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Waiver

Court of Appeals Decisions

Appleton Papers, Inc. v. EPA, No. 12-2773, 2012 WL 6684770 (7th Cir. Dec. 26, 2012) (Flaum, J.). Holding: Affirming the district court's grant of summary judgment to defendants on the grounds that the responsive material was protected by the attorney work-product privilege under Exemption 5. The Seventh Circuit concludes that the defendants did not waive work-product protection for all the responsive documents by using pieces of information to support consent decrees. The court concludes, "there is no doubt that the government waived work product immunity for portions of the documents it did use in the two consent decrees" but the "government has already provided [plaintiff] with that information." Requiring disclosure of the material "may discourage the government from settling [with other alleged polluters] for fear that in entering consent decrees, it would have to release all related information to parties it wants to take to trial." Also, disclosing this material could "discourage creating drafts and supporting documentation in the first place."

Marino v. DEA, No. 10-5354, 2012 WL 2866310 (D.C. Cir. July13, 2012) (Griffith, J.). Holding: Reversing the district court's denial of plaintiff's Rule 60(b) motion, and remanding to the district court for further proceedings. The D.C. Circuit holds that plaintiff "has raised a meritorious defense, which entitles him to have the district court look again at his motion [for reconsideration], but not necessarily grant it." At the outset, the D.C. Circuit notes that "[a]lthough [it] review[s] a district court's denial of a Rule60(b) motion for abuse of discretion, . . . [it] must consider underlying legal issues de novo." In terms of determining whether plaintiff has presented a meritorious defense, the court notes that he "need only provide 'reason to believe that vacating the judgment will not be an empty exercise or a futile gesture.'" The D.C. Circuit finds that here plaintiff proffered evidence that publicly linked the subject of the request to a specific investigatory file, which brings into question the propriety of DEA's Glomar response. The D.C. Circuit determines that "[a]lthough these unauthenticated documents [submitted by plaintiff] cannot prove that the identity of the person to whom [a given] NADDIS No. . . . was assigned is already in the public domain, they at least establish a dispute over this material fact" and "[s]howing a meritorious defense under Rule 60(b) requires nothing more." Additionally, the D.C. Circuit notes that if certain records, which were referenced in the documents filed in the instant case, "exist as described and are part of a public court record, they would be enough for the requisite 'hint of a suggestion' that [plaintiff] could prove at trial the specific information he seeks has already been disclosed." The court comments that "[a]lthough [plaintiff] would presumably need to produce the actual documents at trial, at this juncture [the D.C. Circuit] requires much less."

The D.C. Circuit rejects DEA's argument that the documents produced by plaintiff would not present a meritorious defense because "itsGlomar response would still be valid [in light of the fact that] a U.S. Attorney released [those] documents, not the DEA." To the contrary, the D.C. Circuit finds that "the cases the DEA cites in which [the court] has allowed Glomar responses to stand despite prior public disclosure implicated a concern not present here: forcing one agency to adopt another's official disclosure of information common to both." The D.C. Circuit determines that "a federal prosecutor's decision to release information at trial is enough to trigger the public domain exception where the FOIA request is directed to another component within the Department of Justice." Furthermore, the D.C. Circuit dismisses DEA's argument that plaintiff does not present an adequate defense because "public information showing the existence of an investigatory file in [the subject's] name does not vitiate [DEA's] right under FOIA exemption 7(C) to withhold the contents of that file." Rather, the D.C. Circuit concludes that "[e]ven if later in litigation the DEA showed legitimate grounds to withhold every document in [the specific] NADDIS file . . . , [plaintiff] has raised a meritorious defense that the DEA's justification for refusing even to confirm the file's existence has been undermined by prior public disclosure." Lastly, as to DEA's claim that "the case is moot because [plaintiff] has already received all the relief to which he is entitled," namely, confirmation of the file's existence, the D.C. Circuit finds that DEA "conflates the ultimate merits of [plaintiff's] FOIA claim, which is not before [the court], with the limited question that is: whether the DEA's Glomar response was appropriate." The court holds that "[i]f [plaintiff] were to prevail on the Glomar issue, the DEA would be required to confirm that responsive records exist, then either release them or establish that they are exempt from disclosure."

Moore v. CIA, No. 10-5248, 2011 WL 6355313 (D.C. Cir. Dec. 20, 2011) (Henderson, J.). Holding: Affirming the district court's grant of summary judgment to the CIA, which had issued a Glomar response to the request for records on a third party. The D.C. Circuit affirms the decision of the district court and holds that the CIA's declaration in this action, which stated that "the CIA asked the FBI to redact some 'CIA-originated information' from [an FBI] Report [concerning the subject of the request] in order to protect intelligence source and methods" "does not constitute an official acknowledgement sufficient to waive Glomar." The D.C. Circuit recounts that in its earlier decision in Wolf v. CIA it held that the CIA had waived its ability to invoke Glomar where the then-CIA director officially acknowledged certain information by quoting from dispatches during Congressional testimony. Distinguishing the instant case from its decision in Wolf, the D.C. Circuit finds that here the CIA's "declaration dose not identify specific records or dispatches matching [plaintiff's] FOIA request." The D.C. Circuit comments that "[i]ndeed, because the CIA-originated information was redacted before the FBI released its report to him, [plaintiff] cannot show that the redacted information even relates to [the subject of the request]." Rather, "[a]ll [plaintiff] can establish is that some unspecified 'CIA-originated information' was redacted from the Report."

Moore v. CIA, No. 10-5248, 2011 WL 6355313 (D.C. Cir. Dec. 20, 2011) (Henderson, J.). Holding: Affirming the district court's grant of summary judgment to the CIA, which had issued a Glomar response to the request for records on a third party. “To the extent [that plaintiff] suggests that the release of the Report by the FBI constitutes an official acknowledgement by the CIA, his argument is foreclosed by" D.C. Circuit precedence.

Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (Randolph, J.). Holding: Affirming the judgment of the district court that the controversy is moot as to the eleven sets already provided to plaintiff and holding that work-product protection for the remainder of the notes was not waived by disclosure of the eleven sets. With respect to plaintiff's argument that attorney work-product protection has been waived for eleven of the 114 sets of notes which DOJ released in connection with the underlying criminal trial, the D.C. Circuit concludes that "an agency has no obligation to release documents to a requester when another agency has already given the same requester the same documents." Moreover, the D.C. Circuit finds that "[b]ecause the Department of Justice already turned over to [plaintiff] eleven sets of notes pursued in this appeal [in connection with the criminal prosecution], the controvery is moot with respect to those documents [in the instant FOIA action]."

Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (Randolph, J.). Holding: Affirming the judgment of the district court that the controversy is moot as to the eleven sets already provided to plaintiff and holding that work-product protection for the remainder of the notes was not waived by disclosure of the eleven sets. "As to the remaining 103 sets of notes, [the D.C. Circuit] do[es] not believe the SEC has waived work product protection or that the Justice Department's action in the criminal trial had that effect." For one, the D.C. Circuit reasons that "it does not follow that an agency's decision to release some documents protected by the work product privilege waives FOIA exemption 5 for all of the agency's similar documents." Furthermore, the D.C. Circuit concludes "disclosure in criminal trials is based on different legal standards than disclosure under FOIA, which turns on whether a document would usually be discoverable in a civil case." The D.C. Circuit notes that "[s]imilar documents . . . are not – indeed must not be – treated similarly in the two different types of proceedings."

Edwards v. EOUSA, No. 10-11831, 2011 WL 3360655 (11th Cir. Aug. 3, 2011). Holding: Granting EOUSA's motion for summary judgment, and concluding that plaintiff did not establish waiver as to documents for which EOUSA claimed Exemptions 7(C) and 7(D). At the outset, the court notes that plaintiff does not challenge any of EOUSA's claims of exemption, but instead argues that EOUSA waived it ability to assert Exemptions 7(C) and 7(D) "because it earlier had disclosed the documents that he requested." However, contrary to plaintiff's contention, the court finds the investigative report which plaintiff claimed was disclosed by EOUSA was actually released in a redacted form by the Saint Petersburg Police Department in response to a request made under the Florida Public Records Act. The court finds that the fact "[t]hat [plaintiff] obtained a copy of the investigative report from another source does not establish that the EOUSA voluntarily waived any FOIA exemption on that information." Accordingly, the court grants summary judgment in favor of EOUSA.

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."

Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition). Waiver of exemption/Exemption 7(D): The Second Circuit dismisses plaintiffs' claim that the IRS waived its ability to assert "Exemption 7(D) by revealing the confidential source's identity through inconsistent redactions." Rather, the Circuit finds that "[e]ven if the IRS made such inadvertent disclosures, the promised confidentiality could only be waived by the source" and, here, "[p]laintiffs allege no such waiver."

Callaway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941 (D.C. Cir. June 2, 2009) (unpublished disposition) (per curiam). "[I]t appears appellant has met his initial burden of pointing to specific information in the public domain that he asserts is the same as the information requested and withheld under an otherwise valid exemption. The trial transcripts should be compared to the grand jury transcripts to determine whether any portion of the grand jury transcripts is identical to the public transcripts."

District Court Decisions

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 decides that a "VHS Crime Scene Video Tape" need not be released. The court rejects plaintiff's argument that the video "must be released because 'the crime scene here was a public space.'" The court distinguishes Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999), noting that "[i]t merely held that wiretapped recordings that were actually played in open court during a public criminal trial generally must be released. Here, on the contrary, there is no indication that the FBI has publicly released the videotape."

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 concludes that "the plaintiff has not demonstrated that the defendant ever officially acknowledged the existence of a decision not to prosecute [the subject of the request] or any records related to that decision." The court does not find persuasive the plaintiff's argument that the subject's name on a list presented in a criminal trial, and subsequently subject to a court ordered seal, constitutes "an official acknowledgment that a prosecutorial decision was made." The list "does not itself reveal that a decision not to prosecute" the subject was made. Additionally, insinuation by the Attorney General at a press conference "that a decision was made not to prosecute" the subject, "does not qualify as an official acknowledgment because official acknowledgment requires 'exactitude.'" Finally, information provided to a reporter from an anonymous agency source does not qualify as an official acknowledgment because "the acknowledgment must be 'official,' i.e., authorized or approved by the agency in possession of the information being acknowledged." "[A]n anonymous leak is presumptively an unofficial and unsanctioned act."

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."

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. The court holds that the Army did not "waive its ability to rely on the Glomar response simply because it acknowledged that it had completed its 'review' of [plaintiff's] ethics complaint. An agency is prohibited from relying on a Glomar response where it has 'officially acknowledged the existence of the record' at issue." A review of the complaint does not necessarily lead to the creation of any documents. For example, the court notes that "if a complainant files an ethic charge that is baseless on the face of the document and the complainant fails to submit any supporting documentation, no 'associated documentation' would exist."

Elec. Frontier Found. v. DOJ, No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10, 2012) (Walton, J.). Holding: Granting the defendant's motion for summary judgment on the withholdings, and granting the defendant's motion for summary judgment in part as to the segregability of the documents. The court is not persuaded by the plaintiff's argument that "'given the subject of the FOIA request at issue and the nature of the bilateral [HLCG] negotiations in general, it stands to reason that significant amounts of information contained within the records… were disclosed to [the] DOJ's EU counterparts during the course of negotiations." "[I]t is the plaintiff, not the agency, who carries the burden of producing at least some evidence that the deliberative process privilege has been waived." The plaintiff has not met this burden; rather, the plaintiff "offers only speculation that undisclosed information in email exchanges… 'likely represent the final position of the [HLCG] that was ultimately communicated to the EU negotiators.'" The court notes that "the documents currently in dispute were only exchanged between officials within the Executive Branch."

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."

Appleton Papers Inc. v. EPA, No. 11-318, 2012 U.S. Dist. LEXIS 44625 (E.D. Wis. Mar.29, 2012) (Griesbach,J.). Holding: Granting defendants' motion for summary judgment on the basis that it properly withheld certain information pursuant to the attorney work-product and deliberative process privileges; and concluding that plaintiff waived any challenge as to the adequacy of defendants' search where that issue was fully briefed and plaintiff failed to challenge it. The court declines to find waiver based on defendants' limited public disclosures of related information. The court finds that "[t]he government has . . . cited its consultants' work in litigation before this court, but only in passing and certainly not in order to make a dispositive point." Additionally, the court notes that "to the extent [that the government] has shared some of the [requested] report with the other side, that was done in an effort to facilitate settlement discussions."

Nat'l Rt. to Work Legal Def. and Educ. Found., Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661 (D.D.C. Dec. 12, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that DOL properly protected information pursuant to Exemptions 5 and 6. In addition to the issues for which plaintiff expressly conceded, the court finds that plaintiff "has also conceded (by failing to argue otherwise) that certain documents were properly withheld because they are not 'agency records'" under the FOIA. The court observes that plaintiff "nowhere challenges the Department's contention in its Motion [that certain handwritten personal notes] . . . fall outside the scope of FOIA" and holds that "[w]hen a party files an opposition addressing only certain arguments raised in a dispositive motion, a court may treat those arguments that the non-moving party failed to address as conceded."

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.

ACLU v. DOJ, No. 10-436, 2011 WL 4005324 (D.D.C. Sept. 9, 2011) (Collyer, J.). Holding: Granting summary judgment to the CIA on the basis that it properly refused to confirm or deny the existence of records responsive to the request in conjunction with Exemptions 1 and 3. The court finds unavailing plaintiffs' argument that the former CIA Director "has officially admitted that some or all of the requested records exist so that they are no longer FOIA exempt." Rather, the court finds that the fact that the former CIA Director "acknowledged that such a program exists [in a public speech] and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA's involvement in such program, nor does it waive the CIA's ability to properly invoke Glomar." Similarly, the court concludes that general statements made by the former CIA Director to the news media are not sufficient to demonstrate official agency acknowledgment, finding that "Plaintiffs fail to cite any official disclosure containing the exact information sought by Plaintiffs." The court notes that "[h]ere, Plaintiffs seek exactly what is not publicly available – an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program." Moreover, the court finds that "none of the comments by former Director Panetta on which Plaintiffs rely constituted an explicit admission 'that a specific record exists.'" Accordingly, "even if former Director Panetta could be understood colloquially to have suggested some sort of CIA involvement in drone strikes, he neither referenced specific records nor referenced records that go to the exact requests posed by Plaintiffs." Moreover, the court finds that "despite speculation or overt factual assertions of the CIA's involvement in drone strikes rampant in the various articles cited in Plaintiffs' briefs, the statements of journalists, 'experts,' or even unofficial or unidentified sources (even were they CIA personnel) are not 'official' disclosures by the CIA."

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 grants plaintiff's unopposed motion that it take judicial notice of an order in plaintiff's underlying criminal case whereby the Eastern District of Louisiana noted that he received copies of DNA reports related to him. However, the court finds that this "Order is not relevant to this proceeding because disclosure obligations under FOIA and disclosure obligations in criminal proceedings are separate matters, governed by different standards." "Accordingly, the Order in the criminal case against [plaintiff] noting that 'DNA records' were released to [him] does not mandate the release of documents in this case." The court observes that "[t]his case is governed by FOIA law and not [Federal Rule of Criminal Procedure] 16, Brady, or other rules of criminal procedure."

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. Despite plaintiff's claim that the government had disclosed an FBI 302 report to a prosecutor prior to his murder trial, "[t]he court finds the previous unredacted disclosure of this document irrelevant to the FBI's redaction determinations at issue here, as the standards for disclosure of information under FOIA are different from the standards of disclosure for information in a criminal trial."

Darui v. Dep't of State, No. 09-2093, 2011 WL 2678715 (D.D.C. July 11, 2011) (Jackson, J.). Holding: Granting defendant's motion for summary judgment. The court finds that, although plaintiff was able to demonstrate that two documents withheld pursuant to Exemption 1 met two elements of waiver, namely, that the information requested is as specific as that released in his criminal trial, and the information matches the information previously disclosed, he failed to establish that the documents were "'made public through an official and documented disclosure.'" The court concludes that the records at issue "were placed under seal in [plaintiff's] criminal proceedings, and therefore, there has been no official, documented, public disclosure that could form the predicate for a waiver."

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. To the extent that defendants have publicly released certain information, the court rules that defendants have waived their claims of exemption.

Ebling v. DOJ, No. 10-914, 2011 WL 2678935 (D.D.C. July 11, 2011) (Kollar-Kotelly, J.). Holding: Holding that the terms of a third party's plea agreement prohibiting the subject of the request from requesting records pertaining to his criminal case is not binding on plaintiff who is not a party to the agreement; ordering defendants to show cause as to why the court should not grant partial summary judgment to plaintiff on this issue; and granting, in part, DOJ's motion for summary judgment based on plaintiff's failure to exhaust administrative remedies with respect to one of her claims. The court concludes that the FBI and EOUSA improperly refused to process plaintiff's requests based on the FOIA/Privacy Act waiver contained in her nephew's plea agreement, which bars her nephew or his representative from making FOIA requests for information pertaining to his criminal case. For one, the court finds that even assuming that plaintiff is acting on her nephew's behalf "it is, at least for purposes of FOIA, irrelevant." Rather, the court finds that "[u]nder the statute, [plaintiff's] identity is 'of no significance,' . . . and her rights are no different than those that might be asserted by any other person." Moreover, she "has a statutory right to make a FOIA request, and that right exists independently of whatever right [her nephew] may have once had to do the same." Second, the court finds that "[w]ithout some indication that the third party is bound by the terms of the plea agreement," it is "patently impermissible" for defendants to invoke the FOIA/PA waiver in her nephew's plea agreement against plaintiff. The court notes that "[p]lea agreements are essentially contracts" and, as such, "cannot bind a non-party." Furthermore, the court observes that "the question of whether [plaintiff] is acting as [her nephew's] 'representative' in pursuing her FOIA requests is, quite simply, irrelevant to this action." Nevertheless, the court notes that "DOJ is not without a remedy" and finds that "[t]o the extent that it genuinely believes that [plaintiff] is acting as [her nephew's] 'representative,' it may seek to enforce the terms of the plea agreement against [her nephew] in a court of competent jurisdiction." The court also notes that defendants' have "fallen woefully short of establishing" that plaintiff is acting as her nephew's representative in this matter. In light of the fact that plaintiff has not yet moved for summary judgment, the court orders defendants to show cause "as to why the Court should not grant partial summary judgment in [plaintiff's] favor."

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). The court notes that certain information has already been disclosed in response to this FOIA request, such as the names of certain databases, "thereby waiving defendants' right to claim exemption for that information." The court finds, though, that "[w]hile the agency has chosen to release certain information in the past, that does not mean that it must release other similar information."

ACLU v. DOD, No. 09-8071, 2010 U.S. Dist. LEXIS 114441 (S.D.N.Y. Oct. 25, 2010) (Jones, J.). Exemption 1/waiver: With respect to plaintiffs' request to DOD, the court determines that the agency properly invoked Exemption 1 to withhold "information regarding the detainees' citizenships, dates of capture, length of detention at Bagram, locations of capture, and circumstances of capture" where its declarations "sufficiently demonstrated that each withheld category of information logically falls within Exemption 1 and that Defense has sufficiently identified and described the possible damage to U.S. national security." The court rejects plaintiffs' argument that DOD "cannot treat as classified here what it treats as unclassified in [detainee review board (DRB) hearings] and analogous Guantanamo detainee hearings." The court determines that "there is no exactitude between the information previously disclosed and the information sought here, whatever information the Government has decided to release regarding Guantanamo detainees has no bearing on Plaintiffs' requests in this case." With respect to some information that was released on a discretionary basis at open DRB hearings, the court concludes that "[b]ecause Defense voluntarily released the previously redacted information that NGO and media representatives heard and because that discretionary disclosure does not constitute a waiver for the rest of the requested information under Exemption 1, the Court is satisfied that the DRB hearings have no further bearing on Plaintiffs' requests." Lastly, the court notes that although plaintiffs make various arguments disputing DOD's decision to classify the information, "in light of the 'substantial weight' accorded to agency affidavits, the Court will not conduct a detailed inquiry to determine whether it agrees with Defense's explanation."

Williams & Connolly LLP v. SEC, No. 09-651, 2010 WL 3025030 (D.D.C. Aug. 4, 2010) (Kollar-Kotelly, J.). The court considers plaintiff's objection to one document moot, because plaintiff did not contest SEC's subsequent production of a redacted version of that page, and treats as conceded SEC's assertion of Exemption 7(C) to protect another record that plaintiff did not challenge.

ACLU v. DOD, No. 04-4151, 2010 WL 2787645 (S.D.N.Y. July 15, 2010) (Hellerstein, J.). The court rejects plaintiff's assertion that the government's "prior official disclosures prevent Defendants from withholding the records at issue." The court concludes that the government has not waived its right to withhold these records because "the information at issue is more extensive and more detailed than the previous disclosures" and further notes that "[t]he difference between the information officially released and the CIA operational records here is different in quality, degree, and kind."

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

Edwards v. EOUSA, No. 08-1956, 2010 WL 1038465 (M.D. Fla. Mar. 19, 2010) (Convington, J.). Plaintiff's only challenge to defendant's withholdings is to claim that EOUSA cannot withhold the records in question because it previously released them to him. "The Court finds that Plaintiff's assertions fail to raise a genuine issue of material fact that precludes summary judgment."

King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.). Although plaintiff makes a general assertion that the withheld information has previously been released into the public domain, he makes no showing to support the claim.

Blackwell v. FBI, No. 09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.). Although plaintiff contends that the privacy interest of some individuals was "waived because the FBI inadvertently released some names when it produced documents," the court finds that "[t]he FBI's disclosures do not waive the individuals' privacy interests."

Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation). Plaintiff did not submit any evidence to show that the FAA has previously released the information he requested, and therefore has not satisfied his burden of showing that the FAA waived its right to withhold the information.

McLaughlin v. DOJ, No. 06-2048, 2009 WL 3711004 (D.D.C. Nov. 4, 2009) (Collyer, J.). Though plaintiff "contends that certain withheld information is in the public domain," he has not met his burden of proof on this issue by "'pointing to specific information in the public domain . . . that appears to duplicate that being withheld.'" Furthermore, even if defendant may have disclosed certain information as part of a constitutionally required disclosure to an individual party, this does not prevent defendant from asserting exemptions when the same information is requested through the FOIA.

North v. DOJ, No. 08-1439, 2009 WL 3113243 (D.D.C. Sept. 30, 2009) (Kollar-Kotelly, J.). Though plaintiff is correct that an agency may not protect "'information that has been "officially acknowledged" or is in the "public domain,"' . . . plaintiff in such instances bears the initial burden of 'pointing to specific information in the public domain that appears to duplicate what is being withheld.' . . . This burden of production is substantial, requiring the plaintiff to identify the exact portions of the permanent public record he wishes to obtain." While plaintiff "has produced excerpts from transcripts of his trial to show that the documents he is seeking may actually exist, he has not shown that these documents were entered into evidence at trial or otherwise formally enshrined in a permanent public record."

The Shinnecock Indian Nation v. Kempthorne, No. 06-5013, 2009 WL 2873174 (E.D.N.Y. Sept. 9, 2009) (Bianco, J.). Interior did not waive the work-product privilege as to the withheld portions of one of the documents by releasing other portions of it. The agency only released factual portions of the document, meaning that the "heightened protection" accorded to "opinion work product" remains intact. Furthermore, in camera review reveals that defendant released "all factual material, not only those that are helpful to their position in this litigation, [while] redact[ing] all legal conclusions."

Watkins v. U.S. Bureau of Customs & Border Prot., No. 08-1679, 2009 WL 3633893 (W.D. Wash. Oct. 30, 2009) (Robart, J.). CBP did not waive its right to claim exemptions when it released the Notices of Seizure to trademark owners whose rights were infringed. This "limited" disclosure "to interested third parties" was required under 19 U.S.C. § 1526(e), and thus did not constitute waiver for FOIA purposes.

Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.). Plaintiff's assertion that OMB waived exemptions on withheld documents by releasing related documents is mistaken. "If [plaintiff's] argument were accepted, it would create the untenable result of discouraging the government from ever re-reviewing previously withheld documents."

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