUD fulfils its statutory mandate to refund . . . monies to eligible homeowners," and it is internal "in that it 'does not purport to regulate activities among members of the public.'" HUD claims that "the . . . form functions like a coupon or application form intended solely for use by the eligible homeowner," and that "release under the FOIA would make it available to any person who requested it which would increase the likelihood of fraudulent claims. . . ." HUD has provided past examples of fraudulent use of these forms and plaintiff fails to rebut HUD's evidence.
Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). As plaintiff's only challenge to BOP's use of this exemption in one of his requests is based on a factually incorrect assertion, "it is not necessary to address his legal argument." As to another of his requests, BOP properly withheld computer user identification numbers.