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 September 2008.
WEEK OF SEPTEMBER 1District Courts
1. Singh v. FBI, No. 07-1064, 2008 WL 4056223 (D.D.C. Aug. 31, 2008)
Re: First-party request
• Procedural: The FBI conducted a reasonable search.
• Exemption 1: The FBI appropriately utilized Exemption 1 to withhold a "numerical designator" for an intelligence source to protect the identity of the source.
• Exemption 2: Defendants DEA and ICE properly used "low 2" to withhold internal telephone numbers and computer terminal and other codes. This information is trivial and of no public interest. Defendant ICE correctly applied "high 2" to protect certain distribution and apprehension codes whose release "'would reveal sensitive law enforcement information' about ongoing investigations, and could result in 'the alteration or deletion of valuable information contained in [ICE's] system.'"
• Exemption 3: Defendant FBI's use of Exemption 3 to withhold the identities of individuals subpoenaed to appear before a grand jury, as well as the records subpoenaed, was proper. Additionally, defendant ATF appropriately used Exemption 3 to withhold Firearms Transaction Records. Congress has prohibited the use of federal funds to release such records.
• Exemption 5: The court finds that defendant ICE failed to meet its burden of showing that a document withheld pursuant to the deliberative process privilege reflected predecisional, deliberative communications. ICE may file a renewed motion on this issue.
• Exemption 7(C): Defendants FBI and ICE properly withheld information identifying their agents and support personnel and local and foreign law enforcement officers. Such withholding "routinely is upheld." Defendants FBI and DEA also withheld identifying information concerning third parties who had either assisted the agencies in their investigations or who were mentioned only incidentally in law enforcement files. Defendant EOUSA withheld a draft plea agreement concerning a third party. These withholdings were proper. "Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. . . . Plaintiff demonstrates no such public interest."
• Exemption 7(D): Defendant FBI used Exemption 7(D) to withhold identifying information concerning confidential sources who provided the FBI information under an implied assurance of confidentiality. These informants provided information that was "'singular in nature'" and related to an investigation of plaintiff that resulted in his indictment on drug charges and passport fraud. However, the court notes that plaintiff was only convicted of passport fraud and finds that the FBI did "not establish that there is such violence and risk of retaliation attendant to the crime for which plaintiff was convicted" (passport fraud) to justify the use of an implied grant of confidentiality.
2. Williams v. PNS Stores, Inc., No. 07-2191, 2008 U.S. Dist. LEXIS 66309 (S.D. Cal. Aug. 28, 2008)
Re: First-party request
• Proper party defendant: "The FOIA does not apply to private corporations, which defendants claim to be."
• Litigation considerations: Plaintiff is granted leave to amend in order to plead that defendants are "agencies" as defined by the FOIA.
3. Ramsey v. Mansfield, No. 07-01793, 2008 WL 3984589 (D. Colo. Aug. 26, 2008) (adoption of magistrate's recommendation)
Re: Information concerning plaintiff
• Litigation considerations: Plaintiff's claim for monetary damages is dismissed, as the FOIA does not authorize such claims.
4. Am. Small Bus. League v. SBA, No. 08-00829, 2008 WL 3977780 (N.D. Cal. Aug. 26, 2008)
Re: Contracts awarded small businesses by the federal government
• Procedural matters: The court finds that the records requested by plaintiff, i.e., a list of the small business entities and contract amounts upon which a report issued by SBA was based, are agency records of the SBA, notwithstanding the fact that they are maintained by the General Services Administration (GSA) and are merely utilized by defendant. The court finds that "the SBA was in 'control' of the records at the time the League made its FOIA request because although it did not have direct access to the raw database, it had the authority and in fact exercised such authority to direct GSA to analyze the database and extract information from it." In light of the fact that Congress has given the SBA the responsibility of promoting the interests of small businesses, "[t]he court finds curious the SBA's argument that it does not 'control' the very information it needs to carry out its duties and functions." The court also finds that the SBA had "created" the records because "[a]lthough GSA provided to SBA only an aggregate total value of contracts awarded to small businesses, in computing that statistic, the underlying raw data concerning individual firms and the contract amounts awarded must have already been created and in existence." The court finds that the failure to print out that information or to save it as a separate file "does not imply that such records had not been 'created' at the time of the FOIA request." Finally, the court finds that despite the fact that GSA "happens to maintain and house the data" while it was SBA that received the FOIA request, "the relationship between GSA and SBA is such that the records maintained by the GSA are effectively the records of SBA itself."
WEEK OF SEPTEMBER 8District Courts
1. Sliney v. BOP, No. 07-1425, 2008 WL 4146796 (D.D.C. Sept. 10, 2008)
Re: Tape recordings of phone conversations made from prison phone
• Mootness: BOP's motion for summary judgment is denied without prejudice. BOP argues that plaintiff's claim is moot, because he has been provided with the tapes of his portions of the responsive phone conversations. However, the court finds that BOP's declarant has not established that he took sufficient steps to ensure that what was released to plaintiff was, in fact, a complete recording of plaintiff's portions of the relevant conversations. BOP may file a renewed motion.
2. Salas v. OIG, No. 07-1706, 2008 WL 4146789 (D.D.C. Sept. 10, 2008)
Re: First-party request
• Adequacy of search: OIG's "declarant adequately explain[ed] the agency's reasons for limiting the search to the OIG Investigations Division database." The evidence submitted by plaintiff pertains to criminal proceedings against him and "do[es] not pertain the issue at hand," i.e. whether OIG's search was reasonable.
• Exemption 6: OIG properly withheld names and identifying information of Border Patrol employees. Plaintiff has failed to show a public interest in release of this information that is "of such magnitude that it outweighs the agency employees' substantial privacy interest."
3. Catledge v. Mueller, No. 07-2116, 2008 U.S. Dist. LEXIS 81735 (N.D. Ill. Sept. 10, 2008)
Re: National Security Letters (NSLs) pertaining to plaintiff
• Exemption 7(E)/Glomar: The FBI has shown that while its use of NSLs is "generally known to the public, 'the manner of use and subject[s] of the NSLs [are] not.'" Furthermore, it was appropriate for the FBI to refuse to confirm or deny whether plaintiff is the subject of an NSL, because doing so "would compromise [NSLs'] effectiveness as a tool for counterterrorism and counterintelligence investigations."
4. Bullock v. FBI, No. 07-1013, 2008 WL 4147126 (D.D.C. Sept. 9, 2008) (granting summary judgment in part to defendants, but requiring further justification for other part)
Re: First-party request
• Waiver: An audiotape played in open court during a criminal trial and admitted into evidence is "part of the public domain and cannot be withheld under any FOIA exemption." Defendants are ordered to inform the court whether the audiotape currently being withheld is one that has been played in court or whether it is some other tape. DEA-6 reports have not become part of the public domain because they were not admitted into evidence. The fact that they may have been "discussed at trial" is not sufficient to "bring them into the public domain," nor is the fact that they may have been turned over by the government pursuant to pretrial discovery. Finally, the fact that these reports may constitute Brady material is not relevant to the question of whether the reports are part of the public domain.
• Exemption 2: Defendants properly withheld internal codes and telephone numbers. Defendants also properly withheld "information about 'law enforcement operations' that would enable violators to 'avoid detection and arrest.' While this [description] is somewhat vague, courts have generally protected such information under similar circumstances."
• Exemption 7(C): Defendants properly withheld the names of law enforcement officers and third parties mentioned in the responsive records. Plaintiff's "'bare and undeveloped allegations'" that records were falsified in his case are not enough to call into question defendants' use of this exemption.
• Exemption 7(D): "Defendants are withholding the [DEA-6] reports in their entirety because 'information about the plaintiff is inextricably intertwined with information about the confidential source and third parties. Release of any of the information could enable the plaintiff to identify the confidential source.'" Plaintiff's argument that the information should be released because the alleged "confidential source is deceased and her identity is publicly known" is unavailing. "Exemption 7(D) applies even when the source's identity is no longer a secret," and also applies even after the death of a confidential source. Plaintiff has not shown that the exact information contained in the DEA-6 reports was disclosed at trial, thus he has not shown that defendants waived the right to use Exemption 7(D). Defendants also showed that the confidential source was given an express grant of confidentiality.
5. The Edmonds Inst. v. U.S. Dep't of Interior, No. 04-1560 (D.D.C. Sept. 9, 2008) (Order)
Re: Request for agreements pertaining to removal of biological materials from National Parks
• Procedural matters: Plaintiff's request for a status conference related to his civil action, which was terminated two years ago, is denied. By its own regulations, defendant was not obligated to commence processing of an August 25, 2005 request until the dispute over plaintiff's request for a fee waiver was settled. "Because [plaintiff's] fee waiver issue remained unresolved when the amended complaint was filed, any claim for the actual production of records responsive to the August 25, 2005 FOIA request would have been premature at that time." Plaintiff "retains the option of filing a new civil action if it now wishes to challenge [Interior's] processing of its August 25, 2005 FOIA request."
6. Kishore v. DOJ, No. 07-1299, 2008 WL 4126604 (D.D.C. Sept. 8, 2008)
Re: First-party requests
• Litigation considerations: Defendants' motion to dismiss for lack of subject matter jurisdiction is denied. Even though there is no record of plaintiff having paid copying fees he owed for released records, the court "finds it appropriate to proceed to the merits of [plaintiff's] claim" because of errors defendants made in their initial processing of plaintiff's request, because defendants claim to have released all non-exempt records, because defendants "have provided a record from which the Court may determine the propriety of any withheld material," and because plaintiff's administrative appeal was closed due to the filing of his complaint.
• Adequacy of search: The court finds that defendant FBI conducted a search which "was adequately structured to locate all responsive records." The court further finds that plaintiff "has not proffered any evidence to rebut the presumption of good faith accorded agency affidavits."
• Exemption 2: The FBI properly invoked "low 2" to withhold telephone and facsimile numbers in which there is "'no legitimate public interest.'" FBI properly used "high 2" to withhold a form used by Special Agents "to detail and evaluate search techniques" as well as information concerning its "'arrest and search operations.'" Release of this information "could jeopardize the effectiveness of any future" operations.
• Exemption 3: The court finds that the FBI's use of Exemption 3 to withhold grand jury subpoenas, the identities of those subpoenaed, and information that would identify records subpoenaed by the grand jury was proper. "The FBI properly determined that 'disclosure . . . would clearly violate the secrecy of the grand jury proceedings and could reveal the inner working of the grand jury." Plaintiff's claim that he is entitled to receive this information by virtue of the Jencks Act is "immaterial" to his FOIA request.
• Exemption 5 (Deliberative Process & Attorney Work-Product): Defendant EOUSA properly applied this exemption to withhold portions of one page reflecting the "reasons and rationale for" the government's decision to decline prosecution. Release would have disclosed "'trial preparation [and] strategy,'" as well as "'predecisional communications among government personnel such as discussions of various litigation issues.'"
• Exemption 7(C): FBI's use of this exemption to withhold identifying information pertaining to "FBI special agents and support personnel, non-FBI federal law enforcement employees, state and local law enforcement personnel, victims, third parties who provided information, and third parties merely mentioned in the files" was appropriate. The only public interest asserted by plaintiff to overcome the privacy interests present was plaintiff's interest in challenging his criminal conviction. "[H]owever, . . . the public interest in disclosure 'does not include helping an individual obtain information for his personal use' to overturn a conviction."
• Exemption 7(D): FBI properly invoked this exemption to withhold the identity of and information provided by an informant under an express grant of confidentiality as well as an implied grant of confidentiality. As to the latter, the "'violent nature of the crime for which plaintiff was being investigated . . . murder for hire'" is sufficient to justify FBI's use of an implied grant of confidentiality. FBI also properly "withheld confidential information provided by state and local law enforcement agencies." Such entities are "specifically include[d] among protected sources."
• Segregability: FBI's declarant "has not identified the 12 pages that were withheld in their entirety and discussed the applicable exemptions. Hence the Court is without sufficient evidence to make a segregability finding with respect to those pages." Defendant's Motion for Summary Judgment is denied without prejudice for these twelve pages.
7. Callaway v. U.S. Dep't of Treasury, No. 04-1506, 2008 WL 4150209 (D.D.C. Sept. 5, 2008)
Re: Records related to plaintiff's criminal trial
• Adequacy of search: Defendant EOUSA has supplied additional information to show how it conducted its search for a proffer statement. Plaintiff acknowledges that description sufficient and defendant's motion is granted as conceded.
• Exemption 7(D): Defendant Customs Service has established that its sources provided information under an express grant of confidentiality. Its declarant states that it is Customs' policy "'to provide a source symbol code only for sources who have been expressly assured confidentiality.'" Plaintiff failed to address defendant's showing and so defendant's motion is again treated as conceded.
8. Bonner v. SSA, No. 06-2051, 2008 WL 4078412 (D.D.C. Sept. 4, 2008)
Re: First-party request
• Exhaustion: The court finds that "there is no dispute that [plaintiff] filed this lawsuit before he had exhausted his administrative remedies with respect to [four of the five defendants]." With regard to defendant Department of State, plaintiff "will be treated as having constructively exhausted his remedies," due to the fact that State did not respond to plaintiff within twenty business days.
• Litigation considerations: Plaintiff will be given an opportunity to respond to the State Department's claim that it has no records responsive to his request. If he does not do so within 30 days, the State Department's motion for summary judgment will be granted.
9. Batton v. Evers, No. 07-2852, 2008 WL 4605946 (S.D. Tex. Sept. 4, 2008)
Re: First-party request
• Exemption 3: Under Exemption 3 and 26 U.S.C. § 6103(a), "the IRS is authorized to withhold documents that are the actual returns of third parties, the plaintiff's own return information if it would impair federal tax administration, notes that are of a deliberative nature such as opinions, documents that, if released, would violate the privacy rights of third-parties, documents that identif[y] individuals who are assisting the IRS; and, documents that, if released, might interfere with enforcement proceedings. . . . The plaintiff has failed to produce evidence establishing bad faith on the part of the IRS. . . . More importantly, the plaintiff has not produced evidence or arguments that the IRS's assessment concerning its needs is incorrect."
10. Keeper of the Mountains Found. v. DOJ, No. 06-0098, 2008 WL 4193978 (S.D. W. Va. Sept. 4, 2008)
Re: E-mail communications to United States Attorneys Offices in areas affected by Hurricane Katrina
• Litigation considerations: Plaintiff accepts defendant's representations that the remaining fourteen documents are either duplicates or were properly withheld, and so "the court need not review them in camera."
• Exemption 5: Defendant's declaration has established that there were no segregable, releaseable portions of two draft letters and thus it was appropriate to withhold them in full.
11. Minnifield v. Att'y Gen. of the U.S., No. 06-818, 2008 WL 4115890 (E.D. Tex. Sept. 3, 2008) (adoption of magistrate's recommendation)
Re: Grand jury transcripts
• Exhaustion: "Plaintiff did not file a FOIA request for the documents sought in this lawsuit. Therefore, the case should be dismissed for failure to exhaust administrative remedies."
12. Schoenman v. FBI, No. 04-2202, 2008 WL 4053457 (D.D.C. Sept. 1, 2008)
Re: First and third-party requests, and requests for records on several organizations
• Litigation considerations: "[T]he State Department correctly notes that [plaintiff's statement of material facts] consists of verbatim portions of [Plaintiff's Memorandum in Support of his Cross-Motion for Summary Judgment] broken into paragraphs and supported by citations to Plaintiff's own Declaration." As such, it is insufficient to create genuine issues of material facts.
• Fee waiver: Plaintiff's claim that he is entitled to a fee waiver is mooted by defendant State Department's decision to release records to him without seeking fees for search or duplication. "Even assuming plaintiff's claim that he was entitled to a fee waiver is well-founded, Plaintiff has already 'obtained everything that [he] could recover by a judgment of this court in [his] favor." Moreover, "[t]o the extent that plaintiff seeks a declaration from this Court that the State Department's initial refusal to waive fees was incorrect, 'such a declaration would be an advisory opinion which federal courts may not provide.'" The Court went on to state that its "conclusion is not altered by Plaintiff's suggestion that the State Department may change its course and charge him fees if required to perform future searching or copying."
•Adequacy of search: The State Department has established that it conducted a reasonable search for records. "[T]he Court particularly notes that the State Department searched both its centralized records system -- the Central File -- and its decentralized records maintained by those offices considered likely to have responsive records." Plaintiff's "mere speculation" that additional responsive documents exist is insufficient to call into question the adequacy of State's search, especially given that even if the additional documents in question did exist, there is no reason to think that they would be "uncovered by State Department's searches." Additionally, State's decision not to provide plaintiff with records documenting its search for responsive records is consistent with its regulations, which apply a "cut off" date for the search as the day the search for responsive documents begins. Furthermore, "[i]n asking the State Department to provide him with documentation that may or may not exist but which, in any event, was created during the course of searching for records responsive to Plaintiff's FOIA request, Plaintiff essentially seeks to have the State Department create or retain such documents. The Court declines to condone such a request."
• Exemption 3: The State Department properly utilized 8 U.S.C. § 1202(f), which treats as confidential "records 'pertaining to the issuance or refusal of visas or permits to enter the United States'" in order to withhold a name check request tied to a visa application for an individual other than plaintiff.
• Exemption 5 (Attorney work-product privilege): Defendant properly withheld a document created by an attorney "in the context of an ongoing administrative proceeding that eventually resulted in litigation," as well as a document which discussed State's "'legal strategy in the event of a criminal prosecution.'"
• Exemption 6: Defendant has properly withheld the name of an individual who flew to Hanoi with plaintiff. Plaintiff claims that he may know the identity of the individual in question and that, in the alternative, learning this individual's identity would assist plaintiff in writing his memoirs. However, the fact that plaintiff may know this individual's identity "does not diminish [the individual's] privacy interests.'" Furthermore, "the alleged public interest to which Plaintiff points is simply not the public interest cognizable under" the FOIA.
• Exemptions 6 & 7(C): Defendant properly withheld the name of an individual who traveled with plaintiff to meet President Ho Chi-Minh. Plaintiff's own declaration stating that the individual in question would not object to release of his name in no way calls into question the legitimacy of State's withholding, especially in light of "the continuing controversial nature of travel to North Vietnam during the war and because [the responsive] document is part of the records compiled for the underlying investigation into plaintiff's passport eligibility, and the revocation of his passport during the 1960s.'" Plaintiff again fails to assert a public interest of the sort recognized by the FOIA. As to an FBI legal attaché and two FBI agents, State has failed to indicate whether it attempted to ascertain whether these individuals are alive. Until it does so, the court cannot rule on State's withholdings of these three names.
• Exemption 7 (threshold): State's declaration "clearly establishes that [three documents] were compiled 'in connection with [an] investigation [ ] that focus[ed] directly on specific alleged illegal acts which could result in civil or criminal sanctions.'" Plaintiff claims that State's activities "'were in essence aimed at political objectives, not law enforcement,'" however, the court finds that "[i]n support of his claim, Plaintiff offers only his own self-serving Declaration, which is insufficient to create a genuine issue of material fact regarding the State Department's asserted law enforcement purpose."
13. Long v. IRS, No. 74-724, 2008 WL 4083172 (W.D. Wash. Aug. 29, 2008)
Re: IRS audit statistical information
• Litigation considerations: Defendant's motion for a stay pending appeal is denied. The court finds that "IRS has not demonstrated a likelihood of success on the merits." The court does not accept IRS's argument that portions of the reports are based on data "from only one or two taxpayers [and so] contain undisclosable return information." Additionally, the court holds that because it "finds that the requested documents do not contain return information, denying Defendant's requested stay presents no risk of irreparable harm to any party." Furthermore, the court continued, "if the Ninth Circuit agrees with Defendant's argument, the IRS can perform redactions on future productions."
WEEK OF SEPTEMBER 15Courts of Appeal
1. Missouri Coal. For the Env't Found. v. U.S. Army Corps of Eng'rs, No. 07-2218, 2008 WL 4205798 (8th Cir. Sept. 16, 2008)
Re: Documents concerning Flow Frequency Study
• Vaughn Index: The Corps' Vaughn index "contained all necessary identifying information and stated the applicable exemption." In combination with "the additional information provided in the affidavits, we cannot conclude that the Vaughn index was, on its face, inadequate."
• Exemption 5: Though plaintiff argues that it is "unlikel[y]" that all responsive documents were properly withheld, it is clear that plaintiff's request was "obviously tailored to ferret out disagreement or contradiction that arose in the process of creating the [flow frequency study]. . . . That these documents could reveal the deliberative process . . . can be fairly concluded from the Vaughn index and its supporting affidavits." Furthermore, the court is "not persuaded that the fact that the [flow frequency] report was ultimately released and that some of the information in the final report was contained in the requested documentation affects the deliberative or predecisional nature of the requested documents."
• Segregability: The district court made no ruling on this issue, thus the case is remanded back to the district court for a determination as to whether or not the Corps met its segregability obligations.District Courts
1. Ctr. for Medicare Advocacy v. HHS, No. 05-2266, 2008 WL 4294283 (D.D.C. Sept. 17, 2008)
Re: Records concerning the use of video-conferencing
• Fee Waiver: The court finds that plaintiff has met the requirements for a fee waiver. "[T]he information sought concerns activities and operations undertaken by the government in developing the new video-conferencing hearing system." Although "some of the released documents were brochures and pamphlets submitted by private parties seeking to do business with the federal government," these documents can "provide insight on the options and factors under consideration by the agency as it designed and implemented the new hearings system." Furthermore, although much of the requested material is already publicly available, "plaintiff can make the information more accessible to members of the public who cannot readily locate a particular regulation, provision or report on a government website."
• Exemption 5: Defendant's use of the deliberative process privilege to withhold documents reflecting "advice, recommendations, and suggestions" was proper. "The descriptions of the . . . documents clearly establish that these documents promote [the] objectives" of the privilege. Defendant also properly invoked the attorney-client privilege to protect documents containing "confidential attorney-client communications" relating to matters on which defendant sought legal advice. Plaintiff's challenge to the use of this privilege on the basis that some of the documents are undated "is without merit."
2. Jones v. DOJ, No. 07-852, 2008 WL 4210783 (D.D.C. Sept. 16, 2008)
Re: First-party request
• Litigation considerations: "It is settled in this circuit . . . that exhaustion of administrative remedies in a FOIA case is not a jurisdictional bar to judicial review and, thus, is not a defense properly presented by a Rule 12(b)(1) motion."
• Exhaustion: The court finds that as plaintiff has attested that he did not receive a response to his FOIA request, defendant's motion to dismiss cannot be granted. The court finds that the dispute of material fact is genuine, because "[w]ithout proof that [plaintiff] received [a response to his request from defendant], and in the face of [plaintiff's] statement under penalty of perjury to the contrary, and given the number of individuals and agencies involved in the chain of this disputed communication, it cannot be said that the evidence 'is so one-sided that one party must prevail as a matter of law.'"
3. Schoenman v. FBI, No. 04-2202, 2008 WL 4191056 (D.D.C. Sept. 15, 2008)
Re: First and third-party requests, and requests for records on several organizations
• Exemptions 6 & 7(C): Defendant State Department was previously ordered by the court to provide additional documentation as to its efforts to ascertain whether three individuals whose names were withheld are alive. The State Department is "warn[ed] . . . that, in the future, it is required to make efforts to ascertain an individual's life status before invoking a privacy interest in connection with FOIA Exemptions 6 and 7(C)." As to one of the individuals, defendant has established that it is unable to positively identify the person in question because he is only listed by his last name, which "'is a common one.'" Though the inability of defendant to positively identify this individual would seem to reduce the risk of a privacy invasion by release of his name, defendant's withholding of the name is upheld. If this individual could be identified, he "would have a more than de minimis privacy interest in his name being withheld." Plaintiff has established no corresponding public interest in release of this information. "While Plaintiff thus attempts to dress up his personal interest in discovering which government agents were involved in his passport-related investigation, the information he seeks would, in fact, 'reveal[ ] little or nothing about an agency's own conduct.'" As to one former FBI agent whose name was withheld, defendants were able to ascertain that this individual is less than 100 years old, and therefore cannot be assumed to be dead under the "100 year rule." There is, however, no other identifying information as to this individual. The State Department's decision to withhold this individual's name is upheld. "To the extent that Plaintiff suggests that he would use the withheld information to attempt to locate the FBI agent, his own asserted rationale confirms [the State Department's declarant's] explanation that 'release of the[ ] [FBI agents'] identity could subject them to hostility and unwarranted harassment.'" Release of the former agent's name "'reveals little or nothing about an agency's own conduct.'" As to a second agent whose identity was previously withheld, defendants were able to ascertain that this individual is, in fact, deceased. Therefore, a new release of the document in question has been made to plaintiff which does not redact this individual's name.
4. DeMartino v. FBI, No. 06-0879, 2008 WL 4200135 (D.D.C. Sept. 14, 2008)
Re: Records concerning plaintiff and a criminal investigation
• Adequacy of search: "To the extent that plaintiff is challenging the search for records, he has not stated any facts to question the FBI's declaration establishing . . . that it conducted a search reasonably calculated to locate responsive records."
• Exemptions 2, 3, 6, 7(C), 7(D), & 7(E): "To the extent that plaintiff is challenging FBIHQ's claimed exemptions, he has not pointed to anything in the record to create a genuine issue of material fact on the FBIHQ's well-documented bases for redacting information from the released pages."
• Exemption 7(A): The use of this exemption by the FBI's New York Field Office was appropriate. "Plaintiff does not refute the FBI's evidence that the law enforcement proceeding has not concluded in part because his criminal conviction is not final." Plaintiff's argument that the records should be released "in the 'interest of justice,'" is insufficient; "Exemption 7(A) does not authorize" a balancing of interests by the court. Instead, the FBI's showing "that disclosure of the responsive records could reasonably interfere with pending and anticipated law enforcement proceedings" is enough to sustain its use of the exemption.
• Segregability: Because the FBI did not "describe [seven pages withheld in full] and explain the applicable exemptions," the court cannot grant the FBI's motion for summary judgment as to these pages without further explanation by the FBI concerning these documents.
5. Bruzon v. DEA, No. 07-1393, 2008 WL 4181740 (D.D.C. Sept. 12, 2008)
Re: First-party request
• Exhaustion: "[I]t is uncontested that [plaintiff] filed this lawsuit after the agency had responded to his FOIA request, but before he had exhausted his administrative remedies. Thus, [plaintiff] has failed to establish a condition precedent to, an element of, his FOIA claim."
6. Ercole v. DOT, No. 07-2049, 2008 WL 4190799 (E.D.N.Y. Sept. 10, 2008)
Re: Records pertaining to contracts between government and private contractor
• Mootness: Because it is undisputed that defendants have provided plaintiff with the document he requested, plaintiff's complaint is moot. "[R]ather than complain that the documents he received were inadequate, plaintiff instead argues that he was unhappy with the manner in which he received them. The Court does not have jurisdiction over the relief plaintiff seeks."
7. Nielsen v. BLM, No. 07-1349, 252 F.R.D. 499 (D. Minn. 2008) (adoption of magistrate's recommendation)
Re: Documents pertaining to the Ballardini Ranch and to the legislative history of the White Pine Conservation, Recreation, and Development Act
• Proper party defendant: The court finds that a prior district court ruling from the District of Colorado which classified BLM as a "'constituent bureau'" of the Department of the Interior, and therefore not an agency was "contrary to the intent of Congress." The court further finds that BLM is "an 'administrative unit with substantial independent authority in the exercise of specific functions,'" and therefore qualifies as an "agency" for purposes of the FOIA.
• Res judicata: Although plaintiff "had an aligned interest in obtaining documents related to the attempted acquisition of the Ballardini Ranch property" with a prior requester of these documents, the record does not indicate that the prior requester made his request on plaintiff's behalf. "Further, no evidence was presented to establish that plaintiff sought to control or did control [the prior requester's] decisions in connection with [the prior requester's] FOIA request and subsequent legal action, nor is there any evidence before this Court that the Colorado court took any precautions to protect plaintiff's interests." Therefore, plaintiff's claim is not barred by the doctrine of res judicata.
• Stare decisis: The court finds that defendant's contention that the court should uphold defendant's decision to withhold documents on the basis of the prior court's ruling to that effect is "without merit." " While a decision of a district court in a different district may be considered persuasive authority, this Court is not bound by such a decision under the doctrine of stare decisis to reach the same decision."
• Adequacy of search: The court finds that defendant's search for records concerning the Ballardini Ranch was reasonable. Defendant's declaration details the locations searched, the search terms used, and the search methodology employed. Plaintiff's challenge to defendant's choice of search terms is unfounded; there is no "support for the proposition that a FOIA claimant can dictate the search terms to be used as the benchmark for determining whether an agency's search is reasonable." The court further rejects plaintiff's claim that defendant should have conducted a more extensive search for records concerning the White Pine Act. BLM's decision to search the offices of its Legislative Affairs Group was reasonable, and BLM conducted searches of other offices as well. However, the court finds that defendant employed too early a "cut off" date in its search for responsive documents and must conduct a new search that employs a later cut off date. The court also finds that BLM's "detailed declarations support a finding that [its] search for documents in [BLM Nevada offices] . . . was reasonable, except to the extent that [BLM employed too early a cut off date]." Finally, the court finds that plaintiff did not meet his burden to show that BLM's search was not in good faith.
• Waiver: The fact that the United States Forest Service had previously released a document to plaintiff does not act as a waiver of BLM's decision to invoke a FOIA exemption and withhold that document from plaintiff.
• Exemption 5: BLM's use of the deliberative process privilege to withhold a document which reflected an agency employee's reaction to a newspaper article was proper. The document is predecisional "because it contains the opinion of the author" on the possible impact of public misconceptions concerning an agency program, and [i]t is deliberative because it reflects the consultative process among agency employees on how to protect the ability of an agency to acquire a piece of property . . . and on how to deal with the media's portrayal of its policies. . . . Furthermore, the article is deliberative because disclosing agency communications regarding how to deal with a policy decision based on media reports would impede candid discussion." BLM also appropriately withheld a series of emails containing "discussions among BLM employees" concerning the Ballardini Ranch. Plaintiff's argument that the deliberative process privilege does not apply because BLM did not identify a specific decision, or a specific decisionmaker, and that "the description of the emails did not suggest that they contain drafts, proposals, opinions or advice that would be indicative of a pending policy decision" is "without merit." "[I]t is clear from [BLM's] description that the BLM and Forest Service were engaged in a process leading up to a variety of decisions . . . . The fact that the ultimate decisionmaker of any of these decisions was not identified does not lead this Court to find that no decision or final action was going to occur." BLM also properly withheld a document reflecting discussions on how the agency should react to a proposed action by a county government. BLM's Vaughn index "makes it clear that the BLM had not made a final decision on how to proceed . . . and therefore, the deliberative process privilege was properly invoked to protect the agency's ability to freely explore alternative avenues of action without fear of public scrutiny." Similarly, BLM appropriately withheld an email from the Forest Service to BLM. Plaintiff claims that the email cannot be predecisional because it reflects the Forest Service's final decision, but BLM's Vaughn index indicates that the document reflects the Forest Service's recommendations to BLM. "This inter-agency back and forth . . . is the type of communications that the deliberative process privilege was meant to protect." The court also upholds BLM's withholding of an email discussing BLM's relationship with a county government in Nevada. "Plaintiff argued that [the] email fails to identify a decisionmaker and fails to provide how a decision implicated a new agency policy." However, as the email considers how the agency should interact with a local government it "reflect[s] an ongoing decisionmaking process. If the BLM's 'frank' comments about Washoe County and its officials and its opinions on how to deal with the County were made public, irreparable harm to the agency . . . could result. Further, disclosure of such communications would discourage future candid intra-agency discussions." Defendant's redaction of a dollar-figure amount from a draft document does not demonstrate bad faith on BLM's part and does not indicate that it did not meet its obligation to segregate out factual material from otherwise deliberative documents. Rather, the redaction "qualifies as a simple error." As to another draft document withheld by BLM, the court "finds that the majority of the materials that were redacted . . . constituted opinions and views governed by the deliberative process privilege that were inextricably intertwined with facts." In camera review of this document is not necessary. BLM also properly protected draft documents prepared for BLM's central office concerning the agency's position on the White Pine Act, though there was no final draft that was publicly released. Though the court rejects the position that "successive versions of a document" cannot be released because they "would tend to show the internal development of an agency's position on a policy matter," in this case "the comments were used to come up with a final position on the proposed legislation. Therefore, defendants would not be able to protect themselves from revealing their internal deliberative process via segregation if they were required to produce drafts of documents that were never ultimately released." Plaintiff has offered "only speculation" that there "must be" segregable material within these documents; this is insufficient. In camera review is not required.
WEEK OF SEPTEMBER 22Courts of Appeal
1. Am. Civil Liberties Union v. DOD, No. 06-3140, 2008 WL 4287823 (2d Cir. Sept. 22, 2008)
Re: Photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan
• Exemption 7(C): The court upholds the district court's ruling that Exemption 7(C) does not bar release of photographs of prisoners where identifying characteristics of the prisoners have been redacted. "Even accepting [defendants'] argument that it may be 'possible' to identify the detainees in spite of the district court's redactions, or that there remains a 'chance' that the detainees could identify themselves . . . such speculation does not establish a privacy interest that surpasses a de minimis level for the purposes of a FOIA inquiry. . . . Indeed, because the district court has redacted the Army photos to remove all identifying features, there is no cognizable privacy interest at issue in the release of the Army photos." The privacy rights recognized by Exemption 7(C) must be capable of being tied to particular individuals, and do not apply when the individuals in question are not identifiable. Furthermore, because the photographs depict wrongdoing by government officials, there is a strong public interest in disclosure. Finally, the court finds that the Geneva Convention does not prevent disclosure of the pictures where they are redacted and where release of the pictures is not intended to humiliate those depicted. Thus, there is no need to alter standard FOIA analysis in order to maintain consistency with the dictates of the Convention.
• Exemption 7(F): The court upholds the district court's ruling that Exemption 7(F) cannot be used to prevent release of the responsive photographs based on the claim that release of the photographs could incite acts of violence by terrorist groups against the populations of Iraq and Afghanistan, as well as the members of the United States Armed Services and civilian employees of the government serving in these regions. "The plain language of the phrase 'endanger the life or physical safety of any individual' connotes a degree of specificity above and beyond that conveyed by alternative phrases such as 'endanger life or physical safety.' It is true that the statute does not read 'any named individual,' and we thus understand it to include individuals identified in some way other than by name. . . . This does not, however, mean that the 'individual' contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legislature's choice to condition the exemption's availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity." In the court's view, "defendants' argument that 'any individual' in exemption 7(F) must, due solely to the brute force of the word 'any,' be interpreted to extend its protection to all persons, whether or not they can be identified, no matter how remote they are from the law enforcement investigation in which the disputed records were compiled, and no matter how small the risk to any particular individual, is incorrect," especially in light of the fact that the FOIA's exemptions are to be narrowly construed. "We hold that in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." In the court's view, "Congress has always envisioned exemption 7(F) as a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence."District Courts
1. Wiesner v. FBI, No. 07-1599, 2008 WL 4330249 (D.D.C. Sept. 23, 2008)
Re: First-party request
• Adequacy of search: "[P]laintiff's bad faith argument is specious." The representations that plaintiff claims were made to him by an FBI employee, even if accurate, do not show bad faith on the FBI's part. Indeed, plaintiff's contact with the agency demonstrates instances in which the FBI went beyond its statutory requirements in order to better assist him. However, the court finds that the "explanation regarding the adequacy of the FBI's search with respect to the additional search terms supplied by the plaintiff's attorney . . . is too vague for the Court to conclude that the search performed by the FBI was sufficient." The FBI has not provided ample justification for its decision not to conduct further searches using the additional terms supplied by plaintiff's counsel. The FBI's citation to its own internal procedures is insufficient. Additionally, the FBI's declarant did not support his contention that these additional searches would have proved fruitless.
2. Brehm v. DOD, No. 07-1739, 2008 WL 4323487 (D.D.C. Sept. 23, 2008)
Re: First-party request
• Proper party defendant: Plaintiff's claim against the CIA's Information and Privacy Coordinator is dismissed. The FOIA does not provide a cause of action against individuals.
• Exhaustion: Plaintiff's claim against the Department of Defense is dismissed. There is no evidence of plaintiff having submitted a FOIA request to DOD.
• Adequacy of search: The court cannot grant the CIA's motion for summary judgment because it finds that "the record is wholly devoid of any specifics about the search for records." The CIA's declarant "does not provide any specific knowledge about the searches, and the record does not contain declarations from anyone with such knowledge."
3. Manley v. Dep't of the Navy, No. 07-721, 2008 WL 4326448 (S.D. Ohio Sept. 22, 2008)
Re: Records related to Naval Academy's Honor Concept
• Fee waiver: The court determines that plaintiff is entitled to a public interest fee waiver. The requested records "relate to the operations or activities of the Naval Academy." Furthermore, "plaintiff requested records that serve to objectively document the actual implementation and operation of the Honor Concept at the U.S. Naval Academy -- documents that are not readily available to the general public." Defendant has failed to substantiate its assertion that "such information is already publicly available." Furthermore, "[p]laintiff's explanation is reasonably specific as to how the Honor Concept documents sought would likely contribute to the public's understanding of the Naval Academy's operations or activities." The court rejects the Navy's argument that plaintiff's fee waiver request should be denied because plaintiff has only shown that he will disseminate the requested information to "'a narrow segment of interested persons,'" as opposed to "a 'reasonably broad audience of persons.'" Prior courts have found that "'[p]ublic understanding is enhanced when information is disclosed to the subset of the public most interested, concerned, or affected by a particular action or matter.'" Moreover, "[p]laintiff has also adequately and credibly explained his planned methods of disseminating this information to the public." Finally, the court finds that "[t]he requested information would not duplicate information already in the public domain and would provide the public with the objective foundation from which to assess how the Honor Concept is actually implemented and administered in practice."
4. Schoenman v. FBI, No. 04-2202, 2008 WL 4287506 (D.D.C. Sept. 22, 2008)
Re: First and third-party requests, and requests for records on several organizations
• Litigation considerations: Plaintiff's motion to strike defendant's declaration is denied. The motion "misunderstands the personal knowledge requirements for FOIA declarations." The court finds that "a declarant is deemed to have personal knowledge if he has a general familiarity with the responsive records and procedures used to identify those records[;] the declarant is not required to independently verify the information contained in each responsive record as Plaintiff suggests." There is simply no requirement that a declarant have been personally involved in the creation of a withheld document, a requirement that would be "particularly impractical" in a case such as this one, involving a document that is 38 years old. "Such a standard is therefore both legally incorrect and practically illogical." Plaintiff will also not be permitted to file a substantive response to defendant's declaration beyond his motion to strike. "Plaintiff squandered that opportunity when he moved to strike in part [the Navy's] Declaration rather than filing a substantive response. . . . Plaintiff's briefing should not be a moving target; Plaintiff is not permitted to continuously raise new arguments in additional filings."
• Exemption 7 (threshold): The Navy has established a "rational nexus" between the withheld document and the Naval Criminal Investigative Service's (NCIS) law enforcement duties. In particular, the document "contains information regarding an investigation into allegations in two areas of federal and military crimes: alleged war crimes and alleged military desertion."
• Exemption 7(C): The Navy's latest declaration indicates what steps NCIS took to ascertain whether individuals whose names it withheld are still alive. Defendant is cautioned that "in the future, it is required to make [such] efforts . . . before invoking a privacy interest." The court finds that the Navy's efforts in this regard were reasonable. As to one individual, the Navy has been able to ascertain that he is deceased, and therefore the Navy will release his name. As to another, the Navy has been unable to make this determination, due to an inability to definitively establish the individual's identity. Though this fact may call into question how much of a privacy interest would be implicated by release of the name, "[t]he court nevertheless concludes that the Navy may withhold the name of the individual. . . . Significantly, whether the individuals at issue are alive or deceased is not dispositive of the privacy interest versus public interest balancing required by FOIA Exemption 7(C)." Prior cases have employed a categorical rule allowing the withholding of the identities of private citizens mentioned in law enforcement files "'unless disclosure is "necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity."'" Plaintiff has made no such showing, nor has he "identified a public interest in the production of the names." Moreover, "to the extent that Plaintiff has attempted to identify a purported public interest in the disclosure of names withheld from documents by other Defendant agencies in this action, he has not identified the type of public interest cognizable under the FOIA." Plaintiff's purported public interest -- his own personal interest in contacting the individuals involved -- does not qualify as a public interest under the FOIA. However, the Navy will be required to supplement the record if the Office of Personnel Management or some other source is able to determine that this individual is in fact deceased. As to a third individual whose identity was withheld, NCIS was able to positively ascertain that he is alive, therefore the withholding of his name was appropriate.
5. Yelder v. DOD, No. 07-1639, 2008 WL 4326990 (D.D.C. Sept. 21, 2008)
Re: First-party request
• Exhaustion: On one of her requests, plaintiff failed to file an administrative appeal of the agency's response. Therefore, her complaint is dismissed as to this request for failure to exhaust administrative remedies.
• Adequacy of search: "[D]efendants have demonstrated, through detailed affidavits, that their searches were satisfactory. [Defendants] followed the standard procedure in place for FOIA requests, utilizing computerized searches of an index to identify responsive documents." Plaintiff claims that additional responsive documents exist, but "mere allegations of additional documents are not enough to overcome defendants' demonstrations that their searches were adequate."
• Exemption 3: Defendants properly treated 28 U.S.C. § 652(d), which "'prohibit[s] disclosure of confidential dispute resolution communications,'" as an Exemption 3 statute. As such, defendants correctly withheld a letter to a mediator whose release would have divulged the government's position in the mediation.
• Exemption 6: Defendants properly redacted photographs whose release would have identified various third parties. Defendants "redacted the pictures because to do otherwise would be a clearly unwarranted invasion of personal privacy. Indeed, intimate photographs such as these create a more palpable threat to privacy than a name or an address." Furthermore, "there has been no allegation that the public interest demands the disclosure of these very personal photographs."
6. Simmons v. U.S. Attorney Gen. Dep't of Justice, No. 08-2522, 2008 WL 4283411 (D.S.C. Sept. 17, 2008) (adoption of magistrate's recommendation)
Re: Grand jury proceedings establishing jurisdiction, information on status of U.S. Highway 501 as federal property
• Exhaustion: Plaintiff has not made a request for records to any federal agency, therefore his complaint is dismissed for failure to exhaust administrative remedies. Furthermore, "plaintiff is not entitled to court records from his criminal case. A federal court is not subject to the federal Freedom of Information Act."
WEEK OF SEPTEMBER 29District Courts
1. Unidad Latina en Acción v. DHS, No. 07-1224, 2008 WL 4414195 (D. Conn. Sept. 30, 2008) (ruling upon in camera review of documents)
Re: Documents concerning immigration enforcement action
• Exemptions 2 & 7(E): DHS's decision to withhold computer coding and web site information from fugitive arrest reports was proper. This information is internal to DHS and its release "would disclose information that might significantly risk circumvention of the law." However, DHS should provide information from this database concerning the gender of the individuals targeted. DHS also appropriately withheld records from a "target apprehension chart" that "were compiled for law enforcement purposes and contain operational and internal planning information that reveal law enforcement techniques for such investigations." Plaintiff's contention that this information has previously been released fails in light of the fact that what has already been released did not include "the highly specific information contained in the withheld documents that, if disclosed, would reveal not only the precise investigative or surveillance techniques immediately preceding the operation but also operation-specific information that could allow unapprehended targets to evade law enforcement personnel in the future." Furthermore, "[t]he Court is convinced that Plaintiffs have not satisfied the requisite burden of production with respect to the law enforcement techniques they allege are publicly available." The court further finds that disclosure of the number assigned to identify DHS investigative teams would not reveal law enforcement techniques and must be released. DHS properly withheld cell phone numbers of law enforcement personnel. Release of this information "could significantly risk circumvention of the law."
• Exemption 5: The court finds that DHS improperly withheld a document that "merely lists the purely factual information that would be needed to respond" to "an inquiry from the New Haven mayor." The court finds the document to be "neither 'pre-decisional' nor 'deliberative.'" Likewise, draft responses to the inquiry provide only factual information and must be released for the same reason. Lastly, a list of "tasks" is not protectible.
• Exemption 7(C): DHS appropriately withheld information that would have identified individuals linked to its operation. "The Court finds that no . . . significant public interest exists in disclosing this personally identifiable information." DHS also properly withheld the cell phone numbers of law enforcement personnel. There is no "discernible public interest" in disclosure and there is a privacy interest in "avoiding hostility and unwarranted harassment." Additionally, DHS correctly withheld the identities of individuals who consented to DHS agents entering their premises. Plaintiffs have not shown that this information is already in the public domain.
2. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL 4405342 (D.D.C. Sept. 30, 2008)
Re: Records concerning specific visitors to White House or to Vice Presidential residence
• Adequacy of search: Defendant's search of the Access Control System (ACR) records and its search of records at the Vice President's residence were adequate.
• Agency records: Workers and Visitors Entry System ("WAVES") records transferred from DHS to the White House remained under DHS's control, and are therefore still agency records subject to a FOIA request, and must be searched.
• Litigation considerations: Plaintiff has not shown evidence of bad faith on defendant's part. Therefore, discovery, which "is not common in FOIA cases," will not be allowed.
3. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL 4405341 (D.D.C. Sept. 30, 2008)
Re: Records concerning specific visitors to White House or to Vice Presidential residence
• Adequacy of search: Because DHS's search did not cover records over which the court finds it has control, its search cannot yet be considered adequate.
• Exemptions 2, 7(E), & 7(F)/Glomar: The court finds that defendant's use of these exemptions and the Glomar response to withhold Sensitive Security Records was not appropriate.
• Exemptions 6 & 7(C): The court finds that DHS inappropriately redacted the names of staff members who requested White House access for visitors about whom information was requested by plaintiff. "Requester names would shed light on why the visitor came to the White House. . . . Given the public interest in the information and the relatively minor privacy invasion associated with this disclosure, the Court does not consider release of the requester's name to be within the scope of either Exemption 6 or Exemption 7(C)."
4. Judicial Watch, Inc. v. U.S. Secret Serv., No. 06-310, 2008 WL 4405340 (D.D.C. Sept. 30, 2008)
Re: White House visitor logs showing visits from Jack Abramoff
• Litigation considerations: Plaintiff's motion to compel compliance with a prior Stipulated Agreement (SA) is denied. Plaintiff has not proven that additional Access Control Record System (ACR) records exist. "Representations in newspaper stories or elsewhere of other Abramoff visits do not prove the existence of undisclosed ACR records, as ACR records are not created for every single White House visitor." As to the Workers and Visitors Entry System (WAVES) records transferred to the White House, though the court rejects defendant's argument that such records were not subject to plaintiff's request, defendant's position "at that time may well have been a good-faith interpretation of the [SA]." Additionally, defendant's redaction of Abramoff's date of birth and social security number "was not a material breach of the SA. The information that plaintiff seeks is not Abramoff's personal details, but rather records of his White House visits." Defendant's "scratching out" one of Abramoff's visits from a paper summary of WAVES records also did not breach the SA because "the summary itself did not exist at the time of the [SA]." Furthermore, as it was, in fact, a summary, it "cannot fairly be considered a 'responsive record' subject to the [SA]."
• Adequacy of search: "Despite plaintiff's claims that it is 'astounding' and 'preposterous' that defendant's ACR search would not have uncovered other Abramoff visits, the fact that other records were not produced does not in and of itself show that defendant's search was not reasonable. On the basis of its good-faith declarations, defendant has complied with plaintiff's FOIA request as to ACR records by making a reasonable search."
• Agency records: The court, citing the four factors governing agency records determination from its previous discussion in Citizens for Responsibility and Ethics in Washington v. DHS, 527 F. Supp. 2d 76, 92-98 (D.D.C. 2007), finds that WAVES records are under the Secret Service's "control" even after they have been transferred to the White House and deleted from internal Secret Service files. In spite of the transfer, defendant "seemed able to use or dispose of the WAVES records as it saw fit. Defendant appears to use WAVES records in whatever way it sees necessary." Additionally, "the Secret Service relies regularly upon the WAVES records." Furthermore, "WAVES records appear to be integrated into the Secret Service system. . . . The fact that the records were kept in an agency file system at the time that they were being regularly accessed and utilized . . . is enough for this Court to consider them integrated into defendant's systems."
5. Porter v. CIA, No. 07-133, 2008 WL 4394052 (D.D.C. Sept. 30, 2008)
Re: First-party request
• Litigation considerations: "[I]f Plaintiff's November 2005 request for information is considered an appeal of Defendant's 1998 decision of his 1997 FOIA request, this appeal is barred by the statute of limitations because Plaintiff initiated it more than six years after his cause of action first accrued." Plaintiff may not "resurrect" time-barred claims. "If Plaintiff's version of the law is correct, the statute of limitations would be rendered a nullity, as it could never prevent a claim from being filed."
• Exhaustion: If plaintiff's November 2005 request is treated as a wholly new request for records, his complaint is dismissed for failure to exhaust his administrative remedies. Plaintiff did not file an administrative appeal of the CIA's response to his request. Plaintiff's implicit claim that he has the right to "resurrect" a prior request and thereby be excused from his duty to exhaust administrative remedies is incorrect. "FOIA does not include an exception to the exhaustion requirement for new claims that reference time-barred ones."
6. Kurdyukov v. U.S. Coast Guard, No. 07-1131, 2008 WL 4381674 (D.D.C. Sept. 29, 2008)
Re: First-party request and request for records concerning ship "China Breeze"
• Litigation considerations: "The legality of the Coast Guard's [law enforcement] action is far beyond the scope of this FOIA action and in no way pertains to the issues presented here."
• Adequacy of search: The court finds that the Coast Guard's search was adequate. "An agency's search is not presumed unreasonable because it fails to find all the requested information. . . . Furthermore, a requester's challenge requires that he present evidence rebutting the agency's initial showing of a good faith search. . . . The plaintiff has failed to meet this evidentiary burden."
• Exemption 2: The Coast Guard properly redacted information from a spreadsheet concerning its investigation of ships other than the China Breeze. Release of this information "'may show geographic areas where there [is] a concentration of seizures . . . [and] the times of year that certain surge operations have been conducted in the past'" and could therefore be used to undermine the effectiveness of Coast Guard law enforcement operations. However, the court finds that defendant did not provide enough information concerning its decision to withhold portions of an Intelligence Information Report for the court to determine whether defendant's actions were appropriate. Defendant is directed to file a renewed Motion for Summary Judgment to address this deficiency.
• Exemption 7: The court directs defendant to file a renewed Motion for Summary Judgment that supports its withholding of information from the Intelligence Information report pursuant to Exemption 7 and further specifies which subpart of Exemption 7 defendant is relying upon.
• Exemption 7(C): Defendant properly withheld the name of a Coast Guard employee from a Case Update Form. "The employee whose name is withheld certainly has a privacy interest in avoiding the disclosure of his or her name." Plaintiff has demonstrated no corresponding public interest in release of this name.
7. Maydak v. DOJ, No. 00-0562, 2008 WL 4381670 (D.D.C. Sept. 29, 2008)
Re: First and third-party requests
• Litigation considerations: The Bureau of Prisons' Motion for Reconsideration is denied. The court finds that "BOP has provided no evidence to warrant reconsideration" of the court's prior ruling that it had failed to justify its use of exemptions. However, the court will grant BOP's renewed Motion for Summary Judgment. Plaintiff has failed to contest this motion or to seek additional time in which to do so.
• Attorney fees: Plaintiff's motion for attorney fees is denied; as a pro se party, he is not entitled to attorney fees. Additionally, plaintiff has not shown that he is entitled to an award of litigation costs. Plaintiff has not shown any public benefit from the release of records to him. Instead, the record shows that plaintiff is the sole beneficiary of release. "[A] fee award is 'generally inappropriate' where disclosure of information is sought for personal or private commercial benefit." Finally, there is no showing that BOP's position lacked "'a reasonable basis in law'" or that BOP acted in bad faith. Because the court declines to assess litigation costs against defendant, "there is no basis to grant the plaintiff's request for written findings."
8. Citizens for Responsibility and Ethics in Washington v. NARA, No. 07-48, 2008 WL 4381549 (D.D.C. Sept. 29, 2008)
Re: Records concerning request that Secret Service retain copies of Workers and Visitors Entrance System (WAVES) records even after those records are transferred to the White House; any records concerning Secret Service practice of deleting these records
• Adequacy of search: "[D]efendant has demonstrated 'beyond material doubt . . . it has conducted a search reasonably calculated to uncover all relevant documents.'"
• Exemption 5 (deliberative process, attorney work-product, and attorney-client privileges): As to one of the withheld documents, the court is unable to determine whether NARA's withholding was proper, because "the document is silent on whether it relates to discussions between subordinates and superiors or was prepared in order to assist an agency decision-maker in arriving at his decision, rather than to support a decision already rendered." NARA must submit additional documentation as to its withholding of this document. As to two other documents, NARA's decision to withhold them under the attorney work-product privilege was proper. NARA "could reasonably have anticipated litigation over the question of whether WAVES and related records were presidential or federal, considering that FOIA requests for these records had already been submitted. . . . Further, the documents were written by one of the defendant's attorneys or sent to him as the defendant's General Counsel in response to specific questions counsel posed related to the legal status of WAVES records." As to several other documents withheld pursuant to Exemption 5, the court finds that in camera review of the documents is necessary. "This review is required because it is not clear from the Vaughn index whether the documents were drafted by NARA in formulating policy or in discharging its statutory duty to act on agency proposals regarding the disposition of its records. . . . In addition, it is not clear from the filings whether the documents were prepared in contemplation of litigation." A document containing a Microsoft Office PowerPoint presentation related to the issue of retention of WAVES records was properly withheld pursuant to the deliberative process privilege. "The presentation contains inter-agency recommendations and policy options." Pursuant to the attorney-client privilege, NARA properly withheld documents that reflect communications between NARA and Department of Justice attorneys "on pending litigation or responses by NARA staff to NARA's General Counsel concerning questions about matters related to . . . litigation." NARA also properly withheld documents which solicited and contained advice from DOJ attorneys concerning the WAVES records. Pursuant to the deliberative process privilege, NARA also properly withheld documents which contain "solicited comments and information from NARA and other government attorneys about a legal issue and 'reflect a fluid and evolving exchange of ideas.'" Similarly, NARA's use of Exemption 5 to withhold documents that "consist of opinions and recommendations of NARA's staff" was proper.
9. Gerstein v. CIA, No. 06-4643, 2008 WL 4415080 (N.D. Cal. Sept. 26, 2008)
Re: Records related to unauthorized disclosures of classified information
• Adequacy of search: Defendant NSA's declaration "is 'reasonably detailed,' and 'nonconclusory'; there is no evidence it was submitted in bad faith, and it demonstrates that NSA conducted a search 'reasonably calculated to uncover all relevant documents.'" Plaintiff's argument that additional documents provided to him in response to a previous request should also have been produced in response to this request "is unavailing."
• Waiver: Defendant CIA did not waive its right to claim Exemption 2 as the basis for some of its withholdings as a result of its failure to raise this claim in its initial motion. This omission was inadvertent, and "[t]he Court finds [that] the CIA has made an adequate showing as to excusable neglect and further finds [that plaintiff] has incurred no prejudice from the delay."
• Litigation considerations: The declaration submitted by the Justice Department's Office of Professional Responsibility (OPR) is insufficient for the court to determine whether documents which were withheld pursuant to Exemptions 2 and 6 contain information withheld pursuant to other exemptions as well. Furthermore, OPR did not provide the court with a sufficiently detailed Vaughn index for the court to judge the propriety of OPR's withholdings. OPR is directed to supplement its filings to the court.
• In camera review: The court is not persuaded that in camera review is required. Where, as noted, defendant agencies have failed to provide the court with sufficient information, those defendants will be given an opportunity to supplement their current filings. The court will utilize this remedy, rather than ordering in camera review. Relatedly, it would be "premature" for the court to order discovery with regard to these shortcomings.
• Exemption 1: Defendant National Reconnaissance Office's (NRO) Vaughn index "contains a reasonably detailed description of the document and facts sufficient to establish Exemption 1's applicability to the withheld document." NRO's declarant stated that "'[r]elease of [the withheld] document would . . . allow our enemies to focus their contermeasure efforts to thwart the confirmed capabilities of our satellites, thus causing great damage to our national security.'"
• Exemption 3: Defendant NSA properly applied § 6 of 50 U.S.C. § 402 to withhold documents that "concern[ ] a 'function' of the NSA and contain 'information with respect to the activities thereof.'" The court finds that "the NSA has described the nature of the intelligence activity implicated by each of the withheld documents with sufficient specificity to show that each such document falls within the scope of the statute." Defendant CIA properly relied on 50 U.S.C. § 403g to withhold CIA file numbers on a document. File numbers qualify as "'information concerning the CIA's internal structure.'" Similarly, CIA appropriately utilized this statute as well as 50 U.S.C. § 403-1(i)(1) to withhold documents which discussed the agency's efforts to prevent unauthorized disclosures. This information constitutes protected CIA "'intelligence methods.'" However, the CIA has not provided sufficient justification of its decision to withhold documents referred to it by the Department of Justice. The court finds that the CIA's declaration does not "'describe the justifications for nondisclosure with reasonably specific detail.'" Furthermore, "the CIA's proffered rationale for withholding said documents is conclusory and thus insufficient . . . . Further, due to the CIA's treatment of the documents as a group rather than a discussion of each individual document, the Court is unable to determine which exemption, of those exemptions listed, the CIA may be asserting with respect to each of the particular documents, much less whether any asserted exemption properly applies to each such document." The CIA will be given an opportunity to submit a more detailed affidavit.
• Exemption 5 (deliberative process privilege): The Justice Department appropriately withheld draft documents, many of which included handwritten marginal notes, as well as e-mails discussing the preparation of a report by the Attorney General to Congress. DOJ also utilized Exemption 5 to withhold a variety of documents containing comments and proposed revisions to agency positions on various issues. "The disclosure of any of the subject materials, and particularly the internal assessments and recommendations contained in memoranda and memorialized in documents emanating from working groups, would expose the . . . decisionmaking process in a way that would 'discourage candid discussion within the agency.'" Similarly, DOJ's Criminal Division correctly withheld documents reflecting comments and recommendations concerning the issue of unauthorized leaks. The court finds that the "documents were 'prepared in order to assist an agency decisionmaker in arriving at his decision.'"
10. Edwards v. Office of Personnel Mgmt., No. 07-2550, 2008 WL 4381978 (D. Kan. Sept. 26, 2008)
Re: First-party request
• Litigation considerations: Plaintiff's motion to reconsider the court's earlier ruling ordering a stay in the proceedings while the Office of Personnel Management completes the administrative processing of plaintiff's request is denied. Plaintiff has not identified a change in controlling law, nor has he identified any new evidence requiring a reconsideration by the court. "Plaintiff, through his motion to reconsider, essentially seeks a second chance to have the Court review the same and similar arguments and allegations concerning Defendant's alleged delay of the administrative process." Furthermore, "Plaintiff has not shown that the Court must reconsider its Order to correct clear error or prevent manifest injustice."
11. Kurdyukov v. DEA, No. 07-1060, 2008 WL 4356564 (D.D.C. Sept. 25, 2008)
Re: First and third-party requests
• Exhaustion: "An agency's failure to comply with the FOIA's statutory time limits does not relieve a requester of his obligation to exhaust his administrative remedies." Had plaintiff filed administrative appeals, this would have given the agency an opportunity to review the actions taken at the initial processing stage in order to correct any errors which might have been made.
12. Jefferson v. BOP, No. 05-848, 2008 WL 4356952 (D.D.C. Sept. 24, 2008)
Re: First and third-party requests, requests for copies of BOP policy statements
• Adequacy of search: "Plaintiff's reliance on the results of a search to assess its adequacy is misplaced." Defendant BOP's declaration establishes that it searched the only database likely to contain responsive documents. BOP's reading of plaintiff's request as asking for current policy statements (as opposed to prior, outdated ones) was reasonable. Defendant Office of the Inspector General has also adequately explained its choice of which databases to search for responsive records. Finally, the FBI's choice of cut-off date for its search was reasonable in light of the known facts concerning the subject of the request in question and the specific nature of plaintiff's request.
• Agency records: "[T]he Federal Register notice that Plaintiff seeks is maintained by the Federal Register and is not a document maintained by the BOP."
• Litigation considerations: Plaintiff did not obtain judicial relief of a sort that would make him a prevailing party in this action. Thus, plaintiff is not entitled to an award of litigation costs.
13. Bartholomew v. BOP, No. 07-1204, 2008 WL 4400170 (M.D. Pa. Sept. 23, 2008)
Re: First-party request
• Litigation considerations: Because plaintiff was incarcerated in a facility located in the Middle District of Pennsylvania at the time he filed suit, venue is proper in this court, even though he has since been transferred to a different institution.
• Exhaustion: Because there is no evidence of plaintiff having submitted a request for his Presentence Report, he did not exhaust his administrative remedies. Therefore, his claim is dismissed.
14. Bonner v. SSA, No. 06-2051, 2008 WL 4369981 (D.D.C. Sept. 23, 2008)
Re: Third-party requests
• Adequacy of search: The court finds that it is undisputed that defendant Department of State conducted an adequate and reasonable search.
15. Talbot v. CIA, No. 07-277, 2008 WL 4343787 (D.D.C. Sept. 23, 2008)
Re: Requests for records about former CIA agents
• Waiver: The CIA's prior release (pursuant to the provisions of the JFK Assassination Records Collection Act) of aliases used by the subjects of plaintiff's request "does not establish the existence or non-existence of State Department records under [those aliases]. Indeed, one agency's acknowledgment of a document (no matter its origin) does not constitute an official disclosure sufficient to negate the other agency's invocation of a FOIA exemption." Additionally, plaintiff's request, seeking all aliases used by the subjects, and not just those previously released pursuant to the JFK Records Act, means that plaintiff is not seeking merely the same information previously released by the CIA.
• Exemptions 1 & 3/Glomar: "The State Department withheld information about records using aliases of former CIA agents because the disclosure of the very existence or non-existence of that information would reveal intelligence sources and methods, and is therefore protected from disclosure under FOIA Exemptions 1 and 3. In the national security context, an agency's justification for invoking a FOIA exemption is sufficient if the agency's position, as detailed in affidavits, appears 'logical' and 'plausible.'" In this case, the existence or non-existence of the records in question is classified. Furthermore, because even the acknowledgment of the existence of information responsive to plaintiff's request "'can reasonably be expected to lead to unauthorized disclosures of intelligence sources and methods,'" the State Department's Glomar response is also supported by an Exemption 3 statute, 50 U.S.C. § 403-1(i)(1). Under this law, the Director of National Intelligence is instructed to "'protect intelligence sources and methods from unauthorized disclosure.'" (posted 10/31/2008)
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