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Court of Appeals Decisions

Watkins v. U.S. Bureau of Customs & Border Protect., No. 09-35996, 2011 WL 1709852 (9th Cir. May 6, 2011) (Walter,J.). Holding: Affirming the district court's decision that Exemption 4 applies to the requested material, but concluding that CBP has waived that protection; and reversing the district court's determination that DHS's regulations control, rather than CBP's regulations, for FOIA fee purposes. Although the Ninth Circuit finds that requested information qualifies for protection under Exemption 4, it ultimately determines that "CBP waived the confidentiality of the Notices by disclosing them to trademark owners without any further limits on dissemination." The Circuit notes that while 19 U.S.C. § 1526(e) requires "disclosure of the Notices of Seizure to an aggrieved trademark owner," the government does not place limits on disclosure and, accordingly, the trademark owner can "freely disseminate the Notice to his attorneys, business affiliates, trade organizations, the importer's competitors, or the media in a way that would compromise the purportedly sensitive information about an impending importer's trade operations." While the Circuit considered the "public domain" test articulated by the D.C. Circuit for the purposes of ascertaining waiver, it finds that most cases applying this test deal with "requests for sensitive information involving high-level criminal investigations or matters of national security," which are not at issue in this case. In a case such as this one, "[t]aken to its logical extreme, the 'public domain' test would still shield commercial information under Exemption 4 even if CBP or an aggrieved trademark owner opened up the phonebook and faxed a copy of a seizure notice to every importer in the region, provided the disclosures were not preserved in some public record." Accordingly, the Circuit concludes that "[w]hile the public domain test will be persuasive in most cases, it does not reach the concerns of confidentiality in circumstances like those presented in this case" and "[t]herefore, when an agency freely discloses to a third party confidential information covered by a FOIA exemption without limiting the third-party's ability to further disseminate the information then the agency waives the ability to claim an exemption to a FOIA request for the disclosed information."

District Court Decisions

ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.). Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review. However, the court holds that the CIA must disclose any information "that has already been officially acknowledged by the government." Based upon explanations offered by the CIA and its own in camera review, the court determines that for documents 1-2 and 4-11, the information is not the same as what has been previously disclosed. However, the court remands with respect to document 3 so that the CIA can "review the document more closely and release any information that matches information previously disclosed."

ACLU v. U.S. Dep't of State, No. 11-1072, 2012 WL 2989833 (D.D.C. July 23, 2012) (Kollar-Kotelly,J.). Holding: Granting the State Department's motion for summary judgment on the basis that it properly withheld the requested information pursuant to Exemption 1 and released all reasonably segregable information; and denying plaintiff's cross-motion for summary judgment and its request for in camera review. The court concludes that plaintiff has failed to sustain its burden to demonstrate that the requested information is in the public domain by way of an official government disclosure. The court rejects plaintiff's argument that "the twenty-three embassy cables it seeks in this action must be disclosed because they are allegedly already in the public domain after being published by third-party WikiLeaks and because the State Department has purportedly acknowledged their authenticity." To the contrary, the court finds that "[n]o matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and [plaintiff] has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure." Specifically, "[a]lthough [plaintiff] points to various public statements made by Executive officials regarding the WikiLeaks disclosure, it has failed to tether those generalized and sweeping comments to the specific information at issue in this case." Moreover, the court notes that "[n]or did the State Department acknowledge the 'authenticity' of the WikiLeaks disclosure in this litigation by failing to issue a Glomar response." Here, "[b]ecause [plaintiff's] request made no mention of the WikiLeaks disclosure and instead identified each cable by date, subject, originating embassy, and unique message reference number, the State Department made no admission by producing responsive records."

Am. Immigr. Laws. Ass'n v. DHS,No. 10-1224, 2012 WL 1066499 (D.D.C. Mar. 30, 2012) (Sulllivan,J.). Holding: Concluding that plaintiff has failed to establish that the withheld information is in the public domain; determining that defendant adequately supported its Exemption 7(E) withholdings; and denying, without prejudice, defendant's motion for summary judgment insofar as it did not demonstrate that it disclosed all reasonably segregable information, and ordering defendant to supplement its submissions on this point. The court finds defendant has not waived its ability to assert Exemption 7(E) where plaintiff failed to sustain its "initial burden of pointing to specific information in the public domain that duplicates what is being withheld." With respect to a Compliance Review Report Form which plaintiff alleges is in the public domain, the court finds that plaintiff "has not established that any of [the four versions of] instructions [that it proffered] specifically correspond to the version of the form that it seeks [U.S. Citizenship and Immigration Services (USCIS)] to produce in full, which bears an apparent date of June 19, 2009." The court notes that the versions provided by plaintiff do not contain that date and finds that "[p]laintiff has failed to persuade the Court that the date is not relevant to the public disclosure analysis." Further, the court observes that "[t]he general description of site visits [submitted to the court by plaintiff] . . . is even less specific than the different versions of the instructions, giving the reader only a general overview of the process." As to a document that was publicly filed in a different and unrelated civil action, the court concludes that "because the fraud referral form filed in the [other] matter was a different version than the one at issue in this case, [plaintiff] has failed to meet its burden." Additionally, the court finds that "even if [plaintiff] could establish that the form was the same form at issue in this matter, [it] has not established that the form was made public through an official disclosure." The court notes that "[i]ndeed, it appears the only reason the form was filed on the public docket in [the other case] is because it was attached to [the other] plaintiff's FOIA request in that matter, which USCIS then filed as an exhibit to a declaration explaining the steps taken to respond to that plaintiff's FOIA request." The court further finds that plaintiff "has not persuaded the Court that the attachment of the FOIA request (and the H-1B Fraud Referral Sheet) was done for the purpose of any desire to officially disclose the documents." With respect to a memorandum, the court finds that plaintiff has not supported its burden to show waiver where it merely makes general allegations that the information at issue was disclosed in a public report. The court concludes that plaintiff "has fallen far short of showing that the redacted material in . . . [the m]emorandum is the specific information disclosed in the [publicly available r]eport or that it matches the material in the . . . [r]eport." Lastly, the court determines that plaintiff's general and unsupported assertion that USCIS must disclose publicly available portions of documents that it released during the course of litigation also fails to establish "that the specific information contained in any of these documents exists in the public domain."

McKinley v. Bd. of Gvn'rs of Fed. Res. Sys., No. 10-751, 2012 WL 1034464 (D.D.C. Mar. 29, 2012) (Jackson,J.). Holding: Granting the Board's motion for partial summary judgment as to the adequacy of its search, and its claims of Exemptions 4, 5 and 8, the propriety of which were supported by the agency's declarations and the court's in camera review. As to plaintiff's assertion that the Board has waived its ability to assert exemptions for seventeen records that are publicly available on a congressional committee website, specifically, the Financial Crisis Inquiry Commission's (FCIC's) website, the court finds that the "mere fact that the committee . . . without authorization [from the Board], published the records does not constitute a waiver." The court notes that sixteen of the disputed documents were provided to the committee subject to "a written confidentiality agreement and that the seventeenth record was not provided to the FCIC at all."

Performance Coal Co. v. U.S. Dep't of Labor, No. 10-1698, 2012 WL 746411 (D.D.C. Mar. 7, 2012) (Leon,J.). Holding: Granting defendants' motion for summary judgment on the basis that they conducted an adequate search, properly asserted Exemptions 5, 7(A), and 7(C), and released all reasonably segregable non-exempt material; and denying plaintiff's cross-motion for summary judgment. As an initial matter, the court rejects plaintiff's contention that defendants waived their ability to assert Exemption 5 for documents associated with a certain memorandum because they "shared a July 2011 press release relating to [that memorandum] with the press." The court concludes that plaintiff failed to meet its burden to show that "the requested information: (1) is as specific as the information previously disclosed; (2) matches the information previously disclosed; and (3) was made public through an official and documented disclosure."

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

Muslim Advocs. v. DOJ, No. 09-1754, 2011 WL 5439085 (D.D.C. Nov. 10, 2011) (Sullivan,J.). Holding: Granting, in part, defendant's motion for summary judgment based on its finding that the FBI properly redacted two disputed chapters pursuant to Exemption 7(E), but ordering the FBI to submit a supplemental affidavit to provide further justification for withholding a third chapter; and denying plaintiff's motion for summary judgment. The court holds that "plaintiff has failed to meet its 'initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.'" As an initial matter, the court notes that "[i]n this Circuit, the 'public-domain doctrine' has emerged as the dominant paradigm for evaluating the waiver of a potential FOIA exemption," whereby "'[a] plaintiff asserting that information has been previously disclosed bears the initial burden of pointing to specific information in the public domain that duplicates that being withheld.'" The court finds "unpersuasive" plaintiff's argument that "the disputed chapters of the DIOG are in the public domain because the FBI allowed individuals outside of the agency to review the material." Rather, the court observes that "[a]lthough the FBI allowed [plaintiff] and several other civil rights and civil liberties groups to view the disputed chapters during a two-hour meeting at FBI headquarters, the Court is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public.'" Here, the court finds that "the disputed chapters were not released to the general public; rather, they were only shown to a select group of organizations – personally invited by the FBI – at FBI headquarters." Moreover, "[a]lthough the attendees were permitted to view and take notes on the disputed chapters for approximately two hours, they were required to return the documents at the end of the meeting," and, accordingly, "there is no 'permanent public record' of the disputed chapters in the public domain." The court rejects plaintiff's argument that "'[t]he free and full note taking allowed during the meeting . . . provided the meeting participants with ample means to make the distributed material part of the permanent public record, therefore satisfying this standard.'" To the contrary, the court finds that although the "D.C. Circuit has not established 'a uniform, inflexible rule requiring every public-domain claim to be substantiated with a hard copy simulacrum of the sought-after material[,]'" here, "plaintiff has produced no evidence that the redacted sections of the disputed chapters are, in fact, in the public domain." Additionally, the court notes that "plaintiff's repeated complaints regarding its inability to conduct a 'meaningful review' of the DIOG," tend to indicate that the disputed chapters are not a matter of public record.

Eslaminia v. FBI, No. 99-3249, 2011 WL 5118520 (N.D. Cal. Oct. 28, 2011) (Patel, J.). Holding: Granting, in part, the FBI's motion for summary judgment with respect to documents for which it asserted Exemption 1, but ordering the release of certain excerpts within those documents, which were designated by the court as reasonably segregable. The court concludes that evidence proffered by plaintiff purporting to show that "the classified information has already been disclosed in other documents retrieved from [his father's] home and not seized by law enforcement" is not sufficient to establish that the withheld information is publicly available. The court finds that "[t]hese documents post-date the classified documents in this case and contain that is different from that contained in the classified documents." Moreover, the court determines that plaintiff's exhibit, which "is not classified" and is in his possession, "is distinct and separate from the documents that have been classified" and, accordingly, "[i]ts acquisition, however obtained, was not obtained from the defendants and it does not affect the legitimacy of the classification of the documents withheld."

North v. DOJ, No. 08-1439, 2011 WL 4071634 (D.D.C. Sept. 14, 2011) (Kollar-Kotelly, J.). Holding: Granting plaintiff's motion for reconsideration, and vacating the court's earlier grant of summary judgment to defendant with respect to records related to a witness at plaintiff's criminal trial; ordering DEA to determine whether certain information is in the public domain. Public domain: The court grants plaintiff's motion for reconsideration, vacating its prior ruling that plaintiff "had failed to meet his burden of establishing that the documents he was requesting from DEA were in the public domain and thus could not be withheld under any valid FOIA exemption." The court finds that "its prior ruling was too broad" because "[w]hile the excerpts of trial testimony produced by [plaintiff] do not establish that the documents themselves became part of the public record, they are sufficient to demonstrate that some information within the requested documents may have been publicly disclosed." The court concludes that because plaintiff "has met his initial burden of production," "DEA has an obligation to search for and produce any responsive records that contain information identical [to] that which has been publicly disclosed." Accordingly, "[b]ecause DEA has not demonstrated to the Court that it conducted a search for records responsive to [plaintiff's] request and reviewed those records to determine whether the information contained therein is identical to information that has been publicly disclosed, the Court cannot award summary judgment to DEA" with respect to this count of plaintiff's complaint.

Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court rejects plaintiff's contention that "all the records withheld under Exemption 7 must be released 'because the records have been released into the public domain through judicial proceedings and media outlets.'" The court finds that plaintiff's submission of his own affidavit "does not suffice . . . to meet his 'initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.'"

Tunchez v. DOJ, No. 09-473, 2010 WL 2202506 (D.D.C. June 3, 2010) (Kollar-Kotelly, J.). The court rejects plaintiff's unsupported claims that "'the information has been released into the public domain via judicial proceedings and media,'" because he "has not identified any specific information or 'the exact portions' of a specific document that is in fact 'preserved in the public domain.'"

Prison Legal News v. EOUSA, No. 08-01055, 2009 WL 2982841 (D. Colo. Sept. 16, 2009) (Krieger, J.). The "use of autopsy photos and videos at the [inmates' murder] trials does not negate the application of Exemption 7(C)." The court reasons that since the "family members of a murder victim do not decide whether a trial occurs nor control the selection of evidence to be admitted," "the presentation of evidence in which they have a privacy right at a criminal trial would not constitute a waiver of their rights." Additionally, the court observes that the limited public disclosure of the death scene evidence at trial is "vastly different" than the release of the same material under the FOIA which "is absolute, unrestrained and perpetual."


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