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Exemption 7C

Supreme Court Decisions

FCC v. AT&T, Inc., 131 S. Ct. 1177 (U.S. Mar. 1, 2011) (Roberts, C.J.).  The Supreme Court holds that "the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations."  The Court rejects the Third Circuit's finding that "Exemption 7(C) extends to the 'personal privacy' of corporations, since 'the root from which the statutory word [personal] . . . is derived' is the defined term 'person.'"  The Court notes that while the word "'[p]erson' is a defined term in the statute; 'personal' is not" and "[w]hen a statute does not define a term, we typically 'give the phrase its ordinary meaning.'"  The Court finds that in common usage the term "'[p]ersonal' ordinarily refers to individuals" and that the word is not used to "refer[] to corporations or other artificial entities."  The Court finds that the dictionary definition, the statutory language, as well as the legal usage of the term do not support extending the use of the word "personal" to reference corporations. 

Furthermore, the Supreme Court adds that "the purpose and scope of Exemption 7(C) becomes even more apparent when viewed in [the] context" of the "pre-existing FOIA exemptions."  The Court notes that it "has regularly referred to [Exemption 6]," which contains "nearly identical" terminology as Exemption 7(C), "as involving an 'individual's right of privacy.'"  Moreover, the Court finds that "[e]ven if the scope of Exemption 6 is also limited by the types of files it protects, the 'personal privacy' phrase importantly defines the particular subset of that information Congress sought to exempt" and that "because Congress used the same phrase in Exemption 7(C), the reach of the phrase in Exemption 6 is pertinent in construing Exemption 7(C)."  The Court also finds significant that "Congress did not, on the other hand, use language similar to that in Exemption 4" which "pertains to 'trade secrets and commercial or financial information obtained from a person and privileged or confidential."  The Court notes that Exemption 4 "clearly applies to corporations – it uses the defined term 'person' to describe the source of information – and we far more readily think of corporations as having 'privileged or confidential' documents than personally private ones."  Additionally, the Court points to an Attorney General's memorandum to agencies regarding Exemption 7(C) to illustrate that "the Government has long interpreted the phrase 'personal privacy'" as "'pertain[ing] to the privacy interests of individuals.'" 

Court of Appeals Decisions

Rimmer v. Holder, 700 F.3d 246 (6th Cir. 2012) (Boggs, J.).  Holding: Affirming district court's grant of summary judgment in favor of the FBI.  The court upholds the application of Exemptions 6 and 7C to the investigative records at issue, noting that "[b]ecause it is undisputed that all the redactions at issue were contained in FBI records compiled for the purpose of law enforcement, the district court correctly applied the more protective standards of Exemption 7C to both the government's Exemption 6 and Exemption 7(C) redactions." The court acknowledges that a "privacy interest exists not only for those who are suspects in an investigation, but also for third parties mentioned in the documents, such as witnesses, informants, and investigators."  However, the court concludes that the requester has not presented a public interest that outweighs the privacy rights of the individuals mentioned in the investigative files at issue. 

First, the court rejects plaintiff's argument that he needs the information in order to present exculpatory evidence in his state proceeding.  "This court has made clear that the purpose of the FOIA is not to act as a 'substitute for the normal process of discovery in civil and criminal cases' and will not turn the purpose of advancing private litigation into a public one." 

Next, with regard to the primary public interest argument that plaintiff makes on appeal, i.e. that there is a public interest in "'the revelation of wrongdoing in the [J]ustice [D]epartment," the court notes that "more than bare allegations of federal malfeasance are required before the public interest becomes significant enough to overcome the privacy concerns embodied in Exemption 7(C)."  The court "note[s] that FOIA is concerned only with shedding light on misconduct of the federal government, not state governments."  In the instant case, "[i]t is true that, if the federal government had prosecuted [plaintiff], it would have had an obligation under Brady v. Maryland, 373 U.S. 83 (1963), to provide him with any exculpatory information in its possession.  Here, however, the FBI declined to prosecute [plaintiff], who was prosecuted by Tennessee only.  Thus, while the state may have breached its Brady obligations by failing to provide [plaintiff] with evidence of [a witness'] FBI interview and photo-lineup identification, [plaintiff] presents no evidence that the FBI had any similar obligation."  The court also comments that plaintiff has not "provide[d] evidence showing that the FBI somehow used its status as a joint investigator to shield exculpatory information from" plaintiff.  Thus, the court concludes that there is no evidence of misconduct and, accordingly, no public interest sufficient to outweigh the privacy rights of the third parties mentioned in the files.

Finally, the court notes that even if there were evidence of FBI misconduct, plaintiff's challenge would still fail because "he cannot show that the information he seeks would likely advance the public interest in revealing agency misconduct."  "There is no redaction of material describing FBI efforts to hide information, an FBI plan to 'game' the joint investigation so as to sequester information within the non-prosecuting agency, or any other actual action taken by the FBI; all that exists is the deletion of information that would identify those who were mentioned in the … file."  The Six Circuit rejects plaintiff's claim that Roth v. DOJ requires "some sort of 'heightened scrutiny,'" finding Roth to be "inapposite, as it dealt with review of the FBI's use of a Glomar response . . . rather than its use of a FOIA exemption to merely redact content," as was done here.

Hustein v. DEA, No. 11-2039, 2012 WL 671964 (8th Cir. Mar. 2, 2012) (Bright, J.).  Holding:  Reversing the judgment of the district court; and concluding that DEA properly withheld certain information pursuant to Exemptions 7(C) and 7(D).  The Eighth Circuit reverses the district court's decision to release "the names and signatures of law enforcement personnel" from two reports as well as a specific paragraph from one of the reports containing third-party information.  With respect to the law enforcement personnel, the Eighth Circuit notes that plaintiff "presented no public interest to weigh against the agents' recognized privacy interests in their involvement in a particular investigation, nor offered any evidence of government impropriety beyond casting general aspersions on the fact that the DEA was investigating him."  Accordingly, the Eighth Circuit concludes that "[a]bsent any such allegations, the names of the agents involved in the investigation should remain confidential [because] 'something, even a modest privacy interest, outweighs nothing every time.'"  Further, based on an in camera review of the report containing the redacted paragraph, the Eighth Circuit determines that "the withheld information could be used to identify a private individual and, therefore, triggers the privacy concerns under exemption 7(C)" and, conversely, "[t]he information also casts minimal light on the DEA's conduct and would reveal nothing meaningful about the DEA's performance of its statutory duties."  In the absence of any allegations of government wrongdoing, the Eighth Circuit holds that the investigative report was properly redacted. 

World Publ'g Co. v. DOJ, No. 11-5063, 2012 WL 560891 (10th Cir. Feb. 22, 2012) (Kelly, J.).  Holding:  Affirming the district court's decision that defendant's assertion of Exemption 7(C) to protect third-party booking photographs was appropriate; and concluding that the district court did not abuse its discretion in denying plaintiff's request for discovery.  The court holds that the United States Marshals Service (USMS) properly withheld the requested booking photographs pursuant to Exemption 7(C).  The Tenth Circuit considered the holding of the Sixth Circuit in Detroit Free Press, which had found no privacy interest in booking photos under certain circumstances, but then joined the Eleventh Circuit in finding that there was a privacy interest.  In response to plaintiff's argument that "booking photos are generally available from state law enforcement agencies," the court finds that "the actions of state law enforcement agencies in disclosing booking photos does not mean that USMS booking photos are generally available to the public outside of the Sixth Circuit."  The court concludes that "[p]ersons arrested on federal charges outside of the Sixth Circuit maintain some expectation of privacy in their booking photos."  As to the public availability of the photos, the court finds that "[e]xcept in limited circumstances, such as the attempt to catch a fugitive, a USMS booking photograph simply is not available to the public," and determines that notwithstanding any limited disclosures by USMS "'the purpose of Exemption 7(C) . . . remains intact' and applying the exemption is appropriate."  In terms of the public interests involved, the court finds that "there is little to suggest that disclosure of booking photos would inform citizens of a government agency's adequate performance of its function" or "would significantly assist the public in detecting or deterring any underlying government misconduct."  Additionally, the court finds that "[t]here is also little to indicate that the release of booking photos would allow the public to detect racial or ethnic profiling without more information, and profiling has not been alleged here."  Although the court opines that "[i]f a request was made on the basis of case-specific 'compelling evidence' of illegal activity, release might be appropriate after going through the proper Reporter's Committee analysis [set forth by the Supreme Court]," it concludes that in the instant case "when the public interest is balanced against the privacy interest in a booking photo, [plaintiff's] request would not further the purpose of the FOIA."  

Williams v. Comm'r of Internal Revenue, No. 11-30008, 2011 U.S. App. LEXIS 20627 (5th Cir. Oct. 11, 2011) (per curiam).  Holding:  Affirming district court's grant of summary judgment to defendant on the grounds that the IRS properly withheld records pursuant to Exemption 7(C). 

ACLU v. DOJ,Nos. 10-5159 & 10-5167, 2011 WL 3890837 (D.C. Cir. Sept. 6, 2011) (Garland, J.).  Holding:  Affirming the district court's order requiring release of specified documents; but vacating the balance of the district court's decision, and remanding for further development of the record.  At the outset, the D.C. Circuit notes that although DOJ asserted both Exemptions 6 and 7(C), it "need only consider whether [DOJ] properly invoked Exemption 7(C)" since it "is more protective of privacy than Exemption 6' and thus establishes a lower bar for withholding material" and "plaintiffs concede that the requested records . . . are 'records compiled for law enforcement purposes.'"  The D.C. Circuit first considers the records that the district court ordered defendants to release, i.e., the "docket information (case name, docket number, and court) from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data without a determination of probable cause, and in which those individuals were subsequently convicted or entered public guilty pleas." 

With respect to the privacy interest involved, the D.C. Circuit notes that although the information at issue "by itself [ ] would disclose neither the charges nor the disposition," there is the potential for "derivative use" of the information because "it would take little work for an interested person to use the docket information on the government's list to look up the underlying case files in the public records of the courts, and therein find the information at interest," which plaintiffs intend to do.  While acknowledging that information sought by plaintiffs implicates privacy concerns, the court finds that "[t]he privacy interests at stake in this case . . . are considerably weaker than those at issue in [the] Reporters Committee" case decided by the Supreme Court.  Unlike the rap sheets that were at issue in Reporter's Committee, the D.C. Circuit finds that "even if the docket information [at stake in this case] is used to find the underlying proceedings, for any particular individual it mostly likely would reveal only a single prosecution, rather than a comprehensive scorecard of the person's entire criminal history."  Additionally, the D.C. Circuit notes that "the information at issue here is all less than (and probably quite a bit less than) ten years old, unlike the Reporters Committee rap sheets that recorded a lifetime of everything from major crimes to youthful indiscretions."  The D.C. Circuit also reasons that "[t]he fact that information about these proceedings is readily available to the public reduces further still the incursion on privacy resulting from disclosure."  Moreover, the D.C. Circuit finds that "unlike the rap sheet information in Reporters Committee, the information at issue here is not practically obscure." 

As to defendants' argument that "the disclosures sought here will draw renewed attention to individuals in a way that the initial disclosures did not," the D.C. Circuit finds that "[i]t is little more than speculation to suggest that friends or associates who did not learn of a conviction at the time it occurred (whether through press accounts, press releases, or other means) will hear of it for the first time merely because the Justice Department releases a list of docket numbers, courts, and case names."  To the extent that defendants claim that "the information the plaintiffs seek is practically obscure because they cannot identify the prosecutions in which they are interested without the government's assistance," the D.C. Circuit determines that "all that is practically obscure is information regarding the government's policy" with respect to cell phone tracking, but not the "information that raises issues of personal privacy – that is, the fact that particular individuals have been convicted of or pled guilty to crimes."  With regard to DOJ's assertion that the "derivative use" of the docket information will cause an invasion of privacy because criminal defendants or their counsel may be contacted as a result of any disclosures, the D.C. Circuit concludes that such an intrusion would be "marginal" and also finds that "disclosure under FOIA [will not] make that information any more accessible than it already is through publicly available computerized databases."

In contrast, the D.C. Circuit determines that there is a "significant public interest in disclosure, something altogether absent in Reporters Committee."  First, the D.C. Circuit finds that "[t]he use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attention and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of 1986 . . . should be revised either to limit or to facilitate the practice."  Additionally, the D.C. Circuit observes that "[c]ourts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance" and notes that "[t]he Supreme Court has recently granted certiorari to address the GPS issue."  As such, the D.C. Circuit finds that "[t]he disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool."  The D.C. Circuit rejects defendants' argument that "the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing."  Rather, the D.C. Circuit finds the legality or illegality of such a program "is irrelevant to this case."  Here, "plaintiffs are not (or at least not only) seeking to show that the government's tracking policy is illegally improper, but rather to show what that policy is and how effective or intrusive it is."  Contrary to defendants' contention, the D.C. Circuit also finds that "[t]he fact that the public already has some information [on this subject] does not mean that more will not advance the public interest."  As to defendants' argument that consideration of the "derivative use" of the information at issue in terms of identifying a qualifying public interest is improper, the D.C. Circuit concludes that if it "consider[s] derivative use for evaluating privacy concerns, [then it] must do the same for the public interest."  In conclusion, the D.C. Circuit holds that "in light of the strength of the public interest in disclosure and the relative weakness of the privacy interests at stake, [it] conclude[s] that production of the requested information will not constitute an 'unwarranted' invasion of personal privacy under Exemption 7(C)."

With respect to "plaintiffs' challenge to the district court's refusal to direct the government to produce: . . . the list of docket information for criminal cases in which the defendants were acquitted, or for cases that were dismissed or sealed (and remain under seal)," the D.C. Circuit notes that "the distinction between indictments resulting in convictions or guilty pleas, and those resulting in acquittals or dismissals, or cases that remain sealed," "makes some intuitive sense" because privacy concerns are potentially greater for cases that resulted in an acquittal or dismissal and those that are sealed.  As such, "[r]ather than attempt to resolve [the] question [as to the applicability of Exemption 7(C) to different categories of these cases, which] may turn out be purely academic," the D.C. Circuit vacates the district court's ruling with respect to these materials and orders it "to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed)."  

Likewise, the D.C. Circuit concludes that further development of the record is necessary with respect to the district court's judgment that defendants properly withheld in full the "docket number and case name (with personally identifiable information redacted) of one application to engage in warrantless cell phone tracking" and properly redacted "the docket number of another application."  The D.C. Circuit notes that there are a number of outstanding issues with respect to the nature and status of these documents that need to be addressed before the propriety of the defendants' withholdings can be evaluated.

Pickard v. DOJ, No. 08-15504, 2011 WL 3134505 (9th Cir. July 27, 2011) (Silverman, J.).  Holding:  Reversing district court's grant of summary judgment and concluding that the DEA cannot assert the Glomar response in conjunction with Exemptions 7(C) and 7(D) to deny the subject of the request's status as an informant where the government officially confirmed that status in open court in the course of official proceedings; and remanding the matter for the district court to determine the appropriateness of DEA's exemption claims.  The Ninth Circuit holds that the DEA cannot invoke a Glomar response in conjunction with Exemptions 7(C) and 7(D) with respect to an informant in plaintiff's criminal case because the government has "officially confirmed" his status as an informant within the meaning of FOIA's (c)(2) exclusion.  The (c)(2) exclusion provides that an "'agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.'"  Quoting the D.C. Circuit in Boyd v. Criminal Division of the U.S. Department of Justice, the Ninth Circuit notes that "'[w]here an informant's status has been officially confirmed, a Glomar response is unavailable, and the agency must acknowledge the existence of any responsive records it holds.'" 

Although DEA's submissions demonstrated that there was "'no official public pronouncement regarding the status of [the subject] as a confidential source,'" the Ninth Circuit determines that "nothing in the statute or legislative history suggests that in the context of the interests protected by the (c)(2) exclusion, 'official confirmation' requires that the government issue a press release publishing the identity of a confidential informant or that the director of a law enforcement agency personally identify the informant." Rather, the Ninth Circuit finds that "the plain language of the term 'official confirmation' in the context of 5 U.S.C. § 552(c)(2) leads to . . . a 'rational common-sense result' when read to mean an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue." 

In this case, the Ninth Circuit finds that "[a]t [plaintiff's] criminal trial, the government, as part of its case-in-chief, intentionally elicited testimony from [the subject] and several DEA agents as to [his] activities as a confidential informant in open court and in the course of official and documented public proceedings."  Accordingly, "the revelation of [the subject's] identity as an informant was not the product of an unofficial leak, nor was it improperly disclosed in an unofficial setting by careless agents."  Having allowed "agents and confidential informants testify at trial in open court about the identity and activities of those confidential informants," the Ninth Circuit concludes that the government "may no longer refuse to confirm or deny" the existence of records concerning that informant.  However, the Ninth Circuit notes that "[t]his is not to say that the DEA is now required to disclose any of the particular information requested by [plaintiff]," and remands the matter to the district court to "determine whether the contents, as distinguished from the existence, of the officially confirmed records may be protected from disclosure under the DEA's claimed exemptions." 

Blackwell v. FBI, No. 10-5072, 2011 WL 2600831 (D.C. Cir. July 1, 2011) (Kavanaugh, J.).  Holding:  Affirming the district court's decision that the FBI properly invoked Exemptions 7(C) and 7(E) and conducted an adequate search.  Under the standard set forth by the Supreme Court in Favish, the D.C. Circuit notes that in cases such as this one where plaintiff alleges government misconduct as a public interest, "the requester must at a minimum 'produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'"  Here, the D.C. Circuit finds that plaintiff "has failed to meet the demanding Favish standard," where "[t]he only support [he] offers for his allegation of government misconduct is his own affidavit, which recounts a litany of alleged suspicious circumstances but lacks any substantiation."  As such, the D.C. Circuit affirms the district court's determination that the FBI properly invoked Exemption 7(C).

The D.C. Circuit rejects plaintiff's contention that "the FBI's search for responsive documents was inadequate because the Bureau did not search its databases using the names of the individuals he had specifically mentioned in his request."  To the contrary, the D.C. Circuit concludes that "[b]ecause a search for records 'pertaining to' specific individuals . . . would have added only information that we have concluded is protected under Exemption 7(C), it follows that the FBI was correct in declining to search for such documents."  

Roth v. DOJ, 642 F.3d 1161 (D.C. Cir. 2011) (Tatel, J.).  Holding:  Affirming, in part, the district court's decision that the FBI properly withheld certain information pursuant to Exemptions 7(C) and 7(D); and reversing, in part, the district court's approval of the FBI's Glomar response and certain information withheld pursuant to Exemption 7(D); and remanding for further proceedings.  At the outset, the D.C. Circuit rejects plaintiff's arguments that "the privacy interests implicated by his FOIA requests are attenuated for two reasons: (1) more than a quarter century has passed since the 1983 murders, and (2) since [the subjects of the targeted request] have significant criminal records, they would likely suffer less embarrassment or reputational harm from being associated with the FBI's investigation of the murders than would ordinary, law-abiding citizens."  As to plaintiff's first argument, the D.C. Circuit finds that "if, as [it] held in Shrecker v. Department of Justice, . . . the passage of approximately a half century did not 'materially diminish' individuals' privacy interests in not being associated with McCarthy-era investigations, then certainly individuals continue to have a significant interest in not being associated with an investigation into a brutal quadruple homicide committed less than thirty years ago."  In addition, the D.C. Circuit notes that plaintiff's second argument "runs contrary to" the Supreme Court's holding in Reporter's Committee that "even convicted criminals have a substantial privacy interest in their 'rap sheets.'"  Accordingly, the D.C. Circuit recognizes that the subjects of the request maintain "substantial privacy interests protected by Exemption 7(C)."

The D.C. Circuit then examines the two public interests identified by plaintiff, namely, that disclosure will: (1) "advance the public's interest in knowing whether the federal government complied with its Brady obligation to disclose material, exculpatory information to [plaintiff's] trial counsel" in connection with his state criminal trial, and (2) "further the public's interest in knowing whether the FBI is withholding information that could corroborate a death-row inmate's [i.e., plaintiff's] claim of innocence."  At the outset, the D.C. Circuit draws a distinction between these two stated interests, finding that "the public's interest in knowing whether the federal government complied with its Brady obligations at the time of [plaintiff's] trial is narrower than and does not fully encompass the public's more general interest in knowing whether the FBI is withholding information that could corroborate [his] claim of innocence."  Moreover, the D.C. Circuit further notes that it has "no doubt that the second non-Brady-related public interest identified by [plaintiff] is substantial" and finds that "[t]he fact that [he] has been sentenced to the ultimate punishment strengthens the public's interest in knowing whether the FBI's files contain information that could corroborate his claim of innocence." 

As to the FBI's invocation of the Glomar response in connection with plaintiff's targeted request for information pertaining to three specific individuals, the D.C. Circuit notes that "[w]here, as here, the asserted public interest is the revealing of government misconduct, the Supreme Court's decision in . . .  Favish requires that the FOIA requester 'establish more than a bare suspicion' of misconduct."  With regard to plaintiff's Brady-related public interest, the D.C. Circuit finds that "given the Fifth Circuit's decision affirming the denial of [plaintiff's] habeas petition," which reviewed and discounted "the very FBI disclosures [plaintiff] contends constituted Brady material," his argument "falters at the Favish threshold."  With regard to the public interest premised on plaintiff's claims of innocence, the D.C. Circuit concludes that plaintiff satisfied the Favishstandard by demonstrating that "a reasonable person could believe . . . (1) that the Oklahoma drug dealers [who were the subjects of plaintiff's request] were the real killers, and (2) that the FBI is withholding information that could corroborate that theory."  The D.C. Circuit finds that statements made by two witnesses implicating the drug dealers in the murders "might well cause a reasonable person to doubt [plaintiff's] guilt."  Additionally, the D.C. Circuit finds that the fact that the FBI withheld certain information favorable to plaintiff's claim of innocence in connection with his FOIA request "until 2001, approximately seventeen years after [his] trial, 'would warrant a belief by a reasonable person' that the FBI 'might' have other potentially exculpatory information in its files, possibly including information regarding [the three named subjects of the request]."  Balancing the competing privacy and public interests, the court concludes that "the balance tips decidedly in favor of disclosing whether the FBI's files contain information linking [the three subjects] to the FBI's investigation of the killings."  Accordingly, the D.C. Circuit reverses the district court's decision as to the FBI's assertion of the Glomar response and remands for further proceedings, "emphasiz[ing] that the FBI need not disclose whether it has information about the three men that is unrelated to its investigation into the 1983 murders."  Moreover, the D.C. Circuit comments that the FBI "must either produce any records it has linking [the three individuals] to its investigation into the four murders, or it must follow its normal practice in FOIA cases of identifying records it has withheld and stating its reasons for doing so."  

With respect to documents reviewed in camera containing redactions under Exemption 7(C), the D.C. Circuit finds that plaintiff's Brady-related public interest is not compelling.  First, the D.C. Circuit "highly doubts that any of the information withheld under Exemption 7(C) qualifies as Brady material" and, second, the court concludes "the privacy interest of the individuals named in the documents outweigh any public interest in disclosure." "Although the public might well have a significant interest in knowing whether the federal government engaged in blatant Brady violations in a capital case, [the D.C. Circuit] is confident that none of the documents [it has] reviewed in camera reveals any such egregious government misconduct."  Likewise, the D.C. Circuit finds that its "in camera review also revealed no information withheld under Exemption 7(C) that would substantially corroborate [plaintiff's] claim that [the four named individuals] were the true killers."

Prudential Locations LLC v. HUD, No. 09-16995, 2011 WL 2276206 (9th Cir. June 9, 2011) (Berzon, J.).  Holding:  Vacating the district court's grant of summary judgment to HUD and remanding the matter for further proceedings.  The Ninth Circuit acknowledges "HUD's worry that releasing the names of persons who report suspected illegal activity will have a chilling effect on the ability of agencies to investigate legal violations."  Although HUD admits that Exemption 7(D) is not applicable in the instant case, the Ninth Circuit observes that "if HUD is worried about not discouraging future complainants, it might consider implementing confidentiality procedures that satisfy the Exemption 7(D) dictates."  The Ninth Circuit also notes that invoking Exemption 7(C) might be appropriate given that the "exemption  requires less from the government to justify withholding information than Exemption 6, both in terms of the likelihood that an invasion will result and in determining whether such an invasion would be 'unwarranted.'" 

Karantsalis v. DOJ, No. 10-10229, 2011 WL 846242 (11th Cir. Mar. 11, 2011) (per curiam).  Holding:  Affirming the opinion of the district court which upheld protection for "mug shots" under Exemption 7(C); the Eleventh Circuit adopts and attaches to its opinion the opinion of the district court.  The district court, which was affirmed by the Eleventh Circuit, holds that USMS properly withheld the booking photographs pursuant to Exemption 7(C) because the subject of the photos maintains a "substantial privacy interest" in preventing their public dissemination and, conversely, "the public obtains no discernable interest from viewing [them], except perhaps the negligible value of satisfying voyeuristic curiosities."  As to the privacy interest, the court notes that "[a] booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt."  Additionally, the photo "captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties."  The court further notes that these photographs "are generally not available for public dissemination."  

The court rejects plaintiff's argument that the subject's "privacy interest in the booking photographs is nil because [they] were allegedly published internationally by [USMS] through INTERPOL."  Rather, the court finds that, the INTERPOL photograph, in fact, was a driver's license photo submitted by the FBI and notes that "a driver's license is a substantially different type of photograph than a mug shot."  The court also dismisses plaintiff's claim that the subject's privacy interest "is moot" because he "appeared in open court and pled guilty."  Instead, the court emphasizes that booking photos "raise[ ] a unique privacy interest because [they] capture[ ] an embarrassing moment that is not normally exposed to the public eye."  Additionally, USMS's decisions to release photographs of Bernard Madoff and other prisoners in response to FOIA requests under the Sixth Circuit's jurisdiction has "no bearing on this case."

In terms of the public interest asserted by plaintiff, the court indicates that it "is not persuaded that the facial expression of a prisoner in a booking photograph is a sufficient proxy to evaluate whether a prisoner is receiving preferential treatment."  Moreover, "the general curiosity of the public in [the subject's] facial expression during his booking photographs is not a cognizable interest that would 'contribute significantly to public understanding of the operations or activities of the government.'"  Accordingly, the court concludes that disclosure of the photographs "would not serve the public interest." 

CASA de Maryland, Inc. v. DHS, No. 10-1264, 2011 WL 288684 (4th Cir. Jan. 31, 2011) (per curiam).  The Fourth Circuit affirms the district court's decision ordering the disclosure of names contained in an internal investigation report authored by DHS's Office of Professional Responsibility (OPR).  Upon reviewing the record, the Circuit concludes that the district court properly found that the public interest in disclosure outweighed the privacy interest of individuals identified in the records in light of the evidence produced by plaintiff indicating that agency impropriety might have occurred in connection with the raid.  The Circuit notes that plaintiff "submitted affidavits from thirteen of the arrestees which all suggested that government agents arrested them without first obtaining any information about their immigration status and ignored non-Latino day laborers," and also "submitted the declarations of ICE agents given during removal proceedings for some of the arrestees" which "differed markedly" from affidavits included in the OPR report.  Additionally, the Circuit observes that the OPR report "contained statements from an ICE agent indicating that supervisory personnel suggested that he should not admit that the [] raid was intentional." 

Prison Legal News v. EOUSA, No. 09-1511, 2011 WL 72210 (10th Cir. Jan. 11, 2011) (Murphy, J.).  The Tenth Circuit affirms the finding of the district court that certain portions of video and audio recordings depicting the aftermath of a prison murder along with autopsy photographs of the victim were properly withheld to protect the privacy interests of the victim's survivors pursuant to Exemption 7(C).  Comparing the instant case with the facts presented in Favish, the Tenth Circuit finds that "the privacy interest in [the] images [here] is higher than the privacy interest in the photographs at issue in Favish."  "The photographs in Favishdepicted the victim of an apparent suicide, . . . but the images did not involve grotesque and degrading depiction of corpse mutilation as do the images at issue here."  Additionally, the Circuit notes that "the images in Favish were all still photographs, whereas the video at issue here depicts corpse mutilation as it occurs."  Likewise, redacted audio portions contain "the voices of the perpetrators themselves describing the heinous acts in progress." 

The Tenth Circuit rejects plaintiff's argument that because the victim "was a prisoner and the images were taken in a prison cell, [he] himself had no expectation of privacy and his family likewise can have none."  Rather, the Circuit holds that "contrary to [plaintiff's] contention that any privacy interest of [the victim's] family is derivative of [the victim's] own privacy interest, family members' privacy interests under FOIA are independent interests." 

The Circuit rejects plaintiff's contentions that "the government was required to offer evidence of the family's objection and that the district court improperly made findings regarding the particular harm the family would suffer."  Instead, the Circuit finds that the "plain language" of Exemption 7(C) shows that "the test is an objective one and does not depend on the affected individuals' statements of objection or their personal views of the harm they might suffer." 

Although the Tenth Circuit finds the public availability of the records at trial "may impact the family's expectation of privacy in those materials[, it] does not negate it."  The court emphasizes that "[h]ere, the images are no longer available to the public; they were displayed only twice (once at each [defendant's] trial); only those physically present in the courtroom were able to view the images; and the images were never reproduced for public consumption beyond those trials."  As such, the Circuit concludes that the victim's "family retains a strong privacy interest in the images."  

With respect to the public interest in disclosure of the images, the Tenth Circuit determines that "[w]hile BOP's protection of prisoners and the government's discretionary use of taxpayer money may be matters of public interest, there is nothing to suggest the records would add anything new to the public understanding."  Moreover, the Circuit notes that EOUSA has fully released the portions of the video and audio files which depict BOP personnel's response to the incident.  The Circuit also finds that the information about the public interests identified by plaintiff, such as the conditions of confinement, the behavior of the two perpetrators and the nature of the mutilation of the corpse, is publicly available.  Accordingly, "to the extent any additional information can be gained by release of the actual images for replication and public dissemination, the public's interest in that incremental addition of information over what is already known is outweighed by the [victim's] family's strong privacy interests in this case."  Similarly, the Circuit concludes that the "audio recordings add little or nothing to the large amount of public knowledge about the crimes and the government's response to them." 

McLaughlin v. DOJ, No. 10-5050, 2011 WL 9080 (D.C. Cir. Jan 3, 2011) (per curiam).  The appellant has not advanced "any public interest that would outweigh an invasion of privacy resulting from disclosure" and, additionally, "has not produced 'evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" 

Lardner v. DOJ, No. 09-5337, 2010 U.S. App. LEXIS 22557 (D.C. Cir. Oct. 28, 2010) (per curiam). The court holds that the district court, upon conducting the balancing test required by Exemption 6, properly concluded that the public interest in disclosing the names of unsuccessful clemency applicants outweighed their privacy interests. The court draws a distinction between the use of Exemption 6 to protect the pardon applications which contained "'non-public personal information about the applicants and their lives before and after their convictions,'" which the court held were properly withheld in connection with a previous case, and the list of names that the appellee seeks here. The court further notes that "appellant's confidentiality and stigma concerns are undermined by [the Office of the Pardon Attorney's (OPA's)] procedures whereby written advice to applicants states that OPA reserves the right to release information to neighbors and employers, among others, in the course of investigating an applicant's suitability for a pardon or commutation of sentence, and by OPA's regulations that advise applicants that certain information in their applications will be released when a third party inquires 'concerning a specific, named person.'" With respect to the public interest, the court concludes that "[t]he incremental value of the withheld information . . . is not speculative in view of the Inspector General's Report on whether impermissible considerations played a role in pardon determinations." Additionally, the court finds that Exemption 7(C) is inapplicable because "[t]he requested list of names prepared by the White House is designed to inform OPA of the President's determinations; it is not information compiled for law enforcement purposes coming from OPA's investigative records" and also notes that "[a]ppellant conceded . . . that the requested list of names exists independently of the investigative file of any applicant."

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 7(C). 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."

Lewis v. DOJ, No. 09-5225, 2010 U.S. App. LEXIS 7367 (D.C. Cir. Apr. 7, 2010) (per curiam) (unpublished disposition). "[T]he district court properly held that if documents exist responsive to [a request plaintiff made for law enforcement records concerning a third party], their release is barred by Exemption 7(C), because the records were compiled for law enforcement purposes and disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . . To counterbalance the privacy interests protected by Exemption 7(C), appellant has failed to 'produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Plaintiff's "unsubstantiated assertions of the government's misconduct regarding supervision of government contractors cannot overcome the presumption of legitimacy accorded to the government's official conduct." Finally, plaintiff "has not met his burden of showing that the requested information is in the public domain."

Pototsky v. DHS, No. 09-15247, 2010 WL 737751 (9th Cir. Mar. 3, 2010) (unpublished disposition). The court holds that the district court "did not clearly err" in concluding that Exemptions 7(C) and 7(E) apply, because "[t]he redacted material 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' and 'would disclose techniques and procedures for law enforcement investigations or prosecutions.'"

Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). The court finds that the IRS failed to provide a sufficiently detailed description of the documents that were withheld under this exemption for the court "to meaningfully review the applicability of this exemption." Indeed, "the ambiguity in the type of documents withheld and the information contained therein makes it impossible to determine whether the individuals named in the documents have a viable privacy interest." The IRS's "broad, conclusory descriptions of the documents afford [plaintiff] no opportunity to challenge the withholding and offer this court no opportunity to meaningfully review the applicability of the claimed exemptions."

AT&T v. FCC, No. 08-4024, 2009 WL 2998942 (3rd Cir. Sept. 22, 2009) (Chagares, J.). The court agrees with AT&T that "the FOIA's text unambiguously indicates that a corporation may have a 'personal privacy' interest within the meaning of Exemption 7(C)." In reaching this decision, the court reasons that the plain text of the FOIA defines the term "person" to include corporations, and that the term "personal" is "the adjectival form of 'person.'" The court further notes that "the FOIA exemptions indicate that Congress knew how to refer solely to human beings. . . when it wanted to" and "[y]et, Congress, in Exemption 7(C) did not refer to 'the privacy of any individual' or some variant thereof; it used the phrase 'personal privacy.'" The court, however, disagrees with AT&T's position that "as a matter of law, the invasion of personal privacy caused by the release of the documents the company submitted to the FCC could reasonably be expected to be 'unwarranted' within the meaning of Exemption 7(C)." Instead, the court remands the matter to the FCC to determine in the first instance whether disclosure of the records at issue would "constitute an unwarranted invasion of personal privacy."

Moore v. Obama, No. 09-5072, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009) (unpublished disposition) (per curiam). "Appellant fails to demonstrate that the Federal Bureau of Investigation improperly withheld the names and a phone number of its employees pursuant to FOIA Exemptions 6 and 7(C)."

Hawkins v. DEA, No. 09-1451, 2009 WL 2512418 (7th Cir. Aug. 18, 2009) (unpublished disposition). Plaintiff "offers no hint of government misconduct that would be brought to light by records of inducements in his case." Instead, the only interest he asserts is in challenging his conviction, which is not a qualifying public interest under the FOIA. Witnesses who testified at plaintiff's trial "did not wholly extinguish their privacy interests," and "their remaining privacy interests . . . outweigh the nonexistent public interest in disclosure in this case."

Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). The district court erred in ordering the release of the names of eyewitnesses to the explosion, as well as of FBI agents. As to the former, though "concerns about connecting private individuals to criminal investigations are not present here . . . [t]he potential for unwanted contact by third parties, including the plaintiff, media entities, and commercial solicitors, nonetheless remains. The case law establishes that protection from such unwanted contact facilitated by disclosure of a connection to government operations and investigations is a cognizable privacy interest under Exemptions 6 and 7(C)." Though some witnesses have come forward and publicly identified themselves, "[i]t is presumably the[] heretofore silent witnesses whom [plaintiff] wishes to contact. [T]hese witnesses have by their silence indicated that contact is unwelcome." As to the FBI agents, "courts have recognized that agents retain an interest in keeping private their involvement in investigations of especially controversial events." Moreover, "lower level officials, like the FBI agents involved here, 'generally have a stronger interest in personal privacy than do senior officials.'" Thus, "[s]hould the names of the FBI agents mentioned in the requested documents be revealed, there is some likelihood that the agents would be subjected to unwanted contact by the media and others, including plaintiff, who are skeptical of the government's conclusion. Under the case law of this court and others, this potential is sufficient to establish a cognizable privacy interest." Furthermore, though "an investigator's privacy interest may be reduced when there are doubts about the integrity of his efforts . . . [t]here is no evidence here . . . that the particular FBI agents mentioned in the requested documents themselves behaved improperly, or that their individual efforts were unreliable." Plaintiff apparently wishes to contact these agents to inquire about possible impropriety by other agents, but "we cannot say that an FBI agent's privacy interests are reduced because of speculation that he may have information about general improper conduct by the FBI." By contrast to the important privacy interests at stake, there is little public interest in release of the eyewitness or agent names, in light of the fact that defendants released the substance of the eyewitness accounts and agents' views. "The only way that the identities of the eyewitnesses and FBI agents mentioned in the documents already released would have public value is if these individuals were contacted directly by the plaintiff or by the media. . . . [S]uch use is insufficient to override the witnesses' and agents' privacy interests, as the disclosure would bring about additional useful information only if direct contacts, furthering the privacy intrusion, are made."

District Court Decisions

Gonzales and Gonzales Bonds and Ins. Agency, Inc. v. DHS, No. C 11-02267 DMR, 2012 WL 6680228 (N.D. Cal. Dec. 21, 2012) (Ryu, Magistrate J.). Holding: Granting plaintiff's motion for summary judgment in part with respect to its challenge to the Consent Provision in DHS's FOIA regulations, but dismissing plaintiff's claim under the APA.The court concludes that applying either a de novostandard of review or the more deferential standard established in Chevron, DHS's Consent Provision is unlawful.  The court notes that the provision "provides that DHS will produce documents about an individual if the requester (1) is that individual or (2) has received consent from (or proven the death of) that individual.  It will refuse to produce the same documents to a requester who has not obtained the required consent or proof.  DHS cannot lawfully administer its FOIA obligations in this manner."  Accordingly, the court concludes that for both Exemptions 6 and 7C, the Consent Provision prevents DHS from performing a proper analysis and balancing test.  The court notes that "DHS makes no attempt to search for responsive documents and, instead, summarily refuses to produce any records pursuant to FOIA."

Applying a de novo standard of review, the court reaches the same conclusion.  The court finds that "[t]he regulation allows DHS to improperly withhold records, as it enables DHS to avoid its statutory obligation to demonstrate that FOIA's exemptions apply to documents that it has withheld.  In a similar manner, the Consent Provision allows DHS to circumvent judicial review of the agency's determinations in the name of administrative exhaustion.  The Consent Provision also violates FOIA by allowing DHS to render its determinations based on applicants' identities, rather than based on the nature of the documents requested, as the statute demands.  In addition, the regulation causes DHS to impermissibly withhold records under the cover of enforcing the privacy exemptions set forth in Exemptions 6 and 7(C), and obstructs judicial review of these determinations."

Braga v. FBI, No. 12-139, 2012 WL 6644356 (D.D.C. Dec. 21, 2012) (Boasberg, J.).  Holding: Granting FBI's motion for summary judgment.  The court also finds that the FBI properly withheld certain documents and portions of documents pursuant to Exemptions 6 and 7C.  As an initial matter, the court addresses plaintiff's concern that the FBI conflated its analysis of these two exemptions.  Noting that "Exemption 7(C) 'establishes a lower bar for withholding material' than Exemption 6," the court explains that it need only consider whether Exemption 7(C) was appropriately applied if the materials were compiled for law enforcement purposes.  Here, the records were compiled as part of a murder investigation, therefore they clearly meet the law enforcement threshold.  The FBI identified "six categories of people 'whose names or other identifying information appear in the responsive records … 'FBI Special Agents and support personnel,' 'third parties of investigative interest,' 'state or local law enforcement personnel,' 'third parties merely mentioned,' 'third party victims,' and 'third parties who provided information to the FBI.'"   The court concludes that all these parties have a "substantial" privacy interest in their mention in an investigatory file and that the plaintiff has not identified a public interest that outweighs their privacy interests.  Although plaintiff argues that a "significant public interest exists in the potential exoneration of those sentenced to death," here plaintiff "is no longer a death-row inmate or a prisoner at all; he is now a free man."  Accordingly, "[t]he public's interest, at this point, is diminished and cannot overcome the substantial privacy interests Roth itself outlines for 'not only the targets of law-enforcement investigations, but also witnesses, informants, and investigating agents.'"  The court then finds that Exemption 7(C) was appropriately applied.

Comptel v. FCC, No. 06-1718, 2012 WL 6604528 (D.D.C. Dec. 19, 2012) (Lamberth, J.).  Holding: Denying cross-motions for summary judgment and ordering FCC to file an amended declaration and Vaughn index.  The court also finds that the plaintiff has not demonstrated that disclosure of the names and contact information withheld under Exemption 7(C) was warranted.  It notes that "the FCC must do more than simply assert that these individuals 'have a clear expectation of privacy.'"  However, the court does reject plaintiff's assertion that the names cannot meet the Exemption 7 threshold.  "While the names at issue may not have been compiled for law enforcement purposes, if they are contained in records compiled for law enforcement purposes they may be redacted."  As with Exemption 6, the court acknowledges that plaintiff has not asserted any public interest in disclosure and that if the FCC articulates a privacy interest in its revised Vaughnindex, plaintiff "cannot survive summary judgment" on this point.

McMichael v. DOD, No. 11-2119, 2012 WL 6585113 (D.D.C. Dec. 18, 2012) (Collyer, J.). Holding: Denying DOD's motion to dismiss and remanding for DOD to perform a FOIA analysis.  The court concludes that DOD improperly invoked a Glomar response in response to plaintiff's request for IG records concerning an alleged investigation of a command under the leadership of a named captain.  The court notes that while the captain "has a legitimate interest in keeping private the record of any investigation into allegations of an abusive command climate," his "status as a federal employee with leadership responsibilities diminishes his privacy interest."  In addition, plaintiff produced "evidence that some number of USSTRATCOM employees were aware of the investigation and its subject."  The court goes on to agree that "the public has a strong interest in knowing whether the IG investigated allegations of an abusive command climate by the J4 Director."  Balancing the public interest against the captain's privacy interest, the court determines "that a Glomar response was inappropriate even if the records in question, if they exist, may otherwise be exempt from disclosure under FOIA exemptions 7(C) and 6."  "Balancing [the Captain's] diminished expectation of privacy against the public's interest in knowing whether the IG investigated allegations of misconduct, it must be concluded that the public interest prevails.  Particularly where the fact of the IG investigation was known to a number of people and the identity of the person under investigation was equally apparent, a Glomar response cannot satisfy."

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 affirms the defendant's withholding of "identifying information of 'dozens of individuals,' most of whom were inmates 'interviewed by the FBI during the course of the … murder investigation.'"  The court notes that "[i]n no circumstances does the declarant identify a public interest sufficient to outweigh the privacy interests of these third parties."

Concepcion v. U.S. Customs and Border Prot., No. 10-0599, 2012 WL 6019299 (D.D.C. Dec. 4, 2012) (Jackson, J.). Holding: Granting Customs and Border Protection's motion for summary judgment.The court determines that Customs and Border Protection properly withheld the social security numbers of the officers who processed plaintiff and his brother during their entry into the United States as well as "the unique identification number 'assigned to the terminal of the [Customs and Border Protection] employee who retrieved the records in response to' plaintiff's FOIA request."   These numbers "appear in the 'Passenger Activity' record.'"  The court finds that the individuals associated with these numbers have a privacy right in their identities and that the disclosure of the numbers would not "shed light on the [Customs and Border Protection's] actions."  The court rejects plaintiff's attempt to argue that there is a public interest because of alleged misconduct by employees whom he believes erased the information as part of a cover-up scheme.   The court notes that "'[u]nsubstantiated assertions of government wrongdoing . . . do not establish a meaningful evidentiary showing,'" and that the identity of the officers who "processed the brothers at the border – has no bearing on the alleged wrongdoing in connection with the maintenance of the records."

Judicial Watch, Inc. v. DOJ, No. 11-1121, 2012 WL 4845656 (D.D.C. Oct. 12, 2012) (Howell, J.).  Holding:  Granting defendant's motion for summary judgment as to the Glomar response in conjunction with Exemption 7(C) for certain categories of the request; denying plaintiff's cross-motion for summary judgment.  The court finds that the plaintiff incorrectly asserts that "whatever privacy interest [the subject] might have once held in the requested information has now evaporated" because "'on numerous occasions'" the subject's association with specific criminal activity has already been confirmed by the defendant.  The court declines to "waive [the subject's] relevant privacy interests in toto based solely on the fact that he has, at one time, been associated with criminal activity."  The court notes that "there is a distinction between 'scattered bits of information' connecting [the subject] to criminal activity and an official prosecutorial record containing a decision not to charge him with a crime."  It is "more intrusive of personal privacy interests" to reveal formal consideration of prosecution than to reveal an association with criminal activity through "pieces of information presented in the media or in the criminal prosecutions of others." 

"Although public disclosure of a person's association with criminal activity does not waive that person's privacy interest completely, such public disclosure diminishes the person's privacy interest to some degree."  However, the court does not need to quantify the subject's privacy interest because "the plaintiff has not articulated any argument to support a public interest in…disclosure."  The evidence offered of improper political influences on the decision to decline prosecution "does not amount to a 'meaningful evidentiary showing'" and is "directly contradicted by evidence submitted by the plaintiff itself."  The court notes that "the plaintiff has not articulated how the public interest would be served by merely acknowledging" the requested records.  The court concludes "a decision not to prosecute a person, standing alone, does very little to 'shed[] light on the agency's performance of its statutory duties.'"

ACLU of N.J.  v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.).  Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment.  The court notes that plaintiff does not contest the applicability of these exemptions and accordingly grants summary judgment in favor of the defendants with respect to them.

ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.).  Holding:  Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary.  The court determines that "the redaction of employee/contractor names and their contact information… is appropriate" and that the defendant properly protected "personal (albeit in some cases coded) identifiers and contact information."  However, there does not "appear to be any privacy-related justification for the redaction of agency, center, or other organizational unit names or contact information under Exemptions 6 or 7(C)."  Also, the defendant did not justify"the redaction of telephone conference access information."

Seme v. FBI, No. 11-2066, 2012 WL 4336251 (D.D.C. Sept. 20, 2012) (Leon, J.). Holding:  Granting defendant's motion for summary judgment.The court concludes that the FBI's Glomar response was appropriate.  The plaintiff was not able to meet his obligation "to articulate a public interest sufficient to outweigh the [subject's] privacy interest."  While the plaintiff may already know certain information about the subject, the subject "maintains [his privacy] interest even if the requester already knows, or is able to guess, his identity."  Even if a third party's "status as an FBI informant [has] been disclosed in deposition testimony" or that individual "testif[ied] in open court," the third party may "still maintain an interest in his personal privacy."  Finally, the court determines that the plaintiff has not met his "obligation to articulate a public interest sufficient to outweigh the individual's privacy interest" because "[p]laintiff [] puts his personal interest in challenging his criminal conviction above the recognized privacy interest of the subject of his FOIA request."

Cooper v. DOJ, No. 99-2513, 2012 WL 3939231 (D.D.C. Sept. 11, 2012) (Walton, J.).  Holding:  Granting defendant's renewed motion for summary judgment in part and denying part; granting plaintiff's "motion for leave and to compel" in part.  The court defers a determination as to the appropriateness of the exemptions applied.  Noting that the defendant is reviewing previous withholdings under Exemption 2 following the Milner decision, and "will file supplemental information regarding Exemption 2 as it becomes available," the court deems it inappropriate to address the exemptions at this time.

Wonders v. McHugh, No. 11-cv-1130, 2012 WL 3962750 (D.D.C. Sept. 11, 2012) (Wilkins, J.). Holding: Granting defendant's motion for summary judgment.  Glomar: The court holds that the Army properly asserted Exemption 7C to neither confirm nor deny the existence of records pertaining to the charges against the attorney and any documents or findings regarding the charges.  The court states that the attorney "has a privacy interest in the records should they exist," and agrees that "any evidence regarding [Army Professional Responsibility Branch] investigations can lead to rumors, professional prejudice, embarrassment, harassment and can significantly and irreparably damage the reputation of the investigated attorney."  With regard to the public interest, the court notes that the plaintiff has "assert[ed] only a personal interest in the requested information."  With regard to plaintiff's comments that disclosure would be for the "'good of the government and all concerned,'" the court notes that plaintiff has not provided "evidence of misconduct" and "the documents he submitted do not support any alleged misconduct by the agency."  The court finds that because any information that is protected by Exemption 6 would also be protected by Exemption 7C, it need not address Exemption 6 Glomar separately.  The court declines to address the Army's Exemption 5 Glomar.

Hetzler v. Record/Info.Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.).  Holding: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D).  The court grants summary judgment to DOJ on many documents for which privacy protection was invoked.  As to certain withholdings, summary judgment was denied, however.  Plaintiff specified that she sought the name of clergy members mentioned in the documents.  Both the plaintiff and the defendant "independently… confirmed that [one clergy member] died in the 1970's" and one record was re-processed and released to the plaintiff.  The court found "[t]hat there is another clergy member listed on [the document]."  Because "the time frame [of the document was] the late 1930's and early 1940's," and "there is a high probability that this individual is already dead," the court "cannot see what possible stigma could inure to this person if his identity were released."  The court thus holds that the defendant must release "a fully unredacted copy of this document to Plaintiff."

Bonilla v. DOJ, No. 11-20450, 2012 WL 3759024 (S.D. Fla. Aug. 29, 2012) (Cooke, J.).  Holding:  Granting defendant's motion for summary judgment on the basis that it properly withheld information under Exemptions 6 and 7(C) and that plaintiff failed to exhaust his administrative remedies.  The court holds that DOJ properly asserted Exemptions 6 and 7(C) to neither confirm nor deny the existence of records pertaining to certain federal employees maintained by the Office of Professional Responsibility, which "is responsible for investigating allegations of misconduct involving DOJ attorneys or law enforcement personnel."  The court notes that such records raise privacy concerns because they "constitute DOJ employees' personnel records, and reflect an OPR investigation into DOJ employees alleged to have committed acts of professional misconduct," "contain personal reflections and assessments on the reasons why DOJ employees took certain actions," and "contain third parties' reflections and assessments."

As to the public interest, the court finds that the plaintiff has not demonstrated a sufficient reason for the disclosure.  "Although the public has an interest in knowing about governmental misconduct, [plaintiff] does not provide any facts or information to suggest some form of governmental misconduct would come to light if he had access to the requested materials."

Kretchmar v. FBI, No. 11-1181, 2012 U.S. Dist. LEXIS 102962 (D.D.C. July 25, 2012) (Bates, J.).  Holding:  Granting defendant's motion for summary judgment on the basis that it properly asserted Exemptions 6 & 7(C) and that it conducted an adequate search, which was not disputed by plaintiff; declining to conduct an in camera review; and denying plaintiff's request for litigation costs.  As an initial matter, the court finds that the requested records satisfy the Exemption 7 threshold because they "were compiled during the course of a criminal investigation resulting in plaintiff's prosecution and conviction."  The court then concludes that the FBI properly asserted Exemptions 6 and 7(C) to redact the names of FBI laboratory personnel.  Noting that "[t]hird-party identifying information contained in law enforcement records is categorically exempt from disclosure absent an overriding public interest," the court finds that "plaintiff has not asserted that [such an] interest warrants disclosure of the otherwise protected information."  Additionally, the court finds that "[p]laintiff's speculation [that] the redacted portions [do not contain personal information] fails to create a genuine dispute of material fact or to rebut the presumption of good faith accorded to the [FBI's] declaration."

Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding:  Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions.  The court holds that the FBI properly invoked Exemption 7(C) to withhold the work phone numbers of FBI special agents.  As a threshold matter, the court notes that "[b]ecause the purpose of the FBI is law enforcement, it is clear that its special agents' phone numbers were also created for law enforcement."  In terms of the public interest, the court finds that any interest would be "de minimis" because disclosure of numbers "would in no way illuminate 'what the government is up to.'"  The court further determines that "[w]hile the likelihood of disruptive and harassing phone calls is debatable, the Court need not decide exactly how much privacy is being invaded" because "'[a]ny amount of privacy expectation outweighs the virtually nonexistent public interest." 

Similarly, the court finds that the names and identifying information of support personnel qualify for the Exemption 7 threshold because they are "directly related to the FBI and, consequently, law enforcement" and plaintiff offers no objection on this point.  In terms of the privacy interest of these individuals, the court concludes that it is "significant" because of "[t]he risk of harassment and retaliation, in light of the potentially violent crimes that were being investigated."  Although the court finds that disclosure of the identities "might, arguendo, shed light to the public on 'what their government is up to,'" it "does not see how knowing the names of FBI agents can possibly outweigh the extremely strong privacy interest in not being harassed by violent criminals."  With respect to identifying information related to third parties of investigative interest to the FBI, the court concludes that "[t]he privacy interest of third-party suspects, with the stigma associated with being part of an investigation, is much greater than any conceivable public interest."  Likewise, with regard to the FBI's withholding of the identities of federal and local law enforcement officials, the court finds "[t]here is no question that this information was compiled for law enforcement purposes, and the employees' privacy interest outweighs the public interest in disclosure for the same reasons as the FBI [special agents] and support personnel."  As to other parties who were mentioned in the law enforcement records, the court determines that the privacy interests of those "who have provided information to the FBI in a drug investigation" are "high" and not outweighed by the "insubstantial" public interest.  With regard to asset seizure records that the FBI referred to the U.S. Marshals Service, the court finds that they "fall squarely in the realm of law enforcement" and that "the privacy interest of third parties outweighs any public interest in disclosure." 

Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July 3, 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 holds that defendant properly asserted Exemption 7(C) to withhold the names of lower level employees of the State Department, and individuals identified in a telegram, concluding that "[t]he risk of harassment and retaliation, in light of the violent crimes being investigated, constitutes a legitimate privacy interest that is not outweighed by any public interest in disclosure." 

Taccetta v. FBI, No. 10-6194, 2012 U.S. Dist. LEXIS 90683 (D.N.J. June 29, 2012) (Thompson, J.).  Holding:  Granting the FBI's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 6, 7(C), 7(D) and 7(F); and denying plaintiff's cross-motion for an in camera inspection and to strike the FBI's declaration.  The court concludes that the FBI properly withheld identifying information of Special Agents and FBI personnel, and a third party pursuant to Exemptions 6 and 7(C), noting that the privacy interests of these individuals are "substantial." 

McRae v. DOJ, No. 09-2052, 2012 WL 2428281 (D.D.C. June 27, 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's decision to withhold the names of and identifying information about federal and state law enforcement agents and third parties whose names appear in the responsive records is entirely consistent with the prevailing law."  Although plaintiff argues that "'all statements and law enforcement witnesses were disclosed into the public forum by way of testimony,'" the court finds that plaintiff failed to meet his burden to demonstrate the requested information is in the public domain.  The court notes that "[s]peculation as to the content of the withheld information in the context of open court proceedings does not establish that it has entered the public domain."  Moreover, the court notes that "a third party may testify in open court and maintain an interest in his personal privacy, . . . and he maintains an interest in his personal privacy even if the requester already knows, or is able to guess, his identity."  To the extent that plaintiff alleges that there is a public interest "in learning of wrongdoing by federal law enforcement officers," the court determines that plaintiff does not produce any evidence on this point.  Additionally, the court finds that plaintiff's allegation that he was wrongfully convicted is not a matter of public interest, concluding that "[a]ny desire plaintiff may have in using the requested records for the purpose of proving his innocence or attacking his criminal conviction is not a public interest." 

Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June 26, 2012) (Roberts, J.).  Holding:  Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents.  The court concludes that Treasury properly asserted Exemptions 6 and 7(C) to withhold "the names and addresses of low-level government employees and third parties that appear in responsive records."  With respect to information contained in investigative files, the court finds that "[b]ecause the purpose of these investigatory files is to identify violations of law, and these investigations are related to OFAC's duty to enforce sanctions regulations, the third parties to which the files refer have a privacy interest in the personal information the files contain."  As to the non-law enforcement files, the court finds that Treasury "evaluated the consequences of disclosure and concluded that public association with a sanctions investigation or sanctions administration function could be stigmatizing or pose a threat to the safety of the individuals to which the records refer."  The court determines that "[t]hese individuals have a privacy interest in avoiding the harassment that could ensue following the disclosure of their personal information."  Conversely, the court finds that plaintiff "has not asserted a countervailing public interest in the disclosure of these names and addresses, and no public interest is readily apparent."     

Espino v. DOJ, No. 11-1436, 2012 WL 2335930 (D.D.C. June 20, 2012) (Huvelle, J.).  Holding:  Granting defendants' motion for summary judgment on the basis that they conducted adequate searches for responsive records, their withholdings under Exemption 7(C) were appropriate, and they released all reasonably segregable nonexempt information.  The court determines that "[b]ecause plaintiff has not produced any evidence of government wrongdoing," the FBI properly withheld the "names and other identifying information of third parties, including the victim, the investigators, other FBI personnel, and other federal employees."  The court also finds that the FBI properly withheld under Exemption 7(C) "several lists of 'items recovered from [the] victim,' and other information of a personal and medical nature."  The court characterizes the privacy interest as "significant," because "[i]ts release could have emotionally damaging effects on the victim and her family."  Conversely, the court concludes that "the public interest in the police procedure relating to DNA testing in this particular case is minimal, and plaintiff's personal interest in the procedures of this case does not factor into the Court's analysis." 

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June 8, 2012) (Leon, J.). Holding:  Granting defendant's motion for summary judgment on the basis that it properly withheld the requested materials categorically under Exemptions 6 and 7(C), as well as Exemptions 2, 3, 7(D), and 7(E).  The court holds that defendant properly categorically denied certain investigative records pertaining to former House Majority Leader Tom DeLay pursuant to Exemptions 6 and 7(C).  In terms of the privacy interest, the court finds that it is "particularly strong, where as here, an individual has 'been investigated but never publicly charged.'"  Moreover, the court finds that "[a]lthough Mr. DeLay's privacy interest is 'somewhat diminished' by virtue of his political stature, he did 'not surrender all rights to personal privacy when [he] accepted a public appointment.'"  The court also notes that Mr. DeLay's indictment in a Texas state court "does not affect the Court's analysis" here.  As to plaintiff's argument that Mr. DeLay waived his privacy interests by publicly acknowledging the investigation, the court determines that Mr. DeLay's "public statement relied on by plaintiff discloses only that an investigation was conducted by the DOJ and has since concluded without charges . . . [but] never disclosed the nature of the investigation."  Accordingly, the court finds that Mr. DeLay's mere acknowledgement of the investigation did not waive "all his interest in keeping the contents of the [FBI] file confidential" and concludes that he "still maintains a substantial privacy interest in the substance of the investigation."  Additionally, the court also finds that other "third parties named in plaintiff's FOIA request and in the responsive records, as well as the FBI Special Agents named in the records all have substantial privacy interests in the content of the records." 

As to the public interest, the court finds unpersuasive plaintiff's claim that "disclosure would serve the public interest by 'shed[ding] light on [the] agency's performance of its statutory duties,' and [that] there is a substantial public interest in reviewing DOJ's enforcement of the ethics and anti-corruption laws governing the activities of federal officials, such as Mr. DeLay.'"  To the extent that plaintiff argues that the presence of a public interest is demonstrated by the fact that DOJ granted the request expedited treatment, the court notes that "[t]he standard for expedited processing is quite distinct from the Exemption [7(C)'s] public interest analysis."  Here, the court determines that "the documents [plaintiff] presently seeks are 'not very probative of [the DOJ's] behavior or performance."  Rather, "[t]he FD-302s and FD-302 inserts contain only identifying information and factual information principally supplied by third parties and sources."  The court further finds that although "there may be some public interest in the investigative materials and reports, which describe how evidence was used and obtained and are used to update other agencies on the investigation's progress, . . . this minimal public interest does not outweigh the substantial privacy interests of Mr. DeLay and other third parties in the content of the documents."  

Bloomer v. DHS, No. 11-35, 2012 U.S. Dist. LEXIS 62543 (D. Vt. May 3, 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 concludes that DHS properly invoked Exemptions 6 and 7(C) to protect the identities of a special agent and an Assistant U.S. Attorney (AUSA).  In terms of the privacy interest, the court finds that plaintiff's "allegations [that these individuals helped to orchestrate the return of a convicted drug offender to the United States] could be reasonably expected to lead to 'harassment or embarrassment' if the names of the FBI agent and the AUSA are revealed as having been involved with [the subject of the request]."  As to the public interest, the court determines that "the rank of the government employees at issue (an FBI agent and an AUSA) was relatively low" and that "[w]ith respect to the degree of wrongdoing, the issuance of a re-entry visa may have been wrongful, but the evidence of such alleged wrongdoing is weak."  Moreover, the court finds that plaintiff's "suspicion of impropriety, though not patently frivolous, is simply that – a suspicion."  The court concludes that disclosure of this information "would not shed significant light on government activity, as the nature of that activity is already known."  Rather, "the only things revealed would be the names of the persons involved, and the release of those names would do little to further the cause of 'let[ting] citizens know what their government is up to.'" 

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-1021, 2012 U.S. Dist. LEXIS 27298 (D.D.C. Mar. 2, 2012) (Boasberg, J.).  Holding:  Granting plaintiff's partial motion for summary judgment; denying defendants' motion for summary judgment; and ordering DOJ to submit a Vaughn Index justifying any withholdings.  At the outset, the court notes that plaintiff concedes that the records at issue satisfy the Exemption 7 threshold because they "were 'compiled for law enforcement purposes.'"  As an initial consideration, the court observes that "Lewis's status as a public official operates to reduce his cognizable interest in privacy as a general matter," but notes that "despite the fact that his privacy interest is 'somewhat diminished' by the office he holds, he nevertheless 'd[id] not surrender all rights to personal privacy when [he] accept[ed] a public appointment.'"  The court determines that he "retains a cognizable privacy interest in the requested records," because although Lewis publicly acknowledged the existence of an investigation, "the details of that investigation have not been publicly disclosed."  The court notes that the "public acknowledgment of an investigation reduces but does not eliminate an individual's privacy interest in preventing the disclosure of the contents of that investigation."  Additionally, the court finds that the congressman "is not the only individual with a privacy interest at stake in these documents" and notes that, "in particular, informants and witnesses, have a significant interest in their contents not being disclosed."

As to the public interest in disclosure, the court finds that "[a]gainst the backdrop of broader public concerns about the agency's handling of allegations of corruption leveled against high-ranking public officials (especially in the wake of its failure to successfully prosecute Senator Ted Stevens), . . . the public has a clear interest in documents concerning DOJ's handling of the Lewis investigation."  Additionally, the court comments that "another court in this District found that the public's interest in disclosure of information concerning DOJ's investigation of a congressman who had been accused of bribery and other illegal conduct was 'very strong,'" "thus determin[ing] that disclosure of the details of the investigation 'would unquestionably' serve the public's interest."  Moreover, because plaintiff does not allege that the records at issue "will demonstrate agency misconduct" as a basis for their disclosure, the court finds that "it need not produce the compelling evidence of illegal activity that would be required if it had done so."  The court concludes that plaintiff "has articulated a specific and significant public interest in the records in question." 

In terms of balancing the privacy and the public interests involved, the court notes that in order "[t]o uphold DOJ's categorical denial [in this case], . . . the Court must find that privacy interests in the documents related to Lewis's investigation 'characteristically' outweigh the public's interests in those documents."  Although the court finds that the practice of categorical denials may be appropriate in instances where the requester fails to identify "a significant public interest," "[i]n light of the strong public interest at stake in the requested records [here], the Court is not persuaded that the balance will favor privacy with respect to each document that concerns the Lewis investigation."  The court finds that because of the "significant interests on both sides of the scale" and possible variation in the responsive documents, "[d]etermining whether withholding is justified . . . requires a more nuanced analysis than can be undertaken without an account of the records in the Government's possession."  Furthermore, the court notes that "this is not a case in which requiring the Government to submit a Vaughn Index might adversely affect an individual's interest in not being associated with an investigation in the first place."  The court states that it "does not decide whether the Government need turn over anything at all in response [to plaintiff's] request" and observes that it will assess any withholdings made by DOJ and subsequent challenges raised by plaintiff after submission of the Vaughn index.

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 holds that the FBI properly invoked Exemption 7(C) to withhold the names and identifying information of various third parties, including special agents, local law enforcement personnel, persons of investigative interest, and individuals merely mentioned in plaintiff's investigative files, finding that the FBI's determination in this regard "is fully consistent with the applicable caselaw."  The court notes that "[p]laintiff raises no objection to the FBI's decision to withhold this information, and presents no evidence to suggest that the FBI is engaged in illegal activity." 

Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle, J.).  Holding:  Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party.  The court finds that the State Department "properly withheld third-party identifying information under exemption 7(C), and exemption 6 . . . , and plaintiff has not argued the existence of an overriding public interest to compel disclosure of the otherwise exempt information."  Additionally, the court concludes that in the absence of "written consent to disclosure of [plaintiff's sister's] non-public records or plaintiff's showing of an overriding public interest," DOJ properly categorically withheld records concerning plaintiff's sister that were referred to it by the State Department.  The court finds that "[a]lthough [plaintiff's sister] has a public record of a criminal prosecution and conviction,  . . . she maintains a strong privacy interest 'in avoiding disclosure of personal matters, and [in] controlling information concerning . . . her person.'"

Sensor Sys.Support, Inc. v. FAA, No. 10-262, 2012 WL 424376 (D.N.H. Feb. 9, 2012) (Barbadoro, J.).  Holding:  Granting, in part, summary judgment to FAA with respect to certain withholdings under the deliberative process privilege, and Exemptions 6 and 7(C); denying, in part, the FAA's motion for summary judgment as to other redactions under the deliberative process privilege as well as withholdings made pursuant to the attorney-client privilege, and ordering the FAA to supplement its Vaughn index or declaration with respect to those records or to submit them for in camera review; and declining to exercise its discretion to make an interim award of attorney's fees to plaintiff.  The court determines that disclosure of an OIG special agent's contact information would constitute an unwarranted invasion of personal privacy under Exemption 7(C).  The court finds that the special agent's "privacy interest in keeping his contact information undisclosed is, substantial."  Moreover, the court concludes that plaintiff "has failed to demonstrate how the disclosure of [the] Special Agent['s] . . . contact information would reveal 'what the government is up to.'"  Public domain:  The court finds unpersuasive plaintiff's argument that the information should be disclosed because it is available on a subpoena that was issued to plaintiff.  Rather, the court notes that "'[a]n individual's interest in controlling the dissemination of information regarding personal matters [such as one's home address] does not dissolve simply because that information may be available to the public in some form.'"

Stanko v. BOP, No. 10-724, 2012 WL 336173 (D.D.C. Feb. 3, 2012) (Boasberg, J.).  Holding:  Granting BOP's renewed motion for summary judgment on the basis that it conducted an adequate search and properly withheld certain information pursuant to Exemption 7(C); and denying plaintiff leave to amend his complaint.  Observing that "Plaintiff has proffered no public interest whatsoever in the release of other inmates' legal material," the court finds that the balancing of the privacy and public interests "clearly tips in favor of BOP" because the "documents belong[ ] to other inmates and contain[ ] identifying information and facts about those inmates."  Accordingly, the court concludes that BOP properly withheld these records pursuant to Exemption 7(C).  Likewise, BOP properly asserted Exemption 7(C) to protect "documents that were 'used as civil complaints by Plaintiff . . . against BOP staff and '[l]ien and . . . filing materials . . ., including draft liens against a federal judge and BOP employees.'"  The court finds that "[d]isclosure would work an unwarranted invasion of [the employees' and judge's] personal privacy" and further notes that"[t]here is, of course, no public interest whatsoever in Plaintiff's obtaining such information so as to file false liens." 

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-754, 2012 WL 45499 (D.D.C. Jan. 10, 2012) (Kessler, J.).  Holding:  Denying defendants' motion for summary judgment; granting plaintiff's cross-motion for summary judgment and holding that DOJ cannot assert a categorical denial under Exemptions 6 and 7(C) for information regarding an investigation into activities of a congressman; and ordering DOJ to submit a Vaughn Index so that the court may make individualized decisions with respect to each withheld record.  The court holds that the FBI, EOUSA, and the Criminal Division improperly issued a categorical denial for records regarding DOJ's investigations of a U.S. Representative concerning allegations of bribery and other illegal conduct.  At the outset, the court notes that although "Government officials may have a somewhat diminished privacy interest 'they do not surrender all rights of personal privacy when they accept public appointment."  Additionally, the court observes that "'individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity,'" and comments that "[t]his may be especially true for politicians who rely on the electorate to return them to public office."  However, the court finds that, here, although the U.S. Representative maintains a more than de minimis privacy interest in the records at issue, "the Congressman's statement to the press, as well as other statements he made on the floor of the House of Representatives [addressing the investigations into his activities], clearly 'diminish his interest in privacy.'" 

In terms of the public interest, the court finds that "the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job."  Accordingly, the court concludes that "disclosure of information concerning DoJ's investigation of Rep. Young would unquestionably 'shed light on the agency's performance of its statutory duties.'"  Notably, "in this case, Congress passed a specific piece of legislation . . . directing DoJ to conduct an investigation of all 'allegations of impropriety [concerning the particular transportation earmark linked to Rep. Young] . . . to ascertain if a violation of Federal criminal law has occurred.'"  The court determines that "[g]iven the fact that Rep. Young was at that time Chair of the House of Representatives Transportation Committee, and given the detailed remarks that he made on the floor of the House of Representatives about this matter, there is a substantial public interest in examining the adequacy of DoJ's enforcement of other types of law governing the activities of federal officials, in addition to the explicit direction given by Congress to DoJ to investigate [the transportation project]."  The court also rejects defendant's argument that "Plaintiff has failed to establish a cognizable public interest because 'it is only the conduct of the agency holding the requested document that can implicate cognizable public interest under FOIA'" and "'there is significant public interest only if there is compelling evidence that the agency is engaged in illegal activity.'"  To the contrary, the court holds that "it is clear that there is no requirement that a FOIA requester must always allege that the Government is acting illegally in order to establish the existence of a substantial public interest."  Based on the foregoing, the court finds that "the balancing of Rep. Young's privacy interest against the public interest in releasing the requested documents tips strongly in favor of the public interest" and orders DOJ to submit a Vaughn Index so that the court may "make a specific individualized decision for each document as to whether it should be redacted or totally withheld pursuant to Exemption 6 and Exemption 7(C)."  

Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E). As a threshold issue, the court notes that the emails have been compiled for law enforcement purposes. In terms of the privacy interests, the court finds that "the disclosure of the names, phone numbers, and email addresses of government employees implicates more than a de minimus privacy interest of those employees." Balancing that interest against "'the citizens' right to be informed about what their government is up to,'" the court considers the "[g]overnment employee's rank," "[d]egree of wrongdoing" (which is not applicable here), "[o]ther ways to obtain the information," "[s]hedding light on government activity," and "[p]rofessional versus personal information." "Based on these factors, [the court concludes that] defendants must disclose (a) all titles and names of offices that appear on emails and the (b) names of high level officials such as the chief of staff, deputy chief of staff, and division chief." The court finds that "[t]he government may redact all email addresses and phone numbers."

Augustus v. McHugh, No. 02-2545, 2011 WL 5841468 (D.D.C. Nov. 22, 2011) (Roberts, J.).  Holding:  Denying parties' motions for summary judgment as to the FOIA claims; and ordering defendant to file a supplemental Vaughn Index containing additional detail as to its withholdings.  The court denies defendant's motion for summary judgment as to its withholdings under Exemptions 6 and 7(C) because its submissions were insufficiently detailed.  Although defendant states that it used a "'coded format . . . to assist the Court and Plaintiff in reviewing the information withheld within the context of the documents themselves,'" the court finds that, in fact, the administrative "record does not include coded designations by each redaction [on the responsive records] that correspond to the agency's reasons for withholding the information."  Instead, the court finds that "there are few, if any, numbers placed next to the redacted information that would help explain the information – such as the names and identifying information of individuals against whom allegations were made – [that were] redacted from any particular document."  Accordingly, the court orders defendant to "file a copy of the redacted ROI reflecting coded designations that correspond to the agency's Vaughn index." 

Graff v. FBI, No. 09-2047, 2011 WL 5401928 (D.D.C. Nov. 9, 2011) (Jackson, J.).  Holding:  Granting, in part, defendants' motion for summary judgment as to the validity of their policies concerning third party law enforcement records; and denying, in part, defendants' summary judgment motion concerning the application of that policy to the two requests, and remanding for plaintiff to proffer a public interest and for defendants to balance that interest against any privacy interests; and denying, in full, plaintiff's cross-motion for summary judgment.  The court concludes that the defendants' practice of "refus[ing] to initiate a search for material responsive to a FOIA request for law enforcement records about a third party who is a foreign national unless the requester first submits a proof of death, a signed privacy waiver, or a public interest justification for the disclosure" is proper.  The court notes that "[t]he Supreme Court and the D.C. Court of Appeals have already had occasion to address the practice of responding to FOIA request in a categorical manner, and they made it clear that [under certain circumstances] rules exempting whole groups of records from disclosure are not only permitted, but should be encouraged as a means of enabling agencies to meet their formidable FOIA obligations in a timely fashion."  The court distinguished the instant case from Nation Magazine v. U.S. Customs Service, in which the D.C. Circuit determined that the Glomar response was not appropriate for records pertaining to a presidential candidate's involvement with the agency's drug interdiction program and remanded to the district court to balance the privacy and public interests involved because "it did not accord any consideration to the public interest in disclosure."  In contrast, the court finds that categorical rule used by EOUSA and the FBI is not overinclusive.  The court observes that "[n]either the EOUSA nor FBI employs a policy of summarily refusing to confirm or deny the existence of records simply because the request calls for law enforcement records related to a third party individual" but "[i]nstead, they accord the requester the opportunity to explain why the public interest in disclosure outweighs the third party's privacy concerns so that the government agency can perform the particularized balancing of interests that the court found lacking in Nation[ ] Magazine."  The court determines that "[s]ince the requester can overcome the inference that the materials are exempt by coming forward with either a death certificate, a waiver, or a showing of the public interest that would be advanced, the policy satisfies all of the 'statutory requirements for exemption,' . . . and meets the Nation Magazine test." 

Despite plaintiff's argument to the contrary, the court finds that "where an individual seeks law enforcement records that implicate the privacy interests of a third party, the requester bears the burden of asserting the public interest at play" and notes that placing that burden on the requester is consistent with the Supreme Court's holding in NARA v. Favish.  The court reasons that "because the public interest justification in each case depends on how the requester plans to use the records or information, the agency must obtain that justification from the requester in order to balance it against the third party's privacy interest."  Additionally, the court notes that given the burdens placed on agencies "it would be inefficient and impractical, and ultimately, unfair to the requesters, to depend upon the government to guess what the requesters had in mind and to catalogue the possible public reasons for disclosure."  The court maintains that the fact that the subjects of the instant requests are foreign nationals is of no consequence because "courts have determined – and [plaintiff] concedes – that foreign nationals are entitled to the privacy protections embodied in FOIA."  Furthermore, "[e]ven if a third party's status as a foreign national gives rise to a privacy interest that is somewhat weaker than that of a U.S. citizen, given the structure of the statute, even a weak privacy interest will always outweigh a lack of public interest." 

The court also rejects plaintiff's contention that "the government should be required to institute a search as soon as it receives the FOIA request and . . . then call for the requester to provide a public interest justification for each individual responsive record."  Rather, the court finds that this argument is "simply another way of claiming that categorical rules are improper per se, and the courts have already clearly indicated that such rules are a workable and expeditious way to proceed."  In addition, the court comments that "[i]t is more efficient and it imposes no improper burden on the requester to establish a procedure whereby the government performs the necessary balancing once for the entire class of requested records before going through the time and expense of a search." 

Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.).  Holding:  Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2.  The court concludes that defendants properly withheld information pertaining to third parties pursuant to Exemption 7(C).  The court notes that plaintiff "concedes . . . the propriety of withholding the names of and identifying information about [certain] third parties" mentioned in the records, but still seeks release of information pertaining to a prosecutor and two DEA Special Agents.  The court notes that "[g]enerally, the privacy interests of third parties mentioned in law enforcement files are 'substantial,' while '[t]he public interest in disclosure [of third-party identities] is not just less substantial, it is insubstantial.'"  Moreover, the court observes that although "[a] government employee's privacy interest may be diminished by virtue of his government service, . . . he retains an interest nonetheless."  The court finds that, in this case, "plaintiff's interest in the requested records is personal in nature – the subjects of his requests were active participants in the investigation of his criminal activities, the gathering and use of his intercepted telephone communications, the criminal trial, and the subsequent complaints he filed against these individuals."  In terms of the public interest in disclosure, the court finds that plaintiff's "unsupported assertions and speculation" do not constitute "'evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred" as required by the Supreme Court in NARA v. Favish.

Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.).  Holding:  Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions 6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E).  The court holds that "USPIS' decision to withhold . . . third party information [of agents and others involved in the investigation of plaintiff] under Exemption 7(C) is entirely appropriate, particularly in the absence of any credible showing by plaintiff to the contrary."  The court further finds that "[p]laintiff's argument that the USPIS 'failed to provide any specific examples of past unwarranted contacts, harassment, humiliation, or stigmatization of the privacy rights of [the individuals named in the records] is unpersuasive, and no agency bears such a burden on summary judgment."

Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS107883 (M.D. Tenn. Sept. 22, 2011) (Trauger, J.).  Holding:  Granting summary judgment to defendants based on the propriety of their withholdings.  As an initial matter, the court notes that although the FBI claimed Exemptions 6 and 7(C) for certain records, "[b]ecause all of the redacted records were compiled for law enforcement purposes, and because Exemption 7(C) provides broader privacy protections than Exemption 6, the court can resolve this motion by largely focusing on Exemption 7(C)."  Based on an in camera review of the records at issue, the court concludes that the FBI properly asserted Exemption 7(C) to protect the identities of FBI agents and employees, third parties who provided information to law enforcement, state and local law enforcement officials, individuals of investigative interest, victims, and the rap sheets of third parties.  In terms of the privacy interests involved, the court finds that "[t]he defendants' suggestion that it is an 'invasion of personal privacy' to release to the public the names and identifying information of those involved in law enforcement investigations is well supported by the case law" and notes that the FBI's declaration also identifies the harms that could be occasioned by disclosure. 

On the other hand, the court finds that "the first 'countervailing public benefit' identified by the plaintiff, [namely,] that the unredacted production would be a tool to aid him in his underlying state collateral review proceedings, is an illegitimate one."  Rather, the court determines that "[t]he purposes of civil discovery (which aids the litigant) and FOIA (which aids the public at large) are clearly distinct, and FOIA does not serve as a 'substitute for the normal process of discovery in civil and criminal cases.'"  As to plaintiff's claim that "it is in the public interest to know whether the 'FBI might be withholding information that could corroborate a death row inmate's claim of innocence,'" the court finds that "[w]hile there is undoubtedly a public interest in shedding light on how the federal agencies operate and whether they could work to imprison someone illegitimately, the specific information being withheld does not shed light on how the FBI works or if the FBI is engaged in conduct that might have resulted in an innocent man being sentenced to death."  Instead, the court notes "the information being withheld is, by and large, the names and identifying information of people who happened to be involved in the investigation" of plaintiff and, as the Supreme Court recognized in Reporters Committee, "[t]his information . . . does not generally assist the public in determining whether the agency is performing its duties properly."  The court notes that plaintiff's reliance on the D.C. Circuit's decision in Roth v. U.S. Department of Justice, which found that "a death sentence 'strengthened the public's interest in knowing whether the FBI's files contain information that could corroborate an innocence claim,'" is not applicable here, because, in contrast to Roth, the FBI did not invoke a Glomar response and the documents were reviewed by the court in camera. As such, the court concludes that public interest implicated by the records is "negligible," and weighing this minimal public interest "against the recognized privacy interests at issue, and it is clear that the defendants are properly redacting names and indentifying information of those connected with the law enforcement investigation."

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.  As a threshold matter, the court notes that "EOUSA, FBI, DEA, and BOP asserted Exemption 7(C) to withhold information clearly compiled for 'law enforcement purposes.'"  Moreover, the court finds that it is "well-settled" that information relating to "the identity of third parties, special agents, government employees, and local law enforcement personnel," for whom Exemption 7(C) was invoked, "have a substantial interest in their anonymity."  The court concludes that "there is no public interest asserted by plaintiff that outweighs such a substantial privacy interest."  Accordingly, defendants properly asserted Exemption 7(C) with respect to this third party information. 

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 holds that BLM properly asserted Exemptions 6 and 7(C) to protect various third party information "including addresses, social security numbers, dates of birth, criminal histories, past addresses, private signatures, phone numbers, drivers license numbers, motor vehicle identification numbers, fax numbers, private e-mail addresses, credit card number, and eBay and Paypal identifiers." 

Negley v. FBI, No. 03-2126, 2011 WL 3836465 (D.D.C. Aug. 31, 2011) (Kessler, J.).  Holding:  Granting defendant's motion for summary judgment on the basis that the FBI conducted an adequate search and that its withholdings under Exemption 7(C) were proper.  The court holds that the FBI properly redacted the names and identifying information of third parties, including FBI personnel, confidential sources, state employees and law enforcement officials, individuals interviewed by the FBI, and third parties of investigative interest under Exemption 7(C).  The court finds that all of these individuals have "substantial privacy interests" and notes that "[t]here is no disagreement that disclosure of these materials can lead to great embarrassment and reputational harm" and "could, in some cases, lead to physical harm to the individuals and/or their families."  The court comments that the D.C. Circuit "has held 'categorically, that unless [disclosure of this type of information] . . . is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure."  Here, "Plaintiff does not present any evidence, no less compelling evidence, that the FBI has engaged in illegal activity in this case."  Additionally, the court determines that "Plaintiff never identifies any public interest that would be served by disclosure."    

Pinson v. Lappin, No. 10-1844, 2011 WL 3806160 (D.D.C. Aug. 30, 2011) (Howell, J.).  Holding:  Granting defendant's motion for summary judgment on the basis of its withholdings under Exemption 6; denying plaintiff's claim for declaratory relief; and granting plaintiff's motion for an award of costs.  The court finds that BOP's "supporting declaration offers no explanation for concluding that its staff directory was a law enforcement record suitable for protection under Exemption 7(C)." 

Anderson v. BOP, No. 10-413, 2011 U.S. Dist. LEXIS 95125 (D.D.C. Aug. 25, 2011) (Boasberg, J.).  Holding:  Granting BOP's motion for summary judgment on the basis that its search was adequate and its withholdings pursuant to Exemptions 7(C) and 7(F) were justified.  The court holds that Exemption 7(C) was properly asserted to withhold seven pages that pertain to a third party.  The court comments that "[a]lthough, given the subject matter of the documents, the Court finds that the privacy interest here may be weak, there is no corresponding public interest whatsoever to overcome even a weak privacy interest." 

Skinner v. DOJ, No. 09-725, 2011 U.S. Dist. LEXIS 94450 (D.D.C. Aug. 24, 2011) (Friedman, J.).  Holding:  Granting, in part, defendants' renewed motion for summary judgment based on its withholdings under Exemptions 6, 7(C), and 7(E); denying, in part and without prejudice, defendants' motion for summary judgment with respect to information withheld under Exemption 2.  The court holds that USCIS and ATF properly withheld names and identifying information related to law enforcement personnel and the face of a third party referenced in connection with plaintiff's investigation.  The court notes that "'[t]he D.C. Circuit has consistently held the [E]xemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses and informants, and has determined that such third-party information is categorically exempt from disclosure under [E]xemption 7(C), in the absence of an overriding public interest in its disclosure.'"
Reich v. U.S. Dep't of Energy, No. 09-10883, 2011 U.S. Dist. LEXIS 93600 (D. Mass. Aug. 19, 2011) (Gorton, J.).  Holding:  Granting defendant's motion for summary judgment.  In the alternative, the court concludes even if the investigative report were considered to be an agency record for FOIA purposes, it would be exempt from disclosure pursuant to Exemptions 6 and 7(C), because it "relates to dismissed allegations of misconduct by individuals employed by a privately-owned facility and does not elaborate upon operations of the DOE."  The court finds that plaintiff has not presented credible evidence to demonstrate that the exemptions have been waived by a purported disclosure of the report to editors of scientific journals, but also opines that "the fact that some information about the investigation was released to the public does not indicate that the privacy of the entire document was waived." 

Marshall v. FBI, No. 10-871, 2011 WL 3497801 (D.D.C. Aug. 10, 2011) (Collyer, J.).  Holding:  Granting the FBI's motion for summary judgment on the basis that it conducted an adequate search and properly withheld third party information pursuant to Exemption 7(C).  The court concludes that the FBI properly withheld the names, telephone numbers, and other identifying information related to FBI special agents, agency personnel, and third parties of investigative interest pursuant to Exemption 7(C).  In terms of the privacy interests at stake, the court notes that "Exemption 7(C) protects the identities of suspects, witnesses, and other persons of investigatory interest who are identified in agency records in connection with alleged criminal activity."  The court also finds that "law enforcement personnel have a privacy interest in protecting their own identities because disclosure could subject them to annoyance, embarrassment, and harassment in the conduct of their official and private lives."  Conversely, the court finds that, with regard to any public interests in disclosure, plaintiff "has not produced any evidence that would give rise to a reasonable belief that any government impropriety might have occurred."

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.  Balancing the relevant privacy interests and the asserted public interest in disclosure, the court concludes that the FBI properly withheld the names and identifying information of third parties mentioned in the records, including special agents, victims and survivors of the Jonestown massacre pursuant to Exemption 7(C).  The court notes that "[s]uspects, witnesses, investigators, and third parties all have substantial privacy interests that are implicated by the public release of law enforcement investigative materials."  Conversely, the court finds unavailing plaintiffs' argument that the public interest is served by release of the records because "the interest in disclosure is particularly high in this case due to 'the depth and extent of the public interest in the Jonestown records.'"  Rather, the court finds that "[a]lthough the Jonestown Massacre may have elicited a great deal of public attention, the relevant question is not whether the public would like to know the names of FBI agents and victims involved, but whether knowing those names would shed light on the FBI's performance of its statutory duties."  Here, the court concludes that "[p]laintiffs have failed to convincingly explain how knowing the names of the persons involved would achieve that goal."  

Moffat v. DOJ, No. 09-12067, 2011 WL 3475440 (D. Mass. Aug. 5, 2011) (Casper, J.).  Holding:  Granting summary judgment to defendants based on adequacy of their searches and withholdings; denying plaintiff's request for attorney's fees and costs with respect to DEA and ATF, but permitting him leave to file a memorandum regarding his entitlement to fees with respect to his claim against the FBI.  The FBI properly invoked Exemption 7(C) to withhold the identifying information of individuals mentioned in law enforcement records.  With respect to information pertaining to individuals interviewed by the FBI in the course of criminal investigations, the court finds that here "[t]he FBI asserts, and [plaintiff] does not dispute, that disclosure could subject these individuals to harassment, intimidation, threats, or even economic and physical harm, which could deter this kind of assistance to the FBI in the future."  As to federal and state law enforcement agents, the court finds that "disclosure of identifying information concerning these individuals could also prejudice their effectiveness in conducting criminal investigations and may also subject them to various forms of hostility for their roles in criminal investigations."  For individuals of investigative interest, the court finds that "if the FBI disclosed the names of these third parties, they would possibly be subject to harassment or criticism as connections to investigations of criminal activities carry an 'extremely negative connotation.'"  Conversely, the court finds that plaintiff has failed to identify a "superior public interest" in disclosure. 

Nat'l Day Laborer Organizing Network v. U.S. Immigr.& Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.).  Holding:  Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney client privileges.  The court "assume[s] arguendo that the documents, or some portion thereof, could satisfy the threshold test of Exemption 6 or 7(C)."  With respect to agency employees mentioned in the withheld records, the court concludes that "the public interest in disclosure outweighs the privacy interest as regards the names of agency heads or high-level subordinates . . . and the titles and places of work of all federal employees and third parties."  The court finds that "[t]here is a substantial public interest in knowing whether the documents at issue reflect high-level agency policy, helping to inform the public as to 'what their government is up to.'"  Additionally, "[t]he disclosure of the places of work and titles but not the names of subordinate staff will provide plaintiffs with a greater ability to ascertain the degree to which the documents reflect the views of the agency versus those of individual agency employees, and will enable plaintiffs to tests defendants' assertions of deliberative process to a greater degree, without exposing lower level federal employees to the risk of harassment or annoyance."  However, the court grants summary judgment to defendants with respect to email addresses and phone numbers because "[p]laintiffs evince no interest in [them]."  

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.  As a preliminary matter, the court "assumes that the plaintiff is not challenging" redactions made pursuant to Exemption 7(C) in three documents because these withholdings are not addressed in plaintiff's opposition.  With respect to the remaining documents that were withheld in full, the court finds that the SEC still fails to provide sufficient information to demonstrate why redaction would be insufficient to protect the identities of individuals named in the records.  The court notes that "[a]lthough in camera review is certainly not the Court's preferred method of handling FOIA cases, [it] remind[s] defendant that such review is available if, as defendant contends, it cannot provide any further explanation without disclosing protected information." 

Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin, Mag.).  Holding:  Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F).  The court notes that "even assuming arguendo that the documents were compiled for law enforcement purposes, [it] cannot find that the privacy interests outweigh the public interest" because "[t]he public has a strong interest in government investigations, especially an investigation like the one at issue here where a prison inmate was shot by a prison employee."  As to the mortality review and the surveillance video related to plaintiffs' son's death, the court comments that "the countervailing privacy interest is that of 'the family of the deceased]'" and that "[t]he privacy interests of public officials, like prison guards or officials are somewhat reduced."

Mingo v. DOJ, No. 10-1673, 2011 WL 2559221 (D.D.C. June 29, 2011) (Howell, J.).  As an initial matter, the court notes the plaintiff only contests BOP's decision to withhold video disks in their entirety pursuant to Exemption 7(C), but finds that it nevertheless is obligated to conduct a segregability finding with respect to both the disks and the eighteen pages withheld in full.  The court concludes that BOP properly asserted Exemption 7(C) to withhold "medical records of other inmates and staff who were involved in the altercation, none of whom has consented to the release of such information."  Additionally, the court notes that "Plaintiff does not suggest that an overriding public interest compels the release of those pages."  In terms of the withheld video disks containing "different camera views of the altercation and the images of 'at least 50 different inmates,'" the court finds that BOP properly withheld this material where it does not have the technical capability to redact the disks and "Plaintiff has not proffered contrary evidence or any evidence of agency bad faith" or presented "any claim of an overriding public interest." 

Vest v. Dep't of the Air Force, No. 09-1083, 2011 WL 2469593 (D.D.C. June 22, 2011) (Walton, J.).  Holding:  Dismissing claims against six defendants based on plaintiff's failure to exhaust administrative remedies; granting summary judgment for three defendants based on the adequacy of their searches; and concluding that the FBI properly asserted Exemption 7(C) for records concerning a third party.  The court holds that the FBI properly invoked Exemption 7(C) in connection with plaintiff's request for information about a third party for which he did not provide consent, proof of death, or demonstrate a countervailing public interest.  With regard to plaintiff's assertion that the FBI should have taken steps to ascertain whether the subject of the request was deceased, the court finds that "[w]hile on first blush it appears that the DOJ/FBI should have taken the life status of [the subject] into account, '[t]he effect of an individual's death on [their] privacy interests need not be factored into an Exemption 7(C) balancing test . . . where no public interest would be served by the disclosure of that individual's name or other identifying information.'"  For one, the court notes that "even after death, a person and their relations retain some privacy interest, and 'something, even a modest privacy interest, outweighs nothing every time.'"  As such, the court concludes that in order "for the DOJ/FBI's failure to consider [the subject's] life status to be relevant, and actually 'trigger the balancing of public interests against private interests' under Exemption 7(C), the plaintiff 'must (1) show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and (2) show the information is likely to advance that interest.'"  Here, the court finds that plaintiff has not articulated a "cognizable public interest," noting that plaintiff's stated interest in "disclosing information about the activities of [the subject], apparently a third party with no connection to the plaintiff, . . .  and how those activities might relate to the death of plaintiff's father over sixty years ago would reveal little or nothing (based on the information provided by plaintiff) about the FBI's own conduct or shed light on the activities of the government in general." 

Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 U.S. Dist. LEXIS 63829 (S.D.N.Y. June 16, 2011) (Scheindlin, J.).  Holding:  Granting, in part, defendants' motion for summary judgment as to withholdings under Exemption 5; and granting, in part, plaintiffs' motion for summary judgment with respect to material withheld under Exemptions 6, 7(C), and 7(E).  To the extent these documents qualified under the threshold of Exemptions 6 or 7(C), the court adds that under either standard "the public interest in disclosure outweighs the privacy interest" because "there is a substantial interest in knowing whether the expectations and requirements articulated in the memoranda reflect high-level agency policy."  The court finds that disclosure of the names of the agency employees alone "in conjunction with the already disclosed content of the memoranda, will help to inform the public as to 'what their government is up to.'"

Venkataram v. Office of Info.Policy, No. 09-6520, 2011 WL 2038735 (D.N.J. May 25, 2011) (Simandle, J.).  Holding:  Granting defendants' motion for summary judgment with respect to an individual government employee named in the complaint as well as for any unexhausted FOIA requests; and ordering defendants to show cause as to why the matter should not be remanded to the agency to process plaintiff's request.  The court rejects defendants' argument that records pertaining to a third-party who was dismissed by federal prosecutors from plaintiff's criminal case are categorically exempt from disclosure pursuant to Exemptions 6 and 7(C).  Referencing the Supreme Court's decision in Reporters Committee, the court finds that "[h]ere, Defendants attempt to exclude from production a much broader category of documents than any previously recognized categorical exception under Exemption 6 or 7(C)."  The court finds that "the mere fact that a document contains information related to a private individual does not mean it contains private personal information, much less that it can categorically be reasonably expected to constitute an unwarranted invasion of personal privacy." 

Citing an "extreme" hypothetical, the court opines that "suppose that the Department of Justice had a memorandum explaining their discovery that no such individual exists, and that the indictment was mistaken."  In such a case, the court comments "[t]his document would not be exempt from disclosure on the basis that it revealed [the third party's] private information even though it would be responsive to Plaintiff's request."  Moreover, the court notes that "[e]ven in more plausible circumstances, some responsive documents may contain no private information about [the third party] (for example, a document stating the agency's belief that, based on the allegations in the superseding indictment, the United States lacks jurisdiction over [him])."  Moreover, the court finds that "even if such documents contained more information about [the third party] than in the above suppositions, the balance may not inexorably tip toward privacy; the individual in question in this case was indicted for a serious federal crime, as contrasted with some mere witness or person of interest who was not charged."  The court finds that "[t]here may be a heightened public interest in learning about the government's conduct with respect to a criminal defendant and a diminished expectation of personal privacy residing in the accused."

Additionally, the court notes that if the Supreme Court had intended to "exempt all documents with information related to private individuals" without further analysis, the Court in Reporters Committee, "could have simply observed that the claimants sought information about a particular private individual," rather than "perform[ing] a lengthy examination of whether the aggregation of information in a 'rap sheet' made the record one that contains private information."  As such, the court orders "the remaining Defendant to show cause why the Court should not remand Plaintiff's original, exhausted FOIA request to the Department of Justice so that the agency may review it in light of this Opinion and determine what documents, if any, must be produced for Plaintiff, with any exemption to be claimed with specificity."

Griffin v. EOUSA, No. 09-1517, 2011 WL 1211354 (D.D.C. Mar. 31, 2011) (Leon, J.) .  Holding:  Resolving the last issue in case by granting USMS's motion for summary judgment on its claims of exemption and the adequacy of its searches.  In terms of the privacy interests at stake, the court agrees with USMS that "third-party information contained in law enforcement files is 'categorically exempt' from disclosure under Exemption 7(C) in the absence of an overriding public interest in its disclosure."  Conversely, the court finds that "[p]laintiff's unsubstantiated claim of official misconduct" is not sufficient to establish a public interest in disclosure.  Identifying "substantial" privacy interests and no public interest in disclosure, the court holds that "USMS is entitled to summary judgment on its application of Exemption 7(C) to the third-party's personal information that was redacted from the released forms."

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."      

World Pub. Co. v. DOJ, No. 09-574, 2011 U.S. Dist. LEXIS 32594 (N.D. Okla. Mar. 28, 2011) (Kern, J.).  Holding:  Concluding that Tulsa World established that it has standing to bring the instant lawsuit; and granting USMS's motion for summary judgment on the basis that it properly withheld booking photographs of third parties pursuant to Exemption 7(C).  The court conducts categorical balancing and holds that USMS properly invoked Exemption 7(C) to withhold the booking photograph of six individuals, who at the time of the FOIA request, "were indicted on federal charges, detained, and awaiting trial."  In terms of the privacy interest at stake, the court finds that "(1) booking photographs are stigmatizing depictions that preserve 'in [a] unique and visually powerful way, the subject individual's brush with the law for posterity,' and (2) indictees could reasonably 'object to public disclosure of his or her mug shot.'"  Additionally, "[e]ven more than an ordinary photograph, citizens have a privacy interest – i.e., an interest in avoiding disclosure of – booking photographs because of their stigmatizing effect and their association with criminal activity."  Moreover, "[t]he Court rejects any notion that federal indictees lose a privacy interest in their booking photographs simply because they have been charged with a crime, are the subject of ongoing criminal proceedings, and are therefore some type of 'public figure' with reduced expectations of privacy."  To the contrary, the court finds that "[t]here is no precedent for importing 'public figure/private person' distinctions or 'expectation of privacy' standards from other areas of law to the Exemption 7(C) analysis." 

ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik, J.).  Holding:  Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure.  "Having reviewed the declarations provided and the documents discussed by the parties," the Court orders the FBI to release "descriptors that apply to whole populations, such as race, sex, country of birth, and passport country, [because they] are not reasonably likely to identify any particular individual."  Conversely, the court finds "[o]ther information, such as criminal history, telephone number, and license plate number, could be combined with publicly available information to identify an individual and may therefore be redacted under Exemption 7(C)."

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 invoked Exemptions 6 and 7(C) to withhold the name of a third party listed on plaintiff's rap sheet, "a document prepared by a third party for law enforcement purposes reflecting that person's mental impressions concerning the matter under investigation," and the identities of third parties mentioned in plaintiff's presentence report.  The court finds that "[i]n each instance, the redacted or withheld information plainly implicated the privacy interests of persons other than [plaintiff]" and "in no instance has he suggested what public interest might weigh in favor of disclosure."  Moreover, the court notes that "'[w]here the requestor seeks [private] information in furtherance of private litigation, courts typically reject such disclosure as not falling within the ambit of FOIA's goal of public disclosure of agency action.'"

Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.).  BOP did not adequately describe its rationale for redacting certain third party information in five categories of responsive records related to tort claims and litigation.  The court finds that although it "suspects that it would be an invasion of privacy to produce the contact information (e.g., phone numbers, addresses, etc.) of individuals who work for [BOP], . . . the defendant has simply not made the case for non-disclosure."  "[W]hile [BOP] has repeatedly provided the Court with the law that it must apply, it has not provided the Court with sufficient specificity of the underlying facts needed to appropriately apply that legal authority to the case at hand."  Additionally, the court determines that, with regard to BOP's assertion of Exemption 7(C), it "has not sufficiently established – in any of its filings – that the [five categories of documents at issue] were compiled for law enforcement purposes."   

The court holds that, with respect to four categories of responsive documents, BOP has failed to justify its withholdings pursuant to Exemptions 2, 6 and 7(C).  For one, the court finds that BOP "has made no attempt at showing that the information withheld under Exemption 2 – apparently the EEOC file numbers – was for predominantly internal purposes or 'that disclosure may risk circumvention of agency regulation, or that the material relates to trivial administrative matters of no public interest.'"  In fact, the court notes that "in a case such as this one where the number of responsive pages produced climbs above 11,000, the EEOC files numbers may very much be in the public interest as a means for the effective organization and dissemination of the requested information." 

Lazaridis v. DOJ, No. 09-1177, 2011 WL 652469 (D.D.C. Feb. 24, 2011) (Collyer, J.).  The court concludes that "EOUSA, having no third-party waivers or proofs of death, properly redacted such information from released documents" "[b]ecause third-party identifying information is 'categorically exempt' from disclosure under exemption 7(C)."  However, the court denies EOUSA summary judgment with respect to one document containing redactions that appears to be the same document, or similar to another document that was released in full by EOUSA.  With respect to the public interest analysis, the court finds unavailing plaintiff's assertion that "disclosure is warranted because the requested documents will assist him in proving violations under Brady v. Maryland . . . and future [Bivens]claims."  Rather, the court finds that "the public interest in disclosure 'does not include helping an individual obtain information for his personal use'" and that plaintiff's "speculative and conclusory claims of employee misconduct provide no counterweight to the strong third-party privacy interests shielded by exemption 7(C)."

As with EOUSA's categorical withholdings, the court holds that "the FBI properly invoked exemption 7(C) to redact the names of and identifying information of FBI Special Agents and support personnel, . . . and that of other third-party individuals of various categories."  Additionally, the court notes that plaintiff "has provided no evidence of an overriding public interest requiring disclosure of the otherwise protected information."   The court rejects plaintiff's claim that some of the information is in the public domain by virtue of a defamation case that he filed in federal court, finding that "[h]e has not shown what, if any, of the protected information is in the public domain." 

Hodge v. FBI, No. 08-403, 2011 WL 532121 (D.D.C. Feb. 14, 2011) (Leon, J.).  As an initial matter, the court finds that the "information in question was clearly compiled for 'law enforcement purposes.'"  The court then concludes that the FBI properly withheld identifying information related to "agents, federal, state and local government employees, victims, and third parties who provided information to the FBI, were merely mentioned, or were of investigative interest" pursuant to Exemption 7(C).  The court finds that "[i]t is well settled that these individuals have a substantial interest in their anonymity" and that "there is no public interest against which to balance such a substantial privacy interest."  The court dismisses plaintiff's claim that the redactions were "excessive," finding that "[t]his argument is to no avail" because "Exemption 7(C) is not limited to basic identifying information such as names, addresses and phone numbers."  Regarding plaintiff's claim that the FBI was "required to determine the life status of any individual whose information was withheld," the court notes that "even assuming all the individuals have died, because there is no identifiable public interest here, their interest, though diminished, would justify withholding information under Exemption 7(C)." 

Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.).  The court holds that the FBI properly invoked Exemption 7(C) to withhold identifying information of various third parties.  The court finds that "[t]he FBI has described, plausibly and in considerable detail, the harms one might reasonably expect to flow from the public disclosure of such information" and "credibly assert[ed] that it reviewed each item of information withheld, and concluded in each instance that the implicated privacy interests outweighed the public interest in shedding light on the FBI's performance of its responsibilities."  Additionally, the court notes that "the FBI did not withhold identifying information where it was able to determine that the individual was deceased or was a high-ranking government official whose activities may be of a greater public interest." 

The court rejects plaintiff's argument that "some small subset of these individuals are his 'friends and associates' and 'would not be concerned with any privacy intrusion."  Rather, the court finds that his assertion is "unsupported by competent evidence and ignores the fact that agencies are permitted to make categorical determinations when making withholding decisions under [Exemption 7(C)]."  The court also finds that the passage of time does not necessarily diminish privacy interests, noting that agencies are required to make "reasonable efforts to ascertain life status," which the FBI has done.  With respect to plaintiff's argument that disclosure of the identities would "further a public interest 'in learning the details of illegal FBI surveillance activities,'" the court finds that "when the substantive contents of the records have otherwise been disclosed, [the release of such information] would shed relatively little light on the performance and activities of the FBI."  Additionally, the court finds that plaintiff "has failed to present anything remotely approaching [the] quantum of evidence" required under Favish to support his allegations of wrongdoing on the part of the FBI.

Bonilla v. DOJ, No. 10-22168, 2011 WL 122023 (S.D. Fla. Jan. 13, 2011) (King, J.).  The court concludes the agency's categorical withholding of the requested records is not appropriate where "Defendant has not met its burden of showing the type of record requested by Plaintiff would not reveal any 'official information' about a government agency."  Moreover, "[b]ased on the record before it, the Court cannot find that this is a case where the balance 'characteristically tips in one direction.'"

Gerstein v. CIA, No. 06-4643, 2011 WL 89337 (N.D. Cal. Jan. 11, 2011) (Chesney, J.).  The court concludes that OPR properly withheld identifying information related to an AUSA and an FBI official who were investigated by OPR for the potentially illegal release of information.  The court finds that "the AUSA enjoys a privacy interest in avoiding disclosure of his/her identity, and thus avoiding the embarrassment and stigma associated with disciplinary action."  Moreover, "[w]hile the public has an interest in knowing the identity of such individual, and although this particular AUSA was 'a line attorney acting in a supervisory position' . . ., an AUSA is 'not considered a high-level employee in the DOJ hierarchy,' . . . and the public's interest in learning the identity of such individual is diminished."  The court also notes that, here, "the DOJ concluded the disclosure was not intentional, and warranted only a 'letter[] of caution.'"  "Given the level of the employee in question, the lack of intentional misconduct, and the disclosure of non-exempt segregable portions of the documents, the Court, [after balancing,] finds OPR's withholdings to be proper."  

Likewise, the court concludes that OPR properly withheld the identity of the FBI official "on the ground that a disclosure of his/her identity necessarily would disclose the identity of the AUSA."  The court finds "[i]n light of the lack of serious wrongdoing by the FBI official, . . . the AUSA's privacy interest continues to outweigh the public's interest, such that disclosure of the FBI official's identity 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' with respect to the AUSA."

Banks v. DOJ, No. 06-1950, 2010 WL 5313292 (D.D.C. Dec. 23, 2010) (Sullivan, J.).BOP properly asserted Exemption 7(C) to withhold "'personal information relating to the victims' of plaintiff's criminal activities." The court finds that the withheld information is "'categorically exempt' from disclosure under Exemption 7(C) in the absence of an overriding public interest in its disclosure." The court then concludes that BOP's withholdings were appropriate given that "'[t]he D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interest of all persons mentioned in law enforcement records, including investigators, suspects, witnesses and informants,'" and that "[s]uch protection extends to crime victims whose names appear in law enforcement records."

Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). The FBI properly invoked Exemption 7(C) to withhold the "names and identifying information of FBI support personnel and special agents, non-FBI federal law enforcement employees, local law enforcement employees, third parties who provided information to the FBI, third parties of investigative interest, and third parties merely mentioned" in the records. The court concludes that "the FBI has established that valid privacy concerns justify withholding" such information, and that it "also established why in each case the public interest does not trump those privacy concerns." Additionally, "[p]laintiffs have failed to produce anything more than 'a bare suspicion' wrongdoing."

Brown v. DOJ, No. 10-247, 2010 U.S. Dist. LEXIS 107589 (D.D.C. Oct. 7, 2010) (Huvelle, J.). As a preliminary matter, the court notes that the FBI's refusal to process plaintiff's request pursuant to Exemptions 6 and 7(C) "constitutes a 'Glomar' response." Given that any responsive records pertaining to the third party would be contained in a criminal investigative file, the court finds that the individual "has a strong privacy interest in keeping his possible involvement with the FBI generally, as well as the information possibly contained in the documents specifically requested by plaintiff, private." Furthermore, "confirmation of the existence of records concerning [the third party] in the FBI's files, even if the FBI did not release them, would constitute an unwarranted violation of his privacy." Additionally, the court determines that plaintiff failed "to articulate a public interest" in the disclosure of the records where "there is no indication that responsive documents would reveal government wrongdoing" and where "plaintiff's personal interest [] in obtaining potentially exculpatory documents in order to attack his conviction 'does not count in the calculation of public interest.'" Since it was unable to identify any qualifying public interest, "the Court finds that the FBI's Glomar response to plaintiff's request, declining to process his claim for documents concerning a third party, is appropriate."

Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Citing case law discussing instances where agencies' appropriately asserted Exemption 7(C) in connection with law enforcement investigations, the court holds that ATF, the FBI, and DEA "properly withheld the names of and identifying information about federal and local law enforcement officers and support personnel, confidential sources, witnesses, interviewees, persons of investigative interest, and innocent third parties mentioned in the law enforcement records relevant to this case."

Gray v. U.S. Army Crim. Investigation Command, No. 09-1310, 2010 WL 3833937 (D.D.C. Sept. 30, 2010) (Sullivan, J.).Exemptions 6 & 7(C). "In light of the failure by defendants to sufficiently demonstrate non-segregablity, and in light of defendants' own assertion that it is not relying on these exemptions for withholding of the entire file [once Exemption 7(A) no longer applies], the Court concludes that these exemptions cannot be properly applied at this time."

Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.). With respect to deceased individuals who may be mentioned in the informant file, the court notes that "[e]ven after death, a person retains some privacy interest in her identifying information . . . and that 'something, even a modest privacy interest, outweighs nothing every time.'" However, the court concludes that the FBI has not provided sufficient information to allow the plaintiff "to make a cogent argument regarding any possible public interest in disclosure" and, accordingly, requires the FBI to "supplement its Vaughn index with individualized and more detailed descriptions."

Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). Exemption 7(C): The court concludes that the SEC's declarations are not sufficient to support its withholdings under Exemption 7(C), noting that "[n]othing in the defendant's proffer assists the Court in assessing why redacting the names and any other identifying characteristics of the persons involved in the OIG investigations will not adequately protect the privacy interests at stake."

ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20, 2010) (Walton, J.). The court finds that defendants properly withheld a deceased detainee's journal entries, handwritten witness statements, and correspondence with a deceased detainee's family pursuant to Exemption 7(C). Citing Favish, the court finds that "[t]he writings of a detainee in the days leading up to her suicide are likely to contain personal information, which sensibly should be withheld for personal privacy reasons" of her family and "are not of 'any discernible public interest.'" With respect to handwritten witness statements, the court concludes that "these documents are properly withheld under Exemption 7(C), given that the defendants assert that they have already provided the plaintiff with the actual content of the notes in a typed form." The court notes that "where the privacy interests and public interests in disclosure can be simultaneously protected by withholding the actual handwritten versions of the notes by producing typed renditions, an appropriate balance is reached." Additionally, the court finds that defendants properly invoked Exemption 7(C) to withhold correspondence with counsel for the estate of the deceased detainee, which included the deceased's medical records provided by her family. The court determines that disclosure of the communications and medical records "would violate the personal privacy of the detainee's surviving family members who may have claims against the defendants" and also that release "of such information could result in the discouragement of other potential complainants from cooperating with future Department investigations."

Gerstein v. CIA, et al., No. 06-4643, 2010 U.S. Dist. LEXIS 97766 (N.D. Cal. Sept. 17, 2010) (Chesney, J.). The court finds that although OPR's supplemental declarations "is sufficient to show that government employees were the subject of OPR's investigation and that the employees ultimately were sanctioned or disciplined; OPR's submission remains deficient, however, as to the 'nature of the position' held by such employees.'" As such, the court concludes that the information provided by OPR is not sufficient "to enable the Court to balance [the] individuals' privacy interest against the public interest" and, accordingly, provides OPR with another opportunity to submit more detailed declarations on the issue.

Judicial Watch, Inc. v. DHS, et al., No. 07-506, 2010 WL 3564260 (D.D.C. Sept 9, 2010) (Leon, J.). DOJ properly withheld personally identifying information pursuant to Exemption 7(C). As an initial matter, the court determines that "it is undisputed" that the records meet the threshold of Exemption 7, because they were compiled in the course of a criminal investigation and prosecution. In terms of the privacy interests related to the subject of the request, the court finds that disclosure of "non-public details pertaining to the grant of immunity . . . as well as non-public details of his entry into the United States in the context of a government prosecution" "could reasonably be expected to result in stigmatizing public attention and embarrassment by engendering comment and speculation." The court further notes that "the passage of time has not diluted the privacy interest at stake and, if anything, has actually increased [the subject's] privacy interest as the events surrounding the [] prosecution have faded from memory." With regard to the public interest, the court concludes that plaintiff "has made no showing of a 'significant' public interest . . . only obliquely asserting that the information sought would 'open [] up government action to the light of public scrutiny.'"

Additionally, the court concurs with DOJ's assertion that disclosure of information about law enforcement personnel and support staff "'may seriously impair their effectiveness in conducting future investigations,' 'could trigger hostility towards' these individuals, and could cause them to become 'targets of harassing inquiries for unauthorized access to information'" and concludes that "[i]t is well-established that information identifying [these types of individuals] can be withheld pursuant to Exemption 7(C)." Similarly, the court finds that the "privacy interests at stake are substantial" with regard to "third parties merely mentioned" in the records as well as those of "investigative interest" to the government and concludes that "release of the withheld information would constitute a clearly unwarranted invasion of privacy of [these] private citizens."

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.). The court applies the "rational nexus" test to determine whether the records at issue qualify as information compiled for a law enforcement purpose pursuant to Exemption 7(C). With respect to a records pertaining to Ronald Reagan's political career, the court holds that "since there exists no rational nexus between [identifying] information [related to an acquaintance of Reagan] and a legitimate law enforcement purpose, it must be released." The court also finds that with regard to "all documents dated post-1957, the investigation of an individual's mere membership in, or association with, the Communist Party or other purportedly subversive political movement, is not by itself a legitimate law enforcement purpose." Accordingly, the court order the release of the names certain individuals who were not associated with subversive organizations or the associated with the "violent overthrow of the government." Similarly, the court finds that certain public relations and politically-related records and non-law enforcement memos do not meet the Exemption 7 threshold.

Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). USMS properly redacted pursuant to Exemption 7(C) portions of investigators' interviews with third parties, including "the location of those meeting, and the substance of the interviews, which are sufficiently specific that they could reveal the identities of the interviewees."

Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court finds that defendants properly withheld identifying information related to federal, state and local law enforcement officers and support staff, where disclosure would create a risk of hostility or harassment. The court notes that redaction of such information "under circumstances similar to those described here has routinely been upheld." Similarly, the court finds that, for individuals merely mentioned in law enforcement records, "Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure" and it further notes that here there is no countervailing public interest in disclosure. Because the court analyzed the withheld information under Exemption 7(C), it declines to "determine whether this same information properly has been withheld under Exemption 6."

Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). Exemption 7(C)/Glomar: The court determines that DEA properly invoked the Glomar response in connection with Exemption 7(C) with regard to acknowledging the existence of any investigative records pertaining to two named DEA agents. The court notes that "[i]ndividuals' privacy interests are substantial given the nature of law enforcement records" and plaintiff "does not ... argue the existence of a public interest in disclosure." Furthermore, "[i]f the DEA were to confirm the existence of [those] investigative records[,] . . . the DEA necessarily reveals the information its Glomar response is intended to shield."

Richardson v. DOJ, No. 09-1916, 2010 WL 3191796 (D.D.C. Aug. 13, 2010) (Huvelle, J.). Reasoning that redaction of third party information in law enforcement files has been routinely upheld, the court concludes that EOUSA properly withheld identifying personal information of "federal special agents, officers of the Metropolitan Police Department ("MPD"), law enforcement technicians, an Assistant United States Attorney, eyewitnesses to an attempted murder, and other third parties." Additionally, the court finds that the FBI's use of Glomar response with Exemption 7(C) is appropriate where "although 'the FBI acknowledged the existence of responsive information'[], it 'is constrained in the amount of specificity it is able to provide in [its] public declaration regarding an investigative file of a third party.'" The court observes that "absent a showing that release of information about the third parties mentioned in the FBI's records furthers the public interest in the FBI's performance of its duties, their privacy interests prevail."

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.). The court finds that the public interest in disclosure outweighs any privacy interests with respect to "three video recordings of targets of an agency investigation that were created by those targets and obtained during the investigation." The court observes that the privacy interests of the two targets of the investigation in these particular records are "quite attenuated," because "[u]nlike surveillance tapes that capture a person's image without their consent, the videos at issue here were created by [the two individuals] expressly for distribution to the public" "for later use on television or a music video." The court rejects defendants' argument that the subjects' "privacy interests are substantial because the release of the videos could reasonably be expected to lead to embarrassment or harassment." Rather, the court concludes that any privacy interest in the videos is "minimal" and notes that "[t]o the extent that Defendants seek to protect [these individuals] from opprobrium based on their unlawful conduct, such an invasion of privacy is not necessarily unwarranted." The court also dismisses defendants' assertion that portions of the videos showing the interior of the family home of one of the targets would represent an unwarranted invasion of the privacy of family members. The court comments that "Defendants have produced no evidence that the family members (who do not appear in the videos) objected to this footage," expresses that the family members were "presumably aware" of the purpose for which the videos were being recorded, and notes that the contents of one of the videos appeared on national television.

In terms of the public interest, the court finds that "unlike criminal rap sheets and other personal data that happens to be warehoused by the government, . . . the videos in question were gathered by Defendants in the course of investigating federal crimes and were relied on by the government in making the decision to charge [the two individuals] with violations of federal law" and "[t]herefore, the videos will assist the public in learning 'what the Government is up to' with respect to prosecutions for Lacey Act violations." In response to defendants' assertion that the release of the videos will not shed light on their own agencies' conduct, the court states that "the public interest in disclosure under FOIA is not limited to the agency processing the request for records; the public has a right to know what their 'government' is up to, not just what a particular agency is up to."

With respect to images allegedly depicting the individuals, the court determines that although the public interests involved are same as those implicated by the videos, the privacy interests "are quite different," because "there is no similar evidence in the record that establishes that the photographs at issue were ever intended to be distributed publicly." The court rejects plaintiff's contention that the targets of the investigation have diminished privacy interests in the photographs because similar images exist in the public domain, finding that "[a]lthough [they] have a lesser privacy interest in photographs that they voluntarily took, . . . the public interest in showing their faces does not outweigh their privacy interests in protecting their own images." Regarding investigatory records containing redacted names, the court finds that the targets of the investigation "had no involvement in their creation, and it certainly cannot be said that they waived any privacy rights in those records." Accordingly, the court holds that defendants properly withheld the photographs and the redacted investigatory documents.

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.). After conducting the relevant privacy and public interest analysis, the court finds that, pursuant to Exemptions 6 and 7(C), the CIA properly withheld "the names and email addresses of DOD personnel below the office-director level, or officers below the rank of Colonel; the names of OLC line attorneys, persons interviewed by the CIA OIG, and one detainee; and personally identifying information such as dates of birth, social security numbers, and biographical information."

Meza v. DOJ, No. 09-1580, 2010 WL 2572613 (D.D.C. June 25, 2010) (Kollar-Kotelly, J.). EOUSA properly asserted Exemption 7(C) to withhold identifying information of third parties "inasmuch as such information contained in law enforcement files is 'categorically exempt' from disclosure under this exemption in the absence of a showing that an overriding public interest warrants disclosure." The court notes that Coast Guard redacted identifying information pursuant to Exemptions 6 and 7(C) from the personal records provided to plaintiff, and which were not challenged.

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2010 WL 2532649 (D.D.C. June 24, 2010) (Bates, J.). Exemption 7(C)/public domain doctrine/waiver: The court finds that the agency can no longer redact the names of certain sources "'who provided information to the Corps that resulted in an enforcement action,'" where it had inadvertently released their names in its initial Vaughn index. "Although, the Corps may continue to withhold the sources' remaining personal contact information – for example, their home addresses, telephone numbers, and relation to the enforcement action – it must release their names."

Kalwasinski v. BOP, No. 08-9593, 2010 WL 2541159 (S.D.N.Y. June 23, 2010) (Crotty, J.) (adopting magistrate's recommendation). The court adopts the magistrate's findings that "prospective visitors had a privacy interest in the information that [BOP] withheld" and that any public interest in the release of the information was "minimal."

Tamayo v. DOJ, 07-21299 (S.D.Fla. June 18, 2010) (Jordan, J.). The court finds that the FBI properly invoked Exemption 7(C) to protect the "substantial" privacy interests of a government official who was the target of an investigation as well as other third parties. Despite the fact that the former government official pleaded guilty to a felony, he "retains a privacy interest in the records because disclosure could further damage his reputation by providing authoritative confirmation of the full scope of his wrongdoing." Additionally, his "role as a former official does not 'render [his] interest in preserving [his] personal privacy without weight.'" The court also finds that the privacy interests of other third parties mentioned in the records are "particularly strong because association with the 'material in question demonstrates or suggests they had at one time been subject to' or 'involved in a criminal investigation.'" Additionally, "documents that reveal the identities of law enforcement personnel are properly withheld because '[p]ublic identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.'" Conversely, the court finds that there is minimal public interest in "learning the full extent of the illegal conduct committed by one of its Government officials." Furthermore, the "disclosure would provide little relevant information about agency conduct."

Vento v. IRS, No. 09-289, 2010 WL 2181312 (D.D.C. June 2, 2010) (Facciola, Mag. J.). IRS properly invoked this exemption to withhold personal information pertaining to "third party witnesses not directly involved with the examination of the plaintiff's tax liability." Plaintiffs "cannot claim that the disclosure of the identifying information the IRS deleted would advance any public interest," as they "seek this information to benefit themselves as private litigants." Disclosure "would not provide the public with information about agency action." Plaintiffs claim that there is a public interest in demonstrating that defendant acted improperly by withholding the requested documents, but their "argument is tautological and misconceives the [Supreme Court's] ruling in [Favish]." Plaintiffs' claim "that the IRS should disclose the documents to them in order to prove that they did not improperly withhold the documents goes completely against the process of review provided in FOIA. In addition, the improper withholding of requested documents is not the type of government 'impropriety' to which the interest of privacy yields."

Quinto v. DOJ, No. 09-2068, 2010 WL 1882164 (D.D.C. May 11, 2010) (Huvelle, J.). Defendant BOP properly invoked Exemption 7(C) to withhold the identities of individuals who "have a substantial interest in maintaining their anonymity. Moreover, the Court discerns no public interest in the release of [this information] to plaintiff." Plaintiff wrongly claims that release of this information would shed light on defendant's security policies. "The process by which the BOP calculates an inmate's security level . . . is publicly available. . . . To the extent that plaintiff argues that the documents he seeks may reveal that the BOP has improperly calculated his own [security status], plaintiff's 'bare suspicion' that the BOP has acted improperly in the performance of its duties is insufficient to overcome the privacy interests in these documents."

Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). BOP properly withheld the name of another inmate pursuant to this Exemption.

Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). The IRS properly withheld the names of third parties it contacted as part of its investigation of plaintiffs. "While Plaintiffs argue they seek this information merely to know what the government is 'up to,' such an argument is plainly disingenuous given the ongoing enforcement proceedings against Plaintiffs." Conversely, the court finds that the IRS improperly withheld the names of its own employees involved in the investigation of plaintiffs. "The names and titles of government employees are publicly available information under Office of Personnel Management guidelines, unless disclosure of this data would interfere with law enforcement programs or severely inhibit agency effectiveness. The IRS has not met its burden of showing disclosure of the names and titles of employees who worked on Plaintiffs' case would interfere with its investigation. Therefore, there is no privacy interest to consider and this Court will order the IRS to reveal to Plaintiffs the requested names and titles of IRS and DOJ employees."

Concepcion v. FBI, No. 07-1766, 2010 WL 1189832 (D.D.C. Mar. 30, 2010) (Urbina, J.). The FBI appropriately asserted this exemption to protect the name of an FBI Special Agent who supervised the criminal investigation of plaintiff. Such information is "routinely withheld under Exemption 7(C) on the ground that . . . disclosure could reasonably be expected to constitute an unwarranted invasion of the officers' personal privacy."

Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E). The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.

ACLU v. DOJ, No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson, J.). Plaintiff seeks the case names and docket numbers of cases "in which courts granted applications to obtain cell phone location data without probable cause determinations." The court "allocate[s] a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." Plaintiff asserts that there is a public interest in release of this information because it will explain "'to what extent and to what end the government is engaged in cell phone tracking, to what extent these surveillance activities lead to prosecutions, and to what extent these prosecutions are successful.'" However, plaintiff "provides only a meager explanation of just how the release of case names and docket numbers will advance that interest."

In the court's view, the ACLU's interest is in "find[ing] and pursu[ing] the juiciest cases - the ones that would best illustrate the Fourth Amendment argument the ACLU is apparently developing. The easier it becomes to pursue such follow-up investigations, however, the more likely it is that unwarranted invasions of personal privacy will occur." The court finds that the public interest in release outweighs the privacy interests at stake as to those defendants who have been convicted or who entered guilty pleas, but that the privacy interests of defendants who have been acquitted or whose cases have been and remain sealed outweighs the public interest in release of case names and docket numbers. As to docket numbers from applications for cases yet to be prosecuted, ACLU concedes that the names of unprosecuted targets are exempt. Given the fact that after such names are redacted, nothing would be left but "in re" lines, the court "will not order the government to make such a meaningless production." As to docket numbers for cases subject to seal, disclosure "could reveal surveillance targets yet to be prosecuted," thus the redactions are appropriate.

Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). Exemptions 6 & 7(C). "[T]he application of these exemptions [to withhold information about third parties] appears justified on their face." Plaintiff claims that the withheld information is already in the public domain, but he "has not '"point[ed] to specific information in the public domain that appears to duplicate that being withheld,''' as the law requires him to do before a court can find that the exemption has been waived by the public domain doctrine.

King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.).Exemptions 7(C) & 7(F). Plaintiff's only challenge to the use of these two exemptions is to claim that Exemption 7(C) should not apply because the DEA's investigation of him is complete. Plaintiff is incorrect that privacy interests diminish with the passage of time.

Barnett v. U. S. Dep't of Labor, No. 09-146, 2010 WL 985225 (E.D. Tex. Mar. 15, 2010) (Hines, Mag. J.). The court finds that the public interest in the requested records outweighs any privacy interest, except as to personally identifying information of the witnesses, including "names, addresses, telephone numbers, social security numbers and similar personal identifiers."

Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). The court finds that OPR's Vaughn index does not provide sufficient information about the "third-party individuals" about whom information was withheld for the court to make a judgment about the appropriateness of OPR's withholdings. In particular, "to the extent that any such 'third-party individual' may be a government employee, OPR's Vaughn Index lacks the detail required to enable the Court to balance the public interest against such individual's privacy interest." OPR will be given the chance to provide more detailed submissions.

Sellers v. DOJ, No. 08-0840, 2010 WL 545939 (D.D.C. Feb. 17, 2010) (Kennedy, J.). The FBI appropriately withheld the names of and identifying information concerning Special Agents and support personnel, state and local law enforcement personnel and emergency services personnel, and various third parties, including individuals interviewed by the FBI or local law enforcement as part of an investigation, third parties merely mentioned in FBI files, and third parties of investigative interest to the FBI. Even as to Special Agents who may have testified at plaintiff's trial, FBI's actions were appropriate. "A witness does not waive his or her interest in personal privacy by testifying at a public trial." Furthermore, plaintiff's asserted interest in the withheld information - that such information could allegedly be used to overturn his conviction - has repeatedly been held not to qualify as a "public interest" under the FOIA. Relatedly, "the courts 'have consistently supported nondisclosure of names or other information identifying individuals appearing in law enforcement records, including investigators, suspects, witnesses, and informants.'"

Lasko v. DOJ, No. 08-1850, 2010 WL 537551 (D.D.C. Feb. 17, 2010) (Friedman, J.). DEA properly asserted this exemption to withhold the names of its Special Agents, other DEA personnel, and state and local law enforcement officers. All of these individuals have significant privacy interests in protecting their identities. By contrast, "[p]laintiff articulates no public interest in disclosure. . . . His intention to use information in these records to prove his claim of innocence is not a public interest."

Clay v. DOJ, No. 09-0179, 2010 WL 325587 (D.D.C. Jan. 29, 2010) (Walton, J.). DEA properly withheld information concerning various third parties, including suspects, co-defendants, and confidential sources. "Such information is 'categorically' protected from disclosure under exemption 7(C) absent the plaintiff's showing that 'a significant public interest exists for disclosure.'" Plaintiff alleges that one of defendant's confidential informants testified at plaintiff's trial, but even if true, "an individual does not waive privacy rights merely by testifying at a trial." Plaintiff also claims that he has a due process right under the Constitution to discovery information, but "the FOIA is not a substitute for discovery rules which govern civil and criminal litigation. . . . Because the FOIA is concerned only with the disclosure of agency records, the requester's identity and purpose for the disclosure are generally immaterial." Furthermore, unlike in discovery, where disclosure may be limited to a single party, under the FOIA, disclosure "is 'to the public as a whole.'" As a result, "'not all documents available in discovery are also available pursuant to FOIA,' and vice versa." Finally, plaintiff alleges that the responsive records must be disclosed in order to reveal that the government bribed a witness against plaintiff at his trial, but the statute that plaintiff alleges was violated specifically allows for payment of witness fees. Moreover, "any personal interest the plaintiff may have in the withheld material [and specifically in challenging his conviction] does not qualify as a public interest favoring disclosure under FOIA exemption 7(C)."

Coleman v. Lappin, No. 06-2255, 2010 WL 299489 (D.D.C. Jan. 27, 2010) (Collyer, J.). Defendant appropriately withheld the name and other identifying information of a BOP inmate who cooperated in an investigation. Release of this information "'would not help explain the activities and operations of the BOP,'" but could place the individual in question in danger, "because inmates who cooperate in . . . investigations 'are not viewed favorably' by their fellow inmates." Plaintiff asserts an interest in this information in order to prove the truth of certain allegations he has raised, but his "personal interest in the records is not a cognizable public interest for purposes of the FOIA Exemption 7(C) analysis." BOP also properly withheld other records pertaining to an investigation of a BOP staff member, because release of this information would have identified a cooperating inmate and would have disclosed "'intensely private information'" about the investigated employee. Both the cooperating inmate and the staff member would have been put in serious jeopardy by release of this information. The fact that the investigated staff member was a federal employee does not completely obviate any privacy interest she may have in information concerning herself. The public interest in information pertaining to an investigation of inmates' allegations of misconduct against the former staffer (an investigation which resulted in administrative discipline against the former staffer) "is minimal."

Miller v. DOJ, No. 09-1393, 2010 WL 114955 (D.D.C. Jan. 11, 2010) (Leon, J.). FBI properly asserted these exemptions to withhold the names of FBI support personnel and local law enforcement personnel. "These exemptions appear to be justified and are not disputed by the plaintiff."

Karantsalis v. DOJ, No. 09-22910 (S.D. Fla. Dec. 14, 2009) (Huck, J.) (slip op.). The court concludes that USMS properly invoked Exemption 7(C) to withhold two booking photographs. The privacy interests involved in a booking photo are significant because such a photo "is a vivid symbol of criminal accusation, which when released in the public, intimates, and is often equated with guilt." Moreover, such photos capture "the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties." The court further notes that "booking photos taken by the Marshals Service are generally not available for public dissemination." The court finds no support for plaintiff's claim that the photos were published intentionally by USMS through Interpol while the subject was a fugitive. The court also rejects plaintiff's argument that the subject's "privacy interest is moot because [he] appeared in open court and pled guilty." Furthermore, the court notes that the fact that USMS released photos of other prisoners in FOIA cases originating under the Sixth Circuit's jurisdiction "has no bearing on this case." The court explains that USMS released those other photos in response to FOIA requests made within the jurisdiction of the Sixth Circuit, which "has held that, in some circumstances, booking photographs must be disclosed to the media even if doing so does not serve a law enforcement purpose." With respect to the public interest, the court finds unavailing plaintiff's argument that the subject's facial expressions in the photos will reveal "'whether he received preferential treatment by the Defendants.'" The court concludes that there is no public interest that would be served by release of the photos. As a result, USMS properly withheld the mug shot photos.

Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.). The Air Force properly withheld "personal information including signatures, personal phone numbers, personal e-mail addresses, and government e-mail addresses" on certain documents, because plaintiff waived his request for such information. The court also notes that notwithstanding plaintiff's waiver "such information was properly redacted under (b)(6) to avoid an unwarranted "

Wolfson v. United States, No. 09-0304, 2009 WL 4186045 (D.D.C. Nov. 30, 2009) (Huvelle, J.). The DOJ appropriately withheld identifying information of individuals who were subjects of investigations, targets of intercepts, or were otherwise connected to the criminal investigation of the plaintiff. "Plaintiff fails to articulate a public interest of such significance that it outweighs the privacy interests of these third parties." Though plaintiff asserts that DOJ's investigation invaded his own privacy, "[h]e is under the mistaken impression that the privacy interest at issue in the Exemption 7(C) analysis is his own."

Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). The IRS properly withheld third-party information including names, social security numbers, taxpayer identification numbers, addresses, and the direct phone number of an IRS employee. "Plaintiffs do not show how disclosure of that information would 'open agency action to the light of public scrutiny' so as to outweigh the individual privacy interests at stake."

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.). Defendant properly "withheld names, e-mail addresses, and telephone and fax numbers of low-level employees included in a chain of e-mails created as part of law enforcement efforts to implement and enforce cultural property restrictions." These individuals have a "strong privacy interest in their identifying information," as compared to "the weak public interest in identifying information of low-level employees."

United Am. Fin., Inc. v. Potter, No. 06-1023, 2009 WL 3583567 (D.D.C. Nov. 3, 2009) (Bates, J.). Defendant has not established that its employees who investigated plaintiff have a privacy interest in their identities. The declarations "set forth no factual basis to support any concerns of harassment, intimidation, or physical harm." Furthermore, "[t]his Court has previously recognized a public interest 'in disclosing the names of employees and agents who worked on [a] case since they may be able to provide valuable information in the context of a related civil suit.'"

Zavala v. DEA, No. 08-2215, 2009 WL 3617481 (D.D.C. Nov. 4, 2009) (Friedman, J.). DEA properly withheld the identities of its own agents, other DEA personnel, as well as a variety of other state and federal law enforcement officers. Plaintiff claims that DEA agents fabricated some of their reports, but his allegations are wholly unsubstantiated, and therefore "'would not warrant a belief by a reasonable person that impropriety might have occurred.' . . . Moreover, it is settled that the public interest in disclosure 'does not include helping an individual obtain information for his personal use' to overturn a conviction."

Watkins v. U.S. Bureau of Customs & Border Prot., No. 08-1679, 2009 WL 3633893 (W.D. Wash. Oct. 30, 2009) (Robart, J.). CBP properly withheld names of individuals identified by the trademark holders as the points of contact for dealings with the Agency. This is "private information," and "there is nothing before [the court] that supports a finding that there is any public interest in knowing who these people are."

Moore v. Nat'l DNA Index System, No. 06-362, 2009 WL 3259065 (D.D.C. Oct. 13, 2009) (Sullivan, J.. Plaintiff has requested DNA records identified by a specific ID number, but cannot establish that these records pertain to him. "Thus, the defendants are not at liberty when responding to [plaintiff's] FOIA request to disclose the specific records he requested, but which they cannot verify do not belong to someone else."

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). Defendant properly applied these exemptions to protect the identities of non-government employees, law enforcement personnel, and low level government employees who were not the subject of any investigation. Plaintiff's "argument that the alleged illegal activity giving rise to the FBI interview weighs in favor of disclosure is unpersuasive primarily for the reason advanced by DOJ - law enforcement records will almost by definition be generated as a result of illegal or possibly illegal activity. Indeed, protecting individuals against the stigma of being mentioned in the context of a law enforcement investigation is the precise purpose of Exemption 7(C). CREW points to no evidence that disclosure of the personal information contained in the records would shed light on illegal activity by DOJ or White House officials."

North v. DOJ, No. 08-1439, 2009 WL 3113243 (D.D.C. Sept. 30, 2009) (Kollar-Kotelly, J.). "The fact that a witness testifies publicly at trial does not diminish or waive his privacy interest. . . . Accordingly, [the witness] has a strong privacy interest in protecting from disclosure any records that may describe his cooperation with DEA." Plaintiff "has failed to assert any public interest in favor of disclosure."

Kurdykov v. U.S. Coast Guard, No. 07-1131, 2009 WL 3103779 (D.D.C. Sept. 29, 2009) (Walton, J.). Defendant Coast Guard properly withheld the names of and information concerning government employees, crew members, and other third parties. Plaintiff has identified no cognizable public interest to offset the substantial privacy interests at stake, even as to the identity of the lead officer on the investigation. "[A]ny personal interest plaintiff may have in [this] individual's identity does not qualify as a public interest favoring disclosure."

James v. DEA, No. 08-0842, 2009 WL 3088802 (D.D.C. Sept. 28, 2009) (Urbina, J.). Plaintiff has not established a public interest in release of the names of DEA laboratory personnel or Immigrations and Customs Enforcement Special Agents sufficient to overcome the substantial privacy interests these individuals have in protecting their identities. Plaintiff's interest in challenging his conviction does not qualify as a public interest under the FOIA.

Roth v. DOJ, No. 08-822, 2009 WL 3019781 (D.D.C. Sept. 23, 2009) (Huvelle, J.). The FBI properly withheld names and identifying information of third parties mentioned in the records pursuant to Exemptions 6 and 7(C) in light of the "significant" privacy interests involved. In terms of the public interest, plaintiff did not present "sufficient evidence for the Court to question the FBI's performance of its duties" where plaintiff's attorney alleged that "25 years ago the FBI failed to produce what he [and his client] now believe is exculpatory material, based on evidence they have developed since the trial." With respect to certain surveillance photos, the court orders the FBI to release the images if the copies reviewed in camera "are in fact accurate reflections of the photographs as they exist in the FBI's files" given that it was "unable to discern any identifying information" in the copies and therefore "no privacy interest is protected by withholding them." However, the court adds that the FBI could continue to withhold those photos "if the lack of identifying details in the copies of the photographs" was due to poor photocopying and "the actual photographs . . . contain such information."

Prison Legal News v. EOUSA, No. 08-01055, 2009 WL 2982841 (D. Colo. Sept. 16, 2009) (Krieger, J.). EOUSA properly withheld autopsy photographs of a federal inmate who was murdered in prison pursuant to Exemption 7(C). The court finds that the family of the murdered inmate, his sister and aunt, maintained significant privacy interests in the photos which "show, in detail, the exceptionally heinous nature of [his] injuries." The court observes that "[g]iven the graphic nature of the photographs, public dissemination of these images could impede the family's ability to mourn [his] death in private and achieve emotional closure." The court finds the public interests asserted by plaintiff unavailing, i.e. "(I) allowing the public to be fully informed about the circumstances of [the inmate's] murder; and (ii) allowing the public to scrutinize the circumstances under which the government pursued the death penalty." First, "there is nothing that directly links the circumstances of [the inmate's] death to a governmental activity." Second, "there is no showing that some aspect of the photographs caused, influenced, or particularly impacted the government's decision to seek the death penalty." Accordingly, the survivor's strong privacy rights outweigh any public interest in disclosure of the records. Using a similar rationale, the court determines that BOP properly withheld "section one" of a video, which depicted the inmates actions within the prison cell following the murder. The court concludes that the survivor's have a "strong privacy interest similar to that which they have in the autopsy photographs" because the victim's "body and injuries are clearly visible." With respect to plaintiff's articulated public interests, the court finds that "the size of the cell, the timeliness of the response of BOP officials, and the government's decision to seek the death penalty relate to governmental activity," but on balance "[did] not outweigh the family's privacy interest" in the information. The audio portion of this section, to the extent it contains statements of BOP officials, should be disclosed. The court notes that "section two" of the requested video depicting "BOP's treatment of [the inmates] during and after their removal from the cell" "falls within the scope of FOIA because it depicts the government's operations with respect to dealing with [the inmates] after the murder." To the extent that the video showed the inmates undressed, the court holds that those portions "should be electronically or otherwise obscured to preserve their privacy interests."

Penny v. DOJ, No. 08-1667, 2009 WL 2929243 (D.D.C. Sept. 14, 2009) (Urbina, J.). Exemption claims: The court treated defendant's exemptions claims as conceded where "plaintiff d[id] not dispute the defendant's justification for the redactions, instead maintaining that the released records were not responsive to his request." The court further noted that, in any case, defendant's assertions of Exemptions 2 (low), 7(C) and 7(F) were justified.

King v. DOJ, No. 08-1555, 2009 WL 2951124 (D.D.C. Sept. 9, 2009) (Kennedy, J.). Defendants properly withheld names and identifying information concerning law enforcement officers and third parties. "The Court is aware of no authority supporting [plaintiff's] proposition that FOIA exemption (b)(7)(C) does not apply because his criminal case has concluded, and [plaintiff] offers none." Plaintiff has also "provide[d] no evidence that 'the exact portions' of the specific documents at issue are in fact in the permanent public domain."

Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). The court determined that "the public interest in [inmates' names, register numbers, housing statuses, and medical information] fails to outweigh the privacy expectation of [the institution's] inmates" and, accordingly, BOP appropriately redacted that information under Exemption 7(C). With respect to a request for "Shakedown Logs," the court found that "while the public may hold some interest in the names of [prison] inmates from whom contraband is confiscated, . . . such an interest is outweighed in this case by concerns for privacy and personal safety."

Del Rio v. Miami Field Office of the FBI, No. 08-21103, 2009 WL 2762698 (S.D. Fla. Aug. 27, 2009) (Moreno, C.J.) (adoption of magistrate's recommendation). The FBI properly redacted audiotapes it released to plaintiff in order to protect the privacy of third parties heard on the tape. "Persons involved in an FBI investigation, even if they are not the subject of the investigation, have 'a substantial privacy interest in seeing that their participation remains secret.'" By contrast, "[a] FOIA litigant’s private interest in obtaining materials for personal reasons plays no part in the required balancing of interests." Likewise, "an individual's desire for information to assist him/her in challenging his conviction " does not qualify as "a public interest under the FOIA."

Calvert v. United States, No. 08-1659, 2009 WL 2584766 (D.D.C. Aug. 24, 2009) (Urbina, J.). "The current record does not establish the threshold law enforcement purpose nor does it provide[] a factual basis for determining the asserted harm."

Covington v. McLeod, No. 08-1220, 2009 WL 2525933 (D.D.C. Aug. 19, 2009) (Bates, J.). Defendant properly withheld statements made by one of plaintiff's co-defendants. "A co-defendant's interest in keeping private the statements he made to law-enforcement officials is readily apparent, and disclosure could reasonably be expected to lead to embarrassment and humiliation." Furthermore, plaintiff "has not . . . explicitly argued or shown that a public interest, rather than his personal interest, tips the balance in favor of disclosure when weighed against the co-defendant's privacy interest." An "implicit" Brady argument is insufficient.

Bretti v. DOJ, No. 08-450, 2009 WL 2371508 (N.D.N.Y. Aug. 4, 2009) (Hurd, J.). The FBI properly withheld the identities of confidential sources pursuant to this exemption, notwithstanding the fact that some of these sources may have testified against plaintiff at his criminal trial. The Court stated that "information furnished by a confidential source requires no balancing test and no consideration of the public interest in disclosure, if such information may reveal the confidential source's identity." Additionally, "plaintiff has failed to show how his actions will benefit the public, as plaintiff brought this suit to benefit himself."

Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). DEA appropriately withheld names of individuals mentioned by the subject of plaintiff's request in an interview with DEA, as well as sections of the interview that did not discuss plaintiff. However, DEA cannot withhold the entirety of the subject's interview on the basis of his status as a confidential source because plaintiff has shown that the subject testified against plaintiff at plaintiff's trial (a fact that has also been recognized by the Third Circuit Court of Appeals). Furthermore, the court disagrees with DEA's conclusion that "segregation would provide incomprehensible phrases to Plaintiff" and instead "finds that the information contained in DEA-6 can be released to Plaintiff in some segregable form." DEA is directed to make further disclosures as detailed by the court in its opinion.

The court finds that DEA properly utilized these exemptions to withhold the names of its agents, other law enforcement personnel, and supervisory personnel.

Antonelli v. BOP, No. 07-2016, 2009 WL 1593701 (D.D.C. June 9, 2009) (Kollar-Kotelly, J.). BOP properly utilized these exemptions to withhold the names of BOP inmates from records responsive to plaintiff's request for an incident report.

Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.). Defendant has shown that its use of these exemptions to withhold information was proper.

Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). Plaintiff's challenges to BOP's use of these exemptions "reflect a misunderstanding of the law, and his notion that the third person personal privacy exemptions apply only to government employees is incorrect. The personal privacy exemptions . . . require the agency to protect the privacy of any third person identified in the records, and the statute does not except spouses." Plaintiff has failed to identify any interest in release of this information beyond his own personal interest. Similarly, he has failed to make a showing of governmental wrongdoing sufficient to satisfy the Favish standard.

Updated: February 2013
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