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Summaries of New Decisions -- October 2010

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 October 2010.

WEEK OF SEPTEMBER 27 - OCTOBER 1

District Courts

1. Budik v. Dep't of the Army, No. 09-1518, 2010 WL 3833828 (D.D.C. Sept. 30, 2010) (Kollar-Kotelly, J.)

Re: Requests for records concerning plaintiff's former employment at a medical center

• Adequacy of search: The court concludes that "Defendant conducted an informed, detailed and good faith search of sources likely to reveal documents responsive to Plaintiff's [] request." First, the defendant contacted the various sources "that could be 'reasonably expected' to produce information responsive to Plaintiff's requests for 'personnel records' and 'documents and records related to [her] employment.'" Second, the Army's declaration "describes in considerable detail the issues that arose during the course of Defendant's search, and the remedial steps that [were taken] to ensure that no responsive documents were overlooked." Lastly, the declaration "go[es] beyond simply averring that all files likely to include responsive documents were searched, [it] provides that 132 pages of documents [] located comprised the only documents maintained by Defendant that were responsive to Plaintiff's request."

• Adequacy of search/allegations of bad faith: The court finds that plaintiff's allegations which go to the "propriety of Defendant's underlying conduct vis-a-vis Plaintiff during the course of her employment, or shortly thereafter" do not constitute a valid challenge to the legitimacy of defendant's search for records in response to her FOIA request. Moreover, the Army's delay in responding to the requests, discrepancies concerning the page counts of documents disclosed, lack of notice informing of plaintiff of her right to administrative appeal, and an improper redaction of a signature block which was subsequently voluntarily released are not sufficient to demonstrate agency bad faith.

Vaughn Index: With respect to four categories of documents, the Court finds that defendant "failed to correlate the claimed exemptions with specific documents (or portions thereof) and, in most instances, neglected to describe in reasonable detail the contents of the withheld documents" and that the agency's "submissions reduce to a blanket assertion that it properly redacted some unknown portion of responsive documents that included personal information and some unknown portion of e-mail correspondence relating to Plaintiff's employment." Additionally, "Defendant's submissions do not give this Court enough information to conduct an adequate segregability analysis." As such, the court directs the defendant to provide a more detailed justification for these records.

• Exemption 6: The court determines that the Army's withholding of an email address was proper in light of the fact that "Plaintiff has pointed to no public interest in disclosing the e-mail address, and the Court concludes there is no such interest sufficient to outweigh the privacy interest involved."

• Exemption 5 (deliberative process and attorney-client privileges): Defendant did not adequately demonstrate certain communications were protected by either the deliberative process or attorney-client privileges. The court notes that "[a]lthough defendant avers that one party to the communications at issue was military counsel, . . . Defendant has failed to present any evidence demonstrating the confidential nature of the communications, or showing that they were made for purposes of seeking or rendering legal advice." Furthermore, "while the 'drafts' referenced by the Defendant may very well fall within the ambit of the 'deliberative process' privilege, Defendant fails to describe the contents of those drafts or how they relate to a specific agency decision."

2. Gray v. U.S. Army Crim. Investigation Command, No. 09-1310, 2010 WL 3833937 (D.D.C. Sept. 30, 2010) (Sullivan, J.)

Re: Requests for records related to a Criminal Investigation Command investigation

• Exemption 7(A): As a preliminary matter, the Court finds that "records compiled for a pending administrative disciplinary action may fall within Exemption 7(A)." The court also concludes that even though "the U.S. Attorney's Office has declined prosecution," defendants have shown that a "proceeding is pending or at least reasonably anticipated" where "the U.S. Army is still considering whether to take disciplinary action against the subjects of the investigation." However, the court ultimately holds that the agency's "conclusory, boilerplate statements, without reference to specific documents or even categories of documents," which "appear designed to cover every scenario in which a plaintiff seeks the disclosure of records related to a law enforcement proceeding," are not sufficient to support its assertion of Exemption 7(A).

• Segregability: The court finds that defendants' "blanket assertion" that all records were withheld in full pursuant to Exemptions 6, 7(A) and 7(C) because "[a]ll records were compiled in the course of an ongoing investigation and disciplinary action [and] [t]herefore none of the materials were segregable" was not sufficient to "establish that there are no segregable portions of the withheld documents."

• Exemptions 6 & 7(C): "In light of the failure by defendants to sufficiently demonstrate non-segregablity, and in light of defendants' own assertion that it is not relying on these exemptions for withholding of the entire file [once Exemption 7(A) no longer applies], the Court concludes that these exemptions cannot be properly applied at this time."

3. Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.)

Re: First-party requests to four DOJ components

• Exhaustion of administrative remedies: Notwithstanding the fact that duplication fees were incurred in connection with plaintiff's request, the court grants his request that he receive 100 pages free of charge because "[a]lthough the EOUSA may require payment of copying fees prior to the release of responsive records, neither its written notice to plaintiff nor its declaration in support of its summary judgment motion precludes the release of 100 pages of records at no charge to plaintiff." The court further notes that even though EOUSA advised plaintiff that his "request would be closed if payment was not received within 30 days, [] it did not state expressly that plaintiff's failure to respond timely would be cause for administrative closure of the request."

Plaintiff did not exhaust his administrative remedies with respect to five "related" files in which his name was mentioned where DEA offered plaintiff the option to have those files manually searched and plaintiff did not agree to a pay the associated costs or challenge the DEA's motion on this ground.

• Adequacy of search: The court concludes that ATF, the FBI, and DEA each conducted adequate searches where their declarations explained the systems of records searched and the search terms used and where plaintiff "present[ed] no challenge to any of the components' searches." The court rejects plaintiff's claim that defendant's failed to search for records related to injuries incurred by two DEA agents because neither the FOIA request that asked for these records nor the subject of that request were mentioned in plaintiff's complaint.

• Exemption 2: The court holds that, pursuant to "low 2," ATF and DEA properly withheld internal file numbers, administrative codes, laboratory case numbers, picture file numbers and an operational telephone number that are of no genuine interest to the public. Additionally, the court finds that ATF properly asserted "high 2" to protect "sensitive code and computer information" associated with federal and local law enforcement databases. The FBI's properly invoked "high 2" to withhold "a cooperative witness file number" on the basis that disclosure "'could ultimately identify the source,'" "'would not serve any public interest . . . [and] would impede the effectiveness of the FBI.'" The court also concludes that DEA appropriately withheld "informant identifier codes" and other internal codes, which indicate certain information related to the criminal investigation of plaintiff, pursuant to "high 2."

• Exemption 3: The court determines that ATF properly withheld Firearm Trace Reports pursuant to Exemption 3 in connection with the Consolidated Appropriations Act of 2005, which "expressly prohibits disclosure of information in the Firearms Trace System Database and information maintained pursuant to 18 U.S.C. § 923(g)."

• Exemption 5 (attorney work product and deliberative process privileges): ATF properly withheld in full "'[e-]mails used in pre-decisional investigatory strategy in preparation for litigation'" which "'were prepared by ATF Special Agents and ATF attorneys'" and "pertained to 'legal implications of the investigation'" and contained "'candid discussion of the strengths and weaknesses of the [ATF's] case against the [p]laintiff.'" The court concludes the communications are protected by both the deliberative process and the attorney work product privileges because ATF "has established that the e-mail messages [] are pre-decisional and deliberative, as the information pertained to a then-ongoing criminal investigation of plaintiff and others" and ATF "also has shown that the messages include attorney work product prepared in anticipation of criminal proceedings, as well as privileged conversations between an agency attorney and the agents investigating a case."

• Exemption 7 (threshold): As an initial matter, the court find that the defendants "have established and plaintiff does not dispute, that the [ATF], the FBI and the DEA are law enforcement agencies, and each component easily meets Exemption 7's threshold requirement by establishing that the record at issue were compiled for law enforcement purposes."

• Exemption 7(C): Citing case law discussing instances where agencies' appropriately asserted Exemption 7(C) in connection with law enforcement investigations, the court holds that ATF, the FBI, and DEA "properly withheld the names of and identifying information about federal and local law enforcement officers and support personnel, confidential sources, witnesses, interviewees, persons of investigative interest, and innocent third parties mentioned in the law enforcement records relevant to this case."

• Exemption 7(D): The FBI and DEA properly invoked Exemption 7(D) to withhold identifying information related to cooperating witnesses and a confidential sources where they were able to establish that these individuals "provided information under an express assurance of confidentiality." Additionally, the court recognized that, due to the potential for violence and risk of retaliation, sources who provided information to law enforcement entities regarding the "cocaine trade" and "methamphetamine trafficking" did so under an implied assurance of confidentiality and, accordingly, defendants correctly redacted their identifying details.

• Exemptions 2 & 7(E): Based on ATF and the FBI's representations and "absent any substantive challenge from plaintiff, the court finds that defendants properly asserted Exemptions 2 (high) and 7(E) to protect "firearms toolmark examination techniques and search and arrest warrant techniques," "'a form used by FBI [agents] to report investigative accomplishments,'" and "'procedures and techniques used by the FBI [agent] during plaintiff's and other primary subjects' [undercover] drug distribution investigation.'"

• Referrals: The court denies summary judgement in part "[b]ecause the results of the [ATF's] referral of records to [two agencies] have not been explained."

4. Am. Postal Workers Union, AFL-CIO v. USPS, No. 09-237, 2010 WL 3833941 (D.D.C. Sept. 30, 2010) (Sullivan, J.)

Re: Request for records related to the most recent Pay for Performance (PFP) bonus and pay increases

• Exemption 3: USPS properly asserted Exemption 3 in connection with 39 U.S.C. § 410(c)(2) to withhold information related to the PFP program's performance-based incentives for employees. The court notes that "[a]s a threshold matter, the parties agree that § 410(c)(2)," which protects "'information of a commercial nature, including trade secrets, whether or not obtained from a person outside the [USPS], which under good business practice would not be publicly disclosed,'" constitutes "a statute of exemption as contemplated by Exemption 3."

The court rejects plaintiff's contention that "the requested information is not 'of a commercial nature'" within the meaning of the statute, finding that "it is information that 'would be of potential benefit to persons or firms in economic competition with the Postal Service' . . . [and] that the information is commercial under the common understanding of the word." With respect to plaintiff's claim that "'good business practices' would not prevent the disclosure of the requested information," the court concludes that "plaintiff offers no evidence contradicting the agency's contention that private sector delivery firms would not disclose this [detailed salary] information" to the public.

• Segregability: "In light of plaintiff's lack of objection to defendant's assertion of non-segregability and the narrow category of information requested by plaintiff, namely records containing a list of lump-sum bonuses and salary increases for employees of the Postal Service, the court agrees with the agency that there is no segregable portion of the records."

5. Judicial Watch, Inc. v. Fed. Housing Fin. Agency, No. 09-1537, 2010 WL 3833821 (D.D.C. Sept. 30, 2010) (Friedman, J.)

Re: Request for Freddie Mac and Fannie Mae records concerning campaign contributions and any related policies, stipulations and regulations

• Procedural requirements/agency records: Applying the analysis set forth by the Supreme Court in Tax Analysts, the court concludes that Freddie Mac and Fannie Mae records do not constitute agency records within the meaning of the FOIA. The court finds that the requested records meet the first prong of the test because the Federal Housing Finance Agency (FHFA) "has 'obtained'" them"[i]n its role as conservator" under the Housing and Economic Recovery Act of 2008 (HERA). With respect to whether the FHFA "controls" the records, the court uses a four-factor test employed by the D.C. Circuit. Concluding that the "first factor weighs heavily in favor of plaintiff," the court finds that Freddie Mac and Fannie Mae "knowingly gave up their records to the conservator, . . .[and therefore] they did not intend to retain control of them and in fact intended to relinquish control." The court also determines that "second factor favors the plaintiff" because, under the terms of the HERA, "FHFA is virtually unrestricted in its use of the records" and "[a]s the conservator, the FHFA has the right to copy, distribute, or otherwise use the records." However, the court finds that the third and fourth factors favor the defendant because FHFA "has not read or relied on any of the records in its work" and the records "have not been used, distributed, or incorporated into the FHFA's files in any way." Based on this analysis, the court concludes that "[t]he strength of the third and fourth factors tips the scales in favor of the defendant." Additionally, the court notes that "because the records were created before the FHFA took over as conservator and the agency has not relied on them, they reveal little, if anything, about the structure or operation of the government agency, and their production therefore would not further the purposes of the FOIA."

6. Bryant v. CIA, No. 09-940, 2010 WL 3833949 (D.D.C. Sept. 30, 2010) (Sullivan, J.)

Re: Request for records related to UFO encounters

• Adequacy of search: The court concludes that the CIA's search was adequate where its "declaration provides a detailed description of the various departments within the CIA, the type of records each department maintains, the procedures the CIA uses to process FOIA requests generally, the specific steps taken to respond to plaintiff's request, and the search terms used to accomplish the search for documents responsive to plaintiff's request."

• Adequacy of declarant: Despite plaintiff's arguments to the contrary, the court finds that as the person "responsible for supervising and coordinating FOIA requests," the CIA's declarant can be "relied upon as an individual with personal knowledge" and concludes that further discovery on this issue is not necessary.

• Mootness: "Contrary to plaintiff's assertions that his claim [related to the CIA's initial denial of news media representative status] is not moot because he was only granted [such] status after the complaint was filed, the timing of the CIA's decision to grant him the status is irrelevant."

• Attorney fees: With respect to plaintiff's eligibility for attorney's fees, the court notes that "even assuming granting the plaintiff [representative of the news media] status [after initially denying it] is a 'voluntary or unilateral change in position by the agency' within the meaning of 5 U.S.C. § 552(a)(4)(E), the statute also requires that the change in position by the agency be 'not insubstantial.'" The court finds that "[a]pplying the standard laid in out in Davy [by the D.C. Circuit], the plaintiff has failed to show he is entitled to attorney's fees.'"

7. Poett v. DOJ, No. 08-622, 2010 WL 3892249 (D.D.C. Sept. 30, 2010) (Robinson, Mag.)

Re: Request for records related to an investigation involving plaintiff

• Attorney's fees: Since the FBI "conceded eligibility," the court "assumes, without deciding, that Plaintiff is eligible for an award." However, the court determines that "Plaintiff is not entitled to attorney's fees and costs" because the weight of the four factors considered with respect to entitlement "leans so heavily in favor of the Defendant." The court finds that plaintiff has not shown that the FBI "'has improperly withheld extant agency records'" or that the requested records pertaining to plaintiff "is likely to add to the fund of public information or result in considerable public dissemination or benefit." Although the court notes that plaintiff does not appear to seek the records for a commercial benefit, "the lack of a public benefit inherently illuminates the fact that Plaintiff's relationship to the disclosed document is of a private and personal nature."

8. Murray v. BOP, No. 09-1494, 2010 WL 3832599 (D.D.C. Sept. 29, 2010) (Friedman, J.)

Re: Requests for prison visitor lists, records of fine payments deducted from plaintiff's prison account, prison staff emails and memoranda that mention plaintiff

• Adequacy of search: The court finds that BOP's declaration addressing its search for visitor lists and prison account information is not adequate because it fails "to establish that the systems of records actually searched were those most likely to contain records responsive to plaintiff's FOIA request" and does not "describe 'with particularity the files that were searched [or] the manner in which they were searched.'" However, with respect to plaintiff's request for certain emails and memoranda, the court concludes that, in the absence of a challenge by plaintiff, BOP's decision to search for email accounts of staff members most likely to have generated or received the requested email and to search plaintiff's Central File for responsive memoranda were "reasonable under the circumstances."

9. Brown v. FBI, No. 07-1931, 2010 WL 3833537 (D.D.C. Sept. 29, 2010) (Roberts, J.)

Re: Request to amend complaint

• Litigation considerations/amending complaint: The court denies plaintiff's request for leave to amend his complaint to include a new FOIA request where "he provides no explanation for why he waited more than two years to try to amend his complaint." The court observes that "[a]llowing [plaintiff] to amend his complaint to add an additional FOIA claim at this stage in the litigation – after his other FOIA claims were dismissed and summary judgment entered against him – would allow him to circumvent the effect of the order that terminated this action." The court also denies plaintiff's request to add a non-FOIA claim because "granting him leave to amend would prejudice the defendants by denying them the litigative repose to which they are entitled from entry of a final judgment in their favor following a fully contested case" and "by expanding the scope of the litigation . . . beyond its initial character as solely a FOIA action."

10. McKinley v. FDIC, No. 09-1263, 2010 WL 3833667 (D.D.C. Sept. 29, 2010) (Huvelle, J.)

Re: Request for records related to the decision by the Board of Governors of the Federal Reserve System to authorize the Federal Reserve Bank of New York (FRBNY) to extend credit to JP Morgan Chase to provide temporary emergency financing to Bear Stearns

• Exemption 5 (threshold): As an initial matter, the court concludes that defendant has "more than satisfie[d] [its] burden to show that the records and information exchanged by the Board and the FRBNY were 'documents . . . submitted by non-parties in response to an agency's request for advice'" and, accordingly, meet the threshold of Exemption 5 under the "consultant corollary." In response to plaintiff's argument that "the FRBNY's interests diverge from the Board's interests," the court states that "the critical inquiry is not whether FRBNY's interests were at all times identical to the Board's , but rather whether the FRBNY 'd[id] not represent an interest of its own, or the interest of any other client, when it advise[d] the [Board].'" The court further notes that "[h]ere, the declarations and the documents adequately establish that the FRBNY was not representing an interest of its own when it advised the Board, but rather it was simply assisting the Board's evaluation of the Bear Stearns situation."

• Deliberative process privilege: The court finds that certain factual information consisting of "financial statistics, pricing and exposure data, and the identities of various financial institutions" is protected under the deliberative process privilege. "[T]he Court is 'convinced' that disclosure of the requested 'factual summar[y] prepared [for] decisionmakers' 'would expose [the Board's] decisionmaking process in such a way to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.'" The court rejects plaintiff's assertion the defendant must show "'that disclosure of the withheld records or information would cause harm to its decision-making process.'" Rather, the court finds that "[h]aving established that the withheld documents were both 'pre-decisional' and 'deliberative,' defendant is not also required to establish that the release of the withheld documents or material would cause 'harm' to the decision-making process."

• Attorney work product privilege: The Board properly withheld a "'draft affidavit . . . conveyed by a FRBNY attorney to Board attorneys'" pursuant to the attorney work product privilege. For one, the court finds that, despite plaintiff's argument to the contrary, "because FRBNY personnel were acting as consultants to the Board, the work product of an FRBNY attorney conveyed to the Board is properly withheld under Exemption 5." Additionally, the court dismisses plaintiff's argument that the Board failed "to show that there was 'some articulable claim, likely to lead to litigation,'" concluding that "'it was entirely reasonable for the Board to anticipate that it, and/or FRBNY, might be drawn into litigation by Bear Stearns shareholders, and to prepare for [that] possibility.'"

• Exemption 8: The Board properly invoked Exemption 8 to withhold "information furnished to the Board by institutions regulated by the Board" consisting of "the identity of institutions with exposure to Bear Stearns, the amount of such exposure, and/or the activities these institutions had taken to limit their exposure to Bear Stearns." "Given the breadth of Exemption 8, and the Board and the SEC's undisputed regulatory responsibilities in relation to the financial institutions whose information has been withheld," the court agrees with defendant that the information provided to the Board "in 'real-time' about what financial significance a Bear Stearns failure would have for a given institution and financial markets more generally is properly characterized as related to 'examination, operating, or condition' reports about individual supervised institutions" as defined by Exemption 8. Moreover, "the Court agrees that the Board's 'ability to gather such information in furtherance of its mission to regulate our nation's banking system would inarguably be compromised if such information were now released.'"

11. Voinche v. Obama, No. 09-1081, 2010 WL 3833736 (D.D.C. Sept. 29, 2010) (Sullivan, J.)

Re: Requests for records related to surveillance of plaintiff and release of a toxic chemical in his home

• Litigation considerations: The court grants defendants' motion to dismiss plaintiff's FOIA claims against the Executive Office of the President (EOP) and the Office of Administration of the EOP "because neither entity is an agency subject to the FOIA" and against former President Bush and President Obama "because 'no FOIA claim may be asserted against individual federal officials.'"

• Exhaustion of administrative remedies: The court grants defendants' motion for summary judgment with respect to the Council of Environmental Quality where defendants assert that plaintiff did not file an administrative appeal, and he "does not dispute this evidence."

• Adequacy of search: "[H]aving received no objection from plaintiff to the entry of summary judgment on this issue, and having found defendants' evidence regarding the adequacy of NARA's search persuasive, the Court [] grants defendants' motion for summary judgment."

12. Dorsey v. EEOC, No. 09-519, 2010 WL 3894590 (S.D. Cal. Sept. 29, 2010) (Benitez, J.)

Re: Request for docket number and associated case information for "Dorsey v. The Surfer Restaurant and Hotel"

• Adequacy of search: The court concludes that the EEOC's search was adequate where it conducted two electronic searches encompassing current and archived material, which both "utilized schemas specifically designed to locate the information sought by the Plaintiff." The court notes that plaintiff "failed to present any evidence the agency's search was inadequate or made in bad faith." Additionally, the court finds that his "conclusory statement" that EEOC "lost or destroyed" the responsive records "does not raise an issue of fact precluding summary judgment" in favor of the agency.

13. Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.)

Re: Request for records related to high-ranking member of the mafia who served as an informant for the FBI

• Fee waiver: The court concludes that the FBI erred in denying plaintiff's request for fee waiver and, instead, finds that "the information that [plaintiff] seeks is likely to contribute to the public's understanding of the FBI's activities, and there is no reason to believe that her interests are primarily, if at all, commercial." First, the court finds that "the public has a considerable interest in knowing the extent to which the FBI countenances the criminal behavior of its informants." Second, the court rejects the FBI's finding that plaintiff's submission of "merely 'one self-generated newspaper article'" published in the New York Times was "unpersuasive as evidence of her ability to disseminate information to the public." To the contrary, the court notes that the "article concerned the very subject matter of [plaintiff's] FOIA request and appeared in one of the most widely circulated newspapers in the United States" and, therefore, "is sufficient to show [her] ability to convey information about her FOIA request and its results to the public." The court finds no evidence to support the FBI's conclusion that plaintiff is pursuing the request "'in her commercial interest.'" Based on the foregoing, the court determines that plaintiff "is entitled to a waiver of fees under the FOIA."

• Adequacy of search: The court concludes that the FBI's search for documents was adequate where it confined its search, per plaintiff's request, to the subject's informant file at its Headquarters office. The court finds that the FBI was not obligated to conduct searches based on additional, more expansive requests which were contained in a subsequent letter from plaintiff that was never received by the agency. Additionally, the court dismisses plaintiff's argument that "the FBI must be ordered to fulfill the requests made in [her subsequent letter] – even if that letter never actually arrived at [the FBI Headquarters]" because the FBI received a copy of the letter in connection with plaintiff's complaint in the instant case. The court finds that plaintiff "overstated her rights under the FOIA, which requires her to exhaust her administrative remedies with respect to a particular FOIA request before she may seek a judicial order compelling the agency to produce the records sought."

Additionally, the court notes that plaintiff "cannot demonstrate that the FBI's search was inadequate by listing hypothetical documents that she believes could and should have been located and released to her." The court also finds that the FBI is not required to produce the underlying documents associated with "placeholders" contained in the subject's informant file where one record is held by a regional field office and the other "was determined to have been mis-indexed" and therefore is "not responsive" to the request.

• Exemptions 2 & 7(E): The court concludes that the FBI properly withheld informant codes and the file numbers associated with those codes under Exemption 2 as they are "'a matter of internal significance in which the public has no substantial interest.'" However, with respect to the FBI's decision to redact the "current" number of informants from certain responsive documents pursuant to Exemptions 2 and 7(E), the court notes that "[i]t is difficult to imagine how disclosure of the number of individuals informing on the Mafia in the 1960s would create a risk of circumvention of the law in the 2010s." Accordingly, the court finds that the FBI may "attempt to justify withholding" any numbers that "may reasonably be characterized as 'current,'" but may not withhold any "[r]eferences having only historical significance." The court also holds the "Exemption 2 does not apply to operational funds in this case," rejecting the FBI's "cursory" argument that individuals could exploit the information to "'to exhaust the FBI's funding of a particular investigation.'" Lastly, the court determines that "the FBI has provided the Court with no means by which it can determine whether [certain] information withheld [under Exemptions 2 and 7(E)] relates to techniques whose disclosure could result in evasion of the law; [where it] has not made even a cursory attempt to describe the type of techniques and procedures . . . and the context of the redactions reveals little to nothing."

• Exemption 7(threshold): The records at issue satisfy the threshold of Exemption 7, finding that even if "the FBI's deployment of [the informant] sometimes contravened the law, there is no evidence that the records in question were compiled in violation of the law or for the purpose of furthering a violation of the law."

• Exemption 7(C): With respect to deceased individuals who may be mentioned in the informant file, the court notes that "[e]ven after death, a person retains some privacy interest in her identifying information . . . and that 'something, even a modest privacy interest, outweighs nothing every time.'" However, the court concludes that the FBI has not provided sufficient information to allow the plaintiff "to make a cogent argument regarding any possible public interest in disclosure" and, accordingly, requires the FBI to "supplement its Vaughn index with individualized and more detailed descriptions."

• Exemption 7(D): The court finds that FBI properly invoked Exemption 7(D) to withhold "source symbol numbered informants" who are assigned such symbols "only if those individuals 'report information to the FBI on a regular basis pursuant an 'express' grant of confidentiality.'" Additionally, the court finds that the "[i]nformants to whom no source code was assigned but who supplied information to the FBI regarding the Mafia are also protected confidential sources." The court finds that "[g]iven the nature of the criminal enterprise in question, there is no need for the FBI to identify specific crimes about which particular informants reported" and that "[a]ny information furnished to the FBI about the organization could aid in the detection and prosecution of crime – and lead to retaliation against the informant."

14. Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.)

Re: Request for records related to violence in Andijan, Uzebekistan in May 2005 and its aftermath

• Litigation considerations/In camera declaration: The court grants CIA leave to file an in camera Vaughn declaration where it "cannot meaningfully review the defendant's actions based on the current public record . . . and because the court is persuaded that the CIA cannot provide further information on the public record due to the reasonable chance that such information may cause harm to the national security and the CIA's functions."

• Adequacy of search: In the process of evaluating the reasonableness of defendant's search, the court, as an initial matter, determines that CIA did not improperly narrow plaintiff's request where "despite his demonstrated ability to use utilize the CIA's administrative appeal process, [plaintiff] accepted the CIA's offer to search for documents responsive to the narrowed request." Moreover, the court rejects plaintiff's argument that the search was inadequate because it failed to turn up certain records that "'were sent by the Department of State to CIA.'" Rather, "the court concludes that the defendant reasonably construed the plaintiff's amended request [as one for CIA reports] and that the nondisclosure of the Department of State documents is neither a 'positive indication of overlooked materials' nor evidence of bad faith."

Additionally, the court dismisses plaintiff's assertion that CIA exercised bad faith because of the time that elapsed before a response was made, noting that agency delay is not "alone sufficient to indicate that the defendant acted in bad faith." Lastly, the court observes that because "neither bad faith nor contradictory evidence is present, the court need not question the veracity of the classified declaration, including the details concerning the adequacy of the search provided therein."

• Exemption 1: Upon review of the CIA's unclassified declaration, the court finds that procedurally it "demonstrates that the classification of withheld information has met the conditions outlined under Section 1.2(a) of the Executive Order." The court then finds that "[s]ubstantively, the CIA's classified declaration describes in sufficient detail why the withheld information 'logically falls' within one of the classification categories outlined in Section 1.4 of [the] Executive Order." As to plaintiff's arguments that "CIA erred in classifying certain public documents or documents relating to public events," the court finds that plaintiff's claims are speculative and concludes that it "is required to defer to the CIA's judgment with regard to the reasonable expectation that the disclosure of the withheld information, even 'seemingly innocent information' that has 'already been made public,' could result in damage to the national security."

• Segregability: The court concludes that based on the CIA's public and classified declarations "there is no segregable material because all of the information is exempt" pursuant to Exemption 1.

• Discovery: The court finds that discovery is not warranted to depose the CIA's declarant "to ascertain [his[ personal knowledge of the search" where he holds a supervisory position overseeing FOIA requests. The court also denies plaintiff's request for discovery on the basis that the CIA's declarations were reasonably detailed and submitted in good faith.

15. Boyd v. EOUSA, No. 09-2055, 2010 WL 3833658 (D.D.C. Sept. 28, 2010) (Walton, J.)

Re: Request for public records pertaining to a government informant

• Adequacy of search: The court concludes that EOUSA conducted an adequate search for records where its "declarations adequately explain the means by which their staff conducted the searches, including searches of computerized databases and index card systems, informal inquiries to AUSAs who may have had knowledge of the matter, and requests to and responses from the Federal Records Center regarding [a potentially responsive criminal case] file." Contrary to plaintiff's assertions, EOUSA "need not explain its methods for locating records pertaining to plaintiff because he was not the subject of the FOIA request." Additionally, the court accords no weight to the declaration proffered by plaintiff from another federal inmate "who attests to the purported existence of responsive public records in his criminal case file." The court finds that "[n]either the plaintiff nor his declarant attests to having personal knowledge of the existence of responsive records or the agency's methods of recordkeeping, or even if the agency at one time maintained records pertaining to [the subject of the request]." Lastly, the court notes that absence of "administrative case numbers, court case numbers, or the names of the AUSAs associated with the events related to the searches" in the declarations is irrelevant to assessing the adequacy of the agency's search.

16. Benoit v. IRS, No. 09-242 (S.D. Cal. Sept. 20, 2010) (Houston, J.)

• Exhaustion of administrative remedies: The court dismisses plaintiff's action for lack of subject matter jurisdiction because plaintiff's complaint, filed before the deadline for the IRS's response to his administrative appeal, "divested the agency of its ability to provide a record for the Court and was premature." With respect to plaintiff's argument that he was entitled to file suit ten days after submitting the appeal because he requested expedited processing of his request, the court finds that the IRS had twenty days to respond because his administrative appeal "does not include any discussion of [his] request for expedited processing," and that he failed to "follow the procedure required for requests for expedited processing" set forth in the agency's regulations.

WEEK OF OCTOBER 4

Courts of Appeal

1. Thompson v. U.S. Marine Corp, No. 09-16523, 2010 WL 3860578 (11th Cir. Oct. 5, 2010) (per curiam)

Re: Request for records related to plaintiff's military service

• Exhaustion of administrative remedies: The court affirms the district court's order denying plaintiff's motion to reopen his previously dismissed FOIA case. The court concludes that the district court properly dismissed the action as "[u]nder the facts alleged in [plaintiff's] complaint, he 'neither actually nor constructively exhausted his administrative remedies.'" However, the court notes that "the district court should have dismissed the FOIA claim pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, rather than for lack of subject matter jurisdiction [because] [e]xhaustion of administrative remedies is not a jurisdictional requirement, but 'performs a function similar to the judicial doctrine of ripeness by postponing judicial review.'"

District Courts

1. Brown v. DOJ, No. 10-247, 2010 U.S. Dist. LEXIS 107589 (D.D.C. Oct. 7, 2010) (Huvelle, J.)

Re: Request for records pertaining to an alleged third party informant

• Validity of third party waiver: The court finds that "the declarations submitted by [the FBI and a Special Agent] adequately demonstrate that [the third party] no longer consents to the release of his FBI records to plaintiff." Moreover, "[p]laintiff's speculation that the FBI impermissibly attempted to convince [the third party] to withdraw his privacy waiver, without any evidence of misconduct or bad faith on the part of defendant, is insufficient to overcome the presumption of good faith the Court must accord to the [FBI]'s declarations." The court also notes that the subject's verbal withdrawal of his consent was sufficient and that FBI was not required to "'prove' [the party's] revocation via a signed document, absent any evidence of bad faith."

• Exemptions 6 & 7(C): As a preliminary matter, the court notes that the FBI's refusal to process plaintiff's request pursuant to Exemptions 6 and 7(C) "constitutes a 'Glomar' response." Given that any responsive records pertaining to the third party would be contained in a criminal investigative file, the court finds that the individual "has a strong privacy interest in keeping his possible involvement with the FBI generally, as well as the information possibly contained in the documents specifically requested by plaintiff, private." Furthermore, "confirmation of the existence of records concerning [the third party] in the FBI's files, even if the FBI did not release them, would constitute an unwarranted violation of his privacy." Additionally, the court determines that plaintiff failed "to articulate a public interest" in the disclosure of the records where "there is no indication that responsive documents would reveal government wrongdoing" and where "plaintiff's personal interest [] in obtaining potentially exculpatory documents in order to attack his conviction 'does not count in the calculation of public interest.'" Since it was unable to identify any qualifying public interest, "the Court finds that the FBI's Glomar response to plaintiff's request, declining to process his claim for documents concerning a third party, is appropriate."

WEEK OF OCTOBER 11

District Courts

1. Am. Small Bus. League v. SBA, No. 10-1459, 2010 WL 3987280 (N.D. Cal. Oct. 12, 2010) (Armstrong, J.)

Re: Request for contracts and agreements between the SBA and firms engaged in public relations or lobbying

• Jurisdiction: The court denies defendant's motion to dismiss, which was premised upon the SBA's position that "it ha[d] produced all responsive records, and, as such, it ha[d] not 'improperly withheld agency records.'" Instead, the court concludes that it has jurisdiction to entertain the complaint under the FOIA because although the plaintiff does not dispute the adequacy of SBA's search, it "challenges the redactions" made by the SBA to the two contracts that it produced.

2. Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.)

Re: Requests for various records related to a federal surveillance program targeting Muslim groups

• Exemption 1: Based on its in camera review of the documents and the agency's declarations, the court concludes that the FBI properly asserted Exemption 1 to protect file numbers, standard terminology used by the FBI in current cases, information that reveals the character of the case, alpha designators, intelligence sources and targets of foreign counterintelligence investigations. Despite plaintiffs' arguments that the declarations were "'vague, general and conclusory,'" the court finds that although the FBI "does rely on somewhat 'amorphous' categories, all of those categories are defined for the Court and Plaintiffs." Similarly, the court reject plaintiffs' claim that where the FBI has "already withheld [the identities of certain investigatory targets], there is no justification in withholding the 'standard terminology' as well, because the mere disclosure of the terminology will not reveal anything about who or what the FBI is investigating." In response, the court notes that "[t]he Supreme Court has indicated that non-disclosure in this context may still be appropriate because 'bits and pieces' of information 'may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.'" Lastly, the court concludes that plaintiffs' contention that some information is publicly available "is not sufficient by itself to warrant disclosure" where the examples of publicly available sources proffered by plaintiffs "provide either general information on the FBI's intelligence-gathering methods or second-hand accounts of the FBI's investigative efforts" and therefore are not "as specific as the information that the FBI seeks to withhold."

• Exemptions 2 & 7(E): The court holds that the FBI properly asserted "high 2" and Exemption 7(E) to withhold an internal questionnaire because its disclosure "undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire." The court also notes that "even if the names of the targets are redacted, people knowledgeable of the facts might still be able to figure out the overall 'pattern,' which would facilitate the 'circumvention of agency regulations.'" Additionally, the court determines that FBI properly withheld "information pertaining to the internal dissemination of information" and "information relating to the dates and types of investigations as well as the basis for initiating them," under "high 2" because disclosure of such information would allow individuals to circumvent agency regulations and/or investigations. The court holds that the FBI also properly invoked Exemptions 2 and 7(E) to withhold information pertaining to investigative tools and techniques. The court observes that "contrary to Plaintiffs' arguments, Exemption 2 may be invoked even with respect to publicly-known investigative techniques and procedures" and also finds "little support for Plaintiffs' allegations that the non-disclosure is improper because Defendants have not accounted for allegedly illegal activities."

• Exemption 3: Based on the findings of other courts and the fact that plaintiffs do not object to this particular withholding, the court concludes that the FBI properly withheld "information obtained from the Financial Crimes Enforcement Network" pursuant to Exemption 3 in accordance with the Bank Secrecy Act, 31 U.S.C. § 5311 et seq.

• Exemption 7(A): The court holds that the FBI's assertion of Exemption 7(A) to protect certain categories of investigatory records was appropriate. Despite plaintiffs' claim that the FBI failed to establish that an investigation is pending, the court finds that the FBI has established that "there is a pending investigation related to the requested information" and "has identified specific potential harms associated with the release of the information."

• Exemption 7(C): The FBI properly invoked Exemption 7(C) to withhold the "names and identifying information of FBI support personnel and special agents, non-FBI federal law enforcement employees, local law enforcement employees, third parties who provided information to the FBI, third parties of investigative interest, and third parties merely mentioned" in the records. The court concludes that "the FBI has established that valid privacy concerns justify withholding" such information, and that it "also established why in each case the public interest does not trump those privacy concerns." Additionally, "[p]laintiffs have failed to produce anything more than 'a bare suspicion' wrongdoing."

• Exemption 7(D): The FBI properly invoked Exemption 7(D) to protect names and identifying information related to individuals who have provided information to the FBI under both express promises of confidentiality and implied assurances of confidentiality, because disclosure "likely would expose [the informants] to embarrassment, harassment, or violent reprisal, and would not shed light on the FBI's internal operations and activities," and "withholding such identifying information is essential to the FBI's ability to continue to employ confidential sources." With respect to the FBI's decision to "protect the names and identifying information of telecommunications companies, internet service providers, and financial institutions" based on an implied assurance of confidentiality, the court finds that, although the declaration contains broad assertions regarding those withholdings, its in camera review supports the FBI's claims of exemption. The court further concludes that "the FBI's assertion that disclosure of the information would 'likely cause substantial harm to the competitive position of the companies' is well-founded."

3. Int'l Union of Elevator Constructors Local 2 v. U.S. Dep't of Labor, No. 10-1935, 2010 U.S. Dist. LEXIS 109083 (N.D. Ill. Oct. 12, 2010) (Castillo, J.)

Re: Request for records related to the Union and civil investigations of the Union conducted by the Department's Office of Labor-Management Standards

Vaughn Index: The court denies plaintiff's motion for an order compelling the Department of Labor to prepare a Vaughn index in connection with documents that it had withheld in full pursuant to Exemption 7(A). The court finds that ordering the production of a Vaughn index is not appropriate at the procedural stage because "the Department of Labor must first be given an opportunity to justify its invocation of Exemption 7(A) at the summary judgment stage by showing [through declarations] that 'with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally interfere with enforcement proceedings.'" The court notes that "[c]ompelling the production of a Vaughn index could also effectively defeat the very purpose of Exemption 7(A)" by "compromis[ing] the Department of Labor's pending investigation."

WEEK OF OCTOBER 18

Courts of Appeal

1. Am. Small Bus. League v. SBA, No. 09-16756, 2010 WL 4026730 (9th Cir. Oct. 15, 2010) (per curiam)

Re: Request for telephone records of the Director of the SBA Press Office for the years 2006 and 2007 held by Verizon

• Agency records: The court holds that "the district court's finding that SBA did not control the records at the time of the FOIA request is not clearly erroneous." The court concludes that "[i]t is undisputed that SBA did not actually possess the records in July 2008, and SBA had no obligation either to retain the records or to seek the records once they were no longer in its possession." With respect to the possibility that SBA was in constructive possession of the requested records, the court finds "there is no evidence in the record showing that SBA extensively supervised or was otherwise significantly entangled with Verizon's production and management of the records." The court also determines that "the records do not come within the definition of 'records' codified in 5 U.S.C. § 552(f)(2)(B)," which "requires production only of documents 'maintained for an agency by an entity under Government contract, for the purposes of record management,'" because "it is undisputed that Verizon did not maintain the phone records pursuant to a records-management contract with SBA."

District Courts

1. Riser v. Dep't of State, No. 09-3273, 2010 U.S. Dist. LEXIS 112743 (S.D. Tex. Oct. 22. 2010) (Ellison, J.)

Re: Requests for records pertaining to plaintiff's employment application and background investigation

• Exemption 2: The court finds that a two-page document, INV-50, which is used by OPM in connection with background investigations, does not qualify as "'predominantly internal'" within the meaning of Exemption 2. The court concludes that "[a]lthough INV-50 discusses the guidelines used by OPM itself in processing agencies' requests for background investigations, it does not exist for internal use by OPM, but rather entirely for the use of other agencies."

• Exemption 3: OPM did not adequately justify withholdings under Exemption 3 in connection with the National Security Act of 1947 (NSA), where it relied on an affidavit from an OPM FOIA official to support its claim of exemption. The court notes that in situations when this statute is invoked "the Director of National Intelligence or the CIA must at the very least actually exercise the authority granted by the [NSA]" and that this is typically achieved "through an affidavit from a CIA official." Here, the court finds that OPM's declaration "is both second-hand and conclusory." Based on its in camera inspection of the record at issue, the court concludes that it cannot ascertain how the withheld material "relate[s] to protecting intelligence sources and methods in any way." Accordingly, "the Court orders OPM to either disclose [that information] to Plaintiff or to produce an affidavit sufficient to justify the withholding under Exemption (b)(3)."

• Exemption 7(E): "In light of [the Fifth Circuit decision in Benavides] and the need for courts to 'narrowly construe[]' FOIA exemptions[,] . . . the Court interprets Exemption (b)(7)(E) to allow withholding of law enforcement techniques or procedures only if the agency demonstrates that disclosure could reasonably be expected to risk circumvention of the law." Based on its in camera review of form INV-50, the court determines that OPM was justified in withholding a portion of the document for which "there is a reasonable risk of circumvention of the law upon [its] disclosure." However, the court concludes that Exemption 7(E) does not apply to a paragraph that "discusses only the division of labor among subagencies in handling questions and requests relating to the use of protected sources in background checks."

• Declaratory judgment: The court finds that plaintiff's claim for declaratory judgment based on defendants' improper withholding of the requested records is moot "because the documents have now been produced."

• Requests for damages & attorney fees: With respect to plaintiff's request for damages, the court notes that "[n]othing in the FOIA statute [] authorizes damages awards to requesters for agency non-compliance or misconduct." The court also denies plaintiff's request for attorney's fees, noting that "[p]ro se litigants are not entitled to attorney fees under either the FOIA or the Privacy Act unless the litigant is also an attorney."

2. Barrett v. DOJ, No. 09-2959, 2010 U.S. Dist. LEXIS 112259 (E.D. Cal. Oct. 21, 2010) (Burrell, J.)

Re: Request for latent fingerprints collected in connection with the "Zodiac Killer" case

• Exemption 7(A): The court determines that the FBI properly asserted Exemption 7(A) to withhold the requested latent fingerprint records. As an initial matter, the court notes that "[t]he parties agree that the latent fingerprints were compiled for 'law enforcement purposes.'" The court concludes that, based on the FBI's declaration as well as the attached exhibits consisting of correspondence from local law enforcement authorities, "the Zodiac case investigation is ongoing, and Plaintiff has presented no admissible evidence that the investigation has been completed or is inactive." Furthermore, the court finds that the FBI's "declaration contains a 'general showing' that disclosure of the fingerprints could interfere with local law enforcement agencies' ongoing investigations of the Zodiac case" because release of the records could result in notification of the subject and allow him to evade capture by law enforcement authorities.

3. Comer v. FBI, No. 09-2455, 2010 US Dist. LEXIS 111558 (D.D.C. Oct. 20, 2010) (Urbina, J.)

• Litigation considerations: The court dismisses plaintiff's FOIA action due to his failure to prosecute the case and to respond to the court's order to show cause. The court notes that plaintiff failed to notify the court of his change of address as required by the Local Civil Rules and did not "respond[] to any of the defendants' pending dispositive motions, notwithstanding a court order in each instance directing [him] to file an opposition by a date certain and advising him that his failure to respond could result in the motions being granted as conceded."

4. N.Y. Times, Co. v. U.S. Dep't of the Treasury, No. 09-10437, 2010 WL 4159601 (S.D.N.Y. Oct. 13, 2010) (Maas, Mag.)

Re: Request for identities of individuals who have been granted a license by the Office of Foreign Assets Control (OFAC) to conduct activities in foreign countries which would otherwise be unlawful under U.S. economic sanctions programs

• Exemption 6: The court holds that the public interest in disclosure of the identities of individuals licensed by OFAC outweighs their minimal privacy interests. The court finds that although, as Treasury argues, "[i]t certainly is conceivable that disclosure of the individual licensees' identities could result in unwanted contact or harassment," "this alleged harm is entirely speculative" because "Treasury simply has not shown that the licensees face an imminent, or even a known, risk of harassment, nor has it shown that their physical safety is at issue." With respect to the "harm" articulated by Treasury that the licensees may be contacted by the public or the media, the court finds that "[t]he mere fact that someone might seek to interview a licensee does not mean [] that the individual would be subject to opprobrium or harassment." The court also notes that "the dangers of disclosure are further weakened by the lack of evidence that any of the corporate licensees – whose identities were released to the Times – have faced any negative consequences following that disclosure." In contrast to some cases where individuals have not sought an affiliation with a particular group, the court finds that, in this case, "to the extent that disclosure does expose the licensees to some possibility of harassment, the disclosed association is one that the licensees affirmatively and voluntarily chose." Additionally, "the fact that there more than 9,000 similarly-situated individuals reduces the risk of harm resulting from disclosure of the licensees' identities."

The court then balances the minimal privacy interest that it identified against the public interest in disclosure. Here, the court finds that the "names of the licensees are the direct product of agency decisionmaking," and, "[i]ndeed, [that] disclosure of the licensees' names is the only way for the public to account for OFAC's actions" because "many applications for OFAC licenses are considered on a case-by-case basis, [so] there seemingly is no metric that would allow the public to oversee OFAC's actions in this area other than to see the product of that decisionmaking." The court rejects Treasury's claim that the Times stated use, i.e., to "evaluate OFAC's decisions for any patterns that might provide insight into – and expose any possible deficiencies in – OFAC's decisionmaking by cross-referencing the names on the list with names of individuals available from other sources," demonstrates that it seeks "derivative" information about government performance that does not directly serve the public interest. Rather, the court finds that "the Times intends to use outside information to make sense of the list of names provided by Treasury." Citing the Eleventh Circuit's decision in News-Press v. DHS, the court notes that the Times' interest "is no more derivative than the use of mapping software to make sense of the addresses of individuals who received emergency benefits from the government." The court finds that, contrary to Treasury's assertion, "the limited public interest that the Times has identified is sufficient to justify the release of the names."

WEEK OF OCTOBER 25

Courts of Appeal

1. Lardner v. DOJ, No. 09-5337, 2010 U.S. App. LEXIS 22557 (D.C. Cir. Oct. 28, 2010) (per curiam)

Re: Request for list of names prepared by the White House of persons whose pardon or commutation applications had been denied by the President

• Exemptions 6 & 7(C): The court holds that the district court, upon conducting the balancing test required by Exemption 6, properly concluded that the public interest in disclosing the names of unsuccessful clemency applicants outweighed their privacy interests. The court draws a distinction between the use of Exemption 6 to protect the pardon applications which contained "'non-public personal information about the applicants and their lives before and after their convictions,'" which the court held were properly withheld in connection with a previous case, and the list of names that the appellee seeks here. The court further notes that "appellant's confidentiality and stigma concerns are undermined by [the Office of the Pardon Attorney's (OPA's)] procedures whereby written advice to applicants states that OPA reserves the right to release information to neighbors and employers, among others, in the course of investigating an applicant's suitability for a pardon or commutation of sentence, and by OPA's regulations that advise applicants that certain information in their applications will be released when a third party inquires 'concerning a specific, named person.'" With respect to the public interest, the court concludes that "[t]he incremental value of the withheld information . . . is not speculative in view of the Inspector General's Report on whether impermissible considerations played a role in pardon determinations." Additionally, the court finds that Exemption 7(C) is inapplicable because "[t]he requested list of names prepared by the White House is designed to inform OPA of the President's determinations; it is not information compiled for law enforcement purposes coming from OPA's investigative records" and also notes that "[a]ppellant conceded . . . that the requested list of names exists independently of the investigative file of any applicant."

District Courts

1. Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.)

Re: Requests for records relating to certain Navy contracts

• Litigation considerations: The court adopts the magistrate's report and recommendation and grants defendant's motion for summary judgment where it finds no error of law and "[a]ll of Plaintiff's 'objections' [to the magistrate's findings] merely restate word for word or rehash the same arguments presented in his filings related to summary judgment."

• Exhaustion of administrative remedies: With respect to two of five FOIA requests submitted by plaintiff, the court finds that he "failed to comply with the administrative mechanisms adopted by Congress" and, accordingly, "cannot now complain that FOIA has been violated."

• Exemption 2: The court finds that defendants properly withheld "information related to a security system" pursuant to Exemption 2.

• Exemption 6: Defendants properly asserted Exemption 6 to withhold "certain [non-public] personnel and medical files," because these materials are clearly protected "to the extent they were not already publically available in the course of the public bidding process." Additionally, the court observes that defendants' declaration "states that all of the material items Plaintiff asked for with regard to certain personnel (i.e. related to 'high ranking personnel') was provided."

• Exemption 4: The court finds that defendants properly invoked Exemption 4 to protect certain "contractor financial data, employee names, and subcontractor firm names" "in order to protect the integrity of the bidding process."

3. ACLU v. DOD, No. 09-8071, 2010 U.S. Dist. LEXIS 114441 (S.D.N.Y. Oct. 25, 2010) (Jones, J.)

Re: Requests for records pertaining to the detention of prisoners at Bagram Theater Internment Facility at the Bagram Airfield in Afghanistan

• Exemption 1 (Glomar): The CIA properly refused to confirm or deny the existence of records related to the rendition or transfer of detainees to Bagram and the interrogation and treatment of detainees. The court rejects plaintiffs' claim that the CIA should "process" the request because "acknowledging whether or not the CIA has responsive documents, would not reveal secret intelligence methods, tools, activities, the location of secret CIA activity, or secret CIA sources or targets." To the contrary, the court finds that "[i]n situations such as this, where the agency has determined that the requested records are classified under the terms of Executive Order 12,958, the responding agency may simply 'refuse to confirm or deny the existence or non-existence of requested records.'" The court likewise dismisses plaintiffs' contention that "CIA's classification and determination of the harm that may result from acknowledging the existence of responsive records" is contradicted by "volumes of contrary evidence" that are "'publicly-acknowledged and well-known.'" Rather, the court finds that the CIA has not lost its ability to assert the Glomar response because "'no authorized United States Executive Branch official has officially acknowledged the CIA's association or lack thereof with the "rendition and/or transfer," detention and treatment of individuals held at Bagram.'" Moreover, "none of the statements [presented by plaintiffs] specifically disclose the existence or nonexistence of [the requested] records." The court concludes that "[a]lthough Plaintiffs may disagree with the CIA's assessment of the potential harm to national security based on public awareness of the CIA's activities in Afghanistan, Plaintiffs have not presented contrary evidence that controverts the CIA's justification for providing a Glomar response." The court declines to consider the applicability of Exemption 3, since it finds all of the records at issue were properly withheld pursuant to Exemption 1.

• Exemption 1/waiver: With respect to plaintiffs' request to DOD, the court determines that the agency properly invoked Exemption 1 to withhold "information regarding the detainees' citizenships, dates of capture, length of detention at Bagram, locations of capture, and circumstances of capture" where its declarations "sufficiently demonstrated that each withheld category of information logically falls within Exemption 1 and that Defense has sufficiently identified and described the possible damage to U.S. national security." The court rejects plaintiffs' argument that DOD "cannot treat as classified here what it treats as unclassified in [detainee review board (DRB) hearings] and analogous Guantanamo detainee hearings." The court determines that "there is no exactitude between the information previously disclosed and the information sought here, whatever information the Government has decided to release regarding Guantanamo detainees has no bearing on Plaintiffs' requests in this case." With respect to some information that was released on a discretionary basis at open DRB hearings, the court concludes that "[b]ecause Defense voluntarily released the previously redacted information that NGO and media representatives heard and because that discretionary disclosure does not constitute a waiver for the rest of the requested information under Exemption 1, the Court is satisfied that the DRB hearings have no further bearing on Plaintiffs' requests." Lastly, the court notes that although plaintiffs make various arguments disputing DOD's decision to classify the information, "in light of the 'substantial weight' accorded to agency affidavits, the Court will not conduct a detailed inquiry to determine whether it agrees with Defense's explanation." (posted 11/18/2010)

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