Supreme Court Decisions
Milner v. Dep't of the Navy, 131 S. Ct. 1259 (U.S. Mar. 7, 2011) (Kagan, J.). Holding: Reversing and remanding the decision of Ninth Circuit and holding that: "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources." The Supreme Court observes that "[t]he Navy argued that the [requested] data and maps fall within Exemption 7(F), . . . and that claim remains open for the Ninth Circuit to address on remand."
Court of Appeals Decisions
Jordan v. DOJ, No. 10-1469, 2011 WL 6739410 (10th Cir. Dec. 23, 2011) (Kelly, J.). Holding: Affirming the decision of the district court granting summary judgment to BOP based on the propriety of its Exemptions 7(E) and 7(F) withholdings; and, after considering application of Exemption 7(E) for material formerly withheld pursuant to High 2 at the district court level, concluding that Exemption 7(E) covers the material at issue. The Tenth Circuit concludes that BOP properly withheld ADX staff rosters pursuant to Exemption 7(F). Distinguishing the instant case from the District Court for the District of Columbia's decision in Maydak v. DOJ cited by plaintiff, the Tenth Circuit finds that unlike Maydak which involved BOP staff names, here, BOP has established that the rosters at issue satisfy the Exemption 7 threshold and "there is no indication that BOP releases the names of Supermax staff to the general public but not to inmates."
District Court Decisions
Varley v. BOP, No. 11-507, 2012 U.S. Dist. LEXIS 141039 (D.D.C. Sept. 30, 2012) (Wilkins, J.). Holding: Denying defendant's motion for summary judgment and motion to dismiss; granting plaintiff's cross-motion for summary judgment and ordering defendant to provide the plaintiff with an unredacted hardy copy of his SMCD form. The court concludes that "[t]he record in the present case does not support a finding that there is a nexus between disclosure and any possible harm [to plaintiff] because the nature of [plaintiff's] conviction has already been disclosed." The defendant admits to providing plaintiff with other documents that "contain information about the nature of [plaintiff's] crime" and the court finds that "[g]iven this evidence, the BOP's reliance on Exemption 7(F) to protect [plaintiff's] safety by withholding the SMCD is unfounded."
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. Noting that "Plaintiff has been convicted in connection with his activities concerning a noted crime family," the court determines that Exemption 7(F) "protect[s] information, the release of which could endanger an individual who provided information to authorities regarding Plaintiff's activities, or the activities of Plaintiff's associates."
Zander v. DOJ, No. 10-2000, 2012 WL 2336244 (D.D.C. June 20, 2012) (Bates,J.). Holding: Accepting the magistrate's recommendation regarding the adequacy of BOP's search as well as the judge's determination that portions of plaintiff's FOIA requests should be denied based on his failure to exhaust administrative remedies; rejecting plaintiff's objection regarding provision of a Vaughn Index; rejecting magistrate's recommendation regarding disclosure of a video, and concluding that BOP properly withheld it under Exemption 7(F); and accepting, with one modification, magistrate's determination that certain documents which the judge reviewed in camera should be disclosed. The court rejects the magistrate's recommendation that a video depicting plaintiff being forcibly removed from his prison cell should "be edited 'in a way that will obliterate the faces' of the officers involved and then released." Rather, the court finds that BOP properly withheld the video pursuant to Exemption 7(F), concluding that "the agency's assessment of the possible danger to law enforcement officials from disclosing the video is abundantly reasonable." The court determines that "[r]emoving prisoners from their cells presents clear dangers to the law enforcement officers who are charged with the task." Moreover,"[d]isclosure of a recording of a 'cell extraction' presents the possibility that other prisoners will learn the methods and procedures utilized by BOP officials, and that this information might be used to thwart the safe application of these techniques in the future." As to plaintiff's contention that "the purpose of recording the procedure is to guard against 'unfounded allegations and eliminate the unwarranted use of force,'" the court finds that "the policy as represented by [plaintiff]" does not necessitate disclosure in the FOIA context. Additionally, the court "agrees with defendants that the video will be of little or no value to anyone once information about cell extraction procedure is segregated out, so providing the video after removing this information does not make sense."
Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court determines that DEA properly invoked Exemption 7(F) in order "to protect the physical safety" of "special agents, law enforcement officers, government employees, and confidential sources."
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. Based on an in camera review, the court concludes that BOP properly invoked Exemption 7(F) to withhold information related to a specific incident that occurred at a BOP facility, which it asserted "'could jeopardize the safety of individual(s) as it would likely result in harassment and/or retaliation, to possibly include physical assaults, directed toward individual(s) identified in the investigation and resulting in a threat not only to the named individual but also the safe operation of the institution.'" The court notes that "[w]hile [it] finds the subject matter at issue rather trivial, it is not in a position to second-guess Defendant's valid assertion that disclosure could reasonably be expected to endanger the life or safety of an individual."
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 concludes that BOP improperly asserted Exemption 7(F) to withhold staff names, finding that "it is hard to see how releasing their names now could jeopardize their safety" given that "all the inmates in the yard during the disturbance saw the BOP staff who responded and the guards' identities would be discoverable in any civil litigation."
Raher v. BOP, No. 09-526, 2011 WL 2014875 (D. Or. May, 24, 2011) (Stewart, Mag.). Holding: Granting, in part, plaintiff's motion for summary judgment with respect to records withheld under Exemptions 3, 7(E) and 7(F) and certain records withheld pursuant to Exemption4; concluding that an evidentiary hearing is necessary to resolve a factual dispute with respect to certain records withheld under Exemption 4; and ordering that BOP supplement the record with regard to its search for certain documents. The court holds that BOP "may rely on Exemption 7(F) to withhold information in the technical proposals . . . pertaining to physical security plans, blue prints, architectural floor plans, door and key lock specifications, ceiling plans, and any information regarding the internal physical structure of a BOP correctional facility." However, the court finds that BOP's justifications for withholding other information under Exemption 7(F), including "'staffing patterns,' 'institution operations,' 'offender accountability techniques,' and 'institution accountability techniques,'" was "simply too general to allow [plaintiff] or this court to test the validity of BOP's redactions." The court points out that "BOP publishes many of its internal policies pertaining to institutional security and inmate programs and services in full on its publicly accessible webpage" and that "[a]ny inmate or visitor to a BOP facility is able to observe 'staffing patterns' and certain 'institutional operations.'" Moreover, the court finds that "BOP has not bothered to describe 'offender accountability techniques' or 'institution accountability techniques' and those phrases convey nothing about security concerns."
Additionally, the court comments that "the problem is exacerbated" by BOP's failure to demonstrate that it has segregated nonexempt information. Accordingly, the court grants summary judgment to plaintiff for those items that it deemed not protected by Exemption 7(F), but "[i]n order to prevent the public release of potentially damaging information to BOP's security concerns," the court determines that "BOP may release such information pursuant to a protective order that prohibits disclosure by [plaintiff] to anyone else without prior BOP or court approval."
Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). Based on its in camera review, the court concludes that U.S. Marshals Service (USMS) properly invoked Exemption 7(F) to protect names and identifying information of third parties as well as "'information provided by a third-party individual that could pose a potential threat to a judge.'"
Mosby v. Hunt, No. 09-1917, 2010 WL 2794250 (D.D.C. July 15, 2010) (Bates, J.). After conducting an in camera review of a one-page memorandum and one-page form pertaining to a request for a prison transfer, the court finds that BOP properly redacted information about plaintiff pursuant to Exemption 7(F). The court states that "[b]y its terms, exemption 7(F) protects 'any individual'" and here "[p]laintiff does not appear to have waived the protection contemplated by [that] exemption." The court concludes that release of the "information could 'jeopardize the safety of individual(s),' including plaintiff."
Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). The court determines that the FBI properly invoked Exemption 7(F) to protect identities of confidential sources. The court finds insufficient plaintiff's assurances that "he does not personally pose a threat to any individual, no individual's life or physical safety can be put at risk by releasing the records." The court observes that the FBI's declaration identifies as a harm reports of death threats against the protected sources by plaintiff and other individuals. The court further notes that, even if it were to accept plaintiff's denials that he has made such threats, "he does not challenge [the FBI's] assertion that other individuals have threatened the confidential sources in question."
Quinto v. DOJ, No. 09-2068, 2010 WL 1882164 (D.D.C. May 11, 2010) (Huvelle, J.). "The Court agrees with [defendant] that release of the documents sought by plaintiff could result in the identification of third parties, including the source(s) of the information in the documents and could lead to retaliation against those individuals. . . . And based on its review of the documents, the Court concludes that there is a sufficient nexus between their disclosure and possible harm to these third parties. As such, the Court sustains defendant's Exemption 7(F) claim."
Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). Exemptions 2 & 7(F): The court finds that BOP has not provided sufficient information to justify its use of these two exemptions. BOP's declaration "has not adequately described the redacted information and explained the possible harm in disclosure." BOP is ordered to provide the withheld material for in camera review.
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). BOP "does not explain 'whether there is some nexus between disclosure and possible harm' to . . . third parties."
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.
Penny v. DOJ, No. 08-1667, 2009 WL 2929243 (D.D.C. Sept. 14, 2009) (Urbina, J.). Exemption claims: The court treated defendant's exemptions claims as conceded where "plaintiff d[id] not dispute the defendant's justification for the redactions, instead maintaining that the released records were not responsive to his request." The court further noted that, in any case, defendant's assertions of Exemptions 2 (low), 7(C) and 7(F) were justified.
Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). BOP properly invoked Exemption 7(F) to withhold a prison staff roster because the release of the names and titles of staff members "could endanger the life or physical safety of any or all of the named employees." BOP's assertion of 7(F) to redact the identities of federal inmates named in a "Shakedown Log" was appropriate.
Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). 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.
BOP properly withheld "'internal procedures related to [its] Administrative Remedy Program,'" in some cases pursuant to Exemption 2, and in others pursuant to both 2 and 7(F). As to a different part of plaintiff's request, BOP failed to justify its use of these two exemptions to withhold four pages of material "identified only as '[h]andwritten undated documents' and one-page identified only as a '[d]ocument/drawing.'" BOP did "not state which of the information contained therein is exemption 2 material and which is exemption 7(F) material and correlate said material with the asserted harm."
Lawyers Comm. for Civil Rights v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 1299821 (N.D. Cal. May 11, 2009) (Hamilton, J.). "Treasury has adequately explained why the redaction of identifying information in the [delisting petitions from individuals tied to narcotics trafficking or who provided sensitive information to the federal government] is appropriate under 7(F)." Its declaration explains the potential danger to individuals in these categories. Thus, its categorical use of 7(F) to protect identities of petitioners fitting this description was appropriate.
Updated: December 2012