Summaries of New Decisions

Summaries of New Decisions – November 2011

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 cases 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.

WEEK OF OCTOBER 31 – NOVEMBER 4

District Courts

1.  Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.)

Re:  Request for certain records pertaining to criminal investigation and prosecution of plaintiff and the prosecutor in his case

Holding:  Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2

• Procedural/referrals:  The court denies, in part, defendants' motion for summary judgment with respect to four pages of records referred by OPR to EOUSA.  The court finds that "[n]otwithstanding the referral, the defendant must account for the disposition of these records . . . which it has not done." 

• Adequacy of search:  The court determines that EOUSA conducted an adequate search for records where it searched its case management database using the information provided by plaintiff in his request and located responsive records in "a criminal case file under the plaintiff's name."  The court concludes that EOUSA's "declarations are detailed enough for both the plaintiff and the Court to determine that the search was reasonably calculated to locate records responsive to the request."  As to plaintiff's argument that the search was insufficient because it failed to uncover documents related to a sealed case filed in another federal district court, the court finds that "[n]either the EOUSA nor the [United States Attorney's Office for the Middle District of Florida (USAO-FLM)] 'controls' documents filed in and maintained by the United States District Court for the Middle District of Florida, and nothing in their declarations suggests that either the EOUSA or the USAO-FLM maintained or obtained copies of documents filed in federal court."  Moreover, the court notes that "EOUSA is under no obligation to locate or retrieve files from another federal government agency [in this case, purportedly, DEA] . . . and need not have retrieved documents which may have been filed in the sealed case."  

With regard to plaintiff's request for OPR records "pertaining to both his criminal case and his complaint against [a particular Assistant United States Attorney]," the court concludes that "[t]he supporting declarations establish that OPR staff searched the office's sole electronic database by which OPR tracks its cases, that the search yielded three correspondence files, and that the OPR does not maintain criminal files unless an investigation of a complaint is undertaken (and no such investigation of the plaintiff's complaint was conducted)."   The court notes that "OPR's searches certainly have yielded records responsive to the plaintiff's FOIA request in correspondence files, and correspondence files are designed to house records in matters which do not rise to the level of an inquiry."  Additionally, the court finds that "[w]hether [as plaintiff alleges] the records refer to [the AUSA's] resignation is of no moment, and the plaintiff's dissatisfaction with the results of the searches does not render the searches inadequate."

• Exemption 2:  The court denies, in part, OPR's motion for summary judgment to the extent that it relied on "low" 2 to withhold "'case file numbers, document file path names, fax telephone numbers, and direct dial telephone numbers assigned to specific DOJ staff.'"  The court comments that "OPR's supporting declarations were prepared before [the Supreme Court's decision in] Milner [v. Department of the Navy] and therefore do not address whether [these items] are related solely to the office's internal personnel rules and practices."  Accordingly, the court "allow[s] the defendant an opportunity to reconsider its reliance on Exemption 2 in light of Milner." 

• Exemption 5 (deliberative process privilege):  The court holds that OPR properly asserted the deliberative process privilege to withhold "'a predecisional memo from one OPR attorney to her superior recommending action in the case,'" the release of which "'would disclose the decision making process' regarding steps to be taken, or not taken, in response to the plaintiff's complaint."  The court finds that plaintiff's "bald assertion" that "'defendant has made conclusory and generalized allegations'" with respect to withholdings "utterly fails to establish a genuine issue of material fact as to the defendant's decision to withhold this predecisional memorandum." 

• Exemption 6:  As an initial matter, the court notes that although OPR withheld "'the names and identifying information of third parties, including federal employees and private citizens' under Exemption 6 in conjunction with Exemption 7(C)," "[b]ecause any statement establishing that the responsive records were compiled for law enforcement purposes was absent from its supporting declaration, and such a showing is required for reliance on Exemption 7, the Court will consider the matter as if the OPR relied solely on Exemption 6."  The court then concludes that OPR properly asserted Exemption 6 where the privacy interests of the individuals identified in the records outweigh any public interests in disclosure and where plaintiff failed to provide any support to the contrary.  

• Exemption 7/threshold:  As a threshold matter, the court concludes that both EOUSA and DEA demonstrated that the records related to the criminal investigation and prosecution of plaintiff satisfy the law enforcement threshold of Exemption 7. 

• Exemption 7(C):  The court concludes that defendants properly withheld information pertaining to third parties pursuant to Exemption 7(C).  The court notes that plaintiff "concedes . . . the propriety of withholding the names of and identifying information about [certain] third parties" mentioned in the records, but still seeks release of information pertaining to a prosecutor and two DEA Special Agents.  The court notes that "[g]enerally, the privacy interests of third parties mentioned in law enforcement files are 'substantial,' while '[t]he public interest in disclosure [of third-party identities] is not just less substantial, it is insubstantial.'"  Moreover, the court observes that although "[a] government employee's privacy interest may be diminished by virtue of his government service, . . . he retains an interest nonetheless."  The court finds that, in this case, "plaintiff's interest in the requested records is personal in nature – the subjects of his requests were active participants in the investigation of his criminal activities, the gathering and use of his intercepted telephone communications, the criminal trial, and the subsequent complaints he filed against these individuals."  In terms of the public interest in disclosure, the court finds that plaintiff's "unsupported assertions and speculation" do not constitute "'evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred" as required by the Supreme Court in NARA v. Favish.

• Exemption 7(D):  The court treats "plaintiff's statement that 'he does not seek . . . information about informants and their names' . . . as a concession that the DEA properly has withheld 'source-identifying and source-supplied investigative information' under Exemption 7(D)."

• Litigation considerations/motion for relief from judgment:  At the outset, the court interprets plaintiff's motion for relief from an earlier ruling in this case, in which the court granted partial summary judgment to defendants, as a motion brought under Federal Rule of Civil Procedure 54.  The court notes that "'[i]nterlocutory judgments are . . . subject to the complete power of the court rendering them to afford such relief from them as justice requires.'"  The court rejects plaintiff's argument that its interlocutory decision dismissing a district court and the clerk of state court from this action should be reversed "[b]ased upon his discovery of a sealed case in the United States District Court for the Middle District of Florida."  Rather, the court finds that "the existence of this sealed case is neither a controlling nor a significant change in the facts of the plaintiff's case" and, furthermore, because "neither a federal district court nor a state court is subject to the FOIA, . . . existence of the sealed case has no bearing on this FOIA action."  The court also dismisses plaintiff's claim that the court's prior ruling affirming "DEA's refusal to confirm or deny the existence of law enforcement records" pertaining to two Special Agents should be reversed.  Instead, the court determines that "plaintiff's recent discovery of information pertaining to the agents' resignation, . . . does not strip the agents of their privacy interests, and the plaintiff's arguments as to the existence of a public interest of greater magnitude than these individuals' privacy interests, . . . are not persuasive."  Contrary to plaintiff's contention, the court also finds that that President Obama's 2009 memorandum on the FOIA, by its terms, "'does not create any right or benefit'" which would serve as a ground for relief.  Lastly, with respect to its ruling that plaintiff failed to exhaust his administrative remedies for a specific request, the court finds that plaintiff's later attempt to remedy that failure by filing an administrative appeal is not sufficient to cure that deficiency.  The court observes that "[e]xhaustion of one's administrative remedies is a prerequisite to filing a lawsuit, . . . and exhaustion by the plaintiff as to this claim did not occur before this action was initiated." 

2.  Eslaminia v. FBI, No. 99-3249, 2011 WL 5118520 (N.D. Cal. Oct. 28, 2011) (Patel, J.)

Re:  Request for various records pertaining to plaintiff's deceased father; specifically records recovered from the father's residence by the FBI during an investigation into his disappearance

Holding:  Granting, in part, the FBI's motion for summary judgment with respect to documents for which it asserted Exemption 1, but ordering the release of certain excerpts within those documents, which were designated by the court as reasonably segregable

• Exemption 1:  Based on its in camera review and the agency's "detailed declarations," the court concludes that the FBI properly invoked Exemption 1 to withhold notebooks and handwritten notes taken from plaintiff's father's residence during the course of an investigation.  The court notes that "[t]he declarations taken together provide adequate justification for [defendants'] in camera submission and for the assertion of the (b)(1) exemption" and finds that, additionally, "[t]he documents themselves provide ample further support for the claimed exemption."  With respect to the issues as to whether certain documents "are or are about to be automatically declassified or should be declassified under the new Executive Order 13,526," "[t]he court is satisfied that the agency has sufficiently explained the reason for continued classification."  The court finds that "even at this late date there is much in these documents that discloses intelligence sources and methods that still pertain to national security and justify continued classification and exemption under (b)(1)."  In particular, the court notes that the lives of persons identified in the records "could be jeopardized by disclosure of their contacts with the author of the document, [plaintiff's father] and others."  Moreover, the court determines that "[w]hether [the persons mentioned in the records are] living or deceased[,] these individuals have family and relatives remaining in Iran who could be victims of incarceration, torture or execution."  In fact, the court notes that "[t]he declarations point out specific instances of such consequences." 

• Segregability:  Based on its in camera review, the court holds that "excerpts from [certain] documents may be disclosed without adversely affecting the national security concerns established by the defendant F.B.I., while the remainder of the documents may be withheld."

• Public domain:  The court concludes that evidence proffered by plaintiff purporting to show that "the classified information has already been disclosed in other documents retrieved from [his father's] home and not seized by law enforcement" is not sufficient to establish that the withheld information is publicly available.  The court finds that "[t]hese documents post-date the classified documents in this case and contain that is different from that contained in the classified documents."  Moreover, the court determines that plaintiff's exhibit, which "is not classified" and is in his possession, "is distinct and separate from the documents that have been classified" and, accordingly, "[i]ts acquisition, however obtained, was not obtained from the defendants and it does not affect the legitimacy of the classification of the documents withheld."  

WEEK OF NOVEMBER 7

District Courts

1.  Muslim Advocs. v. DOJ, No. 09-1754, 2011 WL 5439085 (D.D.C. Nov. 10, 2011) (Sullivan, J.)

Re:  Amended request for the "complete and unredacted final versions" of three specific chapters of the FBI's Domestic Investigations and Operations Guide (DIOG), which were shown to plaintiff and other civil rights and civil liberties groups during two meetings at FBI headquarters

Holding:  Granting, in part, defendant's motion for summary judgment based on its finding that the FBI properly redacted two disputed chapters pursuant to Exemption 7(E), but ordering the FBI to submit a supplemental affidavit to provide further justification for withholding a third chapter; and denying plaintiff's motion for summary judgment

• Waiver/public domain:  The court holds that "plaintiff has failed to meet its 'initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.'"  As an initial matter, the court notes that "[i]n this Circuit, the 'public-domain doctrine' has emerged as the dominant paradigm for evaluating the waiver of a potential FOIA exemption," whereby "'[a] plaintiff asserting that information has been previously disclosed bears the initial burden of pointing to specific information in the public domain that duplicates that being withheld.'"  The court finds "unpersuasive" plaintiff's argument that "the disputed chapters of the DIOG are in the public domain because the FBI allowed individuals outside of the agency to review the material."  Rather, the court observes that "[a]lthough the FBI allowed [plaintiff] and several other civil rights and civil liberties groups to view the disputed chapters during a two-hour meeting at FBI headquarters, the Court is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public.'"  Here, the court finds that "the disputed chapters were not released to the general public; rather, they were only shown to a select group of organizations – personally invited by the FBI – at FBI headquarters."  Moreover, "[a]lthough the attendees were permitted to view and take notes on the disputed chapters for approximately two hours, they were required to return the documents at the end of the meeting," and, accordingly, "there is no 'permanent public record' of the disputed chapters in the public domain."  The court rejects plaintiff's argument that "'[t]he free and full note taking allowed during the meeting . . . provided the meeting participants with ample means to make the distributed material part of the permanent public record, therefore satisfying this standard.'"  To the contrary, the court finds that although the "D.C. Circuit has not established 'a uniform, inflexible rule requiring every public-domain claim to be substantiated with a hard copy simulacrum of the sought-after material[,]'" here, "plaintiff has produced no evidence that the redacted sections of the disputed chapters are, in fact, in the public domain."  Additionally, the court notes that "plaintiff's repeated complaints regarding its inability to conduct a 'meaningful review' of the DIOG," tend to indicate that the disputed chapters are not a matter of public record. 

• Exemption 7(E):  The court concludes that the FBI properly invoked Exemption 7(E) to withhold two chapters of the DIOG, but concludes that the FBI has not made a sufficient showing with respect to a third withheld chapter.  The court rejects plaintiff's claim that the FBI has waived its ability to assert Exemption 7(E) by virtue of showing disputed chapters to plaintiff and other groups at two meetings.  Rather, the court determines that "the FBI's limited disclosure at the November 2008 meetings does not preclude the agency's claim of Exemption 7(E) as to the redacted material."  With respect to the news articles proffered by plaintiff that discuss certain investigative techniques employed by the FBI, the court finds that "[a]lthough some information regarding the FBI's use of the particular techniques and procedures discussed in the disputed chapters may be known, '[t]here is no principle . . . that requires an agency to release all details concerning [its] techniques simply because some aspects of them are known to the public[.]'"  "Because 'the public does not have specific knowledge of the circumstances in which undisclosed participation is or is not allowed in FBI investigations or what undisclosed participants are or are not allowed to do,' . . . the Court is not persuaded that plaintiff's news articles require the FBI to release the redacted portions of the DIOG."  As to the propriety of the specific redactions, the court finds that "based upon the limited amount of information withheld from [two] chapters, the agency's affidavits, in conjunction with a review of the released material and the agency's index, provides the Court with enough context to conclude that the FBI fairly and accurately described the withheld material and the potential danger created by its release."  However, with regard to a chapter that "is entirely redacted with the exception of the opening paragraph" and one section, the court concludes that "the affidavit is not sufficiently detailed to allow this Court to undertake a meaningful assessment of the redacted material."  As such, the court orders the FBI "to submit a more specific affidavit providing additional details in support of its extensive redactions in this chapter."  

2.  Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-1810, 2011 WL 5400572 (D.D.C. Nov. 9, 2011) (Jackson, J.)

Re:  Requests for documents related to media requests to interview former lobbyist Jack Abramoff while he was in BOP custody

Holding:  Granting DOJ's motion for summary judgment; and denying plaintiff's cross-motion for partial summary judgment

• Adequacy of search:  The court concludes that both BOP and DOJ's Criminal Division conducted adequate searches for documents responsive to plaintiff's requests.  The court finds that BOP's search consisting of "the two offices that were most likely to have responsive records – the Public Information Office and the Legislative Affairs Office" and Abramoff's inmate "Central File," which contained "information related to all aspects of an inmate's incarceration, including media requests," was "'reasonably calculated to uncover all relevant documents.'"  Similarly, the court determines that Criminal Division's "declaration, which the Court presumes to be made in good faith, demonstrates that the search was directed at the people and offices most likely to have responsive information."  Specifically, the Criminal Division's search encompassed "the Central Criminal Division Index File" and "the Public Integrity Section and the Fraud Section – the offices that handled the Abramoff case – asking the attorneys who were staffed on the case to search their files and emails for any responsive records."    

• Exemption 6:  The court evaluates all of the personal privacy redactions, for which BOP, the Criminal Division and the FBI asserted Exemptions 6, 7(C) and 7(F), under Exemption 6 alone.  The court finds unpersuasive defendants' argument that the release of the identities of third party journalists and filmmakers "'would associate the individuals with Mr. Abramoff and the criminal investigation related to him[ ] and could subject them to unwarranted attention, harassment, or embarrassment.'"  Rather, the court indicates that these individuals were acting "in their professional capacities" and finds that "the fact that some of the people who may be identified in the documents have spoken publicly about their attempts to secure interviews or film deals with Mr. Abramoff reduces the risk that if the information is released, they would be subjected to unwanted attention or embarrassment."  Additionally, the court notes that "there is nothing in the record that demonstrates that the individuals who attempted to visit or interview Mr. Abramoff were directly involved in the criminal investigation."  The court, instead, determines that "the best argument in favor of finding a privacy interest in this situation is that the D.C. Circuit has broadly construed the privacy interests of third parties under Exemption 6" and, accordingly, concludes that "there is at least a minimal privacy interest involved in this case." 

Conversely, the court finds that "any public interest asserted by [plaintiff]," "namely, an interest in knowing the extent to which the BOP and Criminal Division 'sought to prevent Mr. Abramoff from speaking with members of the media,'" "has been satisfied by the documents and portions of the documents already released."  As such, the court concludes that "there is no public interest in the limited redacted or withheld information that would justify its disclosure."  The court observes that "Congress enacted FOIA to allow citizens to know 'what their government is up to,' . . . not what Mr. Abramoff or various press outlets are up to."  Based on the information already released by defendants, the court finds that "plaintiff has been provided with the materials that advance the public interest it identified" and, accordingly, "plaintiff now knows when and whether interview requests were made and how they were resolved."  The court concludes that the remaining redactions concern "simply the personal information identifying who made the requests, which is not a matter that has any bearing on [plaintiff's] stated public purpose."  Moreover, "how much money a private citizen – even a prisoner – was offered by a private media concern reveals nothing about 'what their government is up to.'"  Furthermore, the court notes that its in camera review of the documents supports these findings.  In terms of balancing the privacy and public interests, the court finds that "[a]lthough the privacy interest may be minimal, [plaintiff] cannot point to any public interest that overcomes even that weak privacy interest." 

3.  Graff v. FBI, No. 09-2047, 2011 WL 5401928 (D.D.C. Nov. 9, 2011) (Jackson, J.)

Re:  Request for records maintained by EOUSA pertaining to the involvement of a DOJ official in the arrest, capture and prosecution of former Panamanian General Manuel Noriega; and request for records maintained by the FBI concerning its investigation of and role in the 1987 rendition of Royal Jordanian Flight 402 hijacker and militiaman Fawaz Younis; at issue is whether the defendants' use of a categorical approach to FOIA requests for third party law enforcement records is valid when the third party who is the subject of the request is a foreign national

Holding:  Granting, in part, defendants' motion for summary judgment as to the validity of their policies concerning third party law enforcement records; and denying, in part, defendants' summary judgment motion concerning the application of that policy to the two requests, and remanding for plaintiff to proffer a public interest and for defendants to balance that interest against any privacy interests; and denying, in full, plaintiff's cross-motion for summary judgment

• Exemption 7(C)/categorical:  The court concludes that the defendants' practice of "refus[ing] to initiate a search for material responsive to a FOIA request for law enforcement records about a third party who is a foreign national unless the requester first submits a proof of death, a signed privacy waiver, or a public interest justification for the disclosure" is proper.  The court notes that "[t]he Supreme Court and the D.C. Court of Appeals have already had occasion to address the practice of responding to FOIA request in a categorical manner, and they made it clear that [under certain circumstances] rules exempting whole groups of records from disclosure are not only permitted, but should be encouraged as a means of enabling agencies to meet their formidable FOIA obligations in a timely fashion."  The court distinguished the instant case from Nation Magazine v. U.S. Customs Service, in which the D.C. Circuit determined that the Glomar response was not appropriate for records pertaining to a presidential candidate's involvement with the agency's drug interdiction program and remanded to the district court to balance the privacy and public interests involved because "it did not accord any consideration to the public interest in disclosure."  In contrast, the court finds that categorical rule used by EOUSA and the FBI is not overinclusive.  The court observes that "[n]either the EOUSA nor FBI employs a policy of summarily refusing to confirm or deny the existence of records simply because the request calls for law enforcement records related to a third party individual" but "[i]nstead, they accord the requester the opportunity to explain why the public interest in disclosure outweighs the third party's privacy concerns so that the government agency can perform the particularized balancing of interests that the court found lacking in Nation[ ] Magazine."  The court determines that "[s]ince the requester can overcome the inference that the materials are exempt by coming forward with either a death certificate, a waiver, or a showing of the public interest that would be advanced, the policy satisfies all of the 'statutory requirements for exemption,' . . . and meets the Nation Magazine test." 

Despite plaintiff's argument to the contrary, the court finds that "where an individual seeks law enforcement records that implicate the privacy interests of a third party, the requester bears the burden of asserting the public interest at play" and notes that placing that burden on the requester is consistent with the Supreme Court's holding in NARA v. Favish.  The court reasons that "because the public interest justification in each case depends on how the requester plans to use the records or information, the agency must obtain that justification from the requester in order to balance it against the third party's privacy interest."  Additionally, the court notes that given the burdens placed on agencies "it would be inefficient and impractical, and ultimately, unfair to the requesters, to depend upon the government to guess what the requesters had in mind and to catalogue the possible public reasons for disclosure."  The court maintains that the fact that the subjects of the instant requests are foreign nationals is of no consequence because "courts have determined – and [plaintiff] concedes – that foreign nationals are entitled to the privacy protections embodied in FOIA."  Furthermore, "[e]ven if a third party's status as a foreign national gives rise to a privacy interest that is somewhat weaker than that of a U.S. citizen, given the structure of the statute, even a weak privacy interest will always outweigh a lack of public interest." 

The court also rejects plaintiff's contention that "the government should be required to institute a search as soon as it receives the FOIA request and . . . then call for the requester to provide a public interest justification for each individual responsive record."  Rather, the court finds that this argument is "simply another way of claiming that categorical rules are improper per se, and the courts have already clearly indicated that such rules are a workable and expeditious way to proceed."  In addition, the court comments that "[i]t is more efficient and it imposes no improper burden on the requester to establish a procedure whereby the government performs the necessary balancing once for the entire class of requested records before going through the time and expense of a search." 

• Litigation considerations/Administrative Procedure Act claim:  The court construes plaintiff's claim "that the disputed practice is not authorized by FBI, EOUSA, or DOJ regulations or policies" as one brought under the Administrative Procedure Act.  In order to determine whether the agency's action was "'arbitrary and capricious,'" the court notes that "[t]he first inquiry . . . is whether the agency has departed from established policy at all."  Finding that plaintiff's argument "borders on frivolous," the court finds that "a statement of opinion, made by a DOJ official in response to a question at a conference after her prepared remarks were concluded" proffered by plaintiff as an expression of agency policy, does not, in fact, serve "as a source of official DOJ policy."  Moreover, the court notes that the official "did not opine that a policy that also embraced the concept that the public interest could outweigh privacy concerns would be improper, and she did not articulate any other official policy against which the policy alleged [by plaintiff in his Compliant] could be measured."  Accordingly, the court finds that "plaintiff has provided absolutely no support for his argument that the rule cited in response to his FOIA requests was contrary to agency policy" and, therefore, concludes that "the government practice at issue here does not violate FOIA or constitute an irrational departure from agency policy." 

• Litigation considerations/ripeness:  The court holds that the question as to whether EOUSA and the FBI properly refused to search for law enforcement records related to the subjects of plaintiff's requests, Manuel Noriega and Fawaz Younis, is not ripe for summary judgment.  The court comments that "now that the Court has determined that the [categorical privacy-protection] policy applied in connection with the two FOIA requests was valid, it must determine how to go about reviewing defendants' implementation of that policy in these instances."  The court finds that, here, plaintiff's "conculsory statements [in his initial request and administrative appeal] identify no public interest beyond obtaining the information for its own sake, and they do not make clear that the focus of plaintiff's interest is the conduct of the government rather than the criminal activities of the subjects of the requests."  Specifically, plaintiff "did not describe the nature or purpose of his research or how it will be advanced by the documents," "[n]or did he state what he seeks to uncover through his review of the material documents."  Additionally, to the extent that plaintiff's request asked for information concerning a certain DOJ official in connection with the Noriega prosecution, plaintiff failed to "make a showing as to why he is entitled to material naming this U.S. Citizen."  Conversely, the court finds that "[a]s the government has acknowledged, its categorical rule for considering requests for law enforcement records concerning third parties was not memorialized in policies or procedures available to the public" and "plaintiff was not told that the onus was on him to proffer a justification until after his request had already been turned down."  "[I]n light of unique circumstances in this case – including plaintiff's failure to supply the public interest that would justify disclosure for the Court to consider, defendants' failure to balance that justification against whatever privacy interests remain under the particular circumstances pertaining to these two publicly tried and convicted individuals, and the parties' agreement at the motions hearing that remanding to the agency would be an appropriate way to proceed – the Court will deny defendants' summary judgment motion [as to defendants' application of the policy regarding third party law enforcement records] and remand to the agencies to consider a statement of public interest to be supplied by the plaintiff and conduct the balancing mandated by Exemption 7(C)."   

4.  Hossein v. City of Southfield, No. 11-12947, 2011 U.S. Dist. LEXIS 129481 (E.D. Mich. Nov. 9, 2011) (O'Meara, J.)

Re:  Request for records submitted to the City of Southfield, a state court, and five state employees

Holding:  Granting defendant's motion to dismiss for failure to state a claim

• Litigation considerations/proper party defendant:  The court grants defendant's motion to dismiss plaintiff's action for failure to state a claim upon which relief may be granted, noting that "Plaintiff has sought to use the FOIA and Privacy Act to obtain information from state agencies and courts, to which the statutes do not apply." 

5.  Jolly v. Town of Randolph Police Dep't, No. 11-11588, 2011 U.S. Dist. LEXIS 129834 (D. Mass. Nov. 9, 2011) (Casper, J.)

Re:  Request for records submitted to local police department and state prosecutor's office

Holding:  Denying, without prejudice, plaintiff's application to proceed in forma pauperis; and ordering plaintiff to show cause as to why this action should not be dismissed for lack of subject matter jurisdiction

• Litigation considerations/proper party defendant:  "Since [plaintiff] seeks the release of records from state entities (a local police department and county prosecutor's office), the Court finds that FOIA does not govern Plaintiff's request."  The court orders plaintiff to "show good cause why his action should not be dismissed for lack of subject matter jurisdiction."   

6.  Pub. Emps. for Env't Resp. v. Off. of Sci. & Tech. Pol'y, No. 10-1762, 2011 WL 5358711 (D.D.C. Nov. 8, 2011) (Jackson, J.)

Re:  Request for various records pertaining to the Office of Science and Technology's (OSTP's) recommendations for guaranteeing scientific integrity throughout the executive branch; at issue are the withholdings made pursuant to Exemption 5

Holding:  Denying parties' motions for summary judgment where OSTP's submissions are insufficient for the court to determine the propriety of the Exemption 5 withholdings; and ordering defendant to provide additional information to support its claims of exemption

• Exemption 5 (deliberative process privilege):  At the outset, the court notes that plaintiff "does not challenge that the redacted and withheld documents are predecisional, and the Court finds nothing in the record that suggests otherwise."  Accordingly, the court will only address plaintiff's claim that "OSTP failed to meet its burden to establish that the redacted statements and withheld documents were deliberative in nature."  Reviewing two district court cases in which the sufficiency of agencies' submissions was addressed, the court finds that "OSTP's Vaughn index is more similar to the legally insufficient index in Defenders of Wildlife [v. U.S. Border Patrol], than to the legally sufficient index in [People for the American Way Foundation v.] National Park Services."  The court finds that "[t]hough OSTP provided information that was otherwise missing in Defenders of Wildlife – the originating component agency, the author, and the recipient(s) of the documents – every declaration for why the document was redacted or withheld contains the same boilerplate language" stating that memorandum or emails at issue are "'preliminary, non-final draft[s].'"  The court concludes that "[w]ithout additional information regarding OSTP's decision to redact and withhold information, [it] does not have sufficient information to grant summary judgment in favor of either party at this time" and directs OSTP "to amend or supplement its Vaughn index and/or declarations to provide more detail as to why each redacted or withheld document falls within the deliberative process privilege."       

7.  N.Y. Times Co. v. FBI, No. 10-7920, 2011 WL 5346031 (S.D.N.Y. Nov. 8, 2011) (Patterson, J.)

Re:  Amended request for "assessment statistics" on the use of certain investigative techniques contained in the FBI's response to an inquiry from the Senate Judiciary Committee

Holding:  Granting defendants' motion to dismiss for lack of subject matter jurisdiction where all responsive records were released to plaintiff in an unredacted format, and denying plaintiffs' motion for summary judgment seeking a broad declaration by the Court that all "assessment statistics," not merely those sought in the Complaint, are public records under the FOIA and subject to disclosure

• Litigation considerations/mootness:  As an initial matter, the court notes that plaintiff's Complaint in this matter is confined to his narrowed FOIA request for specific "assessment statistics" that were provided by the FBI to the Senate Judiciary Committee in response to a Congressional inquiry.  As such, the court finds "[p]laintiffs' summary judgment motion [seeking a declaration by the Court that all assessment statistics are public records under the FOIA and thus subject to disclosure] attempts to broaden their claims to all assessment statistics in an impermissible attempt to avoid mootness."  The court concludes that because "the FBI's March 7, 2011 unredacted release of the Assessment Statistics provided to the Senate Judiciary Committee complied with [plaintiffs'] FOIA request in accordance with his later amended request, the [plaintiffs' initial] FOIA Request is now moot."  The court rejects plaintiffs' arguments their claims are not moot.  Instead, the court finds that "[d]efendant's initial withholding under Exemption 2 was not improper under circuit court case law at the time Exemption 2 was invoked."  As to the assertion of Exemption 7(E), the court notes that "the FBI released the requested document after a review by its subject matter experts revealed that the release of the assessment statistics requested by [plaintiffs] would no longer harm a protected interest."  The court also dismisses plaintiffs' contention that the case is not moot because "the FBI is engaged in the unlawful practice of the unwarranted withholding of assessment statistics pursuant to FOIA exemptions."  Instead, the court finds that "Plaintiffs have failed to provide evidence of prior similar instances to support its claim" and notes that it "would be unwise [for the court] to issue a declaration [on the matter] . . . because 'such a declaration would be an advisory opinion which federal courts may not provide."  

8.  Moya v. Dep't of Educ., No. 11-80750, 2011 U.S. Dist. LEXIS 129262 (S.D. Fla. Nov. 8, 2011) (Marra, J.)

Re:  Requests for first-party records; specifically, plaintiffs' Complaint alleges that defendant's regulations do not contain any requirement that a signature is needed for FOIA requests that are transmitted via e-mail or fax

Holding:  Granting defendant's motion to dismiss based on plaintiffs' failure to state a valid cause of action

• Procedural/unperfected request:  The court grants defendant's motion to dismiss because "Plaintiffs' allegations are legally insufficient to state a claim" where they "failed to allege that they fulfilled the lawfully adopted federal regulations requiring that they 'include verification of the requester's identity' [for first-party, Privacy Act requests] before they sought relief under FOIA."  Additionally, the court comments that "[p]laintiffs' mere denial of the existence of this legal requirement does not suffice to state a valid claim." 

WEEK OF NOVEMBER 14

District Courts

1.  Islamic Shura Council v. FBI, No. 07-1088, 2011 WL 5593132 (C.D. Cal. Nov. 17, 2011) (Carney, J.)

Re:  Request for records pertaining to any FBI investigation or surveillance of plaintiffs; at issue is plaintiffs' motion for sanctions

Holding:  Granting plaintiffs' motion for sanctions in the amount of reasonable attorneys' fees for bringing the instant motion

• Litigation considerations/motion for sanctions:  The court grants plaintiffs' motion for sanctions against the government in the amount of reasonable attorneys' fees for bringing the instant motion.  As an initial matter, the court finds that the safe harbor provision of Rule 11(c)(2) is inapplicable "here because the Government did not withdraw or amend its erroneous filings" within the required time period.  As a general rule, the court notes that "[t]he imposition of sanctions [under Federal Rule of Civil Procedure 11] is a matter within the court's discretion."  Here, the court notes that "[t]he parties do not dispute that the Government did not act out of some improper purpose or in bad faith when submitting misinformation to the Court," accordingly, "the court's inherent powers to impose sanctions [under Rule 11(b)(1)] do not apply."  Although the court recognizes that "the Government did not act in bad faith," the court finds that it nevertheless "presented false information to the Court—not negligently or without reasonable inquiry—but with the Government's full knowledge, over the course of two years in litigating this action, and after diligent factual inquiry."  The court rejects defendant's defense that its "delayed disclosure of the truthful facts to the Court is based on its policy and practice under FOIA to disclose information at the earliest time possible in litigation without alerting the requester to national security-sensitive information."  Rather, the court notes that "[p]arties cannot choose when to tell the Court the truth" and must do so throughout the proceeding.  The court observes that "[t]he Government could have availed itself of routine court procedures without compromising national security, such as by filing an in camera declaration concurrently with its public filings" or "could have employed a Glomar response or submitted sealed briefings concurrently with its public filings." 

2.  Goodyke v. U.S. Dep't of Justice Off. of Info. Pol'y, No. 11-455, 2011 U.S. Dist. LEXIS 133030 (W.D. Tex. Nov. 17, 2011) (Montalvo, J.)

Re:  Request for the authority under which the DOJ prosecutes cases in the name of the "United States of America"

Holding:  Dismissing, with prejudice, Complaint of plaintiff, who was proceeding in forma pauperis, as frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1); and advising plaintiff that this dismissal counts as a "strike" under that statute

• Adequacy of search:  The court dismisses plaintiff's Complaint as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1).  The court notes that plaintiff's "theory that the 'United States' and the 'United States of America' are different entities is an indisputably meritless legal theory."  As such, the court finds "it is not reasonable to expect the defendants to maintain agency records addressing this indisputably meritless legal theory."  The court concludes that "defendants have complied with FOIA's requirements" by advising him that it does not maintain the types of records that he seeks.

3.  ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.)

Re:  Request for statistical data, legal memoranda, and other reports and records pertaining to surveillance under the Foreign Intelligence Surveillance Act Amendment Act of 2008 (FAA); at issue are defendants' withholdings pursuant to Exemptions 1, 3, and 7(E)

Holding:  Concluding that defendants have failed to justify the majority of their withholdings made pursuant to Exemptions 1, 3, and 7(E); denying plaintiff's motion to strike defendants' submission of classified declarations; granting, in part and denying in part, plaintiff's motion for an in camera review, and ordering defendants to submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits; and deferring ruling on the parties cross-motions for summary judgment pending submission of supplemental materials

• Exemption 1:  The court holds that ODNI, DOJ's National Security Division (NSD), NSA, and the FBI have failed to justify their withholdings pursuant to Exemption 1.  With respect to ODNI, the court finds that the agency's declaration "failed to make the required showing that the information withheld 'logically falls' within Exemption 1" because it "'gives no contextual description . . . of the specific redactions made to the various documents,' . . . and fails even to identify the provisions of Executive Order 13,526 that purportedly apply."  The court notes that although some of the redacted documents "contain contextual clues, the very purpose of the Vaughn affidavit is to 'enable[ ] the court to review the agency's claimed redactions without having to pull the contextual information out of the redacted documents for itself.'"  Similarly, the court concludes that the "conclusory and nearly identical justifications for the various NSD withholdings" fails "to 'describe the justifications for nondisclosure' under Exemption 1 with 'reasonabl[e] specific[ity].'"  As to NSA's declaration, the court concludes that the agency failed to "calibrate its response to meet its obligation to 'identify or describe' the national security damage that could result from producing the information identified in Plaintiffs' specific requests . . . [but, rather,] relies on a blanket assertion that the instant FOIA request impermissibly 'seeks . . . operational details' about FAA collection."  Moreover, the court finds that plaintiff's request asks for statistical information pertaining to the "alleged misuse and abuse of the FAA," but that NSA's declaration "does not 'identify or describe' the risks to national security that would accompany disclosure of such information."  Moreover, with regard to the portion of the request asking for non-statistical information, the court finds that NSA failed to identify with "'reasonably specificity'" the harms that would be occasioned by disclosure.  With respect to the FBI's submissions, the court finds that the FBI "carried its burden" for withholding case file numbers, which contain information that "could enable a hostile analyst 'to patch bits and pieces of information together until the actual use of the application of the source or method can be determined.'"  However, the court concludes that the FBI did not adequately justify its other Exemption 1 withholdings where its declaration "makes little effort to describe the documents at issue or explain why they reflect intelligence 'methods,' 'activities,' or 'capabilities.'"  Furthermore, the court comments that "notations on the redacted documents and the Deleted Page Information Sheets are similarly insufficient with neither 'provid[ing] the kind of fact-specific justification that either (a) would permit appellant to contest the affidavit in adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review of the FBI's redactions.'" 

• Exemption 3:  The court concludes that ODNI and NSA did not sufficiently justify their assertion of Exemption 3.  Although the "[p]laintiff's do not dispute that Section 403-1(i) of the National Security Act [relied upon by ODNI] constitutes an exemption statute" under the FOIA, the court finds NSA's declaration "insufficient" where it merely "recites the language of the statute" by "offer[ing] a single sentence, which asserts that '[t]he information in these documents . . . is protected by the sources and methods provision of the National Security Act.'"  Moreover, the court notes that "[m]ere invocation of the exemption statute, coupled with 'b3' labels throughout the redacted documents, is simply not enough."  With regard to NSA's declaration, the court notes that "Plaintiffs do not dispute, that all three statutes [asserted by NSA, namely, section 6 of the National Security Agency Act, 50 U.S.C. § 402 note, 18 U.S.C. § 798, and section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004] qualify as exemption statutes under Exemption 3."  However, the court concludes that NSA's justification for invoking the National Security Agency Act, which protects information regarding activities of the NSA, is not sufficient to withhold the requested statistical information where its declaration merely states that "'NSA's SIGINT activities and functions, and its intelligence sources and methods would be revealed if any of the withheld information about NSA's collection under the FAA are disclosed.'"  The court notes that this case is different from the Second Circuit's decision in Wilner v. NSA, to which NSA points for the proposition that "'any response [by the agency] would reveal" information with respect to the activities of the NSA.'"  In Wilner, the Second Circuit approved of NSA's Glomar response in conjunction with Exemption 3 with respect to a request for any records related to the interception of communications between Guantanamo Bay detainees and their legal counsel.  In contrast, the court notes that "plaintiffs here specifically disclaim any request for the content of FAA surveillance applications or the identities of FAA surveillance targets," but rather, seek "statistics that would reflect the exercise of FAA authority beyond the bounds of the authorizing statute."  Accordingly, the court finds that it "cannot say that the 'very nature' of Plaintiffs' statistical requests concerns the 'activities' of the NSA within the meaning of section 6 of the National Security [Agency] Act."  Additionally, the court concludes that "[t]he single conclusory sentence that seeks to justify the NSA withholdings is similarly insufficient with respect to the remaining exemption statutes, 18 U.S.C. § 798 and 50 U.S.C § 403-1(i)(1)." 

• Exemptions 7(E):  The court concludes that the FBI's declaration "offers little more than a generic assertion that disclosure [of internal e-mails, training slides, legal opinions, interpretations of techniques, Standard Operating Procedures, electronic communications . . . concerning investigations, case write-ups, and miscellaneous reports] 'could enable targets to avoid detection or develop countermeasures to circumvent' law enforcement efforts."  Accordingly, the court finds "such boilerplate as insufficient to carry the FBI's burden with respect to the Exemption 7(E) withholdings." 

• Litigation considerations/motion to strike:  The court denies plaintiff's motion to strike the classified declarations submitted by NSA and an undisclosed declarant.  The court notes that "[i]n a FOIA action implicating national security interests, the Court may conduct in camera review of agency affidavits after 'attempt[ing] to create as complete a public record as is possible.'"  The court comments that here it "first considered the four public agency affidavits and attempted 'to create as complete a public record as possible,' . . . by making 'itemized findings' with respect to each affidavit," but "[f]inding the public affidavits insufficient, the Court deems it necessary to examine the classified declarations as well."

• Litigation considerations/adequacy of classified declarations:  The court notes that it "finds the classified declarations considerably more forthcoming, but ultimately insufficient to justify the relevant withholdings."  In particular, the court finds that "[w]ithout an actual explanation as to why disclosure 'would reveal the scope of NSA's collection activities,' the Court simply cannot engage in a meaningful de novo review as is required by law."

• Litigation considerations/in camera review:  Based on the insufficiencies that it identified with defendants' public and in camera,classified submissions, the court finds that "limited in camera review is both necessary and appropriate," and orders defendants to "submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits that include 'a relatively detailed analysis [of the withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions. '"  

4.  Callaway v. U.S. Dep't of the Treasury, No. 04-1506, 2011 WL 5559774 (D.D.C. Nov. 15, 2011) (Roberts, J.)

Re:  Request for records pertaining to plaintiff's criminal investigation or prosecution; at issue are four matters for which the D.C. Circuit remanded to the district court for further findings, i.e., a factual dispute concerning certain audio tapes released by EOUSA to plaintiff, the adequacy of the searches conducted by the U.S. Customs Service, a determination as to whether any portions of the grand jury transcripts withheld by EOUSA entered the public domain, and a segregability finding

Holding:  Granting, in part, defendants' renewed motion for summary judgment and concluding that there remains no factual dispute regarding the content of audio tapes produced to plaintiff, determining that the grand jury testimony identified by plaintiff has not entered the public domain, and finding that Customs is not required to search for records maintained on microfiche; but, ordering defendants to submit additional information with respect to certain non-investigatory records responsive to plaintiff's request

• Adequacy of search:  With respect to a factual dispute identified by the D.C. Circuit as to whether EOUSA provided plaintiff with unredacted versions of audio tapes used as trial exhibits during his criminal case, the court concludes that defendant has "fulfilled its obligations under the FOIA."  The court notes that EOUSA's declaration demonstrates, and plaintiff concedes, that any alterations to the audio tapes were made during the course of preparing for plaintiff's criminal trial, and not in the course of responding to his FOIA request.  The court notes that its "authority is limited to the release of non-exempt agency records in existence at the time the agency receives the FOIA request."  In this case, the D.C. Circuit has already affirmed that "EOUSA's search for records responsive to plaintiff's FOIA request [was] adequate and reasonable under the circumstances."  The court notes that "EOUSA 'released to [plaintiff] exactly what he requested,' . . . namely, copies of the recordings in the EOUSA's possession without further redaction."  The court concludes that "[n]othing in the record establishes that the EOUSA is 'withholding the original versions of [the requested] audio tapes . . . or that the EOUSA has failed to conduct a search for the tapes, or that the EOUSA's failure to produce them constitutes 'an illegal withholding under FOIA.'"

As to Custom's search for responsive records, the court finds that the agency properly searched the two databases which would contain records pertaining to plaintiff's criminal investigation.  However, the court determines that "plaintiff's FOIA request 'is reasonably susceptible to a broader reading,' . . . than one encompassing only investigatory or criminal investigatory records."  Specifically, the court notes that "[h]is request for invoices for services rendered by [a company which provides transcription services] . . . does not so clearly or exclusively pertain to law enforcement that [the two investigatory databases searched by Customs] could be the only systems of records likely to contain responsive records."  Accordingly, the court denies defendants' motion for summary judgment in this respect, and orders Customs to provide additional information regarding whether or where such invoices might be maintained.  With respect to plaintiff's request for additional investigation-related expenditures, the court notes that "[p]laintiff cannot now expand the scope of his original FOIA request." 

With regard to records maintained on microfiche, the court determines that "Customs demonstrates that responsive records would not have been stored on microfiche [based on the date of plaintiff's investigation] and that[, in any event,] any microfiche records maintained by the agency would have been destroyed before plaintiff submitted his FOIA request." 

• Exemption 3/public domain:  At the outset, the court notes that "[p]laintiff meets his initial burden by 'pointing to specific information in the public domain that appears to duplicate that being withheld'" where he proffered certain trial testimony.  However, the court finds that plaintiff "cannot prevail simply by demonstrating that the same witnesses testified both before the grand jury and at trial and by providing the trial transcripts."  Furthermore, the court notes "[p]laintiff's speculation as to the content of the grand jury testimony does not establish that the witnesses' testimony has entered the public domain during the trial."  The court concludes that "[EOUSA's] declaration is accorded a presumption of good faith, and the declarant avers that the relevant portions of the transcripts are not identical to any portion of the grand jury transcripts."  Accordingly, "[p]laintiff fails, then, to show that the requested information has entered the public domain" and the records remain exempt from disclosure pursuant to Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e).  Additionally, the court comments that it "is not obligated to conduct its own comparison of the transcripts in order to substantiate plaintiff's assertions." 

WEEK OF NOVEMBER 21

Courts of Appeal

1.  Wells v. U.S. Dep't of Educ. Off. for Civ. Rts., No. 11-30686, 2011 WL 5840221 (5th Cir. Nov. 21, 2011) (per curiam)

Re:  Complaint alleges that the Department of Education improperly withheld records with respect to "08-462, 10-323, and 11-603"

Holding:  Affirming the district court's dismissal of plaintiffs' Complaint

• Procedural/reasonably described records:  The Fifth Circuit affirms the district court's dismissal of plaintiffs' Complaint.  Noting that the "FOIA requires that those seeking records from a government agency 'reasonably describe [ ] such records' sought," the Fifth Circuit rules that since it "cannot decipher which records the Appellants are seeking, [it] cannot say that the district court abused its discretion in dismissing the suit on this basis."   

District Courts

1.  Augustus v. McHugh, No. 02-2545, 2011 WL 5841468 (D.D.C. Nov. 22, 2011) (Roberts, J.)

Re:  Request for a report of investigation (ROI) drafted for the purpose of investigating plaintiff's discrimination claims

Holding:  Denying parties' motions for summary judgment as to the FOIA claims; and ordering defendant to file a supplemental Vaughn Index containing additional detail as to its withholdings

• Exemptions 6 & 7(C):  The court denies defendant's motion for summary judgment as to its withholdings under Exemptions 6 and 7(C) because its submissions were insufficiently detailed.  Although defendant states that it used a "'coded format . . . to assist the Court and Plaintiff in reviewing the information withheld within the context of the documents themselves,'" the court finds that, in fact, the administrative "record does not include coded designations by each redaction [on the responsive records] that correspond to the agency's reasons for withholding the information."  Instead, the court finds that "there are few, if any, numbers placed next to the redacted information that would help explain the information – such as the names and identifying information of individuals against whom allegations were made – [that were] redacted from any particular document."  Accordingly, the court orders defendant to "file a copy of the redacted ROI reflecting coded designations that correspond to the agency's Vaughn index." 

2.  Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL 5870550 (E.D. Va. Nov. 22, 2011) (Cacheris, J.)

Re:  Request for investigatory records related to his clients

Holding:  Granting defendant's motion to vacate the court's previous scheduling order which required the parties to file proposed discovery plans; granting, in part, defendant's motion to set a summary judgment briefing schedule; and granting, in part, defendant's motion for leave to file a representative sampling

• Litigation considerations/discovery:  The court grants defendant's motion to vacate its previous scheduling order which required the parties to file proposed discovery plans in advance of a pretrial conference and before defendant moved for summary judgment.  The court finds that it "can properly evaluate Plaintiff's concerns about production procedures and FOIA exemptions after the Government has filed its summary judgment motion explaining its decisions."  In response to the cases cited by plaintiff which "address whether courts should have granted particular summary judgment motions," the court notes that the fact "[t]hat the Government may fail to meet its burden at the summary judgment stage, is not a reason to order discovery in FOIA cases before the Government has had the opportunity to meet that burden."  Additionally, the court finds that plaintiff's claim that "an email produced pursuant to a different FOIA request indicates an attempt to manipulate documents that are responsive to the requests in this case," is not the type of evidence "that would alone necessitate discovery prior to summary judgment."   

• Litigation considerations/Vaughn Index:  In terms of filing times, the court finds that it is appropriate here for defendant to file its Vaughn Index with it motion for summary judgment and provides plaintiff with ninety days to file a response in opposition.  The court also permits defendants to index a representative sample of the responsive records rather than all 23,726 pages, noting that "[c]ourts have permitted sampling in cases with a much smaller volume of documents than the volume in the case at hand."  Additionally, the court generally approves of defendant's sampling methodology which will index certain responsive pages, and for other documents, will "describe the basis for withholding not only the specific page, but for the entire document that encompasses that page," and will provide a "categorical Vaughn index" for certain pages that were withheld in full based on the same justifications.  In terms of volume, the court determines that "every 84th page [of the investigative reports and files] shall be indexed," which will account for approximately two percent of the responsive records, but "emphasizes that this is just the minimum, as the index shall describe the basis for withholding not only the specific page, but for the entire document that encompasses that page."  The court also orders that "if any of the documents pulled as a result of every 84th page being indexed are documents that were fully released, then Defendant should index the next redacted or withheld document."  

3.  Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-750, 2011 WL 5830746 (D.D.C. Nov. 21, 2011) (Boasberg, J.)

Re:  Requests to the Office of Legal Counsel concerning guidance on records keeping and certain records pertaining to the storage and retention of staff emails; at issue is the amount of attorneys' fees and costs due to plaintiff

Holding:  Awarding plaintiff costs and fees in the amount of $12,417.50, reducing plaintiff's requested fee award by 37.5 percent to account for any inaccuracies and overbilling that may have been caused by deficient timekeeping practices, and deducting from the award the time spent reviewing the responsive records

• Attorney fees & costs:  The court finds that "[w]hile [plaintiff's] counsel did keep some contemporaneous records, their timekeeping practices fell significantly below what is expected of fee applicants in this Circuit."  Although plaintiff "offers no real excuse for its inadequate timekeeping habits," "[t]he Court, nevertheless, does not find a complete disallowance of fees to be warranted – the records here are not so deficient as to prevent opposing counsel or the Court from 'mak[ing] an informed determination as to the merits of the application.'"  However, the court reduces plaintiff's fee award "to account for any inaccuracies and overbilling that may have occurred as a result of its unacceptable timekeeping habits."  Accordingly, the court concludes that "Defendant's suggestion of a 37.5% reduction is reasonable," which "is based on splitting the 75% difference between billing in quarter-hour versus full-hour increments." 

Additionally, the court concludes that plaintiff "should not recover the $3,325 it claims for reviewing" the records received in response to the FOIA request and the draft Vaughn Index.  The court comments that "Plaintiff would have had to expend this time had DOJ timely produced the documents without litigation; the cost of reviewing documents produced in response to a FOIA request is simply the price of making such a request."  Although the court notes that "courts in this District have concluded that awards of 'fees on fees' should be reduced to exclude the amount of time spent unsuccessfully defending fee requests denied by the court," here,"[b]ecause [plaintiff] prevailed on the major issues raised in the Motion for Attorney Fees – namely, the questions of whether [plaintiff] was eligible for and entitled to fees in the first place –very little of the time expended on fee issues related to the issues on which it did not prevail." 

WEEK OF NOVEMBER 28

District Courts

1.  Elec. Frontier Found. v. DOJ, No. 10-641, 2011 WL 5966379 (D.D.C. Nov. 30, 2011) (Walton, J.)

Re:  Request for records pertaining to discussions and negotiations between the United States and the European Union with respect to the international exchange of personal information for use by law enforcement authorities; at issue are DOJ's withholdings under Exemption 5

Holding:  Concluding that defendants' submissions are insufficient for the court to determine the propriety of the DOJ's assertion of Exemption 5 and granting plaintiff's motion for summary judgment on this point; denying defendants' motion for summary judgment without prejudice, and ordering the defendants to provide revised Vaughn submissions to address the issues identified by the court

• Exemptions 5 (deliberative process privilege):  The court finds that there is insufficient information to determine the propriety of DOJ's withholdings pursuant to the deliberative process privilege.  For one, the court finds that "in many instances, the DOJ's components' Vaughn submissions fail to provide necessary contextual information about the particular decision-making processes to which the withheld documents contributed, and the role the withheld documents played in those processes."  Second, the court concludes that defendants "fail[ed] to provide sufficient detail as to the identities, positions, and job duties of the authors and recipients of the withheld documents."  Third, the court determines defendants "failed to explain in sufficient detail 'whether [the withheld] drafts were (1) adopted formally or informally, as the agency position on the issue; or (2) used by the agency in its dealings with the public."  Lastly, the court finds that the "Vaughn submissions do not provide an adequate basis for evaluating the plaintiff's claim that the agency waived the deliberative process privilege as to certain documents."  Accordingly, the court orders DOJ to supplement its Vaughn submissions.

• Segregability:  As a general matter, the court notes that "[u]pon consideration of the DOJ's justifications, and given the number of redacted documents that it has produced to the plaintiff, [it] does not doubt that the DOJ has conducted a segregability analysis of responsive documents."  "Nevertheless, the Court believes that the DOJ can provide a more comprehensive description as to the various documents withheld in full" and finds that "[a]s it stands  now, the DOJ's description of its segregation efforts is too categorical for the Court to evaluate whether any factual material in the documents withheld in full is 'inextricably intertwined' with the deliberative material such that the agency can permissibly withhold documents in their entirety."  The court suggests that the agency in its revised Vaughn submissions "should, for example, 'describe what proportion of the information in [the] document[s],' if any, 'is non-exempt and how that material is dispersed throughout the document[s].'" 

2.  Cannon v. Cooch, No. 10-274, 2011 WL 5925329 (D. Del. Nov. 28, 2011) (Sleet, J.)

Re:  Allegation that plaintiff was improperly removed from a public law library

Holding:  Dismissing plaintiff's FOIA claim for failure to state a claim upon which relief may be granted

• Jurisdiction:  The court holds that "[c]learly, the Superior Court of Delaware is not a federal executive branch agency" and "[t]hus, any order given by [a state] Judge . . . to the police officers regarding [plaintiff's] removal from the law library does not come within the purview of the Federal FOIA."