The United States Department of Justice Department of Justice Seal The United States Department of Justice
Search The Site
Court Decisions
Exemption 3

Court of Appeals Decisions

Judicial Watch, Inc. v. SSA, No. 11-5246, 2012 WL 6134933 (D.C. Cir. Dec. 11, 2012) (Kavanaugh, J.). Holding: Affirming the district court's determination that the requested information is protected from disclosure by Exemption 3 and 26 U.S.C. § 6103(a). The D.C. Circuit finds that the requested information satisfies the definition of "return information," which is protected from disclosure by 26 U.S.C. §6103(a). The court explains, "[r]eturn information is defined to include any 'data' that is 'furnished to' the IRS" and "[a]n employer's identity is 'data' furnished to the IRS on the Form W-2." The D.C. Circuit also rejects the appellant's assertion that this information falls within the exception known as the Haskell Amendment, which excludes "'data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer'" from the definition of "return information." That court finds that "[t]here is no basis for reading the Haskell Amendment to apply only to the employees' identities," and that the language "'a particular taxpayer'…includes the employer."

Caruso v. ATF, No. 11-35946, 2012 WL 3727601 (9th Cir. Aug. 29, 2012)(unpublished disposition). The court determines that ATF properly withheld records pursuant to Exemption 3 in connection with the Appropriations Act of 2010. "The Appropriations Act explicitly bars the ATF from disclosing any information required to be kept by licensees under this section. In sum, the information [plaintiff-appellee] seeks squarely falls under the statutory language of the Appropriations Act and within the scope of Exemption 3."

Newport Aeronautical Sales v. Dep't of the Air Force, No. 10-5037, 2012 WL 2892372 (D.C.Cir. July17, 2012) (Garland, J.). Holding: Affirming the district court's decision that 10 U.S.C. §10(a) is a withholding statute under Exemption 3 and that the Air Force properly withheld the technical orders at issue under that statute. The D.C. Circuit holds that the Air Force properly withheld certain technical orders pursuant to Exemption 3 in conjunction with 10 U.S.C. §130(a), which permits the withholding of "'technical data with military or space application . . . , if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 or the Arms Export Control Act.'" As a preliminary matter, the D.C. Circuit concludes that "[b]ecause 'technical data with military or space application,' as further defined by subsection 130(c), plainly sets forth a 'particular type [] of matter[] to be withheld,' 5 U.S.C. §552(b)(3)(A)(ii), subsection 130(a) readily qualifies as an Exemption 3 statute." The D.C. Circuit then finds that "the withheld information plainly falls within the coverage of §130(a)" because "[t]here is no disagreement that the information [plaintiff] seeks qualifies as 'technical data with military or space application,' and that it cannot be exported without a specific license under the relevant export statutes." The D.C. Circuit rejects plaintiff's primary argument that "Congress intended §130(a)'s withholding authority under FOIA to be limited by regulation to 'sophisticated technologies,' which it equates with the 'critical technologies' that it maintains are excluded from the purview of Directive 5230.25." Contrary to plaintiff's argument, the D.C. Circuit finds that the "[t]here is nothing in the text of §130(b) that evidences a congressional intent to restrict by regulation the broad authorization to withhold data from FOIA disclosure that §130(a) grants the Secretary of Defense." The D.C. Circuit determines that, to the extent that §130(b) directs the Secretary to promulgate regulations regarding release of technical data to qualified contractors, "[t]his cannot be reference to disclosure under FOIA" because "'FOIA does not make distinctions based on who is requesting the information.'" As such, the D.C. Circuit holds that "a provision that contemplates releases only to U.S. allies and contractors cannot be read as limiting the Defense Department's withholding authority under FOIA." The D.C. Circuit also dismisses plaintiff's argument that "the legislative history of §130 demonstrates that Congress intended the Defense Department to issue regulations under §130(b) that would narrow §130(a)'s withholding authority," finding that the statute's "text and structure . . . plainly refute [plaintiff's] position."

Additionally, the D.C. Circuit rejects plaintiff's argument that Directive 5230.25 should be treated as an Exemption 3 statute, concluding that plaintiff's reliance on its ruling in Wisconsin Project on Nuclear Arms Control v. Department of Commerce, in which the court treated an executive order as an Exemption 3 statute, is inapposite. The D.C. Circuit concludes that, unlike Wisconsin Project where the withholding statute had lapsed, "[h]ere, 10 U.S.C. §130 is in full effect, and there is no reason to look elsewhere to assess the Air Force's withholding authority." Further, the D.C. Circuit finds that in Wisconsin Project, the "'the executive order 'continued precisely the provision originated and written by Congress'" whereas here plaintiff "maintains that the Directive only authorizes withholding of data that discloses critical technology, a limitation absent from the provision written by Congress." Moreover, "even assuming arguendo that the Air Force is violating Directive 5230.25 by restricting the disclosure of technical information that does not depict 'critical technology,' that practice does not violate FOIA."

ACLU v. DOJ, Nos. 10-4290, 10-4289, 10-4647, 10-4668, 2012 WL 1829579 (2d Cir. May21, 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 affirms the judgment of the district court that defendants properly withheld "records related to the contents of destroyed videotapes of detainee interrogations and a photograph of high-value detainee Abu Zubaydah in CIA custody" pursuant to Exemption 3 in conjunction with Section 102A(i)(1) of the National Security Act of 1947, which protects intelligence methods, and Section 6 of the Central Intelligence Act of 1949, which protects CIA functions. As a preliminary matter, the Second Circuit notes that "[p]laintiffs do not dispute that these statutes qualify as exemption statutes under Exemption 3." The Second Circuit rejects plaintiffs' argument that "records regarding the use of waterboarding in particular instances do not relate to an 'intelligence method' because the President has declared the practice of waterboarding illegal." The Second Circuit discounts plaintiffs' reliance on the Supreme Court's decision in CIA v. Sims, finding that it "offers no support for Plaintiffs' proposed limitation upon the CIA's ability to protect information relating to intelligence methods." Rather, the Second Circuit finds that "the Sims Court emphasized that the NSA 'vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure,' and that judicial 'narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering – the very reason Congress entrusted this Agency with sweeping powers to protect its 'intelligence sources and methods.'"

Contrary to plaintiffs' argument, the Second Circuit finds that the provision of the National Security Act requiring the CIA Director to "'ensure compliance with the Constitution and laws of the United States'" does not restrict "the Director's obligation under section 102A(i)(1) to 'protect intelligence sources and methods from unauthorized disclosure,' . . . and the concomitant rights under FOIA to decline to disclose." The Second Circuit notes that "[a]gain, Sims expressly rejected any limitation on the CIA's duty to protect information 'beyond the requirement that the information fall within the Agency's mandate to conduct foreign intelligence.'" Moreover, the Second Circuit finds that conducting an "'illegality' inquiry" in FOIA actions where "the government seeks to withhold information related to an intelligence method" would be impracticable and "clearly beyond the scope and purpose of FOIA." Based on itsin camera review of the documents at issue, the Second Circuit states that it "ha[s] no difficulty in concluding . . . [that the records] relate to an intelligence method within the meaning of the NSA, and, accordingly, may be withheld." Moreover, the Second Circuit observes that "[t]he parties agree that waterboarding was an interrogation method used by the CIA in connection with its foreign intelligence-gathering activities" and finds that the agency's declarations "are not contradicted by the record or undermined by any allegations of bad faith."

Additionally, based its in camera review, the Second Circuit finds that the withheld "photograph depicting a person in CIA custody discloses far more information than the person's identity" and "agree[s] with the district court that the image at issue here [was appropriately protected because it] conveys an 'aspect of information that is important to intelligence gathering,' . . and that this information necessarily 'relates to' an 'intelligence source or method.'"

Elec. Priv. Info. Ctr. v. NSA, No. 11-5233, 2012 WL 1654943 (D.C. Cir. May11, 2012) (Brown, J.). Holding: Affirming the district court's grant of summary judgment to NSA on the basis that it properly asserted the Glomar response in conjunction with Exemption 3. The D.C. Circuit affirms the district court's decision that found that NSA properly asserted the Glomar response in conjunction with Exemption 3 and Section 6 of the National Security Act, which protects information pertaining to NSA's organizations, functions, or activities. At the outset, the court notes that "[b]ecause Section 6 of the National Security Agency Act 'is a statute qualifying under Exemption3,' . . . the only question is whether the withheld material satisfies the criteria of the exemption statute, i.e., whether acknowledging the existence or nonexistence of the requested material would reveal a function or an activity of the NSA." The D.C. Circuit rejects plaintiff's argument that the NSA Act would not protect "unsolicited communications from Google to NSA." Rather, the D.C. Circuit agrees with NSA that "any information pertaining to the relationship between Google and NSA would reveal protected information about NSA's implementation of its Information Assurance mission." The D.C. Circuit determines that "[t]he existence of a relationship or communications between the NSA and any private company certainly constitutes an 'activity' of the agency subject to protection under Section 6." Moreover, the court finds that "[e]ven if [plaintiff] is correct that NSA possesses records revealing information only about Google, those records, if maintained by the agency, are evidence of some type of interaction between the two entities, and thus still constitute an NSA 'activity' undertaken as part of its Information Assurance mission, a primary 'function' of the NSA." The D.C. Circuit further notes that if such information were disclosed, private entities "might hesitate or decline to contact the agency, thereby hindering its Information Assurance mission." With respect to plaintiff's challenge to the adequacy of NSA's declaration, the D.C. Circuit finds that "the NSA's affidavit describes which functions and activities would be implicated by disclosure, as well as how acknowledging the existence or nonexistence of requested records would reveal those functions or activities." The D.C. Circuit dismisses plaintiff's contention that "the same logic that requires secrecy in intelligence gathering does not apply to the NSA's Information Assurance mission because it is public knowledge that the U.S.government uses Google applications and that the NSA is investigating security vulnerabilities in Google's commercial products." Rather, the D.C. Circuit declines to draw distinctions between the NSA's various missions and notes that Sections 6 "broadly exempts any information pertaining to the agency's 'activities' or 'functions.'"

Hull v. IRS, No. 10-1410, 2011 WL 3835402 (10th Cir. Aug. 31, 2011) (Baldock, J.). Holding: Rejecting the district court's conclusion that it was jurisdictionally barred from deciding plaintiffs' FOIA claim on the merits; but affirming the district court's judgment in favor of the IRS on the grounds that the IRS properly invoked Exemption 3 with respect to all requested records because they pertained to a third party's return information; and concluding that the district court did not abuse its discretion in refusing to conduct an in camera review. The Tenth Circuit holds that Exemption 3 in conjunction with Section 6103 of the Internal Revenue Code categorically exempts all of the requested information from disclosure. The Tenth Circuit rejects plaintiffs' argument that the information sought pertains to the "operation and administration of U.S. West's pension plan, rather than return information." Here, the IRS has demonstrated that the information submitted by U.S. West through the VCRP qualifies as return information because it "establishes whether the plan has been operating in compliance with the plan's terms or the compliance statement, which, in turn, could affect U.S. West's tax liability, tax-exempt status, or the deductibility of contributions." With respect to plaintiffs' claim that "the IRS has presented no evidence that the requested information was received, collected, or prepared by the IRS with respect to an actual tax return, liability, or deduction," the Tenth Circuit finds that "the Code defines return information broadly, reaching far more than just information that relates to an actual tax return, an imposed liability, or a taken deduction." Rather, the Tenth Circuit notes that Section 6103(b)(2)(A) "protects 'data received by . . . prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possibleexistence, of liability . . . for any tax, penalty, interest, fine forfeiture, or other imposition, or offense.'" Moreover, the Tenth Circuit observes that the Code "appears to take no interest in the Secretary's actual use of the material" and notes that "[t]he statutory definition 'plainly reaches far beyond' information that 'relates to an actual tax return.'" Accordingly, the Tenth Circuit finds that it "need not determine whether the IRS actually used the information U.S. West provided or that it prepared under the VCRP with regard to an existing return or to calculate an imposed deduction or liability in order to conclude that information is return information."

The Tenth Circuit also rejects plaintiffs' argument that "the IRS has not carried its burden of proving all of the requested information constitutes return information because the IRS supplies only conclusory assertions as to the information's content based upon declarations of individuals who admittedly have not looked at the requested information" because the IRS did not conduct a search for responsive documents, given the absence of consent by the taxpayer. First, the Tenth Circuit finds that "Section 6103 no less protects the identity of a taxpayer seeking to protect its own tax-exempt status [than it does] a taxpayer [like the one at issue here] seeking to protect the deductibility of its own contributions to a pension plan by filing a submission with the IRS under the VCRP." Second, the Tenth Circuit observes that "[p]roviding any more details about the specific contents of the 'submission made by U.S. West and pension plan administrators . . .' would surely compromise the confidentiality required by Section 6103." Moreover, the Tenth Circuit comments that relaying that certain types of records were submitted by U.S. West in connection with the VCRP "would not enable Plaintiffs to challenge the IRS's withholding [of] the documents in any greater depth." As to plaintiffs' contention that "the IRS improperly labeled all of the requested information Section 6103 'data,'" the Tenth Circuit finds that "all of the materials describing a pension plan's operational failures and proposed corrections submitted by a taxpayer or person to the IRS under the VCRP are inherently taxpayer-specific." Here, because plaintiffs requested "information pertaining to a specific taxpayer or person," "Plaintiffs would know [any information released] pertains to U.S. West." However, the Tenth Circuit "caution[s] that the IRS's approach in this case [to assert Exemption 3 without conducting a search for responsive records] is only acceptable under FOIA because it has demonstrated Plaintiffs' FOIA request on its face solely seeks U.S. West's return information." The Tenth Circuit concludes that "because Plaintiffs' FOIA request seeks only U.S. West's return information and Plaintiffs have not submitted U.S. West's consent, the IRS has fulfilled its obligations under FOIA and IRS regulations and properly withheld the requested information."

Cent.Platte Nat. Res. Dist. v. USDA, 643 F.3d 1142 (8th Cir. 2011) (Murphy,J.). Holding: Affirming the district court's ruling which granted summary judgment to the USDA on the basis that it properly withheld the requested geospatial data pursuant to Exemption 3 and dismissed plaintiff's Administrative Procedure Act claim. The Eighth Circuit concludes that the district court properly determined that "USDA was not required to disclose the requested GIS data." At the outset, the Eighth Circuit notes that the limited course of de novo review is appropriate "where a withholding statute has given an agency discretion to disclose information that would otherwise be withheld, as opposed to the discretion to withhold data that would otherwise be available." Here, the Eighth Circuit finds that "[t]he district court first properly determined, after de novo review, that the 2008 Farm Bill[, 7 U.S.C. §8791(b)(2)(B),] is a withholding statute for the purposes of FOIA exemption 3." Moreover, "[t]he parties agree that the 2008 Farm Bill is a withholding statute within the meaning of FOIA exemption 3 and that the requested data fell within it." The Eighth Circuit comments that "[t]he district court's de novo review then properly ended" and finds that its "limited de novo review was appropriate here because there was no dispute that the 2008 Farm Bill qualified for FOIA exemption 3 status or that the GIS data fell within the data."

ACLU v .DOD, 628 F.3d 612 (D.C. Cir. Jan. 18, 2011) (Sentelle, J.). The D.C. Circuit affirms the district court's decision that the CIA properly withheld transcripts of Combat Status Review Tribunals and documents submitted by detainees in connection with those hearings pursuant to Exemptions 1 and 3. Public domain/waiver: The Circuit rejects appellant's contention that the withheld information is the same as that contained in "three sets of declassified and released government documents" and a Red Cross report that was leaked to a journalist. Instead, the Circuit finds "[r]eview of the government documents cited by [appellant] supports the CIA's assertion that there are substantive differences between the disclosed documents and the information that has been withheld" and notes that "[d]espite [appellant's] arguments to the contrary, none of these documents contains a comprehensive description of the actual capture, detainment, or interrogation of any specific detainee." With respect to the Red Cross report, the Circuit notes that it is "hard pressed to understand [appellant's] contention that the release of a nongovernment document by a nonofficial source can constitute a disclosure affecting the applicability of the FOIA exemptions." The Circuit finds that "[b]ecause the Red Cross report was not 'made public through an official and documented disclosure,' the information that it contains cannot be considered 'officially acknowledged.'"

The D.C. Circuit also dismisses the appellant's argument that "the redacted information is not exempt from FOIA because the interrogation techniques and conditions of confinement withheld from the requested documents have been prohibited by the President." The Circuit finds appellant's reliance on the Supreme Court's decision in CIA v. Simsinapposite, noting that the decision "says nothing suggesting that the change in the specific techniques of intelligence gathering by the CIA renders unprotected sources and methods previously used." Moreover, the Circuit finds that "[t]o the extent that [appellant's] claim rests on [its] belief that the enhanced interrogation techniques were illegal, there is no legal support for the conclusion that illegal activities cannot produce classified documents." Accordingly, the Circuit concludes that "the President's prohibition of the future use of certain interrogation techniques and conditions of confinement does not diminish the government's otherwise valid authority to classify information about the techniques and conditions and to withhold it from disclosure under exemptions 1 and 3."

The D.C. Circuit rejects appellant's claims that "the redacted information does not qualify as 'sources or methods' under FOIA exemptions 1 and 3 because the government lacks the authority to classify information derived from the detainees personal observations and experiences" and that "indefinite detention cannot be a permissible justification for the classification of information." Noting that pursuant to Executive Order 12,958 the CIA has the authority to classify information that is under the government's control, the Circuit finds that "[t]he fact that the information originated from detainees then in the government's custody has no relevance to the unquestionable fact that the information so obtained is in the government's control." Moreover, the Circuit determines that "[a]ny documents generated in the process of interrogation are in the hands of the government and will remain subject to the government's authority whether the detainees are retained, released, or transferred."

Lastly, the D.C. Circuit finds unavailing appellant's contention that "the government cannot withhold the information under exemption 1 because public release of the information would not damage national security" and likewise rejects appellant's specific objection to the CIA's position "that the redacted information will harm national security because it could be used as propaganda by al Qaeda." The Circuit notes that the CIA "does not rely on the propaganda justification alone," but also "identified four other potential harms" to justify its withholdings. The Circuit concludes that "[e]ven ignoring the propaganda justification, the CIA's affidavits establish that public disclosure of the withheld information 'reasonably could be expected to result in damage to the national security,'" finding that "it is both plausible and logical that the disclosure of information regarding the capture, detention, and interrogation of detainees would degrade the CIA's ability to carry out its mission." Additionally, the Circuit observes that "[t]o the extent that the [appellant] relies on the government's official disclosures [contained in certain previously released memoranda and reports], we have repeatedly rejected the argument that the government's decision to disclose some information prevents the government from withholding other information about the same subject."

The D.C. Circuit concludes that the district court properly "held that the redacted information qualified as 'intelligence sources or methods' under exemptions 1 and 3'" because the CIA's affidavits "explained with sufficient detail why the withheld information qualifies as 'intelligence sources or methods' and adequately described the potential harm to national security that could result from the information's public disclosure" and there is "no evidence of bad faith by the government."

Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition). The Second Circuit concludes that the IRS's withholding of third party tax return information pursuant to Exemption 3 in conjunction with 26 U.S.C. § 6103 was proper. The Circuit notes that "the Estate is not entitled to receive the return information of any third-party without appropriate authorization, which was lacking here." Moreover, "[w]hile § 6103 permits plaintiffs to receive return information concerning entities in which the estate possesses a material interest, plaintiffs failed to identify such entities, much less establish the estate's material interest therein."

Ctr. for Biological Diversity v. USDA, No. 09-17233, 626 F.3d 1113 (9th Cir. Dec. 2, 2010) (Rymer, J.). The Ninth Circuit reverses the district court ruling and finds that Section 8791 of the Food, Conservation, and Energy Act of 2008 (FCEA), which was enacted by Congress after the USDA withheld the records at issue in this case, can be applied retroactively as an Exemption 3 statute. As an initial matter, the Ninth Circuit notes that it "assume[s] without deciding" that "Section 8791 meets the requirements of Exemption 3" since the parties are not in dispute on this point. Second, the Ninth Circuit finds that the GPS coordinates requested by plaintiff "fall within the scope of Section 8791's prohibition on disclosure." Specifically, "Section 8791(b)(2) prohibits disclosure of 'geospatial information' maintained by the USDA about 'agricultural . . . operations' for which 'information [is] provided by an agricultural producer' to the USDA 'concerning the agricultural operation' 'in order to participate in programs of the Department.'" The Ninth Circuit finds that the elements of the statute "are satisfied here" because the GPS coordinates constitute "'geospatial information,'" "the data concerns 'agricultural operations' . . . [about] depredations that limit the ranchers' livestock production," "the 'agricultural producer,' the rancher, provides information to the USDA 'concerning the agricultural operation' when he reports his loss of livestock," and "the rancher reports this information 'in order to participate in programs of the Department,' namely the WS program that captures or removes the wolves."

The Ninth Circuit then applies the two-step analysis set forth by the Supreme Court in Landgraf to "determin[e] the applicability of legislation enacted after the acts that gave rise to the suit." With respect to the first prong which requires courts to "'determine whether Congress has expressly prescribed the statute's proper reach,'" the Ninth Circuit concludes that the text of the "FCEA does not expressly resolve whether or not Section 8791 applies to pending cases." Second, the Ninth Circuit examines the retroactive effect of the statute and determines that "there is no impermissible retroactive effect under Landgraf in applying a new statute to a pending FOIA case through Exemption 3." The Ninth Circuit further notes that, in a separate case, it "already explicitly rejected the theory that there is [such] an impermissible retroactive effect just because '[a FOIA plaintiff] had a right to the information when it filed its suit . . . and it loses that right by application of the new exemption.'" Accordingly, the Ninth Circuit holds that USDA properly withheld the requested GPS coordinates pursuant to Exemption 3 in connection with the FCEA, 7 U.S.C. § 8791.

Pac. Fisheries, Inc. v. United States, No. 09-35618, 2010 WL 3611645 (9th Cir. Sept. 15, 2010) (unpublished disposition). (26 U.S.C. § 6103, § 6105): The court "affirm[s] the [district] court's grant of summary judgment [to the IRS] with regard to the disclosure of documents under [Exemption 3 in conjunction with the Internal Revenue Code] 16 U.S.C. § 6103. The court also affirms the district court's determination that plaintiff is not entitled to "access to the documents the IRS provided to the Russian government," finding that the tax convention requires that "'[a]ny information received by a Contracting State shall be treated as confidential in the same manner as information obtained under the domestic laws of that State.'"

Long v. IRS, No. 08-35672, 2010 WL 3677445 (9th Cir. 2010) (unpublished disposition). (26 U.S.C. § 6103(a)): The court reverses the district court's decision requiring disclosure of certain cells contained in a statistical table. The court holds that the cells containing financial information "taken verbatim from Form 5344 of a particular taxpayer" constitutes "nondisclosable [tax] return information under § 6103(b)(2)" because "tax data that starts out as confidential return information associated with a particular taxpayer maintains that status when it appears unaltered in a tabulation with only the identifying information removed." However, the court affirms the district court's determination that certain cells that "are the product of a combination of two taxpayers' data" do not constitute protected return information under § 6103(b)(2), because "they fit the definition of reformulated and amalgamated tax data."

Covington v. McLeod, No. 09-5336, 2010 U.S. App. LEXIS 14871 (D.C. Cir. July 16, 2010) (Per curiam). The court grants defendant's motion for summary affirmance on the basis that the agency properly withheld grand jury material in its entirety pursuant to Exemption 3, and a co-defendant's proffer statement under Exemption 6. The court finds that plaintiff has "failed to demonstrate that the contents of either [sets of documents] are in 'the public domain' and therefore are no longer secret . . . or that the public interest in disclosure outweighs the privacy interests involved."

Houghton v. NSA, No. 09-4440, 2010 WL 1784058 (3rd Cir. May 5, 2010) (unpublished disposition) (per curiam). Pursuant to the NSA Act of 1959, defendant "cannot be compelled to disclose information regarding [its] organization, functions, or activities." Thus, defendant properly invoked Exemption 3 to refuse to confirm or deny the existence of the requested records.

Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). (26 U.S.C. § 6103(a) & 26 U.S.C. § 6103(e)(7)). The IRS cited the first of these statutes to withhold third party tax information. However, "it is impossible to tell from the [IRS] declaration and the rest of the summary judgment record what information is contained within the 'case history notes and information from private sources' and whether, in whole or in part, the documents contain third party taxpayer information."

The lower court "did not make any factual descriptions of the documents in this case or conduct an in camera review. Nor does it logically follow that case history notes and information from private sources contain exclusively third party tax information, rather than segregable portions." In a situation "where the agency affidavit fails to identify the particular type of the document being withheld - and the party seeking disclosure contests the type of information it contains - a district court may not simply rely on a broad categorical approach to withholding."

Though the court "assume[s] that the IRS is telling the truth in its affidavits, its conclusory 'say so' does not, alone, carry its burden of establishing an exemption." Similarly, the IRS provided insufficient information in its declarations to justify its use of § 6103(e)(7). "The declarations fail to describe with specificity the documents constituting 'information from public and private sources as well as interview notes' or why the IRS believes that release of these documents would impede its ability to collect any taxes owed." The court "cannot discern the type of information contained within the documents from the declarations."

Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 595 F. 3d 949 (9th Cir. 2010) (Hawkins, J.). (50 U.S.C. § 403-1, 50 U.S.C. § 402). Defendants rely on these statutes to protect the names of telecommunications carriers because "[r]evealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program." Because this claim was not addressed by the district court, the case is remanded to the district court in order for defendants' claim to be considered.

Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). Defendant NSA properly relied on the NSA Act of 1959 to withhold a computer simulation program. Upon in camera review of NSA's affidavit, the court determines that the affidavit establishes "that the program is used to analyze foreign weapons, and outlines specific reasons why release of the program, including the data inputs, would put the agency's sources and methods at risk."

Larson v. Dep't of State, No. 06-5112, 2009 WL 1258276 (D.C. Cir. May 8, 2009) (Sentelle, C.J.). Defendant CIA properly invoked Exemption 1 to withhold "four intelligence cables that report detailed descriptions of information obtained from a particular CIA source and provide general information about the source." These documents were properly classified by the CIA, as their release "would seriously undermine the CIA's ability to retain its current intelligence sources and attract future intelligence sources." Additionally, "disclosing the cables could lead to the unauthorized disclosure of intelligence methods. . . ." Courts properly "'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights in what adverse affects [sic] might occur as a result of [disclosure of] a particular classified record.'" Defendant "CIA sufficiently detailed the classified information in the withheld cables, why that information was classified, and why it logically must remain classified in the interest of national security." Furthermore, the CIA has explained that the passage of time does not lessen the agency's need to protect its sources. Similarly, the court "easily conclude[s]" that the CIA properly utilized Exemption 3 as well for the withheld material, by means of the National Security Act, 50 U.S.C. § 403-1(i)(1) (2006), which allows for the withholding of material relating to intelligence sources and methods. Defendant NSA also properly invoked Exemptions 1 and 3, providing sufficient details to justify nondisclosure, i.e., "the necessity to foreign intelligence gathering of keeping targets and foreign communications vulnerabilities secret." NSA's affidavit provides sufficient information for the court to rule on its withholdings, given "the substantial weight owed agency explanations in the context of national security." NSA has also demonstrated that the withheld information was properly classified. Plaintiffs' demand for further details from both the CIA and NSA "is not required by-indeed is even contrary to-[the court’s] precedent." NSA has also shown that the withheld information is covered by section 6 of the National Security Act, 50 U.S.C. § 402 (2006), which protects from disclosure "the organization or any function of the National Security Agency"; 18 U.S.C. § 798(a)(3)-(4) (2006), which "prohibits the unauthorized disclosure of classified information 'concerning the communication intelligence activities of the United States'"; and 50 U.S.C. § 403-1(i), "which . . . instructs the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure." Finally, defendant NSA properly refused to confirm or deny the existence of records responsive to one plaintiff' s request, concluding that acknowledgment of the existence of such information "could reasonably be expected to cause serious damage to the national security."

District Court Decisions

Georgacarakos v. FBI, No. 11-1655 (JDB), 2012 WL 6210119 (D.D.C. Dec. 12, 2012) (Bates, J.).Holding: Granting defendant's motion for summary judgment. The court concludes "[b]ased on defendant's submission… that the information withheld under Exemption 3, if disclosed, would 'tend to reveal some secret aspect of the grand jury's investigation."

Roman v. CIA, No. 11-CV-2390 (JFB) (WDW), 2012 WL 6138487 (E.D.N.Y. Dec. 11, 2012) (Bianco, J.).Holding: Granting defendant's motion for summary judgment.The court determines that 50 U.S.C. § 403g is "properly within the bounds of Exemption 3 because it leaves no discretion as to whether the information should be withheld from the public." Therefore the names, titles and other information about CIA personnel are exempt from disclosure.

Immigration Justice Clinic of the Benjamin N. Cardozo Sch. of Law v. U.S. Dep't of State, No. 12-1874, 2012 WL 5177410 (S.D.N.Y. Oct. 18, 2012) (Daniels, J.). Holding: Granting plaintiff's motion for summary judgment and ordering defendants to produce a "'three-page, unclassified document containing biographical data and information'" about plaintiff's client. The court finds that 8 U.S.C. §1202(f) cannot be used in conjunction with Exemption 3 to withhold a document merely because it is "located in [State's] Consular Lookout and Support System ('Class') visa database, which it describes as a 'tool for the adjudication of visa … applications.'" Here, there has been no visa application. The document contains "biographical data and information about [plaintiff's client's] activities while in immigration detention." The court notes that 8 U.S.C. §1202(f) "does not speak to documents held by the State Department that have not been used in determining whether to issue or refuse a visa. Nor does §1202(f) refer to all files placed in a database that is used to store visa-related documents." Accordingly, the court holds that although §1202(f) is the type of withholding statute contemplated by Exemption 3, the document at issue here does not "fall[] within [§1202(f)'s] ambit."

Since the document is "not a document that pertains to the issuance or refusal of a visa because there is no past or pending visa application," State cannot use Exemption 3 to withhold it. "The plain language of the statute, and weight of authority of those courts that have addressed similar issues, leads to the conclusion that where there is no visa application process to determine the issuance or refusal of a visa, the Government cannot rely on §1202(f) to withhold information that was neither gathered, used, nor is being used to determine an actual past or pending visa application." Finally, State does not contend that the document is "inherently confidential." Accordingly, the court orders State to produce the document.

Fair Political Practices Comm'n v. USPS, No. 12-00093, 2012 WL 4953184 (E.D. Cal. Oct. 16, 2012) (Burrell, J.). Holding: Defendant's motion for summary judgment is denied; plaintiff's cross-motion for summary judgment is granted. The court concludes that 39 U.S.C. § 410(c)(2) does not "authorize the USPS to redact and withhold the quantity of mail sent by the permit holder." First the court "'assume[s] without deciding that 39 U.S.C. § 410(c)(2) qualifies as an Exemption 3 statute for purposes of th[e] [motions] and proceed[s] directly to the question whether the requested records fall within the scope of § 410(c)(2)." Section 410(c)(2) does not require the disclosure of "'information of a commercial nature… which under good business practices would not be publicly disclosed.'" The court narrows the question to "whether the amount of mail sent by a noncommercial entity in connection with a noncommercial election is 'information of a commercial nature,' as that term is used" in the statute. The court finds that the defendant "has not shown that the requested information is within the realm of what is considered to be commercial information; nor has it shown how the disclosure of the requested numerical information could potentially impair the relationship between USPS and its customers."

Argus Leader Media v. USDA., No. 11-4121, 2012 U.S. Dist. LEXIS 139069 (D.S.D. Sept. 27, 2012) (Schreier, C.J.). Holding: Plaintiff's motion for a Vaughn index is denied; defendant's motion for summary judgment is granted. The court determines that the statutory language "is the type of language that, on its face, is indicative of a withholding statute." The court analyzes the language of 7 U.S.C. § 2018(c) and finds that the statute "directs that disclosure of information is prohibited and gives little discretion to the agency as to how the information can be disseminated." The court rejects the plaintiff's argument that the "redemption data is not the type of information that was meant to be withheld under § 2018." "The type of information that is to be withheld under the plain language of the statue is any information." The court concludes by noting that "[a]lthough Congress has not expressly deemed redemption information as essential data to be included under § 2018, the statutory language encompasses this type of income and tax information because redemption data naturally falls under either term's broad umbrella." As a result, "[b]ecause §2108 is a withholding statute and redemption data is the type of information reached by the plain language of the statute, it was appropriate for USDA to withhold said data under exemption 3."

Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012) (Sullivan, J.). Holding: Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment and determining that plaintiff is not entitled to attorney's fees. Waiver: The court holds that information was properly withheld under Exemption 3 pursuant to 49 U.S.C. §114(r) and its implementing regulations "'prohibiting the disclosure of information obtained or developed in carrying out security … if the Under Secretary decides that disclosing the information would … be detrimental to the security of transportation.'" The court rejects plaintiff's arguments that the defendants waived their right to the exemption because they did not decide that it would apply until after the litigation was filed. Likewise, the court holds that defendants have not waived their right to invoke this exemption because plaintiff alleges that an unnamed CBP employee at an airport told him that he was on a watch list. The court determines "that there is nothing official about" an "alleged disclosure … by an unnamed CBP employee while plaintiff was stopped at an airport."

Glomar: The court holds that the TSA properly refused to confirm or deny whether the plaintiff was on a Federal Watch List. "Federal Watch Lists constitute 'Sensitive Security Information' that is exempted from disclosure." The court cites to prior case law establishing that revealing this sort of information "'would enable criminal organizations to circumvent the purpose of the watch lists by determining in advance which of their members may be questioned.'"

ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.).Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review. The court concludes that the CIA properly withheld all eleven documents under Exemption 3 pursuant to the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. The court notes that "information about interrogation techniques pertains to 'intelligence methods or sources'" and thus falls within the ambit of both statutes. Although the CIA argues, and the plaintiff disputes, that the CIA has never confirmed or denied whether its methods were authorized, the court does not resolve this issue because information concerning unauthorized techniques may also be withheld. The court notes that "there is nothing in statute or case law that requires courts to treat information about unauthorized interrogation techniques differently from information about authorized techniques."

Mantilla v. U.S. Dep't of State, No. 12-21109-CIV, 2012 WL 4372238 (S.D. Fla. Sept. 24, 2012) (O'Sullivan, Magistrate J.). Holding: Denying defendants' motion for summary judgment. The court holds that "Section 222(f) of the [Immigration and Nationality Act (INA)] does not apply to visa revocations." Instead, the INA applies to the "issuance or refusal of visas." Accordingly, the court denies the defendants' motion for summary judgment with regard to Exemption 3 based upon the INA.

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 holds that the CIA properly asserted Exemption 3 in conjunction with the CIA Act of 1949, 50 U.S.C. §403g, which protects intelligence sources and methods, to withhold a "polygraph interview" that "involves intelligence sources and methods, and organizational and functional information as well as additional signatures, employee's names and personal identifiers." Further, the court treats as conceded DEA's redaction of an "office code of the CIA activity" in a DEA report where plaintiff failed to challenge defendant's assertion of the CIA Act to withhold that information.

Moore v. FBI, No. 11-1067, 2012 WL 3264566 (D.D.C. Aug.13, 2012) (Kollar-Kotelly, J.). Holding: Dismissing complaint against the Executive Office of the President under Federal Rule of Civil Procedure 12(b)(6); granting, as conceded, the Criminal Division and U.S. Parole Commission's motions for summary judgment; and granting FBI and CIA's motions for summary judgment based on the adequacy of their searches and the CIA's assertion of the Glomar response in conjunction with Exemptions 1 and 3; and granting BOP and EOUSA's motions for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies. The court holds that the CIA properly refused to confirm or deny "the existence of records [concerning plaintiff] 'that would reveal a classified connection to the CIA'" pursuant to Exemptions 1 and 3. The court concludes that CIA properly asserted "the Glomar response in accordance with §3.6(a) of Executive Order 13,526" "[a]s to any potentially classified records pertaining to intelligence sources or activities." Further, the court determines that "[t]he CIA properly relied upon the Central Intelligence Agency Act of 1949 . . ., 50 U.S.C. §403(g), also to support its Glomar response." Moreover, the court finds that "[p]laintiff has not adequately countered the CIA's reasonably detailed declaration with any contradictory evidence of bad faith." To the extent that plaintiff asserts that disclosure of the information would be in the public interest, the court finds that "it is only exemptions 6 and 7(C) – not asserted here – that 'the court is called upon to balance the conflicting [public/private] interests and values involved; in other exemptions Congress has struck the balance and the duty of the court is limited to finding whether the material is within the defined category.'"

Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. The court rejects plaintiffs' challenges to the CIA's Exemption 3 withholdings. With respect to plaintiffs' claim that the CIA Act of 1949, 50 U.S.C. §403(g) "'doesn't apply to 'deceased [CIA] officers and employees and those who have been publicly identified as such,'" the court finds that "deceased former employees still fall within the plain language of 403(g) as having been 'employed' by the CIA."

The court also dismisses plaintiffs' argument that, for referred records, "the Department of Defense inappropriately invoked exemption 3 in relation to 10 U.S.C. §150b, because the statute is 'clearly discretionary' and therefore not an exemption 3 statute." Rather, the court determines that the statute qualifies as an Exemption 3 withholding statute "because it '(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.'" Moreover, the court finds that redactions of "'names of individuals assigned to routinely deployable units'" under 10 U.S.C. §150b were proper "because the withheld material falls within the statute." However, the court denies summary judgment for "redaction of names withheld under 50 U.S.C. §435." The court notes that "[t]he statute requires the primary next of kin to give written consent to the release of information concerning [those individuals] treatment, location, or condition" and finds that there is no indication here that DOD consulted its primary next of kin list to determine whether such consent was given.

Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July10, 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. The court holds that the FBI properly asserted Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) to withhold "files that 'explicitly disclose[] matters occurring before a Federal Grand Jury.'" Although Rule 6(e) provides that "federal law enforcement . . . to whom grand jury information has been disclosed 'may use the information only as necessary in the conduct of that person's official duties,'" the court observes that while "[t]he FBI is a law enforcement agency by its very nature, . . . public disclosure of grand jury information is certainly not within the purview of its official duties." The court also concludes that the FBI properly invoked Exemption 3 in connection with Title III, 18 U.S.C. §§ 2510-2520, to withhold the identities of those who were targets of electronic surveillance. The court finds that "'Title III . . . falls squarely within the scope of Exemption 3'" and "[p]laintiff gives no adequate legal objection" to the FBI's withholding. Additionally, the court finds that the FBI also properly withheld "pen register information pursuant to 18 U.S.C. § 3123." The court finds that the "'applications and subsequent court orders for pen registers, information regarding the target of pen registers, and reports generated as the result of the pen registers'" withheld by the FBI, "falls squarely under § 3123(d)(1)" and notes that plaintiff has not contested the withholding.

Houghton v. U.S. Dep't of State, No. 11-869, 2012 WL 2855868 (D.D.C. July12, 2012) (Jackson,J.). Holding: Granting, in part, the State Department's motion for summary judgment on the basis that it properly asserted Exemption 3 to withhold two responsive transcripts in full; but ordering the agency to provide additional details with respect to its search. The court holds that the State Department properly withheld two transcripts of certain CPAC proceedings in full pursuant to Exemption 3 in conjunction with "[S]ection (h) of the Cultural Property Implementation Act." As a preliminary matter, the court notes that "[i]t is settled law in this Circuit that 19 U.S.C. § 2605(h) is an Exemption 3 withholding statute." The court notes that in Ancient Coin Collectors Guildv. U.S.Department of State, the D.C. Circuit held that this statute "provides 'particular criteria' for withholding CPAC proceedings," i.e., "whenever the President or his designee determines that the disclosure of matters involved in the CPAC's proceedings would compromise the government's negotiating objectives or bargaining positions, those proceedings are closed to the public and may be properly withheld under FOIA Exemption 3." In this case, the court notes that "State has submitted a declaration stating that the President's designee, the [Bureau of Educational and Cultural Affairs] Assistant Secretary, determined that the disclosure of the proceedings at issue here would compromise the government's negotiating objectives." The court concludes that "[b]ecause this is an 'uncontradicted, plausible' affidavit, it is sufficient to prove that State properly withheld at least part of the two responsive CPAC transcripts under Exemption 3."

Segregability: The court then concludes that the transcripts were properly withheld in full where, as here, the State Department established that the proceedings were closed to the public under 19 U.S.C. § 2605(h). The court finds that "[u]nder the withholding statute, once the President or his designee at State has determined that a CPAC proceeding is closed pursuant to section 2605(h), all materials 'involved in' such proceedings are exempt from FOIA."

Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). The court concludes that defendant properly asserted Exemption 3 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to withhold in full wiretap records which "pertained to 'the identities of the individuals targeted for interception' and 'the physical location of the electronic microphone surveillance, the participants of some of the intercepted conversations, and the summarized content of some of the intercepted conversations.'"

McRae v. DOJ, No. 09-2052, 2012 WL 2428281 (D.D.C. June27, 2012) (Leon, J.). Holding: Denying without prejudice defendants' motion for summary judgment on the basis that it failed to discuss EOUSA's search for responsive records or EOUSA's justification for withholding certain information under Exemption 7(C), and where it did not supply information sufficient to support ATF's claim of Exemption 7(D); granting defendants' motion for summary judgment as to the adequacy of ATF's search and its claims of Exemptions 3, 7(C) and 7(E). The court holds that ATF properly invoked Exemption 3 in conjunction with the Consolidated Appropriations Act of 2005, which prohibits disclosure of contents of the Firearms Trace System database or any information that is required to be kept by Federal Firearms Licensees pursuant to 18 U.S.C. §923(g), in order to redact "information derived from the Firearms Trace System Database."

Seife v. NIH, No. 11-6646, 2012 WL 2125957 (S.D.N.Y. June 12, 2012) (Gorenstein, Mag.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemption 3; and granting, in part, plaintiff's motion for summary judgment with respect to certain financial and relationship information for which NIH asserted Exemption 6. The court holds that NIH properly withheld information in the requested "recusal lists" pertaining to special government employees' personal finances and business and personal relationships under Exemption 3 in conjunction with the Ethics in Government Act (EGA), 5 U.S.C. App'x 4 §107, which applies to information provided by an individual on an Office of Government Ethics Form 450. The court finds that this statute "leaves no discretion to agencies as to whether they may reveal the contents of Form 450s." The court also finds that the information contained in the recusal list is "unquestionably information that the individual was 'required' to provide . . . when he or she completed the Form 450." Moreover, the court determines that "[t]he mere fact that NIH transfers this information [contained on] the Form 450 to another form – a recusal list – should not dissolve the confidentiality protection enshrined in the [EGA]." The court finds unavailing plaintiff's arguments that NIH's recusal determinations should have encompassed more information than that provided on Form 450. Rather, the court concludes that the fact that "NIH may have produced recusal lists by following procedures that plaintiff alleges to be improper does not change the character of the information at issue in this case."

Additionally, the court determines that NIH also properly withheld indicators on "waiver determinations" taken from Form 450 which show the financial interests that belong to the spouse or dependent child of an employee. First, the court notes that 18 U.S.C. §208, which governs waiver determinations, provides that such a determination "must not contain financial information that is 'more extensive' than that required under the individual's financial disclosure report." The court finds that "[h]ere, Form 450 permits, but does not require, an employee to designate with letter labels which financial interests belong to his spouse or dependent child, as opposed to the filer alone." The court observes that both parties agree that "the statute should be read as permitting an agency to withhold under FOIA Exemption 3 any information that is not required to be disclosed on the Form 450." Accordingly, the court concludes that, because these letter labels are not required to be supplied by the employees, NIH properly withheld the "letter designations reflecting whether a financial interest on a waiver determination is that of a spouse or dependent child."

Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2012 WL 2103213 (D.D.C. June11, 2012) (Leon,J.). Holding: Granting defendant's renewed motion for summary judgment on the basis that it properly asserted Exemption 3 for series of e-mails, and conducted a search that was reasonably calculated to uncover all responsive e-mail records. The court holds that defendant properly withheld the document consisting of an e-mail chain pursuant to Exemption 3 in conjunction with the Convention on Cultural Property Implementation Act, 19 U.S.C. §2605(i)(1), which exempts from disclosure information submitted in confidence by the private sector to employees or officers of the United States or the Cultural Property Advisory Committee. As a preliminary matter, the court notes that "[t]he parties agree that 19 U.S.C. §2605(i)(1) is a withholding statute for the purposes of FOIA Exemption 3(b) and that the proper standard for analyzing confidentiality is the same as that for FOIA Exemption7(D)." The court concludes that "based on the evidence provided by State, that there was a demonstrated expectation of confidentiality between the parties and that the redacted portions of the e-mails have been appropriately withheld under Exemption 3(b)." First, the court finds that one of the correspondents, an archaeology professor operating in the private sector, "requested confidentiality." Second, the court determines that "the e-mails demonstrate an expectation of confidentiality between the parties" where the professor was assured that discretion would be afforded regarding the matters discussed. Third, the court notes that the information "provided was related to issues scheduled to be discussed at an upcoming advisory committee meeting that was closed to the public." The court concludes that "[t]hese facts, coupled with the concrete textual indications of confidentiality on the face of the e-mails, clearly establish an expectation of confidentiality between the parties." The court determines that "because State has provided more than just 'bald assertion[s] that express assurances [of confidentiality] were given,' . . . State properly withheld parts of the document under Exemption 3(b)."

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June8, 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). The court finds that the FBI properly asserted Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) to withhold "'information contained in FD-302s that identif[y] specific records that may be subpoenaed by a Federal Grand Jury, names of potential grand jury witnesses and interview statements pertaining to proffer agreements and immunity statements, which could be used as evidence before a Federal Grand Jury.'"

N.Y. Times Co. v. DOJ, No. 11-7562, 2012 WL 1869396 (S.D.N.Y. May17, 2012) (Pauley,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted Exemptions 1 and 3 to withhold a classified report; and declining to find bad faith where the court's in camera inspection bears out defendants' exemption claims; and concluding that no portions of the report are reasonably segregable. In addition to Exemption 1, the court finds that the requested report was also properly withheld under Exemption 3 in conjunction with the National Security Act of 1947, as amended. Based on its in camera review, the court concludes that "disclosing the Report would reveal and potentially compromise intelligence sources and methods." The court comments that "it is principally the duty of the Executive Branch, 'not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the [Government's] intelligence-gathering process.'" Additionally, the court rejects plaintiff's argument that the "even if the Report is covered by Exemptions 1 or 3, the Government may not withhold it to the extent that it 'sets forth or clarifies an agency's substantive or procedural law[.]'" Rather, the court finds that plaintiffs "cite no case law in which a court applied the 'secret law doctrine' to mandate the disclosure of classified national security information protected by Exemptions 1 or 3, and this Court has found none." Further, the court declines "to read a 'secret law' exception into the FOIA exemptions without a statutory tether."

Bloomer v. DHS, No. 11-35, 2012 U.S. Dist. LEXIS 62543 (D. Vt. May3, 2012) (Reiss, J.) . Holding: Granting DHS's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 3, 6, 7(C), 7(D) and 7(E). The court holds that DHS properly asserted the Bank Secrecy Act, 31U.S.C. §5319, which protects "information that has been reported by financial institutions to the Treasury Department[] and is subsequently shared with other government agencies," to withhold current transaction reports. At the outset, the court finds that "[t]he Bank Secrecy Act is properly within the bounds of Exemption 3 because it 'mandates the withholding in such a manner as to leave no discretion on the issue to the agency.'" The court then concludes that "[r]eports from financial institutions to the Treasury Department[, such as those at issue in this case,] are clearly covered by the Bank Secrecy Act." The court finds unavailing plaintiff's argument that "DHS's redactions 'are not properly described or explained,'" observing that "'Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage.'" Here, the court notes that plaintiff "does not challenge DHS's assertion that the redacted material is protected under the Bank Secrecy Act" or "seek the disclosure of information provided to the Treasury Department by financial institutions."

Roberts v. FBI, No. 11-575, 2012 WL 604178 (D.D.C. Feb. 24, 2012) (Bates, J.). Holding: Granting FBI's motion for summary judgment on the basis that it conducted an adequate search, justified its withholdings under Exemptions 3 and 7(C), and produced all reasonably segregable non-exempt information. The court concludes that the FBI properly asserted Exemption 3 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18U.S.C. §§ 2510-2520, to withhold "'the identities of the individuals targeted for interception through wiretap, the summarized content of the conversations, and the phone number utilized by the subjects of the investigation'" as well as similar information that was "recorded on a 'pen register.'" As an initial matter, the court finds that "'Title III falls squarely within [the scope of the second prong of Exemption 3], as a statute referring to particular types of matters to be withheld." Second, the court determines that "the FBI's supporting declaration and copies of the redacted records confirms that the information withheld was obtained pursuant to Title III and that it is properly withheld under Exemption 3."

Roman v. NSA, Nos. 09-2947, 09-4281, 09-3344, 09-2504 & 09-5633, 2012 WL 569747 (E.D.N.Y. Feb. 22, 2012) (Bianco,J.). Holding: Granting summary judgment to the defendants based on the adequacy of their searches and the propriety of NSA's withholdings under Exemption 3, and the CIA's withholdings pursuant to Exemptions 3 and 5.Exemption 3: The court concludes that the NSA properly withheld a contract proposal pursuant to Exemption 3 in conjunction with 10 U.S.C. § 2305(g), which prohibits disclosure of contract proposals by certain agencies including the NSA. Although the statute contains an exception that allows for the release of "'any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal," the court notes that "[t]he NSA's 'general practice' is not to set forth or incorporate by reference proposals submitted pursuant to a solicitation." Additionally, the court determines that the CIA properly withheld information related to the "CIA's organization, functions, names and/or official titles" pursuant to the CIA Act of 1949, 50 U.S.C. § 403g, which requires the CIA to protect this type of material from disclosure.

Cunningham v. Holder, No. 10-1860, 2012 WL 414685 (D.D.C. Feb.10, 2012) (Boasberg,J.). Holding: Dismissing a federal employee and the United States as parties to the action and substituting DOJ as the proper party defendant; granting EOUSA's motion for summary judgment on the basis that it conducted an adequate search and supported its claims of withholdings under Exemption 3, and concluding plaintiff failed to exhaust his administrative remedies for public records. The court concludes that EOUSA properly withheld grand jury transcripts pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e), which "bars the disclosure of matters occurring before a grand jury." With respect to plaintiff's argument that release of the transcripts is in the public interest, the court finds that "[w]hatever Plaintiff means by 'public interest,' it is simply not a cognizable response to an otherwise valid FOIA withholding based on Exemption 3." As to plaintiff's claim that the "'minutes can be disclosed if [they] do[] not reveal the inner workings of the grand jury,'" the court observes that "[b]y his own admission, Plaintiff here seeks precisely to learn what took place before the grand jury."

Audubon Soc'y of Portland v. U.S. Nat. Res. Conservation Serv., No. 10-1205, 2012 WL 141496 (D.Or. Jan.18, 2012) (Hernandez, J.) (amended op. & order). Holding: Granting plaintiff's cross-motion for summary judgment finding that the withheld material did not fall within the asserted Exemption 3 statute; issuing a declaratory judgment that the U.S. Natural Resources Conservation Service (NRCS) failed to make a timely determination on plaintiff's administrative appeal, a point which was conceded by defendant; dismissing plaintiff's Administrative Procedure Act claim as moot in light of the court's decision on the FOIA claims; and concluding plaintiff is entitled to reasonable attorney's fees and costs. As an initial matter, the court "assume[s] that [the Food, Conservation, and Energy Act (FCEA) of 2008, now codified as 7 U.S.C.] § 8791 is a withholding statute [under Exemption 3] without deciding the issue" because both parties are in agreement on this point. The court notes that "[u]nder § 8791(b)(2)(A), the documents must satisfy the following elements to prohibit disclosure: (1) the information is provided by an agricultural producer or owner of agricultural land, (2) the information concerns the agricultural operation, farming or conservation practices, or the land itself, and (3) the information is provided in order to participate in programs of the Department of Agriculture." As to the first element, the court determines that the forest land owners who submitted information to NRCS in connection with the Healthy Forests Restoration Program (HFRP) "are not agricultural producers" within the meaning of the statute because "the ordinary definition of 'crop' does not include wood or timber." With respect to the second element, the court finds that "[i]t is undisputed that the information submitted by land owners for the HFRP concerns the 'conservation practices' or the catch-all category of 'the land itself.'" However, the court notes that the land owners submissions would not qualify as concerning an "agricultural operation" because that provision of the FCEA makes a distinction between 'agriculture' and terms related to forests," and the court finds that "wood, timber, and forest products are not agricultural commodities under the FCEA." The court does find that the third element is satisfied because "[t]he information submitted by land owners was submitted to the NRCS [an agency of the USDA] for participation in the HFRP." In sum, though, the court rules that "the first element [of the Exemption 3 statute] was not met because the forest land owners are not agricultural producers or owners of agricultural land," and, as such, "the information regarding the private forest lands was not properly exempt from disclosure under Exemption 3 and § 8791(b)(2)(A)."

The court also holds that NRCS cannot withhold "geospatial information about the land and operations of various private forest lands" under § 8791(b)(2)(B), "which requires the information to be (1) geospatial information, (2) maintained by the Secretary of Agriculture, and (3) about agricultural land or operations for which information in subparagraph (A) is provided." The court bases its holding on its earlier determination that "agricultural land or operations do not concern wood, timber, or forest products" and therefore the information submitted by the land owners in this case does not qualify under the statute.

Schoenman v. FBI, No. 04-2202, 2012 WL 171576 (D.D.C. Jan.23, 2012) (Kollar-Kotelly,J.). Holding: Denying plaintiff's two motions to late file where he failed to establish "good cause" for the requested extensions and did not demonstrate that his failure to act within the specified times was the product of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1); granting CIA's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 1 and 3 were proper; denying plaintiff's cross-motion for summary judgment; and entering final judgment marking the end of the case. The court finds that the CIA properly invoked Exemption 3 in conjunction with the Central Intelligence Agency Act of 1949, which protects from disclosure "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA]," to withhold "information about its foreign intelligence collection activities, the names of its employees, personal identifiers, official titles, file numbers, and internal organizational data." Additionally, the court concludes that the CIA properly asserted the National Security Act of 1947, which protects from disclosure "intelligence sources and methods," to protect "information about classified intelligence sources and methods, including information pertaining to human and foreign intelligence service sources, covert installations, dissemination-control markings, and technical intelligence collection."

ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Holding: Concluding that defendants have failed to justify the majority of their withholdings made pursuant to Exemptions 1, 3, and 7(E); denying plaintiff's motion to strike defendants' submission of classified declarations; granting, in part and denying in part, plaintiff's motion for an in camera review, and ordering defendants to submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits; and deferring ruling on the parties cross-motions for summary judgment pending submission of supplemental materials. The court concludes that ODNI and NSA did not sufficiently justify their assertion of Exemption 3. Although the "[p]laintiff's do not dispute that Section 403-1(i) of the National Security Act [relied upon by ODNI] constitutes an exemption statute" under the FOIA, the court finds NSA's declaration "insufficient" where it merely "recites the language of the statute" by "offer[ing] a single sentence, which asserts that '[t]he information in these documents . . . is protected by the sources and methods provision of the National Security Act.'" Moreover, the court notes that "[m]ere invocation of the exemption statute, coupled with 'b3' labels throughout the redacted documents, is simply not enough." With regard to NSA's declaration, the court notes that "Plaintiffs do not dispute, that all three statutes [asserted by NSA, namely, section 6 of the National Security Agency Act, 50 U.S.C. §402 note, 18 U.S.C. §798, and section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004] qualify as exemption statutes under Exemption 3." However, the court concludes that NSA's justification for invoking the National Security Agency Act, which protects information regarding activities of the NSA, is not sufficient to withhold the requested statistical information where its declaration merely states that "'NSA's SIGINT activities and functions, and its intelligence sources and methods would be revealed if any of the withheld information about NSA's collection under the FAA are disclosed.'" The court notes that this case is different from the Second Circuit's decision in Wilner v. NSA, to which NSA points for the proposition that "'any response [by the agency] would reveal" information with respect to the activities of the NSA.'" In Wilner, the Second Circuit approved of NSA's Glomar response in conjunction with Exemption 3 with respect to a request for any records related to the interception of communications between Guantanamo Bay detainees and their legal counsel. In contrast, the court notes that "plaintiffs here specifically disclaim any request for the content of FAA surveillance applications or the identities of FAA surveillance targets," but rather, seek "statistics that would reflect the exercise of FAA authority beyond the bounds of the authorizing statute." Accordingly, the court finds that it "cannot say that the 'very nature' of Plaintiffs' statistical requests concerns the 'activities' of the NSA within the meaning of section 6 of the National Security [Agency] Act." Additionally, the court concludes that "[t]he single conclusory sentence that seeks to justify the NSA withholdings is similarly insufficient with respect to the remaining exemption statutes, 18 U.S.C. §798 and 50 U.S.C §403-1(i)(1)."

Callaway v. U.S. Dep't of the Treasury, No. 04-1506, 2011 WL 5559774 (D.D.C. Nov.15, 2011) (Roberts, J.). Holding: Granting, in part, defendants' renewed motion for summary judgment and concluding that there remains no factual dispute regarding the content of audio tapes produced to plaintiff, determining that the grand jury testimony identified by plaintiff has not entered the public domain, and finding that Customs is not required to search for records maintained on microfiche; but, ordering defendants to submit additional information with respect to certain non-investigatory records responsive to plaintiff's request. At the outset, the court notes that "[p]laintiff meets his initial burden by 'pointing to specific information in the public domain that appears to duplicate that being withheld'" where he proffered certain trial testimony. However, the court finds that plaintiff "cannot prevail simply by demonstrating that the same witnesses testified both before the grand jury and at trial and by providing the trial transcripts." Furthermore, the court notes "[p]laintiff's speculation as to the content of the grand jury testimony does not establish that the witnesses' testimony has entered the public domain during the trial." The court concludes that "[EOUSA's] declaration is accorded a presumption of good faith, and the declarant avers that the relevant portions of the transcripts are not identical to any portion of the grand jury transcripts." Accordingly, "[p]laintiff fails, then, to show that the requested information has entered the public domain" and the records remain exempt from disclosure pursuant to Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e). Additionally, the court comments that it "is not obligated to conduct its own comparison of the transcripts in order to substantiate plaintiff's assertions."

Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.). Holding: Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees. The court holds that the State Department properly withheld certain consular records pursuant to Exemption 3 in connection with Section 222(f) of the Immigration and Nationality Act, which "forbids [defendant] from disclosing information pertaining to the issuance or refusal of Visas to the public." As an initial matter, the court notes that this "statute has already been held to qualify as a withholding statute under Exemption 3." Second, the court finds that the additional declaration provides sufficient information to "successfully demonstrate[] the applicability of the claimed exemptions."

Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept.30, 2011) (Gómez, J.). Holding: Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction. Upon conducting an in camera review, the court adopts the magistrate's recommendation which found that the IRS properly invoked Exemption 3 in conjunction with 26 U.S.C. § 6103(a) to withhold certain records that contain third parties' tax return information. The court also adopts the magistrate's finding that the IRS properly withheld "drafts of the working agreement between the United States and the Virgin Islands concerning the exchange of taxpayer information, requests for an exchanges[sic] of information, and requests made under the working agreement" under 26 U.S.C. §6105(c)(1)(E), which protects "tax-convention information." The court concludes that "[t]he IRS has demonstrated that there is a tax convention between the Virgin Islands and the United States" and that "[t]he parties to this agreement have treated exchanges of information relating to this agreement as confidential."

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 finds that EOUSA properly asserted Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) to protect "'grand jury transcripts and attorney notes associated with a grand jury proceeding,' the release of which 'would reveal the scope of the grand jury and the direction of the investigation by providing the identities of the targets of the investigation, the source of the evidence, as well as the actual evidence produced before the grand jury.'" The court also finds that the FBI properly invoked Exemption 3 to withhold "records consisting of intercepted communications, which are specifically protected from disclosure by Title III of the Omnibus Crime Control and Safe Streets Act of 1968."

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 finds that Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) was appropriate to withhold certain information contained in grand jury records.

ACLU v. DOJ, No. 10-436, 2011 WL 4005324 (D.D.C. Sept. 9, 2011) (Collyer, J.).Holding: Granting summary judgment to the CIA on the basis that it properly refused to confirm or deny the existence of records responsive to the request in conjunction with Exemptions 1 and 3. The court holds that the CIA properly refused to confirm or deny the existence of responsive records pursuant to Exemption 3 in conjunction with Central Intelligence Agency Act of 1949, which protects from disclosure "the organization, functions, names, official titles, salaries, or numbers of personnel employed," and the National Security Act of 1947 (NSA), which protects from disclosure "intelligence sources and methods." As a preliminary matter, the court notes that "[i]t is well-established that both statutory provisions cited by the CIA qualify as withholding statutes for purposes of Exemption 3." Contrary to plaintiff's argument, the court determines that the CIA properly relies on Section 403g of the CIA Act because information about drone strikes relates to "functions" of CIA personnel. The court finds that "[t]he fact of the existence or nonexistence of responsive information falls within the ambit of §403g because whether the CIA cooperates with, is interested in, or actually directs drone strikes pertains to (possible) functions of CIA personnel." Based on the CIA's declaration, "which is entitled to 'substantial weight,'" the court concludes that "the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal information on the CIA's internal structure and its capabilities and potential interests and involvement in/operation of the drone program."

The court also rejects plaintiffs' argument that the withheld information is not "intelligence sources and methods" protected by the NSA because "a program that targets certain persons for death or incapacitation cannot be deemed a means of collecting intelligence, so that neither a source nor a method of intelligence gathering is implicated by the fact of whether CIA has responsive records." Although the court acknowledges that "[a]t first blush, there is force to Plaintiffs' argument that a 'targeted-killing program is not an intelligence program' in the most strict and traditional sense," it ultimately finds that "Plaintiffs seek too narrow a reading of the authority conferred by the NSA to protect 'intelligence sources and methods.'" The court notes that the Supreme Court in CIA v.Sims "'has recognized the broad sweep of 'intelligence sources' warranting protection in the interest of national security.'" The court notes that it "has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence" and concludes that "taking into account the deference owed the CIA's declaration in the FOIA context, . . . the CIA's justification for its concerns about unauthorized disclosure of intelligence sources or methods to be both 'logical' and 'plausible.'" The court also concludes that "Plaintiff's argument that a program of drone strikes cannot form the basis of, or involve, intelligence sources or methods also ignores the scope of the CIA's specific authority to engage in activities beyond 'traditional' intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities." The court observes that "[i]t would surprise no one that the CIA may be authorized to engage in more than gathering facts around the world; the NSA's grant of protection to 'intelligence sources and methods' cannot be so limited." As such, the court holds that "[c]onfirming the existence or nonexistence of pertinent agency records on drone strikes could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and/or methods."

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler,J.). Holding: Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index. The court finds that the FBI properly asserted Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) to protect the "'Federal Grand Jury subpoenas, as well as the names and identifying information of individuals subpoenaed to testify before the Federal Grand Jury and information that identifies specific records subpoenaed by the Federal Grand Jury'" because this information "plainly implicated 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'"

With respect to the CIA's assertion of the National Security Act of 1947 and the Central Intelligence Act of 1949, the court finds that, as a threshold matter, "[t]here is no question that both statutes cited by Defendant are 'precisely the type of statutes comprehended by exemption 3.'" The court then finds that "'given the special deference owed to agency affidavits on national security matters,'" the CIA properly invoked both statutes to withhold information related to the agency's "'functions, foremost of which is the collection of foreign intelligence through intelligence sources and methods, as well as the names of CIA employees, and organizational data, including location of facilities, file numbers and dissemination controls and markings.'"

Judicial Watch, Inc. v. SSA, No. 06-2034, 2011 WL 3268092 (D.D.C. Aug. 1, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly refused to disclose taxpayer information pursuant to Exemption 3. The court holds that SSA properly refused to disclose a list of employers who received "no-match" letters pursuant to Exemption 3 in conjunction with Section 6103 of the Internal Revenue Code, which prohibits release of tax return information. The court finds that "[g]iven that [the requested] list is undoubtedly comprised of companies, corporations, and associations – which constitute 'persons' under § 7701 [of the Internal Revenue Code] – the SSA is prohibited from releasing this list because employers are 'taxpayers' and revealing their identity would violate § 6103." Furthermore, the court finds that, due to the specific nature of the request, the Haskell Amendment, which "allows an agency to release, for statistical purposes, compilations of data, which do not identify a 'particular taxpayer,'" cannot be used here "as a vehicle to gain access to confidential tax return information."

Elec. Priv. Info. Ctr. v. NSA, No. 10-1533, 2011 WL 2710454 (D.D.C. July 8, 2011) (Leon,J.). Holding: Granting NSA's motion for summary judgment on the basis that it properly refused to confirm or deny the existence of records pursuant to Exemption 3; and denying plaintiff's cross-motion for summary judgment. The court holds the NSA properly refused to confirm or deny whether the agency had a relationship with Google pursuant to Exemption 3 in conjunction with Section 6 of the National Security Agency Act of 1959, which "broadly prohibits the disclosure of information pertaining to the organization, function, or activities of the NSA." As a threshold matter, the court notes that "it is well established that Section 6 of the NSA Act is a statutory exemption under Exemption 3." The court then finds that NSA's declaration is sufficient to support its withholding under Exemption 3 because it "provides more than cursory details concerning the relationship between the withheld material and NSA's organization and function." The court concludes that NSA's declaration "explains the relevance of the Information Assurance mission to national security, the clear tie between the requested information and the Information Assurance mission, and the cognizable harm posed by acknowledging the existence/non-existence of the information."

Cuban v. SEC, No. 09-996, 2011 U.S. Dist LEXIS 71064 (D.D.C. July 1, 2011) (Walton,J.). Holding: Granting, in part, defendant's motion for reconsideration with respect to the adequacy of the SEC’s search for a portion of the request and its assertion of Exemptions 3, 5 and 7(C) to withhold certain information; to the extent defendant's motion is denied, the court requires the SEC to provide additional information regarding searches and the application of exemptions. Although the SEC has invoked Exemption 3 as a basis for non-disclosure for the first time in its motion for reconsideration, the court ultimately concludes that defendant has not waived its ability to assert the exemption at this stage, noting that "[t]he proceedings in this case are not yet complete" and plaintiff "had an opportunity to respond" to this newly raised argument. The court then holds that the SEC properly withheld two records that "were created by a financial institution and contain either a report or a record of reports" under Exemption 3 in conjunction with the Bank Secrecy Act, 31 U.S.C. §5319, which "explicitly exempts suspicious activity reports from disclosure under the FOIA."

Surgick v. Cirella, No. 09-3807, 2011 WL 2600650 (D.N.J. June 29, 2011) (Hillman,J.). Holding: Denying IRS's motion to dismiss without prejudice. The court finds that the IRS properly withheld tax records related to a private corporation pursuant Section 6103(a) of the Internal Revenue Code, "which generally prohibits the dissemination of tax return information by a federal agency." The court finds that because plaintiffs failed to provide any authorization from the company, "the IRS is prohibited from releasing [the corporation's] tax information." However, the court also concludes that because "[i]t is unclear whether segregation could be utilized with respect to those documents requested by Plaintiffs," "before the Court may dismiss Plaintiffs' claims entirely, the IRS should at least address the applicability and plausibility of segregation in this matter in a subsequent brief."

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. The court finds that BOP improperly asserted Exemption 3 in conjunction with the National Defense Authorization Act for Fiscal Year 1997, 41 U.S.C. § 253b(m), and the Federal Procurement Policy Act, 42 U.S.C. § 423(a) and (f) to withhold certain technical proposal records associated with the requested contracts. As an initial matter, the court notes that "[t]he parties do not dispute that § 423 [generally restricting disclosure of contractor bid, proposal information, or source selection information before award of a contract] and §253b(m) [prohibiting disclosure of contractor proposals that are not incorporated into a contract with an agency] are statutes which leave no discretion as to the matters to be withheld." Reviewing the statutory text, implementing regulations, and the case law associated with § 423, the court concludes that "Exemption 3 does not protect bid or proposal information from disclosure postaward based on § 423 and its implementing regulations unless it 'pertains to another procurement or is prohibited by law.'" Because "[n]one of the documents requested by [plaintiff] pertain to another procurement," the court looks to § 253b(m) to ascertain whether "they are 'prohibited by law' from disclosure." The court then concludes that § 253b(m) "does not bar disclosure of documents incorporated by reference in awarded contracts." Accordingly, the court concludes that, to the extent that BOP asserted Exemption 3 to withhold documents incorporated by reference into awarded contracts, "then such documents must be released unless protected by some other FOIA Exemption." Moreover, "[s]ince [plaintiff] seeks disclosure only of successful proposals, BOP also cannot invoke Exemption 3 to withhold those documents and must rely on one of the other FOIA exemptions."

ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 1900140 (W.D. Wash. May 19, 2011) (Lasnik,J.). Holding: Granting, in part, and denying, in part, defendants' motion for reconsideration; permitting government to supplement its Vaughn index with respect to certain withholdings prior to reviewing the contested documents in camera; and concluding that defendants provided an insufficient basis for withholding certain information pursuant to Exemption 7(E). The court agrees to consider Transportation and Security Administration's (TSA's) objection to releasing portions of a government form that TSA claims "is protected from disclosure under Exemption 3 based on the agency's determination that the criteria for placement on the No Fly and Selectee Lists is sensitive security information ('SSI') under regulations promulgated pursuant to 49 U.S.C. §114(r)." The court notes that although TSA's involvement in the case is belated, "because final judgment has not yet been entered in this manner, the agency's failure to refer plaintiff's FOIA request to TSA does not appear to have been tactical, and the interests asserted by TSA are weighty, the Court will consider the applicability of Exemption 3." As such, the court orders defendants to provide further justification for withholding the portions of the government form.

Int'l Counsel Bureau v. CIA, No. 09-2269, 2011 WL 1195875 (D.D.C. Mar.31, 2011) (Bates, J.). Holding: Granting CIA's motion for partial summary judgment as to its assertion of the Glomar response on the basis of either Exemption 1 or Exemption 3. Exemption 3/Glomar: The court finds that, for the same reasons that asserted with respect to Exemption 1, the CIA properly invoked Exemption 3 in connection with sections of the National Security Act of 1947 and the CIA Act of 1949 as a basis for neither confirming nor denying the existence of information pertaining to four alleged Guantanamo detainees. The court notes that "[a]s an initial matter, the provisions of the NSA and the CIA Act cited by the Agency plainly are statutes contemplated by Exemption 3." The court rejects plaintiff's claim that "the 'Glomar' response is not justified because '[i]t is not a secret" that the detainees were in the U.S. government's custody at Guantanamo." In order to show an official acknowledgment on the part of the CIA, the court notes plaintiff bears the "burden of pointing to the specific information in the public domain that duplicates the information being withheld." Here, the court finds that plaintiff "has pointed to no evidence that the CIA has specifically acknowledged that it possesses records with respect to the four individuals who are the subjects of [plaintiff's] FOIA requests." The court concludes that plaintiff's proffered evidence, consisting of a reference to an interview with the then-CIA director concerning other detainees, news articles and a report issued by the Red Cross, are not sufficient demonstrate the CIA has waived its ability to assert the Glomar response. Additionally, the court determines plaintiff's "reliance on the Department of Defense's disclosure of its own intelligence interest in the four detainees is also unavailing, since disclosure by one agency cannot be imputed to another agency" and adds that "[t]he same reasoning applies even where another agency may have in its possession information obtained and originating from the CIA."

North v. DOJ, No. 08-1439, 2011 WL 1193201 (D.D.C. Mar. 31, 2011) (Kollar-Kotelly, J.). Holding: Granting EOUSA's motion for summary judgment on the basis that the search was adequate and its claims of exemption were justified and denying plaintiff's motion for summary judgment. "The court agrees that EOUSA appropriately invoked Exemptions 3 [in connection with Federal Rule of Criminal Procedure 6(e)] and 7(C) to redact the names of third-party individuals who appear to have participated in the grand jury proceedings." The court notes that plaintiff "does not argue that EOUSA improperly invoked these exemptions" and that it appears that "all [reasonably segregable] non-exempt information has been produced from the responsive records."

Lowy v. IRS, No. 10-767, 2011 U.S. Dist. LEXIS 34168 (N.D. Cal. Mar. 30, 2011) (Illston, J.). Holding: Denying both defendant's and plaintiffs' motions for summary judgment and ordering defendant to supplement its submissions. With respect to the records withheld under 26 U.S.C. § 6105(a), which protects tax convention information, the court, at the outset, notes that "in order to qualify for protection as tax convention information under 6105, the IRS must first demonstrate that the documents that it seeks to withhold under 6105 qualify as return information under 6103(b)(2)(A)." Here, the court finds that the IRS's declaration detailing the withholding of information under that section is "too 'conclusory and generalized' to meet [the IRS's] burden." Accordingly, the court directs the IRS to submit a supplemental declaration "providing a general description of the categories of documents withheld under 6105 and whether they are return information as defined by section 6103(b)(2)(A)."

The court then notes that "[i]f the documents are properly characterized as return information, the next question is whether they can be characterized as 'tax convention information' for the purposes of 26 U.S.C. § 6105." The court finds that "the documents that the IRS has described as received from Australia or the United Kingdom are exempt from disclosure, so long as they can be characterized as return information under section 6103." However, based on the declarations, the court determines that it is unclear "whether [some of] these documents were received from or sent to Australia" and that "[i]nformationsent to Australia is only protected insofar as it covers information relating to and/or reflecting information the IRS received from Australia." As such, the court holds that "the IRS must make a showing that these documents are tax convention information in that they relate to and/or reflect information that was received from Australia." Additionally, the court finds that the IRS must justify its assertion of section 6105 for certain withheld records for "which do not, on their face, appear to be tax convention information." Lastly, the court notes that "provided the IRS shows that the withheld documents are tax return and tax convention information in amended submissions, this Court will give deference to [the agency declarant's] determination that releasing the withheld documents would seriously impair tax administration."

As to the documents that were not tax convention information, the court finds that, based on descriptions contained in the IRS's Vaughn index, the IRS properly asserted Exemption 3 in conjunction with 26 U.S.C. § 6103(e)(7), which protects "return information" related to tax liability. The court determines that the IRS has shown that its "civil investigation of plaintiffs is still ongoing, so, unlike [a case where documents were furnished to the IRS after liability had been determined], tax liability [in this case] has not yet been established." Additionally, the court concludes that "[g]iven the scope of the information plaintiffs seek, and the IRS declarations explaining that release of the administrative file materials would impair their ongoing examination, . . . the release of the requested documents could 'disclose the direction of potential investigation to be followed' and they can properly be withheld."

Long v. DOJ, No. 06-1086, 2011 U.S. Dist. LEXIS 31435 (N.D.N.Y. Mar. 25, 2011) (Mordue, C.J.). Holding: Granting DOJ's Rule 54(b) motion for reconsideration regarding the court's prior order that directed the agency to release fields in the case management database and holding that such information is exempt from disclosure pursuant to Exemptions 3 and 6. The court determines that, in its motion for reconsideration, DOJ properly asserted Exemption 3 in connection with 42 U.S.C. § 300aa-12(d)(4)(A) to withhold vaccine type and date of vaccine administration fields contained in a case management database. For one, the court finds that those database fields "fall within the definition of information submitted to a special master and which cannot be disclosed without express permission" under the terms of 42 U.S.C. § 300aa-12(d)(4)(A). The court rejects plaintiffs' argument that such information falls outside the definition because "[Vaccine Act] petitioners' names and notice of their petitions are published in the Federal Register without any indication that express consent was obtained." On the contrary, the court notes that the statute specifically requires such publication. The court also dismisses plaintiffs' contention that "the Court of Federal Claims routinely discloses the vaccine type and date of administration specified in a petition on its docket sheets." Rather, the court finds it "cannot conclude that [such information is] always included on a case's docket sheet and declines to find that such facts are excluded from § 300aa-12(d)(4)(A)'s definition of 'information' submitted to a special master or the court in a proceeding." Lastly, the court concludes that 42 U.S.C. § 300aa-12(d)(4)(A) qualifies as an Exemption 3 statute because that section "unequivocally states that information submitted to a special master or the court may not be disclosed to a nonparty without the written consent of the person who submitted the information." Since "[p]laintiffs do not assert that they have obtained consent" from petitioners, they are prohibited from obtaining such information.

Hulstein v. DEA, No. 10-4112, 2011 U.S. Dist. LEXIS 25788 (N.D. Iowa Mar. 11, 2011) (Zoss, Mag.). Holding: Granting plaintiff's motion for summary judgment, in part with respect to certain withholdings, and denying in part; reserving ruling on plaintiff's motion for summary judgment until DEA submits supplemental information; and granting DEA's motion for summary judgment with respect to withholding of internal codes and information redacted pursuant to the Bank Secrecy Act. The court finds that DEA properly redacted certain information contained in a "DEA 6" form "on the basis that the information was received from the Secretary of the Treasury under the Bank Secrecy Act, 31 U.S.C. § 5311," which exempts from disclosure "'certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.'' However, the court denies summary judgment to DEA on certain discrete portions of the redacted form and orders an in camera review for other withheld portions.

Steiniger v. IRS, No. 10-282, 2011 U.S. Dist. LEXIS 22265 (S.D.N.Y. Mar. 3, 2011) (Francis, Mag.). Holding: Granting government's motion for summary judgment upon finding that searches were reasonable and documents properly redacted. The court holds that EOUSA properly redacted portions of plaintiff's pre-sentence investigation report prepared in connection with his criminal case pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 32(d)(3)(A). Specifically, EOUSA correctly "withheld portions relating to (1) diagnoses which, if revealed, could disrupt the plaintiff's rehabilitation and (2) names of third parties who might be subject to harm if their identities were made public."

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."

Lazaridis v. DOJ, No. 09-1177, 2011 WL 652469 (D.D.C. Feb. 24, 2011) (Collyer, J.). The court concludes that EOUSA properly invoked Exemption 3 in connection with Federal Rule of Criminal Procedure 6(e) to withhold "grand jury testimony in its entirety because its release 'would reveal the scope of the grand jury and the direction of the investigation by providing the identities of the targets... the source of the evidence, as well as the actual evidence produced before the grand jury.'" Likewise, the court finds that the FBI properly asserted the same rational to withhold "federal grand jury subpoenas, the names and identifying information of individuals subpoenaed to testify before the grand jury, [and] 'information that identifies specific records subpoenaed by the Federal Grand Jury.'" However, the court finds that the FBI "has not stated how disclosure of the grand jury's meeting dates would reveal its inner working" and, absent clarification on that point, "DOJ will be required to release that information."

Caruso v. ATF, No. 10-6026, 2011 U.S. Dist. LEXIS 16888 (D. Ore. Feb. 16, 2011) (Hogan, J.). The court finds that the Consolidated Appropriations Act does not prohibit ATF from disclosing certain federal firearms forms and gunsmith books to a firearms licensee. As a preliminary matter, the court notes that "[t]here does not appear to be a specific cite to [Exemption 3 in the appropriations bill] and the appropriations bill appears to have been enacted in December of 2009 and the Open FOIA Act appears to have been enacted in October 2009 possibly negating the applicability of the exemption to this case." Without reaching that issue, the court ultimately finds that although the Consolidated Appropriations Act prohibits disclosure of "information required to be kept by licensees pursuant to [18 U.S.C. § 923(g)]," because that section "actually requires copies of the records to be provided to the licensee, [such as] plaintiff in this case, the appropriations bill . . . does not [] preclude disclosure to plaintiff."

The court rejects ATF's assertion of Exemption 3 in connection with 26 U.S.C. § 6103(a) to redact "names of transferees and transferors and other information that identifies, for example, firearm manufacturers, on Applications for Tax-Exempt Transfer of Firearm and Applications for Tax Paid Transfer." "The court declines the government's invitation to declare such information constitutes 'return information' within the meaning of 26 U.S.C. 6103(a)."

Hodge v. FBI, No. 08-403, 2011 WL 532121 (D.D.C. Feb. 14, 2011) (Leon, J.). The court finds that the FBI properly invoked Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e)to withhold "the names of individuals who were either subpoenaed or appeared as witnesses before the Grand Jury." The court rejects plaintiff's claims that the redactions were "excessive," finding that these names are protected by other asserted exemptions and that the fact that "these names are contained in an FBI investigative report, FD-302, does not diminish the applicability of Exemption 3." The court notes that "FD-302s are the very forms on which information relating to Grand Jury witnesses, and others, would appear."

Sullivan v. Dep't of the Treasury, No. 09-3432, 2011 U.S. Dist. LEXIS 11463 (S.D. Tex. Feb. 7, 2011) (Harmon, J.). The court affirms the IRS's assertion of Exemption 3 in connection with 26 U.S.C. § 6103(a) to withhold "the name, taxpayer identification number, address, and tax return information of a third party."

Subh v. CIA, No. 10-0725, 2011 WL 149855 (D.D.C. Jan. 19, 2011) (Collyer, J.). The court concludes that the CIA properly redacted the results of an intelligence check pursuant to two Exemption 3 statutes. As an initial matter, the court finds that the National Security Act of 1947 and the Central Intelligence Agency Act of 1949, which protect intelligence sources and methods and information about CIA employees, respectively, "'are precisely the types of statutes comprehended by exemption 3.'"

Characterizing the CIA's response as "essentially a Glomar response," the court concludes that the CIA "establishe[d] that any further response to Plaintiff's FOIA request would reveal agency sources or methods." The court finds that "[i]f the CIA were to state that it had no information pertaining to Plaintiff, it would indicate either that it has no interest in him or is incapable of acquiring information about him." Additionally, the court notes that the "[a]lthough the release of the information Plaintiff requests may appear to pertain only to his application for employment, it may have greater significance," and "any further response . . . would result in disclosure of whether [the CIA] has an intelligence interest in Plaintiff, which, in light of the CIA's covert intelligence responsibilities, would amount to the disclosure of an intelligence method."

Guerra v. United States, No. 09-1027, 2010 WL 5211613 (W.D. Wash. Dec. 15, 2010) (Martinez, J.). The court denies defendant's motion for reconsideration with respect to its previous holding that Exemption 3 did not bar disclosure of plaintiff's "J-1 hardship waiver application." Rather, the court finds that the language of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), "specifically includes only [Department of State] records pertaining to the issuance or refusal of visas or permits to enter the United States; it is silent as to requests for hardship waivers."

Strunk v. U.S. Dep't of the Interior, No. 10-0066, 2010 WL 4780845 (D.D.C. Nov. 24, 2010) (Leon, J.). The court concludes that USDA properly withheld the records requested pursuant to Exemption 3 in connection with 7 U.S.C. § 2276(a)(2), which exempts the disclosure of certain categories of information collected by USDA "'unless such information has been transformed into a statistical or aggregate form that does not allow the identification of the person who supplied particular information.'" The court finds that in this case "USDA reasonably construed plaintiff's FOIA request for farmers' mailing addresses as one for 'data in unaggregated form'" and, moreover, that the agency showed "that the information that plaintiff requests falls within the scope of Exemption 3, as 7 U.S.C. § 2276(a)(2) requires the withholding [of] unaggregated data pertaining to individual farmers, ranchers, and other providers of data for USDA statistical reports 'in such a manner as to leave no discretion on the issue.'"

Riser v. Dep't of State, No. 09-3273, 2010 U.S. Dist. LEXIS 112743 (S.D. Tex. Oct. 22. 2010) (Ellison, J.). OPM did not adequately justify withholdings under Exemption 3 in connection with the National Security Act of 1947 (NSA), where it relied on an affidavit from an OPM FOIA official to support its claim of exemption. The court notes that in situations when this statute is invoked "the Director of National Intelligence or the CIA must at the very least actually exercise the authority granted by the [NSA]" and that this is typically achieved "through an affidavit from a CIA official." Here, the court finds that OPM's declaration "is both second-hand and conclusory." Based on its in camera inspection of the record at issue, the court concludes that it cannot ascertain how the withheld material "relate[s] to protecting intelligence sources and methods in any way." Accordingly, "the Court orders OPM to either disclose [that information] to Plaintiff or to produce an affidavit sufficient to justify the withholding under Exemption (b)(3)."

Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). Based on the findings of other courts and the fact that plaintiffs do not object to this particular withholding, the court concludes that the FBI properly withheld "information obtained from the Financial Crimes Enforcement Network" pursuant to Exemption 3 in accordance with the Bank Secrecy Act, 31 U.S.C. § 5311 et seq.

Am. Postal Workers Union, AFL-CIO v. USPS, No. 09-237, 2010 WL 3833941 (D.D.C. Sept. 30, 2010) (Sullivan, J.). USPS properly asserted Exemption 3 in connection with 39 U.S.C. § 410(c)(2) to withhold information related to the PFP program's performance-based incentives for employees. The court notes that "[a]s a threshold matter, the parties agree that § 410(c)(2)," which protects "'information of a commercial nature, including trade secrets, whether or not obtained from a person outside the [USPS], which under good business practice would not be publicly disclosed,'" constitutes "a statute of exemption as contemplated by Exemption 3."

The court rejects plaintiff's contention that "the requested information is not 'of a commercial nature'" within the meaning of the statute, finding that "it is information that 'would be of potential benefit to persons or firms in economic competition with the Postal Service' . . . [and] that the information is commercial under the common understanding of the word." With respect to plaintiff's claim that "'good business practices' would not prevent the disclosure of the requested information," the court concludes that "plaintiff offers no evidence contradicting the agency's contention that private sector delivery firms would not disclose this [detailed salary] information" to the public.

Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). The court determines that ATF properly withheld Firearm Trace Reports pursuant to Exemption 3 in connection with the Consolidated Appropriations Act of 2005, which "expressly prohibits disclosure of information in the Firearms Trace System Database and information maintained pursuant to 18 U.S.C. § 923(g)."

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.). The FBI failed to justify its withholding under Exemption 3 in connection with 26 U.S.C. § 6103(a)(1) where it only made the conclusory assertion that certain "information was properly exempted at the request of the [IRS] because the 'information was collected by the IRS with respect to tax return and personal information of third parties.'" The court orders the FBI to submit a supplemental declaration to provide additional detail to demonstrate that the IRS has properly directed the FBI to withhold the tax return information at issue.

Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). The court concludes that DEA did not provide a sufficient basis for invoking Exemption 3 in connection with 18 U.S.C. § 2517 to withhold wiretap intercept information. The court notes that while "[i]t is true that information pertaining to wiretaps may be withheld under Exemption 3," DEA "neither explains that the agency had no discretion on the decision to withhold this information nor sets forth the particular criteria applied in reaching its decision to withhold certain information in the draft affidavit."

Richardson v. DOJ, No. 09-1916, 2010 WL 3191796 (D.D.C. Aug. 13, 2010) (Huvelle, J.). The court finds that EOUSA properly withheld grand jury transcripts in full pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) because "'[a] grand jury transcript itself epitomizes the sensitive details of the proceedings that Congress sought to keep protected'" and releasing such documents would "'disclose the inner workings of the grand jury.'"

Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.). Defendants properly invoked Exemptions 3, 6 and 7(C) to protect a Presentence Investigation Report prepared by the judge who sentenced the two third parties. The court concludes that the defendants are justified in withholding the report under Exemption 3 pursuant to Federal Rule of Criminal Procedure 32(c)(3)(A) and 18 U.S.C. § 4208(c) to the extent that it reveals "confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties." Additionally, the court determines that use of Exemptions 6 and 7(C) were appropriate because the privacy interest involved is "substantial" and, conversely, that "there is not a significant public interest in disclosure."

Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). The court dismisses plaintiffs' arguments that the government waived its ability to assert Glomar in connection with Exemption 3, finding that "the public disclosures never acknowledge the existence or nonexistence of operational cables relating to the approval of the use of [enhanced interrogation techniques] as to [two detainees]." Regarding various communications between the CIA and Yemen, the court determines that "an official disclosure by the Yemeni government is not equivalent to an official disclosure by the CIA." Similarly, the court finds the CIA properly asserted the Glomar response in connection with Exemption 1 to refrain from providing official acknowledgment of information which is not public and would harm national security if released.

The court rejects plaintiffs' argument the Director of National Intelligence's (DNI's) "'half-page memorandum' authorizing the withholding is insufficient 'to satisfy [his] independent oversight responsibilities'" as required by National Security Act of 1947 (NSA) as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The court finds that "[b]y drafting the DNI Authorization [authorizing the CIA Director to protect sources and methods in connection with this case], the DNI sufficiently executed his duty 'to protect intelligence sources and methods.'" The court disregards plaintiffs' argument that the definition of "intelligence sources and methods" established by the Supreme Court in CIA v. Sims no longer applies after the IRTPA amendments. Using the Sims analysis, the court holds that "the requested records fit within the statutory exemption [of the NSA] allowing the CIA to withhold records that would disclose 'intelligence sources and methods,' . . . or 'the organization, functions, names, official titles, salaries, or numbers of [CIA] personnel.'"

The court finds that even though the CIA has ceased using enhanced interrogation techniques and foreign detention centers Exemption 3 still applies to the requested records because "'disclosure of the [information] reasonably could be expected to result in damage to national security.'" Additionally, the court holds that "because the records at issue fall under the coverage of Exemption 3, the CIA is permitted to withhold their disclosure regardless of the alleged illegality of the practices contained therein."

Sanders v. Obama, No. 09-912, 2010 WL 3001514 (D.D.C. Aug. 2, 2010) (Collyer, J.). The court concludes that EOUSA properly withheld grand jury transcripts pursuant Exemption 3 under the Federal Rule of Criminal Procedure 6(e). The court notes that "[t]o disclose a transcript would be to disclose the inner workings of the grand jury, which is prohibited." Moreover, the court accords no weight to plaintiff's assertion that he needs the transcripts "to ascertain how the government demonstrated probable cause in order to obtain an indictment in his criminal prosecution."

Hull v. IRS, No. 09-0024, 2010 WL 3034463 (D.Colo. Aug. 3, 2010) (Shaffer, Mag.). Exemption 3/exhaustion of administrative remedies: As an initial matter, the court finds that information submitted by the pension provider under the IRS's VCR Program constitutes tax return information. Additionally, the court rejects plaintiff's contention that the pension provider is not taxpayer as defined by 26 U.S.C. § 6103, noting that "[t]his argument flies in the face of settled case law: a tax-exempt organization is a taxpayer under [that code]." Because tax return information is protected by 26 U.S.C. § 6103 and plaintiff has not presented a waiver from the taxpayer as provided by IRS regulations, the court finds that "the IRS has not received a perfected claim" and "cannot issue a final ruling." As such, the court concludes that it lacks subject matter jurisdiction because plaintiff 's "administrative remedies are not exhausted because the IRS cannot and did not reach a final decision on an unperfected claim." Moreover, the IRS's letter denying plaintiff's administrative appeal and advising her of the ability to file a complaint in district court on the matter, "did not create subject matter jurisdiction, did not constitute a final decision" and is not binding on the court. Lastly, the court observes that "[e]ven if [it] had subject matter jurisdiction, because the requested information was return information protected from disclosure, the IRS properly withheld the information."

ACLU v. DOD, No. 04-4151, 2010 WL 2787645 (S.D.N.Y. July 15, 2010) (Hellerstein, J.). The question before the court is "whether notwithstanding prior official disclosures and an official repudiation of underlying intelligence programs, the Government may, under Exemption 3, properly withhold the information at issue in this action. Plaintiffs contend that the detention and interrogation programs . . . are not an 'intelligence source [or] method' within the meaning of the National Security Act and the CIA Act [of 1949]" because they "violate domestic and international law and have been officially repudiated." The court finds that "[p]laintiff's contention, to limit Exemption 3 to 'lawful' intelligence sources and methods, finds no basis in the statute." The court notes that "[t]he case law and the plain language of the statutes are clear," "[c]ourts are not invested with the competence to second-guess the CIA Director regarding the appropriateness of any particular intelligence source or method." With respect to plaintiff's argument regarding "[t]he [CIA] Director's obligation to 'ensure compliance with the Constitution and laws of the United States,'" the court find that such an obligation is the Director's, and that "Exemption 3 should not be a means for a district court judge to second-guess the CIA Director's judgment regarding what constitutes 'an unacceptable risk . . . [to] the Agency's intelligence-gathering process,' or to require the Director to give detailed account to the judiciary that would analyze the nature of the intelligence source or method, the value to the overall CIA program, and the risk that disclosure might pose to national security."

Valfells v. CIA, No. 09-1363, 2010 WL 2428034 (D.D.C. June 17, 2010) (Collyer, J.). Exemptions 1 & 3 (Glomar)/waiver: "In this case, Plaintiffs do not challenge whether Exemptions 1 and 3 were legitimately raised nor do they dispute that a Glomar response is proper in cases where the fact of the existence or nonexistence of an agency record itself falls within a FOIA exemption." Instead, plaintiffs asserted that the CIA waived its ability to assert the Glomar response due to the fact that the FBI released a report containing "redactions of CIA-originating information made at the request of the CIA on the basis of Exemption 1." However, the court finds that plaintiffs' "[l]ogical deductions [about the source of the information] are not . . . official acknowledgments" and notes that, in fact, "[t]he CIA asked for redactions and thus attempted to avoid anything that could constitute an official acknowledgment, while the FBI, which has very different interests, was able to fulfill the goals of the FOIA and release most of the documents to Plaintiffs." The court contrasts the instant case with D.C. Circuit decision in Wolf v. CIA. In Wolf, "it was the Director of the CIA himself who divulged information before a Congressional committee," but, here, despite the fact that "responses to FOIA requests are also official to some degree, it cannot be said that an FBI response to a FOIA request constitutes an official action by the CIA." The court also notes that even if the FBI's disclosure of the report represented an "'official acknowledgment' by the CIA, as the CIA had the opportunity to review the report and request redactions, Plaintiffs would still be entitled to nothing more," and "the CIA would be required only to acknowledge the existence of information contained in the [report]."

Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.). National Security Act of 1947 & CIA Act of 1949: "Given the 'special deference' owed to the CIA's affidavit concerning the inclusion of the withheld material within these statutes' coverage, [the CIA] is entitled to summary judgment on its use of [this exemption]."

Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). The court finds that IRS has not shown why its invocation of this Exemption requires withholding documents in full, as opposed to redacting protected materials and releasing other portions. "At a minimum, the IRS may provide the names of the IRS and DOJ employees who sent or received the emails at issue without running afoul of § 6103." The IRS is ordered to release this information, "along with any other information . . . that can be segregated from [properly withheld portions]."

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.

Blackwell v. FBI, No. 09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.).(18 U.S.C. § 2510-2520 &FRCrP 6(e)). "Intercepted wiretap information is exempt from disclosure under Exemption (b)(3)." Similarly, "certain secret aspects of a grand jury investigation" are protected. Here, the FBI properly withheld "'information which explicitly discloses matters occurring before a Federal Grand Jury,'" including information that would identify grand jury witnesses, records subpoenaed, and the dates the grand jury convened. "[D]isclosure of this information would divulge protected aspects of the grand jury investigation."

Shannahan v. IRS, No. 08-0452, 2010 U.S. Dist. LEXIS 112 (W.D. Wash. Jan. 4, 2010) (Robart, J.). A Special Agent's report, not previously identified, was properly withheld pursuant to these two exemptions for reasons discussed in the court's previous orders.

The court finds that IRS has met its burden of showing that release of documents obtained through a mutual legal assistance agreement with Hong Kong "would pose a risk of substantial interference with federal tax administration" and would violate the confidentiality portion of the agreement. Morever, "there is not a standing tax treaty in place between Hong Kong and the United States," thus agreements such as the current one are entered into on a case-by-case basis, and their disclosure might discourage Hong Kong from entering into similar agreements in the future. Plaintiff "has not brought forth evidence to controvert [defendant's declarant's] justifications for withholding these documents." Defendant also properly used Exemption 3 to protect information obtained from a confidential source, as revealing the source's identity would make the source less likely to cooperate in the future and would also discourage others from providing information to the IRS. Contrary to plaintiff's claims, defendant has shown how release of this information would identify the source. Plaintiff has failed to show that defendant has already provided sufficient information to identify the source, thus nullifying the impact of additional disclosures. The IRS also properly withheld documents it obtained through subpoenas to third parties. Disclosure of this information would reveal the scope of the IRS's investigation. "[E]ven where documents pertain only to the plaintiff, not to third parties, these documents nonetheless may be withheld under Exemption 3 and 26 U.S.C. § 6103 if they were 'obtained from IRS databases and pursuant to summonses and not from plaintiff.'" Plaintiff has not shown that his clients "have actual possession of the documents as opposed to a general knowledge of their contents," and the IRS's declarant "has articulated a specific basis for his determination that the release of these documents would cause substantial interference with federal tax administration." Additionally, the IRS has established that it properly withheld information from its Electronic Database because release of such information "would seriously impair federal tax administration by providing [plaintiff's clients] with knowledge of the government's theories and analysis of the case [against them]." Disclosure would also have the effect of informing plaintiff's clients "what information the government has not been able to obtain." The court finds that release of any portions of the Electronic Database would provide plaintiff's clients with insight into the case against them, thereby causing a substantial likelihood of interference with federal tax administration.

Physicians for Human Rights v. DOD, No. 08-273, 2009 WL 5125893 (D.D.C. Dec. 30, 2009) (Bennett, J.). DIA did not provide sufficient detail to justify its assertion of a certain Exemption 3 statute to withhold documents related to agency personnel and its organizational structure.

Wolfson v. United States, No. 09-0304, 2009 WL 4186045 (D.D.C. Nov. 30, 2009) (Huvelle, J.). (18 U.S.C. §§ 2510-2521) "The Court concludes that the information described in the DOJ's supporting declaration as the contents of communications intercepted by means of a Title III wiretap has properly been is [sic] withheld under Exemption 3."

Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). "According to the [IRS] Declaration, all documents withheld under Exemption 3 contain information about other taxpayers including their names, social security numbers, taxpayer identification numbers, addresses, contact information, and filing information. . . . [T]he Government properly withheld these documents under Exemption 3 and § 6103." The IRS was not obligated to disclose to plaintiffs information about themselves in their individual capacities, since their request was made in their capacities as executors of their mother's estate. Finally, though § 6103(e) would allow plaintiffs to obtain information "regarding both entities in which the Estate is a shareholder and trusts in which [plaintiffs' mother] was a grantor and, for a time, trustee," plaintiffs did not follow proper procedures set out in IRS regulations to receive this information.

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.). The court determines that portions of the Cultural Property Implementing Act meet the requirements of Exemption 3. One provision, 19 U.S.C. § 2605(h), exempts information from the disclosure requirements of the Federal Advisory Committee Act (FACA). "Thus, although 19 U.S.C. § 2605(h) does not explicitly mention FOIA, it nevertheless specifically exempts a provision of the [FACA] that makes FOIA's provisions applicable to the advisory committee. Thus, 19 U.S.C. § 2605(h) is a disclosure-prohibiting statute." Under this statute, information is withheld if the President or his designee determines that release "would compromise the government's negotiating objectives or bargaining positions," a determination that has been made here by the President's designee. Another section of the Cultural Property Implementation Act, 19 U.S.C. § 2605(i)(1)-(2), "prohibits disclosure of information submitted in confidence to the advisory committee." This portion of the statute covers information submitted in confidence to the advisory committee itself, and also covers information "'submitted in confidence by the private sector' to the Government." Defendant has established that the withheld information was submitted in confidence and that confidentiality "was necessary in order for individuals to disclose information."

ACLU v. DOD, No. 08-437, 2009 WL 3326114 (D.D.C. Oct. 16, 2009) (Lamberth, C.J.). "[T]he Court finds that plaintiffs have not satisfied their burden of proving that the government officially disclosed the specific information withheld. . . . Plaintiffs assert that the government's release of the declassified [Office of Legal Counsel] memoranda and the [Inspector General] Report demonstrates that the information they seek is in the public domain. These documents contain general information regarding defendants' interrogation program. . . . The redacted information at issue in this case, however, is specific and particular to each detainee and would reveal far more about the CIA's interrogation process than the previously released records." Furthermore, "the redacted information relates not just to the use of [enhanced interrogation techniques, EITs], but also to the interrogation methods and procedures that are authorized in the Army Field Manual and are in use today. . . . Release of such information would seriously damage national security by compromising intelligence sources and methods . . . even if the damage is not apparent to the casual observer." Given the fact that defendants reprocessed the responsive documents and made additional disclosures, "the Court can 'see no reason to question [defendants'] good faith in withholding the remaining [information] on national security grounds.' . . . The Court also finds that plaintiffs' reliance on the report authored by the . . . Red Cross is misplaced. This report does not constitute an official disclosure by the government. Without official disclosure, classified information is not considered to be public." Furthermore, "the Court does not see how the President's order prohibiting the use of EITs and closing the CIA's prisons justifies full disclosure of the records sought. Plaintiff's theory would require the government to fully disclose the details of every classified program that the government discontinues. This simply is not true." Similarly, plaintiffs' assertion that defendants cannot "redact portions of the detainees' statements that would expose 'intelligence sources and methods" is incorrect. "It is within defendants' broad discretion to determine 'whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process.'" Finally, "[t]he Court finds that defendants have shown that damage to national security would reasonably result if the detainees' statements were disclosed, and that defendants did not classify portions of the detainees' statements to conceal violations of the law or prevent embarrassment. . . . The redacted information . . . relates only to specific information that has not yet been disclosed to the public because of the damage its release would cause to national security." Plaintiffs have failed to show that this information was classified "in order to conceal violations of the law."

Moore v. Nat'l DNA Index System, No. 06-362, 2009 WL 3259065 (D.D.C. Oct. 13, 2009) (Sullivan, J.). Even if plaintiff could definitively link himself to specific DNA records maintained by defendants, 42 U.S.C. § 14132(b)(3) forbids release of this type of information under the FOIA.

Newport Aeronautical Sales v. Dep't of the Air Force, No. 04-1283, 2009 WL 3193150 (D.D.C. Oct. 7, 2009) (Kessler, J.). The parties acknowledge that 10 U.S.C. § 130 is "an established Exemption 3 statute." Defendant is correct that its prior release of earlier versions of responsive manuals does not preclude it from asserting an applicable exemption as to more recent versions of the manuals. Plaintiff challenges DOD's application of its regulations. However, the court's jurisdiction is limited to a determination of whether 10 U.S.C. § 130 qualifies as an Exemption 3 statute. Finding that it is, "the Air Force need only show that the information in question falls within its boundaries." The court finds that the "Air Force's showing is sufficient to establish that the information requested is exempt from FOIA under 10 U.S.C. § 130."

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). Upon consideration of DOJ's declaration, as well as in camera review of the documents, the court determines that DOJ has made a sufficient showing to justify its use of these exemptions.

North v. DOJ, No. 08-1439, 2009 WL 3113243 (D.D.C. Sept. 30, 2009) (Kollar-Kotelly, J.). Defendant EOUSA properly invoked Exemption 3, through Rule 6(e) of the Federal Rules of Criminal Procedure, to withhold a copy of a grand jury subpoena issued to plaintiff, "because its disclosure would reveal secret information about the scope of the grand jury's investigation." The fact that the trial in question is now over is irrelevant, as "there is no time limit on Rule 6(e)." Plaintiff has not shown that the subpoena he requested has entered the public domain.

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."

Judicial Watch, Inc. v. U.S. Dep't of State, No. 08-1011, 2009 WL 2842881 (D.D.C. Sept. 3, 2009) (Leon, J.). The State Department properly invoked Exemption 3, and the Immigration and Naturalization Act, 8 U.S.C. § 1202(f), to withhold information pertaining to the eligibility of certain individuals to enter the United States. "The statute prohibits disclosure 'not only of the information supplied by the visa applicant, but also any information revealing the thought processes of those who rule on the application.'" The withheld information is covered by the statute because "it was retrieved from a database used to determine visa eligibility." Furthermore, defendant has provided enough information about what was withheld to determine that the Immigration and Naturalization Act applies.

Covington v. McLeod, No. 08-1220, 2009 WL 2525933 (D.D.C. Aug. 19, 2009) (Bates, J.). "It is well-settled law in this circuit that Rule 6(e) [of the Federal Rules of Criminal Procedure] operates through FOIA Exemption (b)(3) to allow an agency to withhold grand jury materials that, if disclosed, would 'tend to reveal some secret aspect of the grand jury's investigation, such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.' . . . There is no doubt that records of what occurred before the grand jury and, in particular, records of statements made by the plaintiff's co-defendants to the grand jury are exempt from disclosure under FOIA Exemption (b)(3)." Though plaintiff asserts that the grand jury minutes have been released, he "has not established that the [minutes are] broadly available within the Department of Justice or in the public domain, or that he is entitled to [them]." Moreover, "[t]o the extent that the plaintiff means to argue that his need for the grand jury minutes outweighs the interest in maintaining them as secret, his argument is misplaced in a FOIA action."

Bretti v. DOJ, No. 08-450, 2009 WL 2371508 (N.D.N.Y. Aug. 4, 2009) (Hurd, J.). The FBI properly invoked this exemption in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure as well as 18 U.S.C. § 2517 to withhold grand jury records and lawfully recorded tape conversations, respectively.

Carter, Fullerton & Hayes, LLC v. FTC, No. 07-1041, 2009 WL 2222364 (D.D.C. July 24, 2009) (Lamberth, C.J.). Defendant has shown that it properly used this exemption in conjunction with § 21(f) of the FTC Act to protect documents submitted to it as part of its investigation of state liquor regulations.

Training and Outreach
Next Events
April 16, 2014
June 11, 2014
For a full list of upcoming events, visit our Key Dates page.
To access DOJ documents that are posted online by OIP, please visit the FOIA Library.
For government-wide FOIA information including how to make a FOIA request to other federal agencies, please visit FOIA.GOV.
General Information Office of Information Policy
 
Leadership
Melanie Ann Pustay
Director
Contact
Office of Information Policy
(202) 514 - FOIA (3642)
Stay Connected YouTube Twitter Facebook Sign Up for E-Mail Updates Subscribe to News Feeds