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 March 2010.
WEEK OF MARCH 1Courts of Appeal
1. Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010) (Tatel, J.)
Re: Architectural blueprints for buildings on campus of USDA's research center
• Adequacy of search: Plaintiff argues that the fact that defendant spent roughly two hours searching for responsive documents by itself demonstrates that the search was inadequate. However, "[t]he government's affidavits describe these searches in detail, and amicus has presented no evidence calling into question the efficacy of the search beyond speculating as to the employees' ability to thoroughly search a filing cabinet or electronic database within the indicated time period." Similarly, the court has no evidence before it to contradict USDA's declarant's assertion that the agency had put together a complete list of responsive documents it would need to search for.
• Exemption 2 (high): The court agrees with defendant that the blueprints are predominantly internal, despite the fact that some of the requested blueprints have been released to the Maryland Historical Trust, especially since plaintiff "is presumably not seeking those blueprints that are housed at the Maryland Historical Trust, but rather wants those that remain exclusively under the agency's control."
As to whether the blueprints "relate to 'rules and practices governing agency personnel,'" it is true that "unlike manuals and guidelines, blueprints give agency employees little explicit guidance about how to do their jobs. Information need not take the form of a rule or practice, however, to fall within the high 2 exemption. Rather, the exemption expressly protects from disclosure material 'related' to agency rules or practices."
Furthermore, "with respect to high 2 materials, where the asserted government interest is, by definition, to prevent circumvention of law, the threshold inquiry may be somewhat less demanding than for low 2 matters, for which we require a tighter nexus between the withheld information and personnel rules or practices." Moreover, at the district court, plaintiff did not raise the issue of whether the blueprints are sufficiently related to internal rules and practices; he may not do so for the first time on appeal. Similarly, plaintiff did not raise at the district court his current claim that USDA "failed to demonstrate that release of the blueprints would pose a 'significant risk' to national security."
• Segregability: Though plaintiff failed to challenge USDA's determination on segregability at the district court, the court was required to rule on the issue itself, and did so, "ultimately concluding that no reasonably segregable portion of the blueprints could be released without presenting a risk of circumvention."
2. Allen v. EEOC, No. 09-14640, 2010 WL 653329 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished disposition)
Re: EEOC investigative file
• Exhaustion: The district court correctly ruled that plaintiff had failed to show that he exhausted his administrative remedies because he did not establish that he filed an administrative appeal of the EEOC's initial response to his request.
3. Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.)
Re: Records pertaining to IRS audit of plaintiff
• Adequacy of search: "We conclude that, based on [defendants'] declarations, the IRS has demonstrated that it performed a search reasonably calculated to yield responsive documents." Though plaintiff "asserts that other documents may exist that were not located in the search, we must decide only whether the search was adequate."
• Litigation considerations: Because the court is ordering defendant to produce a new Vaughn index, the court need not reach the question of whether plaintiff is entitled to discovery.
• Exemption 3 (26 U.S.C. § 6103(a) & 26 U.S.C. § 6103(e)(7)): The IRS cited the first of these statutes to withhold third party tax information. However, "it is impossible to tell from the [IRS] declaration and the rest of the summary judgment record what information is contained within the 'case history notes and information from private sources' and whether, in whole or in part, the documents contain third party taxpayer information."
The lower court "did not make any factual descriptions of the documents in this case or conduct an in camera review. Nor does it logically follow that case history notes and information from private sources contain exclusively third party tax information, rather than segregable portions." In a situation "where the agency affidavit fails to identify the particular type of the document being withheld - and the party seeking disclosure contests the type of information it contains - a district court may not simply rely on a broad categorical approach to withholding."
Though the court "assume[s] that the IRS is telling the truth in its affidavits, its conclusory 'say so' does not, alone, carry its burden of establishing an exemption." Similarly, the IRS provided insufficient information in its declarations to justify its use of § 6103(e)(7). "The declarations fail to describe with specificity the documents constituting 'information from public and private sources as well as interview notes' or why the IRS believes that release of these documents would impede its ability to collect any taxes owed." The court "cannot discern the type of information contained within the documents from the declarations."
• Exemption 5 (deliberative process privilege): IRS appropriately withheld documents reflecting revenue agents' "'development and analysis . . . as well as their opinions and recommendations as to the direction of the examination and a possible criminal referral.'" However, the court has "no factual findings to review as to whether the [withheld documents] include factual information as [plaintiff] asserts and, if so, whether that information is segregable." Defendant will be required "to provide 'at least the minimal information necessary to make a determination.'"
• Exemptions 6 & 7(C): The court finds that the IRS failed to provide a sufficiently detailed description of the documents that were withheld under this exemption for the court "to meaningfully review the applicability of this exemption." Indeed, "the ambiguity in the type of documents withheld and the information contained therein makes it impossible to determine whether the individuals named in the documents have a viable privacy interest." The IRS's "broad, conclusory descriptions of the documents afford [plaintiff] no opportunity to challenge the withholding and offer this court no opportunity to meaningfully review the applicability of the claimed exemptions."
• Exemption 7(A): The court finds that "it is impossible to determine the exact type of documents that the IRS asserts are exempt under 7(A)." Though Exemption 7(A) does allow for the categorical withholding of certain types of documents, defendant has not provided enough information for the court to determine whether the withheld documents are of those type. As to the IRS's use of this exemption to withhold an agent's working papers, though these documents are of a type that might be subject to a categorical withholding, the court lacks sufficient information in order to determine whether the documents contain segregable information that must be released to plaintiff. type
• Attorney fees/costs: The issue of plaintiff's entitlement to fees and costs is not yet ripe for review.District Courts
1. Essex Electro Eng'rs, Inc. v. U.S. Sec'y of the Army, No. 09-372, 2010 WL 710595 (D.D.C. Feb. 26, 2010) (Leon, J.)
Re: Unit prices contained in winning contract
• Exemption 4: The offeror "was required to provide the Army with the unit pricing information in order to compete for" the contract. "In this case, despite [plaintiff's] argument that any harm from releasing the unit prices is highly speculative because unit prices are based on multiple factors, the Army has demonstrated that releasing the withheld information would cause substantial competitive harm because the requested information could reveal [the submitter's] business strategy and cost structure." The winning offeror "was the first private entity to be awarded the items in [the contract], thus the prices were not known in the industry, further supporting the need to prevent their release." Plaintiff is also incorrect in its assertion that the Federal Acquisition Regulation (FAR) requires disclosure, as the FAR's disclosure requirements have an exception for information exempt from release under the FOIA. Similarly, plaintiff's claim that the information withheld here is of a type routinely disclosed by the Army is inaccurate.
2. Nat'l Bus. Aviation Ass'n v. FAA, No. 09-1089, 2010 WL 675529 (D.D.C. Feb. 26, 2010) (Collyer, J.)
Re: Reverse FOIA case seeking to prevent disclosure of aircraft registration numbers on Block Lists, which indicate aircraft that are filtered out of real-time tracking data feeds
• Standard of Review: Reverse FOIA cases are brought under the Administrative Procedures Act and the scope of review is "narrow." "The agency action under review is 'entitled to a presumption of regularity' and the court must consider only whether the agency decision was based on relevant factors and whether there has been a clear error of judgment."
• Exemption 4 (commercial or financial threshold): Plaintiff's claim that the aircraft registration numbers constitute commercial information is overly broad, "especially in light of the [D.C.] Circuit's admonition that 'not every bit of information submitted to the government by a commercial entity qualifies for protection under Exemption 4.' . . . The FAA's decision that the Block List does not include any commercial information is 'entitled to a presumption of regularity' and this Court should consider only whether the decision was based on relevant factors and whether there has been a clear error of judgment."
Plaintiff "speculates that if the Block List is released, competitors will be able to discover sensitive commercial information." However, "the FAA determined that the aircraft registration numbers themselves do not constitute commercial information. The FAA's determination was reasonable, as the Block List is a list of numbers only, unaccompanied by narrative. The release of Block List information would not provide the requester with any real-time or near real-time data regarding aircraft location [given that] [a] FOIA request takes days or weeks to process." Though "the release of the registration numbers whose location information was blocked from the [Aircraft Situation Display to Industry (ASDI)] data stream in days and weeks past would enable the recipient to determine the owner of the aircraft, a description of the aircraft, and historical location[,] [i]t information would not enable the recipient to (1) determine the identity of the occupants of any particular flight; (2) discover the business purpose of any flight; (3) track the flight in real-time or near real-time; or (4) discern the reasons why the aircraft owner sought to block the flight information from the ASDI data feed. . . . [Plaintiff's] speculation that the registration numbers might be used to obtain historical location information and that location information might be used for insight into the nature of a company's business dealings does not convert the aircraft registration numbers themselves into commercial information.
[Plaintiff's] prediction of the dire consequences of release of the aircraft registration numbers was countered by the FAA's reasonable determination that the Block List simply does not contain commercial information. The FAA's decision that the Block List does not contain commercial information was not arbitrary, capricious, or an abuse of discretion." Plaintiff's claims that release of the Block List "will compromise the privacy and security of the blocked aircraft and their often high profile occupants[,] . . . do not support [plaintiff's] contention that the information is exempt from disclosure under Exemption 4, which deals with confidential commercial information and not with personal privacy or security." Morever, "it is highly unlikely that the disclosure of the List would impact the security of aircraft or aircraft passengers."
3. Fieger v. FEC, No. 08-14125, 2010 U.S. Dist. LEXIS 17284 (E.D. Mich. Feb. 26, 2010) (Lawson, J.)
Re: Documents related to investigation of possible violations of the Federal Election Campaign Act by plaintiff's law firm, its partners, and employees
• Litigation considerations (standing): "[A] person whose name does not appear on a request for records has no standing to prosecute a lawsuit to compel disclosure of those records." The court finds that "[i]t is not possible to discern from the two letters [the requester] sent to the FEC a request for documents by or on behalf of plaintiff. . . . [Plaintiff] did not sign the letters, and nowhere in either letter is there a statement or suggestion that [the requester] was making the requests on [plaintiff's] behalf. Nor does the context of the request compel an inference that the true requesting party is plaintiff . . . himself." Though the identity of a FOIA requester is generally irrelevant to "'the exercise of the rights provided by the Act,' 'the nature of an entity suing under the FOIA is not without relevance.'" This is because "[a] plaintiff who has neither made a request for information on his own nor explicitly through counsel cannot show an injury in fact, which is a necessary constitutional requirement of standing."
Furthermore, "[t]he weight of authority cuts against recognizing third-party standing in the FOIA context, even when the request is made by a lawyer, in the absence of a clear statement that the request is being made on behalf of a named client." Though plaintiff claims that the requester was acting on his behalf, "federal FOIA jurisprudence leaves no doubt that a lawyer's request for information must plainly spell out the representative capacity and the identity of the client before that client can bring a FOIA action in her own name." Though the requester eventually mailed defendant a letter establishing his representative capacity to the plaintiff, this letter was not sent until after the complaint had been filed. "'Jurisdiction, including standing, is "assessed under the facts existing when the complaint is filed."' . . . Developments occurring after the lawsuit has been filed cannot confer standing that did not exist when the case was commenced."
4. Long v. OPM, No. 05-1522, 2010 WL 681321 (N.D.N.Y. Feb. 23, 2010) (Mordue, C.J.)
Re: Names, duty stations, and organizational codes of federal employees in "sensitive" occupations, and award dollar amounts for various IRS employees
• Litigation considerations: Plaintiffs have provided no legal basis for their request for an order "directing OPM to provide 'an "audit trail" from the execution of OPM's program(s) that generated the copies furnished [to the court]' to enable [them] to determine whether OPM properly marked all redactions."
• Exemption 6: The court finds that "[i]n view of the potential for harassment or attack," OPM has demonstrated that federal employees who work in nineteen different "sensitive" occupations (including, inter alia, correctional officer, U.S. Marshal, nuclear materials courier, internal revenue agent, game law enforcement, immigration inspection, customs and border interdiction, and border protection) "have a 'more than de minimis' privacy interest in their names and duty stations." The court further determines that OPM is correct "that any link between the names of employees in the occupations at issue and the function of the government agencies they work for is too attenuated to warrant disclosure. . . . In this case, the names themselves would reveal only the identities of all employees in 'sensitive' occupations; once the lists of names are public, it would take further investigation and analysis before plaintiffs, or anyone else, could glean anything useful about the agencies for which they work."
However, as to plaintiffs' request for duty stations and organizational component codes of these individuals, "OPM only asserts that disclosure of duty station and organizational component code would increase the 'possibility' in some instances [that identities would be revealed]. OPM, however, does not explain how employees could be identified from the disclosure of their duty stations and organizational component codes. . . . The Court finds that this information does not involve a measurable privacy interest because it is not the kind of information 'that a person would ordinarily not wish to make known about himself or herself.'" Though OPM has also asserted that release of this information might hamper law enforcement operations by revealing the government's allocation of resources, this is not a basis for withholding of this information under Exemption 6.
As to OPM's decision to redact performance and individual cash awards made to IRS employees, "[i]t is undisputed that each total award amount, or lack thereof, is linked to an individual IRS employee and his or her employment performance, and could, as [plaintiffs] admit, at the very least, reveal that an employee's appraisal score was too low to merit an award. . . . That an employee's name is not connected to the award amount is inconsequential here because the award, or absence of one, is linked directly, and unique[ly] to that employee. Award information is private and disclosure implicates more than a de minimis privacy interest." Plaintiffs have asserted a public interest in "'being able to see whom the government is rewarding' and ensuring that the IRS is complying with regulations prohibiting it from 'using records of tax enforcement results to evaluate employees or impose production quotas or goals.' Plaintiffs, however, provide no evidence of IRS wrongdoing or the issuance of improper rewards. On balance, therefore, the Court concludes that employees' interest in keeping performance based awards, or the lack thereof, private outweighs any public interest in disclosure of this information."
WEEK OF MARCH 8Courts of Appeal
1. Pub. Citizen, Inc. v. OMB, No. 08-5004, 2010 WL 820479 (D.C. Cir. Mar. 11, 2010) (Tatel, J.)
Re: Documents related to agency bypass of OMB's legislative and budgetary clearance process
• Note: The court reissued its June 19, 2009 decision. The holding remains consistent with the opinion that it superceded, which was reported in Decision 837, i.e., the documents are not related predominantly to OMB's internal practices and so do not qualify under Exemption 2, and are not protected in their entireties under Exemption 5. The case is remanded to the district court.
2. Pototsky v. DHS, No. 09-15247, 2010 WL 737751 (9th Cir. Mar. 3, 2010) (unpublished disposition)
• Re: Request for records pertaining to plaintiff's encounter with U.S. Customs and Border Patrol employees
• Litigation Considerations: The court reviews the district court's findings of fact for clear error and its conclusions of law regarding the applicability of FOIA exemptions de novo.
• Exemptions 7(C) and 7(E): The court holds that the district court "did not clearly err" in concluding that Exemptions 7(C) and 7(E) apply, because "[t]he redacted material 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' and 'would disclose techniques and procedures for law enforcement investigations or prosecutions.'"District Courts
1. Gov't Accountability Project v. HHS, No. 07-1702, 2010 WL 779774 (D.D.C. Mar. 9, 2010) (Kollar-Kotelly, J.)
Re: Request for clinical study data regarding drug ciprofloxacin ("cipro")
• Exemption 4: Defendants contend, and plaintiff does not dispute, that the records at stake were not provided voluntarily to the government by drug companies, because "the government requires submission of the information at issue as part of the drug application process." Accordingly, the court evaluates whether the disclosure of the withheld information would "'cause substantial harm to the competitive position of the person from whom the information was obtained.'" The court finds that "even assuming that Defendants have sufficiently shown the existence of actual competition," they have "failed to meet their burden of showing 'a likelihood of substantial competitive injury'" because they "proffered only vague and conclusory allegations in support of their claim that release of the information at issue will likely cause competitive harm" to the submitters.
As an initial matter, the court dismisses two of defendants' arguments as irrelevant to the central issue of whether Exemption 4 was properly applied. First, the court notes that although defendants, in an effort to explain the lack of evidence showing that actual competition exists, point to the regulatory provisions prohibiting the FDA from disclosing information about pending drug applications, they "make no argument that they are precluded from releasing the withheld material because it is drawn from a pending drug application and therefore cannot be publicly disclosed." Second, the court finds that defendant's arguments concerning 21 U.S.C. § 355(l)(1) and its implementing regulations, which govern public disclosure of certain safety and effectiveness data, are immaterial because plaintiff has not challenged defendants' disclosure obligations under these provisions. The court also stresses that "while Defendants affirmatively argue that the relevant statutory and regulatory provisions do not require them to disclose the raw data related to the cipro oral suspension, they do not argue the reverse – i.e., that the provisions explicitly prohibit them from disclosing the withheld material."
With respect to whether the withheld material was properly characterized as confidential commercial information under Exemption 4, the court finds defendants' arguments that "'a competitor could use that  information to support its own new drug application without having to incur the time and expense involved in developing the information itself'" to be "conclusory." Defendants fail to explain how the specific categories of information at issue would cause substantial competitive injury. Additionally, defendants' contention that "'the withheld information could permit a compet[ing] generic manufacturer to more easily design around the patent(s)'" likewise is too general to support withholdings under Exemption 4. "Defendants offer no explanation whatsoever as to how a competitor could use the information at issue to support their own drug applications, simply concluding that such information could be used in some unspecified manner to the submitters' disadvantage." Lastly, the court concludes that defendants' assertion that the owners of the information could sue the FDA for improperly releasing information that would harm their competitive position "even if true – is not the type of alleged harm that qualifies as a 'competitive injury' under FOIA Exemption 4." For the foregoing reasons, the court grants plaintiff's motion for summary judgment with respect to Exemption 4 and directs defendants to release all of the material characterized as confidential commercial information.
• Litigation considerations: After reviewing the agency's Vaughn index, plaintiff concedes that Exemption 6 was properly applied. Accordingly, the court grants defendants' motion for summary judgment in part with respect to the information withheld under Exemption 6.
• Segregability: Since the court ordered the release of information withheld under Exemption 4, segregability is not at issue for that material. With regard to the information withheld pursuant to Exemption 6, the court finds that defendants demonstrated that they had disclosed all reasonably segregable information where the declaration asserted that the relevant records were reviewed "'page-by-page and line-by-line'" as well as reviewed again for accuracy and that the redactions were limited to "specific references to patient initials, patient hospital admission dates, names of low-level employees and other identifying information."
2. Pohl v. EPA, No. 09-1480, 2010 WL 786918 (W.D. Pa. Mar. 3, 2010) (Standish, J.)
Re: Requests for certain scientific records and research data
• Litigation Considerations: "[T]he Court is not persuaded that principles of sovereign immunity preclude us from requiring the Government to participate in a form of ADR which would require it to expend funds on its own behalf."
3. Reynolds v. BOP, No. 09-3096, 2010 WL 744127 (E.D. Pa. Mar. 2, 2010) (Bartle, C. J.)
Re: Requests for records pertaining to investigations concerning plaintiff
• Litigation Considerations: Plaintiff contends that, prior to his hearing before the Merit Systems Protection Board (MSPB), he did not receive a copy of a certain investigative report that was entered into evidence. He further complains that "he did not have the opportunity to verify the report's authenticity and that his ability to present an effective defense during his MSPB hearing was hindered by the defendants' refusal to transmit the document" before the proceeding. Since plaintiff has also submitted a FOIA request for the report, he raises this claim under the FOIA. Defendants counter that plaintiff's claim is "essentially a discovery dispute in connection with the matter presently pending with the MSPB and that the MSPB is the proper forum for resolution of whether the document was improperly withheld." The court concurs with the defendants and, accordingly, dismisses the FOIA claim "without prejudice to its assertion before the MSPB."
WEEK OF MARCH 15District Courts
1. Schwaner v. Dep't of the Army, No. 09-0476, 2010 WL 938802 (D.D.C. Mar. 17, 2010) (Sullivan, J.)
Re: Records pertaining to particular class of Army personnel
• Exhaustion: By not filing an administrative appeal of the Army's initial response to his request, plaintiff failed to exhaust his administrative remedies. The court is "not persuaded" by plaintiff's claim that he never received the Army's response, "because he submits no declaration or other evidence to support his contention that he did not receive a response, whether timely or not, to his FOIA request. . . . Although defendant responded to plaintiff's FOIA request beyond the time limits set forth by statute, its declarant demonstrates that the Army responded before plaintiff filed this civil action. At that point, plaintiff was obligated to exhaust his administrative remedies, and he fails to establish that he did so."
• Exemption 6: "Even if plaintiff had exhausted his administrative remedies prior to filing this action, the Court concludes that defendant would have prevailed" on its use of Exemption 6. The court notes that in November 2001 DOD began withholding the names of its personnel. Although neither DOD's policy memo nor its supporting declaration "directly address the personal privacy interests of enlisted military personnel," the court finds that "[i]t is easy to conclude . . . that [enlisted] personnel, like any individuals, have a recognized privacy interest in avoiding disclosure of personal information." Indeed, this court has previously recognized the privacy interests of military personnel. By contrast, plaintiff has not shown any public interest in release of this information.
2. King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.)
Re: First-party request
• Exhaustion: It is undisputed that plaintiff has not paid the search fees required in order for the DEA to search 29 possibly responsive files. Thus, he has not exhausted his administrative remedies as to this part of his request.
• Exemptions 7(C) & 7(F): Plaintiff's only challenge to the use of these two exemptions is to claim that Exemption 7(C) should not apply because the DEA's investigation of him is complete. Plaintiff is incorrect that privacy interests diminish with the passage of time.
• Exemption 7(D): The court declines plaintiff's request that it conduct an in camera review to ascertain whether DEA applied this exemption correctly. "In the absence of any cause shown, the Court will accord to the agency declaration the good faith to which it is entitled. . . ."
• Waiver: Although plaintiff makes a general assertion that the withheld information has previously been released into the public domain, he makes no showing to support the claim.
3. Strunk v. Dep't of State, No. 08-2234, 2010 WL 931197 (D.D.C. Mar. 15, 2010) (Leon, J.)
Re: Requests for records pertaining to President Obama
• Exhaustion: Because plaintiff did not submit a written authorization from President Obama for release of information pertaining to him, plaintiff cannot be said to have submitted proper FOIA requests to defendants State Department and DHS, because these agencies require such authorizations for third-party requests. As a result, plaintiff has failed to exhaust his administrative remedies.
4. Calhoun v. DOJ, No. 08-1663, 2010 WL 893680 (D.D.C. Mar. 15, 2010) (Walton, J.)
Re: First-party request
• Exhaustion: It is undisputed that plaintiff has failed to exhaust his administrative remedies because he has not filed a FOIA request. Plaintiff claims that the BOP's confiscation, per agency regulations, of his presentence report constitutes the denial of a FOIA request. "This argument lacks merit."
5. FPL Group, Inc. v. IRS, No. 09-652, 2010 WL 890219 (D.D.C. Mar. 12, 2010) (Huvelle, J.)
Re: Documents pertaining to IRS determinations on tax deductions claimed by plaintiff
• Adequacy of search: IRS correctly determined that documents related to a proposed settlement of plaintiff's dispute with the IRS were not responsive to plaintiff's requests. Plaintiff's requests asked for documents pertaining to the IRS's decision to reject "plaintiff's request for a blanket retroactive change in accounting methodology," and do not cover documents pertaining to settlement discussions which occurred after the IRS made this determination. However, the court agrees with plaintiff that the IRS should have made attempts to locate additional copies of documents that were destroyed by their "likely custodian." In particular, the IRS did not show "that it would have been 'fruitless'" to search the email records of agency employees who exchanged messages with the employee who destroyed his own copy of the records in question. IRS will be required to search the email records of these employees and to submit a new affidavit attesting to the result of the additional searches. If the IRS locates any additional documents and wishes to withhold them, it will be required to submit them for in camera review.
• Exemption 5 (threshold, deliberative process, attorney work-product, and attorney-client privileges): The IRS properly asserted the deliberative process privilege to withhold in full draft memoranda pertaining to its ultimate revenue ruling pertaining to plaintiff, except as to two pages where the IRS's description of the documents and their connection to agency deliberations is insufficient. Similarly, defendant has not provided sufficient information to justify its withholding in part of 39 redacted pages. The IRS will produce the two withheld in full pages and the 39 redacted pages for in camera review along with an affidavit explaining any claimed basis for withholding.
As to a set of 265 pages for which defendant claimed the attorney work-product and attorney-client privileges, the IRS has satisfied its burden as to 235 of those pages. However, as to 30 pages from this group, the IRS has only claimed that the documents were "prepared 'during' active litigation." This is insufficient for purposes of Exemption 5, because it does not establish that the documents were created "in anticipation of" or "for" litigation. Similarly, defendant has not provided enough detail for the court to determine if these documents were subject to the attorney-client privilege. Defendant must provide these documents for in camera review, along with an affidavit explaining any withholdings. As to another set of documents, several of the documents do not appear to meet the Exemption 5 threshold, because they were submitted by an outside party. As to other documents, for some of them defendant has provided sufficient information to justify its use of the deliberative process privilege, but has failed to do so for others. The appropriately described documents include "'notes taken by employees in internal meetings' or documents 'exchanging thoughts and opinions about various legal and policy decisions.'" The IRS also appropriately withheld draft documents. Conversely, "defendant has failed to satisfy its burden with respect to eight documents whose descriptions suggest that they could contain unprivileged agency working law, particularly because they may 'concern specific taxpayers or classes of taxpayers.'" The IRS also "has too vaguely described 62 documents as 'regarding' the proposed revenue ruling or agency attorneys' 'comments' on or 'concerns,' 'problems,' or 'issues' with that proposal. Plaintiff correctly observes that these descriptions do not permit the Court to determine whether the documents '"discuss the wisdom or merits of a particular agency policy"' or '"simply explain and apply established policy."'"
Additionally, "[d]efendant . . . also fails to describe the contents of six sets of handwritten notes that were redacted from documents provided by non-governmental entities. [Defendant's] declaration that members of the drafting team wrote these notes 'during' - i.e., concurrently with - the [policy guidance creation] process is insufficient to establish the role of these notes in that process." Defendant's submissions are similarly lacking with regarding to other sets of handwritten notes. The IRS also did not meet its burden with regard to another document because it did not adequately describe the decisionmaking process or the role in that process of the memo's author.
Finally, defendant did not sufficiently justify its use of the attorney work-product privilege as to eight documents. "[I]t is not enough that these documents involve 'discussions' among agency employees 'regarding' . . . litigation, the revenue ruling, or future related litigation; rather, the documents must have been prepared 'for' or 'in anticipation of' litigation. . . . The privilege log's descriptions of these eight documents also say nothing about whether they were created for or in anticipation of litigation."
6. Bailey v. Callahan, No. 09-10, 2010 WL 924251 (E.D. Va. Mar. 11, 2010) (Spencer, C.J.)
Re: Questions pertaining to staffing levels and work activities of Department of Homeland Security employees
• Procedural: The first item of plaintiff's request, a request for the number of DHS personnel and contractors working in several named locations on a day named by plaintiff "is not so much a request for records as it is a question seeking an answer for which Defendant has confirmed DHS does not maintain records. Additionally, compiling this data, if possible, would place an undue burden on DHS." Similarly, plaintiff's request for the number of DHS personnel traveling on certain flights on a particular day "places an undue burden on DHS because these records are not in existence and could not be compiled with a reasonable amount of effort." Finally, plaintiff's request for the number of "Judicial Warrants" regarding activities on a given day obtained by DHS "seeks an answer in the form of a record for which DHS does not maintain records."
7. Ioane v. Comm'r of IRS, No. 09-00243 (D. Nev. Mar. 11, 2010) (Jones, J.)
Re: First-party request
• Exhaustion: Plaintiff did not mail his request for IRS records to any of the locations designated by IRS regulations as recipients of FOIA requests. As such, plaintiff cannot be said to have submitted a proper FOIA request to the IRS, and therefore did not exhaust his administrative remedies. The fact that the Department of Justice received plaintiff's request is irrelevant to plaintiff's claim against the IRS.
• Litigation considerations: Plaintiff's motion to add a fourth cause of action is granted even though at the time it was made defendant's response time under the FOIA had not yet run. "Though prior leave to amend weighs heavily against granting subsequent leave to amend, the same is not true for leave to supplement." Indeed, "[c]onsiderations of judicial economy favor granting Plaintiff's motion. . . . Allowing Plaintiff to supplement his pleading avoids the necessity of Plaintiff filing a new and separate complaint against Defendant." Plaintiff's motion to add the Department of Justice as a party will not be granted, though plaintiff retains the option of filing a motion to amend with an amended pleading so that the matter may be fully considered by the court. Plaintiff's motion for a Vaughn index is premature prior to the filing of dispositive motions.
8. Shannahan v. IRS, No. 08-0452 (W.D. Wash. Feb. 11, 2010) (Robart, J.)
Re: Tax documents pertaining to West Coast International, Ltd.
• Attorney fees and costs: "[T]he court finds that [plaintiff] has not submitted 'convincing evidence' that this FOIA action caused 'a voluntary or unilateral change in position by the agency.' Notably, [plaintiff] has not shown that the IRS changed its position regarding the Original Documents [i.e. original accounting and ledger records] in the course of this litigation, nor that the IRS released the Original Documents to [plaintiff]. Although the IRS may have cooperated with [plaintiff] in contacting the U.S. Attorney's Office regarding the Original Documents, it does not follow that the IRS's assistance in helping [plaintiff] request and obtain the Original Documents from another agency satisfies the catalyst theory of entitlement." Furthermore, even were he eligible, the court finds that plaintiff would not be entitled to an award of fees. Plaintiff "has shown no meaningful public benefit from disclosure. The Original Documents, in and of themselves, appear to have no public use. These documents are not intended for public dissemination, nor does [plaintiff] suggest that they will have any public effect if disclosed. The court is also not persuaded that this FOIA action vindicates the alleged public interest in promoting cooperation with governmental investigations." Additionally, "the court finds that disclosure of the Original Documents is reasonably likely to result in a commercial benefit to the Entities and that they hold a commercial interest in the documents." This assessment is based upon plaintiff's own declaration submitted to the court. Finally, "the court finds that the IRS's withholding of the records was reasonable." Defendant's "position that the Original Documents were not agency records is colorable in light of its contention that the Original Documents were not under its control at the time of [plaintiff's] FOIA request."
WEEK OF MARCH 22Courts of Appeal
1. United Technologies Corp. v. DOD, Nos. 08-5435 & 08-5436, 2010 WL 1030053 (D.C. Cir. Mar. 23, 2010) (Henderson, J.)
Re: Reverse FOIA suit seeking to prevent disclosure of Corrective Action Requests (CARs) and audits pertaining to plaintiff's products
• Standard of Review: Reverse FOIA suits are brought under the Administrative Procedures Act, under which the court "will reverse the agency action only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' . . . This 'standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ' rational connection between the facts found and the choice made.'"
• Exemption 4: The submitters do not challenge the district court’s finding that the information was a mandatory submission. The court finds that "[c]alling customers' attention to unfavorable agency evaluations or unfavorable press does not amount to an 'affirmative use of proprietary information by competitors.' . . . In other words, Exemption 4 does not guard against mere embarrassment in the marketplace or reputational injury." DOD "correctly rejected" this argument from the submitters.
However, the court finds that defendant has not responded sufficiently to the submitters' claim that release of the records will reveal proprietary information about plaintiffs' manufacturing and quality control processes. DOD claims it redacted all sensitive information, but "the documents describe, in part, how the contractors build and inspect helicopters and/or engines. Once disclosed, competitors could, it appears, use the information to improve their own manufacturing and quality control systems, thus making 'affirmative use of proprietary information' against which Exemption 4 is meant to guard. We believe that [DOD] failed to provide a reasoned basis for its conclusion to the contrary. . . . [W]here, as here, a contractor pinpoints by letter and affidavit technical information it believes that its competitors can use in their own operations, the agency must explain why substantial competitive harm is not likely to result if the information is disclosed." DOD has only provided conclusory statements of its position.
2. Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., No. 09-3795, 2010 WL 986665 (2d Cir. Mar. 19, 2010) (Jacobs, C.J.)
Re: Records pertaining to loans made under Discount Window loan program
• Agency records: The Court finds that the Federal Reserve Banks do not issue loans on behalf of the Board of Governors of the Federal Reserve System (Board). "However, 'Records of the Board' also include such records that 'are maintained for administrative reasons in the regular course of business in official files in any division or office of the Board or any Federal Reserve Bank in connection with the transaction of any official business.' . . . The Board argues briefly that it interprets this regulation as well to include only those records created 'under delegated authority from the Board.' This interpretation does not withstand scrutiny." The regulation of the Board "provides that certain records of the twelve Federal Reserve Banks are records of the Board and those records must be searched."
"[B]ecause the district court ruled categorically that collateral information is protected from disclosure by Exemption 4[,] [i]t is unclear if such general collateral information was requested, or whether, under [the court's ruling in Bloomberg], such information could be withheld." This issue is remanded to the district court for an initial ruling.
• Exemption 4: For the reasons discussed in the Bloomberg decision, the court overturns the district court's ruling that the records requested by plaintiff, "the identity of the borrowing bank, the dollar amount of the loans, the collateral securing the loans, and the loan origination and maturity dates," are protected by Exemption 4. The case is remanded and the Board will be required to release this information.
3. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., Nos. 09-4083 & 09-4097, 2010 WL 986527 (2d Cir. Mar. 19, 2010) (Jacobs, C.J.)
Re: Documents reflecting "discount window" loans authorized by the Federal Reserve Board and designed to provide "emergency liquidity" to institutions "during times of systemic stress"
• Exemption 4: The court affirms the lower court ruling that the requested information, "the identity of the borrowing bank, the dollar amount of the loans, the loan origination and maturity dates, and the collateral securing the loan . . . was not 'obtained from' the borrowing banks within the meaning of FOIA Exemption 4."
Plaintiff's request did not seek loan applications, which would likely be obtained from a "person." Rather, it seeks records of loans actually made by defendant, and these records, generated by defendant itself, cannot be said to have been obtained from outside the agency. This is true regardless of the fact that "disclosure of loan terms allows one to back into information about the borrower." Cases that "have extended the protection of Exemption 4 to information beyond the raw data gathered from persons by the government" are irrelevant to "the present case, where what is requested is . . . disclosure of the agency's own executive actions." Defendant argues that the loans are granted "as a matter of course," hence the information in the loan approvals is a mere "translat[ion of] the loan requests." The court finds, however, that this contention "is not supported by the record," which indicates that "approval is required for the loan." Moreover, "even if the loans were granted automatically, they did not come into existence until the Federal Reserve Bank took executive action by granting the loan. The only information sought is a summary report of actions that were taken by the government. And it cannot be said that the government 'obtained' information as to its own acts and doings from external sources or persons."
Defendant's alternative argument is that the Federal Reserve Banks are "persons" from whom the Board received the information in question, and that disclosure would harm the Board in performance of its mission. The court finds that "[t]he 'program effectiveness' test [(recognized by the First and D.C. Circuits)], if applied as the Board invokes it, would give impermissible deference to the agency, and would be analogous to the 'public interest' standard rejected by the Supreme Court in the context of Exemption Five." Although finding the arguments made regarding program effectiveness harm to be "plausible," the court declines to adopt the test as not within the scope of Exemption 4 as drafted by Congress.District Courts
1. Bilderbeek v. DOJ, No. 08-1931, 2010 WL 1049618 (M.D. Fla. Mar. 22, 2010) (Antoon, J.)
Re: Documents pertaining to DEA investigation of plaintiffs and of Llanos Oil Exploration, Ltd.
• Exemption 7(threshold): "Despite the [plaintiffs'] protestations that the DEA has been 'duped' into investigating their purported criminal activity, the Court concludes that a plausible basis existed for the agency's decision to investigate. . . . In light of Plaintiff's own statement that Colombian government officials implicated them in violations of federal law, a plausible basis for the DEA's decision to investigate Plaintiffs and their company existed."
• Exemption 7(A): "In the instant case, the Department defines the three categories of records - Investigative, Administrative, and Publicly Known - and their component subcategories, states that each document responsive to the FOIA request was reviewed and placed in its appropriate category or subcategory, and explains to the Court with adequate information how the release of each category of documents would interfere with enforcement proceedings." Defendant has also "explained with reasonable specificity why the records at issue cannot be further segregated."
• Exemption 7(C)/Glomar: Plaintiffs have sought information concerning a number of third parties who were alleged to have connections to the DEA's investigation of plaintiffs. "Numerous courts, however, have held that the disclosure of information relating to an individual's involvement in law enforcement proceedings constitutes an unwarranted invasion of personal privacy under Exemption 7(C). . . . Other than vague assertions of an improper investigation, the Plaintiffs have articulated no genuine public interest in the release of the records at issue. Accordingly, the Court finds that the Department properly issued a Glomar response pursuant to Exemption 7(C)."
2. Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.)
Re: First-party request
• Litigation considerations: "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records. . . . [Plaintiff's] boilerplate allegations of bad faith do not constitute the 'specific facts' required to threaten the good faith presumption."
Additionally, plaintiff's "request for an index of the asserted exemptions is frivolous. . . . The FBI produced to [plaintiff] copies of records that show the precise location and extent of the redaction in context, and that correlate the claimed exemptions with each redaction. A separate index of redactions would not only be redundant . . . but would provide less, not more, information to him, because the index would remove the context." Finally, plaintiff's request for in camera review is denied, as he has not provided any justification for this request.
• Adequacy of search: Plaintiff complains that the FBI did not search its I-drive, as he specifically requested. However, "there is good reason to conclude that no documents responsive to his information request would be found on an I-drive in 2006 or later. Furthermore, it is not even clear that the Chicago Field Office maintains an I-drive, as some field offices now have a shared drive that is identified by some other letter. . . . These facts illustrate why the law does not require an agency to conform its search to the dictates of a requester, but rather to conduct a search that is reasonably expected to produce the information requested." Plaintiff "has not offered any specific facts to support a conclusion that the FBI's decision not to search its I-drive was unreasonable or fell short of the requirements of the law to conduct a search that is 'reasonably expected to produce the information requested.'" Similarly, plaintiff's assertion that the FBI must have additional records on him is not convincing, both because he "is not entitled to records about other persons . . . and [because] the FBI is but one of multiple DOJ components that might have created and maintained records in the investigation leading to [plaintiff's] prosecution."
• Exemptions 2 & 7(D): "On their face, these exemptions justify withholding the agency's assigned identification code number for a [confidential source], and the information that was gleaned from the [confidential source]."
• Exemptions 2 & 7(E): Defendant properly asserted these two exemptions to withhold "its internal assessment ratings of publicly known law enforcement techniques and procedures." Plaintiff's claim that the exemptions only apply to "techniques or procedures that are not generally known to the public" is incorrect. The FBI's "investigative techniques 'are rated numerically to memorialize their effectiveness' and . . . '[i]f the form contains a numerical rating adjacent to one or more of the listed investigative techniques, all columns of ratings are excised in order to preclude disclosure of both the particular investigative techniques used in the investigation and the effectiveness of the individual techniques.'"
• Exemptions 6 & 7(C): "[T]he application of these exemptions [to withhold information about third parties] appears justified on their face." Plaintiff claims that the withheld information is already in the public domain, but he "has not '"point[ed] to specific information in the public domain that appears to duplicate that being withheld,''' as the law requires him to do before a court can find that the exemption has been waived by the public domain doctrine.
3. Edwards v. EOUSA, No. 08-1956, 2010 WL 1038465 (M.D. Fla. Mar. 19, 2010) (Convington, J.)
Re: Third-party request
• Waiver: Plaintiff's only challenge to defendant's withholdings is to claim that EOUSA cannot withhold the records in question because it previously released them to him. "The Court finds that Plaintiff's assertions fail to raise a genuine issue of material fact that precludes summary judgment."
4. Santana v. DOJ, No. 09-300, 2010 WL 1031009 (D.D.C. Mar. 18, 2010) (Leon, J.)
Re: Third-party request
• Adequacy of search: Defendant's "declaration does not specifically identify what information" it categorically denied access to and what information it conducted a search for. "On this record, the Court cannot determine what parts of the plaintiff's FOIA request were allocated to each of the two searches opened by the defendant, and therefore, cannot assess the agency's responses in light of the subject matter to which the responses relate. Furthermore, the Court cannot determine either the scope and method of the search conducted in relation to No. 07-158, or whether a search was conducted at all in response to No. 07-159. Without a declaration that explains in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search . . . including identifying which systems of records were searched and the search terms used to conduct the search, the Court cannot assess the reasonableness of any search." Defendant is ordered to submit a renewed dispositive motion within 30 days.
5. Ramstack v. Dep't of the Army, No. 08-0658, 2010 WL 966210 (D.D.C. Mar. 18, 2010) (Urbina, J.)
Re: First-party request
• Litigation considerations: "The applicable statute of limitations for FOIA actions is set forth in 28 U.S.C. § 2401(a), which requires that a complaint be filed within six years of the accrual of a claim." Under the FOIA, a "claim first accrues 'when the plaintiff has actually or constructively exhausted his administrative remedies.'" Defendant Department of State closed its case files pertaining to plaintiff's requests in 1988 and 1990, and then, pursuant to document destruction schedules, "destroyed these files in 1994 and 1995 based on the absence of activity. . . . Because the DOS destroyed the relevant files in 1994 and 1995, the court has no record of whether the DOS responded to the plaintiff's requests or whether the plaintiff appealed any such response by the agency. . . . [H]owever, the absence of such records does not prevent the court from reaching a disposition of these claims." If the State Department did not respond to plaintiff's request, the statute of limitations would have commenced ten business days after plaintiff's 1987 request. If the State Department did respond, and if plaintiff filed an administrative appeal, "any such activity must have concluded by 1995, when the DOS destroyed the files at issue, as the DOS recovered no subsequent correspondence or records reflecting activity in connection with these requests." Under either scenario, the statute of limitations on plaintiff's claims would have run long before 2008, when plaintiff filed his complaint with the court. Thus, the court does not have subject matter jurisdiction over plaintiff's claims against the Department of State.
• Adequacy of search: Defendants CIA and Army assert that their most recent searches "were thorough and adequate and warrant summary judgment in their favor. . . . The plaintiff does not dispute the adequacy of these new searches." Instead, plaintiff claims that defendant Army must explain how it could find no records pertaining to plaintiff even though the Department of Veterans Affairs has records reflecting plaintiff's enlistment in the Army. "The plaintiff has not provided any evidence that the defendants' affidavits are in bad faith. . . . In the absence of any contrary suggestion by the plaintiff, the court concludes that the new searches conducted by the CIA . . . and the Army . . . were adequate." Defendants were not required to explain the purported existence of VA records pertaining to plaintiff, but they "have gone above and beyond their strict obligations under the FOIA by providing an explanation of the VA records in question."
6. Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539 (D.D.C. Mar. 18, 2010) (Kollar-Kotelly, J.)
Re: First-party request; request for documents pertaining to possible violations of Federal Acquisition Regulation by USAID
• Proper party defendant: Though plaintiff brought suit against defendant in his official capacity as USAID Administrator, "FOIA actions may be brought only against an agency."
• Adequacy of search: Defendant's searches for responsive records "were targeted by key phrases that correlated to the substance of [plaintiff's] requests. The declarations are relatively detailed and not conclusory in nature. [Plaintiff] argues that the agency's search was not adequate because it did not turn up every record that [plaintiff] believes to exist and was conducted in bad faith. . . . However; 'the focus of the adequacy inquiry is not on the results.' . . . The fact that other responsive records may exist does not render a search inadequate. . . . As for bad faith, [plaintiff's] allegations are conclusory and unsupported by evidence in the record."
However, since plaintiff specifically requested that USAID search back-up tapes, the agency "must, at the very least, explain whether or not such back-up tapes exist, were searched, or were likely to contain responsive records." Moreover, though defendant has explained which offices were searched, its declarations "do not aver that the five offices searched were the only offices likely to contain responsive information. Accordingly, the Court cannot determine, based on the present record, whether or not USAID's search was adequate." Contrary to his claims, however, plaintiff has not demonstrated that he is entitled to summary judgment on this issue, either, "because he has not shown based on undisputed facts that USAID's search was inadequate as a matter of law."
• Reasonably described records: Defendant appropriately determined that plaintiff's requests for documents that might reflect any "'possible violations of FAR 16.505'" since 1995 were vague and overbroad. These requests "would require the agency to 'locate, review, redact, and arrange for inspection of a vast quantity of material.' . . . In addition, the agency would need to make a complicated judgment call in order to determine what records might indicate a 'possible violation' of fair opportunity provisions."
• Litigation considerations/timeliness: Plaintiff "argues that he should be entitled to relief because USAID was not timely in its production of documents in response to his requests. However, 'a lack of timeliness or compliance with FOIA deadlines does not preclude summary judgment for an agency, nor mandate summary judgment for the requester.' . . . Moreover, to the extent that [plaintiff] seeks as a sanction monetary relief such as a fee waiver, his claim is not authorized by FOIA."
• Exemption 5 (attorney work-product & attorney-client privileges): The "evidence clearly shows that the documents withheld or redacted constitute legal advice or communications with agency counsel regarding either [plaintiff's] legal proceedings or the agency's use of Iraq funds. Thus the agency had a reasonable basis for withholding or redacting information based on the attorney-client and attorney work-product privileges pursuant to Exemption 5."
• Exemption 6: USAID properly redacted the home phone numbers of its employees as well as the identities of USAID employees not connected to plaintiff's requests. In both cases, there are legitimate privacy interests at stake, and little or no public interest in disclosure.
7. Barnett v. U. S. Dep't of Labor, No. 09-146, 2010 WL 985225 (E.D. Tex. Mar. 15, 2010) (Hines, Mag. J.)
Re: Witness statements
• Exemption 7(C): The court finds that the public interest in the requested records outweighs any privacy interest, except as to personally identifying information of the witnesses, including "names, addresses, telephone numbers, social security numbers and similar personal identifiers."
• Exemption 7(D): Because the witnesses were given express assurances of confidentiality, Exemption 7(D) applies, but only in order to protect information protected under Exemption 7(C) "plus any substantive factual information that reasonably can be expected to disclose the identity of a witness. The court has conducted a segregability analysis, and has determined that some of the withheld factual information reasonably could be used to link information to a confidential source whereas some could not." A confidential witness's handwritten statement can be withheld in full since "handwriting analysis could be used to link the statement to its source." The transcribed version, on the other hand, can be released in part.
WEEK OF MARCH 29District Courts
1. Bigwood v. DIA, No. 08-1431, 2010 WL 1189850 (D.D.C. Mar. 30, 2010) (Urbina, J.)
Re: Records pertaining to Columbian paramilitary leader Carlos Castaño
• Litigation considerations: Plaintiff's claims are time-barred. He submitted his request in April 2001, meaning that the six-year statute of limitations that applies in FOIA cases began to run on May 21, 2001, twenty business days after plaintiff made his request (to which defendant did not respond). Plaintiff claims that the statute of limitations was re-started in 2005 when he made a request for expedited processing of his initial request, but "he offers no legal authority for his position . . . and the court is unaware of any case law that would support such a result." Thus, plaintiff's time for filing suit expired in May 2007, more than one year before he filed his claim. Furthermore, even were the court to accept plaintiff's argument that his request for expedited processing re-started the statute of limitations, then plaintiff's claim would be dismissed for failure to exhaust administrative remedies, since he did not file an administrative appeal of defendant's denial of his request for expedited processing.
2. Concepcion v. FBI, No. 07-1766, 2010 WL 1189832 (D.D.C. Mar. 30, 2010) (Urbina, J.)
Re: Records related to criminal investigation of plaintiff
• Sealing Orders: Defendant has not provided sufficient justification for its claim that the sealing order issued by the judge in plaintiff's criminal case should be read to bar release of a draft affidavit that is identical to an affidavit that was filed with the court under seal. The sealing order "itself presents no rationale for its issuance" and "defendant presents no transcript or other documentation to cast light on the factors that motivated the court to impose the seal."
• Exemption 7(C): The FBI appropriately asserted this exemption to protect the name of an FBI Special Agent who supervised the criminal investigation of plaintiff. Such information is "routinely withheld under Exemption 7(C) on the ground that . . . disclosure could reasonably be expected to constitute an unwarranted invasion of the officers' personal privacy."
• Exemption 7(D): Defendant properly used this exemption to withhold the identify of and information provided by a cooperating witness. Defendant's affidavit explains that the withheld information is "'singular in nature,' and that the release of the information 'could reveal the informant's identity.'"
3. Gov't Accountability Project v. U.S. Dep't of State, No. 08-1295, 2010 WL 1222156 (D.D.C. Mar. 29, 2010) (Leon, J.)
Re: Documents pertaining to the Foundation for the Future (FF)
• Exemption 1: The State Department properly withheld telegrams sent from U.S. embassies that "convey[ed] the views of foreign government officials. . . . The telegrams include information obtained in confidence during the course of the conduct of U.S. foreign relations." Defendant's declaration establishes that "the original classification authority in the State Department determined that disclosure of the withheld information could reasonably be expected to cause damage to national security and describes such damage." In particular, "disclosure of the information in question would cause foreign governments to become less willing in the future to furnish information important to the conduct of U.S. foreign relations."
• Exemption 4: Though plaintiff "appears to argue that the withheld information is not commercial," the D.C. Circuit "has found that 'the terms "commercial" and "financial" in the exemption should be given their ordinary meanings' and that the commercial information provision is not confined to only those records that reveal 'basic commercial operations.'" The withheld documents, which pertain to the possibility of FF establishing operations in certain areas as well as other matters pertaining to FF operations, show that "defendant has demonstrated FF's commercial interest in the information withheld under Exemption 4." Moreover, defendant "has shown that the information withheld under Exemption 4 was submitted voluntarily and 'was provided with the expectation of confidentiality.' . . . In addition, the defendant has demonstrated that releasing the withheld information 'would harm the competitive position of the FF vis-a-vis other foundations working in the same region and competing for similar high-quality projects.' . . . This information concerning FF's internal deliberations is certainly not the type that would '"customarily" be made public.'"
• Exemption 5 (threshold & deliberative process privilege): The court finds that documents created by a contractor hired by defendant meet the Exemption 5 threshold, even though the contractor was hired to provide advice and assistance to FF, and not to the State Department itself, directly. "[I]t is obvious that the Eurasia Foundation acted as a consultant to the State Department, and not in any adversarial capacity that would negate the consulting relationship."
As to defendant's use of the deliberative process privilege, "[i]t is apparent that [the] documents [withheld pursuant to the deliberative process privilege] are pre-decisional. Furthermore, the descriptions of these documents indicate that they contain advice and recommendations that were an integral part of identifiable decisional processes and were deliberative in nature. . . . Plaintiff's argument that the defendant failed to produce a specific decision for any of the documents is unconvincing in light of the specific decisions clearly at issue for each of the challenged documents. In addition, I agree with defendant's assertion that disclosure of this information is likely to interfere with the candor necessary for open and frank discussions on the defendant's preferred course of action regarding the FF."
• Exemption 6: Defendant properly withheld "personal email addresses of several individuals, the names and curriculum vitae of individuals who were considered for the FF board but were ultimately not selected, and any purely personal information contained in the curriculum vitae of the successful applicants for the board." In this case, "the private individuals mentioned in these records have a clear privacy interest in avoiding the disclosure of their personal email address. . . . Furthermore, releasing their email addresses serves no public interest because these email addresses would not reveal 'what the government is up to.'"
4. ACLU v. DOJ, No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson, J.)
Re: Documents pertaining to use of cell phone tracking in criminal investigations and prosecutions
• Adequacy of search: DOJ's affidavit "adequately demonstrates that the search was reasonable. . . . The fact that the search did not yield final versions of certain draft documents does not render the search itself inadequate. Final versions may not exist, and, even if they do, a search need not yield every document to be adequate. . . . The ACLU erroneously argues that it was the government's burden to show that a more extensive search would be unduly burdensome. That is not the rule where, as here, the government has conducted a search that fully addresses the scope of the request."
• Exemptions 2 & 7(E): DOJ properly withheld "guides or samples that AUSAs use in drafting applications, orders and declarations to obtain authorization for cell phone monitoring. These documents are not final applications or orders, so it is quite evident that they are 'predominantly internal.' And, the government provides adequate affidavit support for its argument that release of the redacted information would risk circumvention of the law because it would reveal information about how co-conspirators can be identified, the conditions under which cell phone tracking would not work, and details about the conditions necessary for cell phone tracking to be effective." DOJ also appropriately withheld "information on law enforcement techniques that are not readily available to the public." "As the government correctly points out, the first prong of Exemption 7(E) permits withholding of information that would disclose techniques and procedures for law enforcement investigations or prosecutions without a showing [of] risk of circumvention." The withheld records "reveal limitations of the law enforcement techniques, details about what the cell phone records can capture, and uses of the records that are not obvious or well-known."
• Exemptions 6 & 7(C): Plaintiff seeks the case names and docket numbers of cases "in which courts granted applications to obtain cell phone location data without probable cause determinations." The court "allocate[s] a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." Plaintiff asserts that there is a public interest in release of this information because it will explain "'to what extent and to what end the government is engaged in cell phone tracking, to what extent these surveillance activities lead to prosecutions, and to what extent these prosecutions are successful.'" However, plaintiff "provides only a meager explanation of just how the release of case names and docket numbers will advance that interest."
In the court's view, the ACLU's interest is in "find[ing] and pursu[ing] the juiciest cases - the ones that would best illustrate the Fourth Amendment argument the ACLU is apparently developing. The easier it becomes to pursue such follow-up investigations, however, the more likely it is that unwarranted invasions of personal privacy will occur." The court finds that the public interest in release outweighs the privacy interests at stake as to those defendants who have been convicted or who entered guilty pleas, but that the privacy interests of defendants who have been acquitted or whose cases have been and remain sealed outweighs the public interest in release of case names and docket numbers. As to docket numbers from applications for cases yet to be prosecuted, ACLU concedes that the names of unprosecuted targets are exempt. Given the fact that after such names are redacted, nothing would be left but "in re" lines, the court "will not order the government to make such a meaningless production." As to docket numbers for cases subject to seal, disclosure "could reveal surveillance targets yet to be prosecuted," thus the redactions are appropriate.
5. Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice)
Re: First and third-party requests
• Adequacy of search: Plaintiff's request to defendant U.S. Postal Inspection Service (USPIS) specifies that the search not be limited to criminal files, but USPIS's declaration "does not explain why plaintiff's requests for information about himself are presumed to implicate investigative files maintained in the [Inspection Service's Integrated Information System]. Moreover, the USPIS does not explain sufficiently its interpretations of plaintiff's FOIA requests." As a result, USPIS has "not demonstrate[d] that it has searched the files or systems of records most likely to contain records responsive to plaintiff's FOIA requests."
• Litigation considerations: "Neither plaintiff's status as a Native American or his intended use of the requested records leads inexorably to the conclusion that he is entitled to the release in full of all the records he requested."
• Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E): The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.
• Exemption 7 (threshold): Defendant BOP failed to show that the records it withheld under Exemptions 7(C) and 7(F) were compiled for law enforcement purposes. "[T]he agency appears to rely solely on its status as a law enforcement agency as the premise from which the Court should conclude that any record it maintains was compiled for law enforcement purposes." This is insufficient.
• Exemption 7(A): Defendant USPIS "offers no justification" for its assertion of this exemption "beyond two conclusory statements."
• Exemption 7(F): BOP "does not explain 'whether there is some nexus between disclosure and possible harm' to . . . third parties."
6. Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar. 26, 2010) (Waddoups, J.)
Re: Records pertaining to bombing of Murrah federal building in Oklahoma City
• Litigation considerations: "[T]he court concludes that [plaintiff] has not made any credible argument or proffered any evidence that suggests that the CIA acted in bad faith in withholding any of the documents in this case." Moreover, he "points to no authority suggesting that a long delay in responding to FOIA requests alone will support a finding of bad faith by a withholding agency."
• Exemption 1/In camera review: The CIA properly invoked this exemption to withhold several classified documents related to the Oklahoma City bombing. Defendant's "Vaughn index and . . . affidavits" are sufficient. Though plaintiff asserts that there is no showing that an attorney who made notes on one of the documents had a proper security clearance, "that fact can be inferred from the fact that [the attorney in question] was allowed access to review classified documents." The court disagrees with plaintiff that in camera review is required, especially in light of the fact "that courts are ill-equipped to properly weigh national security interests and accordingly, 'if the agency . . . diligently and conscientiously submits affidavits summarizing the matters withheld wherein it clearly indicates the rationale for the claimed exemption, the trial court need not undertake an in camera inspection of the documents.'"
• Exemption 5 (attorney work-product privilege): Defendant appropriately withheld several memos from CIA attorneys to DOJ attorneys related to prosecution efforts in light of the Oklahoma City bombing. Plaintiff incorrectly asserts that Exemption 5 is limited to the attorney-client privilege. While the court agrees with plaintiff "that facts are not covered by the work product doctrine . . . how the CIA attorney described the records and his or her mental impressions of them . . . would not have been subject to discovery." Plaintiff is further incorrect in his assertion that the CIA was required to segregate out and release factual materials, "because attorney work product 'shields both opinion and factual work product from discovery.'"
7. Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.)
Re: Records pertaining to Civil Division's case management system database [CASES]
• Adequacy of search: Plaintiff challenges defendant's good faith in carrying out its search. Chiefly, plaintiff asserts that defendant changed the names of data fields in the responsive records in order to make them appear more appropriate for withholding. However, defendant's declaration "explains that the changes were made by [agency] staff in order to assist the FOIA office in making exemption determinations and to reflect defendant's understanding of what those fields contain. Thus, plaintiffs have failed to rebut the presumption of good faith to which the declarations are entitled."
• Procedural matters/marking documents: The court accepts defendant's explanation that it would not be technically feasible to show redactions for sealed cases in the released portions of the requested records. Defendant's "declarations are specific, and explain in detail that defendant cannot indicate redactions for sealed cases because the method required to do so would cause 'system run-time problems'" and the designated "query would not produce a result."
• Exemption 2 ("low" & "high"): DOJ appropriately withheld user IDs for its internal computer network [JCON]. "It is undisputed that JCON IDs relate solely to the [Civil] Division's internal rules and practices regarding use of the JCON system. Further, there is no public interest in the JCON IDs. Indeed, plaintiffs seek disclosure of the JCON ID fields solely to determine which attorney is handling each filed case, not because any JCON ID intrinsically discloses anything about the workings of the agency. Even if there were an identifiable public interest in a user's login information, defendant has established that disclosure of JCON IDs would violate its network security policies."
• Exemptions 2 & 6: Defendant has not provided the court with enough information to justify its withholding of information describing structured settlements. This information includes number of payments, amount received, dates that checks were written, and beneficiary name. "Defendant's declarations contain no details; they do not explain how or why these records are internal, nor do they explain the kind of cases to which the records are connected." Defendant will be given an opportunity to supplement its filings on this issue.
Similarly, defendant did not adequately justify its decision to withhold alien registration numbers or "non-employee identification numbers 'assigned by the government to identify private individuals.'" Defendant offers no details on "how disclosure could lead to identity theft." The court agrees with plaintiff that defendant "failed to specify the privacy interest" for most of the withheld numbers, nor has it demonstrated to the court that it could not segregate out releaseable from protected information. Defendant will be given an opportunity to supplement its filings on this issue.
• Exemption 5 (deliberative process & attorney work-product privileges): The court finds that defendant has not provided sufficient detail to justify its decision to withhold a field that reflects the amount of damages one party seeks, either when this amount has been formally stated by the plaintiff, or is merely an estimate by a DOJ attorney of what a plaintiff will seek. "Defendant does not explain what disclosure of the information in the 'government exposure amount, based on attorney estimate,' 'monetary value for undisposed event awarded to the opposition' fields would reveal; it states only that they 'reflect the mental impressions of attorneys regarding particular cases.' Thus, the court has no factual basis on which to assess how the amounts are determined, what the amounts are based on, and how they relate to the litigation process." Furthermore, defendant "has failed to indicate the proportion of exempt and nonexempt information in any of the declarations on which it relies." Defendant will be given an opportunity to file a renewed declaration. Similarly, defendant has not provided enough information for the court to determine whether it appropriately withheld a data field indicating the amount of damages considered punitive in a given case.
The court finds that defendant appropriately withheld, as attorney work-production information, attorney time records reflecting the amount of time DOJ attorneys have expended on ongoing cases. Defendant's "declarations show that the time records reflect the intensity of the government attorneys' efforts in handling individual cases. This information would reveal to opposing parties the amount of time the government's attorneys were spending on particular cases and provide insight into the government's litigation strategy at future stages." Plaintiff's argument that such information should be revealed as to certain allegedly completed "stages" of open cases does not account for the fact that these ostensibly completed stages may still be contested by the parties.
Conversely, defendant has not provided enough information for the court to determine whether it appropriately withheld fields containing "'notes either input directly by attorneys or based on contractor interviews with attorneys,'" that "'relate to litigation activities and can contain an attorney's thoughts and legal analysis of a case.'" "[D]efendant offers no specific description of what an attorney note might contain . . . or any examples of what 'other information which cannot be entered in the CASES data fields' might consist." Thus, plaintiff has not been afforded sufficient opportunity to challenge defendant's withholding decisions as to these records. Defendant will be given an opportunity to supplement its submissions on this issue.
• Exemption 6: The court finds that defendant improperly withheld the "'date vaccine administered' and vaccine type" fields. The Vaccine Act, upon which defendant relies for its conclusion that such information should be withheld in order to protect the privacy of the vaccine recipients, specifically contemplates the release of this information. "[T]he Court finds no basis for defendant's decision to withhold vaccine date and type from disclosure under Exemption 6."
Defendant did not adequately explain its decision to withhold phone and fax numbers and email addresses of attorneys who appeared in the cases listed in the CASES index, but will be given an opportunity to supplement its original filings on this issue.
8. Lieff, Cabraser, Heimann & Bernstein, LLC v. DOJ, No. 09-00157, 2010 WL 1063785 (D.D.C. Mar. 24, 2010) (Kennedy, J.)
Re: Records pertaining to requests for leniency under Antitrust Division's [ATD] investigation of anticompetitive practices in the sale of municipal derivatives products
• Exemption 7(A): Defendant properly invoked this exemption to withhold correspondence exchanged between the ATD and a participant in the leniency program. Disclosure of this information would reveal the names of potential witnesses to defendant's investigation, would reveal information about the bank's participation in the leniency program and what evidence it provided to defendant, and would also indicate how much evidence defendant has gathered and where its investigation stands. "The D.C. Circuit has previously held that the withholding of information about an investigation, even where the fact that the investigation was ongoing was known, was appropriate because the disclosure of particular documents could provide details about the 'particular types of allegedly illegal activities being investigated' as well as the names of potential witnesses, who would then be 'less likely to cooperate fully with the [investigating agency].'" Plaintiff claims that some of the withheld information is in the public domain, but it has failed to make any evidentiary showing to bolster this claim.
• Exemption 7(A)/Glomar: Defendant ATD properly refused to confirm or deny the existence of correspondence between itself and any other entities regarding requests for leniency in this particular market. Disclosing "the existence of another confidential source within the cartel under investigation would lead members of the cartel to attempt to identify and intimidate the leniency applicant and to more carefully hide information."
• Segregability: The court finds that the ATD has made a sufficient showing that there were no releaseable portions of its correspondence with the bank participant. ATD's declaration "describes concerns about releasing dates, letterhead, and information about the length of the records in addition to disclosing any of their content." However, ATD "has conceded that it could redact exempt material from the [leniency] letter. The concern that releasing the letter even without the exempt material would compromise the confidentiality policy on which the Bank and other actual and potential leniency applicants rely is neither logical nor grounded in law." Thus, "[t]he letter must be produced with appropriate redactions."
9. Dorsey v. EEOC, No. 09-519, 2010 U.S. Dist. LEXIS 28714 (S.D. Cal. Mar. 23, 2010) (Benitez, J.)
Re: First-party request
• Proper party defendant: Plaintiff's complaint is dismissed as to defendant Surfer Restaurant and Hotel, because it is not a federal agency subject to the FOIA. Plaintiff will be allowed to maintain his action against defendant EEOC. (posted 04/21/2010)
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