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Summaries of New Decisions - November 2009

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 November 2009.

WEEK OF NOVEMBER 2

District Courts

1. Zavala v. DEA, No. 08-2215, 2009 WL 3617481 (D.D.C. Nov. 4, 2009) (Friedman, J.)

Re: First-party request; investigative records

• Adequacy of search: The court finds that DEA's search was adequate. Though plaintiff claims that the agency should have located additional responsive documents, "[i]t is settled law that the results of a search do not determine whether the search is adequate." Rather, "the Court concludes that the methods by which the DEA staff searched for responsive records were reasonable under the circumstances. Plaintiff's speculation as to the existence of additional records, absent support for his allegations of agency bad faith . . . does not render the searches inadequate."

• Exemption 2: DEA properly withheld Geographical Drug Enforcement Program (G-DEP) codes and NADDIS numbers. These codes and numbers provide identifiers for specific suspects and information about their alleged crimes. Release of the former "could help a suspect 'identify priority given to narcotic investigations, types of criminal activities, and violator ratings,'" while release of the latter would provide a requester with "'a means of finding out not only drug violator information about the subject but also personal information about [him], relatives and any third parties identifiable with the violator.'" DEA also properly withheld Originating Agency Identification numbers (ORI). These numbers "are 'internal to law enforcement agency operations' and their 'disclosure could enable violators to gain unauthorized access to, as well as compromise data in, law enforcement communications systems.'" Finally, DEA also appropriately withheld internal telephone and fax numbers.

• Exemption 7 (threshold): DEA has demonstrated that the responsive documents, which were compiled in the course of its investigation of plaintiff on drug charges, qualify as law enforcement records.

• Exemption 7(C): DEA properly withheld the identities of its own agents, other DEA personnel, as well as a variety of other state and federal law enforcement officers. Plaintiff claims that DEA agents fabricated some of their reports, but his allegations are wholly unsubstantiated, and therefore "'would not warrant a belief by a reasonable person that impropriety might have occurred.' . . . Moreover, it is settled that the public interest in disclosure 'does not include helping an individual obtain information for his personal use' to overturn a conviction."

• Exemption 7(D): DEA has established that it received information responsive to plaintiff's request from state, local, or foreign agencies under express grants of confidentiality. "[T]his showing is sufficient to justify its decision to withhold this information under Exemption 7(D)." DEA also received information concerning plaintiff under implied grants of confidentiality. "Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides information to investigators."

2. United Am. Fin., Inc. v. Potter, No. 06-1023, 2009 WL 3583567 (D.D.C. Nov. 3, 2009) (Bates, J.)

Re: Documents pertaining to allegations of identity theft scam

• Exemption 5 (deliberative process privilege): USPS appropriately applied this exemption to protect e-mails reflecting internal deliberations about whether to proceed with its investigation and pursue charges against plaintiff.

• Exemption 6: Defendant properly redacted the name and phone number of a private individual that appeared on a responsive document. Release of this information "would be a 'clearly unwarranted invasion of personal privacy.'"

• Exemption 7 (threshold): Because defendant OIG used Exemption 7 for documents compiled in connection with its investigation of plaintiff on both civil and criminal fraud charges, the documents in question meet the Exemption 7 threshold, even though no charges were ultimately brought against plaintiff.

• Exemption 7(C): Defendant has not established that its employees who investigated plaintiff have a privacy interest in their identities. The declarations "set forth no factual basis to support any concerns of harassment, intimidation, or physical harm." Furthermore, "[t]his Court has previously recognized a public interest 'in disclosing the names of employees and agents who worked on [a] case since they may be able to provide valuable information in the context of a related civil suit.'"

• Exemption 7(D): The Court notes that the Inspector General Act bars identification of the identity of an employee who makes a complaint or provides information to investigators without that employee's consent. This, coupled with the pendency of the proceedings, is enough to support an implied grant of confidentiality for purposes of Exemption 7(D).

3. Pailes v. U.S. Peace Corps, No. 08-2214, 2009 WL 3535482 (D.D.C. Nov. 2, 2009) (Bates, J.)

• Exhaustion: "A search of the Peace Corps' FOIA and Privacy Act databases yielded neither an outstanding FOIA or Privacy Act request nor a pending administrative appeal filed by plaintiff." Thus, plaintiff has failed to exhaust his administrative remedies and his FOIA claim is dismissed.

4. Hantzis v. Grantland, No. 08-2190, 2009 WL 3490757 (D.D.C. Oct. 30, 2009) (Kollar-Kotelly, J.)

Re: First-party request

• Exhaustion: Because DEA acknowledged plaintiff's request before plaintiff added the FOIA claim to his lawsuit, plaintiff has not exhausted his administrative remedies. Thus, plaintiff's FOIA claim is dismissed without prejudice.

5. Barnett v. Obama, No. 09-0082, 2009 U.S. Dist. LEXIS 101206 (C.D. Cal. Oct. 29, 2009) (Carter, J.)

Re: Allegations pertaining to President Obama's eligibility for office

• Proper party defendant: All of the defendants in this case are individuals, not federal agencies. Only federal agencies are proper defendants to a FOIA lawsuit.

6. Trevino-Garcia v. Univ. of Tex. Health Sci. Ctr.-Sch. of Med., No. 09-0572, 2009 WL 3464865 (W.D. Tex. Oct. 19, 2009) (Rodriguez, J.)

Re: First-party request

• Proper party defendant: The federal FOIA does not apply to the actions of state agencies.

WEEK OF NOVEMBER 9

District Courts

1. Massi v. DEA, No. 09-538, 2009 WL 3756636 (D.S.C. Nov. 10, 2009) (Currie, J.) (adoption of Magistrate's Report and recommendation)

Re: Records filed by Walgreens with DEA

• Exemption 4: Because the court determines that the information submitted by Walgreens to DEA is "virtually identical" to information produced by Walgreens in other litigation, "the court finds that DEA's conclusion that Walgreens would likely suffer substantial harm to its competitive position as a result of the public disclosure of this information was in error." The court also finds that DEA "has made no compelling argument . . . that the quality of future information [it receives from Walgreens] will be reduced by the disclosure of information that Walgreens has already placed into the public domain."

2. Schoenman v. FBI, No. 04-2202, 2009 WL 3720050 (D.D.C. Nov. 9, 2009) (Kollar-Kotelly, J.)

Re: First and third-party requests

• Litigation considerations: Plaintiff's motion to intervene in the instant case is denied. Plaintiff has not shown that he is entitled to intervene as a matter of right. "He has not set forth any specific interest with respect to the instant FOIA action nor has he explained how disposition of the instant action may impede his ability to protect any specific interest of his own." Plaintiff has also not shown that he has standing under Article III of the Constitution. Additionally, plaintiff has "failed to demonstrate that he has met the threshold requirements necessary for permissive intervention. . . . Moreover, in light of the parties' joint opposition to [plaintiff's] motion and the untimely nature of his request to intervene, the Court finds that permitting intervention at this late stage would likely lead to undue delay and prejudice the original parties' rights." As a result, plaintiff's additional motions for rehearing en banc and to enforce a consent decree are also denied.

3. United States v. Rhines, No. 01-00310, 2009 U.S. Dist. LEXIS 104380 (M.D. Pa. Nov. 9, 2009) (McClure, J.)

• Re: First-party request

• Litigation considerations: Plaintiff's letter to the court, asking it to "honor" his FOIA request to the Department of Justice, does not constitute a valid basis for judicial action by the court.

4. Shield Our Constitutional Rights & Justice v. Hicks, No. 09-0940, 2009 WL 3747199 (D. Md. Nov. 4, 2009) (Chasanow, J.)

• Proper party defendant: The federal FOIA does not apply to state agencies.

5. McLaughlin v. DOJ, No. 06-2048, 2009 WL 3711004 (D.D.C. Nov. 4, 2009) (Collyer, J.)

Re: First-party request and request for records concerning manufacture of methamphetamine

• Waiver: Though plaintiff "contends that certain withheld information is in the public domain," he has not met his burden of proof on this issue by "'pointing to specific information in the public domain . . . that appears to duplicate that being withheld.'" Furthermore, even if defendant may have disclosed certain information as part of a constitutionally required disclosure to an individual party, this does not prevent defendant from asserting exemptions when the same information is requested through the FOIA.

• Segregability: The court finds that defendant has made a sufficient showing that it conducted a proper segregability review. Defendant will, however, be required to clarify the status of two responsive pages.

6. Watkins v. U.S. Bureau of Customs & Border Prot., No. 08-1679, 2009 WL 3633893 (W.D. Wash. Oct. 30, 2009) (Robart, J.)

Re: Notices pertaining to seizure of counterfeit goods at various ports

• Procedural: Though DHS regulations allow for its components to adopt their own regulations governing responses to FOIA requests, subject to DHS's approval, CBP's regulations governing calculation of fees were adopted prior to its transfer to DHS, and thus cannot be said to have been approved by DHS. Thus, defendant was correct to apply DHS's regulations in calculating its fee estimate, and not its own.

• Litigation considerations: Plaintiff's motion for discovery is denied, as he has not shown any bad faith on defendant's part. Though defendant had a page count discrepancy in its Vaughn index, defendant has adequately explained that this was caused by an inadvertent clerical error.

• Exemption 4: The court finds that there is no dispute that information in Notices of Seizure constitutes commercial information that is obtained from a person. The agency "offers no argument" that the information was submitted voluntarily and so the court applies the competitive harm test of Nat'l Parks. Plaintiff's assertion that the Notices of Seizure create an "unrebuttable presumption" that the importers themselves were knowingly involved in illegal activity (and are thus not entitled to protection from competitive harm) is incorrect. Also, while it is typical in competitive harm cases for the agency defendant to submit a supporting affidavit from the submitter, this is not required, especially "in cases where the Agency submits a declaration from a declarant that is 'very familiar' with the industry at issue." The court also disagrees with plaintiff's assertion that CBP's statements of competitive harm were conclusory. "The Agency has come forth with more than adequate information detailing the various harms that could befall importers if the Notices of Seizure were disclosed." Indeed, "the court concludes that the Agency has met its burden of showing that there is actual competition in the commercial importation market . . . and that if the Notices of Seizure were released - evidencing an importer's supply chain - the importer would likely suffer substantial competitive injury."

• Exemption 7(C): CBP properly withheld names of individuals identified by the trademark holders as the points of contact for dealings with the Agency. This is "private information," and "there is nothing before [the court] that supports a finding that there is any public interest in knowing who these people are."

• Waiver: CBP did not waive its right to claim exemptions when it released the Notices of Seizure to trademark owners whose rights were infringed. This "limited" disclosure "to interested third parties" was required under 19 U.S.C. § 1526(e), and thus did not constitute waiver for FOIA purposes.

WEEK OF NOVEMBER 16

Courts of Appeal

1. Mangham v. Shinseki, No. 07-1338, 2009 WL 3806327 (Vet. App. Nov. 16, 2009) (Lance, J.)

Re: Investigative report

• Jurisdiction: The United States Court of Appeals for Veterans Claims does not have jurisdiction to hear plaintiff's appeal of the VA's decision to withhold a record under the FOIA.

District Courts

1. United States v. Mosher, No. 07-67, 2009 U.S. Dist. LEXIS 107227 (W.D. Mich. Nov. 17, 2009) (Maloney, C.J.)

Re: First-party request

• Proper party defendant: Plaintiff's letter to the court seeking records does not constitute a FOIA request, as federal courts are not "agencies" for purposes of the FOIA.

2. Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 3807091 (D. Me. Nov. 13, 2009) (Woodcock, C.J.)

Re: Documents related to agreement to build liquified natural gas facility on tribal land

• Exemption 5 (deliberative process privilege): BIA properly withheld a memorandum which discussed possible options for the agency to take in response to an upcoming court ruling. "No less than a private party engaged in litigation, individuals within the BIA must be able to freely discuss their 'uninhibited opinions and recommendations.'" BIA also appropriately withheld a memorandum written "to file" that included the author's recommendations on an agency decision that was made the same day the memorandum was written, in light of the court's previous determination that the document was written in order to advise BIA decisionmakers.

3. Thomas v. USDA, No. 08-534, 2009 WL 3839463 (N.D. Okla. Nov. 12, 2009) (Payne, J.)

Re: Documents related to grain fraud practices of the 1970s

• Attorney fees: The court finds that plaintiff is not eligible for an award of fees because he did not obtain relief through the agreement he entered into with the defendants. Before plaintiff brought the instant suit, defendants had already offered to provide him with all of the documents at issue in the case, except for one document withheld pursuant to a FOIA exemption. Thus, plaintiff's suit did not cause any substantive change in the defendants' position. Furthermore, plaintiff failed to exhaust his administrative remedies prior to filing suit; awarding him fees would "reward[] Plaintiff's failure to comply with the required, statutory scheme set forth in the FOIA." Plaintiff can also not show that he is entitled to an award of fees. "There is no evidence presented that suggests the Plaintiff's retention of the documents at issue provided a benefit to the public or a commercial benefit to the Plaintiff. Further, there is no evidence to suggest that the Defendants improperly withheld any documents."

4. Wiesner v. FBI, No. 07-1599, 2009 WL 3768024 (D.D.C. Nov. 12, 2009) (Walton, J.)

Re: First-party request

• Adequacy of search: Defendant CIA has demonstrated the adequacy of its search. Though plaintiff claims that the CIA incorrectly limited its search to CIA originated documents, defendant has established that it conducted an additional search that was not limited in this way. "The plaintiff has not offered any evidence to suggest that the Agency's second search was faulty or conducted in bad faith." As to plaintiff's claim that the CIA should have conducted another search using additional search terms provided by plaintiff in his administrative appeal, the court concludes that doing so would have constituted performing a new search that defendant was not obligated to engage in. "[T]he additional search terms proffered by the plaintiff to the CIA in his appeal letter cannot be a part of the Court's calculus to determine whether the CIA conducted a search that was 'reasonably calculated to uncover all relevant documents.'" An earlier decision of this court taking a contrary position on this issue is vacated. As plaintiff has made no showing to rebut the CIA's showing that its searches were adequate, the agency has satisfied its burden on this issue.

5. Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.)

Re: Records pertaining to POW/MIAs from Vietnam War era

• Procedural matters: The CIA must search for records on certain third parties or provide an explanation why it did not verify their identities. Though the FOIA does not require agencies to perform searches that its recordkeeping systems are not equipped for, the court will require the CIA to search its database that "tracks 'searches recently conducted for other federal agencies' . . . or explain[] to the Court why it cannot do so." As to documents referred by the CIA to their originating agencies, the substantial delay in processing these records "constitutes improper withholding." The CIA "must take affirmative steps to ensure that its referrals are being processed."

• Litigation considerations: "The principle of collateral estoppel applies here to prevent [plaintiffs] from arguing that the Senate Committee's records are 'agency records.'" The CIA must confirm though that it has searched for records "of its own creation" that were included in the Committee's documents. Plaintiff may not again challenge the CIA's use of search terms whose adequacy was litigated previously. The CIA will, however, be required to submit a Vaughn index explaining its withholdings from its November, 2005 release, as these were not covered by prior litigation. Plaintiff "has provided no evidence for his contention that the CIA engaged in 'misbehavior.'" As the court can find no evidence of bad faith by the agency, plaintiff's motion for discovery is denied. Similarly, because there is no evidence of bad faith, and because the CIA will be required to submit additional filings in this case, the court "declines to exercise its discretion to review records in camera at this time."

• Adequacy of search: As to searches not previously litigated, the CIA's declaration "does not identify which directorates would conduct searches, describe the databases to be searched, or explain how the search would be tailored to locate records from the years in question." Defendant properly determined that it was not required to conduct an additional search of the Directorate of Operations because its records are exempted from the search requirements of the FOIA by 50 U.S.C. § 431(a). As to another item on plaintiff's request, the CIA has not established that the database it searched was the only one likely to have responsive records.

• Exemption 1: The CIA's invocation of this exemption was proper as to some of its withholdings. "[T]he D.C. Circuit has articulated an expansive standard of deference in national security cases, noting that 'little proof or explanation is required beyond a plausible assertion that information is properly classified.'" The CIA's "explanations [of its use of Exemption 1] appear comparable to those the D.C. Circuit approved in Morley v. CIA." However, the CIA's assertion that the records withheld pursuant to Exemption 1 are all less than 25 years old is "plainly incorrect" in some instances. "The CIA should address this issue in its supplemental filing to this Court pursuant to this opinion," and until then will not be granted summary judgment on documents older than 25 years old.

• Exemption 2 (low): The court finds that defendant has not met its burden of demonstrating that the withheld information is too trivial to be of any legitimate public interest. It must either make this showing in its supplemental filing or release the withheld information.

• Exemption 5 (deliberative process and attorney-client privileges): The CIA has not sufficiently justified its use of the deliberative process privilege. "Merely asserting that the documents are 'pre-decisional' without explaining to what pending decisions they related or making clear whether they 'make[] recommendations or express[] opinions on legal or policy matters,' . . . is insufficient. Insofar as the memorandums indicate that certain decisions about searches or fees had already been made, they do not fall within exemption 5." Defendant must either disclose these documents or provide sufficient justification for withholding them. As to other documents withheld, the CIA has sufficiently justified its use of the privilege. Defendant has not provided sufficient information for the court to determine whether it properly invoked the attorney-client privilege. In particular, the court cannot determine whether all of those who participated in the discussions in question can be considered to have authority to represent the agency for the purposes of the privilege or whether they constitute third parties, whose inclusion in the conversations waive the agency's right to claim the privilege.

• Exemption 6: The court finds that the CIA has not justified its use of this exemption to withhold names and identifying information of its employees. "The D.C. Circuit [has] held that the disclosure of biographical information does not necessarily invade an individual's privacy and that summary judgment was inappropriate where the agency 'failed to explain the extent of the privacy interest or the consequences that may ensue from disclosure.'" Defendant must either disclose this information or provide additional justification for withholding it.

• Segregability: "The CIA's Vaughn index does not provide information sufficient for the Court to review its compliance with FOIA's requirement that reasonably segregable portions of records be released." Defendant's "supplemental filing must include more information about the segregability of documents, 'specify[ing] in detail which portions of the document are disclosable and which are allegedly exempt,' . . . mak[ing] specific findings for each document withheld[,] . . . and 'correlat[ing] claimed exemptions with particular passages.'"

6. Wiesner v. FBI, No. 07-1599, 2009 WL 3767766 (D.D.C. Nov. 12, 2009) (Walton, J.)

Re: First-party request

• Litigation considerations: Plaintiff's motion for reconsideration is denied. He has failed to show bad faith on the FBI's part, notwithstanding the alleged inconsistencies between what plaintiff was told by an FBI employee in a phone conversation and what the FBI informed him of in written correspondence. Even if plaintiff was given inconsistent information on one point, it is immaterial to the outcome of the instant case. As to another alleged inconsistency, the court is "[u]nable to discern even a modicum of subterfuge on the part of the FBI."

• Adequacy of search: As indicated by its other ruling in this case, the court has determined that, in ruling on the adequacy of the FBI's search, it cannot properly consider search terms plaintiff supplied to defendant after his initial request. The court further determines that the FBI "has met its burden of 'demonstrat[ing] the adequacy of its search by providing a reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched.'" Plaintiff has in no way contradicted the evidence supplied by the FBI on this point. Indeed, defendant demonstrated that it has gone beyond what was required of it in searching for responsive records.

WEEK OF NOVEMBER 23

District Courts

1. Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2009 U.S. Dist. LEXIS 109303 (D.D.C. Nov. 23, 2009) (Leon, J.)

Re: Records related to import restrictions on ancient coins

• Adequacy of search: Defendant's declaration "details extensively the databases searched, the staff that conducted the searches, and the search terms used," and demonstrates that it "conducted a search reasonably calculated to uncover all relevant documents." Plaintiff wrongly asserts that the State Department failed to properly search the computer of a particular employee thought to have relevant documents. Furthermore, defendant's failure to list the search terms it used in a specific search for diplomatic notes, "without more, does not render this search inadequate."

• Exemption 1: The Department of State properly invoked Exemption 1 to withhold "information provided by foreign government officials with an express understanding that the United States was to hold the information in confidence." Disclosure of such information "would damage foreign policy by harming the United States's ability to conduct successful negotiations." This information "does not lose its confidential classification merely because the State Department released a general, unclassified summary of it."

• Exemption 2: "[I]nternal file numbers . . . are properly withheld."

• Exemption 3 (19 U.S.C. § 2605(h)): The court determines that portions of the Cultural Property Implementing Act meet the requirements of Exemption 3. One provision, 19 U.S.C. § 2605(h), exempts information from the disclosure requirements of the Federal Advisory Committee Act (FACA). "Thus, although 19 U.S.C. § 2605(h) does not explicitly mention FOIA, it nevertheless specifically exempts a provision of the [FACA] that makes FOIA's provisions applicable to the advisory committee. Thus, 19 U.S.C. § 2605(h) is a disclosure-prohibiting statute." Under this statute, information is withheld if the President or his designee determines that release "would compromise the government's negotiating objectives or bargaining positions," a determination that has been made here by the President's designee. Another section of the Cultural Property Implementation Act, 19 U.S.C. § 2605(i)(1)-(2), "prohibits disclosure of information submitted in confidence to the advisory committee." This portion of the statute covers information submitted in confidence to the advisory committee itself, and also covers information "'submitted in confidence by the private sector' to the Government." Defendant has established that the withheld information was submitted in confidence and that confidentiality "was necessary in order for individuals to disclose information."

• Exemption 5 (deliberative process and attorney-client privileges): Defendant properly withheld "non-binding, pre-decisional, deliberative recommendations [provided] to the State Department to use in determining import restrictions." The State Department also appropriately invoked the deliberative process and attorney-client privileges to withhold an e-mail "seeking legal approval of a draft document and portions of an action memorandum containing summaries of legal advice." Though a committee official has asserted "that the release of the information here would result in the committee making better recommendations," this individual's "personal opinion does not alter the State Department's proper invocation of exemption (b)(5)." Finally, defendant also properly withheld some factual material "'where its very inclusion in the report represents the deliberative distillation of the information provided to the committee '" and the "selection of facts . . . compose[s] the reasoning of the committee in reaching its recommendation."

• Exemption 6: Defendant properly withheld names and identifying information of State Department and Border Patrol employees and private individuals "who provided information to the committee in their personal capacity." The State Department properly balanced the privacy interests of these individuals against the public interest in disclosure, particularly "in light of instances of career State Department employees being 'denounced in harsh personal accusations in public fora.'"

• Exemption 7(C): Defendant properly "withheld names, e-mail addresses, and telephone and fax numbers of low-level employees included in a chain of e-mails created as part of law enforcement efforts to implement and enforce cultural property restrictions." These individuals have a "strong privacy interest in their identifying information," as compared to "the weak public interest in identifying information of low-level employees."

2. Ctr. for Biological Diversity v. Office of the U.S. Trade Representative, No. 07-1979 (W.D. Wash. Nov. 20, 2009) (Jones, J.)

Re: Documents related to "Meritorious Initiatives" (MI) program within the Softwood Lumber Agreement (SLA)

• Adequacy of search: The court finds that USTR's search "was sufficient to discover responsive documents, particularly in light of the agency's efforts to conduct multiple searches in an attempt to comply with the Plaintiffs' requests." Thus, plaintiff is not entitled to additional discovery.

• Exemption 5 (deliberative process and attorney client privileges): USTR properly withheld documents which "contain recommendations, opinions, and evaluation of the MI program before the program was finalized and fully implemented." Disclosure of these documents "would reveal the Defendant's decisional process in negotiating the SLA in a way that would chill the free flow of ideas within the agency and inhibit its ability to negotiate." Exemption 5's applicability is not precluded by the fact that, in some instances, USTR consulted with third parties regarding the MI program. These third parties "were consulted in confidence for the purpose of assisting USTR in formulating the MI program." Similarly, USTR appropriately withheld documents containing communications between USTR and the Department of Justice "regarding different aspects of the SLA negotiations." These documents were both deliberative and predecisional "because they were used by USTR to formulate the final version of the SLA," and also constitute protected attorney-client communications, as they contain "advice and recommendations relevant to the SLA negotiations and settlement." USTR also properly withheld documents reflecting communications among federal agencies and with the Canadian government regarding finalizing and implementing the SLA, as "disclosing them would chill USTR's ability to candidly discuss and formulate policy." As a result, any dispute between the parties as to whether these documents are covered by an agreement between them that would have removed the documents from the instant litigation is now moot. Additionally, USTR appropriately invoked Exemption 5 to protect documents reflecting internal deliberations "related to the formation of a policy regarding communications with the public regarding the SLA." Even after the SLA itself was finalized, decisions remained as to how the agency could best communicate with the public concerning the SLA. Finally, "the court will not consider" the plaintiff's assertion that the court should not apply Exemption 5 because of alleged government misconduct in failing to comply with the Miscellaneous Receipts Act, given that plaintiff's underlying misconduct claim has been dismissed in a separate case.

3. Pickering-George v. DEA Registration Unit, No. 09-2184, 2009 WL 4031223 (D.D.C. Nov. 19, 2009) (Friedman, J.)

Re: Request for DEA "special instruction"

• Litigation considerations: As this court has previously ruled against plaintiff for failure to exhaust administrative remedies in a claim based on the same facts, his current claim is barred by res judicata.

4. Griffin v. S.C. Dep't of Prob., No. 09-2136, 2009 WL 4016118 (D.S.C. Nov. 19, 2009) (Duffy, J.) (adoption of magistrate's report and recommendation)

Re: First-party request

• Jurisdiction: The complaint is dismissed because a claim for violation of a state law "should be heard in state court." Moreover, no federal agency is named in this suit.

5. Citizens for Responsibility & Ethics in Wash. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-633, 2009 WL 3859700 (D.D.C. Nov. 19, 2009) (Roberts, J.)

Re: Records reflecting identities of those receiving loans or other financial assistance from the Board

• Exhaustion: Defendant properly informed plaintiff that it was extending by ten days the normal twenty business day deadline to respond to plaintiff's request due to the need to consult with another agency. Though plaintiff argues that the letter, dated March 31, 2009, was not postmarked until April 2, 2009, and was not received by plaintiff until April 6, 2009, the day plaintiff filed the instant complaint, there is no support for its contention "that the operative date of the Board's response should be determined by the date that CREW received it, as opposed to the date that the Board sent it." Thus, defendant "'responded' by placing in the mail written notice regarding its ten-day working extension of its deadline to respond to CREW's request before CREW filed this action." As a result, administrative exhaustion was required before filing suit. Because plaintiff did not exhaust, plaintiff's suit is dismissed.

6. Pearson v. DHS, No. 08-1885, 2009 WL 4016414 (N.D. Tex. Nov. 17, 2009) (Boyle, J.) (adoption of magistrate's recommendation)

Re: First-party request

• Litigation considerations: Defendants incorrectly assert that plaintiff's claims are moot. "Plaintiff alleges an injury fairly traceable to Defendants' unlawful conduct and seeks disclosure of . . . documents. Because the case or controversy that existed at the conception of the lawsuit has not yet been resolved, Plaintiff's personal stake or legally cognizable interest in the litigation continues." Furthermore, plaintiff did not bring his claim under 5 U.S.C. § 552(a)(6)(C), challenging the timeliness of defendants' responses. Instead, his claim was brought under 5 U.S.C. § 552(a)(4)(B), seeking disclosure of records. As a result, defendant's motion to dismiss the case as moot is denied.

• Exhaustion: "Defendants provide specific evidence to show that Plaintiff did not submit proper FOIA requests, and that Defendants asked him on several occasions to accompany his application with appropriate information and paperwork. . . . They also provide evidence that Plaintiff did not administratively appeal any agency determinations." By contrast, "Plaintiff does not provide specific proof to show actual or constructive exhaustion of his FOIA remedies, dispute his failure to exhaust his FOIA remedies, or show a genuine issue of material fact." Because plaintiff has failed to exhaust his administrative remedies, summary judgment is granted in favor of defendants. (posted 12/16/2009)

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