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Summaries of New Decisions -- December 2007

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of December 2007.


District Courts

1. Adejumobi v. NSA, No. 07-1237, 2007 WL 4247878 (M.D. Fla. Dec. 3, 2007)

Re: First-party requests

• Glomar/Exemptions 1 & 3: Because one of plaintiff's requests included a specific request for information concerning his alleged inclusion on an NSA "Terror suspect list," NSA construed this request as a request for records reflecting any surveillance of plaintiff by NSA. NSA properly refused to confirm or deny the existence of such records, citing both Exemptions 1 and 3. Plaintiff failed to "present any evidence or argument" to challenge NSA's determination.

• Procedural: Plaintiff now claims that NSA misconstrued his request, and that he is actually interested in receiving court records concerning a case in which he was referenced. If so, he should direct his request for such records to the court in question, and not to the NSA.

District Courts

2. Carvajal v. DEA, No. 06-2265, 2007 WL 4233362 (D.D.C. Dec. 3, 2007)

Re: First-party request

• Litigation considerations: Plaintiff's motion for a default judgment is denied because he has been unable to counter defendants' assertions that he did not properly effectuate service against defendants. Plaintiff did not serve his complaint upon the appropriate United States Attorney or the individual agencies, but plaintiff is given an extension of time in order to cure this defect.

3. Davis v. DOJ, No. 88-00130, 2007 U.S. Dist. LEXIS 88374 (D.D.C. Dec. 3, 2007)

Re: Request for audiotapes of undercover FBI operations

• Adequacy of search: On remand from the Circuit Court of Appeals, the sole remaining issue was the adequacy of the FBI's efforts to ascertain whether certain third parties who were recorded on some of the responsive tapes are alive. The FBI's latest efforts include repeated Google searches, searches of the Social Security Death Index, as well as searches of a multitude of databases and other Internet resources likely to maintain death information. As such, the FBI's current efforts satisfy its obligation to conduct a reasonable search for information on this question. None of these searches provided any evidence that the individuals in question have died. Plaintiff "is correct in his assessment that additional searches could have been conducted but errs in his assessment that the absence of such searches rendered the FBI's search deficient. " Particularly when a search involves the Internet, "there likely will always be an alternative or additional search that could have been done. " The legal standard, "however, does not require exhaustive efforts but reasonable ones. "

4. NAACP Legal Def. & Educ. Fund, Inc. v. HUD, No. 07-3378, 2007 WL 4233008 (S.D.N.Y. Nov. 30, 2007)

Re: Records related to administration of hurricane relief grants

• Exhaustion: Plaintiff has exhausted administrative remedies despite its failure to address its request to the proper office within HUD. The court noted that HUD's regulations provide that in such circumstances the recipient office within HUD will forward the request to the proper office, and this occurred, with the request eventually reaching the correct office. When HUD failed to respond to plaintiff's request for expedited processing within the statutory time limits, plaintiff is permitted to challenge HUD's substantive response to plaintiff's request without having first filed an administrative appeal. To rule otherwise, the court found, would lessen administrative efficiency by requiring a plaintiff to pursue an administrative appeal after the commencement of litigation (and the involvement of a court) as to a different part of the complaint. According to the court, "the plain language of the statute and the relevant case law" support the view that the court "retains authority" to review the merits of the FOIA request.

• Exemption 5: HUD properly invoked the deliberative process privilege to withhold portions of an internal audit of state disaster relief procedures. The withheld portions are predecisional because they "relate to an 'ongoing audit' of which 'the scope and focus are still in development. '" Thus, they constitute draft reports "'and [d]raft documents by their very nature are typically predecisional and deliberative. '" The withheld materials also qualify as deliberative. They "are intended to 'assist an agency decisionmaker' in developing [HUD]'s final audit report" and "reflect the type of 'advisory opinions, recommendations and deliberations' that are protected by the deliberative process privilege. " Similarly, portions of other withheld documents "'reflect the thoughts [and] mental impressions'" of their authors rather than the agency's official policy.

Vaughn Index: Though the agency's Vaughn Index and the accompanying declaration were "perhaps not as full as might be ideal, they nevertheless provide[ ] a sufficient basis for making a 'reasoned judgment'" on HUD's Exemption 5 claims.

5. Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, No. 07-5278, 2007 WL 4208311 (N.D. Cal. Nov. 27, 2007)

Re: Records reflecting communications concerning pending amendments to the Foreign Intelligence Surveillance Act

• Preliminary injunction: ODNI granted plaintiff's request for expedited processing of its request, but did not provide anything further to plaintiff before plaintiff filed suit. Defendant has located roughly 315 pages of responsive materials (some of which are classified) and intends to complete its processing by December 31, 2007, four months after plaintiff made its request. Plaintiff's request for an injunction from the court, ordering ODNI to complete its processing within ten days of the order is granted. The court held that plaintiff's claim that defendant has failed to comply with the expedited processing requirements of the FOIA is likely to succeed on the merits. Furthermore, according to the district court, because the records at issue are relevant to ongoing Congressional debate over amendments to FISA, plaintiff will suffer irreparable injury if it is unable to inform the public concerning potential congressional action. In addition, according to the court, plaintiff's proposed injunction, which would merely provide it with the expedited processing to which ODNI concedes plaintiff is entitled, will not burden the interests of others, except to the extent that it forces a reordering of ODNI's internal priorities. To the extent that such a reordering represents a burden to ODNI, such concerns are best addressed to Congress. Finally, the court found that the public interest is served by granting the relief for which plaintiff has asked.

Vaughn Index: Plaintiff's request that ODNI be ordered to produce a Vaughn Index within ten days of its release of records is denied without prejudice. A Vaughn Index is not required in all cases, particularly where an affidavit may be acceptable for the purpose of describing withheld records in sufficient detail.


Courts of Appeal

1. Morley v. CIA, No. 06-5382, 2007 WL 4270576 (D.C. Cir. Dec. 7, 2007)

Re: Documents pertaining to deceased CIA officer

• Procedural: The CIA properly processed plaintiff’s request under the FOIA, rather than applying the standards set forth in the John F. Kennedy Assassination Records Collection Act of 1992 ("JFK Act"). The court noted that "'[t]here is no evidence that Congress intended that the JFK Act standards be applied to FOIA review of documents involving the Kennedy assassination. '"

• Adequacy of search: The court ruled that the CIA should have searched its Operational Files for responsive records. These files are generally exempt from disclosure under the CIA Act, 50 U.S.C. § 431(a); however, an exception to this general rule exists where, as in this case, the files in question are (1) the subject of an investigation by a congressional intelligence committee, (2) the request concerns the specific subject matter of an investigation by one of these committees, and (3) the investigation was for "any impropriety," or violation of law, Executive order, or Presidential directive in carrying out an intelligence activity. The CIA also should have searched for records it transferred to the National Archives and Records Administration (NARA). The court found that "[b]ecause the CIA does not deny that it has retained copies of the records transferred to NARA . . . it was obligated to search" them. NARA's assertion on appeal that the "protected" collection of these records are unlikely to contain information responsive to plaintiff’s request does not properly address its silence on this question before the district court. Plaintiff’s assertion that additional records exist is largely unpersuasive. However, the CIA's explanation as to the reason that some possibly responsive records are apparently missing from its files is insufficient, as it only quotes a memorandum it wrote to NARA, rather than providing a similar explanation in its affidavit or a copy of the memorandum itself. Thus, in the court's view, a factual question as to the existence of these records still exists. The CIA’s declaration also does not address plaintiff’s request that it search its "soft files. " Nonetheless, plaintiff’s claim that defendant should have searched for documents that were referenced in documents it released is directly counter to Circuit precedent on this issue. Finally, the court found that defendant did not describe its search procedures adequately. Its declaration "provides little more than conclusory adjectives and does not provide sufficient detail for the court itself to determine the search’s adequacy," nor does it provide any information about the "search strategies" of the CIA components responsible for responding to plaintiff’s request.

Vaughn Index:  "[T]he descriptions of the documents in the Vaughn [I]ndex, while categorical and with little variation from page to page, convey enough information for [plaintiff] and the court to identify the records referenced and understand the basic reasoning behind the claimed exemptions. "

• Segregability: The district court has an affirmative duty to consider segregability sua sponte. Its failure to do so requires a remand.

• Exemption 1: Though defendant’s "justification for the invocation of Exemption 1 is terse . . . the text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified. [Plaintiff’s] argument for declassification does not overcome the 'substantial weight' the court must accord 'to an agency’s affidavit concerning the details of the classified status of the disputed record. '" Plaintiff’s claim that the type of information he requested has been previously released is unconvincing and has been previously rejected by this Court. "'Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. '"

• Exemption 2: The CIA did not produce evidence to meet its burden of showing the material it withheld under "low" 2 is "too trivial to warrant disclosure. " The CIA is directed on remand to "supply the explanation necessary to meet its burden. "

• Exemption 3: The CIA’s declaration was sufficient to show that it properly withheld records under the National Security Act, 50 U.S.C. § 403(g), and the CIA Act. The declaration "draws causal connections between the release of certain kinds of information and the danger to national security that would result. " However, the court found that the agency's explanation for its refusal to confirm or deny the existence of records concerning the subject’s participation in any covert project was not adequate and must be supplemented on remand with "reasonably specific detail. "

• Exemption 5: The CIA has not provided enough detail for the court to determine if its use of the deliberative process privilege was appropriate. On remand, defendant must supply additional information on this question.

• Exemption 6: The CIA "has failed to explain the extent of the privacy interest or the consequences that may ensue from disclosure. " On remand, it must "show that disclosure would constitute a 'clearly unwarranted' invasion of personal privacy. "

• Exemption 7(E): Defendant properly withheld information concerning its security clearance techniques. "It is self-evident that information revealing security clearance procedures could render those procedures vulnerable and weaken their effectiveness. "

District Courts

1. In Def. of Animals v. NIH, No. 04-1571, 2007 WL 4329474 (D.D.C. Dec. 12, 2007)

Re:  Records pertaining to chimpanzees located at the Alamogordo Primate Facility (APF)

• Standard of review: Because the court’s previous order in this case was not a final judgment, NIH’s motion for reconsideration is governed by the standard set out in Rule 54(b) of the Rules of Civil Procedure. Under this standard, the court has "broad discretion to hear a motion for reconsideration," and can do so "'at any time' prior to a final judgment. " The standard for doing so is "'as justice requires,'" or if in the court's discretion there is "'good reason underlying the parties' re-addressing an already decided issue. '"

• Agency records: The fact that NIH’s contractor "may possess the documents on a day-to-day basis" does not mean that the records are not agency records. Furthermore, NIH concedes that it owns the chimpanzees and that the animals’ clinical files are "essential" for their care, so it would be "untenable" to claim that these files could be removed by the contractor at the expiration of the contract "leaving the chimpanzees without the files necessary for their continued care. "

• Exemption 2: As an initial matter, defendant has not shown that information concerning physical details of its facility and daily animal inventories is "only used for internal purposes. " NIH has also failed to show that the information in question is sufficiently trivial to qualify it for "low" 2 withholding, especially in light of plaintiff’s claim that information concerning the conditions under which the chimpanzees are maintained is "crucial" to an assessment of their treatment. The court found that NIH has also not shown that "high" 2 applies. It has included no information showing that release of building blueprints would indicate where security personnel are stationed, nor has it shown how release of this information would facilitate criminal activity.

• Exemption 4: The court found that defendant’s two-sentence justification for its use of this exemption is insufficient. It failed to specify "what it means by 'cost and rate' information" and also failed to explain "how such information could be used by competitors to cause substantial harm to [its contractor]. "

• Exemption 6: The court found that NIH’s "arguments concerning the safety of animal workers" as its rationale for protecting data concerning the building where the animals are located, "are not properly incorporated into Exemption 6 as [the data] is not associated with any particular individual. "

2. Dockery v. Gonzales, No. 07-0318, 2007 WL 4259584 (D.D.C. Dec. 6, 2007)

Re: First-party request

• Exhaustion: "[T]o the extent that plaintiff has 'add[ed] more requests'" to his complaint, "he has not exhausted his administrative remedies. "

• Adequacy of search: "Plaintiff has not credibly refuted [defendant's] declaration, which establishes that defendant performed a search reasonably calculated to locate all responsive records. " The court noted that "defendant was obligated to search only those records that were in its custody and control at the time of the FOIA request. "

• Exemption 7(C): Plaintiff has not challenged defendant's assertion that it properly redacted the names and other identifying information concerning third parties. Thus, defendant's use of this exemption is conceded.

3. Cox v. Mitsubishi Heavy Indus. , No. 07-149, 2007 WL 4287574 (D. Me. Dec. 6, 2007)

Re: Documents related to accident investigation

• Miscellaneous: Plaintiff's motion to compel production of documents sought in discovery from OSHA, a non-party to plaintiff's action, is granted. OSHA's use of Exemptions 7(C) and 7(D) to resist such discovery is rejected.

4. Freeman v. Bureau of Land Mgmt. , No. 05-3073, 2007 WL 4305930 (D. Or. Nov. 20, 2007)

Re: Report concerning proposed mining project (reverse FOIA action)

• Standard of Review: A reverse FOIA action is "cognizable" under the Administrative Procedure Act, with limited review.

• Exemption 4: The information supplied by plaintiff was not provided voluntarily. Rather, he "provided the data in an effort to gain title to over five thousand acres of public land potentially worth millions of dollars. " BLM's claim that the information it wishes to release was not "received from a person" is unavailing in light of the fact that much of the information it developed is "inextricably intertwined with data furnished by [plaintiff]. " In many cases, "the government's research piggyback[ed] upon [plaintiff’s] data to such an extent that the government's data is not truly independent. " In the court's view, plaintiff is correct that what he calls the "DART process," a metal extraction process, qualifies as a trade secret. BLM’s assertion that information cannot be considered a trade secret "unless the agency determines that [it] is, in fact, 'commercially valuable'" is "problematic. " Instead, such judgments should be left to "the verdict of the marketplace. " Plaintiff need only show "that DART is a 'secret' manufacturing process that may have commercial value, and which [plaintiff] has treated as such. " Plaintiff has been unable to show that release of other information would cause him substantial competitive harm. Due to the absence of "major nickel mines" in the United States, "[t]he extent of [plaintiff’s] competition is debatable. " Similarly, plaintiff has offered "no plausible explanation why disclosure of [information concerning ore deposits at the location in question] would cause him substantial competitive harm. " Moreover, "Exemption Four does not authorize the government to suppress information merely because release of that data might cause the public to question the need for a proposed project. " Similarly, information about the laboratory that performed tests on plaintiff’s samples, if released, would not result in harm to plaintiff. Plaintiff has also not persuaded the court that other information about the proposed operation of his mine is sensitive. "Similar data is commonly disclosed for other mines" and has already been disclosed or will be if plaintiff continues to pursue his project. Plaintiff’s alternative proposals for extracting ore if DART does not work should be released. "Under the circumstances of this case, the harm is too generalized and conclusory. " BLM may also disclose the market value of some of the products in question, as much of this information is already available, or is "by now, rather stale. "

• Segregability: The District Court "erred in refusing to conduct a severability analysis" to distinguish factual material from deliberative material.

District Courts


District Courts

1. Moore v. Nat’l DNA Index Sys. , No. 06-0362, 2007 U.S. Dist. LEXIS 92679 (D.D.C. Dec. 19, 2007)

Re:  Request for DNA records

• Proper party defendant:  The FOIA provides for a cause of action only against federal agencies. Thus, the National DNA Index System and its director are not proper party defendants to this action. Instead, plaintiff's suit, which also named the FBI as a defendant, is considered an action against the Department of Justice.

• Adequacy of search:  The search performed by the FBI was reasonable. The FBI made a reasonable judgment about which of its records systems to search for responsive records. Defendant also responded appropriately to the additional information subsequently provided by plaintiff, determining that the identification numbers provided by plaintiff did not match numbers within its own database, and instead directing plaintiff to state agencies that might maintain the records in which plaintiff was interested. "[T]he FBI had no obligation under the FOIA to contact the state and local entities to retrieve records for plaintiff. "

2. Citizens for Responsibility and Ethics in Washington v. DHS, No. 06-1912, 2007 WL 4374023 (D.D.C. Dec. 17, 2007)

• Agency records:  The requested visitor logs "are each generated by the Secret Service, and not by Presidential or Vice-Presidential staff. "  The district court held that the fact that officials from these two staffs "do at times provide much of the 'information' contained in these records . . . does not, by itself, prove the Secret Service does not create these documents. "  Under the FOIA, the focus should be on "the process by which the records are generated," and not on the information itself. To hold otherwise "would effectively place the information source above the record's creator. "  Furthermore, the court held, "[t]his would insulate records that contain information supplied, perhaps even gleaned, from an external, non-agency source. "  While the Secret Service evidenced an intent to relinquish control over the records "once a visit is complete," the court found that the agency had the ability to use the records as it saw fit, and that in most circumstances it had the capacity to freely dispose of the records. Furthermore, Secret Service personnel read and rely upon these records, as "they are integral to the Secret Service’s protective mission. "  Although the degree to which the records are integrated into the Secret Service's records systems cuts both ways, on balance, the court held that these factors weigh in favor of a ruling that the responsive records are under the agency's control. The Secret Service's use of the records "trumps [its] intent. "  Because the records are both created by the agency and under its control, the district court found that they qualify as agency records for purposes of the FOIA.

• Separation of powers:  The court held that the principle of "constitutional avoidance" is "not applicable in this situation. "  This doctrine "applies only where there are multiple possible interpretations of a statute, which is not this case. "  The court found that if the Secret Service is concerned that disclosure of records such as these might reveal confidential presidential communications, "[it] has a ready recourse in Exemption 5. "

• Discovery: Because the case has been decided on the present record, the limited discovery requested by plaintiff is not necessary.


Courts of Appeal

1. Thomas v. DOJ, No. 06-41139, 2007 U.S. App. LEXIS 29607 (5th Cir. Dec. 21, 2007) (unpublished disposition)

Re:  Audiotapes of prisoner/requester phone calls to third party

• Litigation considerations:  The Court will not consider plaintiff's argument that the responsive records are not law enforcement records because he did not raise this argument before the district court.

• Exemption 7(C): Because plaintiff "seeks information about a private citizen that is accumulated in the Bureau [of Prisons]'s files," and not "information that would shed light on [the Bureau of Prisons'] performance of its duties," he has failed to "establish a public interest in disclosure that warrants an invasion of his co-conspirator's privacy. "

• Segregability: The district court's denial of plaintiff's request for redacted transcripts of his phone calls that would take out the third party's words was proper. Release of such material "would be 'of little informational value'" and there is no evidence to suggest that this material would go to a showing that governmental misconduct occurred.

2. Moreno v. Curry, No. 06-11277, 2007 WL 4467580 (5th Cir. Dec. 20, 2007) (unpublished disposition)

Re: Records related to representation in state criminal proceeding

• Proper party defendant: The district court properly dismissed plaintiff's federal FOIA claim brought against a state agency, because such entities are not subject to the federal FOIA.

District Courts

1. Steeves v. Von Eschenbach, No. 07-00011, 2007 U.S. Dist. LEXIS 93079 (W.D. Va. Dec. 19, 2007)

Re:  Letter from FDA to drug company regarding new drug approval application

• Failure to state a claim:  Plaintiff's assertion that the FDA's initial denial of his request amounts to a denial of plaintiff's rights under the First Amendment or any other provision of the Constitution is unfounded. The Constitution "does not . . . provide a right of access to government information. "

• Mootness:  Because defendant has now released in full the record requested by plaintiff, plaintiff's complaint is moot.

2. Reilly v. U.S. Dep't of Energy, No. 07-995, 2007 U.S. Dist. LEXIS 93567 (N.D. Ill. Dec. 18, 2007) (magistrate's opinion and order)

Re:  Information concerning members of a grant application review committee

• Exemption 5:  A document that "was generated to provide analysis and recommendations to the project Selection Official" is both predecisional and deliberative. Similarly, documents that "were created to determine the qualifications of the individuals to serve on" the application review committee are also predecisional and deliberative because "they were used to assist in determining who would serve as [committee] members. "

• Exemption 6:  Defendant properly withheld information that would have identified the members of the review committee (which includes both federal employees and private individuals). Disclosure of this information would subject committee members to "harassment from disgruntled applicants. "  Furthermore, "plaintiff failed to explain with any specificity what public interest would be furthered" by disclosure.

• Attorney fees/costs:  Plaintiff has not substantially prevailed and so his motion for attorney fees and costs is denied.

3. Martinez v. Soc. Sec. Admin. , No. 07-01156, 2007 WL 4458121 (D. Colo. Dec. 13, 2007) (magistrate's order)

Re:  Records related to SSA reimbursements to state agency

• Discovery:  SSA's Motion for Protective Order is granted in part and denied in part. Plaintiff's motion for discovery will be allowed to permit inquiry into "SSA's good faith in processing the request and in asserting generally the privacy exemption without undertaking a segregability analysis. "  (posted 1/24/2008)

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