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Summaries of New Decisions - April 2012

Summaries of New Decisions – April 2012

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 APRIL 2

District Courts

1.  Rodriguez-Cervantes v. HHS, No. 11-1387, 2012 WL 1142552 (D.D.C. Apr. 6, 2012) (Boasberg, J.)

Re:  FOIA claim brought against SSA seeking plaintiff's SSA records

Holding:  Granting SSA's motion for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies where he did not submit a FOIA request to the agency, but merely requested documents in the course of this litigation

• Exhaustion of administrative remedies/reasonably described:  The court grants defendants' motion for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies where he did not submit a FOIA request, but merely initiated the instant action.  Reviewing plaintiff's correspondence with the agency, the court concludes that plaintiff's letter to SSA asking if "'there is any way/application to get [his] social security benefits before the age established by [SSA] policies'" does not constitute a reasonably described request for agency records under the FOIA because it "contains no explicit or even implicit request for the production of any records."  Similarly, the court determines that "neither of Plaintiff's two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records," but rather notes that this correspondence "merely pose[s] questions to SSA or ask[s] for assistance in applying for social security benefits."  Further, the court notes that plaintiff himself "admits that he has no FOIA request before SSA."    

2.  Lardner v. FBI,No. 09-874, 2012 WL 1109728 (D.D.C. Apr. 4, 2012) (Lamberth, J.)

Re:  Requests for records pertaining to a deceased underboss of the Gambino crime family, including his informant records; the deceased underboss of the Chicago crime family and; the FBI's Top Hoodlum Program

Holding:  Granting, in part, defendants' motion for summary judgment with respect to the adequacy of the FBI's searches for responsive records; and denying, in part and without prejudice, their motion as it pertains to the merits of their withholdings; granting, in part, plaintiff's motion for partial summary judgment to the extent he requested that defendants reprocess the responsive records; and ordering defendants to reprocess a new sample of documents to be identified by plaintiff and to produce a complete Vaughnindex addressing all withholdings; ordering DEA and IRS to also reprocess their respective records; and denying as moot plaintiff's motion to compel the release of records

• Adequacy of search:  With respect to the request for records pertaining to the Chicago crime family underboss, the court concludes that the FBI conducted an adequate search where it queried two databases associated with its Central Records System (CRS), which would contain responsive documents.  The court determines that plaintiff's unsupported allegation that additional records exist "does not undermine the adequacy of the [agency's] search."  Moreover, the court finds that plaintiff's "affidavit that the National Archives [and Records Administration] has a voluminous collection of records on [the subject] does not create a justifiable inference that the FBI possesses the same records and is withholding them."  As to plaintiff's request for records pertaining to the Gambino crime family underboss, the court finds that he failed to adequately challenge the agency's good faith search where he provided no "convincing evidence that rebuts the defendants' assertion that all confidential files were searched through the CRS search."  Additionally, the court finds that plaintiff's complaint that "he did not receive actual photographs [related to the subject], but instead copies" does not call into question the adequacy of the FBI's search.  With respect to plaintiff's contention that "the FBI failed to search each individual field office for records on [the underboss]," the court determines that plaintiff's failure to comply with the FBI's regulations, which require that he "submit a separate request to each FBI field office that he seeks records from," "is the equivalent of a failure to exhaust."  Accordingly, the FBI was not required to search its field offices for responsive records.  The court also rejects plaintiff's claim that the FBI's search of its electronic surveillance records (ELSUR) was inadequate.  Rather, the court concludes that plaintiff's "assertion that the existence of responsive ELSUR records from 1968 indicates that pre-1960's responsive records must exist as well is simply insufficient to withstand summary judgment" as to this issue.  Lastly, regarding files deemed "missing" by the FBI, the court finds that "[a]lthough missing files are understandably frustrating to [plaintiff], the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search."  Here, the court concludes that plaintiff has not demonstrated "the lack of a good faith search for the missing records."

• Litigation considerations/reprocessing:  In the course of preparing its sample Vaughn index, defendants released additional material in 219 of the 289 documents in the sample.  The court finds defendants' Vaughnindex "inadequate" where it did not effectively address the additional releases made during the course of litigation.  Despite the FBI's assertion that "the newly released information was the result of discretionary releases of third party names and information previously withheld under Exemptions (b)(6) and (b)(7)(C) [and as a result of its re-review of Exemptions 1 and 5 withholdings], not pure error," the court notes that "[t]he FBI provides no additional justification . . . as to why these documents were suddenly deemed proper for release" and concludes that "the sheer magnitude of the additional releases indicates that the sample is not an accurate illustration of the whole."  In addition, the court finds that "the defendants' Vaughn index indicates that the FBI withheld a significant amount of information under Exemption (b)(2)," and in particular under "High 2," which was abrogated by the Supreme Court's decision in Milner.  The court determines that "[i]n light of the Milnerdecision, a reprocessing of the responsive documents is justified to allow the FBI to release additional information that was withheld solely under Exemption 2."  

3.  All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, No. 09-2375, 2012 WL 1071708 (D.D.C. Apr. 2, 2012) (Urbina, J.)

Re:  Request for forty-three separate subjects, which all focus on aspects of the United States' and the United Kingdom's involvement in extraordinary rendition, secret detention, coercive interrogation of suspected terrorists, and the sources of information about alleged terrorist plots

Holding:  Granting defendants' partial motion to dismiss on the grounds that the "foreign government entity exemption," embodied in 5 U.S.C. § 552(a)(3), prohibits intelligence agencies from granting FOIA requests to non-domestic government entities, their subdivisions and their representatives

• Procedural:  On a matter of first impression, the court holds that, as representatives or subdivisions of a foreign government entity, plaintiffs are barred under 5 U.S.C. § 552(a)(3) from seeking the requested information from defendant agencies, which are all "member[s] of the 'intelligence community.'"  At the outset, the court rejects plaintiffs' argument that "FOIA's foreign government entity exception does not apply" because the "Parliament is not a part of the 'government'" as the term is interpreted under British law.  The court finds that although "the word 'government' may portend a more nuanced meaning within the milieu of the English system of governance," "the court rejects plaintiff's invitation to construe FOIA under English law."  Moreover, as "the primary organ tasked with the expression of sovereign political authority and its enactment into law," the court determines that "Parliament is a foreign 'government entity' for purposes of FOIA."  The court also rejects plaintiffs' contention that one of the plaintiffs cannot be considered to be "a representative of a foreign government simply by virtue of his status as a Member of Parliament," but rather "only represents those individual constituents that he represents as an elected member of the House of Commons."  Instead, the court finds that this Member, "as a feature of his office, wields the power to act with the government's imprimatur" and therefore "is a 'representative' of Parliament for the purposes of FOIA." 

The court also rejects plaintiffs' argument that the All Party Parliamentary Group "is not a subdivision of a foreign 'government entity' [under the meaning of § 552(a)(3)] because it does not have the authority to act or speak on behalf of the U.K. government."  To the contrary, the court concludes that "[b]ecause the group's membership consists exclusively of public officials, . . . [it] is a 'subdivision' of a foreign 'government entity.'"  Additionally, the court declines to "introduce a distinction based on [whether] the requester [acted in the course of that person's] 'official capacity' or 'individual capacity,'" finding that it "is not at liberty . . . to amend the statute by inserting phrases that appear nowhere in the statutory language."  Further, the court comments that "[i]t would be particularly inappropriate for the court to adopt the plaintiffs' suggestion because their proposed exception would, without doubt, swallow the rule."  The court notes that if it "is to give any meaning to the foreign government entity exception, this provision cannot turn on such evanescent factors as the subjective intent of the individual who files the claim."  The court also rejects plaintiffs' argument that the American attorney who represents plaintiffs in the instant action "should nonetheless be allowed to proceed with his FOIA claim because he is a concerned United States citizen who acted independently of his status as the other plaintiffs' attorney."  The court finds that as plaintiffs' "legal representative," the attorney's claim is "similarly barred" under § 552(a)(3).  The court observes that although "plaintiffs could have easily circumvented this legal snarl" by having their attorney make "an identical FOIA request and then forward[ ] the information along to the remaining plaintiffs," the court notes that it "is required to follow the logic of the statute as it is written." 

4.  Manzke v. Ctrs. for Disease Control & Prevention, No. 11-4680, 2012 WL 1108404 (N.D. Ill. Apr. 2, 2012) (Bucklo, J.)

Re:  Request for records pertaining to Enterobacter Sakazakii infection at the Rush-Copley Neonatal Intensive Care Unit; at issue are files for Enterobacter Sakazakii infection lab samples concerning third-parties

Holding:  Granting defendant's motion for summary judgment on the basis that it properly withheld the requested information pursuant to Exemption 6

• Exemption 6:  The court concludes that the Centers for Disease Control (CDC) properly withheld pursuant to Exemption 6 different identifiers contained on lab files concerning third-parties.  As to the privacy interest involved, the court accepts the CDC's explanation that "[b]ased upon its prior experience with similar matters, [it] determined that an unredacted response for the Minnesota and South Carolina samples would increase the probability that plaintiff would be able to ascertain the identity of one or both of these individuals, and thus would be able to match private information obtained from the samples with these individuals."  As to plaintiff's contention that the agency's "prior disclosure [of the lab samples] in 2008 negates these individuals' privacy interests," the court determines that "[t]he 2008 reproduction produced by the CDC did not – due to the fact that the results are basically unreadable – actually reveal the information plaintiff now seeks" and, accordingly, "there remain protectable privacy concerns here."  In terms of the public interests, the court concludes that "plaintiff provides no argument whatsoever that release of the identifying information would substantially further any public interest," and, in fact, finds that "plaintiff seeks the information for purely personal reasons."  

5.  ALCU v. ODNI, No. 10-4419, 2012 WL 1117114 (S.D.N.Y. Mar. 30, 2012) (Sullivan, J.)

Re:  Request for records and expedited processing of records pertaining to federal agencies' interpretation and implementation of the FISA Amendments Act of 2008 (FAA)

Holding:  Upon review of defendants' classified supplemental submissions and the FBI's supplemental public affidavit, granting defendants' motions for summary judgment on the basis that they properly asserted Exemptions 1, 3 and 7(E) to withhold the responsive material  

• Exemption 1:  Based on its review of a public declaration from the FBI and defendants' ex parte classified submissions, the court concludes that defendants properly asserted Exemption 1 for the requested material.  The court notes that "[t]he submissions further describe 'the impact upon intelligence sources and methods' that disclosure of documents withheld pursuant to Exemption 1 'could reasonably be expected to have.'"  Noting that it found "Defendants' previous submissions . . . insufficient with respect to Plaintiffs' requests for information concerning overcollection under the FAA," the court now "finds persuasive Defendants' explanation that any responsive information that it has withheld, particularly in combination with information that the government has already made public, would reveal potentially damaging information regarding the scope of the government's intelligence activities."  "Likewise, any information regarding particular instances of noncompliance is inextricably comingled with details of intelligence activities and methods and, thus, properly withheld pursuant to Exemption 1." 

• Exemption 3:  The court finds that defendants properly invoked Exemption 3 in conjunction with the National Security Act of 1947, which protects "'intelligence sources and methods'"; the National Security Agency Act of 1959, which protects information related to the "'organization or any function of the [NSA], [or] of any information with respect to the activities thereof'"; and 18 U.S.C. § 798, which prohibits unauthorized disclosure of classified records concerning the "'communication[s] intelligence activities of the United States or any foreign government.'"  The court finds that "Defendants' classified submissions provide detailed descriptions of responsive materials that have been withheld, including documents responsive to Plaintiffs' statistical requests, and Defendants adequately explain why the withheld materials reveal 'intelligence sources and methods,' the activities of the NSA, and "'communications intelligence activities' of the United States government." 

• Exemption 7(E):  The court finds that, in contrast to its earlier submission, the FBI's second public submission "provides extensive detail regarding the nature of the 'the internal e-mails, training slides, legal opinions and interpretation of techniques, Standard Operating Procedures, electronic communications concerning investigations, case write-ups, and miscellaneous reports'" protected under Exemption 7(E).  The court notes that "although not all of the rationales put forth [in the FBI's revised declarations] are convincing, . . . Defendants have met their burden of establishing that responsive materials, if released could threaten law enforcement efforts and are therefore properly withheld pursuant to Exemption 7(E)."

WEEK OF APRIL 9

District Courts

1.  Clemente v. FBI, No. 08-1252, 2012 U.S. Dist. LEXIS 51974 (D.D.C. Apr. 13, 2012) (Rothstein, J.)

Re:  Request for the FBI informant file pertaining to the late Gregory Scarpa, a high-ranking member of the mafia

Holding:  Granting, in part, the FBI's motion for summary judgment as to the adequacy of its search; denying, without prejudice, the FBI's motion for summary judgment with respect to the remaining issues; and ordering the FBI to reprocess all the records at issue in accordance with an earlier court order, and not simply the representative sample to which the parties agreed

• Adequacy of search:  The court concludes that the FBI was not required to search its New York field office where plaintiff submitted her request to its Headquarters office.  The court notes that "[s]ince 1998, the regulations governing requests for FBI files have required that persons seeking 'records held by a field office of the [FBI] must write directly to that FBI . . . field office address.'"  The court finds that plaintiff "is of course free to submit a request to the FBI's New York office, but that office was not required to respond to the request at issue here." 

• Litigation considerations/reprocessing:  The court orders the FBI to reprocess all records at issue, not simply the representative sample to which the parties agreed, in order to address deficiencies identified in the court's earlier order.  The court notes that the FBI has now released certain information, such as references to informants and information identifying third-parties, "in explicit response to Judge Freidman's order from 26.5% of the sample documents."  Referencing the D.C. Circuit's decision in Meeropol v. Meese as a guide,the court finds that this error rate is "'unacceptably high.'"  Moreover, the court notes that, although the FBI has now "released the names of certain dead individuals," suggesting that it made a determination as to life status, its current submissions do not explain "how it determined the life status of individuals named or identified in the sample documents" and finds that there is "no indication that the Bureau applied this method to determine the life status of individuals identified in the non-sample documents."  Likewise, the court determines that the FBI also did not provide sufficient detail for the court to determine whether its withholdings under Exemption 7(E) were appropriate.  Accordingly, the court denies, without prejudice, the FBI's motion for summary judgment as to these issues and notes that it "should address these deficiencies if it renews its motion for summary judgment."

2.  Missud v. SEC, No. 12-161, 2012 WL 1225858 (N.D. Cal. Apr. 11, 2012) (Ryu, Mag.)

Re:  Request for records pertaining to certain companies

Holding:  Granting SEC's motion to dismiss for lack of subject matter jurisdiction where plaintiff failed to exhaust his administrative remedies

• Exhaustion of administrative remedies: The court concludes that plaintiff failed to exhaust his administrative remedies where he filed this instant suit before the twenty-day statutory response time under 5 U.S.C. § 552(a)(6)(A) had passed.  Additionally, the court finds that "[p]laintiff makes no showing that following administrative procedures would have been futile . . . or would have fallen into any other recognized exception to the exhaustion doctrine, which otherwise might warrant the court's exercising jurisdiction over his claim."  The court also denies plaintiff leave to amend his complaint on this issue because such an amendment "would be futile." 

3.  People for the Ethical Treatment of Animals v. NIH, No. 10-1818, 2012 WL 1185730 (D.D.C. Apr. 10, 2012) (Jackson, J.)

Re:  Requests for records concerning NIH investigations into complaints regarding three specific researchers at the Auburn University Scott-Richey Research Center; a confidentiality agreement between NIH and Auburn concerning one of those researchers; and records regarding the NIH Office of Laboratory Animal Welfare files concerning Auburn

Holding:  Dismissing, without prejudice, and treating as conceded plaintiff's claim concerning NIH's decision to withhold certain records in response to one of its requests and its Administrative Procedure Act claim where plaintiff did not respond to defendant's arguments with respect to those issues; denying defendant's motion to dismiss the remaining FOIA claim on exhaustion grounds where NIH adjudicated plaintiff's administrative appeal despite its untimeliness; and granting defendant's motion for summary judgment on the grounds that it properly invoked the Glomar response in conjunction with Exemption 7(C)   

• Exhaustion of administrative remedies:  The court determines that plaintiff's failure to timely administratively appeal one of its requests does not bar the court's consideration of its claim where NIH chose to provide a substantive response to that appeal.  The court concludes that it "will review [plaintiff's] Second Request because there are no prudential considerations that would militate in favor of dismissal."   

• Exemption 7/threshold:  The court finds that as a threshold matter, the records at issue "were 'compiled for law enforcement purposes'" where NIH submitted that "'the records concern investigations of alleged animal research or Animal Welfare Act violations and include[ ] information provided by whistleblowers'" and plaintiff does not dispute that claim. 

• Exemption 7(C)/Glomar:  The court holds that NIH properly asserted Exemption 7(C) in conjunction with the Glomar response to neither confirm nor deny the existence of records pertaining to an investigation of three named researchers and a confidentiality agreement between NIH and the research center with respect to one of those individuals.  In terms of the privacy interest, the court finds that "[t]here is no question that a response from the agency acknowledging the existence of the records and processing of the FOIA requests further would confirm that those three individuals were being or had been investigated."  The court further notes that "[t]his confirmation goes to the heart of the privacy interest that Exemption 7(C) was designed to protect."  Contrary to plaintiff's argument, the court finds that the relevant case law does not "make a distinction between whether the alleged investigation concerns an individual's personal or professional conduct – what matters is that there is a privacy interest in a person's identity being associated with the investigation."  The court comments that if it "were to accept plaintiff's theory that a person never has a personal privacy interest in investigations into their professional conduct, it would mean that no target of a white collar criminal grand jury investigation would have a privacy interest in that fact, which cannot be true."  Although the court acknowledges cases within the D.C. Circuit "recognize that '[t]he privacy exemption does not apply to information regarding professional or business activities,'" it finds "that is not the nature of the privacy interest that is at stake in this case," which is instead an interest in "being identified as a target of a law enforcement investigation." 

• Public acknowledgment:  In terms of plaintiff's argument that information about the existence of the investigation "is already publicly known" and would therefore not constitute an invasion of privacy, the court determines that "plaintiff has failed to point to anything indicating the government, as opposed to some other organization or source, has acknowledged the existence of investigations."  Additionally, plaintiff's own complaint requesting an investigation of the researchers at issue, "does not establish the fact that an investigation is underway, even if NIH has a policy that it 'will' investigate allegations of non-compliance with animal care rules."  The court also finds that a letter addressed to the USDA, which expresses concern regarding the treatment of animals and names the three researchers, does not demonstrate the existence of an NIH investigation on the subject.  Similarly, the court also finds that "it cannot be said that a non-authenticated interoffice memo is tantamount to public acknowledgement of the existence of an investigation related to the three named individuals."  The court likewise determines that a letter from the research center to plaintiff acknowledging the investigation "is, at most, speculation on Auburn's behalf about a process in which it may or may not have been involved." 

Conversely, the court finds that "plaintiff has failed to identify any public interest that would overcome the recognized privacy interest protected in Exemption 7(C)."  In terms of plaintiff's assertion that "there is a strong public interest in knowing 'whether those who conduct research on animals are treating them humanely,'" the court concludes that "[e]ven if plaintiff is correct . . . that concern does not allow citizens to know 'what their government is up to,'" which is the public interest standard set forth by the Supreme Court in Reporters Committee.  The court finds that "[h]ere the release of information plaintiff has requested would reveal nothing about the government's own conduct, as opposed to the conduct of individual researchers or recipients of government funding."  As to plaintiff's claim that "the public has an interest in 'ensuring that federal taxpayer dollars are not misused,'" the court determines that "plaintiff's FOIA request does not seek documents that would shed light on that issue." 

4.  Judicial Watch, Inc. v. U.S. Air Force, No. 11-932, 2012 WL 1190297 (D.D.C. Apr. 10, 2012) (Rothstein, J.)

Re:  Request for records pertaining to Air Force's processing of plaintiff's earlier FOIA request; at issue is the request for metadata embedded in the Air Force's response letter to that request

Holding:  Concluding that defendant's production of a record in one format does not moot plaintiff's claim for metadata underlying another document format; deferring ruling on the parties' motions for summary judgment; and ordering supplemental briefings on the issue as to whether metadata constitutes an "agency record" under the FOIA

N.B.:  On April 30, 2012, the parties stipulated and agreed to dismissal of this action, with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) with each party to bear its own attorney's fees and costs

• Mootness:  The court determines that defendant's production of the requested letter in Adobe PDF format does not moot plaintiff's request for metadata embedded in a different format.  At the outset, the court notes that "[t]he parties agree that metadata has been 'defined as information describing the history, tracking or management of an electronic document.'"  Despite Air Force's argument that any metadata was already produced to plaintiff by virtue of the release of the PDF version of the letter, the court finds that plaintiff's request "encompass[ed] both the metadata embedded in the Adobe PDF file and that embedded in the Microsoft Word document file," which was the software in which the letter was initially composed.  The court finds that "[t]he Microsoft Word document would carry its own unique metadata, and, if [plaintiff] is entitled to the metadata at all (an issue to be decided), that metadata would be encompassed by the original request." 

• Procedural/agency record:  Having determined that the release of the requested record in PDF format did not moot plaintiff's claim for metadata in another document format, the court grants Air Force's request to submit a supplemental briefing to support its "position that metadata is not an 'agency record' under FOIA." 

5.  Perales v. Fullerton Pub. Libr., No. 11-1218, 2012 WL 1203489 (D. Del. Apr. 10, 2012) (Robinson, J.)

Re:  Allegation that defendants violated the FOIA where a local public library and other defendants failed to provide access to the U.S. Code during the course of the library's renovation

Holding:  Dismissing pro se plaintiff's complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) where he does not name a proper party defendant 

WEEK OF APRIL 16

District Courts

1.  Moorer-Bey v. BOP, No. 12-212, 2012 U.S. Dist. LEXIS 55884 (S.D. Ill. Apr. 22, 2012) (Murphy, J.)

Re:  FOIA claim brought against BOP employee

Holding:  Dismissing with prejudice claims against BOP employees, including a FOIA claim

• Proper party defendant:  The court dismisses with prejudice a FOIA claim asserted against a BOP employee "for allegedly failing to respond to [plaintiff's] inquiries about his FOIA request."  The court holds that "FOIA does not create a cause of action for a suit against an individual employee of a federal agency."  Additionally, the court notes that "FOIA creates a comprehensive remedial scheme that precludes any claim under Bivens or 42 U.S.C. § 1983 for violation of FOIA." 

2.  Lazaridis v. SSA, No. 10-1386, 2012 WL 1355656 (D.D.C. Apr. 19, 2012) (Collyer, J.)

Re:  Request for records pertaining to plaintiff and his minor daughter, and records concerning plaintiff's request for payment of SSA disability insurance benefits owed to his daughter by virtue of her relationship to plaintiff's ex-wife

Holding:  Denying defendant's motion to dismiss plaintiff's FOIA claim on the basis of the fugitive disentitlement doctrine

• Litigation considerations/fugitive disentitlement doctrine:  The court denies "SSA's motion to dismiss [plaintiff's] FOIA claim based solely on the fugitive disentitlement doctrine."  The court notes that in connection with a separate FOIA action brought by plaintiff against DOJ, "[t]his Court previously determined that the Department of Justice had failed to establish 'the requisite connection between [plaintiff's] fugitive status and [the FOIA] proceedings,' . . . and it finds no reason to depart from that finding here." 

WEEK OF APRIL 23

Courts of Appeal

1.  Morley v. CIA, No. 10-5161, 2012 U.S. App. LEXIS 8652 (D.C. Cir. Apr. 27, 2012) (per curiam)

Re:  Request for records pertaining to a CIA officer

Holding:  Vacating, in part, and remanding the matter in order for the district court to determine whether, in light of the Supreme Court's decision in Milner, the material for which the CIA asserted Exemption 2 in conjunction with other exemptions is fully covered by those other exemptions; and affirming, in part, the district court's judgment granting CIA's motion for summary judgment in all other respects

• Exemption 2:  The D.C. Circuit vacates the judgment of the district court with respect to the material for which it asserted Exemption 2 in conjunction with other exemptions, finding that "[i]t is unclear from the record . . . whether the other exemptions – that is, the exemptions apart from Exemption 2 – cover all of the withheld portions of those documents."  Accordingly, the D.C. Circuit remands the matter to "the District Court so that the CIA can file an appropriate supplemental declaration – and, if necessary, changes to the Vaughn index – regarding whether the other asserted exemptions cover all of the withheld portions of the relevant documents."

2.  Earle v. Holder, No. 11-5280, 2012 WL 1450574 (D.C. Cir. Apr. 20, 2012) (per curiam)

Holding:  Affirming orders of the district court which dismissed individually-named District of Columbia employee-defendants, and dismissed claims against federal defendants based on plaintiff's failure to state a FOIA claim where he did not allege an improper withholding of agency records

• Proper party defendant:  The D.C. Circuit affirms the district court's decision to dismiss FOIA claims against individually-named D.C. government employees, concluding that "the district court properly determined that appellant could not sustain a claim under either the [FOIA]  . . . or the Privacy Act . . . because neither creates a cause of action against individuals, only against agencies."  Moreover, "[b]ecause the D.C. government is not an 'agency' for purposes of FOIA, . . . the district court properly declined to substitute the D.C. government for individual D.C. employees."

• Litigation considerations/jurisdiction:  The D.C. Circuit affirms the district court's decision to dismiss federal defendants, concluding that "the district court properly determined that appellant failed to state a claim under FOIA because he did not allege that agency records were withheld." 

District Courts

1.  Judicial Watch, Inc. v. DOD, No. 11-890, 2012 WL 1438688 (D.D.C. Apr. 26, 2012) (Boasberg, J.)

Re:  Request for photographs and video recordings of Osama Bin Laden taken during or after the U.S. military operation at his compound in Pakistan

Holding:  Granting summary judgment to defendants based on the adequacy of DOD's search and the propriety of CIA's withholdings under Exemption 1

• Adequacy of search:  The court holds that DOD, which located no records responsive to the request, conducted a reasonable search where its declaration "provides a 'relatively detailed and non-conclusory' explanation" of its searches of the three offices it deemed most likely to maintain responsive records.  The court rejects plaintiff's argument that DOD's search is inadequate where it did not search the Office of the Secretary.  The court concludes that "even if Secretary Gates gave . . . advice [to the President about whether to release postmortem photos of Bin Laden, as plaintiff alleges], it does not necessarily follow that he ever saw the photos."  Moreover, the court finds that "even if he did see them, that does not mean that he actually possessed them and also retained them in his office."  The court concludes that plaintiff's "bald conjectures do not undermine the agency's position."  Similarly, the court finds unavailing plaintiff's assertion that DOD's search should have included the "Joint Worldwide Intelligence Communications System (JWICS), a system of interconnected computer networks used by, inter alia, DOD and the U.S. Department of State to transmit classified information" based on media reports stating that the Secretary of State also provided advice to the President regarding these photographs.  The court finds that plaintiff's inference that Secretary of State Clinton "in fact possessed copies of those photographs – or more specifically, that she viewed them through JWICS" "is entirely unsupported by evidence."  The court also determines that, contrary to plaintiff's claims, DOD's search also "clearly include[d] those records 'created subsequent to the completion of the intelligence mission within Pakistan.'"  The court also stresses that plaintiff's request is not one "for some broadly defined class of documents the existence and whereabouts of which the agency was likely unaware and that might be maintained in any number of records systems," but rather the "request related to a discrete set of high-profile records."  As such, the court finds that "[i]f DOD has possession of these records, the relevant individuals are well aware of that fact." 

• Exemption 1:  The court holds that CIA properly asserted Exemption 1 in order to withhold fifty-two photographs and/or video recordings concerning Bin Laden taken during or after the operation that resulted in his death.  Although the court notes that CIA's declaration does not contain certain information such as "the identity of the individual who originally classified the records in question," it "nevertheless, will not order these records released on procedural grounds."  First, the court finds that "even if there had been some procedural defect in the original classification, it was cured by proper derivative classification and by [two CIA declarants'] subsequent reviews."  The court notes that neither Executive Order 13526 nor the FOIA itself "specifies the level of detail with which an agency's declaration, which is entitled to a 'presumption of good faith,'  . . . must recount its compliance."  The court further comments that "given the lack of evidence of bad faith [in this case], it is thus possible that [the CIA declarants'] more general statements that all of EO 13526's procedural requirements were satisfied . . . are sufficient."  The court determines that the "testimony [of one CIA affiant] that the records contain all of the [EO] required markings,  . . . addresses most of the issues Plaintiff has raised, if not with the specificity it might prefer."  Additionally, the court finds that "even if [p]laintiff is correct that [one declarant's] statements imply that the records may not have initially carried all of the required markings, that they are currently so marked suffices."  As to plaintiff's claim that "Defendants must disclose the date of the original classification," the court finds that such a marking is not required by EO 13526 "and [p]laintiff does not show it need be included in a supporting declaration."  The court likewise rejects plaintiff's argument that the classification date is needed to assess compliance with "the additional procedural requirements [in accordance with EO 13526 § 1.7(d)] that pertain to classifications that occur after FOIA requests are received – specifically, such classifications must be 'accomplished on a document-by-document basis with the personal participation or under the direction of' particular officials.'"  The court finds that the agency's declarations and "[p]laintiff's own timeline" indicate that classification occurred before receipt of plaintiff's request.  However, the court notes that "even if [p]laintiff were correct that the records were classified after its FOIA request was received, [one CIA affiant's] review of the 'each' of the responsive records,  . . . which was conducted under the direction of the CIA Director . . . meets the requirements of EO 13526 § 1.7(d)."  

Second, the court also finds that "even if no cure had taken place, any hypothetical defect would not require that the documents be released so long as it did not undermine the agency's assessment of substantive criteria for classification."  In this case, "given the derivative classification and two subsequent classification reviews, all by individuals with original classification authority, the averments of the EO 13526's procedural requirements were satisfied, the seemingly undisputed procedural conformity of the derivative-classification process, and the lack of any evidence tending to undermine the agency's classification decision, the Court finds that any possible procedural errors plainly do not warrant release."

The court also concludes that the CIA's submissions satisfy the substantive criteria of EO 13526.  The court notes that, in terms of the classification categories under Section 1.4 of EO 13526, the CIA asserts that the records at issue "'pertain to intelligence activities and/or methods as well as the foreign relations and foreign activities of the United States,'" and "also reveal information concerning 'military plans, weapons systems, or operations.'"  The court dismisses plaintiff's argument that "[d]efendants have failed to establish that every one of the [withheld] records – for example, those 'that depict the preparation of Bin Laden's body for burial and the burial itself' – pertains to one or more of the classification categories."  To the contrary, the court finds that "[i]t is patently clear . . . that all fifty-two records . . . pertain to the 'foreign activities of the United States.'"  "Given that the records in question 'were the product of a highly sensitive, overseas operation that was conducted under the direction of the CIA,' . . . no further information is required to conclude that each of [the records] 'pertains' – notably, not a very demanding verb – to the United States' foreign activities."  Next, affording "'substantial weight'" to the CIA's declarations, the court determines that the "release of the images and/or videos 'reasonably could be expected to cause exceptionally grave damage to the national security.'"  The court notes that each of the CIA's three declarants "expounds his evaluation of the national-security risk in detail, describing the basis for his beliefs and focusing on those risks that relate to his area of expertise.'"  Although "the Court agrees with [p]laintiff that some of the declarants' testimony, by their own admission, applies only to certain of the fifty-two records at issue," it finds that "[b]ecause [two of the declarants'] explanations of national-security risks apply to any photograph or video recording of Bin Laden's body,  . . . [d]efendants need not further disaggregate the fifty-two responsive records."  The court determines that the explanations in one of the declarations are specific enough to allow the requester and the court to probe the adequacy of the withholdings and, moreover, finds that the declarants' "testimony that the release of images of his body could reasonably be expected to pose a risk of grave harm to our future national security is more than mere speculation."  The court notes that "while this may not be the result [p]laintiff or certain members of the public would prefer, the CIA's explanation of the threat to our national security that the release of these records could cause passes muster."  Further, the court observes that "[t]he Director of the [CIA's National Clandestine Service], the [U.S. Special Operations Command] Commander, and a Director of the Joint Chiefs of Staff of the Pentagon – not to mention the President of the United States – believe that releasing the photographs and/or videos of Bin Laden's body would threaten the national security."  The court concludes that it "will not overturn the agency's determination on Plaintiff's speculation that these executive-branch officials made an overcautious assessment of the risks involved." 

2.  Fair Pol. Pracs. Comm'n v. USPS, No. 12-93, 2012 U.S. Dist. LEXIS 58759 (E.D. Cal. Apr. 26, 2012) (Burrell, J.)

Re:  Request for records submitted by a state agency charged with investigating violations of the California Political Reform Act concerning the number of pieces of mail that an individual sent through USPS using his bulk mail permit on specific dates; at issue is an application made by the subject of the request to intervene in the FOIA action

Holding:  Denying petitioner's application to intervene in the instant action because he failed to establish that he is entitled to intervene as a matter of right under Federal Rule of Civil Procedure 24(a)(2) or that permissive intervention would be appropriate under Rule 24(b)(2)

• Litigation considerations/intervention:  The court denies petitioner's application to intervene in the instant FOIA action.  With respect to petitioner's request to intervene as a matter of right, the court at the outset notes that it will not consider his argument that "he has 'an unconditional right to intervene by a federal statute under Rule 24(a)(1)'" where he "raise[d] it for the first time in his reply brief and the issue has not been fully briefed by the parties."  Second, the court determines that petitioner has not established that he is entitled to intervene as a matter of right under Rule 24(a)(2), which allows an unconditional right to intervene where the applicant has a "'significant protectable interest.'"  Here, the court determines that petitioner's allegation that the information sought would invade his constitutional right to privacy is not sufficient to show a substantial protectable interest where he "has not shown how a record of the number of pieces of mail that were sent using the . . . bulk mailing permit [which he asserts belongs to a committee rather than himself] is his 'personal data.'"  Lastly, the court concludes that petitioner also has not established that permissive intervention under Rule 24(b)(2) would be appropriate.  The court finds that petitioner "alleges only . . . that disclosure would violate his rights to privacy, freedom of speech, and freedom of association, and that [plaintiff] has unclean hands,"  but "has not demonstrated how these defenses share a common issue of law or fact with [plaintiff's] FOIA claim."  Accordingly, the court concludes that "[t]he language of [Rule 24(b)(2)] makes clear that [permissive intervention under Rule 24(b) must be denied since [petitioner's] defenses and claims] contain[ ] no question of law or fact that is raised [in] the main action." 

3. Carroll v. SSA, No. 11-3005, 2012 WL 1454858 (D. Md. Apr. 24, 2012) (Quarles, J.)

Holding:  Dismissing plaintiff's complaint for failure to state a claim

• Litigation considerations/jurisdiction:  The court dismisses plaintiff's compliant, where he only alleged that he sent requests seeking the release of documents to SSA and "'sent them many more letters,' but never received a response compliant with FOIA."  The court determines that "[a]bsent a description of the documents sought, as well as details of the refusal to turn over the requested information, it is impossible to determine if [plaintiff] has stated a viable claim."  Additionally, the court finds that "[i]t is also impossible for the agencies he has sued to determine when or if his requests were ever received and, if so, whether a search was performed and an answer provided."