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Summaries of New Decisions -- November 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 November 2010.

WEEK OF NOVEMBER 1

District Courts

1. Ruston v. U.S. Secret Serv., No. 10-0869, 2010 WL 4365541 (D.D.C. Nov. 4, 2010) (Friedman, J.)

Re: Complaints styled as FOIA requests alleging various conspiracies

• Litigation considerations: The court finds that, based on plaintiff's history of filing multiple vexatious and frivolous lawsuits in this district and other jurisdictions, "he has abused the privilege to proceed [in forma pauperis (IFP)]." Accordingly, the court "(1) grant[s] defendant's motion to vacate the order granting leave to proceed IFP, (2) revoke[s] plaintiff's IFP status in all of his pending civil actions, and (3) enjoin[s] plaintiff from proceeding IFP in this Court in any future civil actions."

2. Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 117203 (E.D. Wa. Nov. 2, 2010) (Shea, J.)

Re: Requests for records related to the Board's involvement in extending loans to a number of businesses and industries, including several of the world's largest investment banks

• Exhaustion of administrative remedies: The court finds that plaintiff's "non-compliance with FOIA" by not reasonably describing the records sought does not constitute a failure to exhaust his administrative remedies. Instead, the court concludes that plaintiff exhausted his administrative remedies where "the Board did not comply with the FOIA's statutory time requirements." The court notes that under the FOIA the Board was required to "1) notify [plaintiff] that his request could not be processed within the ten-day extension, and 2) allow him to either limit his request so that it could be processed within the time limit or arrange for an alternative time frame." The court orders defendant to submit a supplemental briefing to explain why the case should be dismissed for lack of subject matter jurisdiction given defendant's apparent failure to comply with the statutory time limits.

3. Altston v. FBI, No. 09-1397, 2010 WL 4313686 (D.D.C. Nov. 2, 2010) (Urbina, J.)

• Litigation considerations: The court finds that "plaintiff has three strikes under [the Prison Litigation Reform Act], and because the plaintiff does not allege that he is in any imminent danger related to his [instant] FOIA action, the court strips him of his IFP status."

4. Jackson v. Hagerstown Task Force, No. 10-0182, 2010 WL 4286087 (D. Md. Oct. 29, 2010) (Quarles, J.)

Re: Request for names of officers involved in a traffic stop

• Proper party defendant: The court dismisses plaintiff's FOIA claim against a state task force, noting that "[n]one of the defendants works for a federal agency subject to FOIA."

5. Pohl v. EPA, No. 09-1480, 2010 WL 4388071 (W.D. Pa. Oct. 29, 2010) (Standish, J.)

Re: Request for research data maintained by private grant recipients

• Litigation considerations: The court rejects defendants' assertions that two counts of plaintiff's amended complaint alleging violations of the Administrative Procedure Act (APA) should be dismissed for lack of subject matter jurisdiction because the "FOIA provides an adequate remedy for the alleged violations." Rather, the court determines that the "FOIA itself . . . cannot provide an adequate remedy for the agency's failure to" obtain study data under the control of private grant recipients in response to plaintiff's FOIA request. However, the court finds that plaintiff's claims regarding an agency's decision to transfer her request to another agency as well as allegations of undue delay in responding to her administrative appeal are properly reviewed under the FOIA and dismisses that count to the extent that it "seeks relief through the APA." Additionally, the court dismisses plaintiff's mandamus claim because "the relief Plaintiff seeks through a writ of mandamus duplicates that available under the APA and/or FOIA."

6. Powell v. Gibbons, No. 09-093, 2010 WL 4293278 (D. Nev. Oct. 20, 2010) (Jones, J.)

• Exhaustion of administrative remedies: The court concludes that it lacks jurisdiction over plaintiff's FOIA claim where "he fails to allege the nature of the documents that he seeks," and "also fails to allege that the United States Department of Justice and the Federal Bureau of Prisons has the records he seeks and that he made a full and proper FOIA request." The court further notes that "to the extent that plaintiff can adequately allege a cognizable claim under FOIA in the future, that claim may be asserted in an action brought under FOIA, rather than in the instant civil rights actions."

WEEK OF NOVEMBER 8

Courts of Appeal

1. Dent v. Holder, No. 09-71987, 2010 WL 4455877 (9th Cir. Nov. 9, 2010) (Kleinfeld, J.)

Re: Access request for plaintiff's A-file, containing his immigration and naturalization related records

• Procedural: The court finds that plaintiff is not required to submit a FOIA request for his A-file where he is presently involved in removal hearing and "asked for help in getting what records the agency had that bore on his case." The court concludes that 8 U.S.C. § 1229, which provides that an "'alien shall have access' to his entry document" and other similar records "'not considered by the Attorney General to be confidential'" in order to "meet his burden of proof in removal proceedings," is a "mandatory access law [that] entitle[s] [plaintiff] to his A-file." The court notes that DHS's regulation requiring that "an individual seeking access to records about himself" submit a FOIA request "is a general regulation governing records requests" and "does not purport to address removal hearings specifically." The court finds that "[i]f [the DHS regulation] applied to removal proceedings, a serious due process problem would arise, because FOIA requests often take a very long time, continuances in removal hearings are discretionary, and aliens in removal hearings might not get responses to their FOIA requests before they were removed." The court construes "the 'shall have access' statute to provide a rule for removal proceedings, and the regulation to apply generally in the absence of such a more specific rule" and, accordingly, requires that defendant produce plaintiff's A-file in the absence of a FOIA request.

2. Pickering-George v. Alcohol & Tobacco Tax & Trade Bureau, No. 10-5243, 2010 WL 4464576 (D.C. Cir. Nov. 8, 2010) (per curiam)

Re: Request to obtain license for and to register a firearm

• Litigation considerations: The court rules that "[t]he district court correctly determined appellant failed to state a claim under the [FOIA] . . . or for mandamus relief" for firearms licensing and registration. Additionally, "the district court did not abuse its discretion in denying as futile appellant's motion to amend the complaint."

WEEK OF NOVEMBER 15

District Courts

1. Royer v. BOP, No. 10-146, 2010 U.S. Dist. LEXIS 122878 (E.D. Va. Nov. 19, 2010) (Brinkema, J.)

• Venue: The court holds that venue is improper in the Eastern District of Virginia and transfers the action to the District Court for the District of Columbia. The court concludes that although plaintiff's "domicile may well be in the Eastern District of Virginia," "in light of the fact that he is presently serving a 20-year sentence and is confined to a federal facility in Colorado, [he] has failed to set forth sufficient information establishing that he resides in this District for FOIA and Privacy Act purposes." The court observes that the Fourth Circuit has not expressly addressed this issue, but notes that "other courts, most notably the D.C. Circuit, have found that for the purposes of venue, 'a prisoner has his residence at his place of confinement.'"

2. Godaire v. Napolitano, No. 10-1266, 2010 U.S. Dist. LEXIS 122237 (D. Conn. Nov. 17, 2010) (Kravitz, J.)

Re: Requests for records reflecting investigations into his complaints and the tapping of his telephone and for various other documents

• Proper party defendants: The court dismisses plaintiff's FOIA claims against individuals, state entities and private businesses because "FOIA applies only to federal agencies."

• Exhaustion of administrative remedies: Plaintiff is deemed to have constructively exhausted his administrative remedies with respect to a request submitted to DOJ's Office of the Inspector General (OIG) where "his request to the DOJ complied with the agency's own regulations." First, the court determines that plaintiff properly followed DOJ regulations by sending his initial request to the OIG – the component most likely to maintain records responsive to his request – because "it is not unreasonable to presume that the component of the DOJ that received a complaint is the component that maintains records related to the complaint." Second, the court holds, in accordance with Second Circuit case law, that "under the DOJ’s own regulations, a component of the agency 'has no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.'" Here, the court finds that plaintiff's "Complaint does not indicate that the DOJ attempted to assist [him] in refining his FOIA request."

The court dismisses plaintiff's FOIA claims against the FCC "without prejudice to any amendment he may wish to file" because it is not clear from the record whether plaintiff complied with the agency's regulations regarding fees. FCC regulations provide that "a FOIA request 'shall . . . specify the maximum search fee the person making the request is prepared to pay or a request for a waiver or reduction of fees if the requester is eligible.'" The court finds that plaintiff "did not specify a maximum search fee" in his request and "has not alleged that he submitted a request to the FCC for a waiver or reduction of fees."

The court dismisses plaintiff's claims against the DHS on the basis that his requests are defective and do not comply with the agency's regulations. With respect to one of plaintiff's requests that "sought documents held by other agencies, and asked the [DHS] to compile information about documents 'not in [its] possession,'" the court finds that it extends beyond the of scope of the FOIA. Additionally, the court concludes that plaintiff did not abide by DHS regulations when requesting records related to individuals, finding that "[a]lthough [plaintiff] requested records about both himself and another individual [], in his letters . . . he did not state his date and place of birth, he did not have his signature notarized or sign under penalty of perjury, and he did not provide authorization from [the third party] or proof of [that third party's] death." Regarding a request made to the Office of the Secretary of DHS, the court finds that plaintiff did not send his request to the proper FOIA office specified in DHS's regulations. The court determines that "[b]ecause [plaintiff] has not alleged that his FOIA request was sent to or received by a [DHS] component that is designated to receive FOIA requests under the agency's own regulations, [he] has not even constructively exhausted his administrative remedies, and amendment of his Complaint with regard to his request to [DHS] would be futile."

3. Wall v. EOUSA, No. 09-344, 2010 U.S. Dist. LEXIS 120826 (D. Conn. Nov. 16, 2010) (Hall, J.)

Re: Request for certain records pertaining to plaintiff, third parties, and a labor union

• Exhaustion of administrative remedies: The court rejects as "gratuitous" EOUSA's argument that plaintiff failed to exhaust his administrative remedies because he did not request a fee waiver along with his initial FOIA request, but rather first requested a waiver of fees in connection with his administrative appeal. Given that DOJ's appellate authority addressed the issue and given that exhaustion "is prudential, not jurisdictional," dismissal is not appropriate. Further, the court determines that the "the purposes behind the exhaustion requirement have been more than adequately served here" because "[t]he Department was not deprived of an opportunity to create a factual record."

• Fee waiver: The court finds that EOUSA is entitled to summary judgment where plaintiff's "fee waiver request does not meet the requirement [set forth in DOJ regulations] of showing that the requested records concern 'identifiable operations or activities of the federal government,' . . . that they would be 'meaningfully informative about government operations or activities,' . . . or that they would increase public understanding to 'a significant extent.'" Further, plaintiff has not demonstrated that he "has 'expertise in the subject area' or the 'ability . . . to effectively convey information to the public.'" Instead, plaintiff "provide[d] only conclusory, and not entirely comprehensible, allegations of government corruption." Because DOJ's regulations require advanced payment for fees in excess of $250 and the estimated fees associated with processing plaintiff's request exceeded that amount, the court concludes that DOJ "correctly refused to process [plaintiff's] FOIA request unless [he] paid the fee in advance."

4. Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 120895 (E.D. Wash. Nov. 15, 2010) (Shea, J.)

Re: Requests for records related to the Board's involvement in extending loans to a number of businesses and industries, including several of the world's largest investment banks

• Exhaustion of administrative remedies/proper FOIA request: The court holds that since plaintiff "has not submitted a proper FOIA request, the Board was under no obligation to adhere to the statutory time requirements [to respond to his request] and [he] failed to exhaust his administrative remedies." The court observes that "[t]he statutory time limits for an agency's response are not triggered until a proper FOIA request is received." However, here, the court finds that none of plaintiff's three broadly-worded requests constitute proper FOIA requests because they asked questions or "do not reasonably describe the records sought" and "would unduly burden the FOI Office and significantly interfere with the Board's operations."

5. Exxon Mobil Corp. v. U.S. Dep't of the Interior, No. 09-6732, 2010 WL 4668452 (E.D. La. Nov. 4, 2010) (Wilkinson, Mag.)

Re: Request to depose the declarant for Minerals Management Service (MMS) as to the adequacy of the agency's search for records responsive to plaintiff's FOIA request

• Discovery: The court dismisses plaintiff's request to depose the MMS declarant where the agency "declarations are facially adequate" and plaintiff has not carried its burden to show bad faith. The court finds that MMS's first declaration "describes the persons involved in the search and response, the way in which the MMS maintains its files, the location of responsive documents within those files, the limitations imposed by both the file system and the staffing of the MMS office, the time spent by some MMS employees in compiling the information that MMS provided to [plaintiff] and the availability of many of the documents sought either on the MMS's public websites or within the Administrative Record lodged with the Interior Board of Land Appeals in connection with [plaintiff's] appeal of the denials of its [suspension of production requests]." Additionally, the court notes that the second declaration, which was submitted to detail MMS's response to the narrowed requests submitted by plaintiff and ordered by the court, indicates "either that no responsive documents exist, that responsive documents are attached, that responsive documents are now available on the MMS's website or that responsive documents are being withheld pursuant to the statutory exemption for confidential and proprietary information." The court also finds that plaintiff's various allegations do not constitute bad faith "sufficient to support its request for discovery."

6. Torres v. DHS, No. 09-8640, 2010 U.S. Dist. LEXIS 120353 (S.D.N.Y. Nov. 2, 2010) (Fox, Mag.)

Re: Request for an "existing list" of Arab Americans and American political dissidents and all records related to the death of a Puerto Rican opposition leader

• Exhaustion of administrative remedies: As a preliminary matter, the court finds that "FOIA's statutory language and a significant number of cases in this circuit support the conclusion that exhaustion of administrative remedies is a jurisdictional prerequisite to suit in federal court." In the instant case, the court dismisses plaintiff's FOIA claims for lack of subject matter jurisdiction because "the Court cannot discern [from his complaint] whether [he] made a request for records to DHS, let alone whether he appealed a denial of that request, prior to filing the instant action."

WEEK OF NOVEMBER 22

Courts of Appeal

1. Allard K. Lowenstein Int'l Hum. Rts. Project v. DHS, No. 09-2225, 2010 WL 4704322 (2d Cir. Nov. 22, 2010) (Rakoff, J.)

Re: Request for 2004 memorandum regarding the Immigration and Customs Enforcement's "Operation Front Line"

• Exemption 7(E): The Second Circuit affirms that the district court ruling that the redacted portions of the requested memorandum were properly withheld pursuant to Exemption 7(E). As an initial matter, the Second Circuit finds that despite plaintiff's arguments to the contrary "[t]he sentence structure of Exemption (b)(7)(E) indicates that the qualifying phrase ('if such disclosure could reasonably be expected to risk circumvention of the law') modifies only 'guidelines' and not 'techniques and procedures'" and that the legislative history of the exemption likewise supports this interpretation. Additionally, the Second Circuit rejects plaintiff's argument that "the redacted information constitutes 'guidelines' information, instead of information about 'techniques and procedures.'" The Second Circuit found that the term "guidelines" generally refers in the context of Exemption 7(E) to resource allocation," while techniques and procedures "refers to how law enforcement officials go about investigating a crime." Based on its in camera review of the memo, the Second Circuit finds that "the redacted portions constitute 'techniques and procedures' for law enforcement investigation."

District Courts

1. Strunk v. U.S. Dep't of the Interior, No. 10-0066, 2010 WL 4780845 (D.D.C. Nov. 24, 2010) (Leon, J.)

Re: Request for addresses of New York farmers and farm demographics used in USDA's National Agricultural Statistics Service statistics

• Exhaustion of administrative remedies: The court grants the Department of the Interior's unopposed motion to dismiss a portion of plaintiff's complaint based on a FOIA request for which the agency had no record of receiving.

• Exemption 3: The court concludes that USDA properly withheld the records requested pursuant to Exemption 3 in connection with 7 U.S.C. § 2276(a)(2), which exempts the disclosure of certain categories of information collected by USDA "'unless such information has been transformed into a statistical or aggregate form that does not allow the identification of the person who supplied particular information.'" The court finds that in this case "USDA reasonably construed plaintiff's FOIA request for farmers' mailing addresses as one for 'data in unaggregated form'" and, moreover, that the agency showed "that the information that plaintiff requests falls within the scope of Exemption 3, as 7 U.S.C. § 2276(a)(2) requires the withholding [of] unaggregated data pertaining to individual farmers, ranchers, and other providers of data for USDA statistical reports 'in such a manner as to leave no discretion on the issue.'"

• Attorney fees: The court denies plaintiff's request for an award of attorney's fees because "[a] pro se plaintiff who is not an attorney is not eligible for an award of fees" under the FOIA. "More importantly," the court finds that "plaintiff has not prevailed, substantially or otherwise in this action" and that "[t]he lawsuit does not result in the release of records plaintiff has requested from the USDA, and therefore, plaintiff is entitled to neither attorney's fees nor costs of this action." (posted 12/08/2010)

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