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Freedom of Information Act Guide, May 2004

Litigation Considerations

It has been said that "[t]he FOIA is intended to work without court intervention." (1) While this may be true most of the time, it nevertheless is the case that when a FOIA lawsuit is filed, litigants frequently find that "Freedom of Information Act cases are peculiarly difficult." (2) To help simplify these peculiar difficulties and to provide a general overview of FOIA litigation considerations, this discussion will follow a rough chronology of a typical FOIA lawsuit from the threshold question of whether jurisdictional prerequisites have been met to the assessment of costs on appeal.

In considering litigation under the FOIA, it is important to bear in mind that in accordance with the Attorney General's FOIA Memorandum of October 12, 2001, it is the Department of Justice's policy to defend an agency's decisions made under the FOIA "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." (3) This is not unlike the comparable litigation-defense standards employed in earlier years of the FOIA's administration. (4)

Jurisdiction, Venue, and Other Preliminary Matters

The United States district courts are vested with exclusive jurisdiction over FOIA cases by section (a)(4)(B) of the Act, which provides in pertinent part:

On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. (5)

This provision has been held to govern judicial review under all three of the FOIA's access provisions. (6) Because of its specific reference to the "complainant," however, the Court of Appeals for the District of Columbia Circuit has held that this language limits relief under the FOIA to disclosure of records to a particular requester. (7) Consequently, it does not appear to authorize a court to order the publication of information, even information required to be published under subsection (a)(1) of the FOIA. (8) Nor does it appear to empower a court to order an agency to make records available for public inspection and copying in an agency reading room under subsection (a)(2). (9) Instead, this statutory language, as the Supreme Court ruled in Kissinger v. Reporters Committee for Freedom of the Press, makes federal jurisdiction

dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdiction grant conferred by  552, if the agency has contravened all three components of this obligation. (10)

As a consequence, a plaintiff who does not allege any improper withholding of agency records fails to state a claim over which a court has subject matter jurisdiction within the meaning of Rule 12(b)(1) of the Federal Rules of Civil Procedure (11) or, alternatively, fails to state a claim upon which relief could be granted under Rule 12(b)(6). (12) Regardless of the exact legal basis used, however, if an agency has not improperly withheld records, a FOIA suit should be dismissed. (13)

For the jurisdictional requirements for a FOIA case to be met, "an agency first must either have created or obtained a record as a prerequisite to its becoming an 'agency record' within the meaning of the FOIA." (14) Of course, if an agency does not have, nor ever had, possession and control of the requested record, then there can be no improper withholding. (15) Records that are created or come into the possession of an agency after a FOIA request is received but before the search for responsive records is conducted, however, may be considered "agency records" for purposes of such FOIA request depending upon the agency's "scope-of-search cut-off" policy. (16) An agency's failure to consider these records when responding to the FOIA request may be considered an improper withholding. (17) (For further discussions of "cut-off" dates and determining the scope of a FOIA request, see Procedural Requirements, Proper FOIA Requests, above.)

Further, the term "record" includes "any information that would be an agency record subject to the [FOIA] when maintained by an agency in any format, including an electronic format." (18) This definition thus broadly encompasses within the concept of "agency record" information maintained by agencies in electronic form. (19) Of course, the FOIA provides no jurisdiction over records other than those held by a federal agency. (20) (For further discussions of the terms "agency" and "agency records," see Procedural Requirements, Entities Subject to the FOIA, above, and Procedural Requirements, "Agency Records," above.)

Whether an agency has "improperly" withheld records usually turns on whether one or more exemptions applies to the documents at issue. (21) If the agency can establish that no responsive records exist, (22) or that all responsive records have been released to the requester, then the agency's refusal to produce them should not be deemed an "improper" withholding and summary judgment should be granted. (23)

Similarly, an agency has not improperly withheld records when it is prohibited from disclosing them by a pre-existing court order. (24) While the validity of such a pre-existing court order does not depend upon whether it is based upon FOIA exemptions, (25) it is the agency's burden to demonstrate that the order was intended to operate as an injunction against the agency, rather than as a mere court seal. (26)

Once a court determines that information has been properly withheld pursuant to a FOIA exemption, the court has no inherent, equitable power to order disclosure absent some other statute mandating disclosure. (27) The converse of this rule, however -- that a court has inherent, equitable power to refuse to order disclosure of nonexempt information -- has not been established with the same degree of certainty. (28)

Because the Supreme Court has clearly instructed that, as a general rule, "the identity of the requesting party" does not have any bearing on the proper disclosure of information under the FOIA, (29) it is well settled that it is not appropriate for a court to order disclosure of information to a FOIA requester with a special restriction, either explicit or implicit, that the requester not further disseminate the information received. (30) As the Supreme Court recently put it: "There is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination." (31)

The venue provision of the FOIA, quoted above, provides requesters with a broad choice of forums in which to bring suit. (32) When a requester sues in a jurisdiction other than the District of Columbia, however, he is obliged to allege the nexus giving rise to proper venue in that jurisdiction. (33) Largely due to the statutory designation of the District of Columbia as an appropriate forum for any FOIA action, (34) the District Court for the District of Columbia and Court of Appeals for the District of Columbia Circuit have, over the years, decided a great many of the leading cases under the FOIA. (35)

The District Court for the District of Columbia has been held to be the sole appropriate forum for cases in which the requester resides and works outside the United States and the records requested are located in the District of Columbia. (36) As a related matter, aliens are treated the same as U.S. citizens for FOIA venue purposes. (37) And on another technical venue matter, even though the District Court for the District of Columbia is the "universal" venue for FOIA lawsuits, (38) it is not settled whether the Tennessee Valley Authority is amenable to FOIA suit either in Washington, D.C. or else only in the Northern District of Alabama (the venue set by statute for that wholly owned government corporation). (39)

The judicial doctrine of forum non conveniens, as codified in 28 U.S.C.  1404(a), (40) can permit the transfer of a FOIA case to a different judicial district. (41) The courts have invoked this doctrine to transfer FOIA cases under a variety of circumstances. (42) Similarly, when the requested records are the subject of pending FOIA litigation in another judicial district, the related doctrine of "federal comity" can permit a court to defer to the jurisdiction of the other court, in order to avoid unnecessarily burdening the federal judiciary and delivering conflicting FOIA judgments. (43)

In a decision involving a somewhat related issue, the Court of Appeals for the Eighth Circuit upheld the removal of a state FOIA case to a federal court because the records at issue actually belonged to the United States Attorney's Office, which had intervened to protect its interests. (44) The Eight Circuit explained that not only does the federal removal statute, 28 U.S.C.  1442(a)(1), (45) establish an independent basis for federal court jurisdiction, but the FOIA itself raises a "colorable defense" to the state action. (46) (For a further discussion of such removal actions under the federal pre-emption doctrine, see Discretionary Disclosure and Waiver, above.)

On rare occasions, FOIA plaintiffs have attempted to expedite judicial consideration of their suits by seeking a preliminary injunction to "enjoin" the agency from continuing to withhold the requested records. (47) When such extraordinary relief is sought, the court does not adjudicate the parties' substantive claims, but rather weighs: (1) whether the plaintiff is likely to prevail upon the merits; (2) whether the plaintiff will be irreparably harmed absent relief; (3) whether the defendant will be substantially harmed by the issuance of injunctive relief; and (4) whether the public interest will be benefitted by such relief. (48)

In a FOIA case, the granting of such an injunction would necessarily force the government to disclose the very information that is the subject of the litigation, without affording it any opportunity to fully and fairly litigate its position on the merits; such an injunction would moot the government's claims before they could ever be adjudicated and would effectively destroy any possibility of appellate review. (49) Consequently, the government would presumptively sustain irreparable harm in any instance in which a preliminary injunction were issued in a FOIA case. (50)

Moreover, because a court can exercise FOIA jurisdiction only after it has first found an improper withholding, a substantial question exists as to whether the FOIA even empowers a court to issue a preliminary injunction. (51) These considerations lead to the conclusion that the extraordinary mechanism of preliminary injunctive relief should not be available in FOIA cases, although expedited processing may be appropriate. (52) Indeed, the FOIA itself contemplates expedited processing of requests in cases of "compelling need" and in other cases that are determined by agency regulation to warrant such processing. (53) (See the discussions of expedited processing under Procedural Guidance, Time Limits, above, and Litigation Considerations, "Open America" Stays of Proceedings, below.)

A FOIA plaintiff -- even one who is proceeding pro se -- must file suit before expiration of the applicable statute of limitations, just like any other plaintiff. (54) In Spannaus v. Department of Justice, the D.C. Circuit applied the general federal statute of limitations, which is found at 28 U.S.C.  2401(a), (55) to FOIA actions. (56) Section 2401(a) states, in pertinent part, that "every action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." In Spannaus it was held that the FOIA cause of action accrued -- and, therefore, that the statute of limitations began to run -- once the plaintiff had "constructively" exhausted his administrative remedies (see the discussion of Exhaustion of Administrative Remedies, below) and not when all administrative appeals had been finally adjudicated. (57) In accordance with the Spannaus decision, the National Archives and Records Administration issued General Records Schedule 14, (58) which sets the record-retention period at six years for all correspondence and supporting documentation relating to denied FOIA requests. (59)

Where a pro se FOIA plaintiff seeks appointment of counsel, a district court has wide discretion to decide whether to grant that request under 28 U.S.C. 1915(e)(1). (60) A court should consider several factors in making this decision: (1) the nature and complexity of the action; (2) the potential merit of the claims; (3) the inability of a pro se party to obtain counsel by other means; and (4) the degree to which the interests of justice will be served by appointment of counsel. (61) If a court denies counsel, it should provide reasons for its decision. (62) (For a discussion of the availability of attorney fees in the event that counsel is appointed, see Litigation Considerations, Attorney Fees and Litigation Costs, below.) Finally, it should be noted that the FOIA does not provide a plaintiff, pro se or otherwise, with a right to a jury trial. (63)

Pleadings

An agency has thirty days from the date of service of process to answer a FOIA Complaint, (64) not the usual sixty days that are otherwise permitted by Federal Rule of Civil Procedure 12(a). While courts are not required to automatically accord expedited treatment to FOIA lawsuits, they may do so "if good cause therefor is shown." (65)

FOIA lawsuits are adjudicated according to standards and procedures that are quite atypical within the field of administrative law. First, the usual "substantial evidence" standard of review of agency action is replaced in the FOIA by a de novo review standard. (66) Second, the burden of proof is on the defendant agency, which must justify its decision to withhold any information. (67) When Exemption 1 is invoked, however, most courts have applied a highly deferential standard of review for classified documents in order to avoid compromising national security. (68) (See the discussion under Exemption 1, Standard of Review, above.) Fee waiver issues also are reviewed under the de novo standard of review, but the scope of review is specifically limited by statute to the record before the agency. (69) (For a further discussion of fee waiver review standards, see Fees and Fee Waivers, above.)

Additionally, agency decisions to refuse to expedite the processing of FOIA requests in instances where requesters claim the statutorily based "compelling need" (70) are reviewed under the de novo standard of review, (71) but any such decisions that are based on individual agency regulations providing other grounds for expedition will be "entitled to judicial deference." (72) A major exception to the de novo standard of review is "reverse" FOIA lawsuits, in which courts apply the more deferential "arbitrary and capricious" standard under the Administrative Procedure Act. (73) (See the discussion of this point under "Reverse" FOIA, Standard of Review, below.)

Only federal agencies are proper party defendants in FOIA litigation. (74) Consequently, neither the agency head nor other agency officials are proper parties to a FOIA suit, (75) nor is "the United States" as such. (76) This rule derives from the plain language of the Act, which vests the district courts with jurisdiction to enjoin "the agency" from withholding records. (77) Similarly, there is a sound general rule that only the person who has actually submitted a FOIA request at the administrative level can be the proper party plaintiff in any subsequent court action based on that request. (78)

It is clear that an agency in possession of records originating with another agency cannot refuse to process those records merely by advising the requester to seek them directly from the other agency. (79) In litigation, the defendant agency ordinarily will include in its own court submissions affidavits from the originating agency to address any contested withholdings in these records. (80) (For a further discussion of agency referral practices, see Procedural Requirements, Referrals and Consultations, above.)

Lastly, although Rule 15(a) of the Federal Rules of Civil Procedure counsels that leave to amend complaints "shall be freely given when justice so requires," (81) the decision to grant such leave is entrusted to the sound discretion of the district court. (82) Courts have recognized limitations on a plaintiff's ability to amend a FOIA Complaint, even when the plaintiff is proceeding pro se. (83) In particular, courts have rejected attempts to amend Complaints due to the plaintiff's undue delay, (84) when the Complaint as amended still would fail to state a justiciable claim, (85) when the plaintiff sought to dramatically alter the scope and nature of the FOIA litigation, (86) or when the plaintiff sought to add an unreasonable number of claims. (87)

Exhaustion of Administrative Remedies

Under the FOIA, administrative remedies must be exhausted prior to judicial review. When a FOIA plaintiff attempts to obtain judicial review without first properly undertaking full and timely administrative exhaustion, the lawsuit is subject to ready dismissal because "exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA." (88) Exhaustion allows top-level officials of an agency to correct possible mistakes made at lower levels and thereby obviate unnecessary judicial review. (89)

Many courts have held that dismissal is appropriate under Rule 12(b)(1) of the Federal Rules of Civil Procedure, treating exhaustion under the FOIA as essentially the same as a jurisdictional requirement. (90) Inasmuch as exhaustion is required by the Administrative Procedure Act, (91) of which the FOIA is a part, this approach is entirely sound. Indeed, even those courts that term exhaustion as "prudential" in nature because the FOIA itself does not expressly require it, nevertheless enforce the administrative exhaustion principle under the FOIA, even if these courts often imprecisely suggest that dismissal is appropriate under Rule 12(b)(6). (92) Regardless of the stated basis for dismissal, though, when a requester attempts to seek judicial review before the agency has had an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision, the Complaint certainly should readily be dismissed for failure to exhaust administrative remedies. (93)

A plaintiff cannot evade proper FOIA administrative procedures by attempting to file his FOIA request as part of a judicial proceeding, (94) or in the course of administratively appealing a previously filed FOIA request. (95) However, when a plaintiff in litigation produces proper evidence that a request was made, his claim should not be dismissed solely because the defendant agency cannot locate the request in its files. (96) (For a further discussion of the proper submission of requests, see Procedural Requirements, Proper FOIA Requests, above.)

The FOIA permits requesters to treat an agency's failure to comply with its specific time limits as full, or "constructive," exhaustion of administrative remedies. (97) Thus, when an agency does not respond to a perfected request within the twenty-day (excepting Saturdays, Sundays, and legal public holidays) statutory time limit set forth in the Act, (98) the requester is deemed to have exhausted his administrative remedies and can seek immediate judicial review, even though the requester has not filed an administrative appeal. (99) If a requester files suit before the twenty-day period has expired, the suit must be dismissed even if the agency still has failed to respond to the request after the twenty day period has expired because "the Court will only consider those facts and circumstances that existed at the time of the filing of the complaint, and not subsequent events." (100) Indisputably, though, an agency's failure to comply with the statutory deadline neither requires nor empowers a court to ignore the agency's right to invoke applicable statutory exemptions and summarily order disclosure of any or all information sought. (101)

The special right to immediate judicial review that arises from the lack of a timely response lapses if an agency responds to a request at any time before the requester's FOIA suit is filed; in that situation, the requester must administratively appeal a denial and wait at least twenty working days for the agency to adjudicate that appeal -- as is required by 5 U.S.C.  552(a)(6)(A)(ii) -- before commencing litigation. (102) This latter point was made by the Court of Appeals for the District of Columbia Circuit in Oglesby v. United States Dep't of the Army, which held that "an administrative appeal is mandatory if the agency cures its failure to respond within the statutory period by responding to the FOIA request before suit is filed." (103) Thus, under Oglesby, if a FOIA requester waits beyond the twenty-day period for the agency's initial response and then, in fact, receives that response before suing the agency, the requester must exhaust his administrative appeal rights before litigating the matter. (104) If an agency makes an adverse determination after the requester has filed suit, however, the requester need not first administratively appeal that determination before pressing forward with the court action. (105)

Regardless of whether the agency's response is timely, the requester's exhaustion obligation may be excused if the agency's response fails to supply notice of the right to file an administrative appeal, as required by 5 U.S.C.  552(a)(6)(A)(i), (106) or ultimately to supply notice of the right to seek court review at the conclusion of the administrative appeal process. (107) However, so long as such notice is given, there is no particular formula or set of "magic words" that the agency must employ in giving it. (108) (For a further discussion of administrative notification requirements, see Procedural Requirements, Responding to FOIA Requests, above.) Furthermore, Oglesby counsels that a requester must file an administrative appeal within the time limit specified in an agency's FOIA regulations or else face dismissal for failure to exhaust administrative remedies. (109)

An agency response that merely acknowledges receipt of a request does not constitute a "determination" under the FOIA in that it neither denies records nor grants the right to appeal the agency's determination. (110) Significantly, though, the twenty-day time period does not run until the request is received by the appropriate office in the agency, (111) as set forth in the agency's regulations. (112) In fact, when an agency has regulations requiring that requests be made to specific offices for specific records, (113) a request will not be deemed received -- and no search for responsive records need be performed -- if the requester does not follow those regulations. (114) (For a further discussion of time limits, see Procedural Requirements, Time Limits, above.) Additionally, even when a requester has "constructively" exhausted his administrative remedies by the agency's failure to respond determinatively to the request within the statutory time limits, the requester is not entitled to a Vaughn Index during the administrative process. (115)

Whether the agency has met or exceeded its twenty-day time limit for the processing of initial responses to a request, its twenty-day time limit for the processing of administrative appeals, or its ten-day extension of either time limit, (116) requesters have been deemed not to have constructively exhausted administrative remedies when they have failed to comply with necessary requirements of the FOIA's administrative process -- for example, when they have failed to provide required proof of identity (117) in first-party requests (118) or disclosure authorization by third parties; (119) failed to "reasonably describe" the records sought; (120) failed to comply with fee requirements; (121) failed to pay authorized fees incurred in a prior request before making new requests; (122) failed to present for review at the administrative appeal level any objection to earlier processing practices; (123) failed to administratively request a waiver of fees; (124) or failed to challenge a fee waiver denial at the administrative appeal stage. (125)

Although it is not yet a settled point of law, the only possible exception to the FOIA's firm exhaustion requirement concerns requests for expedited access to records -- for which the agency has a ten-calendar-day response deadline. (126) Despite statutory language referring to administrative appeals of such requests, (127) the few courts that have considered the issue thus far have ruled that exhaustion of administrative remedies is not required prior to seeking court review of an agency's denial of requested expedited access. (128) In any event, however, denial of expedited access to records certainly should not entitle a requester to seek immediate judicial review of the agency's failure to respond to the underlying request for records as well; if a requester files suit seeking access to records prior to the twenty-day time period within which an agency must respond to that underlying request, that suit is subject to ready dismissal for failure to exhaust administrative remedies. (129)

"Open America" Stays of Proceedings

When a requester who has constructively exhausted administrative remedies due to an agency's failure to comply with the FOIA's time deadlines files a suit in court, the court may retain jurisdiction over the case -- ordinarily through issuance of a stay of proceedings -- while allowing the agency additional time to complete its processing of the request. The FOIA itself explicitly permits such a stay if it can be shown that "exceptional circumstances exist and that the agency is exercising due diligence in responding to the request." (130) This provision of the FOIA provides an important "safety valve" for agencies that have been, and continue to be, overwhelmed by increasing numbers of FOIA requests. (131)

The leading case construing this FOIA provision is Open America v. Watergate Special Prosecution Force. (132) In Open America, the Court of Appeals for the District of Columbia Circuit held that "exceptional circumstances" may exist when an agency can show that it "is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection (6)(A)." (133)

The Electronic Freedom of Information Act Amendments of 1996 explicitly redefined the term "exceptional circumstances" to exclude any "delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." (134) This definition of "exceptional circumstances" makes it difficult for agencies seeking a stay of proceedings to argue only the existence of a FOIA backlog as the basis for a stay. (135) At the same time, in enacting the Electronic FOIA amendments, Congress specifically contemplated that other factors may be relevant to a court's determination as to whether "exceptional circumstances" exist: An agency's efforts to reduce its pending request backlog; the size and complexity of other requests being processed by the agency; the amount of classified material involved; and the number of requests for records by courts or administrative tribunals that are also pending. (136) Furthermore, the amendments include a companion provision that specifies that a requester's "refusal . . . to reasonably modify the scope of a request or arrange for an alternative time frame for processing . . . shall be considered as a factor in determining whether exceptional circumstances exist." (137)

In Open America, the D.C. Circuit ruled that the "due diligence" requirement in the FOIA may be satisfied by an agency's good faith processing of all requests on a "first-in/first-out" basis and that a requester's right to have his request processed out of turn requires a particularized showing of "exceptional need or urgency." (138) In so ruling, the D.C. Circuit rejected the notion that the mere filing of a lawsuit was a basis for such expedited treatment. (139) The Electronic FOIA amendments modified this first in/first out rule by explicitly allowing agencies to establish "multitrack" processing for requests, based on the amount of time and/or work involved in a particular request. (140) The amendments nevertheless preserved the principle that, within such multiple tracks, an agency's "due diligence" in handling its FOIA requests is shown by its consideration of those requests on a first-in, first-out basis. (141)

When the requirements of the statute and Open America are met, an agency can move for a stay of judicial proceedings to obtain the additional time necessary to complete the administrative processing of the request, (142) although courts lately have undertaken increasing scrutiny of agency claims that long processing delays are warranted. (143) The stay necessarily includes the time required to consult with other agencies whose information is included in the responsive records, particularly when such review by the originating agency is mandatory. (144) In addition, an "Open America" stay should, when necessary, include the time required for preparation of a Vaughn Index. (145) While the Open America decision itself does not address the additional time needed by an agency to justify nondisclosure of any withheld records once they are processed, courts have, as a practical matter, tended to merge the record-processing and affidavit-preparation stages of a case when issuing stays of proceedings under Open America. (146) And when there is a large volume of responsive documents that have not been processed, a court may grant a stay of proceedings that provides for interim or "timed" releases and/or interim status reports on agency processing efforts. (147)

An "Open America" stay may be denied when the requester can show an "exceptional need or urgency" for having his request processed out of turn. (148) Traditionally, such a showing was made if the requester's life or personal safety, or substantial due process rights, would be jeopardized by the failure to process a request immediately. (149)

The Electronic FOIA amendments generally codified these requirements. (150) Under them, agencies must have regulations providing for the granting of expedited treatment in cases of "compelling need" or "in other cases determined by the agency." (151) "Compelling need" is defined by law to encompass a situation in which withholding of the requested records "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." (152) Additionally, the Electronic FOIA amendments specify that expedited processing will be granted when there exists, "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." (153)

The D.C. Circuit, in discussing the second part of this statutory standard, has observed that "'[g]iven the finite resources generally available for filling FOIA requests, unduly generous use of the expedited processing procedure would unfairly disadvantage other requesters who do not qualify for its treatment.'" (154) It then held that a request for records pertaining to the deaths of Princess Diana and Dodi Al-Fayed did not satisfy the "urgency to inform" standard because the events at issue were over two years old, and "[a]lthough these topics may continue to be newsworthy, none of the events at issue is the subject of a currently unfolding story." (155) Lower courts have similarly limited the reach of this expedited access standard. (156)

Absent truly exceptional circumstances, though, courts have generally declined to order expedited processing when records are "needed" for post-judgment attacks on criminal convictions, (157) or for use in other civil litigation. (158) Employing an extremely unusual tactic, one plaintiff sought, in lieu of seeking expedited processing of his FOIA request, to have a federal court stay his state habeas corpus proceedings pending a response to his FOIA request. (159) Rejecting such a novel stay application, the court found that it was constrained by the constitutional doctrine of Younger v. Harris (160) from interfering in the state court proceedings. (161) (See also further discussion under Procedural Requirements, Expedited Processing, above.)

Adequacy of Search

In many FOIA suits, the defendant agency will face challenges not only to its reliance on particular exemptions, but also to the nature and extent of its search for responsive documents. Sometimes, that is all that a plaintiff will dispute. (162) (For discussions of administrative considerations in conducting searches, see Procedural Requirements, Searching for Records, above.) To prevail in a FOIA action, the agency must show that it made "'a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" (163) The fundamental question is not "'whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" (164) In other words, "the focus of the adequacy inquiry is not on the results." (165)

The adequacy of any FOIA search, of course, is necessarily "dependent upon the circumstances of the case." (166) Searches through agency or component indices, for example, which contain records in which a requester is the subject of the record, have been held to be adequate in almost all instances. (167) With respect to the processing of "cross references" or "see references" -- records in which the subject of the request is just mentioned -- only those parts of the file that pertain directly to the subject of the request ordinarily are considered within the scope of the request. (168) Further, agencies that maintain field offices in various locations ordinarily are not obligated to search offices other than those to which the request has been directed. (169)

It is incumbent upon an agency, of course, not to interpret the scope of a FOIA request too narrowly. (170) For example, a request that asks for all records pertaining to a specific subject and then, in addition, enumerates certain items within that subject should be interpreted broadly, according to a recent ruling by the Court of Appeals for the District of Columbia Circuit. (171) Chiding the agency for its "implausible reading," the D.C. Circuit explained that "[t]he drafter of a FOIA request might reasonably seek all of a certain set of documents while nonetheless evincing a heightened interest in a specific subset thereof," (172) but it emphasized that the reverse would not be true: "We think it improbable, however, that a person who wanted only the subset would draft a request that first asks for the full set." (173) (For a further discussion of determining the scope of a FOIA request, see Procedural Requirements, Proper FOIA Requests, above.)

On another search-related point, the D.C. Circuit has expressly held that an agency "is not obligated to look beyond the four corners of the request for leads to the location of responsive documents." (174) Similarly, "[b]ecause the scope of a search is limited by a plaintiff's FOIA request, there is no general requirement that an agency search secondary references or variant spellings." (175) Nor is an agency required to undertake a new search based on a subsequent "clarification" of a request, especially after the requester has examined the released documents. (176) Indeed, the D.C. Circuit has explicitly observed that "[r]equiring an additional search each time the agency receives a letter that clarifies a prior request could extend indefinitely the delay in processing new requests," (177) and that "if the requester discovers leads in the documents he receives from the agency, he may pursue those leads through a second FOIA request." (178)

The proper scope of an agency's search is limited not only by what the requester asks for but also by the date the agency uses as a temporal limit for its search. Referred to as "cut-off" dates, these temporal limits are used to determine which agency records are encompassed within the scope of a request. (179) Courts have held that an agency's use of an inappropriate "cut- off" date can unduly restrict a FOIA request's temporal scope, thereby rendering the agency's subsequent search for responsive records unreasonable. (180) Searches conducted using a cut-off based on the date that the search begins (i.e., a "date-of-search cut-off") have been viewed by the courts much more favorably than a search that uses a less inclusive cut-off, such as one based on the date of the request or of the request's receipt (i.e., a "date-of- request cut-off"). (181) (For a further discussion of the proper scope of a FOIA request, see Procedural Requirements, Proper FOIA Requests, above.)

In extraordinarily onerous cases, an agency may not be compelled to undertake even an initially requested search that is of such range or magnitude as to make it "unreasonably burdensome." (182) Indeed, "'it is the requester's responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome . . . [because the] FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.'" (183)

On the other hand, while "[t]here is no requirement that an agency search every record system," (184) an agency "'cannot limit its search to only one record system if there are others that are likely to turn up the information requested.'" (185) Stated another way, "if an agency has reason to know that certain places might well contain responsive documents, it is obligated under FOIA to search [those places] barring an undue burden." (186) Of course, those places should be within the agency (187) or in a federal records center at which the agency has stored its records." (188)

When documents that are located as a result of an initial search suggest other fruitful areas to search, an agency might be required to explore those areas, because "the court evaluates the reasonableness of an agency's search based on what the agency knew at [the search's] conclusion rather than what the agency speculated at its inception." (189) Of course, when a requester has set limitations on the scope of his request, either at the administrative stage (190) or in the course of litigation, (191) he cannot subsequently challenge the adequacy of the search on the ground that the agency limited its search accordingly. Moreover, the D.C. Circuit has held that when the subject of a request is involved in several separate matters, but information is sought regarding only one of them, an agency is not obligated to extend its search to other files or to other documents that are referenced in records retrieved in response to the initial search, so long as that search was reasonable and complete in and of itself. (192)

To prove the adequacy of its search, as in sustaining its use of exemptions, an agency relies upon its declarations, which should be "relatively detailed, nonconclusory, and submitted in good faith." (193) Such declarations should show "that the search method was reasonably calculated to uncover all relevant documents." (194) This ordinarily is accomplished by a declaration that identifies the types of files that an agency maintains, states the search terms that were employed to search through the files selected for the search, and contains an averment that all files reasonably expected to contain the requested records were, in fact, searched. (195)

It is not necessary that the agency employee who actually performed the search supply an affidavit describing the search; rather, the affidavit of an official responsible for supervising or coordinating the search efforts should be sufficient in any FOIA litigation case to fulfill the "personal knowledge" requirement of Rule 56(e) of the Federal Rules of Civil Procedure. (196) (For a further discussion of this "personal knowledge" requirement, see Litigation Considerations, Summary Judgment, below.)

While the initial burden certainly rests with an agency to demonstrate the adequacy of its search, (197) once that obligation is satisfied, the agency's position can be rebutted "only by showing that the agency's search was not made in good faith," (198) because agency declarations are "entitled to a presumption of good faith. (199) Consequently, a requester's "'[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.'" (200) Even when a requested document indisputably exists or once existed, summary judgment will not be defeated by an unsuccessful search for the document, so long as the search was diligent. (201) Indeed, "[n]othing in the law requires the agency to document the fate of documents it cannot find." (202) And when an agency does subsequently locate additional documents, or documents initially believed to have been lost or destroyed, courts have accepted this as evidence of the agency's good-faith efforts. (203)

Mootness and Other Grounds for Dismissal

As is generally the case in any other civil litigation, a FOIA lawsuit may be barred from consideration on its merits due to mootness or the doctrines of issue or claim preclusion, or because some other factor warrants dismissal.

In a FOIA lawsuit, the courts can grant a requester relief only when an agency has improperly withheld agency records. (204) Therefore, if, during litigation, it is determined that all documents found responsive to the underlying FOIA request have been released in full to the requester, the suit should be dismissed as moot because there is no justiciable case or controversy. (205) Similarly, if a FOIA plaintiff's Complaint alleges only an unreasonable delay in responding to a FOIA request and the agency subsequently responds by processing the requested records, the FOIA lawsuit should be dismissed as moot. (206)

In Payne Enterprises v. United States, (207) however, the Court of Appeals for the District of Columbia Circuit held that when records are routinely withheld at the initial processing level, but consistently released after an administrative appeal, and when this situation results in continuing injury to the requester, a lawsuit challenging that practice is ripe for adjudication and is not subject to dismissal on the basis of mootness. (208) The defendant agency's "voluntary cessation" of that practice in Payne did not moot the case when the plaintiff challenged the agency's policy as an unlawful, continuing wrong. (209) Although Payne has been used as the springboard for suits by plaintiffs contending that individual agencies have engaged in a "pattern and practice" of ignoring their obligations under the FOIA, in most of these cases plaintiffs have not found a sympathetic reception to their complaints. (210)

Dismissal of a FOIA lawsuit also can be appropriate when the plaintiff fails to prosecute the suit, (211) or records are publicly available under a separate statutory scheme upon payment of fees, (212) or if the claims presented are not ripe. (213) Dismissal is not necessarily appropriate when a plaintiff dies, however; under some circumstances, a FOIA claim may be continued by a properly substituted party. (214)

Another reason for dismissing a FOIA lawsuit involves the doctrine of res judicata, which also is referred to as "claim preclusion." (215) Res judicata precludes relitigation of an action when it is brought by a plaintiff against the same agency for the same documents, the withholding of which previously has been adjudicated. (216) Res judicata does not prevent consideration of a FOIA lawsuit, though, when the plaintiff in the earlier, non-FOIA case involving the same records could not raise a FOIA claim. (217) In addition, res judicata is not applicable where there has been a change in the factual circumstances or legal principles applicable to the lawsuit. (218)

When parallel FOIA suits are brought by the same party for the same records, dismissal may be appropriate by operation of the "first-filed" rule. (219) This rule holds that "[w]hen lawsuits involving the same controversy are filed in more than one jurisdiction, the general rule is that the court that first acquired jurisdiction has priority." (220) The "first-filed" rule differs from res judicata because in the latter a case involving the same parties already has been decided, whereas in the former the cases are still pending, but both rules proceed from the same goal -- to minimize redundant litigation and thereby conserve judicial resources. (221)

Collateral estoppel, or "issue preclusion," also may foreclose further consideration of a FOIA suit. (222) Collateral estoppel precludes relitigation of an issue previously litigated by one party to the action. (223) For example, if an agency's search for records already has been found to be adequate, a plaintiff should not be able to question that same search in a subsequent action. (224) While collateral estoppel may be somewhat more problematic in the FOIA context where there is not necessarily an express or implied legal relationship between the plaintiff in the first action and the plaintiff in the successive suit, (225) the risk of conflicting decisions on the same set of records suggests that relaxed notions of privity -- which courts have allowed in other contexts (226) -- are particularly appropriate in FOIA cases. (227) As with the doctrine of res judicata, collateral estoppel is not applicable to a subsequent lawsuit if there is an intervening material change in the law or factual predicate. (228)

"Vaughn Index"

A distinguishing feature of FOIA litigation is that the defendant agency bears the burden of sustaining its action of withholding records. (229) The most commonly used device for meeting this burden of proof is the "Vaughn Index," fashioned by the Court of Appeals for the District of Columbia Circuit more than two decades ago in a case entitled Vaughn v. Rosen. (230)

The Vaughn decision requires agencies to prepare an itemized index, correlating each withheld document (or portion) with a specific FOIA exemption and the relevant part of the agency's nondisclosure justification. (231) Such an index allows the trial court "to make a rational decision [about] whether the withheld material must be produced without actually viewing the documents themselves . . . [and] to produce a record that will render [its] decision capable of meaningful review on appeal." (232) It also helps to "create balance between the parties." (233) If a court finds that an index is not sufficiently detailed, it should require one that is more detailed. (234) Alternatively, if a Vaughn Index is inadequate to support withholding, it may be supplemented by in camera review of the withheld material. (235) (See the further discussion of this point under Litigation Considerations, In Camera Inspection, below.)

There is no set formula for a Vaughn Index; instead, it is the function, not the form that is important. (236) Indeed, the D.C. Circuit has eloquently observed that "a Vaughn index is not a work of literature; agencies are not graded on the richness or evocativeness of their vocabularies." (237) What is required is that the requester and the trial judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." (238) As one court has explained:

A true Vaughn index identifies discrete portions of documents and identifies the exemption pertaining to each portion of the document. In most cases, such an index provides the date, source, recipient, subject matter and nature of each document in sufficient detail to permit the requesting party to argue effectively against the claimed exemptions and for the court to assess the applicability of the claimed exemptions. (239)

When a Vaughn Index meets these criteria, it is "'accorded a presumption of good faith.'" (240) Of course, "[t]he degree of specificity of itemization, justification, and correlation required in a particular case will . . . depend on the nature of the document at issue and the particular exemption asserted." (241)

A document specifically denominated as a "Vaughn Index" is not even essential, so long as the nature of the withheld information is adequately attested to by the agency. (242) What is essential, however, is that the Vaughn Index expressly indicate for each document that any reasonably segregable information has been disclosed. (243) In this connection, the Court of Appeals for the District of Columbia Circuit has repeatedly held that it is reversible error for a district court not to make a finding of segregability. (244) Indeed, the D.C. Circuit has ruled that even if the segregability issue has not first been raised by the parties, the district court has "an affirmative duty" to consider the matter "sua sponte." (245) (For further discussions of this issue, see Procedural Requirements, "Reasonably Segregable" Obligation, above, and Litigation Considerations, "Reasonably Segregable" Requirements, below.) Questions regarding segregability also may be resolved through in camera inspection of documents by the district court, when necessary. (246) (For a further discussion of in camera inspection, see Litigation Considerations, In Camera Inspection, below.)

When voluminous records are at issue, courts have approved the use of Vaughn Indexes based upon representative samplings of the withheld documents. (247) This special procedure "allows the court and the parties to reduce a voluminous FOIA exemption case to a manageable number of items" for the Vaughn Index and, "[i]f the sample is well-chosen, a court can, with some confidence, 'extrapolate its conclusions from the representative sample to the larger group of withheld materials.'" (248) Once a representative sampling of the withheld documents is agreed to, however, the agency's subsequent release of some of those documents may destroy the representativeness of the sample and thereby raise questions about the propriety of withholding other responsive documents that were not included in the sample. (249) In recognition of this danger, the D.C. Circuit has held that an agency "must justify its initial withholdings and is not relieved of that burden by a later turnover of sample documents," and that "the district court must determine whether the released documents were properly redacted [when] initially reviewed." (250)

Many agencies use "coded" Vaughn Indexes -- which break certain FOIA exemptions into several categories, explain the particular nondisclosure rationales for each category, and then mark the exemption and category on the particular documents at issue. (251) Courts have generally accepted the use of such "coded" indexes when "[e]ach deletion was correlated specifically and unambiguously to the corresponding exemption . . . [which] was adequately explained by functional categories . . . [so as to] place[] each document into its historical and investigative perspective." (252) Innovative formats for "coded" affidavits have been found acceptable, so long as they enhance the ultimate goal of overall "descriptive accuracy" of the affidavit. (253)

The D.C. Circuit has gone so far as to hold that the district court judge's review of only the expurgated documents -- an integral part of the "coded" affidavit -- was sufficient in a situation in which the applicable exemption was obvious from the face of the documents. (254) However, this approach has been found inadequate when the coded categories are too "far ranging" and more detailed subcategories could be provided. (255) Indeed, when numerous pages of records are withheld in full, a "coded" affidavit that does not specifically correlate multiple exemption claims to particular portions of the pages withheld has been found to be impermissibly conclusory. (256)

Agencies employing "coded" indexes ordinarily attach copies of the records released in part -- i.e., the "expurgated" documents -- as part of their public Vaughn submission. (257) But agencies seeking to justify withholding records from first-party FOIA requesters should be mindful of the fact that the public filing of expurgated documents about the individual requester (or even detailed descriptions of them in briefs) may constitute a "disclosure" under subsection (b) of the Privacy Act of 1974. (258) Unless proceeding under seal, or with the prior written consent of the requester, an agency should strive to make such a disclosure only in accordance with one of the exceptions set forth in the Privacy Act -- such as its "routine use" exception or its "court order" exception. (259)

Although an agency ordinarily must justify its withholdings on a page-by-page or document-by-document basis, under certain circumstances courts have approved withholdings of entire, but discrete, categories of records which encompass similar information. (260) Most commonly, courts have permitted the withholding of records under Exemption 7(A) on a category-by-category or "generic" basis. (261) While the outermost contours of what constitutes acceptable "generic" Exemption 7(A) Vaughn declarations are sometimes unclear, (262) it appears well established that if the agency has (1) defined its Exemption 7(A) categories functionally, (2) conducted a document-by-document review in order to assign documents to the proper category, and (3) explained how the release of each category of information would interfere with the enforcement proceedings, the description will be found sufficient. (263) (See the discussion of Vaughn Indexes under Exemption 7(A), above.) Moreover, when "a claimed FOIA exemption consists of a generic [exemption], dependent upon the category of records rather than the subject matter which each individual record contains [so that] resort to a Vaughn index is futile," (264) such generic descriptions can also satisfy an agency's Vaughn obligation with regard to other exemptions as well. (265)

In a broad range of contexts, most courts have refused to require agencies to file public Vaughn Indexes that are so detailed as to reveal sensitive information the withholding of which is the very issue in the litigation. (266) Therefore, in camera affidavits are frequently utilized in Exemption 1 cases when a public description of responsive documents would compromise national security. (267) (For a further discussion of this point, see Litigation Considerations, In Camera Inspection, below.) This same important principle also has been applied to other FOIA exemptions -- for example, in Exemption 5 cases, (268) in Exemption 7(A) cases, (269) and in Exemption 7(D) cases. (270) However, in all cases in which explanations for withholding are presented in camera, the agency is obliged to ensure that it has first set forth on the public record an explanation that is as complete as possible without compromising the sensitive information. (271)

With regard to the timing of the creation of a Vaughn Index, it is well settled that a requester is not entitled to receive one during the administrative process. (272) Furthermore, courts generally do not require the submission of a Vaughn Index prior to the time at which a dispositive motion is filed; this standard practice is based upon the need to maintain an orderly and efficient adjudicative process in FOIA cases, and upon the practical reality that some form of affidavit, declaration, or index virtually always accompanies the defendant agency's motion for summary judgment. (273) Efforts to compel the preparation of Vaughn Indexes prior to the filing of an agency's dispositive motion are typically denied as premature. (274)

"Reasonably Segregable" Requirements

The FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such a record after deletion of the portions which are exempt." (275) Added as part of the 1974 FOIA amendments, (276) this important provision was designed to narrow the focus of the application of exemptions from documents to specific segments of information within them. (277) Of course, the segments of information, if disclosed, must have some meaning. (278)

As a general rule, "[t]he 'segregability requirement applies to all documents and all exemptions in the FOIA.'" (279) To meet this requirement, agency declarations must address the issue "with reasonable specificity." (280) Indeed, conclusory language in agency declarations that does not provide a specific basis for segregability findings by district courts may be found inadequate. (281) Nevertheless, a court might be able to make its own segregability determination, even in the absence of an adequate analysis in an agency's declaration. (282)

Traditionally, the district court's segregability obligation arose upon a plaintiff's specific complaint or argument about the defendant agency's compliance with that statutory requirement. (283) In Trans-Pacific Policing Agreement v. United States Customs Service, (284) however, the Court of Appeals for the District of Columbia Circuit treated this obligation as a sua sponte requirement for the district court -- i.e., one to be met automatically even if the plaintiff had not raised the issue. (285) This means that even in the absence of a specific challenge by a FOIA plaintiff, an agency's Vaughn declaration readily can be found insufficient if it attempts to "justify withholding an entire document simply by showing that it contains some exempt material." (286) As a result, summary judgment may be denied to an agency if its declarations do not adequately demonstrate that all reasonably segregable, nonexempt information has been disclosed. (287) (For a further discussion of summary judgment requirements, see Litigation Considerations, Summary Judgment, below.) Moreover, a district court decision may be remanded entirely on procedural grounds -- even if it correctly rules for the agency in all substantive exemption respects -- if it fails to make segregability findings. (288)

Ultimately, the agency's duty to deal with "reasonably segregable," nonexempt portions of records arises first at the administrative level and, indeed, an agency's careful action at this level may forestall problems later on. (For a discussion of document segregation at the administrative level, see Procedural Requirements, "Reasonably Segregable" Obligation, above.) This is so because, as previously noted, "regardless of whether a particular FOIA request proceeds to litigation, the obligation nonetheless is the same -- it 'applies to all documents and all exemptions in the FOIA.'" (289)

In Camera Inspection

The FOIA specifically authorizes in camera examination of documents, (290) but whether to employ this tool of judicial review is a matter firmly committed to the "'broad discretion of the trial court judge.'" (291) Courts typically exercise their discretionary authority to order in camera inspection in exceptional rather than routine cases, (292) primarily because in camera review "circumvents the adversarial process," (293) but also because of the burdens involved. (294)

In camera review is unnecessary and inappropriate when agencies meet their burden of proof by means of sufficiently detailed affidavits. (295) In camera review is one of several options that may be ordered, however, when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims. (296)

In camera review also may be ordered in other circumstances. If the number of records involved is relatively small, in camera review may be utilized to save both the court and the parties time and resources. (297) In this regard, in camera review of a small sample of a larger set of documents may be warranted. (298) Additionally, when a discrepancy is found to exist between representations in an agency's affidavit and other information that the agency has publicly disclosed about the withheld records, in camera inspection may be an appropriate method to resolve that discrepancy. (299) Similarly, in camera inspection may be ordered in cases in which the plaintiff alleges that the government has waived its right to claim an exemption. (300) Further, in camera inspection may be used to verify that an agency has released all reasonably segregable information, (301) or to ascertain whether a district court properly ruled on the merits of a case. (302) (For a further discussion of appellate matters, see Litigation Considerations, Considerations on Appeal, below.)

In camera review is most likely to be ordered when there is actual evidence of bad faith on the part of the agency; (303) indeed, in this circumstance, in camera review may be "particularly appropriate." (304) Moreover, even with the submission of adequately detailed affidavits -- and in the absence of any bad faith in the agency's FOIA processing -- in camera inspection may be undertaken based upon "evidence of bad faith or illegality with regard to the underlying activities which generated the documents at issue." (305) The Court of Appeals for the Sixth Circuit, in particular, has reasoned that in camera review is appropriate in such a case in order to reassure the plaintiff and the public that justice has been served. (306)

In camera review often is employed in cases involving national security, where detailed public affidavits may be impracticable. (307) (For a further discussion of in camera review of classified materials, see Exemption 1, In Camera Submissions, above.) Even in national security cases, however, it has been observed that "a district court exercises a wise discretion when it limits the number of documents it reviews in camera." (308) Sometimes in these cases, in addition to in camera inspection, an agency will employ in camera declarations to explain the basis for its withholdings. (309) Although in camera declarations should be used sparingly, (310) government agencies defending cases since the events of September 11, 2001, have found it increasingly necessary to rely on in camera declarations due to the sensitive matters at issue. (311)

To be sure, it has been held that a district court may properly review in camera declarations only if it publicly explains its rationale for so doing and ensures that the agency has provided as complete a public explanation as possible without jeopardizing the sensitive, exempt information. (312) Additionally, in limited circumstances, in camera, ex parte oral testimony may be permitted, but when it is taken, it should be transcribed and maintained under seal. (313) Regardless of whether the court inspects documents or receives testimony in camera, however, counsel for the plaintiff ordinarily is not entitled to participate in these in camera proceedings. (314)

If a court undertakes in camera inspection, it necessarily establishes an adequate factual basis for determining the applicability of the claimed exemptions. (315) This should be true regardless of the adequacy of an agency's affidavit. (316)

Summary Judgment

Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, (317) because "in FOIA cases there is rarely any factual dispute . . . only a legal dispute over how the law is to be applied to the documents at issue." (318) Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in part, that the "judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." (319) So long as there are no material facts at issue and no facts "susceptible to divergent inferences bearing upon an issue critical to disposition of the case," summary judgment is appropriate. (320) Of course, an agency's failure to respond to a FOIA request in a timely manner does not, by itself, justify an award of summary judgment to the requester. (321)

The Court of Appeals for the District of Columbia Circuit has held that "a motion for summary judgment adequately underpinned is not defeated simply by bare opinion or an unaided claim that a factual controversy persists." (322) For example, summary judgment will not be defeated by unsupported claims that an agency is withholding information that already is in the public domain. (323) Nor will summary judgment necessarily be precluded by discrepancies in the agency's page counts, particularly when the agency has processed a voluminous number of pages, so long as the agency has supplied a "well-detailed and clear" explanation for the differences. (324) Moreover, a plaintiff -- even one appearing pro se -- will be found to have conceded the government's factual assertions if he fails to contest them, once it is clear that he understands his responsibility to do so. (325)

In a FOIA case, the agency has the burden of justifying nondisclosure, (326) and it must sustain its burden by submitting detailed affidavits (327) that identify the documents at issue and explain why they fall under the claimed exemptions. (328) (A federal statute specifically permits unsworn declarations (i.e., without notarizations) to be utilized in all cases in which affidavits otherwise would be required. (329)) The widespread use of Vaughn Indexes, of course, means that affidavits, in the form of Vaughn Indexes, will nearly always be submitted in FOIA lawsuits, notwithstanding Rule 56's language making affidavits optional in general. (For a further discussion of Vaughn Indexes, see Litigation Considerations, Vaughn Index, above.)

As one court has put it, "[s]ummary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." (330) Summary judgment may be granted solely on the basis of agency affidavits if they are clear, specific, and reasonably detailed, if they describe the withheld information in a factual and nonconclusory manner, and if there is no contradictory evidence on the record or evidence of agency bad faith. (331) If all of these requisites are met, such affidavits are usually accorded substantial weight by the courts. (332)

In certain circumstances, opinions or conclusions may be asserted in agency affidavits, especially in cases in which disclosure would compromise national security. (333) On the other hand, "[c]ourts have consistently held that a requester's opinion disputing the risk created by disclosure is not sufficient to preclude summary judgment for the agency when the agency possessing the relevant expertise has provided sufficiently detailed affidavits." (334)

Rule 56(e) of the Federal Rules of Civil Procedure provides that the affidavit must be based upon the personal knowledge of the affiant, must demonstrate the affiant's competency to testify as to matters stated, and must set forth only facts that would be admissible in evidence. (335) "Gratuitous recitations of the affiant's own interpretation of the law," however, are inappropriate. (336)

The affidavit or declaration of an agency official who is knowledgeable about the way in which information is processed and is familiar with the documents at issue satisfies the personal knowledge requirement. (337) Similarly, in instances in which an agency's search is questioned, an affidavit of an agency employee responsible for coordinating the search efforts satisfies the personal knowledge requirement. (338) Likewise, in justifying the withholding of classified information under Exemption 1, the affiant is required only to possess document-classification authority for the records in question, not personal knowledge of the particular substantive area that is the subject of the request. (339) However, affiants must establish that they are personally familiar with all of the withheld records, (340) and should not be selected merely because they occupy particular positions in the agency. (341)

Discovery

Discovery is the exception, not the rule, in FOIA cases. (342) If it occurs -- and determinations of whether and under what conditions discovery is permitted are always vested in the sound discretion of the district court (343) -- discovery ordinarily is limited to the scope of an agency's search, its indexing and classification procedures, and similar factual matters. (344) The major exception to this limited scope of discovery is when the plaintiff raises a sufficient question as to the agency's good faith in processing documents or any other respect. (345) In any case, however, before being permitted discovery, a FOIA plaintiff must adequately explain how the specific discovery requested will uncover information that would create a genuine issue of material fact. (346)

Even if a FOIA plaintiff surmounts this barrier to discovery, there are certain areas that nevertheless are not within the permissible bounds of discovery. A FOIA plaintiff should not be permitted to extend his discovery efforts into the agency's thought processes for claiming particular exemptions. (347) Moreover, discovery should not be permitted when a plaintiff seeks to obtain the contents of withheld documents -- the issue that lies at the very heart of a FOIA case. (348)

Discovery also should not be permitted when the plaintiff is plainly using the FOIA lawsuit as a means of questioning investigatory action taken by the agency or the underlying reasons for undertaking such investigations. (349) Courts will refuse to "allow [a] plaintiff to use this limited discovery opportunity as a fishing expedition [for] investigating matters related to separate lawsuits." (350)

Discovery should be denied altogether if the court is satisfied from the agency's affidavits that "no factual dispute remains," (351) and when the affidavits are "relatively detailed" and submitted in good faith. (352) Consequently, discovery should routinely be denied when the plaintiff's "efforts are made with [nothing] more than a 'bare hope of falling upon something that might impugn the affidavits'" submitted by the defendant agency. (353) In any event, "'curtailment of discovery' is particularly appropriate where the court makes an in camera inspection." (354) Permissible discovery should take place, if at all, only after the government moves for summary judgment and submits its supporting affidavits and memorandum of law, which contain its evidentiary proof in the case. (355)

Lastly, it is worth noting that the courts have held that, in appropriate cases, the government can conduct discovery against a FOIA plaintiff, (356) though case law is split on the question of whether in a FOIA case a party can take discovery against a private citizen. (357)

Waiver of Exemptions in Litigation

Because the FOIA directs district courts to review agency actions de novo, (358) an agency is not barred from invoking a particular exemption in litigation merely because that exemption was not cited in responding to the request at the administrative level. (359) Failure to raise an exemption in a timely fashion in litigation at the district court level, however, may result in its waiver. (360) Although an agency should not be required to plead its exemptions in its answer, (361) it has been held that "'agencies [may] not make new exemption claims to a district court after the judge has ruled in the other party's favor,' nor may they 'wait until appeal to raise additional claims of exemption or additional rationales for the same claim.'" (362) Thus, an agency's failure to preserve its exemption claims can lead to serious waiver consequences as FOIA litigation progresses, not only during the initial district court proceedings, (363) but also at the appellate level, (364) and even following a remand. (365)

This lesson was underscored by the Court of Appeals for the District of Columbia Circuit's decision in Maydak v. United States Department of Justice. (366) In Maydak, the D.C. Circuit refused to allow the defendant agency to invoke underlying FOIA exemptions when its initial Exemption 7(A) basis for nondisclosure became no longer applicable due to the completion of the underlying law enforcement proceedings. (367) While recognizing that it previously had allowed agencies to raise new exemptions when there was "a substantial change in the factual context of the case," (368) the D.C. Circuit surprisingly ruled that the termination of underlying enforcement proceedings and the resultant expiration of Exemption 7(A) did not meet this standard. (369)

In Maydak, the D.C. Circuit abruptly refused to recognize that the temporal nature of Exemption 7(A) necessitates a practical approach to processing investigatory law enforcement records. (370) Rather, it denied the agency the authority to invoke any FOIA exemption that had not been "raised" at the district court level. (371) "Raising" an exemption means more than merely identifying, noting, or generally describing it, according to the D.C. Circuit: It means invoking it "as a defense in a manner in which the district court could rule on the issue." (372)

The Maydak ruling, though, may have been a direct result of the D.C. Circuit's perception of "tactical maneuvering" by the government at the FOIA requester's expense. (373) When another D.C. Circuit panel subsequently was presented with a similar situation, in August v. FBI, it took pains to point out that it did not intend to "adopt[] a rigid 'press it at the threshold or lose it for all times' approach to . . . agenc[ies'] FOIA exemption claims." (374) Indeed, that panel emphasized the fact that the full court in Jordan v. United States Department of Justice (375) had adopted a "flexible approach to handling belated invocations of FOIA exemptions," which it said actually was "affirmed" in Maydak. (376) The D.C. Circuit in August acknowledged three circumstances that might permit the government belatedly to invoke FOIA exemptions: a substantial change in the factual context of a case; an interim development in an applicable legal doctrine; or pure mistake. (377)

Moreover, in two rulings issued shortly after August, another panel of the D.C. Circuit wisely suggested that an agency's belated raising of FOIA exemptions might be appropriate under an additional circumstance -- namely, when the legal basis for an agency's initial decision on a FOIA request is rejected in litigation. In United We Stand America, Inc. v. IRS, (378) the primary issue was whether a requested record should be considered a congressional document or an "agency record." (379) At the district court level, the agency actually "reserved the right" to invoke exemptions if the court disagreed with the agency's determination that the record was a congressional document and thus not subject to the FOIA. (380) On appeal, the D.C. Circuit determined that the document was at least partially an "agency record," and it remanded the case to the district court to decide the applicability of any exemption claims that the agency previously had "reserved." (381) Similarly, in LaCedra v. Executive Office for United States Attorneys, (382) the D.C. Circuit found as a matter of law that the agency's interpretation of a FOIA request was "implausible," but nonetheless explicitly permitted the agency on remand to raise exemption claims for the additional records that would be considered responsive, on the basis that "[n]othing in Maydak requires an agency to invoke any exemption applicable to a record the agency in good faith believes has not been requested." (383)

The consequence of this line of cases is that, especially within the D.C. Circuit, agencies should carefully coordinate with their principal litigation counsel in any FOIA lawsuit in which underlying FOIA exemptions or overlapping FOIA defenses are involved. (384) As a matter of general practice, a prudent course of action would be to obtain the court's permission to raise the threshold defense first in order to specifically reserve the right to invoke the remaining exemptions at a later date, if necessary. (385) Of course, if for some reason the district court does not permit this pragmatic approach, the agency, to guard against any possible finding of waiver, could raise all applicable exemption claims in its initial district court summary judgment submissions. (386) (See the further discussion of this issue under Exemption 7(A), above). Although the failure to submit an entirely adequate Vaughn affidavit will not necessarily result in a waiver of exemptions and justify the granting of summary judgment against an agency, (387) the most prudent practice for agency defendants is to ensure that their initial Vaughn affidavits contain sufficiently detailed justifications of every exemption that they plan to invoke on the basis of all known facts. (388)

Attorney Fees and Litigation Costs: Eligibility

The FOIA is one of more than one hundred different federal statutes that contain a "fee-shifting" provision permitting the trial court to award reasonable attorney fees and litigation costs if a plaintiff has "substantially prevailed." (389) The FOIA's attorney fees provision limits an award to fees and costs incurred in litigating a case brought pursuant to the FOIA; (390) accordingly, fees and other costs may not be awarded for services rendered at the administrative level. (391)

The FOIA's attorney fees provision, added as subsection (a)(4)(E) of the Act as part of the 1974 FOIA amendments, requires courts to engage in a two-step substantive inquiry: (1) Is the plaintiff eligible for an award of fees and/or costs? (2) If so, is the plaintiff entitled to the award? (392) Even if a plaintiff meets both of these tests, the award of fees and costs is entirely within the discretion of the court. (393)

A threshold eligibility matter concerns precisely who can qualify for an award of attorney fees. The Supreme Court's decision in Kay v. Ehrler (394) clearly establishes that subsection (a)(4)(E) does not authorize the award of fees to a pro se nonattorney plaintiff, because "the word 'attorney,' when used in the context of a fee-shifting statute, does not encompass a layperson proceeding on his own behalf." (395) In order to be eligible for attorney fees, therefore, a FOIA plaintiff must have a representational relationship with an attorney. (396)

Furthermore, Kay stands for the proposition that no award of attorney fees should be made to a pro se plaintiff who also is an attorney. (397) Because the fee-shifting provision of the FOIA was intended "'to encourage potential claimants to seek legal advice before commencing litigation,'" (398) and because a pro se attorney, by definition, does not seek out the "'detached and objective perspective necessary'" to litigate his FOIA case, (399) the overwhelming majority of courts have agreed with Kay and have held that a pro se attorney is not eligible for a fee award that otherwise would have had to be paid to counsel. (400) This is particularly so because "[a]n award of attorney's fees was intended to relieve plaintiffs of the burden of legal costs, not reward successful claimants or penalize the government." (401)

A pro se attorney who claims that his or her status is merely "technical" because he or she represents an undisclosed client is looked upon with disfavor. In rejecting such a claim, the Court of Appeals for the District of Columbia Circuit has declared that "status as both attorney and litigant may be a 'technicality,' but it is a legally meaningful one and not to be ignored." (402) Finding that the pro se attorney "controlled the legal strategy and presentation" of the case, the D.C. Circuit similarly denied fees for the services of that pro se attorney's lawyer-colleagues who worked under his direction, "because there was no attorney-client relationship between them." (403) Of course, if an attorney actually retains outside counsel to represent him or her, those fees may be compensable. (404)

Unlike attorney fees, the costs of litigating a FOIA suit can reasonably be incurred by, and awarded to, even a pro se litigant who is not an attorney. (405) Although a particular federal statute, 28 U.S.C.  1920, (406) lists certain items that may be taxed as costs, (407) in some instances FOIA costs have been awarded independently of this statute. (408) "Costs" in a FOIA case have been interpreted to include photocopying, postage, typing, transcription, parking, and transportation expenses, in addition to routine filing costs and marshals' fees paid at the trial level, (409) as well as the fees paid to a special master appointed by the court to review documents on its behalf. (410) However, a plaintiff cannot seek to have work done by an attorney compensated under the guise of "costs." (411)

Any plaintiff, including a State or a corporation, that engages the services of an attorney is eligible to claim attorney fees and costs. (412) By the same token, if it prevails, even a defendant agency may recover its costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, although such recoveries are uncommon. (413)

Assuming that a plaintiff qualifies for eligibility, the next step is to determine whether the plaintiff is actually eligible for a fee award under the circumstances of the case. This, in turn, requires a determination that the plaintiff has "substantially prevailed" within the meaning of subsection (a)(4)(E) of the FOIA.

This eligibility determination once consumed a considerable amount of judicial attention, as courts applied the "catalyst theory" for awarding attorney fees, which held that a plaintiff could be awarded attorney fees if his lawsuit served as a "catalyst" in achieving a voluntary change in the defendant's conduct. (414) This produced a wide variety of decisions describing what circumstances were sufficient to find eligibility for attorney fees. (415) The catalyst theory was specifically rejected, however, when the Supreme Court, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, held that a plaintiff must obtain a judicially sanctioned "alteration in the legal relationship of the parties" before fees will be awarded. (416)

Although the FOIA was not the particular statute at issue in Buckhannon, the Supreme Court there repeated its oft-expressed view that the numerous federal fee-shifting statutes, including the FOIA, should be interpreted consistently. (417) Two years after the Buckhannon decision, the Court of Appeals for the D.C. Circuit expressly applied Buckhannon's holding to the FOIA. In Oil, Chemical & Atomic Workers International Union v. Department of Energy, (418) the D.C. Circuit declared that the "substantially prevails" language of the FOIA is the "functional equivalent of the "prevailing party" language that is found in other fee-shifting statutes. (419) Extrapolating from this conclusion and explicitly applying Buckhannon, the D.C. Circuit ruled that "in order for plaintiffs in FOIA actions to become eligible for an award of attorney's fees, they must have 'been awarded some relief by [a] court' either in a judgment on the merits or in a court-ordered consent decree." (420) In other words, unless a FOIA plaintiff obtains court-ordered relief on the merits of his complaint that results in a material alteration of the legal relationship between the parties, (421) there can be no eligibility for attorney fees. (422) The D.C. Circuit has ruled that this also applies to costs. (423)

Other courts have similarly concluded that the teachings of Buckhannon apply in the FOIA context. (424) In sum, prior decisions relying on the catalyst theory to find eligibility for attorney fees in FOIA cases should no longer be controlling.

Attorney Fees and Litigation Costs: Entitlement

Even if a plaintiff satisfies the eligibility test, a court still must exercise its equitable discretion in separately determining whether that plaintiff is entitled to an attorney fee award. (425) This discretion ordinarily is guided by four traditional criteria that derive from the FOIA's legislative history. (426) These factors are: (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding had a reasonable basis in law. (427) These four entitlement factors, of course, have nothing to do with determining an appropriate fee amount; therefore, they cannot be considered in that entirely separate analysis. (428)

While any FOIA disclosure hypothetically benefits the public by generally increasing public knowledge about the government, this "broadly defined benefit" is not what Congress had in mind when it provided for awards of attorney fees. (429) Rather, the "public benefit" factor "'"speaks for an award [of attorney fees] when the complainant's victory is likely to add to the fund of information that citizens may use in making vital political choices."'" (430) Such a determination necessarily entails an evaluation of the nature of the specific information disclosed. (431) Additionally, "the degree of dissemination and likely public impact that might be expected from a particular disclosure" are highly pertinent considerations. (432) When the information released is already in the public domain, of course, this factor does not weigh in favor of a fee award. (433)

On the other hand "[m]inimal, incidental and speculative public benefit will not suffice" to satisfy the requirements of subsection (a)(4)(E). (434) It is similarly unavailing to show simply that the prosecution of the suit has compelled an agency to improve the efficiency of its FOIA processing. (435)

Moreover, it has been held by the D.C. Circuit that the notion of "public benefit" should not be grounded solely on "the potential release of present and future information" resulting from the legal precedent set by the case in which fees are sought. (436) As the D.C. Circuit perceptively noted in one case: "Such an inherently speculative observation is . . . inconsistent with the structure of FOIA itself." (437)

The second factor -- the commercial benefit to the plaintiff -- requires an examination of whether the plaintiff had an adequate private commercial incentive to litigate its FOIA demand even in the absence of an award of attorney fees. If so, then fees should be denied, (438) except in the case of news media interests, which generally "should not be considered commercial interests." (439)

The third factor -- the nature of the plaintiff's interest in the records -- often is evaluated in tandem with the second factor (440) and militates against awarding fees in cases where the plaintiff had an adequate personal incentive to seek judicial relief. (441) To disqualify a fee applicant under the second and third factors, "a motive need not be strictly commercial; any private interest will do." (442) In this regard, the use of the FOIA as a substitute for discovery has routinely been found to constitute the pursuit of a private, noncompensable interest. (443) And if a FOIA plaintiff's motives, in a rare case, should change over the course of the litigation, in that case a court should bifurcate the fee award on the basis of such shifting interests. (444)

The fourth factor -- the reasonableness of the agency's withholding -- counsels against a fee award when the agency had a reasonable basis in law for concluding that the information in issue was exempt. If an agency's position is correct as a matter of law, this factor should be dispositive. (445) The converse, however, also may be true -- namely, that "[r]ecalcitrant and obdurate behavior 'can make the last factor dispositive without consideration of any of the other factors.'" (446)

If an agency had only a "colorable basis in law" for withholding information, then this factor should be weighed with other relevant considerations to determine entitlement. (447) In general, an agency's legal basis for withholding is "reasonable" if pertinent authority exists to support the claimed exemption. (448) Even in the absence of supporting authority, withholding may also be "reasonable" where no precedent directly contradicts the agency's position. (449)

In an illustrative example, the D.C. Circuit upheld a district court's finding of reasonableness in a case in which there was "no clear precedent on the issue," (450) even though the district court's decision in favor of the agency's withholding was reversed unanimously by the court of appeals, which decision, in turn, was affirmed by a near-unanimous decision of the Supreme Court. (451) Similarly, the mere fact that an agency foregoes an appeal on the merits of a case and complies with a district court disclosure order does not foreclose it from asserting the reasonableness of its original position in opposing a subsequent fee claim. (452) When the delay in releasing records, rather than the agency's substantive claim of exemption, is challenged, that delay does not favor a fee award so long as the agency has not engaged in "obdurate behavior or bad faith." (453)

Typically, FOIA plaintiffs seek attorney fees only at the conclusion of a case. Even when the underlying action has been decided, a petition for attorney fees "survive[s] independently under the court's equitable jurisdiction." (454) The fact that an attorney fees petition is pending, moreover, does not preclude appellate review of the district court's decision on the merits. (455)

Some FOIA plaintiffs, however, have sought "interim" attorney fees before the conclusion of a case -- although such relief has been termed "inefficient" (456) and "piecemeal." (457) It is almost always clearer at the end of a FOIA case whether a plaintiff has "substantially prevailed," but sometimes a plaintiff can point to a threshold determination concerning eligibility to receive records that sufficiently supports eligibility to an interim award. (458) Of course, a plaintiff still must prove entitlement to an interim award. (459) If interim fees are approved, payment of the fees need not await final judgment in the action. (460) If an agency wishes to appeal an interim award, however, it must wait for a final court decision on the underlying merits of the case. (461)

Attorney Fees and Litigation Costs: Calculations

If a court decides to make a fee award -- either interim or otherwise -- its next task is to determine an appropriate fee amount, based upon attorney time shown to have been reasonably expended. Fee claims should be supported by well-documented, contemporaneous billing records; (462) while some courts will consider reconstructed records, the amount ultimately awarded may be reduced accordingly. (463)

The starting point in setting a fee award is to multiply the number of hours reasonably expended by a reasonable hourly rate -- a calculation that yields the "lodestar." (464) Not all hours expended in litigating a case will be deemed to have been "reasonably" expended. For example, courts have directed attorneys to subtract hours spent litigating claims upon which the party seeking the fee ultimately did not prevail. (465) In such cases, a distinction has been made between a loss on a legal theory where "the issue was all part and parcel of one [ultimately successful] matter," (466) and a rejected claim that is "truly fractionable" from the successful claim. (467) In some cases when the plaintiff's numerous claims are so intertwined that the court can discern "no principled basis for eliminating specific hours from the fee award," courts have employed a "general reduction method," allowing only a percentage of fees commensurate with the estimated degree to which that plaintiff had prevailed. (468)

Additionally, prevailing plaintiffs' counsel are obligated to exercise sound billing judgment. This means that "[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." (469) Furthermore, the D.C. Circuit has admonished that "[s]ome expense items, though perhaps not unreasonable between a first class law firm and a solvent client, are not supported by indicia of reasonableness sufficient to allow us justly to tax the same against the United States." (470) Although "contests over fees should not be permitted to evolve into exhaustive trial-type proceedings," (471) when attorney fees are awarded, the hours expended by counsel for the plaintiff pursuing the fee award also are ordinarily compensable. (472)

To determine a reasonable hourly rate -- which has been defined "as that prevailing in the community for similar work" (473) -- courts will accept affidavits from local attorneys to support hourly rate claims, but they should be couched in terms of specific market rates for particular types of litigation and they must be well supported. (474) The pertinent legal market, for purposes of calculating legal fees, is the jurisdiction in which the district court sits. (475) Within the D.C. Circuit, the standard rate most often employed is an updated version of the "Laffey Matrix," based on the eponymous court case of that name. (476)

The lodestar calculation is strongly presumed to yield the reasonable fee. Indeed, the Supreme Court has clarified that such enhancements are not available under statutes authorizing an award of attorney fees to a "prevailing or substantially prevailing party," such as the FOIA. (477) Moreover, FOIA fee awards may not be increased to provide plaintiffs' attorneys "interest" to compensate for delays in their receipt of payments for legal services rendered. (478) Also, if a case has been in litigation for a prolonged period of time, "[a]ttorneys' fees awarded against the United States must be based on the prevailing market rates at the time the services were performed, rather than rates current at the time of the award." (479)

Lastly, in ruling on a petition for attorney fees and costs, a court should provide a concise but clear explanation of its reasons for any award encompassing eligibility, entitlement, and the rationale for its calculations. (480) Upon appeal, such rulings are reviewed for abuse of discretion. (481)

Sanctions

The FOIA does not authorize any award of monetary damages to a requester, (482) either for an agency's unjustified refusal to release requested records, (483) or for alleged improper disclosure of information. (484) The Act does, however, provide that, in certain narrowly prescribed circumstances, agency employees who arbitrarily or capriciously withhold information may be subject to disciplinary action. Specifically, subsection (a)(4)(F) of the FOIA, as amended, provides:

Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the [United States Office of] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. (485)

Thus, there are three distinct jurisdictional prerequisites to the initiation of a Special Counsel investigation under the FOIA: (1) the court must order the production of agency records found to be improperly withheld; (2) it must award attorney fees and litigation costs; and (3) it must issue a specific "written finding" of suspected arbitrary or capricious conduct. The imposition of sanctions, when all three prerequisites have been met, has occurred infrequently. (486) Nevertheless, agency FOIA personnel should not overlook the importance and viability of this sanction provision. (487)

Additionally, a provision of the Whistleblower Protection Act of 1989 (488) authorizes the Office of Special Counsel to investigate certain allegations concerning arbitrary or capricious withholding of information requested under the FOIA. Unlike subsection (a)(4)(F) of the FOIA, this provision does not even require a judicial finding; indeed, no lawsuit need even be filed to invoke this other sanction mechanism. (489)

Further, as in all civil cases, courts may exercise their discretion to impose sanctions on FOIA litigants as well as on government counsel who have violated court rules or shown disrespect for the judicial process. (490) One court has even referred an Assistant United States Attorney who handled a FOIA requester's criminal case to the Department of Justice's Office of Professional Responsibility following a finding that he prematurely "destroyed records responsive to [the] FOIA request while [the FOIA] litigation was pending." (491) In general, claims of "bad faith" actions by a government agency ordinarily are considered in administrative proceedings or in judicial decisions on whether to grant attorney fees. (492)

In determining whether to impose sanctions on plaintiffs, district courts ordinarily review the number and content of court filings and their effect on the courts as indicia of frivolousness or harassment. (493) For example, as a sanction under Rule 11 of the Federal Rules of Civil Procedure, a frequent FOIA requester who filed nearly fifty FOIA lawsuits over the course of eight years and who routinely failed to oppose motions to dismiss, was ordered to show cause in any subsequent lawsuit why the principle of res judicata did not bar the intended suit. (494) As a general rule, however, "mere litigiousness alone does not support the issuance of an injunction" against filing further lawsuits. (495)

In a related vein, the Prison Litigation Reform Act of 1995 (496) provides that an action in forma pauperis cannot be filed by a prisoner who, on three or more prior occasions while incarcerated, "brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." (497) Although this statute applies only to suits that have been brought in federal court, it applies both to federal prisoners and to state prisoners alike. (498)

Considerations on Appeal

As noted previously, an exceptionally large percentage of FOIA cases are decided by means of summary judgment. (499) While a decision on a motion for summary judgment usually is immediately appealable, not all orders granting judgment to a party on a FOIA issue are immediately appealable. (500) The grant of an Open America stay of proceedings, for example, is not an appealable final decision. (501) Similarly, it has been held that an "interim" award of attorney fees is not appealable until the conclusion of the district court proceedings in the case. (502)

Once a case properly is on appeal, though, the government ordinarily must obtain a stay of any trial court disclosure order if disclosure is required by a date certain or, even worse, "forthwith." (503) The government's motion for such a stay should be granted as a matter of course as denial would destroy the status quo and would cause irreparable harm to the government appellant by mooting the issue on appeal. (504) In comparison, granting such a stay causes relatively minimal harm to the appellee. (505)

The circuit courts of appeals do not have uniform legal standards governing the scope of appellate review of FOIA decisions. The Courts of Appeals for the District of Columbia, (506) Second, (507) Sixth, (508) and Eighth Circuits, (509) have applied a purely de novo standard of review. Such a standard is entirely consistent with the nearly universal practice of adjudicating FOIA cases on the basis of summary judgment motions -- which generally are utilized only in the absence of any material factual disputes when the moving party is entitled to a judgment as a matter of law. (510)

By contrast, the Courts of Appeals for the Third, (511) Fifth, (512) and Seventh Circuits, (513) while recognizing that issues of law generally are reviewed de novo, hold that review of FOIA cases, because of their "unique nature," (514) should be undertaken under a two-pronged deferential standard: Whether the district court had an adequate factual basis for its decision and, if so, whether that decision is clearly erroneous. Similarly, the Fourth, (515) Ninth, (516) Tenth, (517) and Eleventh Circuits (518) distinguish between the district court's factual basis for its decision, which is reviewed under a clearly erroneous standard, and the district court's application of FOIA exemptions to approve withholding of documents -- which, in these circuits, most often is reviewed de novo. (519) The end result has caused some confusion in the standard for appellate review for FOIA cases, (520) because it is difficult to distinguish between the review standard for "any factual conclusions that place a document within a stated exemption of FOIA" (which is "clearly erroneous" in these circuits (521)) and the review standard for "whether a document fits within one of FOIA's prescribed exemptions" (522) (which is de novo).

This confusion is further illustrated by FOIA decisions of the First Circuit. In an early ruling, that circuit court eschewed any deference to the district court's decision in FOIA matters. (523) Then, in two decisions issued less than five months apart more than a decade ago, it appeared to articulate opposite standards. (524) It applied a de novo standard of review in considering the district court's determination of whether the government supplied an adequate Vaughn Index. (525) This issue, however, logically falls within the category of whether the district court had an adequate factual basis for its determination, a question which is subject to de novo review even in those circuits employing the more deferential, two-pronged test. (526) In its most recent opinion, though, the First Circuit alluded to its use of a "clearly erroneous" standard of review. (527)

In sum, the case law on this point simply cannot be reconciled among the various circuits, and conflicting decisions are not uncommon even within the same circuit.

On another issue involving appeal considerations, the Court of Appeals for the District of Columbia Circuit, in a case of first impression, ruled that the standard of review of a district court decision on that portion of the FOIA's expedited access provision -- which authorizes expedited access "in cases in which the person requesting the records demonstrates a compelling need" (528) -- is de novo. (529) "Precisely because FOIA's terms apply nationwide," the D.C. Circuit decided not to accord deference to any particular agency's interpretation of this provision of the FOIA. (530) At the same time, however, the D.C. Circuit held that if an agency were to issue a rule consistent with the statutory language that permits expedition "in other cases determined by the agency," (531) that rule would be entitled to judicial deference. (532) In any event, once an agency has acted upon the underlying request for which expedited access was requested, the FOIA itself removes court oversight of the agency's decision on the issue of expedition. (533)

In contrast, it is well settled that a trial court decision refusing to allow discovery will be reversed only if the court abused its discretion. (534) Similarly, a "reverse" FOIA case -- which is brought under the Administrative Procedure Act (535) -- is reviewed only with reference to whether the agency acted in a manner that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," based upon the "whole [administrative] record." (536) (For a further discussion of this point, see "Reverse" FOIA, Standard of Review, below.)

It is noteworthy that in a routine FOIA case where the merits and law of the case are so clear as to justify summary disposition, summary affirmance or reversal may be appropriate. (537) An otherwise routine case, however, could be remanded if the district court fails to make a segregability finding -- even if the district court's decision is in all other respects entirely correct. (538) (For a further discussion of this point, see Litigation Considerations, "Reasonably Segregable" Requirements, above.) Other procedures are available for discharging the appellate court's functions in unusual procedural circumstances. (539)

It also is noteworthy that courts ordinarily will not consider issues raised for the first time on appeal by FOIA litigants. (540) For this reason, agencies should ensure that they raise or preserve all exemption claims at the district court level. (541) Failure to do so might result in waiver of these claims. (542) (See Litigation Considerations, Waiver of Exemptions in Litigation, above.)

Lastly, Rule 39(a) of the Federal Rules of Appellate Procedure is applied to award costs to the government when it is successful in a FOIA appeal; the D.C. Circuit has held that this rule's presumption favoring such awards of costs is fully applicable in FOIA cases. (543)

    1. Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70, 85 (D.D.C. 2003).

    2. Miscavige v. IRS, 2 F.3d 366, 367 (11th Cir. 1993); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (noting "peculiar nature of the FOIA").

    3. Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01).

    4. See FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (discussing new Attorney General FOIA Memorandum in context of previous such memoranda); cf. FOIA Update, Vol. XIV, No. 3, at 1 ("President and Attorney General Issue New FOIA Policy Memoranda").

    5. 5 U.S.C.  552(a)(4)(B); see also Arriaga v. West, No. 00-1171, 2000 WL 870867, at *2 (Vet. App. June 21, 2000) (commenting that Court of Appeals for Veterans Claims has no jurisdiction over FOIA claims); Bernard v. United States, 59 Fed. Cl. 497, 503 (2004) (declaring that Court of Federal Claims has no jurisdiction over FOIA matters); Rogers v. United States, 15 Ct. Cl. 692, 698 (1988) (holding that there is no FOIA jurisdiction in Court of Claims); In re Lucabaugh, 262 B.R. 900, 905 (E.D. Pa. 2000) (finding FOIA claims insufficient to confer jurisdiction on bankruptcy court).

    6. See Kennecott Utah Copper Corp. v. United States Dep't of the Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996) ("The 'judicial review provisions apply to requests for information under subsections (a)(1) and (a)(2) of section 552 as well as under subsection (a)(3).'" (quoting Am. Mail Line v. Gulick, 411 F.2d 696, 701 (D.C. Cir. 1969))).

    7. See Kennecott, 88 F.3d at 1203 (holding that remedial provision of FOIA limits relief to ordering disclosure of documents); Dietz v. O'Neill, No. 00-3440, 2001 U.S. Dist. LEXIS 3222, at *2 (D. Md. Feb. 15, 2001) (holding that remedial provision of FOIA limits relief to ordering disclosure of documents), aff'd per curiam, 15 Fed. Appx. 42 (4th Cir. 2001); Green v. NARA, 992 F. Supp. 811, 817 (E.D. Va. 1998) (concluding that unless agency records have been improperly withheld, "'a district court lacks jurisdiction to devise remedies to force an agency to comply with FOIA's disclosure requirements'" (quoting United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989))). But cf. Pub. Citizen v. Dep't of State, 276 F.3d 634, 645 (D.C. Cir. 2002) (declaring that agency's "cut-off" policy for conducting FOIA record searches is unreasonable "both generally and as applied to [plaintiff's] request"); Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 1999 WL 1051963, at *2 (W.D. Pa. Oct. 12, 1999) (suggesting that "[Administrative Procedure Act] review is available to enforce provisions of the FOIA for which the FOIA provides no express remedy"); Pub. Citizen v. Lew, No. 97-2891, slip op. at 4 (D.D.C. July 14, 1998) (refusing to dismiss claim alleging noncompliance with FOIA requirement to publish descriptions of "major information systems" compiled under Paperwork Reduction Act, 44 U.S.C. 3501-20 (2000), because even in the absence of an express judicial review provision in the FOIA, the Administrative Procedure Act, 5 U.S.C. 704 (2000), provides a "strong presumption that Congress intend[ed] judicial review of administrative action").

    8. See Kennecott, 88 F.3d at 1203 ("We think it significant, however, that  552(a)(4)(B) is aimed at relieving the injury suffered by the individual complainant, not by the general public. It allows district courts to order 'the production of any agency records improperly withheld from the complainant,' not agency records withheld from the public." (quoting 5 U.S.C.  552(a)(4)(B) (emphasis added by court))); cf. Perales v. DEA, 21 Fed. Appx. 473, 474 (7th Cir. 2001) (dismissing an action brought to obtain an "implementing regulation," because such a request "described only material that would be available in the public domain," not material "properly covered" by the FOIA). But see Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 2001 U.S. Dist. LEXIS 3492, at *28 (W.D. Pa. Feb. 7, 2001) (deciding that the Administrative Procedure Act confers jurisdiction on a court to order publication of an index under subsection (a)(2) of the FOIA even though the FOIA itself does not), appeal dismissed voluntarily, No. 01-1868 (3d Cir. Apr. 24, 2002).

    9. See Kennecott, 88 F.3d at 1203 ("Section 552(a)(4)(B) authorizes district courts to order the "production" of agency documents, not 'publication.'"); see also Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997) (treating as "conceded for the purposes of this case only" that sole remedy under section 552(a)(4)(B) is order directing agency to produce records to complaining party). But see Tax Analysts v. IRS, No. 94-923, 1998 WL 419755, at **4-6 (D.D.C. May 1, 1998) (ordering disclosure of exceptionally large volume of records upon remand and also ordering uniquely fashioned remedy that, in accordance with 5 U.S.C.  552(a)(2)(D), such FOIA-processed records be placed in reading room on weekly basis as they are processed), appeal dismissed voluntarily, No. 98-5252 (D.C. Cir. Aug. 11, 1998).

    10. 445 U.S. 136, 150 (1980).

    11. See, e.g., Ellis v. IRS, No. 02-1976, 2003 U.S. Dist. LEXIS 24829, at *11 (D. Colo. Dec. 29, 2003) (dismissing claim for lack of subject matter jurisdiction because all documents were released prior to lawsuit); Armstead v. Gray, No. 3-03-1350, 2003 WL 21730737, at **1-2 (N.D. Tex. July 23, 2003) (finding no basis for jurisdiction under FOIA when plaintiff alleged only that agency employees "improperly accessed" plaintiff's records); Tota v. United States, No. 99-0445E, 2000 WL 1160477, at *2 (W.D.N.Y. July 31, 2000) (dismissing claim for lack of subject matter jurisdiction because the "[p]laintiff has not provided any evidence that the FBI improperly withheld any agency records"); Shafmaster Fishing Co. v. United States, 814 F. Supp. 182, 184 (D.N.H. 1993) ("The court thus lacks subject matter jurisdiction if the information was properly withheld under FOIA exemptions."); see also Goldgar v. Office of Admin., 26 F.3d 32, 34 (5th Cir. 1994) (per curiam) (pointing out that where agency had no records responsive to plaintiff's request, court had no jurisdiction under the FOIA); Rae v. Hawk, No. 98-1099, slip op. at 3 (D.D.C. Mar. 7, 2001) (finding no subject matter jurisdiction over claims against agencies that received no FOIA request from plaintiff); Unigard Ins. Co. v. Dep't of the Treasury, 997 F. Supp. 1339, 1341 (S.D. Cal. 1997) ("The court presumes a lack of jurisdiction until the party asserting [it] proves otherwise."); cf. Kennecott, 88 F.3d at 1202 (dismissing, for lack of jurisdiction, claim seeking court-ordered publication of information, when court concluded that no such remedy exists under FOIA). But see Payne Enters. v. United States, 837 F.2d 486, 490-92 (D.C. Cir. 1988) (finding repeated, unacceptably long agency delays in providing nonexempt information sufficient to create jurisdiction); Pub. Citizen v. Office of the United States Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992) (deciding that court has jurisdiction to consider "agency's policy to withhold temporarily, on a regular basis, certain types of documents").

    12. Williams v. Reno, No. 95-5155, 1996 WL 460093, at *2 (D.C. Cir. Aug. 7, 1996) (disagreeing that the district court lacked jurisdiction over a FOIA claim, because the plaintiff alleged improper withholding and, in any event, "the district court has subject matter jurisdiction over FOIA claims" (citing Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1996))); Torres v. CIA, 39 F. Supp. 2d 960, 962 n.3 (N.D. Ill. 1999) (suggesting that an agency's "summary judgment motion" predicated on a lack of subject matter jurisdiction was "an imprecise use of the notion of 'jurisdiction' [and that if the] CIA's position were sound, no court could ever decide a FOIA case in favor of a governmental defendant on the merits, for it would lose jurisdiction as soon as it found that no documents responsive to a plaintiff's FOIA request had been improperly withheld"); Mace v. EEOC, 37 F. Supp. 2d 1144, 1146 (E.D. Mo. 1999) (deciding that dismissal for lack of jurisdiction was "inappropriate," but that dismissal for failure to state a claim was applicable because court lacked further jurisdiction to grant relief), aff'd, 197 F.3d 329 (8th Cir. 1999); Prado v. Ilchert, No. 95-1497, 1997 WL 383239, at *3 (N.D. Cal. June 10, 1997) (dismissing for failure to state claim upon which relief can be granted under FOIA when agency to which request was made lacked responsive records); see also Hart v. FBI, No. 95-2110, 1996 WL 403016, at *3 n.11 (7th Cir. July 16, 1996) (although plaintiff's "los[s] on the merits does not retroactively revoke a district court's jurisdiction," district court's grant of summary judgment to government deprived it of further jurisdiction to act).

    13. See, e.g., Kissinger, 445 U.S. at 139 ("When an agency has demonstrated that it has not "withheld" requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA."); Bloom v. Soc. Sec. Admin., 72 Fed. Appx. 733, 735 (10th Cir. July 3, 2003) (finding that once documents were released, "there existed no 'case or controversy' sufficient to confer subject matter jurisdiction on the federal court").

    14. Forsham v. Harris, 445 U.S. 169, 182 (1980), overruled in part by Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (making certain research data generated by private federal grantees subject to FOIA requests).

    15. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 145 (1989); Kissinger, 445 U.S. at 155 n.9 ("[T]here is no FOIA obligation to retain records prior to [receipt of a FOIA] request."); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (per curiam) ("[T]he fact that responsive documents once existed does not mean that they remain in the [agency's] custody today or that the [agency] had a duty under FOIA to retain the records."); Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (finding no remedy for records destroyed prior to FOIA request); Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 22 (D.D.C. 2003) ("FOIA does not impose a document retention requirement on government agencies."); Blanton v. United States Dep't of Justice, 182 F. Supp. 2d 81, 85 (D.D.C. 2002) (rejecting plaintiff's contention that agency should have contacted former employees about location of responsive records, and awarding agency summary judgment), aff'd, 64 Fed. Appx. 787 (D.C. Cir. 2003) (per curiam); Folstad v. Bd. of Governors of the Fed. Reserve Sys., No. 1:99-124, 1999 U.S. Dist. LEXIS 17852, at *5 (W.D. Mich. Nov. 16, 1999) (declaring that the FOIA "does not independently impose a retention obligation an agency and that "[e]ven if the agency failed to keep documents that it should have kept, that failure would create neither responsibility under [the] FOIA to reconstruct those documents nor liability for the lapse"), aff'd, 234 F.3d 1268 (6th Cir. 2000) (unpublished table decision); Bartlett v. United States Dep't of Justice, 867 F. Supp. 314, 316 (E.D. Pa. 1994) (dismissing case for lack of jurisdiction after finding that "[plaintiff's] request seeks presently nonexistent material"); cf. Morris v. Comm'r, No. F-97-5031, 1997 WL 842413, at *4 (E.D. Cal. Nov. 25, 1997) (finding that a request for determination of tax status "was not a request for a document in existence" and thus was not "a valid FOIA request"). But see also Cal-Almond, Inc. v. USDA, No. 89-574, slip op. at 2-3 (E.D. Cal. Mar. 12, 1993) (ruling that when agency returned requested records to submitter four days after denying requester's administrative appeal, in violation of its own records-retention requirements, and court determined that such records were required to be disclosed, agency must seek return of records from submitter for disclosure to requester), appeal dismissed per stipulation, No. 93-16727 (9th Cir. Oct. 26, 1994); OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," 64 Fed. Reg. 54,926 (Oct. 8, 1999) (requiring agencies to respond to FOIA requests for certain grantee research data by first obtaining that data from grantee, in implementation of Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999).

    16. See FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining importance of agency "cut-off" dates, and advising that "date-of-search cut-off" should be used absent compelling circumstances); see also 28 C.F.R. 16.4(a) (2004) (Department of Justice FOIA regulation specifying that its standard "cut-off" practice "include[s] only records in its possession as of the date [that it] begins its search for them") (emphasis added).

    17. See Pub. Citizen, 276 F.3d at 643-44 (refusing to approve agency's "date-of-request cut-off" policy, and pointing out that it effectively results in withholding of potentially large number of relevant agency records); McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (cautioning agencies against adopting policies the net effect of which "is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them"), vacated on other grounds on panel reh'g & reh'g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983).

    18. 5 U.S.C. 552(f)(2).

    19. See FOIA Update, Vol. XVII, No. 4, at 2 (discussing applicability of FOIA to electronic records).

    20. See, e.g., United States v. Alcorn, 6 Fed. Appx. 315, 316-17 (6th Cir. 2001) (affirming the dismissal of a FOIA claim against a district court "because the federal courts are specifically excluded from FOIA's definition of 'agency'"); McDonnell v. Clinton, No. 97-5179, 1997 WL 812536, at *1 (D.C. Cir. Dec. 29, 1997) (dismissing FOIA claim brought solely against the President); Ortez v. Wash. County, 88 F.3d 804, 811 (9th Cir. 1996) (dismissing FOIA claims against county and county officials); Troyer v. McCallum, No. 03-0143, 2002 WL 32365922, at *1 (W.D. Wis. Mar. 14, 2002) (holding that FOIA "creates no obligations for state agencies"); Allnut v. United States Dep't of Justice, 99 F. Supp. 2d 673, 678 (D. Md. 2000) (ruling that trustees of bankruptcy estates are "private" and thus are not subject to FOIA), aff'd sub. nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Ferguson v. Ala. Criminal Justice Info. Ctr., 962 F. Supp. 1446, 1447 (M.D. Ala. Apr. 23, 1997) (noting that FOIA does not apply to state agencies); Anderson v. Fed. Pub. Defender, No. 95-1485, slip op. at 1 (D.D.C. Mar. 28, 1996) (The "Federal Public Defender is not an agency subject to the requirements of the Freedom of Information Act."); Mamarella v. County of Westchester, 898 F. Supp. 236, 237-38 (S.D.N.Y. 1995) (disallowing FOIA claim against state or local agencies or against individuals); cf. Moye, O'Brien, O'Rourke, Hogan & Pickert v. National R.R. Passenger Corp., No. 6:02-CV-126, 2003 WL 21146674, at *6 (M.D. Fla. May 13, 2003) ("[A]lthough Amtrak is not a federal agency, it must comply with FOIA pursuant to statute.") (appeal pending). See generally Price v. County of San Diego, 165 F.R.D. 614, 620 (S.D. Cal. 1996) (emphasizing that the FOIA applies only "to authorities of the Government of the United States").

    21. See Tax Analysts, 492 U.S. at 151 (generalizing that "agency records which do not fall within one of the exemptions are improperly withheld"); Abraham & Rose, P.L.C. v. United States, 138 F.2d 1075, 1078 (6th Cir. 1998) (indicating that agency denying FOIA request bears burden of establishing that requested information falls within exemption and remanding case for consideration of appropriate exemptions).

    22. See, e.g., Perales v. DEA, 21 Fed. Appx. 473, 474 (7th Cir. Oct. 17, 2001) (affirming dismissal because information requested does not exist); Coalition on Political Assassinations v. DOD, 12 Fed. Appx. 13, 14 (D.C. Cir. 2001) (finding search to be adequate even though no records were located; "[t]hat responsive documents may have once existed does not establish that they remain in the DOD's custody today"); Sorrells v. United States, No. 97-5586, 1998 WL 58080, at *1 (6th Cir. Feb. 6, 1998) (finding no improper withholding when agency does not have document with "full, legible signature"); Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (finding no remedy for records destroyed prior to FOIA request); Cal-Almond, Inc. v. USDA, 960 F.2d 105, 108-09 (9th Cir. 1992) (adjudging that absent improper conduct by government, FOIA does not require recreation of destroyed records); see also FOIA Update, Vol. XII, No. 2, at 5 (advising agencies to afford administrative appeal rights to FOIA requesters in "no record" situations (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 67 (D.C. Cir. 1990))); cf. Urban v. United States, 72 F.3d 94, 95 (8th Cir. 1995) (holding that district court erred by dismissing Complaint prior to service on ground that no records existed; case remanded for submission of evidence as to existence of responsive records).

    23. See, e.g., Gabel v. Comm'r, No. 94-16245, 1995 WL 267203, at *2 (9th Cir. May 5, 1995) (finding no improper withholding because "it was uncontested" that agency provided complete response to request); Burr v. Huff, No. 04-53, 2004 WL 253345, at *2 (W.D. Wis. Feb. 6, 2004) ("If no documents exist, nothing can be withheld, and jurisdiction cannot be established."); Reg'l Mgmt. Corp. v. Legal Servs. Corp., 10 F. Supp. 2d 565, 573-74 (D.S.C. 1998) (concluding that "no case or controversy exists" because agency produced all requested documents); D'Angelica v. IRS, No. S-94-1998, 1996 U.S. Dist. LEXIS 6681, at *3 (E.D. Cal. Apr. 25, 1996) (granting agency summary judgment when all requested records either did not exist or were fully disclosed).

    24. See, e.g., GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 387 (1980) ("To construe the lawful obedience of an injunction issued by a federal district court with jurisdiction to enter such a decree as 'improperly' withholding documents under the Freedom of Information Act would do violence to the common understanding of the term 'improperly' and would extend the Act well beyond the intent of Congress."); Freeman v. United States Dep't of Justice, 723 F. Supp. 1115, 1120 (D. Md. 1988) (refusing to order the release of records covered by pre-existing nondisclosure order of sister district court); see also FOIA Update, Vol. IV, No. 3, at 5 (counseling that requests for records subject to court order forbidding disclosure ordinarily should be denied). But see also FOIA Update, Vol. XIII, No. 3, at 5 (advising that "protective orders" issued by agency administrative law judges do not qualify as court orders); cf. Riley v. FBI, No. 00-2378, 2001 U.S. Dist. LEXIS 2632, at *7 (D.D.C. Feb. 12, 2002) (finding that "pen register" materials were sealed and therefore were properly withheld on basis of Exemption 3).

    25. See Wagar v. United States Dep't of Justice, 846 F.2d 1040, 1047 (6th Cir. 1988) (holding that validity of nondisclosure orders does not depend on their being based on FOIA exemptions).

    26. See, e.g., Morgan v. United States Dep't of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991) ("[T]he proper test for determining whether an agency improperly withholds records under seal is whether the seal, like an injunction, prohibits the agency from disclosing the records."); Armstrong v. Executive Office of the President, 830 F. Supp. 19, 23 (D.D.C. 1993) ("[I]t is also clear that the Protective Order was not intended to act as a limitation on the Government's ability to determine the final disposition of these classified materials."); Senate of P.R. v. United States Dep't of Justice, No. 84-1829, 1993 U.S. Dist. LEXIS, at **18-19 (D.D.C. Aug. 24, 1993) (finding that agency declaration failed to satisfy Morgan test, and requiring more detailed explanation of intended effect of sealing order); McDonnell Douglas Corp. v. NASA, No. 91-3134, slip op. at 1-2 (D.D.C. July 12, 1993) ("While this court's sealing Order temporarily precluded release, that order was not intended to operate as the functional equivalent of an injunction prohibiting release. It was only approved by the court for the purposes of expediting this litigation and protecting information . . . until this lawsuit was resolved."); see also Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1460-61 & n.7 (D.C. Cir. 1984) (determining that a federal district court policy -- one "now enshrined in an order [that was] not issued as part of a concrete case or controversy before [that] court" -- does not constitute the type of "court order" contemplated in GTE Sylvania); cf. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 791 (3d Cir. 1994) ("[W]here it is likely that information is accessible under a relevant freedom of information law, a strong presumption exists against granting or maintaining an order of confidentiality whose scope would prevent disclosure of that information pursuant to the relevant freedom of information law.").

    27. See Spurlock v. FBI, 69 F.3d 1010, 1016-18 (9th Cir. 1995) (concluding that when court finds records exempt under FOIA, it has no "inherent" authority to order disclosure of agency information just because it might conflict with depositions or other public statements of informant).

    28. See Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082, 1087 (9th Cir. 1997) ("We conclude that a district court lacks inherent power, equitable or otherwise, to exempt materials that FOIA itself does not exempt."); Weber Aircraft Corp. v. United States, 688 F.2d 638, 645 (9th Cir. 1982) ("The careful balancing of interests which Congress attempted to achieve in the FOIA would be upset if courts could exercise their general equity powers to authorize nondisclosure of material not covered by a specific exemption."), rev'd on other grounds, 465 U.S. 792 (1984); see also Abraham & Rose, 138 F.3d at 1077 ("Basing a denial of a FOIA request on a factor unrelated to any of the[] nine exemptions clearly contravenes [the FOIA]."); cf. Halperin v. United States Dep't of State, 565 F.2d 699, 706 (D.C. Cir. 1977) ("The power of a court to refuse to order the release of information that does not qualify for one of the nine statutory exemptions exists, if at all, only in "exceptional circumstances." (citing Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971))). But see Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 20 (1973) (suggesting, in dicta, that the FOIA does not "limit the inherent powers of an equity court"); Campos v. INS, 32 F. Supp. 2d 1337, 1345-46 (S.D. Fla. 1998) (same).

    29. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771-72 (1989); see also FOIA Update, Vol. X, No. 2, at 3-4 (discussing Reporters Committee decision).

    30. See, e.g., Chin v. United States Dep't of the Air Force, No. 99-3127, slip op. at 2 (5th Cir. June 15, 2000) (refusing to allow disclosure of exempt information under protective order); Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996) (overruling district court's order limiting access to persons other than plaintiff "is not authorized by FOIA"); Spurlock, 69 F.3d at 1016 (finding that district court erred when, after determining that requested material was exempt, it nevertheless ordered disclosure of any "falsified statements" made to FBI about requester); cf. Maricopa, 108 F.3d at 1088-89 (rejecting, as irrelevant, plaintiff's offer to agree not to further disclose requested information: "FOIA does not permit selective disclosure of information only to certain parties . . . . [O]nce the information is disclosed to [this requester], it must also be made available to all members of the public who request it.").

    31. NARA v. Favish, 124 S. Ct. 1570, 1581 (2004), reh'g denied, No. 02-409, 2004 WL 1085633 (U.S. May 17, 2004); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (observing that Court firmly reinforced the general FOIA rule that "release to one is release to all").

    32. See 5 U.S.C. 552(a)(4)(B) (providing for venue in any of four locations).

    33. See Cosio v. INS, No. 97-5380, slip op. at 3 (C.D. Cal. Dec. 29, 1997) (finding venue improper for plaintiffs who do not reside or have their principal places of business in judicial district and who do not allege that their records were maintained there); Schwarz v. IRS, 998 F. Supp. 201, 203 (N.D.N.Y. 1998) (finding venue improper where agency maintains regional office unless substantial part of activity complained of also occurred there), appeal dismissed for lack of merit, No. 98-6065 (2d Cir. July 30, 1998); Handlery Hotels, Inc. v. United States Consumer Prod. Safety Comm'n, No. 97-1100, slip op. at 3 (S.D. Cal. Dec. 5, 1997) (finding venue improper where based on location of plaintiff's counsel); Keen v. FBI, No. 97-2657, 1997 U.S. Dist. LEXIS, at *2 (N.D. Cal. Oct. 17, 1997) (finding venue improper where pro se plaintiff housed temporarily); see also Morrell v. United States Dep't of Justice, No. 96-4356, 1996 WL 732499, at *1 (N.D. Cal. Dec. 16, 1996) (transferring pro se action improperly filed in Northern District of California to Eastern District of California, where plaintiff resided); cf. McHale v. FBI, No. 99-1628, slip op. at 8-9 (D.D.C. Nov. 7, 2000) (dismissing case under "first-filed" rule in favor of similar litigation pending in another jurisdiction).

    34. See, e.g., FOIA Update, Vol. XI, No. 2, at 2 (citing "universal venue" provision of FOIA, 5 U.S.C.  552(a)(4)(B)).

    35. See, e.g., Matlack, Inc. v. EPA, 868 F. Supp. 627, 630 (D. Del. 1994) ("The United States Court of Appeals for the District of Columbia Circuit has long been on the leading edge of interpreting the parameters of what a federal agency must disclose and may withhold consistent with the terms of FOIA."); see also FOIA Update, Vol. VI, No. 3, at 1-2 (describing FOIA litigation process within D.C. Circuit).

    36. See Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988).

    37. See, e.g., Arevalo-Franco v. INS, 889 F.2d 589, 590-91 (5th Cir. 1989) (ruling that resident alien may bring FOIA suit in district where he in fact resides).

    38. See, e.g., FOIA Update, Vol. VI, No. 3, at 2 (noting that under the FOIA's "universal venue provision," 5 U.S.C. 552(a)(4)(B), any FOIA lawsuit can be filed in the District Court for the District of Columbia).

    39. Compare Jones v. NRC, 654 F. Supp. 130, 132 (D.D.C. 1987) (declaring that "Congress has made clear [in 16 U.S.C. 831g(a) (2000)] that the venue statute that permits [service of] process against federal agencies [28 U.S.C. 1391(e) (2000)] does not apply to TVA"), with Murphy v. TVA, 559 F. Supp. 58, 59 (D.D.C. 1983) (finding a "strong presumption that Congress intended FOIA actions against the TVA to be maintainable in the District of Columbia").

    40. (2000).

    41. See generally Ross v. Reno, No. 95-CV-1088, 1996 WL 612457, at **3-4 (E.D.N.Y. Aug. 13, 1996) (discussing factors in favor of and in opposition to transfer of case to neighboring jurisdiction).

    42. See, e.g., Cecola v. FBI, No. 94 C 4866, 1995 WL 645620, at *3 (N.D. Ill. Nov. 1, 1995) (transferring remainder of case to district where remaining records and government's declarant are located, where plaintiff operates business, and where activities described in requested records presumably took place); Southmountain Coal Co. v. Mine Safety & Health Admin., No. 94-0110, slip op. at 2-3 (D.D.C. Mar. 10, 1994) (justifying transfer of suit to district where corporate requester resides and has principal place of business and where criminal case on which request is based is pending, on grounds that "a single court [handling] both FOIA and criminal discovery would obviate the possibility of contradictory rulings, and would prevent the use of FOIA as a mere substitute for criminal discovery"); Bauer v. United States, No. Civ. 91-374A, slip op. at 3 (W.D.N.Y. Feb. 3, 1992) (finding venue improper where pro se suit filed; action transferred to jurisdiction where records located); Housley v. United States Dep't of Justice, No. 89-436, slip op. at 3-4 (D.D.C. Nov. 13, 1989) (transferring case to district where criminal proceeding against plaintiff was held and where evidence obtained by government's electronic surveillance allegedly was improperly withheld); cf. Envtl. Crimes Project v. EPA, 928 F. Supp. 1, 1-2 (D.D.C. 1995) (finding that "[t]he interest of justice clearly favors transfer of this case," but absent "precise" information as to location of records sought, declining to order transfer in view of "substantial weight due to plaintiff's choice of forum"). But see In re Scott, 709 F.2d 717, 721-22 (D.C. Cir. 1983) (issuing writ of mandamus and remanding case when district court sua sponte transferred case, without determination of whether venue was proper in other forum, merely in effort to reduce burden of "very large number of in forma pauperis cases").

    43. See, e.g., City of Chicago v. United States Dep't of the Treasury, No. 01 C 3835, 2001 WL 1173331, at *3 (N.D. Ill. Oct. 4, 2001) (finding "comity" inapposite when a related case seeking much of the same information at issue is before a court of appeals); see also McHale v. FBI, No. 99-1628, slip op. at 8-9 (D.D.C. Nov. 7, 2000) (applying "first-filed" rule to dismiss case when similar litigation was already pending in another jurisdiction); Hunsberger v. United States Dep't of Justice, No. 93-1945, slip op. at 1 (D.D.C. Mar. 16, 1994) (concluding that lack of responsiveness of court in which similar action was previously filed is "inadequate" ground to maintain independent action in second court); Beck v. United States Dep't of Justice, No. 88-3433, 1991 U.S. Dist. LEXIS 11179, at **15-16 (D.D.C. Jan. 31, 1991), summary affirmance granted in pertinent part & denied in part, No. 91-5292 (D.C. Cir. Nov. 19, 1992), aff'd on remaining issues, 997 F.2d 1489 (D.C. Cir. 1993); see also Envtl. Crimes Project, 928 F. Supp. at 2 (denying government's transfer motion, but ordering stay of proceedings pending resolution of numerous discovery disputes in related cases in other jurisdiction); FOIA Update, Vol. VI, No. 3, at 6 ("[G]iving a [FOIA] litigant more than one opportunity in court is a 'luxury that cannot be afforded.'" (quoting Charles Alan Wright, Law of Federal Courts 678 (4th ed. 1983))).

    44. See United States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001) (finding a "colorable defense" based on the FOIA, which justified removal); see also, e.g., Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 930, 932 (C.D. Ill. 2002) (indicating that United States removed state FOIA case pursuant to "federal question doctrine," and ultimately finding that information at issue was exempt under FOIA and therefore should not be disclosed).

    45. (2000).

    46. 245 F.3d at 693.

    47. See United States Dep't of Commerce v. Assembly of Cal., 501 U.S. 1272 (1991) (staying preliminary injunction); Aronson v. HUD, 869 F.2d 646, 648 (1st Cir. 1989) (denying preliminary injunction); Robbins v. United States Bureau of Land Mgmt., 219 F.R.D. 685, 687 (D. Wyo. 2004) (denying as premature a motion to compel production of documents that were the subject of multiple FOIA requests); Beta Steel Corp. v. NLRB, No. 2:97 CV 358, 1997 WL 836525, at *2 (N.D. Ind. Oct. 22, 1997) (denying preliminary injunction); see also Cullinane v. Arnold, No. 97-779, 1998 U.S. Dist. LEXIS 5575, at *4 (C.D. Cal. Mar. 24, 1998) (denying writ of mandamus because FOIA provides adequate remedy); see also Al-Fayed v. CIA, No. 00-2092, slip op. at 18 (D.D.C. Dec. 11, 2000) (reminding plaintiffs, who twice before had petitioned for a temporary restraining order, that a preliminary injunction amounts to "extraordinary" relief, which must be granted "sparingly"), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); cf. Dorsett v. United States Dep't of Justice, No. 00-1730, 2004 WL 440466, at *12 (D.D.C. Mar. 10, 2004) (describing plaintiff's motion for injunction to prevent agency from "not taking any action honoring or denying" FOIA request, but dismissing it because court has no jurisdiction to make "advisory findings" regarding agency conduct towards FOIA requesters); Wiedenhoeft v. United States, No. 02-728, 2002 WL 385002, at *1 (D. Md. Mar. 8, 2002) (refusing to issue temporary restraining order to force "immediate compliance" with plaintiff's FOIA requests by moving them "to the head of the queue forthwith").

    48. See Nation Magazine v. United States Dep't of State, 805 F. Supp. 68, 72 (D.D.C. 1992); Ray v. Reno, No. 94-1384, slip op. at 3 (D.D.C. Oct. 24, 1995), appeal dismissed for lack of prosecution, No. 96-5005 (D.C. Cir. Dec. 26, 1996); Hunt v. United States Marine Corps, No. 94-2317, slip op. at 2 (D.D.C. Oct. 28, 1994); see also Mayo v. United States Gov't Printing Office, 839 F. Supp. 697, 700 (N.D. Cal. 1992) (finding fact that FOIA expressly authorizes injunctive relief does not divest district court of obligation to "exercise its sound discretion," relying on traditional legal standards, in granting such relief (citing Weinberger v. Romero Barcelo, 456 U.S. 305, 312 (1982))), aff'd, 9 F.3d 1450 (9th Cir. 1993).

    49. See Aronson, 869 F.2d at 648 ("To issue the preliminary injunction discloses the names, permanently injuring the interest HUD seeks to protect . . . ."); see also Hunt, No. 94-2317, slip op. at 5 (D.D.C. Oct. 28, 1994) (denying temporary restraining order, in part on basis of strong "public interest in an 'orderly, fair and efficient administration of the FOIA'"); cf. Maine v. United States Dep't of the Interior, No. 00-122, 2001 WL 98373, at *3 (D. Me. Feb. 5, 2001) (granting stay because "the loss of the right to appeal alone convinces this Court that this factor weighs strongly in favor of Defendants"), aff'd & vacated in part on the merits, 285 F.3d 126 (1st Cir.), amended & superseded, 298 F.3d 60 (1st Cir. 2002).

    50. See generally FOIA Update, Vol. XII, No. 3, at 1-2 (discussing comparable situation of "unstayed" disclosure orders).

    51. See Kissinger, 455 U.S. at 150 (absent improper withholding, FOIA confers no "[j]udicial authority to devise remedies and enjoin agencies"); NLRB v. Sears, 421 U.S. 132, 147-48 (1975) (once it is determined that withheld information falls within one of FOIA's exemptions, FOIA "'does not apply' to such documents" (quoting Act)).

    52. See Perdue Farms, Inc. v. NLRB, 927 F. Supp. 897, 906 (E.D.N.C. 1996) (granting injunction mandating processing of month-old FOIA request pertaining to challenged union election "immediately and with all deliberate speed").

    53. 5 U.S.C. 552(a)(6)(E)(i)(I)-(II); see, e.g., 22 C.F.R. 171.12(c)(4) (2004) (Department of State regulation under which expedited processing may be granted if "[s]ubstantial humanitarian concerns would be harmed by the [agency's] failure to process [the requested records] immediately").

    54. See, e.g., Wilbur v. CIA, 273 F. Supp. 2d 119, 123 (D.D.C. 2003) ("Although [plaintiff] is now without a lawyer, he is still required to follow the basic rules of court procedure."), aff'd on other grounds, 355 F.3d 675 (D.C. Cir. 2004) (per curiam).

    55. (2000).

    56. 824 F.2d 52, 55-56 (D.C. Cir. 1987); see also, e.g., Aftergood v. CIA, 225 F. Supp. 2d 27, 29 (D.D.C. 2002) (noting that section 2401(a) is a "jurisdictional condition attached to the government's waiver of sovereign immunity," and dismissing Complaint filed five months too late because the statute of limitations "must be strictly construed"); Lighter v. IRS, No. 00-00289, 2001 U.S. Dist. LEXIS 3483, at *4 (D. Haw. Feb. 27, 2001) (dismissing Complaint filed eight years after plaintiff exhausted his administrative remedies, two years too late); McClain v. United States Dep't of Justice, No. 97-C-0385, 1999 WL 759505, at *4 (N.D. Ill. Sept. 1, 1999) (dismissing Complaint after calculating that cause of action was filed three years after statute of limitations expired), aff'd, No. 00-3540, 2001 WL 964212 (7th Cir. Aug. 21, 2001); Madden v. Runyon, 899 F. Supp. 217, 226 (E.D. Pa. 1995) (finding that even assuming plaintiff exhausted his administrative remedies, statute of limitations would have expired four years prior to commencement of suit); see also Peck v. CIA, 787 F. Supp. 63, 66 (S.D.N.Y. 1992) (refusing to waive the statute of limitations because to do so would be "a waiver of sovereign immunity," which "cannot be relaxed based on equitable considerations," but noting that "there is nothing in the statute that prevents plaintiff from refiling an identical request . . . and thereby restarting the process").

    57. 824 F.2d at 57-59; see Peck v. CIA, 787 F. Supp. 63, 65-66 (S.D.N.Y. 1992) (once constructive exhaustion period has run, statute of limitations is not tolled while request for information is pending before agency).

    58. Nat'l Archives & Records Admin., General Records Schedule, Schedule 14 (1998).

    59. Id.; see also Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 28 n.51 (Dec. 1987) (advising that agencies should be sure to maintain any "excluded" records for purposes of possible further review (citing FOIA Update, Vol. V, No. 4, at 4 (advising same regarding "personal" records))); FOIA Update, Vol. XVIII, No. 1, at 5-6 (advising that particular provision of Electronic FOIA amendments, 5 U.S.C.  552(a)(3)(B), does not require agencies to alter their records-disposition or records-maintenance practices).

    60. (2000); see, e.g., Schwarz v. United States Dep't of the Treasury, No. 00-5453, 2001 WL 674636, at *1 (D.C. Cir. May 10, 2001) (declaring that "appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits").

    61. See, e.g., Willis v. FBI, 274 F.3d 531, 532-33 (D.C. Cir. 2001) (citing the local court rules as the most appropriate basis upon which to decide a question of appointment of counsel in a FOIA case); Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992) (providing "nonexclusive" list of factors to be considered on questions of appointment of counsel) (non-FOIA case); Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (same) (non-FOIA case).

    62. See Willis v. FBI, No. 98-5071, 1999 WL 236891, at *1 (D.C. Cir. Mar. 19, 1999) (requiring remand when no reasons were provided for refusal to appoint counsel).

    63. See, e.g., Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268 F. Supp. 2d 1101, 1102 (D.N.D. 2003).

    64. See 5 U.S.C.  552(a)(4)(C) (2000).

    65. Federal Courts Improvement Act, 28 U.S.C.  1657 (2000) (repealing 5 U.S.C.  552(a)(4)(D) (1982), which provided that FOIA proceedings generally "take precedence over all cases on the docket and shall be . . . expedited in every way"); see also Freedom Communications, Inc. v. FDIC, 157 F.R.D. 485, 487 (C.D. Cal. 1994) ("The Court offers its assurance to all concerned that it will continue to handle all matters in this action in an expeditious manner. However, we do not see the value in issuing an order that does no more than reiterate policies already announced by statute and the court itself."); FOIA Update, Vol. VI, No. 2, at 6 (explaining statutory revision regarding expedition of FOIA actions).

    66. See 5 U.S.C. 552(a)(4)(B); see also Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999) (observing that de novo standard of review comports with congressional intent); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (explaining that review is "de novo").

    67. See 5 U.S.C.  552(a)(4)(B); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998) ("The government bears the burden of justifying its decision to withhold the requested information pursuant to a FOIA exemption."); Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 228 (1st Cir. 1994) (same); cf. Trenerry v. United States Dep't of the Treasury, No. 92-5053, 1993 WL 26813, at *5 (10th Cir. Feb. 5, 1993) (recognizing that although district court used phrase "arbitrary and capricious" in discussing scope of review, its decision should be upheld if "reviewing the entire order clearly reveals that the court performed a de novo review and correctly placed the burden on IRS").

    68. See, e.g., Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (reiterating that agency affidavits in Exemption 1 cases are entitled to "substantial weight" (citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))); Snyder v. CIA, 230 F. Supp. 2d 17, 22 (D.D.C. 2002) (describing "substantial weight" to be given to agency declarations and affidavits concerning classification, provided declarations "'contain reasonable specificity [of] detail'" (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980))); Halpern v. FBI, No. 94-365, 2002 WL 31012157, at *7 (W.D.N.Y. Aug. 31, 2001) (magistrate's recommendation) ("'[S]ubstantial deference' must be given to Vaughn affidavits in the context of national security." (quoting Diamond v. FBI, 707 F.2d 75, 79 (2d Cir. 1983))), adopted (W.D.N.Y. Oct. 16, 2001); see also Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003) (observing that "the judiciary is in an extremely poor position to second-guess the executive's judgment in this area") (Exemption 7 case), cert. denied, 124 S. Ct. 1041 (2004).

    69. 5 U.S.C. 552(a)(4)(A)(vii); see, e.g., Judicial Watch, Inc. v. United States Dep't of Justice, 122 F. Supp. 2d 13, 16 (D.D.C. 2000).

    70. 5 U.S.C. 552(a)(6)(E)(i)(I).

    71. See Al-Fayed v. CIA, 254 F.3d 300, 306-08 (D.C. Cir. 2001) (holding, in a case of first impression, that "a district court must review de novo an agency's denial of a request for expedition under FOIA").

    72. Id. at 307 n.7.

    73. 5 U.S.C. 701-06 (2000).

    74. See 5 U.S.C. 552(a)(4)(B) (granting district courts "jurisdiction to enjoin the agency from withholding agency records improperly withheld from complainant"); 5 U.S.C. 552(f)(1) (defining the term "agency").

    75. See, e.g., Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993) (per curiam) (dismissing suit brought against prosecutor, because plaintiff "sued the wrong party"); Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) ("Neither the Freedom of Information Act nor the Privacy Act creates a cause of action for a suit against an individual employee of a federal agency."); Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268 F. Supp. 2d 1101, 1102 (D.N.D. 2003) (same); Eison v. Kallstrom, 75 F. Supp. 2d 113, 115-16 (S.D.N.Y. 1999) (recognizing that FOIA creates no cause of action against individual defendants, but allowing pro se plaintiff to amend Complaint to substitute agency as defendant); Barvick v. Cisneros, 941 F. Supp. 1015, 1017 n.2 (D. Kan. 1996) (ruling that the only proper party defendant in a FOIA action is the agency, not an individual federal official); see also Payne v. Minihan, No. 97-0266SC, slip op. at 14-15 (D.N.M. Apr. 30, 1998) (agreeing with majority view that agency personnel are not proper parties to FOIA suit, but nevertheless declining to dismiss action, because agency did "not challenge" suit on basis of improper party and was "on notice" of suit), aff'd sub nom. Payne v. NSA, 232 F.3d 902 (10th Cir. 2000) (unpublished table decision).

    76. See Sanders v. United States, No. 96-5372, 1997 WL 529073, at *1 (D.C. Cir. July 3, 1997) (dismissing Complaint because United States is not agency subject to FOIA); Maginn v. United States, No. 92-313, 1995 WL 355241, at *4 (W.D. Pa. May 29, 1992) (same (citing Nat'l W. Life Ins. Co. v. United States, 512 F. Supp. 454, 463 (N.D. Tex. 1980))).

    77. 5 U.S.C.  552(a)(4)(B) (emphasis added). But see Peralta v. United States Attorney's Office, 136 F.3d 169, 172 (D.C. Cir. 1998) (dictum) (suggesting, despite both statutory language and agency structure, that "the FBI is subject to the FOIA in its own name").

    78. See Maxxam, Inc. v. FDIC, No. 98-0989, slip op. at 5-6 (D.D.C. Jan. 29, 1999) (finding that only plaintiff's attorney was real party in interest when FOIA request was made in attorney's, not plaintiff's, name); Payne, No. 97-0266SC, slip op. at 12-14 (D.N.M. Apr. 30, 1998) (dismissing plaintiff who sued as "concerned citizen" because "[i]t is the filing of his requests and their actual or constructive denials which distinguishes the harm suffered by [the actual requester] from the harm incurred by [the concerned citizen]"); Wade v. Dep't of Commerce, No. 96-0717, slip op. at 4 (D.D.C. Mar. 26, 1998) (finding failure to exhaust administrative remedies because plaintiff was not "'the person making'" the FOIA request (quoting 5 U.S.C.  552(a)(6)(A)(I))); Unigard Ins. Co. v. Dep't of the Treasury, 997 F. Supp. 1339, 1342 (S.D. Cal. 1997) ("A person whose name does not appear on the request for disclosure lacks standing to sue under FOIA, even if his interest was asserted in the request." (citing United States v. McDonnell, 4 F.3d 1227, 1237 (3d Cir. 1993))); cf. Burka v. HHS, 142 F.3d 1286, 1290-91 (D.C. Cir. 1998) (refusing to award attorney fees to plaintiff who claimed he was suing for unnamed party, because of "dangers inherent in recognizing an 'undisclosed' client as the real plaintiff"); Doe v. FBI, 218 F.R.D. 256, 260 (D. Colo. 2003) (refusing to allow FOIA plaintiff to proceed pseudonymously). But see Archibald v. Roche, No. 01-1492, slip op. at 2 (D.D.C. Mar. 29, 2002) (allowing a plaintiff whose name did not appear on the initial FOIA request to amend his complaint in order to name a proper plaintiff, "in the interest of justice"); Olsen v. United States Dep't of Transp. Fed. Transit Admin., No. 02-00673, 2002 WL 31738794, at *2 n.2 (N.D. Cal. Dec. 2, 2002) (refusing to find lack of standing when plaintiff was not identified by his attorney in initial request, because agency's administrative appeal response itself acknowledged plaintiff's identity).

    79. See, e.g., In re Wade, 969 F.2d 241, 247-48 (7th Cir. 1992) (explaining that agency cannot avoid request or withhold documents merely by referring requester to another agency where documents originated); see also FOIA Update, Vol. XV, No. 3, at 6 (advising agencies of record-referral responsibilities); cf. Hardy v. DOD, No. 99-523, 2001 WL 34354945, at *11 (D. Ariz. Aug. 27, 2001) (ruling that an agency was not required to forward a FOIA request for personnel records about one of its retired employees to OPM, where the records were now maintained). But cf. Snyder v. CIA, 230 F. Supp. 2d 17, 25 (D.D.C. 2002) (noting with approval agency's practice of closing pending requests that require coordination with other agencies even before coordination has been completed).

    80. See, e.g., Williams v. FBI, No. 92-5176, slip op. at 2 (D.C. Cir. May 7, 1993); Oglesby v. United States Dep't of the Army, 920 F.2d 57, 69 & n.15 (D.C. Cir. 1990); Fitzgibbon v. CIA, 911 F.2d 755, 757 (D.C. Cir. 1990); Greenberg v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 11, 18 (D.D.C. 1998) (requiring agency or component that referred documents to justify nondisclosure); Jan-Xin Zang v. FBI, 756 F. Supp. 705, 706-07 & n.1 (W.D.N.Y. 1991); see also FOIA Update, Vol. XII, No. 3, at 3-4 ("OIP Guidance: Referral and Consultation Procedures"); FOIA Update, Vol. XIV, No. 3, at 6-8 (Department of Justice memorandum setting forth White House consultation process); cf. Peralta, 136 F.2d at 175 (remanding for consideration of whether referral procedures could result in "improper withholding" of referred documents).

    81. See Foman v. Davis, 371 U.S. 178, 182 (1962) (non-FOIA case); Katzman v. Sessions, 156 F.R.D. 35, 38 (E.D.N.Y. 1994) (holding that to defeat a motion to supplement pleadings, "the nonmovant must demonstrate either bad faith on the part of the moving party, the futility of the claims asserted within the application, or undue prejudice to the nonmovant") (non-FOIA case).

    82. See, e.g., Miss. Ass'n of Coops. v. Farmers Home Admin., 139 F.R.D. 542, 543 (D.D.C. 1991).

    83. See Trenerry v. IRS, No. 90-C-444, 1993 WL 565354, at *3 (N.D. Okla. Oct. 28, 1993); Szymanski v. DEA, No. 93-1314, 1993 WL 433592, at **1-3 (D.D.C. Oct. 5, 1993); Slade, No. 93-177-2, slip op. at 1-2 (E.D. Va. Mar. 17, 1993). But see Eison, 75 F. Supp. 2d at 116 n.2 (recognizing that plaintiffs proceeding pro se are given "considerable latitude to correct superficial pleading errors").

    84. See Friedman v. FBI, 605 F. Supp. 306, 314-15 (N.D. Ga. 1984) (denying amendment when sought six years into litigation without sufficient cause); see also Becker v. IRS, 1992 WL 67849, at *3 (N.D. Ill. Mar. 27, 1992) ("Any attempt by the [plaintiffs] to expand the nature of the search at this late date must be rejected.").

    85. See, e.g., Beech v. Comm'r, 190 F. Supp. 2d 1183, 1187 (D. Ariz. 2001) (dismissing Complaint with prejudice because it "could not be made viable by amendment"); Rzeslawski v. United States Dep't of Justice, No. 97-1156, slip op. at 7 (D.D.C. Mar. 16, 1999) (disallowing amendment to add defendants because administrative remedies were not exhausted); Lanter v. Dep't of Justice, No. 93-34, slip op. at 1-2 (W.D. Okla. Aug. 30, 1993) (noting that plaintiffs' amended complaint does "not show exhaustion of their administrative remedies, or other exception to the exhaustion requirements"), aff'd on other grounds, 19 F.3d 33 (10th Cir. 1994) (unpublished table decision).

    86. See, e.g., Szymanski, 1993 WL 433592, at *2 ("This Court will not permit a F.O.I.A. complaint, properly filed, to become the narrow edge of a wedge which forces open the court house door to unrelated claims against unrelated parties."); Miss. Ass'n, 139 F.R.D. at 544 ("Where, however, the complaint, as amended, would radically alter the scope and nature of the case and bears no more than a tangential relationship to the original action, leave to amend should be denied."); see also Trenerry, No. 90-C-444, slip op. at 5 (N.D. Okla. Oct. 28, 1993) ("Plaintiff's motion to amend the pleadings is untimely, seeks to add a new unrelated cause of action and appears on its face to be frivolous."). But see also Eison v. Kallstrom, 75 F. Supp. 2d 113, 114, 117 (S.D.N.Y. 1999) (allowing plaintiff to amend original Complaint in order to allege improper withholding of records, where original Complaint had asked for injunction against "pattern and practice" of delayed agency responses, which court deemed "now moot").

    87. Allnutt v. United States Trustee, No. 97-02414, slip op. at 8 (D.D.C. July 31, 1999) (allowing an amendment seeking to add six FOIA claims, but noting that further attempts to amend would be disallowed in order to prevent plaintiff from advancing "a never-ending case by perpetually amending his complaint to add the latest FOIA request"), appeal dismissed for lack of juris., No. 99-5410 (D.C. Cir. Feb. 2, 2000).

    88. Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam) (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61-64, 65 n.9 (D.C. Cir. 1990)); see, e.g., Almy v. United States Dep't of Justice, No. 96-1207, 1997 WL 267884, at *3 (9th Cir. May 7, 1997) ("[T]he FOIA requires exhaustion of administrative remedies before the filing of a lawsuit."); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) ("The FOIA clearly requires a party to exhaust all administrative remedies before seeking redress in the federal courts."); McDonnell v. United States, 4 F.3d 1227, 1240, 1241 (3d Cir. 1993) (same); Voinche v. United States Dep't of the Air Force, 983 F.2d 667, 669 (5th Cir. 1993) ("We conclude that the FOIA should be read to require that a party must present proof of exhaustion of administrative remedies prior to seeking judicial review."); see also Scherer v. United States Dep't of Educ., 78 Fed. Appx. 687, 690 (10th Cir. 2003) (affirming dismissal based on failure to exhaust because while plaintiff's "labors may have been exhausting . . . he failed to pursue any of his requests as far as he could").

    89. Oglesby, 920 F.2d at 61; see also Taylor, 30 F.3d at 1369 ("Allowing a FOIA requester to proceed immediately to court to challenge an agency's initial response would cut off the agency's power to correct or rethink initial misjudgments or errors."); Hogan v. Huff, No. 00-Civ.-6753, 2002 WL 1359722, at *4 (S.D.N.Y. June 21, 2002) (explaining that administrative appeal procedures "provide agencies an opportunity to correct internal mistakes").

    90. See, e.g., McDonnell, 4 F.3d at 1240 & n.9 (affirming dismissal for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies); Trenerry v. IRS, No. 95-5150, 1996 WL 88459, at *1 (10th Cir. Mar. 1, 1996) (confirming that district court lacked subject matter jurisdiction "where plaintiff has failed to exhaust her administrative remedies"); Hymen v. MSPB, 799 F.2d 1421, 1423 (9th Cir. 1986) (same); Scherer v. United States, 241 F. Supp. 2d 1270, 1277 (D. Kan. 2003) (granting government's motion to dismiss under Rule 12(b)(1) because plaintiff failed to exhaust administrative remedies), aff'd, 78 Fed. Appx. 687 (10th Cir. 2003); Redding v. Christian, 161 F. Supp. 2d 671, 674 (W.D.N.C. 2001) ("[W]hen this action was filed, this court lacked jurisdiction over the subject matter of this case as a matter of law because plaintiff had not sought any administrative remedies, much less exhausted them."); Maples v. USDA, No. 97-5663, slip op. at 6 (E.D. Cal. Jan. 15, 1998) ("When a complaint contains an unexhausted request in its prayer for relief, the court must dismiss this portion for lack of subject matter jurisdiction."); Rabin v. United States Dep't of State, 980 F. Supp. 116, 119 (E.D.N.Y. 1997) (suggesting that defense of failure to exhaust is most properly raised in FRCP Rule 12(b)(1) dismissal motion); Thomas v. Office of the United States Attorney, 171 F.R.D. 53, 55 (E.D.N.Y. 1997) ("Failure to properly exhaust . . . precludes a federal court of subject matter jurisdiction over a requester's claims."); Jones v. Shalala, 887 F. Supp. 210, 214 (S.D. Iowa 1995) (declaring that failure to exhaust administrative remedies deprives court of jurisdiction to compel disclosure of records).

    91. See 5 U.S.C. 704 (2000) (authorizing judicial review only of "[a]gency action made reviewable by statute and every final agency action for which there is no other adequate remedy in a court") (emphasis added); see also Darby v. Cisneros, 509 U.S. 137, 153 (1993) (explaining that exhaustion of administrative remedies is "effectively codified" in APA) (non-FOIA case).

    92. See, e.g., Hildalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (noting that the exhaustion requirement is not jurisdictional because "the FOIA does not unequivocally make it so," but then explaining that exhaustion is required if "'the purposes of exhaustion' and the 'particular administrative scheme' support such a bar" (quoting Oglesby 920 F.2d at 61)); Taylor, 30 F.3d at 1367 n.3 (stating that an unexhausted FOIA claim "should have been dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted"); Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir. 1988) (ruling that plaintiff failed to state a claim when he failed to allege exhaustion of administrative remedies); Flowers v. IRS, 307 F. Supp. 2d 60, 66 (D.D.C. 2004) (stating that "the exhaustion requirement is a prudential consideration, not a jurisdictional prerequisite"); Gambini v. United States Customs Serv., No. 5:01-CV-300, 2001 U.S. Dist. LEXIS 21336, at *4 (N.D. Tex. Dec. 21, 2001) (dismissing Complaint under Rule 12(b)(6) because plaintiff had not exhausted administrative remedies); cf. Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995) (per curiam) (declaring it inappropriate for district court to find lack of jurisdiction, because federal defendant is not an agency for FOIA purposes; dismissal for failure "to state a claim upon which relief could be granted" found proper). But see, e.g., Oglesby, 920 F.2d at 61-62 ("Courts have consistently confirmed that the FOIA requires exhaustion . . . before an individual may seek relief in the courts.").

    93. See, e.g., Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 32 (D.D.C. 2002) (citing Oglesby, 920 F.2d at 61-62; Makuch v. FBI, No. 99-1094, 2000 WL 915640, at *2 (D.D.C. Jan. 5, 2000) ("Under FOIA, a party must exhaust available administrative remedies before seeking judicial review." (citing Dettmann v. United States Dep't of Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986))); Trueblood v. United States Dep't of Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996).

    94. See Gillin v. IRS, 980 F.2d 819, 822-23 (1st Cir. 1992) (per curiam) (ruling that when "flawed" request was predicated upon a misunderstanding with agency but, within one week after submission, information provided by agency should have prompted requester to revise his request, requester cannot salvage request by clarification in litigation); Hillman v. Comm'r, No. 1:97-cv-760, 1998 U.S. Dist. LEXIS 12431, at *15 (W.D. Mich. July 10, 1998) (rejecting plaintiff's attempt to have discovery demand treated as access request because "a governmental agency is not required to respond to interrogatories disguised as a FOIA request"); Smith v. Reno, No. C-93-1316, 1996 U.S. Dist. LEXIS 5594, at *8 n.3 (N.D. Cal. Apr. 23, 1996) ("A request for documents in a complaint does not constitute a proper discovery request, much less a proper FOIA request."), aff'd sub nom. Smith v. City of Berkeley, 133 F.3d 929 (9th Cir. 1998) (unpublished table decision); Juda v. United States Dep't of Justice, No. 94-1521, slip op. at 4, 6 (D.D.C. Mar. 28, 1996) (plaintiff cannot interpose new request through vehicle of "motion for leave to pursue discovery"); Pray v. Dep't of Justice, 902 F. Supp. 1, 2-3 (D.D.C. 1995) (disallowing request to FBI field office "made only in response to the government's motion for summary judgment"), aff'd in part & remanded in part on other grounds, No. 95-5383, 1996 WL 734142, at *1 (D.C. Cir. Nov. 20, 1996); Pollack v. United States Dep't of Justice, No. 89-2569, 1993 WL 293692, at *4 (D. Md. July 23, 1993) (court lacks subject matter jurisdiction when request not submitted until after litigation filed), aff'd on other grounds, 49 F.3d 115 (4th Cir. 1995); see also Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) ("Requiring an additional search each time the agency receives a letter that clarifies a prior request could extend indefinitely the delay in processing new requests."); cf. Payne, No. 97-0266SC, slip op. at 12 (D.N.M. Apr. 30, 1998) ("The FOIA creates a cause of action only for persons who have followed its procedures.").

    95. See Thomas, 171 F.R.D. at 55; see also Moore v. Aspin, 916 F. Supp. 32, 36 (D.D.C. 1996) ("Sending an appeal to a different agency does not initiate a proper FOIA request for that agency to conduct a search.").

    96. See Hammie v. Soc. Sec. Admin., 765 F. Supp. 1224, 1226 (E.D. Pa. 1991) (stating that in considering government's dismissal motion, court is required to accept plaintiff's averments that he submitted requests); see also Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 631847, at **15-16 (D.D.C. Aug. 22, 1995) (ruling that when plaintiff introduces copy of appeal letter and attests that it was sent, case should not be dismissed for failure to exhaust administrative remedies).

    97. See 5 U.S.C.  552(a)(6)(C) (2000); see also FOIA Update, Vol. XVII, No. 4, at 2 (describing Electronic FOIA amendments' modification of Act's basic time limit from ten to twenty working days); Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C. 2002) ("The FOIA is considered a unique statute because it recognizes a constructive exhaustion doctrine for purposes of judicial review upon the expiration of certain relevant FOIA deadlines.").

    98. 5 U.S.C.  552(a)(6)(A)(i).

    99. See, e.g., Pollack, 49 F.3d at 118-19 ("Under FOIA's statutory scheme, when an agency fails to comply in a timely fashion with a proper FOIA request, it may not insist on the exhaustion of administrative remedies unless the agency responds to the request before suit is filed."); Campbell v. Unknown Power Superintendent of the Flathead Irrigation & Power Project, No. 91-35104, 1992 WL 84315, at *1 (9th Cir. Apr. 22, 1992) (noting that exhaustion is deemed to have occurred if agency fails to respond to request within statutory time limit); Gabel v. IRS, No. 97-1653, 1998 U.S. Dist. LEXIS 12467, at *10 (N.D. Cal. June 25, 1998) (deciding that a plaintiff who did not receive a timely response "was entitled to file his complaint without further pursuing an administrative appeal or seeking further explanation"); cf. Anderson v. USPS, 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998) (finding that "vague positive response" from agency received after statutory time limit allows plaintiff to claim "constructive" exhaustion), aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision); see also FOIA Update, Vol. IV, No. 1, at 6 (discussing exhaustion).

    100. Judicial Watch, Inc. v. FBI, No. 01-1216, slip op. at 8 (D.D.C. July 26, 2002) (citing Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2089, slip op. at 11 (D.D.C. July 14, 1998) (citing, in turn, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) ("The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed."))). But cf. Judicial Watch, Inc. v. United States Dep't of Energy, 191 F. Supp. 2d 138, 139 (D.D.C. 2002) (erroneously permitting premature Complaint to be cured by filing of "supplemental" Complaint).

    101. See Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252, 270 (D.D.C. 2004) (refusing to grant plaintiff's request for immediate disclosure of documents as remedy for insufficient declaration); Barvick v. Cisneros, 941 F. Supp. 1015, 1019-20 (D. Kan. 1996) ("This court is persuaded that an agency's failure to respond within ten days does not automatically entitle a FOIA requester to summary judgment."); M.K. v. United States Dep't of Justice, No. 96 CIV. 1307, 1996 WL 509724, at *3 (S.D.N.Y. Sept. 9, 1996) ("[T]he government's failure to respond to M.K.'s request within the statutory . . . time limit does not give M.K. the right to obtain the requested documents; it merely amounts to an exhaustion of administrative remedies and allows M.K. to bring this lawsuit.").

    102. See, e.g., Oglesby, 920 F.2d at 63 (ruling that if requester receives agency response before filing suit -- even one that is untimely -- requester must submit an administrative appeal before filing suit); Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 26 (D.D.C. 2003) (same); see also FOIA Update, Vol. XII, No. 2, at 3-5 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision").

    103. 920 F.2d at 63.

    104. Id. at 63-64; see, e.g., Almy v. United States Dep't of Justice, No. 96-1207, 1997 WL 267884, at **2-3 (7th Cir. May 7, 1997) (requester's failure to appeal agencies' "no records" responses constitutes a "failure to exhaust his administrative remedies"); Taylor, 30 F.3d at 1369 ("We therefore join the District of Columbia Circuit and the Third Circuit on this issue."); McDonnell, 4 F.3d at 1240 (applying Oglesby); Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C. 2002) (same); Samuel v. United States Dep't of Justice, No. 93-0348, slip op. at 3-4 (D. Idaho Feb. 3, 1995) (same); Sloman v. United States Dep't of Justice, 832 F. Supp. 63, 66-67 (S.D.N.Y. 1993) (same); see also FOIA Update, Vol. XII, No. 2, at 3-5 ("OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision").

    105. See Pollack, 49 F.3d at 119 ("[I]t was error for the district court to conclude that it was somehow deprived of jurisdiction because [the requester] failed to file administrative appeals . . . during the litigation."); Crooker v. Tax Div. of the United States Dep't of Justice, No. 94-30129, 1995 WL 783236, at *8 (D. Mass. Nov. 17, 1995) (magistrate's recommendation) ("Plaintiff's complaint, in seeking the 'disclos[ure of] agency records being improperly withheld' remained alive to test the adequacy of the disclosures, once made."), adopted (D. Mass. Dec. 15, 1995), aff'd on other grounds per curiam, No. 96-1094 (1st Cir. Aug. 20, 1996). But see Voinche v. FBI, 999 F.2d 962, 963-64 (5th Cir. 1993) (holding that in action based on agency's failure to comply with FOIA's time limits for responses, disclosures made only after litigation commenced rendered action moot).

    106. See Ruotolo v. Dep't of Justice, 53 F.3d 4, 9 (2d Cir. 1995); Oglesby, 920 F.2d at 65; Nurse, 231 F. Supp. 2d at 327-28 (finding constructive exhaustion because agency failed to inform requester of his right to appeal adverse decision); Lamb v. IRS, 871 F. Supp. 301, 303 (E.D. Mich. 1994) (declaring that failure to inform requester of his right to appeal constitutes failure to comply with statutory time limits, thus permitting lawsuit); see also FOIA Update, Vol. VI, No. 4, at 6 (advising of consequences of agency failure to provide requester with statement of administrative appeal rights).

    107. See Nurse, 231 F. Supp. 2d at 328-29 (chiding three agency departments for all failing to notify plaintiff of his right to judicial review of denial of administrative appeal).

    108. See Kay v. FCC, 884 F. Supp. 1, 2-3 (D.D.C. 1995) (letter which "gave the Plaintiff notice of his right to secure further agency review of the adverse determination, of the manner in which he could exercise that right, of the time limits for filing such request, and of the regulatory provisions containing general procedures pertaining to review applications" held to "more than adequately fulfill[] the purposes behind the notice provision"); see also Jones, No. 94-2294, slip op. at 5 (D. Md. Jan. 18, 1995) (requester not relieved of appeal obligation simply because agency response included statement that requester would be notified if missing records were later located; response letter also advised that it constituted "final action" of agency component and notified plaintiff of right to administratively appeal).

    109. See Oglesby, 920 F.2d at 65 n.9 (citing regulations of agencies involved); Hamilton Sec. Group, Inc. v. HUD, 106 F. Supp. 2d 23 (D.D.C. 2000) (finding that requester failed to exhaust administrative remedies when it submitted administrative appeal one day after agency's regulatory time period had expired), summary affirmance granted, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001) (per curiam); Voinche v. CIA, No. 96-1708, slip op. at 3 (W.D. La. Nov. 25, 1996) (plaintiff's filing of administrative appeal eleven months after agency's response justifies dismissal notwithstanding delay of almost four years by agency in responding to request), appeal dismissed as frivolous, 119 F.3d 3 (5th Cir. 1997) (unpublished table decision); Jones v. United States Dep't of Justice, No. 94-2294, slip op. at 6 (D. Md. Jan. 18, 1995) (awarding summary judgment to government when time limit prescribed by agency regulations for administrative appeal had expired); Kay, 884 F. Supp. at 3 ("[B]ecause the time period within which the plaintiff might have filed his administrative appeal has long since expired, the case shall be dismissed with prejudice."); Lanter v. Dep't of Justice, No. 93-0034, slip op. at 2 (W.D. Okla. July 30, 1993) (court compelled to dismiss FOIA claim when plaintiff's administrative appeal from agency's response not filed in timely manner), aff'd, 19 F.3d 33 (10th Cir. 1994) (unpublished table decision); see also FOIA Update, Vol. XII, No. 2, at 4-5 (analyzing procedural requirements in light of Oglesby decision). But cf. Kennedy v. United States Dep't of Justice, No. 93-0209, slip op. at 2-3 (D.D.C. July 12, 1993) (when requester's affidavit attests to mailing of timely administrative appeal but agency affidavit denies receipt, court may permit requester additional time to submit another appeal and agency additional time to respond; "nothing in the FOIA statute or regulations requires the Plaintiff to do more than mail his administrative appeal in a timely fashion").

    110. See Martinez v. FBI, 3 Gov't Disclosure Serv. (P-H)  83,005, at 83,435 (D.D.C. Dec. 1, 1982); FOIA Update, Vol. XIII, No. 3, at 5 (advising that acknowledgment letters simply do not constitute responses for purposes of statutory deadlines); cf. Dickstein v. IRS, 635 F. Supp. 1004, 1006 (D. Alaska 1986) (letter referring requester to alternative "procedures which involved less red tape and bureaucratic hassle" not deemed to be denial).

    111. See FOIA Post, "Anthrax Mail Emergency Delays FOIA Correspondence" (posted 11/30/01) (noting that "[t]he processing of a FOIA request, with all applicable statutory deadlines, is triggered by an agency's 'receipt of . . . such request'" (quoting 5 U.S.C.  552(a)(6)(A)(I))). But see Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1077 n.5 (9th Cir. 2004) (holding without evident basis that constructive exhaustion occurred despite fact that plaintiff's administrative appeal was not received because agency mailroom became infected with anthrax spores).

    112. See Brumley v. United States Dep't of Labor, 767 F.2d 444, 445 (8th Cir. 1985) (noting that request needed to be forwarded to proper office, so one-to-two day slippage in response time therefore was justified); Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2089, slip op. at 9-11 (D.D.C. July 14, 1998) (dismissing Complaint filed "prior to the existence of any statutory obligation" because FOIA offices had not even received request that was improperly addressed prior to suit being filed); Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C. 1995) (because plaintiff submitted request to IRS Headquarters, not district office where he resided, "it is as if he had made no request at all on which the IRS could render a determination"); United States v. Agunbiade, No. 90-610, 1995 WL 351058, at *6 (E.D.N.Y. May 10, 1995) ("In failing to direct his requests, in accordance with agency-specific rules, to the appropriate parties and agencies from which he sought information, [the requester] ignored the most fundamental dictates of FOIA."), aff'd sub nom. United States v. Osinowo, Nos. 95-1334, 95-1519, 1996 WL 20514 (2d Cir. Jan. 19, 1996). But cf. Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op. at 13 (D.D.C. June 26, 1998) (while acknowledging that complaint was amended to add request for which "the administrative process had [not] run its course," nevertheless awarding interim attorney fees based upon notion that lawsuit, not preexisting administrative process, resulted in release of records in question), interlocutory appeal dismissed for lack of juris., 182 F.3d 981 (D.C. Cir. 1999).

    113. See, e.g., Department of Justice FOIA Regulations, 28 C.F.R.  16.3 (2004).

    114. See Church of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986); Flowers, 307 F. Supp. 2d at 68-69 (ruling that failure to file FOIA request that comports with agency's rules constitutes failure to exhaust administrative remedies); Leytman v. N.Y. Stock Exch., No. 95 CV 902, 1995 WL 761843, at *2 (E.D.N.Y. Dec. 6, 1995); see also Nash v. United States Dep't of Justice, 992 F. Supp. 447, 449 (D.D.C. 1998) (rejecting plaintiff's argument that location of one agency component's records in second component's files necessitates separate search of first component's files, in absence of proper FOIA request to first component), summary affirmance granted, No. 98-5096 (D.C. Cir. July 20, 1998); Rogers v. United States Nat'l Reconnaissance Office, No. 94-B-2934, slip op. at 5 (N.D. Ala. Sept. 13, 1995) (holding dismissal of Air Force appropriate when request is made to Department of Defense: "It is the plaintiff's burden to make his FOIA request to the agency component which he believes possesses responsive material. Plaintiff has provided no basis to shift that burden to the agency."). But cf. Lehrfeld v. Richardson, 132 F.3d 1463, 1466 (D.C. Cir. 1998) (assuming that proper FOIA request was made, rather than deciding "whether reference to a Vaughn index in a request for information suffices to put the agency on notice that the request is being made pursuant to the FOIA").

    115. See, e.g., Schaake v. IRS, No. 91-958, 1992 U.S. Dist. LEXIS 9418, at *11 (S.D. Ill. June 3, 1992); SafeCard Servs. v. SEC, No. 84-3073, slip op. at 3-5 (D.D.C. Apr. 21, 1986); see also FOIA Update, Vol. VII, No. 3, at 6 (counseling that Vaughn Index is not required at administrative level); cf. Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) ("Agencies need not provide a Vaughn Index until ordered by a court after the plaintiff has exhausted the administrative process."), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996).

    116. See 5 U.S.C.  552(a)(6)(A)-(B).

    117. See Summers v. United States Dep't of Justice, 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that authorization for release of records need not be notarized, but can be attested to under penalty of perjury pursuant to 28 U.S.C.  1746 (2000)); Davis v. United States Attorney, Dist. of Md., No. 92-3233, slip op. at 2-3 (D. Md. July 5, 1994) (dismissing suit without prejudice when plaintiff failed to provide identification by notarized consent, attestation under 28 U.S.C.  1746, or alternative form of identification in conformity with agency regulations).

    118. See, e.g., Lilienthal v. Parks, 574 F. Supp. 14, 17-18 (E.D. Ark. 1983).

    119. See Pusa v. FBI, No. 99-04603, slip op. at 5 (C.D. Cal. Aug. 5, 1999) (dismissing case because plaintiff did not comply with agency regulations concerning third-party requests); Harvey v. United States Dep't of Justice, No. CV 92-176, slip op. at 17-18 (D. Mont. Jan. 9, 1996) (declining to grant motion for production of third-party records because plaintiff failed to submit authorization at the administrative level), aff'd on other grounds, 116 F.3d 484 (9th Cir. June 3, 1997) (unpublished table decision); Freedom Magazine v. IRS, No. 91-4536, 1992 U.S. Dist. LEXIS, at **10-13 (C.D. Cal. Nov. 13, 1992) (finding that court lacked jurisdiction when, prior to filing suit, plaintiff failed to provide waivers for third-party records as required by IRS regulations). But see Martin v. United States Dep't of Justice, No. 96-2866, slip op. at 7-8 (D.D.C. Dec. 15, 1999) (ruling that agency was not justified in refusing to process third-party request in absence of privacy waiver because agency's regulation on privacy waivers was permissive, not mandatory, but nevertheless dismissing complaint because all records would be subject to Exemption 7(C) protection in any event); Tanoue v. IRS, 904 F. Supp. 1161, 1165 (D. Haw. 1995) (finding exhaustion despite plaintiff's failure to provide third-party waiver for IRS "return information" because agency ignored request in mistaken belief that no action was necessary inasmuch as information was unreleasable without consent in any case); LaRouche v. United States Dep't of Justice, No. 90-2753, 1993 WL 388601, at *7 (D.D.C. June 25, 1993) (although third-party waivers were not submitted during administrative process, "they present solely legal issues which can properly be resolved by [the] Court").

    120. See, e.g., Gillin, 980 F.2d at 822-23 (deciding that a request for records "used as a basis to conclude there was a deficiency in [requester's] tax return" did not "reasonably describe" the records of the agency's field examination of requester's tax return, since the agency concluded after completion of its field examination that there was no deficiency); Marks v. United States Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978); Dale v. IRS, 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (finding that an agency is "under no obligation to release records that have not been reasonably described" and that a request that failed to conform to agency requirements "amounted to an all-encompassing fishing expedition . . . at taxpayer expense"); see also Voinche v. United States Dep't of the Air Force, 983 F.2d 667, 669 n.5 (5th Cir. 1993) (concluding that administrative remedies on fee waiver request were not exhausted when requester failed to amend request to achieve specificity required by agency regulations).

    121. See, e.g., Pollack, 49 F.3d at 119-20 (rejecting plaintiff's novel argument that untimeliness of agency response required it to provide documents free of charge); Dale, 238 F. Supp. 2d at 107 (dismissing Complaint for failure to claim or establish entitlement to fee waiver or, alternatively, to commit to payment of fees); Ctr. to Prevent Handgun Violence, 981 F. Supp. at 23 (rejecting requester's "equitable tolling" argument; requester's agreement to accept sampling of documents for free does not excuse noncompliance with exhaustion requirement in subsequent fee waiver suit covering all records); Trueblood v. United States Dep't of the Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) ("Regardless of whether the plaintiff 'filed' suit before or after receiving a request for payment, the plaintiff has an obligation to pay for the reasonable copying and search fees assessed by the defendant."); Kuchta v. Harris, No. 92-1121, 1993 WL 87750, at **3-4 (D. Md. Mar. 25, 1993) (failure to either pay fees or request fee waiver halts administrative process and precludes exhaustion); Centracchio v. FBI, No. 92-0357, slip op. at 5 (D.D.C. Mar. 16, 1993) ("Plaintiff's failure to pay the deposit or request a waiver is fatal to his claim and requires dismissal . . . ."); Atkin v. EEOC, No. 91-2508, slip op. at 21-22 (D.N.J. Dec. 4, 1992) ("[E]xhaustion does not occur where the requester has failed to pay the assessed fees, even though the agency failed to timely process a request."), appeal dismissed for failure to prosecute, No. 93-5548 (3d Cir. Dec. 6, 1993); see also Atkin v. EEOC, No. 92-5522, slip op. at 5 n.3 (D.N.J. Jan. 24, 1994) (subject matter jurisdiction determined as of date that Complaint was filed; fact that plaintiff paid fees after suit was institution does not confer jurisdiction).

    122. See, e.g., Trenerry v. IRS, No. 95-5150, 1996 WL 88459, at *1 (10th Cir. Mar. 1, 1996); Crooker, 577 F. Supp. at 1219-20; Mahler v. Dep't of Justice, 2 Gov't Disclosure Serv. (P-H)  82,032, at 82,262 (D.D.C. Sept. 29, 1981).

    123. See, e.g., Halpern v. FBI, 181 F.3d 279, 289 (2d Cir. 1999) (approving FBI practice of seeking clarification of requester's interest in "cross-references" and dismissing portion of suit challenging failure to process those records when plaintiff did not dispute agency action until after suit was filed); Dettmann, 802 F.2d at 1477 (same).

    124. See, e.g., Trenerry, 1996 WL 88459, at *2; Voinche, 983 F.2d at 669.

    125. See, e.g., Mells v. IRS, No. 99-2030, 2001 U.S. Dist. LEXIS 1262, at *5 (D.D.C. Jan. 23, 2001) (deciding that plaintiff must pay fee or seek waiver from agency before challenging government's response concerning fees), subsequent opinion denying fee waiver, No. 99-2030, 2002 U.S. Dist. LEXIS 24275 (D.D.C. Nov. 21, 2002); Schwarz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 148 (D.D.C. 2000) ("Exhaustion of administrative remedies . . . includes payment of required fees or an appeal within the agency from a decision refusing to waive fees."), summary affirmance granted, No. 00-5453 (D.C. Cir. May 10, 2001); Tinsley v. Comm'r, No. 3:96-1769-P, 1998 WL 59481, at *4 (N.D. Tex. Feb. 9, 1998) (finding no exhaustion because plaintiff failed to appeal fee waiver denial).

    126. 5 U.S.C. 552(a)(6)(E)(ii)(I) (2000).

    127. See 5 U.S.C. 552(a)(6)(E)(ii)(II) (referring to "expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing").

    128. See Elec. Privacy Info. Ctr. v. United States Dep't of Justice, No. 03-2078, slip op. 5 (D.D.C. Dec. 19, 2003) (finding that administrative appeal of refusal to grant expedited processing of request is required by "neither the statute nor applicable case law") (appeal pending); Judicial Watch, Inc. v. FBI, No. 01-1216, slip op. at 6 (D.D.C. July 26, 2002) (noting that the statutory language "provides for direct judicial review of an agency's failure to timely respond to a request for expedited processing"); Al-Fayed v. CIA, No. 00-2092, 2000 U.S. District LEXIS 21476, at *8 (D.D.C. Sept. 20, 2000) (concluding that "[n]othing in the statute or its legislative history" indicates that an administrative appeal of a denial of expedited processing is required before an applicant may seek judicial review), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001).

    129. See Judicial Watch, Inc., No. 01-1216, slip op. at 8 (D.D.C. July 26, 2002) (dismissing plaintiff's Complaint seeking release of requested records, because it was filed prematurely; although the agency failed to timely respond to the Complaint, for dismissal purposes "the Court will only consider those facts and circumstances that existed at the time of the filing of the complaint, and not subsequent events").

    130. 5 U.S.C.  552(a)(6)(C)(i)-(iii) (2000).

    131. See Manna v. United States Dep't of Justice, No. 93-81, 1994 WL 808070, at *10 (D.N.J. Apr. 13, 1994) (noting "huge number of FOIA requests that have overwhelmed [agency's] human and related resources"); Cohen v. FBI, 831 F. Supp. 850, 854 (S.D. Fla. 1993) (explaining that court "cannot focus on theoretical goals alone, and completely ignore the reality that these agencies cannot possibly respond to the overwhelming number of requests received within the time constraints imposed by FOIA"); see also Natural Res. Def. Council v. Dep't of Energy, 191 F. Supp. 2d 41, 42 (D.D.C. 2002) (while noting that "it is commonly accepted that no federal agency can meet the impossibly rigorous timetable set forth in the [FOIA]," nevertheless granting motion for expedited release of records); cf. FOIA Post, "Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 9/3/03) (reporting that the 2,402,938 FOIA requests received governmentwide in Fiscal Year 2002 marked the third consecutive year in which a total of more than two million requests were received by federal agencies); FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (addressing backlog-related statistical compilations in annual FOIA reports).

    132. 547 F.2d 605 (D.C. Cir. 1976).

    133. Id. at 616.

    134. Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 7(c), 110 Stat. 3048 (codified as amended at 5 U.S.C.  552(a)(6)(C)(ii)); see also FOIA Update, Vol. XVIII, No. 3, at 3-7 (advising agencies regarding reporting of backlog-related information in annual FOIA reports, beginning with annual reports for Fiscal Year 1998).

    135. See H.R. Rep. No. 104-795, at 18-19 (1996); see also Donham v. United States Dep't of Energy, 192 F. Supp. 2d 877, 882 (S.D. Ill. 2002) (refusing to accept agency's argument that its backlog qualifies as "exceptional circumstances" because "then the 'exceptional circumstances' provision would render meaningless the twenty-day response requirement"); Al-Fayed v. CIA, No. 00-2092, slip op. at 5 (D.D.C. Jan. 16, 2001) ("Rather than overturn Open America, the 1996 amendments merely explain that predictable agency workload and a backlog alone, will not justify a stay."), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); Eltayib v. United States Coast Guard, No. 99-1033, slip op. at 3 (D.D.C. Nov. 11, 1999) (explaining intent of Electronic FOIA amendments' modification of FOIA's "exceptional circumstances" provision), aff'd on other grounds, 53 Fed. Appx. 127 (D.C. Cir. 2002) (per curiam); see also FOIA Update, Vol. XVII, No. 4, at 10 (describing provisions of Electronic FOIA amendments).

    136. See H.R. Rep. No. 104-795, at 24-25, 1996 U.S.C.C.A.N. 3448, 3468 (1996) (specifying factors that may be considered in determining whether "exceptional circumstances" exist).

    137. 5 U.S.C. 552(a)(6)(C)(iii); see also Al-Fayed, No. 00-2092, slip op. at 6, 12 (D.D.C. Jan. 16, 2001) (granting an Open America stay and denigrating plaintiffs' ostensible efforts to limit the scope of their requests as "more symbolic than substantive"), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001).

    138. See Open Am., 547 F.2d at 616.

    139. Id. at 615; see also Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1040-41 (9th Cir. 1999) (refusing to approve automatic preference for FOIA requesters who file suit, because it "would generate many pointless and burdensome lawsuits"); Cohen, 831 F. Supp. at 854 ("[L]ittle progress would result from allowing FOIA requesters to move to the head of the line by filing a lawsuit. This would do nothing to eliminate the FOIA backlog; it would merely add to the judiciary's backlog."); cf. Hunsberger v. United States Dep't of Justice, No. 94-0168, 1994 U.S. Dist. LEXIS, at **1-2 (D.D.C. May 3, 1994), summary affirmance granted, No. 94-5234 (D.C. Cir. Apr. 10, 1995) (forbidding requester from circumventing Open America stay by filing new complaint based on same request). But see Exner v. FBI, 542 F.2d 1121, 1123 (9th Cir. 1976) (adopting the approach of a concurring opinion in Open America, and holding that the filing of a suit can move a requester "up the line").

    140. Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231,  7(a), 110 Stat. 3048 (codified at 5 U.S.C.  552(a)(6)(D)(i)).

    141. Id. 7(a)(D)(ii) (codified at 5 U.S.C.  552(a)(6)(D)(ii)).

    142. See, e.g., Appleton v. FDA, 254 F. Supp. 2d 6, 10-11 (D.D.C. 2003) (approving an Open America stay generally, but requiring parties to confer about precise scope of plaintiff's request and to propose appropriate length of stay); Cooper v. FBI, No. 99-2305, slip op. at 2, 4 (D.D.C. June 28, 2000) (granting defendant's stay motion for "at least" four months); Judicial Watch, Inc. v. United States Dep't of State, No. 99-1130, slip op. at 2 (D.D.C. Feb. 17, 2000) (approving ten-month stay because "unanticipated workload, the inadequate resources of the agency, and the complexity of many of the requests" constitute exceptional circumstances), appeal dismissed as interlocutory, No. 00-5095 (D.C. Cir. June 2, 2000); Emerson v. CIA, No. 99-0274, 1999 U.S. Dist. LEXIS 19511, at **3-4 (D.D.C. Dec. 16, 1999) (granting two-year stay because of "extraordinary circumstances" and multiple agency efforts to alleviate FOIA backlog); Summers v. CIA, No. 98-1682, slip op. at 4 (D.D.C. July 26, 1999) (finding that FBI's FOIA procedures are "fair and expeditious" and that exceptional circumstances exists, warranting six-month stay of proceedings); Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2869, slip op. at 6-8 (D.D.C. Aug. 25, 1998) (finding that agency exercised due diligence when both parties agreed that exceptional circumstances existed and requester failed to show exceptional need for records); Narducci v. FBI, No. 98-0130, slip op. at 1 (D.D.C. July 17, 1998) (ordering thirty-four-month stay because of "deluge[]" of requests coupled with "reasonable progress" in reducing backlog). See generally FOIA Update, Vol. XIX, No. 4, at 7 (describing FBI effort to reduce backlog through use of negotiation team); FOIA Update, Vol. XIX, No. 3, at 5-6 (describing Department of Justice efforts at backlog reduction). But see Eltayib, No. 99-1033, slip op. at 4 (D.D.C. Nov. 11, 1999) (denying stay and taking agency to task for failing to take any measures to comport with statutory requirements for showing reasonable progress); Los Alamos Study Group v. Dep't of Energy, No. 99-201, slip op. at 4-5 (D.N.M. Oct. 26, 1999) (declining to approve stay of proceedings predicated on agency's need to review sensitive materials, because such review "is part of the predictable agency workload of requests"); cf. Donham, 192 F. Supp. 2d at 884 (ordering an agency to propose a schedule for completing work on a request and encouraging the parties to "work out an agreement" on the matter).

    143. See Fiduccia, 185 F.3d at 1041 (overturning stay of proceedings allowed by district court, because delay was only "ordinary and expected"); Ruiz v. United States Dep't of Justice, No. 00-0105, slip op. at 3 (D.D.C. Sept. 27, 2001) (acknowledging that the agency made "a satisfactory showing that a stay . . . is warranted," but reducing the stay's length from the thirty-three months requested to only seven months); Beneville v. United States Dep't of Justice, No. 98-6137, slip op. at 8 (D. Or. Dec. 17, 1998) (declining to approve full stay of proceedings requested by FBI regarding Unabomber files); Grecco v. Dep't of Justice, No. 97-0419, slip op. at 2 (D.D.C. Aug. 24, 1998) (granting two-year stay rather than four-year stay that was requested by FBI); see also Peralta v. FBI, No. 94-760, slip op. at 2 (D.D.C. June 6, 1997) (reducing Open America stay by four months because of enactment of Electronic FOIA amendments, and requiring that agency justify additional time needed for processing on basis of new statutory standard), vacated & remanded on other grounds, 136 F.3d 169 (D.C. Cir. 1998); cf. Donham, 192 F. Supp. 2d at 884 (refusing to set processing deadline, but also refusing to grant open-ended stay of proceedings); Gilmore v. United States Dep't of Energy, 4 F. Supp. 2d 912, 925 (N.D. Cal. 1998) ("Where a pattern and practice of late responses is alleged . . . a normal, predictable workload cannot constitute 'exceptional circumstances.'"), dismissed per stipulation, No. 95-0285 (N.D. Cal. Apr. 3, 2000).

    144. See, e.g., Gilmore v. United States Dep't of State, No. C 95-1098, slip op. at 25-26, 29 (N.D. Cal. Feb. 9, 1996) (An "agency receiving requests for information classified by another agency 'shall refer copies . . . to the originating agency for processing.'" (quoting Exec. Order No. 12,958  3.7(b), 3 C.F.R. 333 (1996), reprinted in 50 U.S.C. 435 note (2000), and reprinted in abridged form in FOIA Update, Vol. XVI, No. 2, at 5-10).

    145. See FOIA Update, Vol. IX, No. 4, at 5 (discussing relevant cases).

    146. See, e.g., Lisee, 741 F. Supp. at 989-90 ("Open America" stay granted for both processing records and preparing Vaughn Index); Ettlinger v. FBI, 596 F. Supp. 867, 878-79 (D. Mass. 1984) (same); Shaw v. Dep't of State, 1 Gov't Disclosure Serv. (P-H)  80,250, at 80,630 (D.D.C. July 31, 1980) (same).

    147. See, e.g., Al-Fayed v. CIA, No. 00-2092, slip op. at 12 (D.D.C. Jan. 16, 2001) (granting stays for four agencies, but requiring status reports every sixty days), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); Raulerson v. Reno, No. 95-2053, slip op. at 1 (D.D.C. Sept. 11, 1998) (approving thirty-month stay to process over 19,000 pages, but ordering four interim status reports); Samuel Gruber Educ. Project v. United States Dep't of Justice, No. 90-1912, slip op at 6 (D.D.C. Feb. 8, 1991) (granting nearly two-year stay, but requiring six-month progress reports); Hinton v. FBI, 527 F. Supp. 223, 223-25 (E.D. Pa. 1981) (staying proceedings, but ordering interim releases at ninety-day intervals).

    148. See Open Am., 547 F.2d at 616; see also Edmonds v. FBI, No. 02-1294, slip op. at 3-4, 8 (D.D.C. Dec. 3, 2002) (denying motion for an Open America stay even though it was justified by exceptional circumstances, and ordering expedited processing); Aguilera v. FBI, 941 F. Supp. 144, 149-52 (D.D.C. 1996) (finding initially that FBI satisfied "exceptional circumstances-due diligence test" warranting eighty-seven-month delay, but subsequently granting expedited access due to exigent circumstances), appeal dismissed, No. 98-5035 (D.C. Cir. Mar. 18, 1998).

    149. See, e.g., Neely v. FBI, No. 97-0786, slip op. at 9 (W.D. Va. July 27, 1998) (granting expedited processing of FOIA request where plaintiff has pending motion for new criminal trial based on alleged false trial testimony and needs documents for proof), vacated & remanded on other grounds, 208 F.3d 461 (4th Cir. 2000); Ferguson v. FBI, 722 F. Supp. 1137, 1141-44 (S.D.N.Y. 1989) (need for documents, not otherwise available, in post-conviction challenge and upcoming criminal trial); Cleaver v. Kelley, 427 F. Supp. 80, 81 (D.D.C. 1976) (plaintiff facing multiple criminal charges carrying possible death penalty in state court); see also FOIA Update, Vol. IV, No. 3, at 3 ("OIP Guidance: When to Expedite FOIA Requests"); cf. Kitchen v. FBI, No. 94-5159, 1995 WL 311615, at *1 (D.C. Cir. Apr. 27, 1995) (per curiam) (requester has not shown sufficiently serious harm to warrant interlocutory appeal when deportation hearing not yet scheduled (citing Ray, 770 F. Supp. at 1550-51)); Billington v. United States Dep't of Justice, No. 92-462, slip op. at 3-5 (D.D.C. July 27, 1992) (expedited treatment denied despite pendency of prosecutions, when requester had not shown any likelihood that files contain "materially exculpatory information"). Compare Freeman v. United States Dep't of Justice, No. 92-557, slip op. at 6 (D.D.C. Oct. 2, 1992) (expedited processing granted when scope of request limited, Jencks Act material unavailable in state prosecution, and information useful to plaintiff's criminal defense might have been contained in requested documents), with Freeman v. United States Dep't of Justice, No. 92-557, 1993 WL 260694, at *5 (D.D.C. June 28, 1993) (denying further expedited treatment when processing "would require a hand search of approximately 50,000 pages, taking approximately 120 days"). But see Gilmore v. FBI, No. 93-2117, slip op. at 1, 3 (N.D. Cal. July 26, 1994) (expediting request despite showing of due diligence and exceptional circumstances, based upon perfunctory finding that "[p]laintiff has sufficiently shown that the information he seeks will become less valuable if the FBI processes his request on a first-in, first-out basis").

    150. See FOIA Update, Vol. XVII, No. 4, at 10 (describing Electronic FOIA amendment provisions).

    151. 5 U.S.C.  552(a)(6)(E)(i); see also FOIA Update, Vol. XVII, No. 4, at 10.

    152. 5 U.S.C.  552(a)(6)(E)(v)(I).

    153. Id.  552(a)(6)(E)(v)(II); see also 28 C.F.R. 16.5(d) (specifying procedures for expedited processing, including when there is "[a]n urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information"); Tripp v. DOD, 193 F. Supp. 2d 229, 241 (D.D.C. 2002) (finding that plaintiff does not meet the criteria for expedited processing, because while she "has been the object of media attention," she is not primarily engaged in disseminating information to the media); cf. Appleton, 254 F. Supp. 2d at 10 n.5 (ruling that the plaintiff's advanced age is not a basis contemplated by the FOIA for expedited access).

    154. Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26).

    155. Id. at 311 (observing further that "[e]ven if the information sought is properly characterized as 'current,' it cannot fairly be said to concern a matter of 'exigency to the American public,'" and noting that "[t]here is no evidence in the record that there is substantial interest, either on the part of the American public or the media, in this particular aspect of plaintiff's allegations") (footnote omitted).

    156. See Tripp, 193 F. Supp. 2d at 242 (ruling that inasmuch as events giving rise to FOIA request were three years old, there was no "great news media interest" and thus no "urgent need" for requested information); see also Elec. Privacy Info. Ctr. v. United States Dep't of Justice, No. 03-2078, slip op. at 10 (D.D.C. Dec. 19, 2003) (deciding that there was no urgency to inform the public that warranted expedited access, because "[t]he appearance of thirty-one newspaper articles is insufficient to establish a story as a matter of 'current exigency'") (appeal pending).

    157. See, e.g., Ruiz v. United States Dep't of Justice, No. 00-0105, slip op. at 3 (D.D.C. Sept. 27, 2001) ("To the extent that records are intended for use in an attack on plaintiff's criminal conviction, this situation does not constitute an exceptional need."); Edmond v. United States Attorney, 959 F. Supp. 1, 4 (D.D.C. 1997) (explaining that a "mere challenge to a conviction" is not sufficient to warrant expedited processing); Schweihs v. FBI, 933 F. Supp. 719, 723 (N.D. Ill. 1996) (denying expedited processing of records related to plaintiff's conviction, despite plaintiff's claims of ill health); Russell v. Barr, No. 92-2546, slip op. at 2 (D.D.C. Mar. 5, 1993) (holding "[p]laintiff's claim that the requested information may 'minister [his] defense in the civil proceeding and motion for a new trial' in his criminal proceeding" inadequate to justify expedition). But see Aguilera, 941 F. Supp. at 152-53 (ordering expedited processing for a request not scheduled for completion for nearly ninety months, because "[p]laintiff has demonstrated that he faces grave punishment, his reason to believe the documents may assist in his defense has been corroborated by objective proof, his request is limited in scope, and the criminal discovery process is unavailable").

    158. See, e.g., Price v. CIA, No. 90-1507, 1990 WL 141480, at *1 (4th Cir. Oct. 2, 1990) (affirming denial of expedited access to documents claimed to be needed for lawsuit soon to be barred by statute of limitations); Rogers v. United States Nat'l Reconnaissance Office, No. 94-B-2934, slip op. at 17 (N.D. Ala. Sept. 13, 1995) ("Courts have consistently rejected claims of urgency based on private litigation concerns."); Cohen, 831 F. Supp. at 854 (refusing to order expedited access for records needed in civil lawsuit); cf. Armstrong v. Bush, 807 F. Supp. 816, 819 (D.D.C. 1992) (according priority to additional FOIA requests added to those already subject of litigation, when responsive records might otherwise be destroyed). But see Edmonds, No. 02-1294, slip op. at 7 (D.D.C. Dec. 3, 2002) (granting expedition even though a pending lawsuit is what motivated plaintiff's requests, based upon questionable reasoning that "[n]othing in the DOJ's regulation disqualified a plaintiff from obtaining expedited processing where the documents may assist her in another lawsuit, nor is there any basis to conclude that a whistleblower who has brought suit against a government agency as a result of her firing cannot also satisfy the DOJ's regulation for expedited processing").

    159. See Sosa v. FBI, No. 93-1126, slip op. at 1 (D.D.C. Nov. 4, 1993); see also Arriaga v. West, No. 00-1171, 2000 WL 870867, at *2 (Vet. App. June 21, 2000) (dismissing for lack of jurisdiction plaintiff's mandamus petition that was filed in his attempt to require Secretary of Veterans Affairs to release records requested under FOIA and to stay proceedings before administrative board until his petition was decided).

    160. 401 U.S. 37 (1971).

    161. See Sosa, No. 93-1126, slip op. at 1 (D.D.C. Nov. 4, 1993).

    162. See, e.g., Iturralde v. Comptroller of Currency, 315 F.3d 311, 313 (D.C. Cir. 2003) (explaining that adequacy of agency's search is at issue); Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (noting that plaintiff contested only adequacy of search).

    163. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Tavakoli-Nouri v. CIA, No. 00-3620, 2001 U.S. App. LEXIS 24676, at *7 (3d Cir. Oct. 18, 2001) (same); Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (noting that "crucial" search issue is whether agency's search was "'reasonably calculated to discover the requested documents'" (quoting SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991))); Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 38 (D.D.C. Mar. 21, 2003) ("In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness.").

    164. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); see Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (same); Nation Magazine, 71 F.3d at 892 n.7 (explaining that "there is no requirement that an agency [locate] all responsive documents"); Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994) ("In judging the adequacy of an agency search for documents the relevant question is not whether every single potentially responsive document has been unearthed."); In re Wade, 969 F.2d 241, 249 n.11 (7th Cir. 1992) (declaring that issue is not whether other documents might exist, but whether search was adequate); Snyder v. CIA, 230 F. Supp. 2d 17, 21 (D.D.C. 2002) (stipulating that FOIA does not require a search of "every conceivable area where responsive records might be found"); cf. Raulerson v. Reno, No. 96-120, slip op. at 5 (D.D.C. Feb. 26, 1999) (suggesting that agency's failure to locate complaints filed by plaintiff, the existence of which agency did not dispute, "casts substantial doubt" on adequacy of agency's search), summary affirmance granted, No. 99-5300 (D.C. Cir. Nov. 23, 1999).

    165. Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003); see Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) ("'[T]he factual question . . . is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.'" (quoting Safecard Servs., 926 F.2d at 1201)); In re Wade, 969 F.2d at 249 n.11 (declaring that issue is not whether other documents may exist, but whether search was adequate); Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986) ("[A] search is not unreasonable simply because it fails to produce all relevant material; no search of this [large] size . . . will be free from error."); Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 26 (D.D.C. 2003) ("Perfection is not the standard by which the reasonableness of a FOIA search is measured."); Garcia v. United States Dep't of Justice, 181 F. Supp. 2d 356, 368 (S.D.N.Y. 2002) ("The agency is not expected to take extraordinary measures to find the requested records."); Citizens Against UFO Secrecy, Inc. v. DOD, No. 99-00108, slip op. at 8 (D. Ariz. Mar. 30, 2000) (declaring that "[a] fruitless search result is immaterial if [d]efendant can establish that it conducted a search reasonably calculated to uncover all relevant documents"), aff'd, 21 Fed. Appx. 774 (9th Cir. 2001); Boggs v. United States, 987 F. Supp. 11, 20 (D.D.C. 1997) (noting that the role of the court is to determine the reasonableness of the search, "not whether the fruits of the search met plaintiff's aspirations"); Freeman v. United States Dep't of Justice, No. 90-2754, slip op. at 3 (D.D.C. Oct. 16, 1991) ("The FOIA does not require that the government go fishing in the ocean for fresh water fish."). But see Raulerson, No. 96-120, slip op. at 5 (D.D.C. Feb. 26, 1999) (suggesting that the agency's failure to locate complaints filed by plaintiff, the existence of which the agency did not dispute, "casts substantial doubt" on the adequacy of the agency's search).

    166. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see Rugiero v. United States Dep't of Justice, 257 F.3d 534, 547 (6th Cir. 2001) ("The FOIA requires a reasonable search tailored to the nature of the request."), cert. denied, 534 U.S. 1134 (2002); Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (same); Maynard, 986 F.2d at 559 (explaining that adequacy of search "depends upon the facts of each case"); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 63 (D.D.C. 2003) (citing Weisberg, 745 F.2d at 1485).

    167. See, e.g., Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 230 (1st Cir. 1994) (finding to be sufficient agency's search of United States Attorney's Office computerized record system); Maynard, 986 F.2d at 562 (concluding that Treasury Department properly limited its search to its automated Treasury Enforcement Communications System (TECS)); Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 22 (D.D.C. 2002) ("[I]f the FBI believes that a search of its [Central Records System] is sufficient, it need not go further."), dismissed for lack of prosecution, No. 03-5054 (D.C. Cir. Apr. 4, 2003); Blanton v. United States Dep't of Justice, 63 F. Supp. 2d 35, 41 (D.D.C. 1999) (finding no requirement to search informant files for references to individual when such references would be "flagged" by agency's "cross-reference" search for records about that individual), motion for partial reconsideration granted on other grounds, No. 93-1789 (D.D.C. June 2, 2000), aff'd, 64 Fed. Appx. 787 (D.C. Cir. 2003) (per curiam); Murphy v. IRS, 79 F. Supp. 2d 1180, 1185 (D. Haw. 1999) (noting that because technical advice memoranda all would be logged into Technical Management Information System, search of that database was adequate); Jimenez v. FBI, 938 F. Supp. 21, 26 (D.D.C. 1996) (finding to be adequate ATF's search of "its 'primary law enforcement computer records system, which indexes all ATF law enforcement records, including those located in regional offices'"); see also Campbell, 164 F.3d at 28 ("[T]he FBI need not conduct ELSUR (electronic surveillance) and tickler (temporary file) searches when the FOIA requester does not expressly ask it to do so. [It] has discretion to conduct a standard search in response to a general request . . . ."); Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 24 (D.D.C. 2003) (refusing to fault an FBI Central Index search despite the fact that it did not turn up twenty-eight missing records; the possibility that "some documents may have slipped through the bureaucratic cracks of the vast administrative structure that is the FBI" does not make the FBI's search unreasonable). But see Summers v. United States Dep't of Justice, No. 89-3300, slip op. at 6 (D.D.C. June 13, 1995) (holding the agency's search inadequate despite the retrieval of over 30,000 responsive pages pertaining to former FBI Director J. Edgar Hoover's telephone logs and appointment calendars, because the agency's declaration did "not explain the search terms used, the type of search performed[,] and [did] not aver 'that all files likely to contain responsive materials . . . were searched'"); Steinberg v. United States Dep't of the Treasury, No. 93-2348, slip op. at 8 (D.D.C. Sept. 18, 1995) (declaring that search solely of TECS was inadequate when "it is reasonable to conclude that additional systems exist," that TECS does not include these record systems, and that it would not be unduly burdensome to search other systems).

    168. See Posner v. Dep't of Justice, 2 Gov't Disclosure Serv. (P-H)  82,229, at 82,650 (D.D.C. Mar. 9, 1982); see also FOIA Update, Vol. XVI, No. 3, at 3 (providing policy guidance on "scoping" of requests, and suggesting that an important consideration is that of fashioning ways "to devote [an agency's] limited resources to serving . . . FOIA requesters as efficiently and economically as reasonably possible"); accord Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) (emphasizing the importance of maintaining "a government that is fully functional and efficient").

    169. See, e.g., Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996) (stating that when "the requester clearly states that he wants all agency records . . . regardless of their location, but fails to direct the agency's attention to any particular office other than the one receiving the request, then the agency need pursue only a lead . . . that is both clear and certain"); Church of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (finding that when agency regulations require requests be made to specific offices for specific records, there is no need to search additional offices when those regulations are not followed); Marks v. United States Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (finding no duty to search FBI field offices when requester directed request only to FBI Headquarters and did not specify which field offices he wanted searched); Dayton Newspapers, Inc. v. VA, 257 F. Supp. 2d 988, 999-1001 (S.D. Ohio 2003) (granting summary judgment to agency because requested records were maintained by agency's regional offices, not central office where request was erroneously submitted); Maydak, 254 F. Supp. 2d at 44-45 (refusing to find search inadequate because agency has "no statutory obligation to proceed with a search of all of its field offices"); Prescott v. Dep't of Justice, No. 00-0187, slip op. at 7 (D.D.C. Aug. 10, 2001) (finding search of FBI Headquarters reasonable, based on Department of Justice regulations requiring requesters to direct their requests to individual FBI field offices in the first instance); Domingues v. FBI, No. 98-74612, slip op. at 7 (E.D. Mich. June 23, 1999) (magistrate's recommendation) (alternative holding) (suggesting that request to agency headquarters that does not ask for field office search does not "reasonably describe" field office records, so headquarters search is all that is required), adopted (E.D. Mich. July 29, 1999), aff'd, No. 99-1976, 2000 WL 1140594, at *1 (6th Cir. Aug. 7, 2000); AFGE v. United States Dep't of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986) (holding that agency's refusal to perform canvass of 356 bureau offices for multitude of files was justified), aff'd, 907 F.2d 203 (D.C. Cir. 1990). But see Krikorian v. United States Dep't of State, 984 F.2d 461, 468-69 (D.C. Cir. 1993) (remanding so district court could explain why it was unnecessary for agency to search eleven regional security offices identified in article that formed basis for plaintiff's request); Conteh v. FBI, No. 01-1330, slip op. at 5 (D.D.C. Apr. 1, 2002) (ordering defendant to explain why it failed to advise plaintiff that responsive records were located in two field offices so that plaintiff could submit his requests there); Kitchen v. FBI, No. 93-2382, slip op. at 5 (D.D.C. Mar. 18, 1996) (requiring FBI to justify lack of search of field offices when plaintiff's request to FBI Headquarters specified particular field offices to be searched, even though FBI notified requester of address of those offices and instructed him to request records directly from field offices), dismissed for lack of prosecution (D.D.C. Apr. 16, 1997).

    170. See, e.g., Wilderness Soc'y v. United States Bureau of Land Mgmt., No. 01-2210, 2003 WL 255971, at *5 (D.D.C. Jan. 15, 2003) (refusing to grant summary judgment due to agency's narrow interpretation of request); Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985) (while recognizing ambiguity of request, rejecting agency conclusion that it had no record of "citizenship data" of foreign news correspondents when it maintained such information on "application forms" that were required to be filed by such correspondents); cf. FOIA Update, Vol. XVI, No. 3, at 3 (advising agencies to "interpret FOIA requests 'liberally' when determining which records are responsive to them" (quoting Nation Magazine, 71 F.3d at 890)).

    171. LaCedra v. Executive Office for United States Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003).

    172. Id.

    173. Id.

    174. Kowalczyk, 73 F.3d at 389 (holding that agency is not required to speculate about potential leads); see Williams v. Ashcroft, 30 Fed. Appx. 5, 6 (D.C. Cir. 2002) (deciding that agency need not look for records not sought in initial FOIA request); Sheridan v. Dep't of the Navy, 9 Fed. Appx. 55, 56 (2d Cir. 2001) (citing Kowalczyk); see also W. Ctr. for Journalism v. IRS, 116 F. Supp. 2d 1, 9 (D.D.C. 2000) (concluding that diligent search was shown when, even though not required to do so, agency searched for records beyond scope of request); cf. Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 330 (D.D.C. 2002) (declaring that agency was not required to have "clairvoyant capabilities" in order to determine nature of request).

    175. Maynard, 986 F.2d at 560; Russell v. Barr, No. 92-2546, 1998 U.S. Dist. LEXIS 14515, at **6-7 (D.D.C. Aug. 28, 1998) (ruling that agency was not required to search for records under requester's wife's maiden name when requester provided only her married name); cf. Lowe v. FBI, No. 96-512, slip op. at 2-3 (E.D. Okla. July 31, 1998) (finding no improper withholding of records when plaintiff failed to provide agency with additional information requested in order to conduct a more thorough search); Spannaus, No. 92-372, slip op. at 6-7 (D.D.C. June 20, 1995) (holding that agency was not required to search files of individual known to be connected with bankruptcy proceedings when request sought records on proceedings, not on individual). But see Canning v. United States Dep't of Justice, 919 F. Supp. 451, 461 (D.D.C. 1994) (when records on subject of request filed under two different names and agency is aware of the dual filing, agency obligated to search under both names, especially after requester brought second name to agency's attention).

    176. See Kowalczyk, 73 F.3d at 388 ("A reasonable effort to satisfy [a] request does not entail an obligation to search anew based upon a subsequent clarification."); see also McQueen v. United States, 179 F.R.D. 522, 525 n.5 (S.D. Tex. 1998) ("FOIA contains no provision which obligates an agency to update FOIA disclosures." (citing United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 139-40 (1989))).

    177. Kowalczyk, 73 F.3d at 388; cf. Bonner v. United States Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) ("To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing."); FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (advising agencies that it is "entirely reasonable" to search for records that are in their possession only as of the date upon which they commence a search, because otherwise they would be subject to a "potentially endless" cycle of searching).

    178. Id. at 389; see Nash v. United States Dep't of Justice, 992 F. Supp. 447, 449 (D.D.C.) ("The fact that some EOUSA information was located in BOP files when the BOP conducted its search for records maintained by the BOP does not require the EOUSA to conduct a separate search of its own files, absent receipt of a FOIA request submitted to the EOUSA."), summary affirmance granted, No. 98-5096, 1998 WL 545424 (D.C. Cir. July 20, 1998). But see Kefalos v. IRS, No. 2-97-117, 1998 WL 419983, at **9-10 (S.D. Ohio Apr. 3, 1998) (refusing to grant summary judgment because affidavit inadequate in face of allegation by plaintiff that documents released reference existence of other documents), subsequent opinion granting summary judgment to agency, No. 2-97-117, 1998 U.S. Dist. LEXIS 10432 (S.D. Ohio May 19, 1998).

    179. See FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining importance of proper use of "cut-off" dates).

    180. See, e.g., Pub. Citizen v. Dep't of State, 276 F.3d 634, 643-44 (D.C. Cir. 2002) (finding an agency's search to be inadequate because the agency unjustifiably failed to use a later "cut-off" date that "might have resulted in the retrieval of more [responsive] documents"); McGehee v. CIA, 697 F.2d 1095, 1101 (D.C. Cir.) (observing that "a temporal limit pertaining to FOIA searches . . . is only valid when the limitation is consistent with the agency's duty to take reasonable steps to ferret out requested documents"), vacated on other grounds on panel reh'g & reh'g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983).

    181. See, e.g., Van Strum v. EPA, No. 91-35404, 1992 WL 197660, at *2 (9th Cir. Aug. 17, 1992) (agreeing that a date-of-search "cut-off" date is "the most reasonable date for setting the temporal cut-off in this case"); McGehee, 697 F.2d at 1104 (favoring a "date-of-search cut-off" because it "results in a much fuller search and disclosure" than does a "date-of-request cut-off"); see also Defenders of Wildlife v. United States Dep't of the Interior No. 03-1192, 2004 WL 842374, at *6 n.10 (D.D.C. Apr. 13, 2004) (recognizing that because the agency's FOIA regulations established a "date-of-search cut-off," records created after the agency's "FOIA search began . . . are not covered by [the FOIA] request").

    182. Nation Magazine, 71 F.3d at 891-92 (rejecting demand that agency search "through 23 years of unindexed files for records pertaining" to subject, while remanding for focus on narrower search for dated memorandum in files indexed chronologically); AFGE v. United States Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (holding that a request that would require an agency "to locate, review, redact, and arrange for inspection a vast quantity of material" is "so broad as to impose an unreasonable burden upon the agency" (citing Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978))); Schrecker v. United States Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002) (rejecting as unreasonable requested search that would have required "hand-search through 574,726 linear feet" of unindexed records), aff'd, 349 F.3d 657 (D.C. Cir. 2003).

    183. Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000) (quoting Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989)); see also 5 U.S.C. 552(a)(3)(A) (requiring that a request "reasonably describe[]" the records sought); Campbell, 164 F.3d at 29 (explaining that a requester must establish a "sufficient predicate" to justify searching for a particular type of record).

    184. Oglesby, 920 F.2d at 68 (citing cases); see Chamberlain, 957 F. Supp. at 294; Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996); see also Sheridan, 9 Fed. Appx. 55, 58 (2d Cir. 2001) (suggesting that agency is under no obligation to search for records in place not initially specified by requester).

    185. Campbell, 164 F.3d at 28 (quoting Oglesby, 920 F.2d at 68); see Comer v. IRS, No. 97-76329, 1999 WL 1922219 at *1 (E.D. Mich. Sept. 30, 1999) (questioning agency's search because it failed to justify why it would not be feasible to search specific places that plaintiff requested be searched), subsequent opinion, 2000 WL 1566279 (E.D. Mich. Aug. 17, 2000), motion for reconsideration denied, 2000 WL 172771 (E.D. Mich. Oct. 5, 2000); cf. Conteh, No. 01-1330, slip op. at 4-5 (D.D.C. Apr. 1, 2002) (chastising agency for not advising plaintiff of existence of records in field offices, reference to which was found when initial search was conducted; "[i]nstead, the parties and this Court unnecessarily are forced to expend time and resources to litigate the matter").

    186. Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999); see Pub. Citizen v. Dep't of Educ., 292 F. Supp. 2d 1, 7-8 (D.D.C. 2003) (refusing to approve computerized search for records when those records did not contain requested information, but ordering instead manual review of 25,000 paper files); Juda v. United States Customs Serv., No. 99-5333, 2000 WL 1093326, at **1-2 (D.C. Cir. June 19, 2000) (per curiam) (reversing grant of summary judgment where agency "fail[ed] to pursue clear leads to other existing records").

    187. See Garcia v. United States Dep't of Justice, 181 F. Supp. 2d 356, 368 (S.D.N.Y. 2002) ("The agency is not expected to take extraordinary measures to find the requested records."); Blanton v. United States Dep't of Justice, 182 F. Supp. 2d 81, 85 (D.D.C. 2001) ("FOIA does not impose an obligation on defendant to contact former employees to determine whether they know of the whereabouts of records that might be response to a FOIA request."), aff'd, 64 Fed. Appx. 787 (D.C. Cir. 2003) (per curiam); Brunskill v. United States Dep't of Justice, No. 99-3316, slip op. at 4-5 (D.D.C. Mar. 19, 2001) (concluding that FBI has no obligation to search for records at Customs Service, because "there is no basis to compel defendant to conduct its search outside its own systems of records"). Contra Comer v. IRS, No. 97-76329, 2001 U.S. Dist. LEXIS 16996, at *10 (E.D. Mich. Sept. 25, 2001) (deciding that "it is not unreasonable to attempt to question a former employee about the possible existence of documents related to one request," even while recognizing that the former employee might not remember the document or might not even be found).

    188. See, e.g., Valencia-Lucena, 180 F.3d at 327 ("Pursuant to the regulations of the National Archives and Records Administration . . . agency records stored at a federal record center are deemed 'to be maintained by the agency which deposited the record.'" (quoting 36 C.F.R. 1229.162 (1998))).

    189. Campbell, 164 F.3d at 28; see Truitt, 897 F.2d at 545-46 (admonishing agency to "admit and correct error when error is revealed" and conduct additional searches if requester suggests other areas in which to look). But cf. Hall v. United States Dep't of Justice, 63 F. Supp. 2d 14, 18 (D.D.C. 1999) (inviting plaintiff to make another FOIA request for records the existence of which were only "suggested" by documents already released).

    190. See Nation Magazine v. Dep't of State, No. 92-2303, slip op. at 13-15 (D.D.C. Aug. 18, 1995) (holding that search, which was limited to single DEA field office based on information supplied in request, to be "particularly appropriate here due to the fact that DEA must manually search its noninvestigative records").

    191. See id. at 15-16 (holding that plaintiff was bound to scope of request as narrowed in litigation).

    192. Steinberg, 23 F.3d at 552 (concluding that "[otherwise] an agency . . . might be forced to examine virtually every document in its files, following an interminable trail of cross-referenced documents like a chain letter winding its way through the mail"); see also Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1050 (D.D.C. 1994) (adequacy of search not undermined by fact that requester has received additional documents mentioning subject through separate request, when such documents are "tagged" to name of subject's associate). See generally Campbell, 164 F.3d at 28 ("[T]he proper inquiry is whether the requesting party has established a sufficient predicate to justify searching for a particular type of record.").

    193. Pollack v. Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989); see Miller v. United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1986) ("An agency may prove the reasonableness of its search through affidavits of responsible agency officials so long as the affidavits are relatively detailed, nonconclusory, and submitted in good faith."); Weisberg, 705 F.2d at 1351 (same); Perry, 684 F.2d at 127 ("[A]ffidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA."); Goland, 607 F.2d at 352 (finding agency's description of withheld material to be "specifically described and justified"); Triestman v. United States Dep't of Justice, 878 F. Supp. 667, 672 (S.D.N.Y. 1995), 878 F. Supp. at 672 ("[A]ffidavits attesting to the thoroughness of an agency search of its records and its results are presumptively valid."); see also FOIA Update, Vol. IV, No. 1, at 6 (discussing what constitutes "adequate search"); cf. FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining importance of proper use of "cut-off" dates in determining appropriate temporal limits of search).

    194. Oglesby, 920 F.2d at 68 (declaring that although agency was not required to search "every" record system, "[a]t the very least, [it] was required to explain in its affidavit that no other record system was likely to produce responsive documents"); see Church of Scientology, 792 F.2d at 151 (ruling that agency affidavit should describe general structure of agency's file system, which makes further search difficult); Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) ("Affidavits that include search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered presumptively sufficient."), summary affirmance granted, No. 01-5451, 2002 WL 31189766, at *1 (D.C. Cir. Oct. 2, 2002); Smith v. ATF, 977 F. Supp. 496, 502 (D.D.C. 1997) (stating that agency affidavits must establish adequacy of both search methods and scope of search); see also Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (reversing grant of summary judgment because "nothing in the record certif[ies] that all records . . . have been produced"); Steinberg, 23 F.3d at 552 (finding description of search inadequate when it failed "to describe in any detail what records were searched, by whom, and through what process"); Oglesby, 920 F.2d at 68; Tarullo v. DOD, 170 F. Supp. 2d 271, 274 (D. Conn. 2001) (deciding that absence in agency's declaration of description of scope and nature of search "makes it impossible" to find that search was reasonable); Judicial Watch, Inc. v. United States Dep't of Commerce, 34 F. Supp. 2d 28, 46 (D.D.C. 1998) (denying unprecedented partial summary judgment motion filed by agency against itself and requiring "restrictive and rigorous" search because of "egregious" agency conduct); Law Firm of Tidwell Swaim & Assocs. v. Herrmann, No. 3:97-2097, 1998 WL 740765, at *4 (N.D. Tex. Oct. 16, 1998) (denying summary judgment because of dispute as to proper scope of agency search). But see Maynard, 986 F.2d at 560 (refusing to find that district court abused its discretion when it denied as untimely plaintiff's motion for reconsideration based on allegation that agency "improperly limited its search").

    195. See, e.g., Iturralde, 315 F.3d at 313-14 (explaining requirements for adequate search); Valencia-Lucena, 180 F.3d at 326 (same); Landmark Legal Found., 272 F. Supp. 2d at 66 (finding a search affidavit to be sufficient because it "identifi[ed] the affiants and their roles in the agency, discuss[ed] how the FOIA request was disseminated with their office and the scope of the search, which particular files were searched, and the chronology of the search"); Garcia v. United States Dep't of Justice, 181 F. Supp. 356, 368 (S.D.N.Y. 2002) ("To fulfill the adequate search requirement of the [FOIA], the government should identify the searched files and recite facts which enable the district court to satisfy itself that all appropriate files have been searched.").

    196. See, e.g., Carney, 19 F.3d at 814 ("An affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy Rule 56(e); there is no need for the agency to supply affidavits from each individual who participated in the actual search."); Maynard, 986 F.2d at 560 (same); SafeCard, 926 F.2d at 1202 (ruling that employee "in charge of coordinating the [agency's] search and recovery efforts [is] most appropriate person to provide a comprehensive affidavit"); see also Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995) (holding appropriate declarant's reliance on standard search form completed by his predecessor); Kay v. FCC, 976 F. Supp. 23, 33 n.29 (D.D.C. 1997) ("Generally, declarations accounting for searches of documents that contain hearsay are acceptable."), aff'd, 172 F.3d 919 (D.C. Cir. 1998) (unpublished table decision); Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (ruling that agency employee with "firsthand knowledge" of relevant files was appropriate person to supervise search undertaken by contractor); Spannaus v. United States Dep't of Justice, No. 85-1015, slip op. at 7 (D. Mass. July 13, 1992) (finding affidavit of agency employee sufficient when third party claimed to have knowledge of additional documents and employee contacted that individual); cf. Homer J. Olsen, Inc. v. United States Dep't of Transp. Fed. Transit Admin., No. 02-00673, 2002 WL 31738794, at *5 n.4 (N.D. Cal. Dec. 2, 2002) (sustaining objection to declaration from employee who had no personal knowledge about what records were produced by regional office in response to a request). But see Katzman v. CIA, 903 F. Supp. 434, 438-39 (E.D.N.Y. 1995) (finding declaration from agency's FOIA coordinator inadequate when agency initially misidentified requester's attorney as subject of request, and requiring declarations from supervisors in each of agency's three major divisions attesting that search was conducted for correct subject).

    197. See Patterson, 56 F.3d at 840; Maynard, 986 F.2d at 560; Miller, 779 F.2d at 1378; Weisberg, 705 F.2d at 1351; see also Williams v. United States Attorney's Office, No. 96-1367, slip op. at 5 (D.D.C. Sept. 21, 1999) (explaining that to prove adequacy of search, agency's affidavit should describe "where and how it looked for responsive records" and "what it was looking for"); Bennett v. DEA, 55 F. Supp. 2d 36, 40 (D.D.C. 1999) (pointing out that affidavit must provide details of scope of search; "simply stating that 'any and all records' were searched is insufficient").

    198. Maynard, 986 F.2d at 560 (citing Miller, 779 F.2d at 1383); see, e.g., Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994); Weisberg, 705 F.2d at 1351-52; Triestman v. United States Dep't of Justice, 878 F. Supp. 667, 672 (S.D.N.Y. 1995); Tota v. United States, No. 99-0445E, 2000 WL 1160477, at *2 (W.D.N.Y. 2000) (explaining that to avoid summary judgment in favor of agency, plaintiff must show "bad faith," by "presenting specific facts showing that documents exist" that were not produced); cf. Harvey v. United States Dep't of Justice, No. 92-176, slip op. at 10 (D. Mont. Jan. 9, 1996) ("The purported bad faith of government agents in separate criminal proceedings is irrelevant to [the] question of the adequate, good faith search for documents responsive to a FOIA request."), aff'd on other grounds, 116 F.3d 484 (9th Cir. 1997) (unpublished table decision).

    199. Chilingirian v. United States Attorney Executive Office, 71 Fed. Appx. 571, 572 (6th Cir. 2003) (citing United States Dep't of State v. Ray, 502 U.S. 164, 179 (1991)); see, e.g., Wood v. FBI, No. 3:02-CV-0258, 2004 WL 719242, at *5 (D. Conn. Mar. 31, 2004) (citing Carney, 19 F.3d at 812); Piper, 294 F. Supp. 2d at 24 (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

    200. Steinberg, 23 F.3d at 552 (quoting SafeCard, 926 F.2d at 1201); see Kucernak v. FBI, No. 96-17143, 1997 WL 697377, at *1 (9th Cir. Nov. 4, 1997) ("Mere allegations that the government is shielding or destroying documents does [sic] not undermine the adequacy . . . of the search."); Oglesby, 920 F.2d at 67 n.13 ("[H]ypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of the agency's search."); Flowers v. IRS, 307 F. Supp. 2d 60, 67 (D.D.C. 2004) (stating that "'purely speculative claims about the existence and discoverability of other documents'" are not enough to rebut presumption of good faith (quoting SafeCard, 926 F.2d at 1200)); Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292, 294 (D.D.C. 1997) ("It is well established that '[a]gency affidavits enjoy a presumption of good faith that withstand[s] purely speculative claims about the existence and discoverability of other documents.'" (quoting Albuquerque Publ'g Co. v. United States Dep't of Justice, 726 F. Supp. 851, 860 (D.D.C. 1989))); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 10 (D.D.C. 1995) ("Nor can plaintiff rely on unsupported inferences that other documents must have been created."), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996); Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep't of State, 818 F. Supp. 1291, 1295 (N.D. Cal. 1992) ("Plaintiff's incredulity at the fact that no responsive documents were uncovered . . . does not constitute evidence of unreasonableness or bad faith."); see also Students Against Genocide v. Dep't of State, 257 F. 3d 828, 839 (D.C. Cir. 2001) ("[T]hat the Department gave SAGE more information than it requested does not undermine the conclusion that its search was reasonable and adequate."); cf. NARA v. Favish, 124 S. Ct. 1570, 1582 (2004) (noting realistically that "[a]llegations of government misconduct are easy to 'allege and hard to disprove'" (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (non-FOIA case))). But see Meyer v. Fed. Bureau of Prisons, 940 F. Supp. 9, 14 (D.D.C. 1996) (reference to responsive pages in agency memorandum, coupled with equivocal statement in declaration that it "appears" responsive pages do not exist, requires further clarification by agency); Katzman v. Freeh, 926 F. Supp. 316, 320 (E.D.N.Y. 1996) (because additional documents were referenced in released documents, summary judgment was withheld "until defendant releases these documents or demonstrates that they either are exempt from disclosure or cannot be located").

    201. See Nation Magazine, 71 F.3d at 892 n.7 ("Of course, failure to turn up [a specified] document does not alone render the search inadequate."); Citizens Comm'n, 45 F.3d at 1328 (adequacy of search not undermined by inability to locate 137 out of 1000 volumes of responsive material, absent evidence of bad faith, and when affidavit contained detailed, nonconclusory account of search); Maynard, 986 F.2d at 564 ("'The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it.'" (quoting Miller, 779 F.2d at 1385)); Piper, 294 F. Supp. 2d at 23-24 (stating that because the "inquiry regarding the adequacy of a search is the search itself and not the results thereof," the fact that documents were missing is insufficient to rebut otherwise-adequate affidavits demonstrating the reasonableness of the search); Grace v. Dep't of Navy, No. 99-4306, 2001 WL 940908, at *4 (N.D. Cal. Aug. 13, 2001) (finding "more than reasonably adequate" an agency search for misplaced personnel records); Tolotti v. IRS, No. 97-003, 2000 WL 1274235, at *1 (D. Nev. July 14, 2000) ("Obviously the agency cannot produce destroyed documents."); Coalition on Political Assassinations v. DOD, No. 99-0594, slip op. at 7 (D.D.C. Mar. 29, 2000) (reasoning that even if the agency once possessed responsive records, the agency's unsuccessful search was nevertheless thorough and well-explained and thus the agency "fulfilled its obligation under the FOIA"), aff'd, 12 Fed. Appx. 13 (D.C. Cir. 2001); Kay, 976 F. Supp. at 33 (explaining that search not inadequate simply because plaintiff received in discovery documents not produced in response to FOIA request; discovery "may differ from FOIA disclosure procedures"); Antonelli v. United States Parole Comm'n, No. 93-0109, slip op. at 2 (D.D.C. Feb. 23, 1996) ("While it is undisputed that [plaintiff] provided the U.S. Marshals Service with a copy of the document he now seeks, the fact that the USMS cannot find it is not evidence of an insufficient search."); Shewchun v. INS, No. 95-1920, slip op. at 7 (D.D.C. Dec. 10, 1995) ("Nor does plaintiff's identification of undisclosed documents that he has obtained through other sources render the search unreasonable."), summary affirmance granted, No. 97-5044 (D.C. Cir. June 5, 1997). But cf. Tran v. United States Dep't of Justice, No. 01-0238, 2001 U.S. Dist. LEXIS 21552, at **12-13 (D.D.C. Nov. 20, 2001) (finding that "it is not enough for [an agency] to simply state that [the] documents are destroyed or missing" without providing more explanation), motion for summary judgment granted, 2002 WL 535815 (D.D.C. Mar. 12, 2002); Kronberg, 875 F. Supp. at 870-71 (requiring government to provide additional explanation for absence of documentation required by statute and agency regulations to be created, when plaintiff presented evidence that other files, reasonably expected to contain responsive records, were not identified as having been searched).

    202. Roberts v. United States Dep't of Justice, No. 92-1707, 1995 WL 356320, at *2 (D.D.C. Jan. 28, 1993); see Miller, 779 F.2d at 1385 ("Thus, the Department is not required by the Act to account for documents which the requester has in some way identified if it has made a diligent search for those documents in places in which they might be expected to be found."); see also Physicians Comm. for Responsible Med. v. Glickman, 117 F. Supp. 2d 1, 4 (D.D.C. 2000) (while acknowledging that individuals might have had personal "emails and telephone conversations," nevertheless declaring that "t]here is no evidence . . . that the agency ever had [these] records," despite plaintiff's insistence to the contrary). But see Valencia-Lucena, 180 F.3d at 328 (suggesting that unless it would be "fruitless" to do so, agency is required to seek out employee responsible for record "when all other sources fail to provide leads to the missing record" and when "there is a close nexus . . . between the person and the particular record").

    203. See Maynard, 986 F.2d at 565 ("Rather than bad faith, we think that the forthright disclosure by the INS that it had located the misplaced file suggests good faith on the part of the agency."); Meeropol, 790 F.2d at 953 (rejecting the argument that later-produced records call the adequacy of a search into question, because "[i]t would be unreasonable to expect even the most exhaustive search to uncover every responsive file"); Goland, 607 F.2d at 370 (refusing to undermine validity of agency's prior search because one week following decision by court of appeals agency had discovered numerous, potentially responsive, additional documents several months earlier); Landmark Legal Found., 272 F. Supp. 2d at 63 (emphasizing that the "continuing discovery and release of documents does not provide that the original search was inadequate, but rather shows good faith on the part of the agency that it continues to search for responsive documents"); Campaign for Responsible Transplantation v. FDA, 219 F. Supp. 2d 106, 111 (D.D.C. 2002) (suggesting that the discovery of fifty-five additional documents amounted to a "proverbial 'drop in the bucket'" in light of the voluminous number of documents located as a result of the agency's search); Torres v. CIA, 39 F. Supp. 2d 960, 963 (N.D. Ill. 1999) (rejecting challenge to the adequacy of search when "a couple of pieces of paper -- having no better than marginal relevance" -- were uncovered during additional searches); Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1024 (W.D. Mich. 1998) (concluding that continued release of responsive documents attests to agency's good faith in providing complete response); Gilmore v. NSA, No. 92-3646, 1993 U.S. Dist. LEXIS 7694, at *27 (N.D. Cal. Apr. 30, 1993) (acceptance of plaintiff's "'perverse theory that a forthcoming agency is less to be trusted in its allegations than an unyielding agency'" would "'work mischief in the future by creating a disincentive for the agency to reappraise its position'" (quoting Military Audit Project v. Casey, 656 F.2d 724, 754 (D.C. Cir. 1981))), aff'd, 76 F.3d 386 (9th Cir. 1995) (unpublished table decision).

    204. See 5 U.S.C.  552(a)(4)(B) (2000); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) ("When an agency declines to produce a requested document, the agency bears the burden . . . of proving the applicability of claimed statutory exemptions.").

    205. See Parenti v. IRS, 70 Fed. Appx. 470, at *1 (9th Cir. 2003) (holding that FOIA claim is moot if search was adequate and all responsive documents were produced); Lepelletier v. FDIC, 23 Fed. Appx. 4, 6 (D.C. Cir. 2001) (refusing to consider case further because plaintiff "received all -- indeed more than -- the relief he initially sought . . . [c]onsequently, his appeal is moot . . . ."); Anderson v. HHS, 3 F.3d 1383, 1384 (10th Cir. 1993) (citing Carter v. VA, 780 F.2d 1479, 1481 (9th Cir. 1986), and DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir. 1984)); Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) ("'[H]owever fitful or delayed the release of information, . . . if we are convinced appellees have, however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.'" (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982))); Walsh v. VA, No. 03-C-0225, slip op. at 2 (E.D. Wis. Feb. 10, 2004) (pointing out that "'[i]n FOIA cases, mootness occurs when requested documents have already been produced'" (quoting Matter of Wade, 969 F.2d 241, 248 (7th Cir. 1992))); see also Fisher v. FBI, 94 F. Supp. 2d 213, 216 (D. Conn. 2000) (finding the lawsuit moot and explaining that "[t]he fact that the records came after some delay is not necessarily tantamount to an improper denial of the records; rather, it is an unfortunate consequence of the kind of repetitious requests made by plaintiff"); cf. Long v. ATF, 964 F. Supp. 494, 497-98 (D.D.C. 1997) (holding that agency's grant of fee waiver renders moot issue of requester's status for purposes of assessing fees on that request). But see also Marin Inst. for the Prevention of Drug & Other Alcohol Problems v. HHS, No. 98-17345, 2000 WL 964620, at *1 (9th Cir. July 11, 2000) (finding no mootness when release of document at issue was "surreptitious[]" and not necessarily document plaintiff requested); Boyd v. United States Marshal Serv., No. 99-2712, 2000 U.S. Dist. LEXIS 14025, at *2 (D.D.C. Sept. 25, 2000) (refusing to dismiss case despite fact that all responsive, nonexempt records were released, because agency "[has] yet to explain [its] redactions or withholdings"); Looney v. Walters-Tucker, 98 F. Supp. 2d 1, 3 (D.D.C. 2000) (refusing to dismiss a case as moot where all records located as responsive were produced, because "[i]n a FOIA case, courts always have jurisdiction to determine the adequacy of search"), aff'd per curiam sub nom. Looney v. FDIC, 2 Fed. Appx. 8 (D.C. Cir. 2001); cf. Anderson v. HHS, 907 F.2d 936, 941 (10th Cir. 1990) (declaring that although plaintiff had already obtained all responsive documents in private civil litigation, albeit subject to protective order, plaintiff's FOIA litigation to obtain documents free from any such restriction remained viable).

    206. See, e.g., Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (dismissing case as moot because only issue in case was "tardiness" of agency response, which was made moot by agency disclosure determination); Atkins v. Dep't of Justice, No. 90-5095, 1991 WL 185084, at *1 (D.C. Cir. Sept. 18, 1991) ("The question whether DEA complied with the [FOIA's] time limitation in responding to [plaintiff's] request is moot because DEA has now responded to this request."); Larson v. Executive Office for United States Attorneys, No. 85-6226, slip op. at 4-5 (D.C. Cir. Apr. 6, 1988) (holding that appeal of district court denial of relief to plaintiff for defendant's processing delays became moot upon completion of processing); Walsh, No. 03-C-0225, slip op. at 3-4 (E.D. Wis. Feb. 10, 2004) (finding a claim for declaratory relief to be "without merit" because although the agency failed to respond within the FOIA's time limits, it released all records, thus ending any "actual controversy between the parties") (internal quotations omitted); Potts v. United States Dep't of the Treasury, No. 3:02-1599, 2003 WL 22872408, at *2 (N.D. Tex. Oct. 8, 2003) (magistrate's recommendation) ("To the extent that Plaintiffs' complaint is based on the tardiness of Defendant's response to their FOIA requests, their claim has been rendered moot because the [agency] produced the documents."), adopted, 2003 WL 22952825 (N.D. Tex. Nov. 5, 2003); Gambini v. United States Customs Serv., No. 5:01-CV-300, 2001 U.S. Dist. LEXIS 21336, at *4 (N.D. Tex. Dec. 21, 2001) (same).

    207. 837 F.2d 486 (D.C. Cir. 1988).

    208. Id. at 488-93; see also Gilmore v. United States Dep't of Energy, 4 F. Supp. 2d 912, 924 (N.D. Cal. 1998) (finding "independent cause of action" for agency's failure to respond within statutory time limits, despite correctness of agency's disclosure determination), dismissed per stipulation, No. 95-0285 (N.D. Cal. Apr. 3, 2000). But see OSHA Data/C.I.H., Inc. v. United States Dep't of Labor, 105 F. Supp. 2d 359, 368 (D.N.J. 1999) (refusing to permit claim to go forward when no proof existed that agency would routinely refuse to release data for period of time), aff'd, 220 F.3d 153 (3d Cir. 2000); Reg'l Mgmt. Corp. v. Legal Servs. Corp., 10 F. Supp. 2d 565, 573 (D.S.C. 1998) (refusing to permit further consideration of moot claim as there was no evidence of continuing injury to requester from "isolated event"), aff'd, 186 F.3d 457 (4th Cir. 1999).

    209. Payne Enters., 837 F.2d at 491; see also, e.g., Hercules, Inc. v. Marsh, 839 F.2d 1027, 1028 (4th Cir. 1988) (holding that threat of disclosure of agency telephone directory not mooted by release because new request for subsequent directory pending; agency action thus "capable of repetition yet evading review") (reverse FOIA suit); Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 90-91 (D.C. Cir. 1986) (holding that challenge to fee waiver standards as applied was moot, but challenge to facial validity of standards was ripe and not moot); Pub. Citizen v. Office of the United States Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992) (stating that despite the disclosure of the specific records requested, a court retains jurisdiction when a plaintiff challenges an "agency's policy to withhold temporarily, on a regular basis, certain types of documents"). But see Atkins v. Dep't of Justice, 1991 WL 185084, at *1 (D.C. Cir. Sept. 18, 1991) ("The question whether DEA complied with the [FOIA's] time limitation in responding to [plaintiff's] request is moot because DEA has now responded to this request."); cf. McDonnell Douglas Corp. v. NASA, 109 F. Supp. 2d 27, 29 (D.D.C. 2000) (holding that the "voluntary cessation" doctrine does not apply in the "reverse" FOIA context; when "the FOIA request underlying the litigation" is withdrawn, the case is moot).

    210. See, e.g., Reg'l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 464-65 (4th Cir. 1999) (refusing to consider challenge to alleged policy of nondisclosure of documents relating to ongoing investigations because claim was not "ripe"); Gilmore v. NSA, No. 94-16165, 1995 WL 792079, at *1 (9th Cir. Dec. 11, 1995) (refusing to grant injunction for alleged "systemic agency abuse" in responding to FOIA requests where system of handling requests was "reasonable" and records were "diverse and complex," requiring "painstaking review"); Swan View Coalition v. USDA, 39 F. Supp. 2d 42, 47 (D.D.C. 1999) (refusing to grant declaratory relief where agency's failure to timely respond was "an aberration"); cf. Eison v. Kallstrom, 75 F. Supp. 2d 113, 114, 117 (S.D.N.Y. 1999) (allowing plaintiff to amend original complaint in order to allege improper withholding of records, where original complaint had asked for injunction against "pattern and practice" of delayed agency responses, which court deemed "now moot"). But see Gilmore v. United States Dep't of Energy, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998) (allowing discovery on "pattern and practice" claim of agency delay in processing FOIA requests), dismissed per stipulation, No. 95-0285 (N.D. Cal. Apr. 3, 2000).

    211. See, e.g., Antonelli v. Executive Office for United States Attorneys, No. 92-2416, 1994 WL 245567, at *1 (7th Cir. June 6, 1994) (affirming district court's dismissal of Complaint when, seven months after plaintiff's Complaint was found defective for lack of specificity, plaintiff had failed to amend); Colon v. Huff, No. 00-0201, slip op. at 2-3 (M.D. Pa. June 2, 2000) (dismissing suit for plaintiff's failure to prosecute and failure to keep court apprised of his current address); Nuzzo v. FBI, No. 95-1708, 1996 WL 741587, at *2 (D.D.C. Oct. 8, 1996) (after appropriate warning, dismissing action against several defendants because of plaintiff's failure to respond to motions for summary judgment).

    212. See Kleinerman v. Patent & Trademark Office, No. 82-295, 1983 WL 658, at *1 (D. Mass. Apr. 25, 1983) (dismissing FOIA action because Patent and Trademark Act gave plaintiff independent right of access provided he paid for records); cf. Perales v. DEA, 21 Fed. Appx. 473, 474 (7th Cir. 2001) (dismissing a suit brought to obtain access to an "implementing regulation," because " 552(a)(3) of the FOIA does not cover material already made available through publication in the Federal Register").

    213. See, e.g., Doe v. Veneman, 230 F. Supp. 2d 739, 746 (W.D. Tex. 2002) (dismissing claims regarding "other pending FOIA requests" as "too broad for the Court to effectively review because such requests are numerous, request a variety of information, and are still pending with administrative agencies") (appeal pending); Rodrequez v. USPS, No. 90-1886, 1991 WL 212202, at *2 (D.D.C. Oct. 2, 1991) (finding case not yet ripe, absent submission of further information enabling identification of plaintiff's records from among those of thirty-six persons with same name); Nat'l Sec. Archive v. United States Dep't of Commerce, No. 87-1581, 1987 WL 27208, at *1 (D.D.C. Nov. 25, 1987) (dismissing a fee waiver case because "of the incomplete nature of the administrative record and the lack of a final administrative decision").

    214. See Sinito v. United States Dep't of Justice, 176 F.3d 512, 515-16 (D.C. Cir. 1999) (finding that FOIA cause of action survives death of original requester, but restricting substitution of parties to successor or representative of deceased, pursuant to Rule 25 of Federal Rules of Civil Procedure); D'Aleo v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS, at **2-4 (D.D.C. Mar. 27, 1991) (appointing as plaintiff deceased plaintiff's sister, who was executrix of his estate). But cf. Hayles v. United States Dep't of Justice, No. H-79-1599, slip op. at 3 (S.D. Tex. Nov. 2, 1982) (dismissing case upon death of plaintiff when no timely motion for substitution was filed).

    215. See generally FOIA Update, Vol. VI. No. 3, at 6 (discussing "preclusion doctrines" under the FOIA).

    216. See Schwarz v. Nat'l Inst. of Corrections, No. 98-1230, 1998 WL 694510, at *1 (10th Cir. Oct. 15, 1998) (affirming dismissal of case because plaintiff's argument that defendant was not party to earlier action was found to be without factual basis); Wrenn v. Shalala, No. 94-5198, 1995 WL 225234, at *1 (D.C. Cir. Mar. 8, 1995) (affirming dismissal of requests that were subject of plaintiff's previous litigation, but reversing dismissal on "claims that were not and could not have been litigated in that prior action"); NTEU v. IRS, 765 F.2d 1174, 1177 (D.C. Cir. 1985) (refusing to consider successive FOIA suits for documents that were "identical except for the year involved"); Tobie v. Wolf, No. 01-3899, 2002 WL 1034061, at *1 (N.D. Cal. May 8, 2002) (finding privity between "officers of the same government," and therefore dismissing the suit, because plaintiff previously litigated the same issues against a component of the agency named as a co-defendant in a later suit); Bernson v. ICC, 635 F. Supp. 369, 371 (D. Mass. 1986) (refusing to accept argument that changed circumstances rendered inapplicable previous decision affirming invocation of FOIA exemption, and dismissing claim based on res judicata); Church of Scientology v. IRS, 569 F. Supp. 1165, 1169 (D.D.C. 1983) ("Where the issues, documents, and plaintiffs are identical in both the prior and present FOIA litigation, the issue of exemption cannot be relitigated.") (internal quotations omitted), vacated & remanded on other grounds, 792 F.2d 146 (D.C. Cir. 1986); see also Greyshock v. United States Coast Guard, No. 94-563, slip op. at 2-3 (D. Haw. Jan. 25, 1996) ("All of the claims brought in the instant actions were undeniably claims which either were or could have been brought in this first action in the District Court for the District of Columbia. For that reason alone, plaintiff is precluded from any further pursuit of these claims in this or any other court."), aff'd in part & rev'd in part on other grounds, 107 F.3d 16 (9th Cir. 1997) (unpublished table decision). Compare Hanner v. Stone, No. 92-2565, 1993 WL 302206, at *1 (6th Cir. Aug. 6, 1993) (holding that under doctrine of res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in a prior action") (emphasis added), with Hanner v. Stone, No. 92-1579, 1992 WL 361382, at *1 (6th Cir. Dec. 8, 1992) (determining that present claim was not precluded under doctrine of res judicata when appellate court had previously adjudicated claim that was similar, but involved different issue).

    217. See North v. Walsh, 881 F.2d 1088, 1093-95 (D.C. Cir. 1989) (deciding that claim for records under FOIA was not barred by prior discovery prohibition for same records in criminal case in which FOIA claim could not have been interposed).

    218. See, e.g., Croskey v. United States Office of Special Counsel, No. 96-5114, 1997 WL 702364, at *3 (D.C. Cir. Oct. 17, 1997) (finding res judicata inapplicable because document was not in existence when earlier litigation was brought); Wolfe v. Froehlke, 358 F. Supp. 1318, 1219 (D.D.C. 1973) (stating that lawsuit was not barred where national security status had changed), aff'd, 510 F.2d 654 (D.C. Cir. 1974); cf. Primorac v. CIA, 277 F. Supp. 2d 117, 120 (D.D.C. 2003) (dismissing case on basis of res judicata despite plaintiff's argument that automatic declassification section of Executive Order 12,958 was unavailable to him in previous lawsuit for same records and fact that it was still unavailable because it was not yet effective).

    219. See McHale v. FBI, No. 99-1628, slip op. at 8-9 (D.D.C. Nov. 7, 2000) (dismissing "essentially duplicative action").

    220. Biochem Parma, Inc. v. Emory Univ., 148 F. Supp. 2d 11, 13 (D.D.C. 2001) (citing Columbia Plaza Corp. v. Sec. Nat'l Bank, 525 F.2d 620, 627 (D.C. Cir. 1975)) (non-FOIA cases).

    221. See McHale, No. 99-1628, slip op. at 3 (D.D.C. Nov. 7, 2000) (describing purpose of "first-filed" rule as "conserv[ation of] judicial resources"); see also Flynn v. Place, 63 F. Supp. 2d 18, 25 (D.D.C. 1999) (explaining that purpose of res judicata doctrine is to "protect[] adversaries from expensive and vexatious multiple lawsuits, [and] conserve[] judicial resources") (non-FOIA case).

    222. See generally FOIA Update, Vol. VI, No. 3, at 6.

    223. See Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (non-FOIA case); Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 750-51 (9th Cir. 1980) (declaring that complete identity of plaintiff and document at issue precludes relitigation); Williams v. Executive Office for United States Attorneys, No. 89-3071, slip op. at 3-4 (D.D.C. Mar. 19, 1991) (same); see also FOIA Update, Vol. VI, No. 3, at 6; cf. Cotton v. Heyman, 63 F.3d 1115, 1118 nn.1-2 (D.C. Cir. 1995) (holding that doctrine of direct estoppel, which precludes relitigating issue finally decided in "separate proceeding" within same suit, prevented Smithsonian Institution from challenging district court determination that it is subject to FOIA on appeal from award of attorney fees; however, "Smithsonian is free to relitigate the issue against another party in a separate proceeding"). But see North, 881 F.2d at 1093-95 (finding issue preclusion inapplicable when exemption issues raised in FOIA action differ from relevancy issues raised in prior action for discovery access to same records).

    224. See, e.g., Allnut v. United States Dep't of Justice, 99 F. Supp. 673, 677 (D. Md. 2000) (refusing, "[i]n accord with basic res judicata principles," to reconsider adequacy of search issue that was decided by another court), aff'd per curiam sub nom. Allnut v. Handler, 8 Fed. Appx. 224 (4th Cir. 2001).

    225. See Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1171 (9th Cir. 2000) (refusing to find that an attorney who represented the plaintiff in a previous case was precluded from relitigating the releasability of death-scene photographs of former Deputy White House Counsel Vincent Foster, because the identity of interests was viewed by the second appellate court as only "an abstract interest in enforcement of FOIA") (internal quotations omitted), rev'd on other grounds sub nom. NARA v. Favish, 124 S. Ct. 1570 (2004); reh'g denied, No. 02-409, 2004 WL 1085633 (U.S. May 17, 2004); see also FOIA Post, "Supreme Court to Hear FOIA and Privacy Act Cases Back-to-Back" (posted 9/30/03; supplemented 10/10/03) (describing unusual circumstances of Favish case); cf. Doe v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (permitting third-party intervention in "reverse" FOIA suit in order to avoid collateral estoppel effect of decision potentially adverse to third-party interests); Robertson v. DOD, 402 F. Supp. 1342, 1347 (D.D.C. 1973) (concluding that private citizen's interest in subsequent FOIA action was not protected by government in prior "reverse" FOIA suit over same documents, because interests were not "congruent").

    226. See, e.g., Montana v. United States, 440 U.S. 147, 155-56 (1979) (finding that that government was estopped from rearguing a question that was "definitely and actually litigated and adjudged" in a state court decision, even though the government was not a party to that state court action, because the government had a "sufficient laboring oar" in the state court proceeding "to actuate principles of estoppel") (internal quotations omitted) (non-FOIA case).

    227. Compare Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 123 (D.C. Cir. 1999) (affirming district court denial of access to photographs of former Deputy White House Counsel Vincent Foster death scene, on basis of invasion of privacy), with Favish, 217 F.3d at 1174 (remanding case to district court to view same photographs in camera in order to balance asserted "public interest" against surviving family's privacy interests).

    228. See, e.g., Croskey, 1997 WL 702364, at *5 (concluding that access to investigator's notes and impressions of witnesses adjudicated in prior proceeding was "sufficiently different" from witness statements themselves to bar application of collateral estoppel); Minnis v. USDA, 737 F.2d 784, 786 n.1 (9th Cir. 1984) (declaring that "an intervening Supreme Court decision clarifying an issue that had been uncertain in the lower courts defeats collateral estoppel"); McQueen v. United States, 264 F. Supp. 2d 502, 513-14 (S.D. Tex. 2003) (refusing to find that collateral estoppel prevented plaintiff from litigating "requests for information that may not be essentially identical," despite agency's argument that the contested documents were "the same kinds . . . but for different years").

    229. See 5 U.S.C.  552(a)(4)(B) (2000); see Natural Res. Def. Council v. NRC, 216 F.3d 1180, 1190 (D.C. Cir. 2000) (explaining that the "FOIA itself places the burden on the agency to sustain the lawfulness of specific withholdings in litigation") (Government in the Sunshine Act case); Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 931 (C.D. Ill. 2002) ("Since the Government is the party refusing to produce the documents, it bears the burden of showing that the documents are not subject to disclosure.").

    230. 484 F.2d 820 (D.C. Cir. 1973); see, e.g., Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1042 (D.D.C. 1994) ("Agencies are typically permitted to meet [their] heavy burden by 'filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed.'" (quoting King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987))).

    231. See Vaughn, 484 F.2d at 827; accord King, 830 F.2d at 217.

    232. King, 830 F.2d at 219; Maine v. United States Dep't of the Interior, 298 F.3d 60, 65 (1st Cir. 2002); Rugiero v. United States Dep't of Justice, 257 F.3d 534, 544 (6th Cir. 2001) (explaining that Vaughn Index enables court to make "independent assessment" of agency's exemption claims), cert. denied, 534 U.S. 1134 (2002); Campaign for Responsible Transplantation v. FDA, 219 F. Supp. 2d 106, 116 (D.D.C. 2002) ("Without a proper Vaughn index, a requester cannot argue effectively for disclosure and this court cannot rule effectively."); Cucci v. DEA, 871 F. Supp. 508, 514 (D.D.C. 1994) ("An adequate Vaughn index facilitates the trial court's duty of ruling on the applicability of certain invoked FOIA exemptions, gives the requester as much information as possible that he may use to present his case to the trial court and thus enables the adversary system to operate."); cf. Antonelli v. Sullivan, 732 F.2d 560, 562 (7th Cir. 1984) (holding that no Vaughn Index is required when small number of documents is at issue and affidavit contains sufficient detail); Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 02-126, 2003 WL 21146674, at *6 (M.D. Fla. May 13, 2003) ("'Vaughn indexes are most useful in cases involving thousands of pages of documents.'" (quoting Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993))) (appeal pending).

    233. Long v. United States Dep't of Justice, 10 F. Supp. 205, 209 (N.D.N.Y. 1998); see, e.g., Edmonds v. FBI, 272 F. Supp. 2d 35, 44 (D.D.C. 2003) (explaining that affidavits must "'strive to correct the asymmetrical distribution of knowledge that characterizes FOIA litigation'" (quoting King, 830 F.2d at 218)); see also Kern v. FBI, No. 94-0208, slip op at 5 (C.D. Cal. Sept. 14, 1998) (opining that one purpose of Vaughn Index is "to afford the requester an opportunity to intelligently advocate release of the withheld documents"); cf. Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999) (pointing out that Vaughn Index is not required where it is unnecessary to be particularly concerned about adversarial balance).

    234. See Davin v. United States Dep't of Justice, 60 F.3d 1043, 1065 (3d Cir. 1995) (remanding case for further proceedings and suggesting that another, more detailed Vaughn Index be required); Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 230-40 (1st Cir. 1994) (same); Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991) (remanding case for a more thorough Vaughn Index); Madison Mech. ,Inc. v. NASA, No. 99-2854, 2003 WL 1477014, at *4 (D.D.C. Mar. 20, 2003) (magistrate's recommendation) (recommending that another Vaughn Index be required because of deficiencies in first one), adopted (D.D.C. Mar. 31, 2003); Wilderness Soc'y v. Bureau of Land Mgmt., No. 01-2210, 2003 WL 255971, at *7 (D.D.C. Jan. 15, 2003), modified (D.D.C. Feb. 4, 2003) (requiring supplemental Vaughn Index to correct conclusory and generalized exemption claims); Coleman v. FBI, 972 F. Supp. 5, 9 (D.D.C. 1997) (rejecting narratives on "deleted page sheets" that apply to multiple documents and requiring agency to redo index to "inform the court as to the contents of individual documents and the applicability of the various Exemptions"); see also Bryce v. Overseas Private Inv. Corp., No. 96-595, slip op. at 10 (W.D. Tex. Sept. 28, 1998) ("An agency may submit a revised index at any time prior to the summary judgment hearing." (citing Coastal States Gas Corp. v. Dep't of Energy, 644 F.2d 969, 971, 981 (3d Cir. 1981))).

    235. See, e.g., Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004) (acknowledging that "[u]nder certain limited circumstances, we have endorsed the use of in camera review of government affidavits as the basis for FOIA decisions"); Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1042-43 (9th Cir. 1999) (suggesting likewise that notwithstanding Wiener, 943 F.2d at 979, in camera inspection could by itself be sufficient); Maynard v. CIA, 986 F.2d 547, 557 (1st Cir. 1993) ("Where, as here, the agency, for good reason, does not furnish publicly the kind of detail required for a satisfactory Vaughn index, a district court may review the documents in camera."); Simon v. United States Dep't of Justice, 980 F.2d 782, 784 (D.C. Cir. 1992) (holding that despite inadequacy of Vaughn Index, in camera review, "although admittedly imperfect . . . is the best way to [en]sure both that the agency is entitled to the exemption it claims and that the confidential source is protected"); see also Nat'l Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988) ("[W]here a trial court properly reviewed contested documents in camera, an adequate factual basis for the decision exists."); Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003) (commenting that while Vaughn Index description of documents was "slightly ambiguous," correctness of exemption claims was demonstrated through in camera examination). But see also Wiener, 943 F.2d at 979 (suggesting that "[i]n camera review of the withheld documents by the [district] court is not an acceptable substitute for an adequate Vaughn index").

    236. Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1998); see Fiduccia, 185 F.3d at 1044 ("Any form . . . may be adequate or inadequate, depending on the circumstances."); Church of Scientology, 30 F.3d at 231 (agreeing that there is no set formula for a Vaughn Index); Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994) (holding that justification for withholding provided by agency may take any form as long as agency offers "reasonable basis to evaluate [it]s claim of privilege"); Vaughn v. United States, 936 F.2d 862, 867 (6th Cir. 1991) ("A court's primary focus must be on the substance, rather than the form, of the information supplied by the government to justify withholding requested information.").

    237. Landmark Legal Found. v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001); see Coldiron v. United States Dep't of Justice, No. 02-0927, 2004 WL 440445, at *6 (D.D.C. Mar. 2, 2004) ("Rarely does the court expect to find in briefs, much less Vaughn indices, anything resembling poetry.").

    238. Manna v. United States Dep't of Justice, 832 F. Supp. 866, 873 (D.N.J. 1993) (quoting Hinton v. Dep't of Justice, 844 F.2d 126, 129 (3d Cir. 1988)); see Jones, 41 F.3d at 242 (holding that an agency's Vaughn Index will be seen as adequate so long as it "'enables the court to make a reasoned independent assessment of the claim[s] of exemption'" (quoting Vaughn, 936 F.2d at 866-67)).

    239. St. Andrews Park, Inc. v. United States Dep't of Army Corps of Eng'rs, 299 F. Supp. 2d 1264, 1271 (S.D. Fla. 2003); see also Dorsett v. United States Dep't of the Treasury, 307 F. Supp. 2d 28, 34 (D.D.C. 2004) (describing adequate Vaughn Index).

    240. Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (quoting SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)); see, e.g., Jones, 41 F.3d at 242 (reiterating that agency affidavits entitled to presumption of good faith); Cohen v. FBI, No. 93-1701, slip op. at 4 (D.D.C. Oct. 11, 1994) ("[M]inor contradictions in defendants' affidavits do not evince intentional misrepresentation on their part."); see also Church of Scientology, 30 F.3d at 233 (explaining that a good-faith presumption is applicable only "when the agency has provided a reasonably detailed explanation for its withholdings . . . court may not without good reason second-guess an agency's explanation, but it also cannot discharge its de novo review obligation unless that explanation is sufficiently specific"); Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958, 962 (C.D. Cal. 2003) (explaining that a plaintiff's disagreement with the conclusions reached in a Vaughn Index is not a sufficient basis for challenging it, and observing that "such a challenge is . . . appropriate [only] when the defendant does not provide sufficient explanation of its position to allow for disagreement"), appeal dismissed voluntarily, No. 03-55833 (9th Cir. 2003); cf. NARA v. Favish, 124 S. Ct. 1570, 1581-82 (2004) (requiring "meaningful evidentiary showing" to overcome "presumption of legitimacy accorded to the Government's official conduct," because "[a]llegations of government misconduct are easy to 'allege and hard to disprove'" (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (non-FOIA case))); FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (discussing how unsubstantiated allegations of official misconduct are insufficient to establish "public interest" in disclosure of third-party records, as enunciated in Favish).

    241. Info. Acquisition Corp. v. Dep't of Justice, 444 F. Supp. 458, 462 (D.D.C. 1978); see, e.g., Landmark Legal Found., 267 F.3d at 1138 (chiding plaintiff for his criticism of repetitive nature of Vaughn Index, given that "thousands of documents belonged in the same category"); Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (finding adequate, for responsive records consisting of 1000 volumes of 300 to 400 pages each, agency's volume-by-volume summary when Vaughn Indexes "specifically describe the documents' contents and give specific reasons for withholding them"); Davis v. United States Dep't of Justice, 968 F.2d 1276, 1282 n.4 (D.C. Cir. 1992) (opining that precise matching of exemptions with specific withheld items "may well be unnecessary" when all government's generic claims have merit); Vaughn, 936 F.2d at 868 (approving category-of-document approach when over 1000 pages were withheld under Exemptions 3, 5, 7(A), 7(C), 7(D), and 7(E)); Coldiron, No. 02-0927, 2004 WL 440445, at *5 (explaining that repetition in Vaughn Index is to be expected, especially when "each redacted passage concerns the same, classified subject"); NTEU v. United States Customs Serv., 602 F. Supp. 469, 473 (D.D.C. 1984) (reasoning that the fact that only one exemption is involved "nullif[ies] the need to formulate the type of itemization and correlation system required by the Court of Appeals in Vaughn"), aff'd, 802 F.2d 525 (D.C. Cir. 1986); Agee v. CIA, 517 F. Supp. 1335, 1337-38 (D.D.C. 1981) (accepting index listing fifteen categories when more specific index would compromise national security).

    242. See, e.g., Wishart v. Comm'r, No. 98-17248, 1999 WL 985142, at *1 (9th Cir. Oct. 27, 1999) (suggesting that Vaughn Index is unnecessary if declarations are detailed enough); Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993) (deciding that separate document expressly designated as "Vaughn Index" is unnecessary when agency "declarations are highly detailed, focus on the individual documents, and provide a factual base for withholding each document at issue"); Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252, 257 (D.D.C. 2004) (noting that agency may submit materials in "'any form'" as long as reviewing court has reasonable basis to evaluate exemption claim (quoting Gallant, 26 F.3d at 173)); Goulding v. IRS, No. 97 C 5728, 1998 WL 325202, at *7 (N.D. Ill. June 8, 1998) ("A Vaughn index is not necessary in every case, so long as the function it serves is sufficiently performed by the agency's affidavits or declarations."); Ferri v. United States Dep't of Justice, 573 F. Supp. 852, 856-57 (W.D. Pa. 1983) (holding that 6000 pages of unindexed grand jury testimony were sufficiently described); cf. Minier v. CIA, 88 F.3d 796, 804 (9th Cir. 1996) ("[W]hen a FOIA requester has sufficient information to present a full legal argument, there is no need for a Vaughn index.").

    243. See, e.g., Isley v. Executive Office for United States Attorneys, No. 98-5098, 1999 WL 1021934, at *7 (D.C. Cir. Oct. 21, 1999) ("The segregability requirement applies to all documents and all exemptions in the FOIA."); Krikorian v. Dep't of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (remanding for segregability determination for "each of the withheld documents").

    244. See Kimberlin v. Dep't of Justice, 139 F.3d 944, 950 (D.C. Cir. (stating that it is reversible error for district court to fail to make segregability finding, and remanding for that purpose); Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992) (same); see also Voinche v. FBI, 46 F. Supp. 2d 26, 33 (D.D.C. 1999) (refusing to grant summary judgment because agency's blanket segregability statement was inadequate); Animal Legal Def. Fund, 44 F. Supp. at 299 (chastising agency for failing to discharge "its duty under  552(b)"); see also FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation") (urging agencies to heed this requirement, based upon emerging case law, more than a decade ago).

    245. Trans-Pac. Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

    246. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998) (finding that in camera review, coupled with sworn agency declaration, "provided the district court with a sufficient factual basis to determine that the documents were properly withheld"); Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994) (finding remand unnecessary as judge "did not simply rely on IRS affidavits describing the documents, but conducted an in camera review" (citing Hopkins v. HUD, 929 F.2d 81, 85 (2d Cir. 1991) (holding that absence of district court's findings on segregability warrants "remand with instructions to the district court to examine the inspector reports in camera"))).

    247. See, e.g., Neely v. FBI, 208 F.3d 461, 467 (4th Cir. 2000) (suggesting that, on remand, district court "resort to the well-established practice . . . of randomly sampling the documents in question"); Solar Sources, 142 F.3d at 1038-39 (approving use of sample of 6000 pages out of five million); Jones, 41 F.3d at 242 (approving sample comprising two percent of total number of documents at issue); Meeropol v. Meese, 790 F.2d 942, 956-57 (D.C. Cir. 1986) (allowing sampling of every 100th document when approximately 20,000 documents were at issue); Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490 (D.C. Cir. 1984) (approving index of sampling of withheld documents, when over 60,000 pages at issue, even though no example of certain exemptions provided); Jefferson v. O'Brien, No. 96-1365, slip op. at 5 (D.D.C. Feb. 22, 2000) (approving sample index of approximately four percent of responsive records); see also Wash. Post v. DOD, 766 F. Supp. 1, 15-16 (D.D.C. 1991) (deciding that with more than 14,000 pages of responsive material involved, agency should produce detailed Vaughn Index for sample of files, such sample to be determined by parties or court); cf. Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 20 (D.D.C. 2003) (noting that the parties agreed to sample of 357 pages out of 80,000 to be discussed in Vaughn Index); Kronisch v. United States, No. 83 CIV. 2458, 1995 WL 303625, at **1, 13 n.1 (S.D.N.Y. May 18, 1995) (holding sampling of fifty documents selected by plaintiff, out of universe of approximately 30,000 pages, to be appropriate basis for resolution of discovery dispute). But see Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 U.S. Dist. LEXIS 11658, at *25 (D.D.C. Aug. 7, 1996) ("This Court does not believe that 173 pages of located documents is even close to being 'voluminous.'"); SafeCard Servs. v. SEC, No. 84-3073, 1988 WL 58910, at **3-5 (D.D.C. May 19, 1988) (concluding that burden of indexing relatively small number of requested documents (approximately 200) was insufficient to justify sampling).

    248. Bonner v. United States Dep't of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991) (quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C. 1977)); see FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 612-13 (5th Cir. 2003) (per curiam) (approving use of representative sample that was offered to district court for in camera inspection, because sample was "adequate" to demonstrate that no reasonably segregable information could be extracted from withheld records); Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d 29, 34 (D.D.C. 2001) (approving representative sampling of one of many applications for investigational new drugs, all of which are "essentially uniform," but allowing plaintiff to select one to be sampled); cf. Halpern v. FBI, No. 94-365, 2002 WL 31012157, at *14 (W.D.N.Y. Aug. 31, 2001) (magistrate's recommendation) (opining in dicta that sampling would be inappropriate for the 116 pages at issue), adopted (W.D.N.Y. Oct. 16, 2001).

    249. See Bonner, 928 F.2d at 1153-54 (explaining that the sample should "uncover[] no excisions or withholdings improper when made," but also noting that "[t]he fact that some documents in a sample set become releasable with the passage of time does not, by itself, indicate any agency lapse"); Meeropol v. Meese, 790 F.2d 942, 960 (D.C. Cir. 1986) (finding error rate of twenty-five percent "unacceptably high"); Schrecker v. United States Dep't of Justice, 14 F. Supp. 2d 111, 117 (D.D.C. 1998) (ordering reprocessing of all documents because of problems with representative sampling).

    250. Bonner, 928 F.2d at 1154; see also Davin, 60 F.3d at 1053 (plaintiff's agreement to sampling does not relieve government of obligation to disclose reasonably segregable, nonexempt material in all responsive documents, including those not part of sample).

    251. See, e.g., Jones, 41 F.3d at 242-43 (noting that coded indices "have become accepted practice"); Maynard, 986 F.2d at 559 & n.13 (noting use by FBI and explaining format); accord 5 U.S.C. 552(b) (2000) (second and third sentences following exemptions; requiring document markings as part of initial administrative processing).

    252. Keys v. United States Dep't of Justice, 830 F.2d 337, 349-50 (D.C. Cir. 1987); see, e.g., Blanton v. Dep't of Justice, 64 Fed. Appx. 787, 789 (D.C. Cir. 2003) (stating that "coding . . . adequately describes the documents and justifies the exemptions"); Maynard, 986 F.2d at 559 n.13 (explaining that "use of coded indices has been explicitly approved by several circuit courts"); Garcia v. United States Dep't of Justice, 181 F. Supp. 2d 356, 370 (S.D.N.Y. 2002) (accepting adequacy of agency's coded Vaughn Index); Canning, 848 F. Supp. at 1043 ("[T]here is nothing inherently improper about the use of a coding system."); Steinberg v. United States Dep't of Justice, 801 F. Supp. 800, 803 (D.D.C. 1992), aff'd in pertinent part & remanded in part, 23 F.3d 548 (D.C. Cir. 1994) (refusing to find coded Vaughn Index inadequate); cf. Fiduccia, 185 F.3d at 1043-44 (observing that "[t]he form of disclosure is not critical" and that "redacted documents [can be] an entirely satisfactory (perhaps superior) alternative to a Vaughn index or affidavit performing this function"); Davin, 60 F.3d at 1051 ("While the use of the categorical method does not per se render a Vaughn index inadequate, an agency using justification codes must also include specific factual information concerning the documents withheld and correlate the claimed exemptions to the withheld documents."), on remand, No. 92-1122, slip op. at 6 (W.D. Pa. Apr. 9, 1998) (approving revised coded Vaughn Index), aff'd, 176 F.3d 471 (3d Cir. 1999) (unpublished table decision). But see Wiener, 943 F.2d at 978-79 (rejecting coded affidavits on belief that such categorical descriptions fail to give requester sufficient opportunity to contest withholdings); Samuel Gruber Educ. Project v. United States Dep't of Justice, 24 F. Supp. 2d 1, 8 (D.D.C. Feb. 20, 1998) (magistrate's recommendation) (erroneously speaking of "near universal condemnation" of coded Vaughn Indexes), adopted with modifications, No. 90-1912 (D.D.C. Mar. 17, 1998).

    253. See Nat'l Sec. Archive v. Office of the Indep. Counsel, No. 89-2308, 1992 WL 1352663, at **3-4 (D.D.C. Aug. 28, 1992) (finding "alphabetical classification" properly employed to facilitate coordination of agency justifications where information was withheld by multiple agencies under various exemptions,); see also King, 830 F.2d at 225; Canning, 848 F. Supp. at 1043.

    254. Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987); see Whittle v. Moschella, 756 F. Supp. 589, 595 (D.D.C. 1991) ("For two large redactions, the contents are not readily apparent, but since the information there redacted was provided by confidential sources, it is entirely protected from disclosure."); see also King, 830 F.2d at 221 ("Utilization of reproductions of the material released to supply contextual information about material withheld is clearly permissible, but caution should be exercised in resorting to this method of description."); cf. Fiduccia, 185 F.3d at 1043 (recognizing that a Vaughn Index is "a superfluity" when the plaintiff and the court can ascertain the nature of information withheld by reviewing the redacted documents).

    255. See King, 830 F.2d at 221-22. But see Canning, 848 F. Supp. at 1044-45 (approving coded Vaughn Index for classified information and differentiating it from that filed in King).

    256. See Coleman v. FBI, No. 89-2773, 1991 WL 333709, at *4 (D.D.C. Apr. 3, 1991) (allowing "coded" affidavit for expurgated pages, but rejecting it as to pages withheld in full), summary affirmance granted, No. 92-5040, 1992 WL 373976 (D.C. Cir. Dec. 4, 1992); see also Williams v. FBI, No. 90-2299, 1991 WL 163757, at **3-4 (D.D.C. Aug. 6, 1991) (finding "coded" affidavit insufficiently descriptive as to documents withheld in their entireties).

    257. See, e.g., Maynard, 986 F.2d at 559 n.13 (explaining coded Vaughn procedure).

    258. 5 U.S.C.  552a(b) (2000); see, e.g., Krohn v. United States Dep't of Justice, No. 78-1536, slip op. at 2-7 (D.D.C. Mar. 19, 1984), vacated in part on other grounds (D.D.C. Nov. 29, 1984); Citizens Bureau of Investigation v. FBI, No. C78-80, slip op. at 3 (N.D. Ohio Dec. 12, 1979); see also Laningham v. United States Navy, No. 83-3238, slip op. at 2-3 (D.D.C. Sept. 25, 1984), summary judgment granted (D.D.C. Jan. 7, 1985), aff'd per curiam, 813 F.2d 1236 (D.C. Cir. 1987).

    259. 5 U.S.C. 552a(b)(3), (11); see also, e.g., 66 Fed. Reg. 36593, 36593 (July 12, 2001) (listing routine uses applicable to records in Justice Department's Civil Division Case File System); 63 Fed. Reg. 8666, 8667-68 (1998) (listing routine uses applicable to records in United States Attorneys' Offices' Civil Case Files); cf. Blazy v. Tenet, 979 F. Supp. 10, 27 (D.D.C. 1997) (agreeing to an uncontested order to seal Privacy Act-protected documents released pursuant to a routine use, while chiding the plaintiff that "[h]aving obtained three volumes of released documents through this litigation, [he] somewhat ironically complains that the government improperly filed these documents with the Court in violation of his privacy rights"), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998).

    260. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 223-24 (1978) (stating that language of Exemption 7(A) "appears to contemplate that certain generic determinations may be made"); Crooker v. ATF, 789 F.2d 64, 66-67 (D.C. Cir. 1986) (distinguishing between unacceptable "blanket" exemptions and permissible generic determinations); Pully v. IRS, 939 F. Supp. 429, 433-38 (E.D. Va. 1996) (accepting categorization of 5624 documents into twenty-six separate categories protected under several exemptions); see also United States Dep't of Justice v. Landano, 508 U.S. 165, 179 (1993) ("There may well be other generic circumstances in which an implied assurance of confidentiality fairly can be inferred."); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989) (instructing that "categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction"); cf. Coleman v. FBI, 972 F. Supp. 5, 8 (D.D.C. 1997) ("For an agency to break from the norm of a document-by-document index, the agency must at least argue that a 'categorical' index is warranted.").

    261. See, e.g., Robbins Tire, 417 U.S. at 218-23 (endorsing government's position "that a particularized, case-by-case showing is neither required nor practical, and that witness statements in pending unfair labor practice proceedings are exempt as a matter of law from disclosure [under Exemption 7(A)] while the hearing is pending"); Solar Sources, 142 F.3d at 1040 (reiterating that detailed Vaughn Index is not generally required in Exemption 7(A) cases); In re Dep't of Justice, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc); Dickerson v. Dep't of Justice, 992 F.2d 1426, 1428, 1433-34 (6th Cir. 1993) (approving FBI justification of Exemption 7(A) for documents pertaining to disappearance of Jimmy Hoffa on "category-of-document" basis by supplying "a general description of the contents of the investigatory files, categorizing the records by source or function"); Lewis v. IRS, 823 F.2d 375, 389 (9th Cir. 1987) ("The IRS need only make a general showing that disclosure of its investigatory records would interfere with its enforcement proceedings."); Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986); W. Journalism Ctr. v. Office of the Indep. Counsel, No. 96-5178, 1997 WL 195516, at *1 (D.C. Cir. Mar. 11, 1997) ("[A]ppellee was not required to describe the records retrieved in response to appellants' request, or the harm their disclosure might cause, on a document-by-document basis, as appellee's description of the information contained in the three categories it devised is sufficient to permit the court to determine whether the information retrieved is exempt from disclosure."); see also Citizens Comm'n, 45 F.3d at 1328 (for responsive records consisting of 1000 volumes of 300 to 400 pages each, volume-by-volume summary held adequate when Vaughn Indexes "specifically describe the documents' contents and give specific reasons for withholding them"); FOIA Update, Vol. V, No. 2, at 3-4 (describing appropriate affidavits for cases involving Exemption 7(A)). But see Detroit Free Press v. United States Dep't of Justice, 174 F. Supp. 2d 597, 601 (E.D. Mich. 2001) (ordering in camera review because Vaughn Index statements concerning potential harm from release of any information about disappearance of former Teamsters president Jimmy Hoffa were undermined by publication of specifics concerning Hoffa investigation); cf. Inst. for Justice & Human Rights v. Executive Office of the United States Attorney, No. C 96-1469, 1998 WL 164965, at **6-7 (N.D. Cal. Mar. 18, 1998) (refusing to permit agency to justify Exemption 7(A) withholdings by category when it had already submitted Vaughn Indexes justifying withholdings on document-by-document basis).

    262. Compare Curran v. Dep't of Justice, 813 F.2d 473, 476 (1st Cir. 1987) (approving category entitled "other sundry items of information" because "[a]bsent a 'miscellaneous' category of this sort, the FBI would, especially in the case of one-of-a-kind records, have to resort to just the sort of precise description which would itself compromise the exemption"), and May v. IRS, No. 90-1123-CV-W-2, 1991 U.S. Dist. LEXIS 18906, at **6-7 (W.D. Mo. Dec. 9, 1991) (approving categories of "intra-agency memoranda" and "work sheets"), with Bevis, 801 F.2d at 1390 ("categories identified only as 'teletypes,' or 'airtels,' or 'letters'" held inadequate).

    263. See In re Dep't of Justice, 999 F.2d at 1309 (citing Bevis, 801 F.2d at 1389-90); Manna v. United States Dep't of Justice, 815 F. Supp. 798, 806 (D.N.J. 1993); see also Dickerson, 992 F.2d at 1433 (enumerating categories of information withheld); Curran, 813 F.2d at 476 (same); May, No. 90-1123, slip op. at 6-7 (W.D. Mo. Dec. 9, 1991) (same); Docal v. Bennsinger, 543 F. Supp. 38, 44 n.12 (M.D. Pa. 1981) (enumerating categories of "interference"); cf. Curran, 813 F.2d at 476 (stating that FBI affidavit met Bevis test and therefore finding it unnecessary to determine whether Bevis test is too demanding).

    264. Church of Scientology v. IRS, 792 F.2d 146, 152 (D.C. Cir. 1986).

    265. See Reporters Comm., 489 U.S. at 779-80 (authorizing "categorical" protection of information under Exemption 7(C)); Gallant, 26 F.3d at 173 (approving categorical withholding of names under Exemption 6); Church of Scientology, 792 F.2d at 152 (finding generic exemption under IRS Exemption 3 statute, 26 U.S.C.  6103 (2000), appropriate if "affidavit sufficiently detailed to establish that the document or group of documents in question actually falls into the exempted category"); Antonelli v. FBI, 721 F.2d 615, 617-19 (7th Cir. 1983) (holding that no index required in third-party request for records when agency categorically neither confirmed nor denied existence of records on particular individuals absent showing of public interest in disclosure); Brown v. FBI, 658 F.2d 71, 74 (2d Cir. 1981) (protecting personal information under Exemption 6); Pully, 939 F. Supp. at 433-38 (accepting categorical descriptions for documents protected under Exemptions 3 (in conjunction with 26 U.S.C.  6103(a)), 5 (attorney-client privilege), 7(A), 7(C), and 7(E) -- 5624 documents arranged into twenty-six categories); May, No. 90-1123, slip op. at 9 (W.D. Mo. Dec. 9, 1991) (protecting withholdings under both Exemption 7(A) and Exemption 3 (in conjunction with 26 U.S.C.  6103)); NTEU, 602 F. Supp. at 472-73 (finding no index required for forty-four crediting plans withheld under Exemption 2); see also FOIA Update, Vol. X, No. 2, at 6 (discussing categorical Exemption 7(C) balancing under Reporters Committee). But see McNamera v. United States Dep't of Justice, 949 F. Supp. 478, 483 (W.D. Tex. 1996) (rejecting apparent categorical indices for criminal files on third parties that were withheld under Exemptions 6 and 7(C) because "there is no way for the court to tell whether some, a portion of some, or all the documents being withheld fall within any of the exemptions claimed"); cf. Church of Scientology, 30 F.3d at 234 ("[A] categorical approach to nondisclosure is permissible only when the government can establish that, in every case, a particular type of information may be withheld regardless of the specific surrounding circumstances.").

    266. See, e.g., Landano, 508 U.S. at 180 ("To the extent that the Government's proof may compromise legitimate interests, of course, the Government still can attempt to meet its burden with in camera affidavits."); Lion Raisins, 354 F.3d at 1084 (vouching that an agency need not "disclose facts that would undermine the very purpose of its withholding"); Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1089, 1093 (9th Cir. 1997) ("Indeed we doubt that the agency could have introduced further proof without revealing the actual contents of the withheld materials."); Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document without actually disclosing information that deserves protection."); Patterson v. IRS, 56 F.3d 832, 837 (7th Cir. 1995) ("[W]e do not wish to force the government to disclose so much information about the investigation or the particular documents that an exemption loses its intended effect."); Maynard, 986 F.2d at 557 (emphasizing that although public declaration "lacked specifics, a more detailed affidavit could have revealed the very intelligence sources or methods that the CIA wished to keep secret"); Lewis, 823 F.2d at 380 ("[A] Vaughn index of the documents here would defeat the purpose of Exemption 7(A). It would aid [the requester] in discovering the exact nature of the documents supporting the government's case against him earlier than he otherwise would or should."); Curran, 813 F.2d at 476 (agency should not be forced "to resort to just the sort of precise description which would itself compromise the exemption"); Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1980) (recognizing that "the government need not specify its objections in such detail as to compromise the secrecy of the information").

    267. See, e.g., Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983) (approving use of in camera affidavits in certain cases involving national security exemption); Edmonds, 272 F. Supp. 2d at 46 (approving the use of an in camera affidavit because "extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed"); Pub. Educ. Ctr., Inc. v. DOD, 905 F. Supp. 19, 22 (D.D.C. 1995) (same); Keys v. United States Dep't of Justice, No. 85-2588, slip op. at 3 (D.D.C. May 12, 1986) (noting "the inherent problems that necessarily arise whenever a FOIA affiant is confronted with the need to be circumspect" due to national security concerns), aff'd on other grounds, 830 F.2d at 337; see also CIA v. Sims, 471 U.S. 159, 179 (1985) (recognizing that "the mere explanation of why information must be withheld can convey [harmful] information").

    268. See, e.g., Ethyl Corp. v. EPA, 25 F.3d 1241, 1250 (4th Cir. 1994) ("If the district court is satisfied that the EPA cannot describe documents in more detail without breaching a properly asserted confidentiality, then the court is still left with the mechanism provided by the statute -- to conduct an in camera review of the documents."); Wolfe v. HHS, 839 F.2d 768, 771 n.3 (D.C. Cir. 1988) (en banc) ("Where the index itself would reveal significant aspects of the deliberative process, this court has not hesitated to limit consideration of the Vaughn index to in camera inspection.").

    269. See, e.g., Alyeska Pipeline Serv. v. EPA, No. 86-2176, 1987 WL 17071, at *3 (D.D.C. Sept. 9, 1987) ("[R]equiring a Vaughn index in this matter will result in exactly the kind of harm to defendant's law enforcement proceedings which it is trying to avoid under exemption 7(A)."), aff'd on other grounds, 856 F.2d 309 (D.C. Cir. 1988); Dickerson v. Dep't of Justice, No. 90-60045, slip op. at 4-5 (E.D. Mich. July 31, 1991), aff'd, 992 F.2d 1426 (6th Cir. 1993).

    270. See, e.g., Landano, 508 U.S. at 180 (ruling that government can meet its burden with in camera affidavits in order to avoid identification of sources in Exemption 7(D) withholdings); Church of Scientology, 30 F.3d at 240 n.23 (same); Keys, 830 F.2d at 349 (announcing that there is no requirement to produce Vaughn Index in "degree of detail that would reveal precisely the information that the agency claims it is entitled to withhold"); Doe v. United States Dep't of Justice, 790 F. Supp. 17, 21 (D.D.C. 1992) ("[A] meaningful description beyond that provided by the Vaughn code utilized in this case would probably lead to disclosure of the identity of sources.").

    271. See Lion Raisins, 354 F.3d at 1084 (overturning district court decision that relied on in camera review of sealed declaration, and remanding for creation of Vaughn Index); Armstrong v. Executive Office of the President, 97 F.3d 575, 580-81 (D.C. Cir. 1996) (citing Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984)); Philippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976); cf. Al Najjar v. Ashcroft, No. 00-1472, slip op. at 7 (D.D.C. July 22, 2003) (rejecting agencies' overly broad in camera submissions, and requiring agencies to augment public record before any ruling is made on dispositive motions).

    272. See, e.g., Schwarz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000) ("[T]here is no requirement that an agency provide a . . . 'Vaughn' index on an initial request for documents."); Edmond v. United States Attorney, 959 F. Supp. 1, 5 (D.D.C. 1997) (rejecting, as premature, request for Vaughn Index when agency had not processed plaintiff's request); see also FOIA Update, Vol. VII, No. 3, at 6; cf. Judicial Watch, 880 F. Supp. at 11; Schaake v. IRS, No. 91-958, slip op. at 7-8 (S.D. Ill. June 3, 1992).

    273. See, e.g., Tannehill v. Dep't of the Air Force, No. 87-1335, slip op. at 1 (D.D.C. Aug. 20, 1987) (noting that standard practice is to await filing of agency's dispositive motion before deciding whether additional indexes will be necessary); British Airports Auth. v. CAB, 2 Gov't Disclosure Serv. (P-H)  81,234, at 81,654 (D.D.C. June 25, 1981) (explaining that "standard practice which has developed is for the Court to commit the parties to a schedule for briefing summary judgment motions," with "defendant typically fil[ing] first and simultaneously with or in advance of filing submit[ting] supporting affidavits and indices").

    274. See, e.g., Miscavige, 2 F.3d at 369 ("The plaintiff's early attempt in litigation of this kind to obtain a Vaughn Index . . . is inappropriate until the government has first had a chance to provide the court with the information necessary to make a decision on the applicable exemptions."); Bassiouni v. CIA, 248 F. Supp. 2d 795, 797 (N.D. Ill. 2003) (finding plaintiff's request for a Vaughn Index premature because the case was "only in the initial stages"); Pyne v. Comm'r, No. 98-00253, 1999 WL 112532, at *3 (D. Haw. Jan. 6, 1999) (denying motion to compel submission of Vaughn Index as "premature" when agency had not yet refused to release records or provided supporting affidavit for nondisclosure); Stimac v. United States Dep't of Justice, 620 F. Supp. 212, 213 (D.D.C. 1985) (denying as premature motion to compel Vaughn Index on ground that "filing of a dispositive motion, along with detailed affidavits, may obviate the need for indexing the withheld documents"); see also Payne v. United States Dep't of Justice, No. 95-2968, 1995 WL 601112, at *1 (E.D. La. Oct. 11, 1995) (refusing to order Vaughn Index at "nascent" stage of litigation, i.e., when defendants had not even answered plaintiff's Complaint); Cohen v. FBI, 831 F. Supp. 850, 855 (S.D. Fla. 1993) (confirming that Vaughn Index is not required when "Open America" stay is granted "because no documents have been withheld on the grounds that they are exempt from disclosure"). But see Providence Journal Co. v. United States Dep't of the Army, 769 F. Supp. 67, 69 (D.R.I. 1991) (finding contention that Vaughn Index must await dispositive motion to be "insufficient and sterile" when agency "has not even indicated when it plans to file such a motion"); cf. Schulz v. Hughes, 250 F. Supp. 2d 470, 475 (E.D. Pa. 2003) (ruling that upon payment of fees, agency should prepare Vaughn Index for any documents it refuses to release).

    275. 5 U.S.C. 552(b) (2000) (sentence immediately following exemptions).

    276. Pub. L. No. 93-502, 88 Stat. 1561.

    277. See Billington v. United States Dep't of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000) (emphasizing that the FOIA's segregability requirement limits exemption claims to "discrete units of information; to withhold an entire document, all units of information in that document must [be exempt]"); Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) ("'The focus in the FOIA is information not documents and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.'" (quoting Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 368 (D.C. Cir. 1977))); see also Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 14 (Feb. 1975); FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation"). But cf. Piper & Marbury, L.L.P. v. United States Postal Serv., No. 99-2383, 2001 WL 214217, at *4 (D.D.C. Mar. 6, 2001) (magistrate's recommendation) (erroneously extrapolating from the segregability mandate the notion that "there is no authority for the proposition that entire documents are exempt from FOIA"), adopted (D.D.C. Mar. 30, 2001).

    278. See Givner v. Executive Office for United States Attorneys, No. 99-3454, slip op. at 17-18 (D.D.C. Mar. 1, 2001) (deciding that agencies may withhold nonexempt information if it amounts to "'essentially meaningless words and phrases'" (quoting Neufield v. IRS, 646 F.2d 661, 663 (D.C. Cir. 1981))); Warren v. Soc. Sec. Admin., No. 98-0116E, 2000 WL 1209383, at *5 (W.D.N.Y. Aug. 22, 2000) (reasoning that documents are not reasonably segregable when the only nonexempt information amounts to "little more than templates"), aff'd in pertinent part, 10 Fed. Appx. 20 (2d Cir. 2001); Pub. Citizen v. Dep't of State, 100 F. Supp. 2d 10, 25 (D.D.C. 2000) ("The district court judge 'is not called upon to take on the role of censor going through a line-by-line analysis for each document and removing particular words.'" (quoting Ray v. Turner, 587 F.2d 1187, 1197 (D.C. Cir. 1978))), aff'd in part, rev'd in part & remanded on other grounds, 276 F.3d 674 (D.C. Cir. 2002); cf. Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998) ("[C]ourts should not order segregation when such a process would be significantly unwieldy.").

    279. Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d 21, 34 (D.D.C. 2003) (quoting Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984)); see McSheffrey v. Executive Office for United States Attorneys, 13 Fed. Appx. 3, 4 (D.C. Cir. 2001) (remanding with explicit instructions that the district court "determine whether any portion of these documents can be segregated for release"); May v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000) (remanding to determine whether "any intelligible portion of the contested pages can be segregated for release").

    280. Animal Legal Def. Fund v. Dep't of the Air Force, 44 F. Supp. 2d 295, 301 (D.D.C. 1999) (citing Armstrong v. Executive Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996)); see Judicial Watch v. HHS, 27 F. Supp. 2d, 240 246 (D.D.C. 1998) ("If a court is to make specific findings of segregability without conducting in camera review in every FOIA case, the government simply must provide more specific information in its Vaughn affidavits.").

    281. See Dorsett v. United States Dep't of the Treasury, 307 F. Supp. 2d 28, 41 (D.D.C. 2004) (denying summary judgment in part "[b]ecause of [agency's] inadequate and conclusory segregability explanation," and ordering renewed motion with affidavit solely addressing segregability); Animal Legal Def. Fund, 44 F. Supp. 2d at 301 (holding that conclusory statement regarding segregability is "patently insufficient"); Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep't of State, 818 F. Supp. 1291, 1300 (N.D. Cal. 1992) (finding that "boilerplate" statement that "no segregation of nonexempt, meaningful information can be made for disclosure" is "entirely insufficient"); see also Patterson v. IRS, 56 F.3d 832, 839 (7th Cir. 1995) ("[B]ecause the [agency declaration] lumps all of the withheld information together in justifying nondisclosure, the district court could not have independently evaluated whether exempt information alone was being withheld or deleted in each instance.").

    282. See, e.g., Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994) (finding remand unnecessary because judge "did not simply rely on IRS affidavits describing the documents, but conducted an in camera review"); Gutman v. United States Dep't of Justice, 238 F. Supp. 2d 284, 296 (D.D.C. 2003) (approving declaration that justified segregability determination based on inclusion of facts from withheld documents); Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) (while recognizing a "substantial defect" in a declaration that fails to refer explicitly to segregability, nevertheless determining independently that the segregability requirement met by the "narrow scope of the categorical withholdings[,] . . . the good faith declaration that only such properly withheld information was redacted, and a careful review of the actual documents that plaintiff submitted"), summary affirmance granted, No. 01-5451, 2002 WL 31189766, at *1 (D.C. Cir. Oct. 2, 2002); see also Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459, at *3 (D. Minn. July 19, 2001) (deciding sua sponte that zip codes and dates of signature entries on petition are not "reasonably segregable," because of "distinct possibility" that release of that information would thwart protected privacy interest); see also Rugerio v. United States Dep't of Justice, 234 F. Supp. 2d 697, 710 (E.D. Mich. 2002) (ordering in camera review because "plaintiff has raised enough doubt" about segregability issue) (appeal pending).

    283. See, e.g., Summers v. Dep't of Justice, 140 F.3d 1077, 1081 (D.C. Cir. 1998); Judicial Watch v. HHS, 27 F. Supp. 2d 240, 246-47 & n.2 (D.D.C. 1998).

    284. 177 F.3d 1022 (D.C. Cir. 1999).

    285. Id. at 1027 (indicating that district court had duty to consider reasonable segregability even though requester never sought segregability finding); see Isley v. Executive Office for United States Attorneys, No. 98-5098, 1999 WL 1021934, at *7 (D.C. Cir. Oct. 21, 1999) (explaining that district court erred in failing to make a segregability finding even though plaintiff failed to raise issue at trial); Ho v. Dir., No. 00-1759, slip op. at 2 (D.D.C. Sept. 17, 2001) (explaining that segregability finding is required even when plaintiff does not dispute withholding); Schrecker v. United States Dep't of Justice, 74 F. Supp. 2d 26, 29 (D.D.C. 1999) ("[D]istrict courts are required to consider segregability issues even when the parties have not specifically raised such claims."), aff'd in pertinent part & rev'd in part, 254 F.3d 162 (D.C. Cir. 2001). But cf. Nicolaus v. FBI, 24 Fed. Appx. 807, 809 (9th Cir. 2001) (refusing to consider plaintiff's segregability argument because he failed to raise it in his opening appellate brief).

    286. Mead Data, 566 F.2d at 260; see Kimberlin v. Dep't of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998).

    287. See, e.g., Animal Legal Def. Fund, 44 F. Supp. 2d at 301 (denying government's motion for summary judgment, in part, because declaration was insufficient on segregability issue); Carlton v. Dep't of the Interior, No. 97-2105, slip op. at 12 (D.D.C. Sept. 3, 1998) (finding agency declaration to be insufficient because it provided only "general statement that the withheld documents do not contain segregable portions"), appeal dismissed voluntarily, No. 98-5518 (D.C. Cir. Nov. 18, 1998)).

    288. See, e.g., James Madison Project v. NARA, No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir. Oct. 11, 2002) (per curiam) (remanding, despite ruling in favor of government on exemption claims, for a "more precise finding" on segregability); McSheffrey v. Executive Office for United States Attorneys, 13 Fed. Appx. 3, 4 (D.C. Cir. 2001) (remanding with explicit instructions that the district court "determine whether any portion of these documents can be segregated for release"); Isley, 1999 WL 1021934, at *7 (remanding case for segregability finding); Kimberlin, 139 F.3d at 950 ("[W]e must remand this case to the district court to determine whether any of the withheld documents contains material that can be segregated and disclosed . . . ."); Wiener v. FBI, 943 F.2d 972, 988 (9th Cir. 1991) (holding that "district court erred by failing to make specific findings on the issue of segregability" and remanding for "specific finding that no information contained in each document or substantial portion of a document withheld is segregable"); Judicial Watch, Inc. v. United States Dep't of Justice, No. 02-348, slip op. at 3 (D.D.C. Mar. 31, 2004) (denying summary judgment because segregability analysis was inadequate despite also finding that agency properly invoked Exemption 5 to withholding documents at issue) (motion for reconsideration pending); cf. Johnson v. Executive Office for United States Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (approving of district court's sua sponte segregability determination).

    289. FOIA Update, Vol. XIV, No. 3, at 12 (quoting Ctr. for Auto Safety, 731 F.2d at 21).

    290. See 5 U.S.C.  552(a)(4)(B) (2000); see also S. Conf. Rep. No. 93-1200, at 9 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6287.

    291. Spirko v. USPS, 147 F.3d 992, 996 (D.C. Cir. 1998) (quoting Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C. Cir. 1991) (quoting, in turn, Carter v. United States Dep't of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987))); accord Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996); see, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) ("The in camera review provision is discretionary by its terms . . . ."); Halpern v. FBI, 181 F.3d 279, 295 (2d Cir. 1999) (noting that in camera "review would have been appropriate," but leaving this to "the trial court's discretion on remand"), on remand, No. 94-CV-365A, 2002 WL 31012157, at *14 (W.D.N.Y. Aug. 31, 2002) (magistrate's recommendation) (denying plaintiff's motion for in camera inspection), adopted (W.D.N.Y. Oct. 17, 2002); Jernigan v. Dep't of the Air Force, No. 97-35930, 1998 WL 658662, at *1 n.3 (9th Cir. Sept. 14, 1998) ("Section 552(a)(4)(B) empowers, but does not require, a district court to examine the contents of agency records in camera . . . ."); Parsons v. Freedom of Info. Act Officer, No. 96-4128, 1997 WL 461320, at *1 (6th Cir. Aug. 12, 1997) (explaining that district court has discretion to conduct in camera inspection, but that it is neither "favored nor necessary" so long as adequate factual basis for decision exists); Armstrong v. Executive Office of the President, 97 F.3d 575, 579 (D.C. Cir. 1996) (finding that district court did not abuse its discretion when it undertook in camera review of one document, but not of another (similarly characterized) document); Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993) (holding that in camera review "is discretionary and not required, absent an abuse of discretion"); Ingle v. Dep't of Justice, 698 F.2d 259, 267 (6th Cir. 1983) (listing four factors courts should consider before exercising discretion to review records in camera); Pons v. United States Customs Serv., No. 93-2094, 1998 U.S. Dist. LEXIS 6084, at *4 (D.D.C. Apr. 23, 1998) ("The ultimate criterion is whether the district judge believes that in camera inspection is necessary to make a responsible de novo determination on the agency's compliance with the FOIA statute.").

    292. See, e.g., Robbins Tire, 437 U.S. at 224 (explaining that in camera review provision "is designed to be invoked when the issue before the District Court could not be otherwise resolved"); PHE, Inc. v. United States Dep't of Justice, 983 F.2d 248, 252-53 (D.C. Cir. 1993) (observing that in camera review is generally disfavored, but permissible on remand arising from inadequate affidavit); Iowa Citizens for Cmty. Improvement v. USDA, 256 F. Supp. 2d 946, 957 (S.D. Iowa 2002) (declaring that court should not be "super-administrator" that conducts in camera review in every FOIA case); Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 304 (D.D.C. 1999) ("'[I]n camera review should not be resorted to as a matter of course . . . .'" (quoting Quiñon, 86 F.3d at 1228)); Guccione v. Nat'l Indian Gaming Comm'n, No. 98-CV-164, 1999 U.S. Dist. LEXIS 15475, at *3 (S.D. Cal. Aug. 5, 1999) ("[I]n camera review is a last resort, to be used only when the propriety of the withholding cannot otherwise be determined.").

    293. Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994) (citing Vaughn v. United States, 936 F.2d 862, 866 (6th Cir. 1991)); see McNamera v. United States Dep't of Justice, 974 F. Supp. 946, 955 (W.D. Tex. 1997) (suggesting that Vaughn Index is preferable to in camera inspection because "it keeps in tact [sic] our system of adversarial dispute resolution").

    294. See, e.g., Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978) ("In camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that 'it can't hurt.'").

    295. See, e.g., Nowak v. United States, No. 98-56656, 2000 WL 60067, at *2 (9th Cir. Jan. 21, 2000) (finding in camera review unnecessary where affidavits were sufficiently detailed); Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992) (rejecting in camera inspection when affidavits and Vaughn Indexes were sufficiently specific); Silets v. United States Dep't of Justice, 945 F.2d 227, 229-32 (7th Cir. 1991) (en banc) (same); Vaughn v. United States, 936 F.2d 862, 869 (6th Cir. 1991) (finding in camera review "neither favored nor necessary where other evidence provides adequate detail and justification"); Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988) (rejecting in camera review because "detailed affidavit was sufficient"); Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162, 1189-90 (M.D. Fla. 2003) (holding that the "[c]ourt's primary role in reviewing a government's claimed exemption under FOIA is not to conduct in camera review," and finding affidavits sufficient to establish exemption claims); Taylor v. United States Dep't of Justice, 257 F. Supp. 2d 101, 114 (D.D.C. 2003) (finding in camera review to be unnecessary because of adequacy of defendant's affidavit and Vaughn Index); Falwell v. Executive Office of the President, 158 F. Supp. 2d 734, 738 (W.D. Va. 2001) (finding "no justification" for in camera review because the agency's affidavit provides "more than sufficient information to make a reasoned decision" as to the agency's compliance with the FOIA); Ligorner v. Reno, 2 F. Supp. 2d 400, 405 (S.D.N.Y. 1998) ("In camera review is only necessary when the evidence presented by the government is insufficient on its face to establish that non-disclosure is required, or when there is some evidence of agency bad faith.").

    296. See, e.g., Halpern, 181 F.3d at 295 (observing that "[in camera] review would have been appropriate" because agency affidavit was conclusory, but noting that "such action is one best left to the trial court's discretion"; Spirko, 147 F.3d at 997 ("If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera."); Quiñon, 86 F.3d at 1229 ("[W]here an agency's affidavits merely state in conclusory terms that documents are exempt from disclosure, an in camera review is necessary."); In re Dep't of Justice, 999 F.2d 1302, 1310 (8th Cir. 1993) (en banc) ("If the [Vaughn Index] categories remain too general, the district court may also examine the disputed documents in camera to make a first hand determination."). But cf. J.P. Stevens & Co. v. Perry, 710 F.2d 136, 142 (4th Cir. 1983) (holding that district court erred in conducting in camera inspection because Exemption 7(A) Vaughn affidavit was sufficient to show "interference" on category-by-category basis); Associated Builders & Contractors v. NLRB, No. 98-612, slip op. at 4 (S.D. Ohio Feb. 21, 2001) (deciding that in camera inspection is not required even if the agency's Vaughn Index is inadequate, so long as the court "is able to make an independent, reasoned judgment about the contents of the documents at issue and the applicability of the exemptions asserted").

    297. See Quiñon, 86 F.3d at 1228 (suggesting that number of documents is "another . . . factor to be considered" when determining whether in camera review is appropriate); Maynard v. CIA, 986 F.2d 547, 558 (1st Cir. 1993) ("In camera review is particularly appropriate when the documents withheld are brief and limited in number."); Currie v. IRS, 704 F.2d 523, 530 (11th Cir. 1983) ("Thorough in camera inspection of the withheld documents where the information is extensive and the claimed exemptions are many . . . is not the preferred method of determining the appropriateness of the government agency's characterization of the withheld information."); Tax Analysts v. IRS, No. 94-923, 1999 U.S. Dist. LEXIS 19514, at *14 (D.D.C. Nov. 3, 1999) (noting, as factor justifying in camera review, minimal burden on court where only one sentence is to be reviewed); Local 32B-32J, Serv. Employees Int'l Union, AFL-CIO v. GSA, No. 97 Civ. 8509, 1998 WL 726000, at *11 (S.D.N.Y. Oct. 15, 1998) (observing that in camera review is "ordered most often in cases in which only a small number of documents are to be examined"); Steinberg v. United States Dep't of Justice, 179 F.R.D. 357, 364 (D.D.C. Apr. 28, 1998) (ordering in camera inspection of seven documents "[i]n the interests of efficiency"); see also Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1028 (W.D. Mich. 1998) ("The withheld documents in this case are far too numerous to be considered the proper subject of an in camera inspection."); Animal Legal Def. Fund, 44 F. Supp. 2d at 304 (rejecting in camera review, but requiring agency to "submit a more detailed affidavit" in order to conserve judicial resources); Smith v. ATF, 977 F. Supp. 496, 503 (D.D.C. 1997) (finding that "judicial economy is best served" by allowing correction of deficient affidavits rather than by in camera review of two documents).

    298. See, e.g., Carter, 830 F.2d at 393 n.16 (suggesting that for voluminous documents, "selective inspection of . . . documents [is] often an appropriate compromise"); N.Y. Pub. Interest Research Group v. EPA, 249 F. Supp. 2d 327, 331 (S.D.N.Y. 2003) (discussing fact that in camera review was conducted of representative sample of documents); Wilson v. CIA, No. 89-3356, 1991 WL 226682, at *3 (D.D.C. Oct. 15, 1991) (ordering fifty-document sample of approximately 1000 pages withheld in whole or in part, selected equally by parties, for in camera examination); Wilson v. Dep't of Justice, No. 87-2415, 1991 WL 120052, at *4 (D.D.C. June 18, 1991) (requiring sample of eight of approximately eighty withheld documents, to be selected equally by each side, for detailed in camera description); Agee v. CIA, 517 F. Supp. 1335, 1336 (D.D.C. 1981) (utilizing "random" in camera review); cf. Young, 972 F.2d at 549 (rejecting a per se rule that would require in camera review "whenever the examination could be completed quickly"). But cf. Lame v. United States Dep't of Justice, 654 F.2d 917, 927 (3d Cir. 1981) (holding in camera sampling of law enforcement documents insufficient).

    299. See Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (conducting in camera inspection because affidavits contradicted published report).

    300. See Pub. Citizen v. United States Dep't of State, 787 F. Supp. 12, 13 (D.D.C. 1992) (finding exemptions properly invoked after reviewing records in camera), aff'd, 11 F.3d 198 (D.C. Cir. 1993).

    301. Jefferson v. United States Dep't of Justice, No. 01-1418, slip op. at 31 n.13 (D.D.C. Mar. 31, 2003) (deciding to hold in abeyance a segregability determination for documents claimed to be exempt on the basis of Exemption 5 of the FOIA until in camera inspection is completed); Citizens Progressive Alliance v. United States Bureau of Indian Affairs, 241 F. Supp. 2d 1342, 1359 (D.N.M. 2002) (noting that "all segregable portions of the documents have been released," a finding verified by in camera inspection).

    302. See, e.g., FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 612 (5th Cir. 2003) (per curiam) (affirming district court's judgment after reviewing documents in camera); Tax Analysts v. IRS, 294 F.3d 71, 73 (D.C. Cir. 2002) (same).

    303. Rugiero v. United States Dep't of Justice, 257 F.3d 534, 547 (6th Cir. 2001) (finding that the requester failed to demonstrate "strong evidence of bad faith that calls into question the district court's decision not to conduct an in camera review").

    304. Quiñon, 86 F.3d at 1228; see, e.g., Jones, 41 F.3d at 242-43 (reviewing, at request of both parties, documents compiled as part of FBI's widely criticized COINTELPRO operations during 1960s and 1970s because of "evidence of bad faith or illegality with regard to the underlying activities which generated the documents at issue"); cf. Ford v. West, No. 97-1342, 1998 WL 317561, at *3 (10th Cir. June 12, 1998) ("'[M]ere allegations of bad faith' should not 'undermine the sufficiency of agency submissions.'" (quoting Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996))); Silets, 945 F.2d at 231 (finding mere assertion, as opposed to actual evidence, of bad faith on part of agency insufficient to warrant court's in camera review).

    305. Jones, 41 F.3d at 242-43; see Detroit Free Press v. United States Dep't of Justice, 174 F. Supp. 2d 597, 601 (E.D. Mich. 2001) (ordering in camera submissions because of questions about "the veracity of" the agency's justification for withholding documents, which "rais[e] questions of bad faith"); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1085 (D.C. Cir. 1998) (Silberman, J., concurring) (urging in camera review of the "Official and Confidential" files of former FBI Director J. Edgar Hoover "to fully understand the enormous public interest in these materials"). But see, e.g., Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999) (holding that alleged "evidentiary discrepancies" identified in published materials concerning highly publicized suicide of Deputy White House Counsel Vincent Foster was not evidence of bad faith warranting in camera review of death-scene and autopsy photographs).

    306. See Jones, 41 F.3d at 242-43.

    307. See, e.g., Pub. Citizen v. Dep't of State, 11 F.3d 198, 200-01 (D.C. Cir. 1993) (tacitly approving use of in camera inspection to determine whether Exemption 1 protection waived); Weberman v. NSA, 668 F.2d 676, 678 (2d Cir. 1982) (finding in camera inspection of classified affidavit appropriate when "[d]isclosure of the details . . . might result in serious consequences to the nation's security"); Edmonds v. FBI, 272 F. Supp. 2d 35, 46-47 (D.D.C. 2003) (agreeing, after reviewing "the extensive confidential material submitted [for in camera review, that] this is one of those 'occasion[s] when extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed'" (quoting Lykins v. United States, 725 F.2d 1455, 1463 (D.C. Cir. 1984))).

    308. Armstrong, 97 F.3d at 580 ("First, [limited in camera review] makes it less likely that sensitive information will be disclosed. Second, if there is an unauthorized disclosure, having reduced the number of people with access to the information makes it easier to pinpoint the source of the leak.").

    309. See, e.g., Maynard, 986 F.2d at 557 (noting that in camera declarations filed); Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992) (same); Edmonds, 272 F. Supp. 2d at 43 (noting agency use of in camera supplement to public declaration); Springmann v. United States Dep't of State, No. 93-1238, slip op. at 2-3 (D.D.C. Feb. 24, 2000) (granting renewed motion for summary judgment after reviewing in camera affidavit); see also Dow Jones Co. v. FERC, 219 F.R.D. 167, 171 (C.D. Cal. 2003) (explaining that agency submitted disputed record in camera).

    310. See Armstrong, 97 F.3d at 580-81 ("[T]he use of in camera affidavits has generally been disfavored."); Pub. Citizen v. Dep't of State, 100 F. Supp. 2d 10, 27 (D.D.C. 2000) (explaining that "[w]hile . . . in camera declarations are disfavored as a first line of defense," the agency had already submitted "three public declarations" amounting to a "threshold showing on the public record"), aff'd in pertinent part & rev'd in part on other grounds, 276 F.3d 674 (D.C. Cir. 2002).

    311. See, e.g., Edmonds, 272 F. Supp. 2d at 43 (noting use of ex parte supplementary affidavit and extensive in camera Vaughn Index in case involving problems after September 11, 2001 in FBI's translation unit); Al Najjar v. Ashcroft, No. 00-1472, slip op. at 2 (D.D.C. July 22, 2003) (noting that three Department of Justice components submitted "substantial portions of their moving papers and Vaughn index in camera and ex parte" in case involving secret, classified evidence pertaining to detainee).

    312. See Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1083 (9th Cir. 2004) (holding that "resort to in camera review is appropriate only after [agency] has submitted as much detail in the form of public affidavits and testimony as possible"); Armstrong, 97 F.3d at 581 (holding that district court "must both make its reasons for [relying on an in camera declaration] clear and make as much as possible of the in camera submission available to the opposing party" (citing Lykins, 725 F.2d at 1465)); Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (requiring "as complete a public record as is possible" before examining classified affidavits in camera); see also Al Najjar, No. 00-1472, slip op. at 7 (D.D.C. July 22, 2003) (requiring agencies to "create a more complete public record of their responses to plaintiffs' FOIA requests"); cf. Pub. Citizen Health Research Group v. United States Dep't of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978) (ruling that the district court should not have refused to examine an affidavit proffered in camera in an Exemption 6 case, because the affidavit was "the only matter available . . . that would have enabled [the court] to properly decide de novo the propriety of" the agency's exemption claim).

    313. See Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983) (acknowledging that ex parte testimony was not recorded, and advising that "wiser course" for future cases would be to record it); Physicians for Soc. Responsibility v. United States Dep't of Justice, No. 85-0169, slip op. at 3 (D.D.C. Aug. 23, 1985) (noting that the transcript of in camera review was ordered "sealed and secured"); cf. Martin v. United States Dep't of Justice, No. 85-3091, slip op. at 3 (3d Cir. July 2, 1986) (ordering nonexempt portion of in camera transcript disclosed).

    314. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1040 (7th Cir. 1998) ("[T]he general rule is that counsel are not entitled to participate in in camera FOIA proceedings."); Arieff, 712 F.2d at 1470-71 & n.2 (prohibiting participation by plaintiff's counsel even when information withheld was personal privacy information); Pollard, 705 F.2d at 1154 (finding no reversible error when court not only reviewed affidavit and documents in camera, but also received authenticating testimony ex parte); Salisbury v. United States, 690 F.2d 966, 973 n.3 (D.C. Cir. 1982); Weberman, 668 F.2d at 678; cf. Ellsberg v. Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983) (holding that plaintiff's counsel is not permitted to participate in in camera review of documents arguably covered by state secrets privilege) (non-FOIA case). But cf. Lederle Labs. v. HHS, No. 88-249, 1988 WL 47649, at **1-2 (D.D.C. May 2, 1988) (issuing a restrictive protective order in an Exemption 4 case that appeared to permit counsel for the requester to review contested business information).

    315. See Nat'l Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988) ("[W]here a trial court properly reviewed contested documents in camera, an adequate factual basis for the decision exists."); City of Va. Beach v. United States Dep't of Commerce, 995 F.2d 1247, 1252 n.12 (4th Cir. 1993) ("By conducting in camera review, the district court established an adequate basis for its decision."); see also Lissner v. United States Customs Serv., 241 F.3d 1220, 1224 (9th Cir. 2001) (reversing district court decision on Exemption 7(C) applicability because appellate court's own in camera review revealed "nothing in the unredacted documents that is particularly personal").

    316. See, e.g., Church of Scientology, Inc. v. United States Dep't of the Army, 611 F.2d 738, 743 (9th Cir. 1979) (holding that despite "conclusory" affidavits, after in camera inspection trial court had "adequate factual basis" for its decision); see also Lion Raisins, 354 F.3d at 1082 ("Under certain limited circumstances, we have endorsed the use of in camera review of government affidavits as the basis for FOIA decisions."); Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1042-43 (9th Cir. 1999) (suggesting, notwithstanding Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991), that in camera inspection could by itself be sufficient); Spirko, 147 F.3d at 997 (ruling that in camera inspection is one alternative for district court when agency fails sufficiently to detail its exemption claims). But see Wiener, 943 F.2d at 979 ("In camera review of the withheld documents by the court is not an acceptable substitute for an adequate Vaughn index."); St. Andrews Park, Inc. v. United States Dep't of the Army Corps of Eng'rs, 299 F. Supp. 2d 1264, 1271 & 1272 n.5 (S.D. Fla. 2003) (declaring in camera review to be "not dispositive" when agency's affidavit found to be inadequate, even while suggesting that exemption claims "appear . . . to be justified").

    317. See, e.g., Wickwire Gavin, P.C. v. USPS, 356 F.3d 588, 591 (4th Cir. 2004) (declaring that FOIA cases are generally resolved on summary judgment); Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002) ("Summary judgment resolves most FOIA cases."); Raytheon Aircraft Co. v. United States Army Corps of Eng'rs, 183 F. Supp. 2d 1280, 1281 (D. Kan. 2001) ("FOIA cases . . . are especially amenable to summary judgment because the law, rather than the facts, is the only matter in dispute."); Sanderson v. IRS, No. 98-2369, 1999 WL 35290, at *2 (E.D. La. Jan. 25, 1999) (observing that summary judgment is the usual means for disposing of FOIA cases); Pub. Employees for Envtl. Responsibility v. EPA, 978 F. Supp. 955, 959 (D. Colo. 1997) ("FOIA claims are typically resolved on summary judgment . . . ."), appeal dismissed voluntarily, No. 97-1384 (10th Cir. Nov. 25, 1997); Cappabianca v. Comm'r, United States Customs Serv., 847 F. Supp. 1558, 1561 (M.D. Fla. 1994) ("[O]nce documents in issue are properly identified, FOIA cases should be handled on motions for summary judgment." (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993))).

    318. Gray v. Sw. Airlines, Inc., 33 Fed. Appx. 865, 869 n.1 (9th Cir. 2002) (Reinhardt, J., dissenting) (citing Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir. 1996)) (non-FOIA case).

    319. Fed. R. Civ. P. 56(c); see, e.g., McClain v. United States Dep't of Justice, 17 Fed. Appx. 471, 474 (7th Cir. 2001) ("[T]he purpose of summary judgment is to isolate and dispose of factually unsupported claims . . . .").

    320. Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988); see, e.g., Plazas-Martinez v. DEA, 891 F. Supp. 1, 3 (D.D.C. 1995) ("Plaintiff's submission does create a dispute on an issue of fact; it is not a material issue, however."); Kuffel v. United States Bureau of Prisons, 882 F. Supp. 1116, 1122 (D.D.C. 1995) (holding that plaintiff's disagreement with application of exemptions does not constitute a dispute as to material facts precluding summary judgment "because he does not put forth any facts to prove that they were wrongfully applied"); Patterson v. IRS, No. 90-1941, 1992 WL 477021, at *1 (S.D. Ind. Nov. 3, 1992) ("[T]he disputed fact must be outcome determinative."), aff'd in part, rev'd & remanded in part on other grounds, 56 F.3d 841 (7th Cir. 1995); cf. Horowitz v. Peace Corps, No. 00-0848, slip op. at 9-10 (D.D.C. Oct. 12, 2001) (denying both parties' motions for summary judgment because of conflicting evidence on the timing of a decision -- a "significant material fact" with respect to the applicability of Exemption 5) (appeal pending).

    321. See Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003) ("[A] lack of timeliness does not preclude summary judgment for an agency in a FOIA case."); St. Andrews Park, Inc. v. United States Dep't of the Army Corps. of Eng'rs, 299 F. Supp. 2d 1264, 1269 (S.D. Fla. 2003) ("Defendant's exceeding the prescribed 20-day time limit to adjudicate the FOIA denial appeal does not entitle Plaintiffs to [summary] judgment."); Iacoe v. IRS, No. 98-C-0466, 1999 WL 675322, at *4 (E.D. Wis. July 23, 1999) ("The effect of the agency's failure to meet the time limit is merely to permit the requester to bring an action in district court . . . ."); Barvick v. Cisneros, 941 F. Supp. 1015, 1019-20 (D. Kan. 1996) ("This court is persuaded that an agency's failure to respond within [the statutory time limits] does not automatically entitle a FOIA requester to summary judgment.").

    322. Alyeska Pipeline, 856 F.2d at 314; see Mace v. EEOC, 197 F.3d 329, 330 (8th Cir. 1999) ("[S]peculative claims about [the] existence of other documents cannot rebut [the] presumption of good faith afforded [to] agency affidavits." (citing SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991))); Germosen v. Cox, No. 98 Civ. 1294, 1999 WL 1021559, at **18-19 (S.D.N.Y. Nov. 9, 1999) (ruling that plaintiff cannot defeat summary judgment by speculating that further evidence will develop to support his allegations), appeal dismissed for failure to prosecute, No. 00-6041 (2d Cir. Sept. 12, 2000); Iacoe, 1999 WL 675322, at *4 ("Plaintiff's speculations about a cover-up are insufficient to overcome the presumption of good faith to which the agency's declaration is entitled."); Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240, 243-44 (D.D.C. 1998) (explaining that plaintiff's "bare suspicion" will not call into question adequacy of agency's search); Gale v. FBI, 141 F.R.D. 94, 96 (N.D. Ill. 1992) (holding that plaintiff's "own self-serving statements [alone] are insufficient to create a genuine issue of material fact barring summary judgment"); see also Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978) ("Conclusory allegations unsupported by factual data will not create a triable issue of fact.").

    323. See Steinberg v. United States Dep't of Justice, 179 F.R.D. 357, 360 (D.D.C. 1998) (finding that summary judgment is not defeated "with pure conjecture about the possible content of withheld information, raising 'some metaphysical doubt as to the material facts'" (quoting Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986))).

    324. Master v. FBI, 926 F. Supp. 193, 197-98 (D.D.C. 1996), summary affirmance granted, 124 F.3d 1309 (D.C. Cir. 1997) (unpublished table decision); see also Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 23-24 (D.D.C. 2003) (finding "no material issue to rebut the Government's good faith presumption in the processing of [plaintiff's] FOIA request" merely because of "gaps in the serialization of the files").

    325. See McNamara v. Nat'l Credit Union Ass'n, 264 F. Supp. 2d 1, 4 (D.D.C. 2002) (treating as conceded defendant's statement of material facts because plaintiff filed motion to dismiss without prejudice rather than opposition to summary judgment motion); Knight v. FDA, No. 95-4097, 1997 WL 109971, at *1 (D. Kan. Feb. 11, 1997) (accepting as "reasonable and fair" agency's processing of plaintiff's request and granting agency summary judgment "[i]n the absence of any argument from the plaintiff"); Nuzzo v. FBI, No. 95-1708, 1996 WL 741587, at *2 (D.D.C. Oct. 8, 1996) (granting defendant agency's unopposed summary judgment motion); Butler v. Dep't of the Air Force, 888 F. Supp. 174, 179 (D.D.C. 1995) (ruling that because plaintiff failed to controvert agency's factual assertions, they must be accepted as true), aff'd per curiam, No. 96-5111 (D.C. Cir. May 6, 1997); see also Hart v. FBI, No. 94 C 6010, 1995 WL 170001, at *2 (N.D. Ill. Apr. 7, 1995) (holding that "plaintiff has not asserted any facts which convince this Court that the FBI has any records which relate to him or has failed to conduct an adequate search"), aff'd, 91 F.3d 146 (7th Cir. July 16, 1996) (unpublished table decision); cf. Ruotolo v. IRS, 28 F.3d 6, 8-9 (2d Cir. 1994) (finding that although plaintiffs were generally aware of summary judgment rules, district court should have specifically notified them of consequences of not complying with litigation deadlines before dismissing case).

    326. See 5 U.S.C.  552(a)(4)(B) (2000); see, e.g., United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989); Wishart v. Comm'r, No. 98-17248, 1999 WL 985142, at *1 (9th Cir. June 25, 1999); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980).

    327. See, e.g., O'Harvey v. Office of Workers' Compensation Programs, No. 96-33015, 1997 WL 31589, at *1 (9th Cir. Jan. 21, 1997) (holding that when the district court relied on the agency's denial letter "[w]ithout an affidavit or oral testimony, [it] lacked a factual basis to make its decision").

    328. See Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987); Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973); cf. McClain, 17 Fed. Appx. at 474 (holding that there is no entitlement to Vaughn Index unless plaintiff shows that he made specific request for records and agency withheld them pursuant to FOIA exemptions).

    329. 28 U.S.C.  1746 (2000); see Summers v. United States Dep't of Justice, 999 F.2d 570, 572-73 (D.C. Cir. 1993).

    330. Miller v. United States Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985).

    331. See, e.g., Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d 1, 8 (D.D.C. 2001) (pointing out that a "mere assertion of bad faith is not sufficient to overcome a motion for summary judgment" (citing Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979))), aff'd, 334 F.3d 55 (D.C. Cir. 2003); Barvick, 941 F. Supp. at 1018 (declaring that summary judgment is available "when the agency offers adequate affidavits establishing that it has complied with its FOIA obligations"); Hemenway v. Hughes, 601 F. Supp. 1002, 1004 (D.D.C. 1985) (recognizing that in FOIA cases, summary judgment does not hinge on existence of genuine issue of material fact, but rather on whether agency affidavits are reasonably specific, demonstrate logical use of exemptions, and are not controverted by evidence in record or by bad faith) (applying standard developed in national security context to Exemption 6); see also In re Wade, 969 F.2d 241, 246 (7th Cir. 1992) ("Without evidence of bad faith, the veracity of the government's submissions regarding reasons for withholding the documents should not be questioned."); cf. Niagara Mohawk Power Corp. v. United States Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999) (finding agency affidavits conclusory and denying summary judgment despite plaintiff's failure to controvert agency assertions by remaining silent); Kamman v. IRS, 56 F.3d 46, 49 (9th Cir. 1995) (finding that agency failed to satisfy burden of proof and awarding summary judgment to plaintiff when agency affidavits "are nothing more than 'conclusory and generalized allegations'"); Voinche v. FBI, 46 F. Supp. 2d 26, 30 (D.D.C. 1999) (denying summary judgment when agency provided conclusory affidavit to support invocation of Exemption 7(A)); Demma v. United States Dep't of Justice, No. 93 C 7296, 1995 WL 360731, at *3 (N.D. Ill. June 15, 1995) (denying summary judgment when affidavits addressed only one subject of plaintiff's multiple-subject request), appeal dismissed voluntarily, No. 96-1231 (7th Cir. June 12, 1996).

    332. See, e.g., Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982); Taylor v. Dep't of the Army, 684 F.2d 99, 106-07 (D.C. Cir. 1982); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 10 (D.D.C. 1995), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996); see also Piper, 294 F. Supp. 2d at 20 ("Upon a finding that the affidavits are sufficient, the court need not conduct further inquiry into their veracity."); Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958, 962 (C.D. Cal. 2003) ("Disagreeing with the [agency's] conclusion [concerning applicability of an exemption] is not a reason to challenge the Vaughn Index."), appeal dismissed voluntarily, No. 03-55833 (9th Cir. Aug. 26, 2003).

    333. See Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003) (crediting the government's predictive judgments concerning harm to national security that could result from release of requested information), cert. denied, 124 S. Ct. 1041 (2004); Gardels, 689 F.2d at 1106 (recognizing that there is "necessarily a region for forecasts in which informed judgment as to potential harm should be respected"); Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980) (declaring that "courts must take into account . . . that any affidavit of threatened harm to national security will always be speculative"); Hoch v. CIA, 593 F. Supp. 675, 683-84 (D.D.C. 1984), aff'd, 807 F.2d 1227 (D.C. Cir. 1990) (unpublished table decision); see also Moore v. FBI, No. 83-1541, slip op. at 2 (D.D.C. Aug. 30, 1984) (finding that "particular incident" was sufficiently identified given national security nature of documents), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision).

    334. Struth v. FBI, 673 F. Supp. 949, 954 (E.D. Wis. 1987); see, e.g., Goldberg v. United States Dep't of State, 818 F.2d 71, 78-79 (D.C. Cir. 1987) (Exemption 1); Spannaus v. United States Dep't of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987) (Exemption 7(A)); Curran v. Dep't of Justice, 813 F.2d 473, 477 (1st Cir. 1987) (Exemption 7(A)); Gardels, 689 F.2d at 1106 n.5 (Exemptions 1 and 3); Windels, Marx, Davies & Ives v. Dep't of Commerce, 576 F. Supp. 405, 410-11 (D.D.C. 1983) (Exemptions 2 and 7(E)); see also Lindsey v. NSC, No. 84-3897, slip op. at 3 (D.D.C. July 12, 1985) (holding that a FOIA plaintiff cannot defeat summary judgment by saying that he will raise genuine issue "at a time of his own choosing").

    335. Fed. R. Civ. P. 56(e).

    336. Doolittle v. United States Dep't of Justice, 142 F. Supp. 2d 281, 285 n.5 (N.D.N.Y. 2001) ("The practice of submitting legal arguments through the declaration . . . is improper, and such arguments will not be considered."); Peters v. IRS, No. 00-2143, slip op. at 5 (D.N.J. Feb. 23, 2001) ("Argument of the facts and the law shall not be contained in the affidavits."); Alamo Aircraft Supply, Inc. v. Weinberger, No. 85-1291, 1986 U.S. Dist. LEXIS 29010, at *3 (D.D.C. Feb. 21, 1986) (reproving agency declaration for "several gratuitous recitations of the affiant's own interpretation of the law").

    337. See, e.g., Spannaus, 813 F.2d at 1289 (holding that declarant's attestation "to his personal knowledge of the procedures used in handling [the] request and his familiarity with the documents in question" is sufficient); Schrecker v. United States Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002) (rejecting argument that affidavit was hearsay because affiant was "responsible for the FBI's compliance with FOIA litigation and is therefore not merely speculating about the FBI activities"), aff'd, 349 F.3d 657 (D.C. Cir. 2003); Hoffman v. United States Dep't of Justice, No. 98-1733, slip op. at 7 (W.D. Okla. Apr. 16, 1999) (finding personal knowledge requirement was met because declarant was "aware of what was done by virtue of information provided to him in his official capacity"); Cucci v. DEA, 871 F. Supp. 508, 513 (D.D.C. 1994) (finding that declarant "had the requisite personal knowledge based on her examination of the records and her discussion with a representative of the [state police]" to attest that information was provided with express understanding of confidentiality); Laborers' Int'l Union v. United States Dep't of Justice, 578 F. Supp. 52, 55-56 (D.D.C. 1983) (finding affiant competent when observations were based on review of investigative report and upon general familiarity with nature of investigations similar to that documented in requested report), aff'd, 772 F.2d 919 (D.C. Cir. 1984); see also Madison Mech., Inc. v. NASA, No. 99-2854, 2003 WL 1477014, at *6 (D.D.C. Mar. 20, 2003) (magistrate's recommendation) (requiring agency to submit revised affidavits stating "fully and precisely" declarant's basis for personal knowledge), adopted (D.D.C. Mar. 31, 2003); Avondale Indus. v. NLRB, No. 96-1227, 1998 WL 34064938, at *3 (E.D. La. Mar. 23, 1998) (holding that there is no requirement that author of records prepare Vaughn Index); Coleman v. FBI, No. 89-2773, slip op. at 8-9 (D.D.C. Dec. 10, 1991) ("The law does not require the affiant preparing a Vaughn Index to be personally familiar with more than the procedures used in processing the particular request."), summary affirmance granted, No. 92-5040 (D.C. Cir. Dec. 4, 1992); cf. Kamman, 56 F.3d at 49 (rejecting affidavit that revealed that signer "did not even review the actual documents at issue" and attested only "that the documents are in a file that is marked with the name of a taxpayer other than [plaintiff]"); Canning v. Dep't of Justice, No. 92-0463, slip op. at 4-5 (D.D.C. June 26, 1995) (finding personal knowledge requirement was met where affidavit established affiant's authority to review withheld grand jury records, and affiant personally reviewed such records; FOIA Update, Vol. XIX, No. 3, at 2 (advising that agency FOIA officers are authorized to review grand jury materials for purposes of FOIA administration, notwithstanding strict secrecy requirements of Rule 6(e) of Federal Rules of Criminal Procedure (citing Canning)).

    338. See, e.g., Carney v. United States Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994), aff'g in pertinent part, rev'g & remanding in part, No. 92-CV-6204, slip op. at 12 (W.D.N.Y. Apr. 27, 1993) ("There is no basis in either the statute or the relevant caselaw to require that an agency effectively establish by a series of sworn affidavits a 'chain of custody' over its search process. The format of the proof submitted by defendant -- declarations of supervisory employees, signed under penalty of perjury -- is sufficient for purposes of both the statute and Fed. R. Civ. P. 56."); Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993) ("[A]n agency need not submit an affidavit from the employee who actually conducted the search. Instead, an agency may rely on an affidavit of an agency employee responsible for supervising the search."); SafeCard, 926 F.2d at 1202 (finding that employee "in charge of coordinating the [agency's] search and recovery efforts [is the] most appropriate person to provide a comprehensive affidavit"); Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., No. 98 Civ. 4608, 1998 WL 690371, at *4 (S.D.N.Y. Sept. 30, 1998) ("[I]t is even routine to accept affidavits from agency officials who have supervised but not personally conducted a FOIA search."), aff'd, 182 F.3d 900 (2d Cir. 1999) (unpublished table decision); see also Horsehead Indus. v. EPA, No. 94-1299, slip op. at 9 (D.D.C. Oct. 1, 1996) (declaring that agency cannot meet its burden by filing declaration from someone with no responsibility for activities at issue or for files that may contain responsive documents).

    339. See Holland v. CIA, No. 92-1233, 1992 WL 233820, at **8-9 (D.D.C. Aug. 31, 1992); McTigue v. United States Dep't of Justice, No. 84-3583, slip op. at 8-9 (D.D.C. Dec. 3, 1985), aff'd, 808 F.2d 137 (D.C. Cir. 1987).

    340. See Kamman, 56 F.3d at 49 (rejecting affidavit that revealed that signer "did not even review the actual documents at issue," and that attested only "that the documents are in a file that is marked with the name of a taxpayer other than [plaintiff]"); Sellar v. FBI, No. 84-1611, slip op. at 3 (D.D.C. July 22, 1988).

    341. See Timken Co. v. United States Customs Serv., 3 Gov't Disclosure Serv. (P-H)  83,234, at 83,975 n.9 (D.D.C. June 24, 1983) (rejecting attestations of affiant who merely sampled documents that staff had reviewed for him).

    342. See, e.g., Heily v. United States Dep't of Commerce, 69 Fed. Appx. 171, 174 (4th Cir. 2003) (per curiam) ("It is well-established that discovery may be greatly restricted in FOIA cases."); Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C. 2003) ("Discovery is generally unavailable in FOIA actions."); Hardy v. DOD, No. 99-523, slip op. at 7 (D. Ariz. Aug. 27, 2001) ("[D]iscovery is not favored in FOIA cases."); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000) ("[D]iscovery in a FOIA action is generally inappropriate."); Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) ("Discovery is to be sparingly granted in FOIA actions."), aff'd in part, rev'd in part & remanded, 185 F.3d 898 (D.C. Cir. 1999); Katzman v. Freeh, 926 F. Supp. 316, 319 (E.D.N.Y. 1996) ("[D]iscovery in a FOIA action is extremely limited . . . .").

    343. See Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 488 (2d Cir. 1999) (noting that district court has "'broad discretion to manage the scope of discovery'" (quoting SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991))); Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994); Maynard v. CIA, 986 F.2d 547, 567 (1st Cir. 1993); Gillin v. IRS, 980 F.2d 819, 823 (1st Cir. 1992) (per curiam); Nolan v. United States Dep't of Justice, 973 F.2d 843, 849 (10th Cir. 1992); N.C. Network for Animals, Inc. v. USDA, No. 90-1443, 1991 WL 10757, at *4 (4th Cir. Feb. 5, 1991) ("The district court should exercise its discretion to limit discovery in this as in all FOIA cases, and may enter summary judgment on the basis of agency affidavits when they are sufficient to resolve issues . . . ."); Petrus v. Brown, 833 F.2d 581, 583 (5th Cir. 1987) ("A trial court has broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined."); Meeropol v. Meese, 790 F.2d 942, 960-61 (D.C. Cir. 1986) (same, with respect to broad district court discretion); see also Anderson v. HHS, 80 F.3d 1500, 1507 (10th Cir. 1996) (holding that district court did not abuse its discretion in denying plaintiff discovery on attorney fees issue).

    344. See Heily, 69 Fed. Appx. at 174 (explaining that when discovery is permitted, generally it is "limited to the scope of agency's search and its indexing and classification procedures"); see, e.g., Tax Analysts v. IRS, 214 F.3d 179, 185 (D.C. Cir. 2000) (remanding for discovery on "narrow and fact-specific question" concerning disclosability of specific type of document); Ruotolo v. Dep't of Justice, 53 F.3d 4, 11 (2d Cir. 1995) (holding that discovery on scope of burden that search would entail should have been granted); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (finding discovery appropriate to inquire into adequacy of document search); Judicial Watch, Inc. v. United States Dep't of Commerce, 127 F. Supp. 2d 228, 230 (D.D.C. 2000) (permitting depositions to be taken about parameters of FOIA search); Pub. Citizen, 997 F. Supp. at 72 (holding that discovery is limited to "investigating the scope of the agency search for responsive documents, the agency's indexing procedures, and the like"); see also Wash. Post Co. v. United States Dep't of Justice, No. 84-3581, slip op. at 1-2 (D.D.C. Aug. 2, 1990) (permitting discovery, in Exemption 7(B) case, on issue of whether it is more probable than not that disclosure would seriously interfere with fairness of pending or "truly imminent" trial or adjudication); Silverberg v. HHS, No. 89-2743, 1990 WL 599452, at **1-2 (D.D.C. June 26, 1990) (permitting discovery, in Exemption 4 case, of responses by private drug-testing laboratories to agency's inquiry concerning whether their "performance test results" are customarily released to public); ABC, Inc. v. USIA, 599 F. Supp. 765, 768-70 (D.D.C. 1984) (ordering agency head to submit to deposition on issue of whether transcripts of tape-recorded telephone calls constitute "personal records" or "agency records"); cf. United States v. Owens, 54 F.3d 271, 277 (6th Cir. 1995) (allowing discovery on issue of ownership of joint state/federal task force records in action by United States to enjoin state court disclosure order under state public records law). But see Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 1999 WL 1051963, at *3 (W.D. Pa. Oct. 12, 1999) (allowing limited discovery "regarding the authenticity and completeness of the material produced by HHS, as well as the methodology used to compile it," because plaintiff "'does not know the contents of the information sought and is, therefore, helpless to contradict the government's description of the information or assist the trial judge'" (quoting Davin v. United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995))), appeal dismissed voluntarily, No. 01-1886 (3d Cir. Apr. 24, 2002).

    345. See, e.g., Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ("In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations, or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate.") (citations omitted); Gilmore v. United States Dep't of Energy, 33 F. Supp. 2d 1184, 1190 (N.D. Cal. 1998) (permitting discovery when plaintiff claimed existence of pattern and practice of unreasonable delay in responding to FOIA requests, but limiting discovery to agency's "policies and practices for responding to FOIA requests, and the resources allocated to ensure its compliance the FOIA time limitations"); Judicial Watch, Inc. v. United States Dep't of Commerce, 34 F. Supp. 2d 28, 46 (D.D.C. 1998) (allowing discovery "under the rigorous supervision of a Magistrate Judge" concerning alleged illegal destruction and removal of records subsequent to plaintiff's FOIA request), partial summary judgment granted, 83 F. Supp. 2d 105 (D.D.C. 1999); Long v. United States Dep't of Justice, 10 F. Supp. 2d 205, 210 (N.D.N.Y. 1998) (finding discovery appropriate to test adequacy of search); Hawthorn Mgmt. Servs. v. HUD, No. 3:96CV2435, 1997 WL 821767, at *3 (D. Conn. Dec. 18, 1997) (permitting discovery because affiant's failure to disclose all pertinent information concerning bidding process in initial declaration amounted to "bad faith"); cf. Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999) (upholding denial of discovery based on "speculative criticism" of agency's search); Grand Cent. P'ship, 166 F.3d at 489 (finding discovery unwarranted based on plaintiff's "speculation that there must be more documents" and that agency acted in "bad faith" by not producing them); Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (finding discovery unwarranted when court convinced that agency "has acted in good faith and has properly withheld responsive material"; declaring fact that agency destroyed documents prior to receipt of FOIA request was not evidence of lack of "good faith").

    346. See Ctr. for Nat'l Sec. Studies v. Dep't of Justice, No. 01-2500, 2002 U.S. Dist. LEXIS 2983, at *5 (D.D.C. Feb. 21, 2002) ("In order to obtain discovery under Fed. R. Civ. P. 56(f), a plaintiff must demonstrate that 'it cannot for reasons stated present by affidavit facts essential to justify [its] opposition.'" (quoting Carpenter v. Fed. Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C. Cir. 1999))), rev'd on other grounds, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 1041 (2004); Code v. FBI, No. 95-1892, 1997 WL 150070, at *8 (D.D.C. Mar. 26, 1997) (citing Strang v. United States Arms Control & Disarm. Agency, 864 F.2d 859, 861 (D.C. Cir. 1989)); SMS Data Prod. Group v. United States Dep't of the Air Force, No. 88-0481, 1989 WL 201031, at *5 (D.D.C. May 11, 1989) ("In the absence of substantial questions concerning the substantive content of defendant's affidavits, further discovery is inappropriate."); accord Fed. R. Civ. P. 56(f) (describing procedure for summary judgment when affidavits are unavailable).

    347. See Ajluni v. FBI, 947 F. Supp. 599, 608 (N.D.N.Y. 1996 (explaining that discovery not permitted into the "thought processes of [the] agency in deciding to claim a particular FOIA exemption"); Pearson v. ATF, No. 85-3079, slip op. at 1-2 (D.D.C. Sept. 22, 1986); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980).

    348. See, e.g., Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) (finding plaintiff not entitled to discovery that would be tantamount to disclosure of contents of exempt documents); Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983) (affirming denial of discovery when directed to substance of withheld documents at issue); Schiller v. INS, 205 F. Supp. 2d 648, 654 (W.D. Tex. 2002) (refusing to permit discovery that sought "information . . . for which [plaintiffs] filed the FOIA request"); Pub. Citizen, 997 F. Supp. at 73 (same); Katzman, 926 F. Supp. at 319 (same); Moore v. FBI, No. 83-1541, slip op. at 6 (D.D.C. Mar. 9, 1984) (denying discovery requests that "would have to go to the substance of the classified materials" at issue and noting that "[t]his is precisely the case when the court can and should exercise its discretion to deny that discovery"), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision); Laborers' Int'l Union v. United States Dep't of Justice, 578 F. Supp. 52, 56 (D.D.C. 1983) (sustaining government's objections to interrogatories when answers would "serve to confirm or deny the authenticity of the document held by plaintiff"), aff'd, 772 F.2d 919 (D.C. Cir. 1984).

    349. See RNR Enters. v. SEC, 122 F.3d 93, 98 (2d Cir. 1997) (finding no abuse of discretion in district court denial of discovery propounded for "investigative purposes"); Flowers v. IRS, 307 F. Supp. 2d 60, 72 (D.D.C. 2004) (scolding plaintiff, who "may be unhappy with the search results," for seeking discovery in her FOIA case in order to conduct investigation of the agency's rationale for tax audit); Cecola v. FBI, No. 94 C 4866, 1995 WL 143548, at *3 (N.D. Ill. Mar. 31, 1995) (disallowing deposition concerning factual basis for assertion of Exemption 7(A), because "there is concern that the subject of the investigation not be alerted to the government's investigative strategy"); Williams v. FBI, No. 90-2299, 1991 WL 163757, at *3 (D.D.C. Aug. 6, 1991) ("An agency's rationale for undertaking an investigation of the Plaintiff is not the proper subject of FOIA discovery requests."); see also Freedman v. Dep't of Justice, No. 78-4257, slip op. at 3-4 (D. Kan. Jan. 3, 1990) (denying discovery concerning electronic surveillance investigative practices).

    350. Tannehill v. Dep't of the Air Force, No. 87-1335, 1987 WL 25657, at *2 (D.D.C. Nov. 12, 1987) (limiting discovery to determination of FOIA issues, not to underlying personnel decision); see Al-Fayed v. CIA, No. 00-2092, slip op. at 17 (D.D.C. Dec. 11, 2000) (terming plaintiff's discovery request "a fishing expedition" and refusing to grant it), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); Immanuel v. Sec'y of Treasury, No. 94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4, 1995) (rejecting discovery that would constitute "a fishing expedition into all the possible funds held by the Department of [the] Treasury which may fall within the terms of [plaintiff's] broad FOIA request. Such an expedition is certainly not going to come at the government's expense when it is evident that [plaintiff] seeks this information only for his own commercial use."), aff'd on other grounds, No. 95-1953, 1996 WL 157732 (4th Cir. Apr. 5, 1996).

    351. Schrecker v. United States Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff'd, 349 F.3d 657 (D.C. Cir. 2003); see Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), vacated in other part & reh'g denied, 607 F.2d 367 (D.C. Cir. 1979); see also Becker, 34 F.3d at 406 (finding that district court did not err by granting summary judgment to government without addressing plaintiff's motion for discovery; judge "must have been satisfied that discovery was unnecessary when she concluded that the IRS's search was reasonable and ruled in favor of the IRS on summary judgment").

    352. See SafeCard, 926 F.2d at 1200-02 (affirming decision to deny discovery as to adequacy of search on ground that agency's affidavits were sufficiently detailed); Military Audit Project v. Casey, 656 F.2d 724, 751 (D.C. Cir. 1981) (affirming trial court's refusal to permit discovery when plaintiffs had failed to raise "substantial questions concerning the substantive content of the [defendants'] affidavits"); Broaddrick v. Executive Office of the President, 139 F. Supp. 2d 55, 64 (D.D.C. 2001) (denying discovery because agency affidavits were sufficiently detailed) (Privacy Act case); Pease v. United States Dep't of Interior, No. 1:99CV113, slip op. at 6 (D. Vt. Sept. 11, 1999) ("'[D]iscovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face.'" (quoting Carney, 19 F.3d at 812)); Hunt v. United States Marine Corps, 935 F. Supp. 46, 50 (D.D.C. 1996) (denying discovery because "defendants have met their burden of showing that they made a good faith effort to conduct a search for the requested records, using methods reasonably expected to produce the desired information"); Spannaus v. United States Dep't of Justice, No. 85-1015, slip op. at 7 (D. Mass. July 13, 1992) (denying discovery because "[p]laintiff has not offered any evidence to rebut the presumption of good faith that is accorded to [defendant's affidavit detailing its search]"); cf. Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 304 (D.D.C. 1999) (finding agency affidavit insufficient but ordering more detailed affidavit and Vaughn Index rather than permitting discovery); Long, 10 F. Supp. 2d at 210 (allowing discovery because agency affidavit was found to be insufficient).

    353. Pub. Citizen, 997 F. Supp. at 73 (quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836-37 n.101 (D.C. Cir. 1979)); see Military Audit Project, 656 F.2d at 751-52; Kay v. FCC, 976 F. Supp. 23, 34 n.35 (D.D.C. 1997) (concluding that because plaintiff failed to submit "concrete evidence of bad faith," discovery was actually sought only to discredit agency declaration), aff'd, 172 F.3d 919 (D.C. Cir. 1998) (unpublished table decision); see also Physicians Comm. for Responsible Med. v. Glickman, 117 F. Supp. 2d 1, 4 (D.D.C. 2000) ("Discovery to pursue a suspicion or a hunch is unwarranted.") (Federal Advisory Committee Act case).

    354. Ajluni v. FBI, 947 F. Supp. 599, 608 (N.D.N.Y. 1996) (quoting Katzman, 926 F. Supp. at 320); see Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (employing in camera review, rather than discovery, to resolve inconsistency between representations in Vaughn Index and agency's prior public statements); Laborers' Int'l, 772 F.2d at 921.

    355. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("The plaintiff's early attempt in litigation of this kind . . . to take discovery depositions is inappropriate until the government has first had a chance to provide the court with the information necessary to make a decision on the applicable exemptions."); see Farese v. United States Dep't of Justice, No. 86-5528, slip op. at 6 (D.C. Cir. Aug. 12, 1987) (affirming denial of discovery filed prior to affidavits, because the discovery "sought to short-circuit the agencies' review of the voluminous amount of documentation requested"); Simmons v. United States Dep't of Justice, 796 F.2d 709, 711-12 (4th Cir. 1986) (approving district court's decision denying discovery because agency affidavit filed with summary judgment motion made need for discovery "moot"); Military Audit Project, 656 F.2d at 750 (finding no abuse of discretion where agency affidavits were not "inadequate . . . let alone conclusory"); Piron v. Dep't of Justice, No. C00-1287, slip. op. at 2-3 (W.D. Wash. Jan. 10, 2001) (quoting Department of Justice's Freedom of Information Act Guide & Privacy Act Overview 597-98 (May 2000) to the effect that "[p]ermissible discovery . . . should take place, if at all, only after the government moves for summary judgment," in denying discovery on the ground that the government had not yet submitted its summary judgment motion), subsequent opinion (W.D. Wash. May 9, 2001); Founding Church of Scientology v. United States Marshals Serv., 516 F. Supp. 151, 156 (D.D.C. 1980) (barring discovery until defendant has opportunity to submit second Vaughn affidavit). But see Long v. United States Dep't of Justice, 10 F. Supp. 2d 205, 210 (N.D.N.Y. 1998) (allowing discovery prior to government's motion for summary judgment only to test adequacy of search); Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068, slip op. at 2 (D.D.C. July 27, 1988) (permitting discovery on issue of agency's "due diligence" in processing responsive records even prior to filing of government's affidavit because of discerned "discrepancies" in agency's representations as to when processing would be completed), summary judgment granted, 1990 WL 236133 (D.D.C. Dec. 19, 1990).

    356. See, e.g., In re Engram, No. 91-1722, slip op. at 6-7 (4th Cir. June 2, 1992) (per curiam) (permitting discovery regarding how plaintiff obtained defendant's document as relevant to issue of waiver under Exemption 5); Weisberg v. United States Dep't of Justice, 749 F.2d 864, 868 (D.C. Cir. 1984) (ruling that agency "should be able to use the discovery rules in FOIA suits like any other litigant"); McSheffrey v. Executive Office for United States Attorneys, No. 98-0650, slip op. at 3 (D.D.C. Sept. 8, 1999) (recognizing that by conducting discovery against plaintiff, government could have confirmed receipt of agency's response to FOIA request), aff'd on other grounds, 13 Fed. Appx. 3 (D.C. Cir. 2001). But cf. Kurz-Kasch, Inc. v. DOD, 113 F.R.D. 147, 148 (S.D. Ohio 1986) (indicating mistakenly that "only . . . agencies of the government" can be subject to discovery in FOIA cases).

    357. Compare In re Shackelford, No. 93-25, slip op. at 1 (D.D.C. Feb. 19. 1993) ("[P]laintiff's effort to depose two former FBI Special Agents, now retired, concerning the purpose and conduct of the investigation of John Lennon over twenty years ago, is beyond the scope of allowable discovery in a [FOIA] action."), with Judicial Watch, Inc. v. United States Dep't of Commerce, No. 95-133, 2000 WL 33243469, at **1-2 (D.D.C. Dec. 5, 2000) (allowing discovery to be taken regarding White House e-mails sent to and from the Department of Commerce and the Democratic National Committee "that would reasonably lead to evidence that the DOC was not complying with [plaintiff's] first FOIA request"), and Judicial Watch, 34 F. Supp. 2d at 33-35 (noting in passing that depositions had been taken of several former agency employees); see also Kurz-Kasch, 113 F.R.D. at 148 (refusing, in a case of first impression, to allow a FOIA plaintiff to depose a private citizen, on the mistaken ground that under the FOIA "discovery rules . . . apply . . . only against agencies of the government"); cf. Forest Guardians v. United States Forest Serv., No. 99-615, slip op. at 4 (D.N.M. Mar. 29, 2000) (disallowing discovery by information submitters against FOIA requesters, who had received submitted records from defendant agency in redacted form, when discovery was sought for purpose of determining whether requesters made further disclosures) (reverse FOIA case).

    358. 5 U.S.C.  552(a)(4)(B) (2000).

    359. See, e.g., Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992) ("an agency does not waive FOIA exemptions by not raising them during the administrative process" (citing Dubin v. Department of Treasury, 555 F. Supp. 408, 412 (N.D. Ga. 1981)), aff'd, 697 F.2d 1093 (11th Cir. 1983)); Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313, 1318 (D. Utah 2003) (citing Young); Juda v. United States Customs Serv., No. 98-0533, 1999 U.S. Dist. LEXIS 12536, at *9 n.1 (D.D.C. Aug. 2, 1999) (noting that "[d]efendant may assert new exemptions at the federal district court level"), rev'd & remanded on other grounds, No. 99-5333, 2000 WL 1093326 (D.C. Cir. June 19, 2000); Frito-Lay v. EEOC, 964 F. Supp. 236, 239 (W.D. Ky. 1997) ("[A]n agency's failure to raise an exemption at any level of the administrative process does not constitute a waiver of that defense."); Farmworkers Legal Servs. v. United States Dep't of Labor, 639 F. Supp. 1368, 1370-71 (E.D.N.C. 1986) ("The relevant cases universally hold that exemption defenses are not too late if initially raised in the district court."); see also Conoco Inc. v. United States Dep't of Justice, 521 F. Supp. 1301, 1306 (D. Del. 1981) (holding that agency is not barred from asserting work-product claim under Exemption 5 merely because it had not acceded to plaintiff's demand for Vaughn Index at administrative level), aff'd in part, rev'd in part & remanded, 687 F.2d 724 (3d Cir. 1982). But cf. AT&T Info. Sys. v. GSA, 810 F.2d 1233, 1236 (D.C. Cir. 1987) (holding that in "reverse" FOIA context -- when standard of review is "arbitrary [and] capricious" standard based upon "whole" administrative record -- agency may not at litigation stage initially offer its reasons for refusal to withhold material); Gilday v. United States Dep't of Justice, No. 85-292, slip op. at 5 (D.D.C. July 22, 1985) (ruling that agency rationale asserted in litigation over denial of fee waiver cannot correct shortcomings of administrative record).

    360. See, e.g., Ryan v. Dep't of Justice, 617 F.2d 781, 792 & n.38a (D.C. Cir. 1980) (refusing to allow an agency to invoke an exemption not previously "raised," proclaiming instead that "an agency must identify the specific statutory exemptions relied upon, and do so at least by the time of the district court proceedings").

    361. See, e.g., Frito-Lay, 964 F. Supp. at 239 & n.4 (distinguishing between affirmative defenses, which are waived if not raised, and FOIA exemption claims, which are not waived, and declaring that "[p]laintiff has had ample notice of and opportunity to rebut Defendant's defenses"); Johnson v. Fed. Bureau of Prisons, No. 90-H-645-E, slip op. at 4-5 (N.D. Ala. Nov. 1, 1990); Farmworkers Legal Servs., 639 F. Supp. at 1371; Berry v. Dep't of Justice, 612 F. Supp. 45, 47 (D. Ariz. 1985); see also AFGE v. United States Dep't of Commerce, 907 F.2d 203, 206-07 (D.C. Cir. 1990). But see Ray v. United States Dep't of Justice, 908 F.2d 1549, 1557 (11th Cir. 1990) (suggesting that all exemptions must be raised by defendant agency "'in a responsive pleading'" (quoting Chilivis v. SEC, 673 F.2d 1205, 1208 (11th Cir. 1982))), rev'd on other grounds sub nom. United States Dep't of State v. Ray, 502 U.S. 164 (1991); Maccaferri Gabions, Inc. v. United States Dep't of Justice, No. 95-2576, slip op. at 4-6 (D. Md. Mar. 26, 1996) (holding that government's withholding pursuant to FOIA exemption constitutes affirmative defense which must be set forth in answer, but finding that government's reference to exemption in its answer and requester's knowledge of basis for withholding cured any pleading defect), appeal dismissed voluntarily, No. 96-1513 (4th Cir. Sept. 19, 1996); cf. Kansi v. United States Dep't of Justice, 11 F. Supp. 2d 42, 43 (D.D.C. 1998) (finding that requester lost entitlement to litigate fee waiver claim by not raising issue in Complaint).

    362. Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987) (quoting Holy Spirit Ass'n v. CIA, 636 F.2d 838, 846 (D.C. Cir. 1980)); Tax Analysts v. IRS, 152 F. Supp. 2d 1, 25-26 (D.D.C. 2001) (citing Grumman Aircraft Eng'g Corp. v. Renegotiation Bd., 482 F.2d 710, 721-22 (D.C. Cir. 1973)), aff'd in pertinent part, rev'd in part, 294 F.3d 71 (D.C. Cir.), reh'g en banc denied (D.C. Cir. Aug. 5, 2002). But see Williams v. FBI, No. 91-1054, 1997 WL 198109, at *2 (D.D.C. Apr. 16, 1997) (distinguishing the rule in a case where exemption was raised first in a motion for reconsideration, because the "policy militating against piecemeal litigation is less weighty where the district court proceedings are not yet completed"), appeal dismissed, No. 98-5249 (D.C. Cir. Oct. 7, 1998); Judicial Watch of Fla., Inc. v. United States Dep't of Justice, 102 F. Supp. 2d 6, 12 & n.4 (D.D.C. 2000) (explaining that agency may not raise exemption for first time in brief replying to plaintiff's response to motion for summary judgment, but may raise it in future motion for summary judgment, thereby affording plaintiff opportunity to respond); cf. Steinberg v. United States Dep't of Justice, No. 93-2409, slip op. at 10 (D.D.C. July 14, 1997) (offering agency option of either further justifying withholding documents in full under Exemption 7(C) or invoking another exemption, such as Exemption 7(D)).

    363. See, e.g., Rosenfeld v. United States Dep't of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (holding new exemption claims waived when raised for first time after district court ruled against government on its motion for summary judgment); Ray, 908 F.2d at 1551 (same); Scheer v. United States Dep't of Justice, No. 98-1613, slip op. at 4-5 (D.D.C. July 24, 1999) (denying a motion for reconsideration to present new exemption claims, partly because defendant did not show "why, through the exercise of due diligence, it could not have presented this evidence before judgment was rendered"), remanded per stipulation, No. 99-5317 (D.C. Cir. Nov. 2, 2000); Miller v. Sessions, No. 77-C-3331, 1988 WL 45519, at **1-2 (N.D. Ill. May 2, 1988) (holding "misunderstanding" on part of government counsel of court's order to submit additional affidavits insufficient to overcome waiver, and denying motion for reconsideration); Powell v. United States Dep't of Justice, No. C-82-326, slip op. at 4 (N.D. Cal. June 14, 1985) (holding that government may not raise Exemption 7(D) for documents declassified during pendency of case when only Exemption 1 was raised at outset); cf. Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981 (PLF), slip op. at 3-4 (D.D.C. May 26, 2004) (purporting to refuse to allow the government to "raise[] the presidential communication privilege" after summary judgment was granted to plaintiff, based upon the wholly mistaken belief that the government was seeking to do so when in fact it merely was citing to a recent such case as an example of the flawed analysis undertaken by the court on the matter of threshold Exemption 5 applicability) (on motion for reconsideration).

    364. See, e.g., Jordan v. United States Dep't of Justice, 591 F.2d 753, 779-80 (D.C. Cir. 1978) (en banc) (refusing to consider government's Exemption 7 claim first raised in "supplemental memorandum" filed one month prior to appellate oral argument).

    365. See, e.g., Fendler v. Parole Comm'n, 774 F.2d 975, 978 (9th Cir. 1985) (barring government from raising Exemption 5 on remand to protect presentence report because it was raised for first time on appeal); Ryan, 617 F.2d at 792 & n.38a (holding government barred from invoking Exemption 6 on remand because it was "raised" for first time on appeal, and defining "raised" to mean, in effect, "fully Vaughned"); cf. Benavides v. United States Bureau of Prisons, 995 F.2d 269, 273 (D.C. Cir. 1993) ("[T]he government is not entitled to raise defenses to requests for information seriatim until it finds a theory that the court will accept, but must bring all its defenses at once before the district court.") (Privacy Act access case). Compare Wash. Post Co. v. HHS, 795 F.2d 205, 208-09 (D.C. Cir. 1986) (finding that "privilege" prong of Exemption 4 may not be raised for first time on remand -- even though "confidential" prong was previously raised -- absent sufficient extenuating circumstances), and Wash. Post Co. v. HHS, 865 F.2d 320, 327 (D.C. Cir. 1989) (prohibiting agency from raising new aspect of previously raised prong of Exemption 4), with Lame v. United States Dep't of Justice, 767 F.2d 66, 71 n.7 (3d Cir. 1985) (permitting new exemptions to be raised on remand, as compared to raising new exemptions on appeal). But see also Morgan v. United States Dep't of Justice, 923 F.3d 195, 199 n.5 (D.C. Cir. 1991) (remanding for the district court to determine whether a sealing order actually prohibits disclosure under the FOIA, but noting that the government can invoke other exemptions "if the court determines that the seal does not prohibit disclosure").

    366. 218 F.3d 760 (D.C. Cir. 2000).

    367. Id. at 767.

    368. Id. (citing, e.g., Senate of P.R., 823 F.2d at 580-81).

    369. Id. at 767-68 (proclaiming that the only change in the "factual context" of the case was the "simple resolution of other litigation, hardly an unforeseeable difference").

    370. See FOIA Post, "Supreme Court Is Asked to Review Law Enforcement Case" (posted 5/30/01) (describing the D.C. Circuit's "unrealistic approach to the operation of Exemption 7(A)" in the Maydak case); see also Senate of P.R., 823 F.2d at 581 (describing circumstances in which, "[f]rom a practical standpoint," further proceedings might well be required in order to allow the agency to invoke other exemptions once Exemption 7(A) no longer is applicable).

    371. 218 F.3d at 765.

    372. Id. (citing Ryan, 617 F.2d at 792 n.38a). But see United We Stand America, Inc. v. IRS, 359 F.3d 595, 598, 603 (D.C. Cir. 2004) (leaving to the district court on remand the question of "[w]hether one of the nine exemptions applies" to the disputed record despite the fact that the agency only "reserve[d] the right . . . to assert any applicable exemption claim(s)").

    373. August v. FBI, 328 F.3d 697, 701 (D.C. Cir. 2003) (characterizing agency's conduct in Maydak).

    374. Id. at 699 (citing Senate of P.R., 823 F.2d at 581).

    375. 591 F.2d 753 (D.C. Cir. 1978) (en banc).

    376. August, 328 F.3d at 700 (harmonizing Maydak and Jordan); see also Summers v. United States Dep't of Justice, No. 98-1837, slip op. at 7 (D.D.C. Apr. 13, 2004) (interpreting Maydak to require the government to raise all claimed exemptions in the district court proceedings -- but not requiring "that all exemptions . . . be raised at the same time").

    377. August, 328 F.3d at 700 (citing Jordan).

    378. 359 F.3d 295 (D.C. Cir. 2004).

    379. Id. at 597.

    380. Id. at 598.

    381. Id. at 603.

    382. 317 F.3d 345 (D.C. Cir. 2003).

    383. Id. at 348.

    384. See FOIA Post, "Supreme Court Declines to Review Waiver Case" (posted 8/7/01) (advising agencies to give especially careful attention to litigation-waiver issues in wake of Maydak).

    385. See United We Stand Am., 359 F.3d at 598 (permitting agency to raise on remand exemptions reserved in its district court papers, in which it stated: "Should the Court determine that the documents in question constitute agency records for purposes of the FOIA . . . the defendant reserves the right, pursuant to the statute, to assert any applicable exemption claim(s), prior to disclosure, and to litigate further any such exemption claims").

    386. See Jefferson v. Dep't of Justice, 284 F.3d 172, 179 (D.C. Cir. 2002) (foreclosing government's ability to invoke Exemption 6 in allowing remand only to determine whether records meet law enforcement threshold for invocation of Exemption 7(C); "the government's invocation on appeal of Exemption 6 comes too late"); Smith v. United States Dep't of Justice, 251 F.3d 1047, 1051-52 (D.C. Cir. 2001) (rejecting agency's Exemption 3 claim and refusing to remand to the district court to allow the agency "there for the first time raise certain other exemptions from the FOIA" (citing Maydak)); Ayyad v. United States Dep't of Justice, No. 00-960, 2002 WL 654133, at *4 n.6 (S.D.N.Y. Apr. 18, 2002) (finding no need to decide the applicability of "numerous additional claims of exemption" that were thoroughly raised by the agency (out of its concern with waiver), because the "documents are so clearly covered by exemption 7(A)"); cf. Pub. Citizen v. Dep't of Educ., 292 F. Supp. 2d 1, 4-5 (D.D.C. 2003) (rejecting agency's argument that fees should be paid for broad-based search because it was raised for first time in court, which the court claimed would "frustrate . . . the efficient and prompt administration of the FOIA"). But see also Cotner v. United States Parole Comm'n, 747 F.2d 1016, 1018-19 (5th Cir. 1984) (recognizing that new exemptions may be raised on remand due to a "fundamental" change in the government's position that was "not calculated to gain any tactical advantage in this particular case"); Chilivis v. SEC, 673 F.2d 1205, 1208 (11th Cir. 1982) (deciding that government is not barred from invoking other exemptions after reliance on Exemption 7(A) was rendered untenable by conclusion of underlying law enforcement proceeding).

    387. See Coastal States Gas Corp. v. Dep't of Energy, 644 F.2d 969, 982 (3d Cir. 1981) (finding it abuse of discretion to refuse to consider revised index and instead award "partial judgment" to plaintiff, even though corrected index was submitted one day before oral argument on plaintiff's "partial judgment" motion); cf. Wilkinson v. FBI, No. 80-1048, slip op. at 3 (C.D. Cal. June 17, 1987) (providing government thirty days to further justify exemptions but, after reviewing subsequent declarations, finding same faults with new declarations as with original ones and ordering in camera review). But see Carroll v. IRS, No. 82-3524, slip op. at 28 (D.D.C. Jan. 31, 1986) (holding affidavits insufficient and affording agencies no further opportunities to reassert their claims because "[a]fter years of litigation, the suit must be resolved").

    388. See Maine v. United States Dep't of the Interior, 285 F.3d 126, 137 (1st Cir.) (refusing to afford the defendant an opportunity on remand to remedy an affidavit insufficiency discerned by the appellate court), aff'd in pertinent part & rev'd & vacated in other part on reh'g, 298 F.3d 60 (1st Cir. 2002); Coastal States, 644 F.2d at 981 (suggesting that agencies might be restricted to one Vaughn affidavit); see also ABC, Inc. v. USIA, 599 F. Supp. 765, 768 (D.D.C. 1984) (denying government's request to first litigate "agency record" issue and to raise other exemptions only if threshold defense fails).

    389. 5 U.S.C.  552(a)(4)(E) (2000).

    390. See Nichols v. Pierce, 740 F.2d 1249, 1252-54 (D.C. Cir. 1984) (refusing to award fees for plaintiff's success under Administrative Procedure Act, 5 U.S.C.  701-06 (2000), in forcing agency to issue regulations, despite plaintiff's claim of victory under FOIA's subsection (a)(1)), because Complaint failed to assert claim under or rely specifically on FOIA); Sinito v. United States Dep't of Justice, No. 87-0814, slip op. at 3 n.2 (D.D.C. Mar. 23, 2001) (declining to consider fee-entitlement argument based on Equal Access to Justice Act, 5 U.S.C. 504 (2000), because plaintiff relied on only FOIA in his motion), summary affirmance granted, No. 01-5168 (D.C. Cir. Oct. 15, 2001).

    391. See AutoAlliance Int'l, Inc. v. United States Customs Serv., No. 02-72369, slip op. at 3 (E.D. Mich. Mar. 23, 2004) (denying attorney fees for time spent on "administrative appeals that should have been completed prior to filing suit"); Inst. for Wildlife Prot. v. United States Fish & Wildlife Serv., No. 02-6178, slip op. at 6 (D. Or. Dec. 3, 2003) (deducting hours spent on FOIA administrative process for fee-calculation purposes); Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 65 (D.D.C. 1997) ("FOIA does not authorize fees for work performed at the administrative stage."); Associated Gen. Contractors v. EPA, 488 F. Supp. 861, 864 (D. Nev. 1980) (concluding that attorney fees are unavailable for work performed at administrative level); cf. Kennedy v. Andrus, 459 F. Supp. 240, 244 (D.D.C. 1978) (rejecting attorney fees claim for services rendered at administrative level under Privacy Act, 5 U.S.C.  552a (2000)), aff'd, 612 F.2d 586 (D.C. Cir. 1980) (unpublished table decision). But cf. Tule River Conservancy v. United States Forest Serv., No. 97-5720, slip op. at 16-17 (E.D. Cal. Sept. 12, 2000) (allowing attorney fees for pre-litigation research on "how to exhaust [plaintiff's] administration remedies prior to filing suit" and on "how to file FOIA complaint").

    392. 5 U.S.C. 552(a)(4)(E); see, e.g., Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992); Church of Scientology v. United States Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983); see also Wheeler v. IRS, 37 F. Supp. 2d 407, 411 n.1 (W.D. Pa. 1998) ("The test for whether the court should award a FOIA plaintiff litigation costs is the same as the test for whether attorney fees should be awarded.").

    393. See, e.g., Lissner v. United States Customs Serv., 56 Fed. Appx. 330, 331 (9th Cir. 2002) (stating that review of attorney fee award is for abuse of discretion); Anderson v. HHS, 80 F.3d 1500, 1504 (10th Cir. 1996) ("Assessment of attorney's fees in an FOIA case is discretionary with the district court."); Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93, 98 (6th Cir. 1996) ("We review the court's determination [to grant fees] for an abuse of discretion."); Young v. Dir., No. 92-2561, 1993 WL 305970, at *2 (4th Cir. 1993) (noting that court has discretion to deny fees even if eligibility threshold is met); Maynard v. CIA, 986 F.2d 547, 567 (1st Cir. 1993) (holding that a decision on whether to award attorney fees "will be reversed only for an abuse of . . . discretion"); Tax Analysts, 965 F.2d at 1094 ("sifting of those [fee] criteria over the facts of a case is a matter of district court discretion"); Bangor Hydro-Elec. Co. v. United States Dep't of the Interior, 903 F. Supp. 160, 170 (D. Me. 1995) ("Awards of litigation costs and attorney fees under FOIA are left to the sound discretion of the trial court.").

    394. 499 U.S. 432 (1991).

    395. Benavides v. Bureau of Prisons, 993 F.2d 257, 259 (D.C. Cir. 1993) (explaining Kay decision); see Bensman v. United States Fish & Wildlife Serv., 49 Fed. Appx. 646, 647 (7th Cir. 2002) ("Even when a pro se litigant performs the same tasks as an attorney, he is not entitled to reimbursement for his time.").

    396. See Kooritzky v. Herman, 178 F.3d 1315, 1323 (D.C. Cir. 1999) (holding that for all similarly worded fee-shifting statutes, "the term 'attorney' contemplates an agency relationship between a litigant and an independent lawyer"); see also Blazy v. Tenet, 194 F.3d 90, 94 (D.C. Cir. 1999) (concluding that attorney need not file formal appearance in order for litigant to claim fees for consultations, so long as attorney-client relationship existed) (Privacy Act case); cf. Anderson v. United States Dep't of the Treasury, 648 F.2d 1, 3 (D.C. Cir. 1979) (indicating that when an organization litigates through in-house counsel, any payable attorney fees should not "exceed[] the expenses incurred by [that party] in terms of [in-house counsel] salaries and other out-of-pocket expenses").

    397. 499 U.S. at 438 ("The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every case.") (emphasis added).

    398. Id. at 434 n.4 (quoting Falcone v. IRS, 714 F.2d 646, 647 (6th Cir. 1983)).

    399. Id.

    400. See, e.g., Burka v. HHS, 142 F.3d 1286, 1289 (D.C. Cir. 1998) ("It is . . . impossible to conclude otherwise than that pro se litigants who are attorneys are not entitled to attorney's fees under FOIA."); Ray v. United States Dep't of Justice, 87 F.3d 1250, 1252 (11th Cir. 1996) (deciding that principles announced in Kay apply with "equal force" in FOIA case); Albino v. USPS, No. 01-563, 2002 WL 32345674, at *8 (W.D. Wis. May 20, 2002) (agreeing that pro se plaintiffs who are attorneys are barred from receiving attorney fees under the rationale of Kay v. Ehrler); Manos v. Dep't of the Air Force, 829 F. Supp. 1191, 1193 (N.D. Cal. 1993) (stating that "fairness and sound policy" compel same treatment of attorney and nonattorney pro se FOIA plaintiffs); Whalen v. IRS, No. 92C 4841, 1993 WL 532506, at *11 (N.D. Ill. Dec. 20, 1993) (finding "no satisfactory distinction between pro se FOIA litigants who are lawyers and those who are not for the propose of awarding fees"). But see Texas v. ICC, 935 F.2d 728, 731 (5th Cir. 1991) (pointing out that "lawyers who represent themselves in FOIA actions may recover under the fee-shifting provision"); cf. Chin v. United States Dep't of the Air Force, No. 99-31237, slip op. at 3 (5th Cir. June 15, 2000) (assuming, but not deciding, that Cazalas v. United States Dep't of Justice, 709 F.2d 1051 (5th Cir. 1983), which awarded fee to a pro se attorney, has been "rendered moribund"); Barrett v. United States Dep't of Justice, No. 3:95-264, slip op. at 5 (S.D. Miss. Mar. 17, 1997) (declining to decide whether Fifth Circuit would overrule Cazalas in light of Kay decision, because alternative ground existed for deciding fee issue at hand), aff'd, No. 97-60223 (5th Cir. Nov. 20, 1997).

    401. Burka, 142 F.3d at 1289-90; see Dixie Fuel Co. v. Callahan, 136 F. Supp. 2d 659, 661 (E.D. Ky. 2001).

    402. Burka, 142 F.3d at 1291.

    403. Id.

    404. See, e.g., Ray v. United States Dep't of Justice, 856 F. Supp. 1576, 1582 (S.D. Fla. 1994), aff'd, 87 F.3d 1250 (11th Cir. 1996); Whalen, 1993 WL 532506, at *11.

    405. See Carter v. VA, 780 F.2d 1479, 1481-82 (9th Cir. 1986); DeBold v. Stimson, 735 F.2d 1037, 1043 (7th Cir. 1984); Clarkson v. IRS, 678 F.2d 1368, 1371 (11th Cir. 1983); Crooker v. United States Dep't of Justice, 632 F.2d 916, 921-22 (1st Cir. 1980); Albino, 2002 WL 32345674, at *1 (awarding costs because pro se plaintiff substantially prevailed); Malone v. Freeh, No. 97-3043, slip op. at 3 (D.D.C. July 12, 1999) (awarding pro se plaintiff $200 for costs); Wheeler, 37 F. Supp. 2d at 411; Hamilton v. Weise, No. 95-1161-ORL-22, 1997 U.S. Dist. LEXIS 18900, at *33 (M.D. Fla. Oct. 1, 1997).

    406. (2000).

    407. 28 U.S.C. 1920 ("A judge or clerk . . . may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter . . . ; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts . . . .").

    408. See Blazy, 194 F.3d at 95 (stating that " 1920 does not serve as a limit on recovery of litigation costs under either FOIA or the Privacy Act"); Kuzma v. IRS, 821 F.2d 930, 933 (2d Cir. 1987) (concluding that "the policies underlying 1920 are antithetical to the remedial purpose" of the FOIA); Comer v. IRS, No. 97-76329, 2002 WL 31835437, at *2 (E.D. Mich. Oct. 30, 2002) (refusing to limit costs under FOIA to those contained in 28 U.S.C. 1920); Tax Analysts v. IRS, No. 94-923, 1998 WL 283207, at *3 (D.D.C. Mar. 17, 1998) (same).

    409. See Kuzma, 821 F.2d at 931-34 (finding that costs may include photocopying, postage, covers, exhibits, typing, transportation, and parking fees, but not "cost of law books readily available in libraries"); Williams v. Dep't of the Army, No. 92-20088, 1993 WL 372245, at *6 (N.D. Cal. Sept. 13, 1993) (agreeing that such costs are recoverable if "they are reasonable"). But see Carpa v. FBI, No. 00-2025, slip op. at 2 (D.D.C. Oct. 15, 2001) (denying pro se plaintiff reimbursement for costs of postage and office supplies because such costs "not typically recoverable" under local court rule); Trenerry v. IRS, No. 90-C-444, 1994 WL 25877, at *1 (N.D. Okla. Jan. 26, 1994) (refusing to allow costs for transportation, supplies, or "any other costs not properly taxed pursuant to 28 U.S.C.  1920").

    410. See Wash. Post v. DOD, 789 F. Supp. 423, 424 (D.D.C. 1992) (apportioning special master's fees equally between plaintiff and government).

    411. See Anderson, 80 F.3d at 1508 (suggesting that work done by attorneys is not "properly a cost item"); see also Comer, 2002 WL 31835437, at *2 (rejecting pro se plaintiff's costs-reimbursement request for "paralegal fees").

    412. See, e.g., Texas, 935 F.2d at 733 ("[T]he goal of encouraging litigation of meritorious FOIA claims is doubtlessly furthered by reimbursing the legal fees of all complainants who substantially prevail and who meet the traditional criteria -- even those complainants, such as corporations or states, who could finance their own lawsuit."); Assembly of Cal. v. United States Dep't of Commerce, No. Civ-S-91-990, 1993 WL 188328, at *6 (E.D. Cal. May 28, 1993) ("Although the Assembly may have more resources than some private citizens, this does not mean the Assembly is any less restricted with respect to allocating its resources.").

    413. See, e.g., Chin, No. 99-31237, Order at 1 (5th Cir. June 15, 2000) (ordering plaintiff to pay defendant's costs on appeal); Donohue v. United States Dep't of Justice, No. 84-3451, slip op. at 1-2 (D.D.C. Mar. 7, 1988) (granting government's bill of costs for reimbursement of reporter, witness, and deposition expenses); Medoff v. CIA, No. 78-733, Order at 1 (D.N.J. Mar. 13, 1979) (awarding government, as prevailing party, its litigation costs in full amount of $93 against ACLU in accordance with statutory authorization contained in 28 U.S.C.  1920); see also Baez v. United States Dep't of Justice, 684 F.2d 999, 1005-06 (D.C. Cir. 1982) (en banc) (assessing against unsuccessful plaintiff all costs of appeal).

    414. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600 (2001) (explaining "catalyst theory") (non-FOIA case).

    415. See id. at 602 n.3 (collecting cases).

    416. Id. at 605.

    417. Id. at 603 n.4 (citing Hensley v. Eckerhart, 461 U.S. 424, 433, n.7 (1983)).

    418. 288 F.3d 452 (D.C. Cir. 2002).

    419. Id. at 455-56.

    420. Id. (quoting Buckhannon, 532 U.S. at 603).

    421. See Edmonds v. FBI, No. 02-1294, 2004 WL 414634, at *3 (D.D.C. Mar. 4, 2004) (denying attorney fees on basis that court order requiring expedited processing does not rise to level of material alteration of legal relationship of parties, as required by Buckhannon).

    422. Id. at 457 ("Because Buckhannon controls, the existing law of our circuit must give way.").

    423. See McSheffrey v. Executive Office for United States Attorneys, No. 02-5401, 2003 WL 21538054, at *1 (D.C. Cir. July 2, 2003) (per curiam) (finding no distinction between the requirements for recovering attorney fees and litigation costs, and ruling that to obtain either, there must be a "judgment on the merits or . . . a court-ordered consent decree" (citing Oil, Chem. & Atomic Workers, 288 F.3d at 456-57)).

    424. See, e.g., Union of Needletrades v. INS, 336 F.3d 200, 206 (2d Cir. 2003) (declaring that although plaintiff "accomplished the objective it sought to achieve" by bringing a FOIA suit, "its failure to secure either a judgment on the merits or a court-ordered consent decree renders it ineligible for an award of attorney's fees"); Landers v. Dep't of the Air Force, 251 F. Supp. 2d 1011, 1012 (S.D. Ohio 2003) (finding no entitlement to attorney fees, despite the fact that lawsuit caused release of documents, because plaintiff "obtained no relief from this Court"). But see AutoAlliance Int'l, Inc. v. United States Customs Serv., 300 F. Supp. 2d 509, 513-14 (E.D. Mich. 2004) (declaring that Buckhannon standard applies to fee awards under FOIA, but finding eligibility based only on court-ordered agency review of records after which agency made voluntary disclosures); Read v. FAA, 252 F. Supp. 2d 1108, 1110-11 (W.D. Wash. 2003) (same); cf. Albino, 2002 WL 32345674, at *8 (erroneously applying catalyst theory to find that plaintiff substantially prevailed because agency responded to FOIA request after suit was filed, but denying fees because plaintiff was proceeding pro se).

    425. See Young v. Dir., No. 92-2561,1993 WL 305970, at *2 (4th Cir. Aug. 10, 1993) ("Even if a plaintiff substantially prevails, however, a district court may nevertheless, in its discretion, deny the fees."); Texas v. ICC, 935 F.2d 728, 733 (5th Cir. 1991) ("The district court did not specify which of the criteria [plaintiff] failed to satisfy. But so long as the record supports the court's exercise of discretion, the decision will stand.").

    426. See S. Rep. No. 93-854, at 19 (1974); cf. Cotton v. Heyman, 63 F.3d 1115, 1123 (D.C. Cir. 1995) (declining to review remaining factors after finding no public benefit from release and recognizing reasonableness of agency's position).

    427. See Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93, 98 (6th Cir. 1996); Cotton, 63 F.3d at 1117; Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992); Church of Scientology v. USPS, 700 F.2d 486, 492 (9th Cir. 1983); Fenster v. Brown, 617 F.2d 740, 742-45 (D.C. Cir. 1979); Cuneo v. Rumsfeld, 553 F.2d 1360, 1364-66 (D.C. Cir. 1977); But see also Burka v. HHS, 142 F.3d 1286, 1293 (D.C. Cir. 1998) (Randolph, J., concurring) ("Although we have applied these criteria in the past, they deserve another look.").

    428. See Long v. IRS, 932 F.2d 1309, 1315-16 (9th Cir. 1991).

    429. Cotton, 63 F.3d at 1120 (citing Fenster, 617 F.2d at 744); see Klamath Water Users Protective Ass'n v. United States Dep't of the Interior, 18 Fed. Appx. 473, 475 (9th Cir. 2001) (declining to award attorney fees for the release of documents "having marginal public interest and little relevance to the making of political choices by citizens").

    430. Cotton, 63 F.3d at 1120 (quoting Fenster, 617 F.2d at 744 (quoting, in turn, Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978))).

    431. See Cotton, 63 F.3d at 1120.

    432. Blue, 570 F.2d at 533; Church of Scientology, 769 F. Supp. at 331 (recognizing a public interest in "the apparently improper designation of a religion as a 'tax shelter' project"); see Polynesian Cultural Ctr. v. NLRB, 600 F.2d 1327, 1330 (9th Cir. 1979) (per curiam) (denying fees when "disclosure was unlikely to result in widespread dissemination, or substantial public benefit"); Oil, Chem. & Atomic Workers Int'l Union v. United States Dep't of Energy, 141 F. Supp. 2d 1, 5 & n.7 (D.D.C. 2001) (concluding that public benefit factor was met by wide dissemination of information released as result of lawsuit), rev'd on other grounds, 288 F.3d 452 (D.C. Cir. 2002); Frydman v. Dep't of Justice, 852 F. Supp. 1497, 1503 (D. Kan. 1994) (deciding that requester's suggestion that he might write book was "too speculative to warrant much weight"), aff'd, 57 F.3d 1080 (10th Cir. 1995) (unpublished table decision).

    433. See, e.g., Tax Analysts, 965 F.2d at 1094 (affirming district court's finding that more prompt reporting by Tax Analysts of additional twenty-five percent of publicly available district court tax decisions was "less than overwhelming" contribution to public interest); Laughlin v. Comm'r, 117 F. Supp. 2d 997, 1002 (S.D. Cal. 2000) (declining to award fees for disclosure of document that is "readily accessible commercially"); Petroleum Info. Corp. v. United States Dep't of the Interior, No. 89-3173, slip op. at 5-6 (D.D.C. Nov. 16, 1993) (holding that public benefit is only "slight" where litigation resulted in disclosure of information in electronic form that was previously publicly available in printed form).

    434. Aviation Data Serv. v. FAA, 687 F.2d 1319, 1323 (10th Cir. 1982); see Ellis v. United States, 941 F. Supp. 1068, 1078 (D. Utah 1996) ("[T]he successful FOIA plaintiff always achieves some degree of public benefit by bringing the government into compliance with FOIA and by the benefit assumed to flow from public disclosure of government information."); Bangor Hydro-Elec. Co. v. United States Dep't of the Interior, 903 F. Supp. 169, 171 (D. Me. 1995) ("[B]y definition a successful FOIA plaintiff always confers some degree of benefit on the public by bringing the government into compliance with FOIA . . . ."); Texas, 935 F.2d at 733-34 (suggesting that there is "little public benefit" in disclosure of documents that fail to reflect agency wrongdoing: "Texas went fishing for bass and landed an old shoe. Under the circumstances, we decline to require the federal government to pay the cost of tackle."). But see Cottone v. FBI, No. 94-1598, slip op. at 3 (D.D.C. Mar. 16, 2001) (citing Williams v. FBI, 17 F. Supp. 2d 6, 9 (D.D.C. 1997), to justify awarding fees in order to encourage service on Civil Pro Bono Counsel panel), appeal dismissed voluntarily, No. 01-5159 (D.C. Cir. July 26, 2001); Landano v. United States Dep't of Justice, 873 F. Supp. 884, 892 (D.N.J. 1994) ("Here, the public clearly benefits from this disclosure since it has an interest in the fair and just administration of the criminal justice system as [applied to the plaintiff].").

    435. See Read v. FAA, 252 F. Supp. 2d 1108, 1110-11 (W.D. Wash. 2003) (refusing to find that mere act of bringing lawsuit without resultant release of records conferred public benefit warranting attorney fees); Solone v. IRS, 830 F. Supp. 1141, 1143 (N.D. Ill. 1993) ("While the public would benefit from the court's imprimatur to the IRS to comply voluntarily with the provisions of the FOIA, this is not the type of benefit that FOIA attorneys' fees were intended to generate."); Muffoletto v. Sessions, 760 F. Supp. 268, 277 (E.D.N.Y. 1991) (maintaining that public benefit in compelling FBI to act more expeditiously is insufficient).

    436. Cotton, 63 F.3d at 1120; see Chesapeake Bay Found., 108 F.3d at 377 ("Nor is the establishment of a legal right to information a public benefit for the purpose of awarding attorneys' fees." (citing Cotton, 63 F.3d at 1120)); see also Bangor Hydro-Elec., 903 F. Supp. at 170 (rejecting argument that public benefitted by precedent that would "allow other utilities to easily acquire similar documents for the benefit of those utilities ratepayers"). But see Church of Scientology, 700 F.2d at 493 (declaring that an appellate ruling that a specific statutory provision does not qualify under Exemption 3 "in our view, benefits the public"); Aronson, 866 F.2d at 3 (suggesting that public interest is served by disclosure to "private tracer" of information concerning mortgagors who were owed "distributive share" refunds); Cottone, No. 94-1598, slip op. at 2 (inexplicably accepting plaintiff's argument of public benefit deriving from the "precedential effect of [his] victory," while at the same time recognizing "binding circuit precedent" to the contrary).

    437. Cotton, 63 F.3d at 1120.

    438. See, e.g., Klamath, 18 Fed. Appx. at 475 (finding that plaintiff association sought documents to advance and protect interests of its members, and recognizing that fact that members might be "nonprofit" does not make their interests less commercial for FOIA purposes); Fenster, 617 F.2d at 742-44 (affirming denial of fees to law firm that obtained disclosure of government auditor's manual used in reviewing contracts of the type entered into by firm's clients); Chamberlain v. Kurtz, 589 F.2d 827, 842-43 (5th Cir. 1979) (concluding that plaintiff who faced $1.8 million deficiency claim for back taxes and penalties "needed no additional incentive" to bring FOIA suit against IRS for documents relevant to his defense); Horsehead Indus. v. EPA, 999 F. Supp. 59, 69 (D.D.C. 1998) (finding that requester would have brought suit regardless of availability of fees); Viacom Int'l v. EPA, No. 95-2243, 1996 WL 515505, at *2 (E.D. Pa. Aug. 29, 1996) (dismissing as "divorced from reality" corporation's contention that its "'knowing the extent of its potential liability will not promote any commercial interests'"); Frye v. EPA, No. 90-3041, 1992 WL 237370, at *4 (D.D.C. Aug. 31, 1992) (denying fees where "plaintiff does not effectively dispute that the prime beneficiaries of the information requested will be commercial entities with commercial interests that either are, or might become, his clients"); Hill Tower, Inc. v. Dep't of the Navy, 718 F. Supp. 568, 572 (N.D. Tex. 1989) (ruling that a plaintiff who had filed tort claims against the government arising from aircraft crash "had a strong commercial interest in seeking [related] information [as] it was [its] antenna that was damaged by the crash"). But see Aronson, 866 F.2d at 3 (finding that the "potential for commercial personal gain did not negate the public interest served" by private tracer's lawsuit since "failure of HUD to comply reasonably with its reimbursement duty would probably only be disclosed by someone with a specific interest in ferreting out unpaid recipients").

    439. S. Rep. No. 93-854, at 19 (1974), quoted in Fenster, 617 F.2d at 742 n.4; accord FOIA Update, Vol. VIII, No. 1, at 10 ("New Fee Waiver Policy Guidance").

    440. See, e.g., Church of Scientology, 700 F.2d at 494 (noting that it is "logical to read the two criteria together where a private plaintiff has pursued a private interest").

    441. See, e.g., Polynesian Cultural Ctr., 600 F.2d at 1330 (ruling that attorney fees award should not "'merely subsidize a matter of private concern' at taxpayer expense" (quoting Blue, 570 F.2d at 533-34)); Tran v. United States Dep't of Justice, No. 01-0238, 2001 U.S. Dist. LEXIS 21552, at *15 (D.D.C. Nov. 20, 2001) (refusing to award fees, because suit was brought "entirely for [plaintiff's] own benefit, [his] having requested only documents and records pertaining to himself"); Viacom, 1996 WL 515505, at *2 ("[W]e harbor strong doubts that Viacom entered into this proceeding to foster the public interest in disclosure. Its motivation, as evinced by its conduct of this litigation, was to assert its own interests as a potentially responsible party to the clean up operation."); Abernethy v. IRS, 909 F. Supp. 1562, 1569 (N.D. Ga. 1995) (suggesting that when plaintiff sought records of investigation of which he was target to challenge his removal from management position, his "strong personal motivation for filing this lawsuit outweigh[ed] any public interest which may result from disclosure"); Frydman, 852 F. Supp. at 1504 ("Although plaintiff's interest in the information in this case is not pecuniary, it is strictly personal."). But see Crooker, 776 F.2d at 368 (finding the third factor to favor plaintiff where the "interest was neither commercial nor frivolous, [but] to ensure that the Parole Commission relied on accurate information in making decisions affecting his liberty"); Williams, 17 F. Supp. 2d at 9 (awarding fees "[e]ven if [the requester's] own interest in the records is personal," in order to "serve the larger public purpose of encouraging" representation by pro bono counsel).

    442. Tax Analysts, 965 F.2d at 1095 ("'[P]laintiff was not motivated simply by altruistic instincts, but rather by its desire for efficient, easy access to [tax] decisions.'" (quoting Tax Analysts v. United States Dep't of Justice, 759 F. Supp. 28, 31 (D.D.C. 1991))); see Bangor Hydro-Elec., 903 F. Supp. at 171 (rejecting public utility's argument that it incurred no commercial benefit because under "'traditional regulatory principles'" utility would be obliged to pass any commercial gain on to its ratepayers); Mosser Constr. Co. v. United States Dep't of Labor, No. 93CV7525, slip op. at 4 (N.D. Ohio Mar. 29, 1994) (explaining that factor weighs against not-for-profit organization whose actions are motivated by commercially related concerns on behalf of its members). But see Assembly of Cal v. United States Dep't of Commerce, No. Civ-S-91-990, 1993 WL 188328, at *5 (E.D. Cal. May 28, 1993) (refusing to preclude fees where state legislature sought information to challenge federal census count, even though benefits could accrue to state, because "plaintiffs did not stand to personally benefit but acted as public servants").

    443. See, e.g., Ellis, 941 F. Supp. at 1079 (compiling cases); Muffoletto, 760 F. Supp. at 275 (rejecting plaintiff's entitlement to fees on grounds that "[t]he plaintiff's sole motivation in seeking the requested information was for discovery purposes, namely, to assist him in the defense of a private civil action"); Republic of New Afrika v. FBI, 645 F. Supp. 117, 121 (D.D.C. 1986) (stating that purely personal motives of plaintiff -- to exonerate its members of criminal charges and to circumvent civil discovery -- dictated against award of fees), aff'd sub nom. Provisional Gov't of the Republic of New Afrika v. ABC, 821 F.2d 821 (D.C. Cir. 1987) (unpublished table decision); Simon v. United States, 587 F. Supp. 1029, 1033 (D.D.C. 1984) (articulating that use of FOIA as substitute for civil discovery "is not proper and this court will not encourage it by awarding fees").

    444. See, e.g., Anderson v. HHS, 80 F.3d 1500, 1504-05 (10th Cir. 1996) (affirming district court's denial of fees for first phase of litigation -- when plaintiff's primary motive was to obtain records for state court action, while approving them for second phase -- when plaintiff's primary interest in records was public dissemination).

    445. See Chesapeake Bay Found., 11 F.3d at 216 ("If the Government was right in claiming that the [records] were exempt from disclosure under FOIA, then no fees are recoverable."); Cotton, 63 F.3d at 1117 ("[T]here can be no doubt that a party is not entitled to fees if the government's legal basis for withholding requested records is correct."); Polynesian Cultural Ctr., 600 F.2d at 1330 (denying fees, despite court-ordered disclosure, because "[t]he Board's claim of exemption was not only reasonable, but correct," based upon subsequent Supreme Court decision); Horsehead Indus., 999 F. Supp. at 64 (ruling that "fees will not be awarded" when agency's withholding "is correct as a matter of law"); see also Wheeler, 37 F. Supp. 2d at 413 (finding that reasons for government's refusal to disclose records "may even be dispositive"). But see Cottone, No. 94-1598, slip op. at 3-4 (D.D.C. Mar. 16, 2001) (awarding fees even though agency's position was reasonable; misguidedly relying on fact that agency's defense was "determined, dilatory, and expensive to confront"); Williams, 17 F. Supp. 2d at 8 (stating that "'courts must be careful not to give any particular factor dispositive weight'" (quoting Nationwide Bldg., 559 F.2d at 714)).

    446. Read, 252 F. Supp. 2d at 1112 (quoting Horsehead Indus., 999 F. Supp. at 68); see also Allen v. INS, No. 80-2246 (D.D.C. July 20, 1981) (awarding attorney fees based upon single factor of "reasonableness").

    447. Tax Analysts, 965 F.2d at 1097 (quoting Cuneo, 553 F.2d at 1365-66)); Educ./Instruccion, Inc. v. HUD, 649 F.2d 4, 8 (1st Cir. 1981) (government's withholding must "have 'a colorable basis in law' and not appear designed 'merely to avoid embarrassment or to frustrate the requester'" (quoting S. Rep. No. 93-854, at 19)); LaSalle Extension Univ. v. FTC, 627 F.2d 481, 484-86 (D.C. Cir. 1980); Fenster, 617 F.2d at 744; Ellis, 941 F. Supp. at 1080 (government need show only "reasonable or colorable basis for the withholding" and that it has not engaged in recalcitrant or obdurate behavior); Solone, 830 F. Supp. at 1143 (government acted reasonably when agency had "at least a colorable basis in law for its decision to withhold" and there are no allegations of harassment of requester or avoidance of embarrassment by the agency).

    448. See Adams v. United States, 673 F. Supp. 1249, 1259-60 (S.D.N.Y. 1987); see also Am. Commercial Barge Lines v. NLRB, 758 F.2d 1109, 1112-14 (6th Cir. 1985); Republic of New Afrika, 645 F. Supp. at 122. But see United Ass'n of Journeymen & Apprentices, Local 598 v. Dep't of the Army, 841 F.2d 1459, 1462-64 (9th Cir. 1988) (withholding held unreasonable where agency relied on one case that was "clearly distinguishable" and where "strong contrary authority [was] cited by the [plaintiff]"); Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 64 (D.D.C. 1997) (finding that an EPA decision "to rely solely on manufacturers' claims of confidentiality, rather than conduct more extensive questioning of the manufacturers' claims or make its own inquiry . . . was essentially a decision not to commit resources to questioning claims of confidentiality but instead to confront issues as they arise in litigation -- and to pay attorneys' fees if EPA loses").

    449. See Frydman, 852 F. Supp. at 1504 ("Although the government did not offer case authority to support its position regarding the [records], we believe the government's position had a colorable basis. There is little, if any, case authority which directly holds contrary to the government's position.").

    450. Tax Analysts, 965 F.2d at 1096-97.

    451. Tax Analysts v. Dep't of Justice, 492 U.S. 136 (1989).

    452. See Cotton, 63 F.3d at 1119.

    453. Ellis, 941 F. Supp. at 1080 (noting that agency was "in frequent contact with plaintiffs' counsel" and that "[d]ue to the scope of plaintiffs' request, some delay was inherent"); see Read, 252 F. Supp. 2d at 1112 ("[D]elay due to bureaucratic ineptitude alone is not sufficient to weigh in favor of an award of attorney's fees."); Horsehead Indus. 999 F. Supp. at 66 (finding that narrow reading of request is not "bad faith"); Republic of New Afrika v. FBI, 645 F. Supp. at 122; Smith v. United States, No. 95-1950, 1996 WL 696452, at *7 (E.D. La. Dec. 4, 1996) (finding that "[t]he government did not act with due diligence, and has offered no reason to find that the delay was 'unavoidable[,]'" but holding in favor of the government on this factor as "[t]he evidence in this case is that the Coast Guard's noncompliance was due to administrative ineptitude rather than any unwillingness to comply with [plaintiff's] FOIA request"), aff'd, No. 97-30184 (5th Cir. Sept. 12, 1997); Frye, No. 90-3041, 1992 WL 237370, at *3 (explaining that although agency failed to adequately explain plaintiff's more-than-two-year wait for final response (such delay previously having been found "unreasonable" by court), agency's voluntary disclosure of documents two days before Vaughn Index deadline did not warrant finding of "obdurate" behavior absent affirmative evidence of bad faith). But see Miller v. United States Dep't of State, 779 F.2d 1378, 1390 (8th Cir. 1985) ("While these reasons [for delay] are plausible, and we do not find them to be evidence of bad faith . . . they are practical explanations, not reasonable legal bases."); Claudio v. Soc. Sec. Admin., No. H-98-1911, slip op. at 20 (S.D. Tex. May 24, 2000) (despite finding all four factors unmet, nevertheless awarding fees because of "the Government's action in not delivering the majority of the documents until after suit was filed and in failing to provide a Vaughn Index until after ordered to do so by the Court"); United Merchants & Mfrs. v. Meese, No. 87-3367, slip op. at 3 (D.D.C. Aug. 10, 1988) (declaring it unnecessary for plaintiff to show "that defendant was obdurate in order to prevail" where there was "no reasonable basis for defendant to have failed to process plaintiff's [FOIA request] for nearly a year").

    454. Carter v. VA, 780 F.2d 1479, 1481 (9th Cir. 1986); see Anderson v. HHS, 3 F.3d 1383, 1385 (10th Cir. 1993) ("[T]he fee issue is ancillary to the merits of the controversy.").

    455. See McDonnell v. United States, 4 F.3d 1227, 1236 (3d Cir. 1993) ("Even if a motion for attorney's fees is still pending in the district court, that motion does not constitute a bar to our exercise of jurisdiction under  1291." (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198-202 (1988))).

    456. Biberman v. FBI, 496 F. Supp. 263, 265 (S.D.N.Y. 1980) (noting "inefficiency" of interim fee award); see Allen v. FBI, 716 F. Supp. 667, 669-72 (D.D.C. 1989) (recognizing that although court may order payment of interim fees, it should be done only "in limited circumstances").

    457. Hydron Labs., Inc. v. EPA, 560 F. Supp. 718, 722 (D.R.I. 1983) (refusing to deal "piecemeal" with questions concerning entitlement to attorney fees).

    458. See Wash. Post v. DOD, 789 F. Supp. 423, 424-26 (D.D.C. 1992) (awarding interim fees for special master whose work established plaintiff's right to receive certain records); Allen v. DOD, 713 F. Supp. 7, 12-13 (D.D.C. 1989) (awarding interim fees, but only "for work leading toward the threshold release of non-exempt documents").

    459. See Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op. at 2 (D.D.C. June 26, 1998) (awarding interim fees based on court's conclusion that, inter alia, even brief litigation had "imposed concrete hardship on Plaintiff's counsel"), interlocutory appeal dismissed for lack of juris., 182 F.3d 981 (D.C. Cir. 1999); Allen v. FBI, 716 F. Supp. at 671 (suggesting that interim fee awards should be made only in unusual case of protracted litigation and financial hardship); Powell v. United States Dep't of Justice, 569 F. Supp. 1192, 1200 (N.D. Cal. 1983) (listing four factors to be considered in court's discretion for award of interim fees).

    460. See Rosenfeld v. United States, 859 F.2d 717, 727 (9th Cir. 1988); Wash. Post, 789 F. Supp. at 425.

    461. See Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999) (concluding that prior to conclusion of case in district court, appellate court has no jurisdiction to review attorney fees award); see also Petties v. District of Columbia, 227 F.3d 469, 472 (D.C. Cir. 2000) (emphasizing that interim review of attorney fees decision is unavailable until final judgment is reached) (non-FOIA case).

    462. See Blazy v. Tenet, 194 F.3d 90, 92 (D.C. Cir. 1999) (rejecting otherwise valid claim for attorney fees "for want of substantiation"); Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982) (per curiam) ("Attorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney."); Ajluni v. FBI, No. 94-CV-325, 1997 WL 196047, at *2 (N.D.N.Y. Apr. 14, 1997) ("Moreover, '[t]he rule in this Circuit prohibits the submission of reconstructed records, where no contemporaneous records have been kept.'" (quoting Lenihan v. City of New York, 640 F. Supp. 822, 824 (S.D.N.Y. 1986))).

    463. See Anderson v. HHS, 80 F.3d 1500, 1506 (10th Cir. 1996) ("Reconstructed records generally do not accurately reflect the actual time spent; and we have directed district courts to scrutinize such records and adjust the hours if appropriate.").

    464. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1982) (civil rights case); Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (Title VII case); Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir. 1973) (describing the product of a reasonable hourly rate and hours actually worked as "the lodestar of the court's fee determination").

    465. See, e.g., Hensley, 461 U.S. at 434-40; Anderson, 80 F.3d at 1506; Copeland, 641 F.2d at 891-92; Ajluni, 947 F. Supp. at 611 (limiting fees to those incurred up to point at which "the last of the additional documents were released"); McDonnell v. United States, 870 F. Supp. 576, 589 (D.N.J. 1994). But see Lissner v. United States Customs Serv., 56 Fed. Appx. 330, 331 (9th Cir. 2003) (permitting award for preparation of initial attorney fees motion, even though it was unsuccessful, because it was "necessary step to . . . ultimate victory'); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/5/04) (describing Supreme Court's truly ultimate repudiation of bases for Ninth Circuit's ruling).

    466. Copeland, 641 F.2d at 892 n.18; see Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1327 n.13; Nat'l Ass'n of Atomic Veterans v. Dir., Def. Nuclear Agency, No. 81-2662, slip op. at 7 (D.D.C. July 15, 1987) (deciding that because plaintiff "clearly prevailed" on its only claim for relief, it is "entitled to recover fees for time expended on the few motions upon which it did not prevail").

    467. See, e.g., Weisberg v. Webster, No. 78-322, slip op. at 3 (D.D.C. June 13, 1985); Newport Aeronautical Sales v. Dep't of the Navy, No. 84-0120, slip op. at 10-11 (D.D.C. Apr. 17, 1985); see also Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1499 (D.C. Cir. 1984) (declining to award fees for issues on which plaintiff did "not ultimately prevail" and for "non-productive time"); Steenland v. CIA, 555 F. Supp. 907, 911 (W.D.N.Y. 1983) (declaring that award for work performed after release of records, where all claims of exemptions subsequently upheld, "would assess a penalty against defendants which is clearly unwarranted"); Agee v. CIA, No. 79-2788, slip op. at 1 (D.D.C. Nov. 3, 1982) ("[P]laintiff is not entitled to fees covering work where he did not substantially prevail."); Dubin v. Dep't of Treasury, 555 F. Supp. 408, 413 (N.D. Ga. 1981) (holding that fees awarded "should not include fees for plaintiffs' counsel for their efforts after the release of documents by the Government . . . since they failed to prevail on their claims at trial"), aff'd, 697 F.2d 1093 (11th Cir. 1983) (unpublished table decision); cf. Anderson, 80 F.3d at 1504 (affirming district court's denial of fees for portion of lawsuit during which plaintiff's primary motivation was her personal interest, while allowing fees for remainder of suit when public interest was paramount motivation). But see Badhwar v. United States Dep't of the Air Force, No. 84-154, slip op. at 3 (D.D.C. Dec. 11, 1986) ("[D]efendants' attempts to decrease [fees] on the grounds that the plaintiffs did not prevail as to all issues raised . . . are not persuasive. [The FOIA] requires only that the plaintiff should have 'substantially prevailed.'").

    468. See, e.g., Kempker-Cloyd v. United States Dep't of Justice, No. 5:97-253, slip op. at 14 (W.D. Mich. Apr. 2, 1999) (magistrate's recommendation) (dividing claimed amount of attorney fees in half because "[s]egregating litigation efforts spent on intertwined issues . . . is impracticable, if not impossible"), adopted (W.D. Mich. Aug. 17, 1999); McDonnell, 870 F. Supp. at 589 (reducing plaintiff's requested award by sixty percent because "the amount of relief denied was greater than that awarded").

    469. Hensley, 461 U.S. at 434, quoted in Assembly of Cal. v. United States Dep't of Commerce, No. Civ-S-91-990, 1993 WL 188328, at *11 (E.D. Cal. May 28, 1993); see AutoAlliance Int'l, Inc. v. United States Customs Serv., No. 02-72369, slip op. at 6-7 (E.D. Mich. Mar. 23, 2004) (reducing fees by twenty-five percent, and agreeing with defendant that plaintiff's billing for this "relatively unexceptional FOIA case" was "excessive, redundant or otherwise unnecessary"); City of Detroit, No. 93-CV-72310, slip op. at 3-4 (E.D. Mich. Mar. 24, 1995) (reducing requested fees by sixty percent because city employed eight attorneys when two would have sufficed, utilized two principal litigators when one would have sufficed, and generated nearly half of all fees sought in connection with its fees petition).

    470. In re North (Schultz Fee Application), 8 F.3d 847, 852 (D.C. Cir. 1993) (non-FOIA case).

    471. Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1324.

    472. See Lissner, 56 Fed. Appx. at 331; Copeland, 641 F.2d at 896; see also AutoAlliance Int'l, No. 02-72369, slip op. at 6 (limiting "fees on fees" to three percent of hours in main case, absent unusual circumstances); Nat'l Veterans Legal Servs. Program v. VA, No. 96-1740, 1999 WL 33740260, at *5 (D.D.C. Apr. 13, 1999) (approving award of "fees-on-fees"); Assembly of Cal. v. Department of Commerce, No. S91-990, 1993 WL 188328, at *16 (E.D. Cal. May 28, 1993); Katz v. Webster, No. 82-1092, slip op. at 4-5 (S.D.N.Y. Feb. 1, 1990).

    473. Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1323.

    474. See id.; Inst. for Wildlife Prot. v. United States Fish & Wildlife Serv., No. 02-6178, slip op. at 5 (D. Or. Dec. 3, 2003 ) (reducing plaintiff's claimed hourly rate due to counsel's lack of FOIA experience and noncomplexity of case); Confederated Tribes v. Babbitt, No. 96-197, slip op at 3 (D. Or. Sept. 30, 1997) (rejecting plaintiff's proposed use of the area market rate for calculation of fees because plaintiff's attorneys in fact contracted to work for their client at a substantially lower rate).

    475. See, e.g., Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 65 (D.D.C. 1997).

    476. Laffey v. Nw. Airlines, 746 F.2d 4, 24-25 (D.C. Cir. 1984), overruled in part on other grounds by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988 (en banc); see, e.g., Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (noting circuit court approval of use of "Laffey Matrix") (non-FOIA case).

    477. City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (prohibiting contingency enhancement in environmental fee-shifting statutes and noting that case law "construing what is a 'reasonable' fee applies uniformly to all [federal fee-shifting statutes]"); see Ray v. United States Dep't of Justice, 856 F. Supp. 1576, 1583 (S.D. Fla. 1994) (noting that "Dague calls into question the applicability of an enhancement for contingency cases," but declining to decide whether the decision also forbids a fee enhancement for "exceptional" cases by holding that this FOIA case result was not exceptional), aff'd, 87 F.3d 1250 (11th Cir. 1996); Assembly of Cal., 1993 WL 188328, at *14 (refusing to grant approval for any upward adjustment in the lodestar calculation).

    478. See Library of Cong. v. Shaw, 478 U.S. 310, 314 (1986) ("In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award."); Weisberg v. United States Dep't of Justice, 848 F.2d 1265, 1272 (D.C. Cir. 1988).

    479. Nw. Coalition, 965 F. Supp. at 66 ("Contrary to plaintiffs' assertions, it is not proper to adjust historic rates to take inflation into account." (citing Library of Cong., 478 U.S. at 322)).

    480. Hensley, 461 U.S. at 437; Union of Concerned Scientists v. NRC, 824 F.2d 1219, 1228 (D.C. Cir. 1987).

    481. See Weisberg, 848 F.2d at 1272 (citing Copeland, 641 F.2d at 901).

    482. See Eltayib v. United States Coast Guard, 53 Fed. Appx. 127, 127 (D.C. Cir. 2002) (declaring that the FOIA "does not authorize the collection of damages"); O'Toole v. IRS, 52 Fed. Appx. 961, 962 (9th Cir. 2002) (same); O'Meara v. IRS, No. 97-3383, 1998 WL 123984, at *1 (7th Cir. Mar. 12, 1998) ("FOIA . . . does not authorize sanctions as a remedy for failure to disclose documents. Instead, courts are limited to ordering the production of agency records, and assessing reasonable attorney fees and litigation costs against the United States."); Serrano v. United States Dep't of Justice INS, No. 01-0521, 2001 WL 1190993, at *2 n.1 (E.D. La. Oct. 5, 2001) ("FOIA does not authorize an action for money damages against the agency or its personnel."); Butler v. Nelson, No. 96-48, 1997 WL 580331, at *3 (D. Mont. May 16, 1997) ("Section 552 of Title 5 includes a comprehensive and defined list of remedies available; the conspicuous absence of a provision allowing an action for money damages convinces the court that Plaintiff may not seek damages under the FOIA."); Stabasefski v. United States, 919 F. Supp. 1570, 1573 (M.D. Ga. 1996) ("[T]he remedial measures available under the Freedom of Information Act are limited to injunctive relief, costs, and attorney's fees." (citing 5 U.S.C.  552(a)(4)(B), (E))).

    483. See Schwartz v. United States Patent & Trademark Office, No. 95-5349, 1996 U.S. App. LEXIS 4609, at **2-3 (D.C. Cir. Feb. 22, 1996); Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993); Wren v. Harris, 675 F.2d 1144, 1147 (10th Cir. 1982); Gilbert v. Soc. Sec. Admin., No. 93-C-1055, slip op. at 10 (E.D. Wis. Dec. 28, 1994); Bologna v. Dep't of the Treasury, No. 93-1495, slip op. at 8-9 (D.N.J. Mar. 29, 1994); Duffy v. United States, No. 87-C-10826, slip op. at 31-32 (N.D. Ill. May 29, 1991); Daniels v. St. Louis Veterans Admin. Reg'l Office, 561 F. Supp. 250, 251 (E.D. Mo. 1983); Diamond v. FBI, 532 F. Supp. 216, 233 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983).

    484. See Crumpton v. Stone, 59 F.3d 1400, 1406 (D.C. Cir. 1995) (holding that agency decision to disclose information under FOIA constitutes "a discretionary function exempt from suit under the [Federal Tort Claims Act]"); Sterling v. United States, 798 F. Supp. 47, 48 & n.2 (D.D.C. 1992) (ruling that neither FOIA nor Administrative Procedure Act, 5 U.S.C.  701-06 (2000), authorizes award of monetary damages for alleged improper disclosure), summary affirmance granted, No. 93-5264 (D.C. Cir. Mar. 11, 1994).

    485. 5 U.S.C.  552(a)(4)(F) (2000); see 5 U.S.C.  1211 (2000) (establishing "Office of Special Counsel" independent of Merit Systems Protection Board).

    486. See, e.g., Defenders of Wildlife v. USDA, No. 02-2072, 2004 WL 722652, at *11 (D.D.C. Mar. 30, 2004) (declining to find that agency acted arbitrarily and capriciously, because court did not find that agency withheld nonexempt records); Al-Fayed v. CIA, No. 00-2092, slip op. at 3 (Apr. 25, 2002) (rejecting plaintiff's contention that agency document releases were unreasonably dilatory and thus refusing to impose sanctions when agency "released all responsive documents within the Court ordered time"); Chourre v. IRS, No. C01-5171, 2002 U.S. Dist. LEXIS 2925, at *12 (W.D. Wash. Feb. 4, 2002) (denying request for sanctions because there was "nothing in the record to suggest that [defendant] acted arbitrarily or capriciously"); Kempker-Cloyd v. United States Dep't of Justice, No. 5:97-253, 1999 U.S. Dist. LEXIS 4813, at *23 (W.D. Mich. Mar. 12, 1999) (finding that even though agency's action was "incomplete and untimely" and "not in good faith," there was no evidence of arbitrary or capricious behavior), motion for fees & costs granted, slip op. at 14 (W.D. Mich. Apr. 2, 1999) (magistrate's recommendations), adopted (W.D. Mich. Aug. 17, 1999); Judicial Watch, Inc. v. United States Dep't of Commerce, 34 F. Supp. 2d 28, 43 n.9 (D.D.C.) (finding "merit in the view that the district court should be more willing to refer disciplinary matters to the Office of Special Counsel when agencies act arbitrarily and capriciously," but declining to consider appropriateness of referral until conclusion of litigation), further discovery ordered, 34 F. Supp. 2d 47 (D.D.C. 1998), partial summary judgment granted, 83 F. Supp. 2d 105 (D.D.C. 1999); Gabel v. IRS, No. 97-1653, 1998 WL 817758 at **5-6 (N.D. Cal. June 25, 1998) (declining to issue "sanctions" finding when all requested records had been produced and thus no records improperly were withheld); cf. Norwood v. FAA, No. 83-2315, slip op. at 20 (W.D. Tenn. Dec. 11, 1991) (finding that when a court denies fees on the ground that the plaintiff is proceeding pro se, "the issuance of written findings pursuant to 5 U.S.C.  552(a)(4)(F) would be inappropriate since both prerequisites have not been met"), aff'd in part & rev'd in part on other grounds, 993 F.2d 570 (6th Cir. 1993); Miller v. Webster, No. 77-C-3331, slip op. at 4 (N.D. Ill. Oct. 27, 1983) (refusing to refer "alleged violation" to Merit Systems Protection Board because violation was "de minimis"), summary judgment granted (N.D. Ill. Feb. 29, 1984). But see Ray v. United States Dep't of Justice, 716 F. Supp. 1449, 1451-52 (S.D. Fla. 1989) (holding "court order" requirement satisfied even though no record was found to be improperly withheld).

    487. See FOIA Update, Vol. IV, No. 3, at 5 (discussing FOIA provision mandating MSPB Special Counsel investigation in all qualifying cases of suspected "arbitrary and capricious" withholding).

    488. 5 U.S.C.  1216(a)(3) (2000).

    489. See generally H.R. Rep. No. 95-1717, at 137 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2870 ("[T]his provision is not intended to require that an administrative or court decision be rendered concerning withholding of information before the Special Counsel may investigate allegations of such a prohibited practice.").

    490. See, e.g., Johnson v. Comm'r, 68 Fed. Appx. 839, 840 (9th Cir. 2002) (granting agency's motion for sanctions because appeal was "frivolous"); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70, 87 (D.D.C. 2003) (awarding attorney fees and costs as sanction for agency's violation of court order intended to preserve FOIA-requested records); Allen v. FBI, No. 00-342, slip op. at 9-10 (D.D.C. Aug. 26, 2002) (finding "inexcusable" the fact that the defendant agency "took no steps to preserve" records requested under the FOIA, and requiring it not only to pay plaintiff's litigation costs, but also to provide responsive records free of charge); Nash v. United States Dep't of Justice, 992 F. Supp. 447, 450 (D.D.C. 1998) (alternative holding) (dismissing suit as sanction for "continuing violation" of Rule 11 of Federal Rules of Civil Procedure by plaintiff's counsel), summary affirmance granted, No. 98-5096 (D.C. Cir. July 20, 1998); see also Van Bourg, Allen, Weinberg & Roger v. NLRB, 762 F.2d 831, 833 (9th Cir. 1985) (warning that sanctions will be imposed if plaintiff's counsel again "fails to inform us about material facts or procrastinates in obeying our orders"); cf. Long v. United States Dep't of Justice, No. 00-0211, slip op. at 5 (D.D.C. Apr. 30, 2002) (declining to impose sanctions under Rule 11 for repeated errors in the defendant agency's summary judgment motions, but warning the agency that "further delays created by erroneous factual representations . . . may require the Court to revisit" the sanctions issue). But see also Jefferson v. Reno, No. 96-1284, slip op. at 1 (D.D.C. Mar. 16, 2001) (rescinding a monetary sanction that had been imposed on the government "for the purpose of deterring future violations and highlighting the importance of [agency] complying with . . . [the] FOIA," because such a fine is, in fact, barred by sovereign immunity).

    491. Jefferson v. Reno, 123 F. Supp. 2d 1, 5 (D.D.C. 2000).

    492. See, e.g., Schanen v. United States Dep't of Justice, 798 F.2d 348, 350 (9th Cir. 1986) (upholding exemption claims, but ordering government to pay plaintiff's attorney fees and costs due to government counsel's failure to competently defend claims); Landmark Legal Found., 272 F. Supp. 2d at 87 (ordering agency to pay plaintiff's attorney fees and costs because of its "contumacious" violation of order to preserve records); Jefferson, 123 F. Supp. 2d at 5 (assessing attorney fees and costs associated with reconstruction of records, following violation of court order that had required that records be reconstructed and sent to both plaintiff and his attorney); Ellis v. United States, 941 F. Supp. 1068, 1081 (D. Utah 1996); Okla. Publ'g Co. v. HUD, No. 87-1935-P, slip op. at 7 (W.D. Okla. June 17, 1988) (attorney fees assessed against government when counsel failed to comply with scheduling and disclosure orders); see also Allen v. Fed. Bureau of Prisons, No. 00-342, slip op. at 9-10 (D.D.C. Aug. 26, 2002) (imposing sanctions on agency in form of "reimbursement of Plaintiff of his filing fee and all postage and copying costs," and prohibiting agency from charging fee for processing of few remaining records after it "inexcusabl[y]" destroyed majority of requested records); Hill v. Dep't of the Air Force, No. 85-1485, slip op. at 7 (D.N.M. Sept. 4, 1987) (ordering documents processed at no further cost to plaintiff because of unreasonable delay in processing FOIA request), aff'd on other grounds, 844 F.2d 1407 (10th Cir. 1988).

    493. See, e.g., Schwarz v. NSA, 526 U.S. 122, 122 (1999) (barring plaintiff from further filings, citing thirty-five frivolous petitions for certiorari); Schwarz v. USDA, 22 Fed. Appx. 9, 10 (D.C. Cir. 2001) (affirming district court prohibition against plaintiff's filing of any further civil actions without first obtaining leave of court, because of her long and unwavering history of frivolous claims and litigation abuses); Schwarz v. CIA, No. 99-4016, 1999 WL 330237, at *1 (10th Cir. May 25, 1999) (admonishing plaintiff for "frivolousness" in light of "recurring pattern of similarly unsuccessful FOIA actions" and warning that "future frivolous filings . . . will result in sanctions"); see also, e.g., Hoyos v. VA, No. 98-4178, slip op. at 4 (11th Cir. Feb. 1, 1999) (affirming district court's order barring plaintiff from future filings without court's permission, and noting that plaintiff "has frivolously sued just about everyone even remotely associated with the VA . . . and has burdened the district court with over 130 motions and notices, many of them duplicative"); Goldgar v. Office of Admin., 26 F.3d 32, 35-36 & n.3 (5th Cir. 1994) (warning plaintiff that subsequent filing or appeal of FOIA lawsuits without jurisdictional basis may result in assessment of costs, attorney's fees and proper sanctions or that plaintiff may be required to "obtain judicial preapproval of all future filings"); Schwarz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 148 (D.D.C. 2000) (threatening plaintiff with dismissal of claims as "malicious" if she makes any future attempts to litigate claims that already have been resolved against her), summary affirmance granted, No. 00-5453 (D.C. Cir. May 10, 2001); Peck v. Merletti, 64 F. Supp. 2d 599, 603 (E.D. Va. 1999) (noting plaintiff's "continued pursuit of nonexistent information . . . and the drain on valuable judicial and law enforcement resources," requiring that plaintiff's future filings comply with "Federal Rule of Civil Procedure 8 in regards to 'a short and plain statement of the claim'" (quoting Fed. R. Civ. P. 8(a)(2))); Wrenn v. Gallegos, No. 92-3358, slip op. at 1-2 (D.D.C. May 26, 1994) (barring plaintiff's future filings absent prior leave of court, because plaintiff "has been adjudicated a vexatious litigant in several other forums and remains so in this court").

    494. See Crooker v. United States Marshals Serv., 641 F. Supp. 1141, 1143 (D.D.C. 1986); see also Crooker v. ATF, No. 96-01790, slip op. at 1-2 (D.D.C. Nov. 22, 1996) (dismissing Complaint for failure to comply with requirements of Crooker v. United States Marshals Service).

    495. In re Powell, 851 F.2d at 434; cf. Zemansky v. EPA, 767 F.2d 569, 573-74 (9th Cir. 1995) (holding that district court exceeded its authority by requiring frequent requester, whose requests included "questions, commentary, narrative" and other extraneous material, to make future requests in "'separate document which is clearly defined as an FOIA request' and not 'intertwined with non-FOIA matters'"). But see Hunsberger v. United States Dep't of Energy, No. 96-0455, slip op. at 2 (D.D.C. Mar. 14, 1996) (enjoining plaintiff from filing any further civil actions without first obtaining leave of court because "[p]laintiff's numerous actions have demanded countless hours from this Court").

    496. 28 U.S.C. 1915A (2000).

    497. Id. 1915A(b)(1); see, e.g., Wiggins v. Huff, No. C 98-1072, 1998 WL 226300, at *1 (N.D. Cal. Apr. 28, 1998) (denying request, from prisoner who had three or more prior dismissals, to proceed in forma pauperis and dismissing FOIA action without prejudice to refiling it with payment of filing fee).

    498. See Wiggins, 1998 WL 226300, at *11 (dismissing state prisoner's FOIA suit against federal agency); Willis v. FBI, No. 2:96-cv-276, slip op. at 1-2 (W.D. Mich. Oct. 21, 1996) (ordering warden of state prison to "place a hold on plaintiff's prisoner account" to provide for payment of filing fee).

    499. See, e.g., Pub. Employees for Envtl. Responsibility v. EPA, 978 F. Supp. 955, 959 (D. Colo. 1997) (explaining that "FOIA claims are typically resolved on summary judgment" (citing KTVY-TV v. United States, 919 F.2d 1465, 1468 (10th Cir. 1990))); Cappabianca v. United States Customs Serv., 847 F. Supp. 1558, 1561 (M.D. Fla. 1994) ("[O]nce documents in issue are properly identified, FOIA cases should be handled on motions for summary judgment." (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993))).

    500. See, e.g., Loomis v. United States Dep't of Energy, No. 99-6084, 1999 WL 1012451, at *1 (2d Cir. Oct. 14, 1999) (holding that partial grant of summary judgment is not final order); Church of Scientology Int'l v. IRS, 995 F.2d 916, 921 (9th Cir. 1993) (ruling that document is "not exempt," without accompanying disclosure order, held nonappealable); Ferguson v. FBI, 957 F.2d 1059, 1063-64 (2d Cir. 1992) (noting that while "partial disclosure orders in FOIA cases are appealable," fact that district court may have erred in deciding question of law does not vest jurisdiction in appellate court when no disclosure order has yet been entered and, consequently, no irreparable harm would result); Ctr. for Nat'l Sec. Studies v. CIA, 711 F.2d 409, 413-14 (D.C. Cir. 1983) (finding no appellate jurisdiction to review court order granting summary judgment to defendant on only one of twelve counts in Complaint, because order did not affect "predominantly all" of merits of case and plaintiffs did not establish that denial of relief under 28 U.S.C.  1292(a)(1) (2000) would cause them irreparable injury); Hinton v. FBI, 844 F.2d 126, 129-33 (3d Cir. 1988) (declining to review district court order that a Vaughn Index be filed); In re Motion to Compel filed by Steele, 799 F.2d 461, 464-65 (9th Cir. 1986); cf. John Doe Corp. v. John Doe Agency, 850 F.2d 105, 107-08 (2d Cir. 1988) (finding district court order denying motion for disclosure of documents, preparation of Vaughn Index, and answers to interrogatories appealable, and thereupon reversing on merits), rev'd on other grounds, 493 U.S. 146 (1989); Irons v. FBI, 811 F.2d 681, 683 (1st Cir. 1987) (allowing government to appeal motion for partial summary judgment for plaintiff, stating that appellate jurisdiction vests at time order requiring government to disclose records is issued).

    501. See Summers v. United States Dep't of Justice, 925 F.2d 450, 453 (D.C. Cir. 1991); Al-Fayed v. CIA, No. 00-2092, slip op. at 4 (D.D.C. Jan. 16, 2001) (refusing to treat plaintiff's motion for a stay as "akin" to a motion for summary judgment, because "in stark contrast to a motion for summary judgment, a motion for a stay does not evaluate the merits of a case"), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001).

    502. See Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, 182 F.3d 981, 984-85 (D.C. Cir. 1999) (finding that award of "interim" attorney fees is appealable neither as final judgment nor as collateral order).

    503. But see Cooper Cameron Corp. v. United States Dep't of Labor, No. 00-21077, slip op. at 1 (5th Cir. Jan. 21, 2002) (refusing to stay a judgment because, according to the Fifth Circuit, "'forthwith' does not affect the time period for filing a petition for rehearing or rehearing en banc, during the running of which the mandate cannot issue").

    504. See, e.g., Rosenfeld v. United States Dep't of Justice, 501 U.S. 1227, 1227 (1991) (granting full stay pending appeal); John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1307 (Marshall, Circuit Justice 1989) (granting stay based upon "balance of the equities"); see also Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979); Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 217 F. Supp. 2d 57, 58 (D.D.C. 2002) (explaining that "stays are routinely granted in FOIA cases," and granting stay because disclosure of detainee names would "effectively moot any appeal"), aff'd in part, rev'd in part & remanded, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 1041 (2004); Maine v. United States Dep't of the Interior, No. 00-122, 2001 WL 98373, at *3 (D. Me. Feb. 5, 2001) (relying on Providence Journal to grant stay pending appeal, and finding "most persuasive in this regard" irreparable harm to agency's right to appeal court's disclosure order); Antonelli v. FBI, 553 F. Supp. 19, 25 (N.D. Ill. 1982). But see Manos v. United States Dep't of the Air Force, No. 93-15672, slip op. at 2 (9th Cir. Apr. 28, 1993) (denying stay of district court disclosure order when government "failed to demonstrate . . . any possibility of success on the merits of its appeal," despite appellate court's recognition that such denial would render appeal moot); see also Armstrong v. Executive Office of the President, No. 89-142, slip op. at 2-6 (D.D.C. Feb. 27, 1995) (denying stay of its determination (later reversed on appeal) that National Security Council is an "agency" under FOIA); cf. Bright v. Attorney Gen. John Ashcroft, 259 F. Supp. 2d 502, 502 (E.D. La. 2003) (disclosing contested material gratuitously and thus obviating government's appeal). See generally FOIA Update, Vol. XII, No. 3, at 1-2 (describing emergency Supreme Court action staying court-ordered disclosures in two FOIA cases).

    505. See Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l RR Passenger Corp., No. 02-126, slip op. at 2 (M.D. Fla. Sept. 4, 2003) (deciding to grant the defendant agency a stay "to test the merits of its arguments on appeal," and discerning "no evidence of a specific harm" to plaintiff from a delay in the disclosure of records) (appeal pending); cf. Ctr. for Int'l Envtl. Law v. Office of the United States Trade Representative, 240 F. Supp. 2d 21, 23 (D.D.C. 2003) (recognizing harm to plaintiff if stay is granted, but granting it conditioned on agency seeking expedited review because of "serious legal question" at issue and irreparable harm to agency).

    506. See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) ("We review the district court's grant of summary judgment de novo."); Landmark Legal Found. v. IRS, 267 F.3d 1132, 1134 (D.C. Cir. 2001) (referring to standard of review as "de novo"); Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998) ("[I]t is well-understood law that '[w]e review orders granting summary judgment de novo.'" (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994))); Kimberlin v. Dep't of Justice, 139 F.3d 944, 947 (D.C. Cir. 1998) ("We review de novo the district court's grant of summary judgment, applying the same standards that governed the district court's decision."); see also Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 & n.3 (D.C. Cir. 1992) ("This circuit applies in FOIA cases the same standard of appellate review applicable generally to summary judgments." (explicitly contrasting Ninth Circuit's "clearly erroneous" standard, and more favorably citing Wash. Post Co. v. HHS, 865 F.2d 320, 325-26 & n.8 (D.C. Cir. 1989))).

    507. See Tigue v. United States Dep't of Justice, 312 F.3d 70, 75 (2d Cir. 2002) (stating that review of summary judgment in FOIA case is "de novo"); Perlman v. United States Dep't of Justice, 312 F.3d 100, 104 (2d Cir. 2002) ("We review an agency's decision to withhold records under FOIA de novo . . . ."); Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999) (applying de novo standard in FOIA cases "to determine whether there are genuine issues of material fact requiring trial").

    508. See Rugiero v. United States Dep't of Justice, 257 F.3d 534, 543 (6th Cir. 2001) ("[T]his court reviews the propriety of a district court's grant of summary judgment in a FOIA proceeding de novo."), cert. denied, 534 U.S. 1134 (2002); Sorrells v. United States, No. 97-5586, 1998 WL 58080, at *1 (6th Cir. Feb. 6, 1998) (deciding appeal "[u]pon de novo review"); Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1077 (6th Cir. 1997) (holding that grant of summary judgment is reviewed de novo on appeal). But see Vonderheide v. IRS, No. 98-4277, 1999 WL 1000875, at *1 (6th Cir. Oct. 28, 1999) ("Where an appeal concerns a factual attack on subject matter jurisdiction, this court reviews the factual findings of the district court for clear error and the legal conclusions de novo.").

    509. See Missouri v. United States Dep't of the Interior, 297 F.3d 745, 749 n.2 (8th Cir. 2002) (aligning the court with the Sixth, Tenth, and D.C. Circuits in "establish[ing] the de novo standard of review generally applicable in summary judgment cases"); see also Bilbrey v. United States Dep't of the Air Force, 20 Fed. Appx. 597, 598 (8th Cir. 2001) (referring to "careful de novo review of the record"). But see also Johnston v. United States Dep't of Justice, No. 97-2173, 1998 WL 518529, at *1 (8th Cir. Aug. 10, 1998) ("We review the district court's factual findings for clear error and its legal conclusions de novo.").

    510. See Fed. R. Civ. P. 56(c).

    511. See, e.g., Sheet Metal Workers Int'l Ass'n v. VA, 135 F.3d 891, 896 & n.3 (3d Cir. 1998) (describing "two-tiered test" while recognizing that review standard is not uniform among circuits); McDonnell v. United States, 4 F.3d 1227, 1241-42 (3d Cir. 1993) (pointing to "unique configuration" of summary judgment in FOIA cases as basis for rejecting "familiar standard of appellate review" for summary judgment cases).

    512. See FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 610-11 & n.2 (5th Cir. 2003) (per curiam) (applying de novo standard of review to district court's legal conclusions while recognizing potential applicability of different standard for factual determinations); Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996) (finding de novo review appropriate when parties' dispute focuses "'not upon the unique facts of [the] case, but upon categorical rules,'" a question of law to which district court is not entitled to deference (quoting Halloran v. VA, 874 F.2d 315, 320 (5th Cir. 1989))).

    513. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1038 (7th Cir. 1998) ("[W]e continue to believe that the clearly erroneous standard remains appropriate in light of the unique circumstances presented by FOIA exemption cases."); Becker v. IRS, 34 F.3d 398, 402 (7th Cir. 1994) (explaining that whether withheld material fits within established standards of exemption reviewed is under two-pronged, deferential test).

    514. Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996); see also Solar Sources, 142 F.3d at 1038 (referring to "the unique circumstances presented by FOIA exemption cases").

    515. See United States v. Mitchell, No. 03-6938, 2002 WL 22999456, at *1 (4th Cir. Dec. 23, 2004) (articulating the standard of review in this case as "limited to determining whether the district court had an adequate factual basis for its decision and whether upon this basis the decision was clearly erroneous"); Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994) ("Although any factual conclusions that place a document within a stated exemption of FOIA are reviewed under a clearly erroneous standard, 'the question of whether a document fits within one of FOIA's prescribed exemptions is one of law, upon which the district court is entitled to no deference.'" (quoting City of Va. Beach v. Dep't of Commerce, 995 F.2d 1247, 1252 n.12 (4th Cir. 1993))); cf. Heily v. United States Dep't of Commerce, 69 Fed. Appx. 171, 173 (4th Cir. July 3, 2003) (per curiam) (stating that review of grant of summary judgment in FOIA case is de novo).

    516. See Shors v. Treasury Inspector Gen. for Tax Admin., 69 Fed. Appx. 99, 100 (9th Cir. June 9, 2003) (describing "two-part standard of review"); Carter v. United States Dep't of Commerce, No. 02-35161, 2002 U.S. Dist. LEXIS 20998, at 8 (9th Cir. Oct. 8, 2002) (advising that "standard of review is not simply de novo," and that factual findings are reviewed for clear error, while legal conclusions are reviewed de novo); Klamath Water Users Protective Ass'n v. United States Dep't of the Interior, 189 F.3d 1034, 1036 (9th Cir. 1999) (explaining that standard is whether district judge had an adequate factual basis for decision; if so, district court's conclusions are reviewed de novo), aff'd on other grounds, 532 U.S. 1 (2001); Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir. 1996) ("[W]hile we review the underlying facts supporting the district court's decision for clear error, we review de novo its conclusion [regarding the applicability of specific exemptions]."). But see Frazee v. United States Forest Serv., 97 F.3d 367, 370 (9th Cir. 1996) (describing "special standard" of review of factual issues: If adequate factual basis supports district court's ruling, appellate court overturns only if ruling "is clearly erroneous").

    517. See Casad v. HHS, 301 F.3d 1247, 1251 (10th Cir. 2002) (explaining that review is first "whether the district court had an adequate factual basis" for its decision, and then "de novo [of] the district court's legal conclusions that the requested materials are covered by the relevant FOIA exemptions"); Utah v. United States Dep't of the Interior, 256 F.3d 967, 969 (10th Cir. 2001) (same); Sheet Metal Workers Int'l Ass'n v. United States Air Force, 63 F.3d 994, 997 (10th Cir. 1995) ("[O]ur court reviews de novo any legal determinations made by the district court once we have assured ourselves that the district court 'had an adequate factual basis upon which to base its decision.'" (quoting Anderson v. HHS, 907 F.2d 936, 942 (10th Cir. 1990))).

    518. See Office of the Capital Collateral Counsel v. Dep't of Justice, 331 F.3d 799, 802 (11th Cir. 2003) (applying the de novo standard of review because "issues in this appeal are limited to the legal application of [a] FOIA exemption"); Catchpole v. Dep't of Transp., No. 97-8058, slip op. at 2 (11th Cir. Feb. 25, 1998) (applying de novo standard of review to FOIA case (citing Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995), and McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1557 (11th Cir. 1992)) (non-FOIA cases)). But see O'Kane v. United States Customs Serv., 169 F.2d 1308, 1309 (11th Cir. 1999) (while acknowledging that grants of summary judgment are reviewed de novo, states that "district court determinations under FOIA" are reviewed for "clear error."); see also Robinson v. Dep't of Justice, No. 00-11182, slip op. at 9 (11th Cir. Mar. 15, 2001) (without deciding the applicability of an exemption, vacating the district court opinion because the court "lacked an adequate factual basis for its decision").

    519. See, e.g., Office of the Capital Collateral Counsel, 331 F.3d at 802 (explaining that factual findings "would ordinarily be reviewed for clear error" but that the legal application of a FOIA exemption is reviewed de novo); Sheet Metal Workers Int'l Ass'n v. VA, 135 F.3d 891, 896 (3d Cir. 1998) ("The two tiered standard review of the district court's determination that a particular document is or is not properly subject to exemption does not, of course, preclude plenary review of issues of law."); Ethyl Corp., 25 F.3d at 1246 ("[T]he question of whether a document fits within one of FOIA 's prescribed exemptions is one of law, upon which the district court is entitled to no deference.").

    520. Schiffer, 78 F.3d at 1408 ("Determining the appropriate standard of review to apply to summary judgment in FOIA cases . . . has caused some confusion because of the peculiar circumstances presented by such cases.").

    521. Id. (quoting Ethyl Corp., 25 F.3d at 1246).

    522. Id.

    523. See New England Apple Council v. Donovan, 725 F.2d 139, 141 n.2 (1st Cir. 1984) ("Appellees incorrectly state that this court may reverse the district court only if its conclusions are 'clearly erroneous.' In summary judgment there can be no review of factual issues, because Rule 56(c) bars the district court from resolving any disputed factual issues at the summary judgment stage.").

    524. Compare Aronson v. HUD, 822 F.2d 182, 188 (1st Cir. 1987) ("In reviewing a district court's grant of summary judgment, we apply the same standard as the district court."), with Irons, 811 F.2d at 684 ("where the conclusions of the trial court depend on its . . . choice of which competing inferences to draw from undisputed basic facts, appellate courts should defer to such fact-intensive findings, absent clear error"; however, questions of pure legal interpretation reviewed de novo).

    525. See Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 231 (1st Cir. 1994).

    526. See, e.g., Davin v. United States Dep't of Justice, 60 F.3d 1043, 1048-49 (3d Cir. 1995) (explaining that review of adequacy of factual basis for district court's decision "is de novo and requires us to examine the affidavits below"); Wiener v. FBI, 943 F.2d 972, 978 (9th Cir. 1991) ("Whether the government's public affidavits constituted an adequate Vaughn index is a question of law reviewed de novo.").

    527. See Maine v. United States Dep't of the Interior, 285 F.3d 126, 134 (1st Cir. 2002) (stating that "we cannot say that the district court erred in this case" and also that "[w]e perceive no error by the court"), aff'd on reh'g, 298 F.3d 60 (1st Cir. 2002).

    528. 5 U.S.C. 552(a)(6)(E)(i) (2000).

    529. Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001) (deciding that "the logical conclusion is that de novo review is the proper standard for a district court to apply to a denial of expedition"); see Tripp v. DOD, 193 F. Supp. 2d 229, 241 (D.D.C. 2002) (citing Al-Fayed).

    530. Id. at 307.

    531. Id. at 307 n.7 (citing subsection of 5 U.S.C. 552(a)(6)(E)(i) that allows for expedition "in other cases determined by the agency").

    532. See Al-Fayed, 254 F.3d at 307 n.7 ("A regulation promulgated in response to such an express delegation of authority to an individual agency is entitled to judicial deference . . . as is each agency's reasonable interpretation of its own regulations.").

    533. See 5 U.S.C. 552(a)(6)(E)(iii); see also Judicial Watch, Inc. v. United States Naval Observatory, 160 F. Supp. 2d 111, 112 (D.D.C. 2001) ("[B]ecause defendant has . . . provided a complete response to the request for records, this Court no longer has subject matter jurisdiction over the claim that defendant failed to expedite processing of plaintiff's request.").

    534. See Anderson v. HHS, 80 F.3d 1500, 1507 (10th Cir. 1996) (holding that district court decision to deny further discovery on attorney fees issue "was not an abuse of discretion"); Church of Scientology v. IRS, 991 F.2d 560, 562 (9th Cir. 1993), vacated in part on other grounds & remanded, No. 91-15730 (9th Cir. July 14, 1994); Meeropol v. Meese, 790 F.2d 942, 960 (D.C. Cir. 1986); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1988).

    535. 5 U.S.C.  701-06 (2000).

    536. AT&T Info. Sys. v. GSA, 810 F.2d 1233, 1236 (D.C. Cir. 1987) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 318 (1979)); see Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, 924 F.2d 274, 277 (D.C. Cir. 1991) (explaining that agency decisions to release information under FOIA are "informal adjudications" reviewed under arbitrary and capricious standard of APA); Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, 133 F.3d 1081, 1083 (8th Cir. 1998) (same); see also Doe v. Veneman, 230 F. Supp. 2d 739, 747 (W.D. Tex. 2002) (recognizing that "reverse" FOIA suits are "cognizable under the Administrative Procedures [sic] Act") (appeal pending); cf. Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187 n.6 (8th Cir. 2000) (explaining that review ordinarily is based upon administrative record, but noting that de novo review could be appropriate if it is shown that agency's "factfinding procedures in ["reverse"] FOIA cases are inadequate").

    537. See, e.g., Hayden v. Dep't of Justice, No. 03-5078, 2003 WL 22305071, at *1 (D.C. Cir. Oct. 6, 2003) (granting summary affirmance); Daniel v. Dep't of Justice, No. 01-5119, 2001 WL 1029156, at *1 (D.C. Cir. Aug. 28, 2001) (citing Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam), and Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980) (per curiam)).

    538. See, e.g., James Madison Project v. NARA, No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir. Oct. 11, 2002) (denying summary affirmance in part and remanding for "a more precise finding by the district court as to segregability"); Trans-Pac. Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) ("[T]he District Court had an affirmative duty to consider the segregability issue sua sponte."); Kimberlin, 139 F.3d at 949-50 (remanding because district court failed to make segregability finding).

    539. See, e.g., Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 842 (6th Cir. 1988) (determining that it is inappropriate to vacate district court order, after fully complied with, when attorney fees issue pending; proper procedure is to dismiss appeal); Larson v. Executive Office for United States Attorneys, No. 85-6226, slip op. at 4 (D.C. Cir. Apr. 6, 1988) (concluding that when only issue on appeal is mooted, initial lower court order should be vacated without prejudice and case remanded).

    540. See, e.g., Judicial Watch, Inc. v. United States, 84 Fed. Appx. 335, 338 (4th Cir. 2004) (refusing to entertain new arguments from appellant on adequacy of agency's search, despite appellant's characterization of them as "further articulation" of points made below), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389); Blanton v. Dep't of Justice, 64 Fed. Appx. 787, 789 (D.C. Cir. 2003) (per curiam) (rebuffing appellant's efforts to challenge adequacy of agency's Vaughn Index, because issue was not raised in district court); Iturralde v. Comptroller, 315 F.3d 311, 314 (D.C. Cir. 2993) (rejecting appellant's efforts to challenge sufficiency of agency's affidavits, because he did not raise issue in district court); James Madison Project, 2002 WL 31296220, at *1 (deciding that appellant waived challenges to agency's invocation of FOIA exemptions by failing to address arguments supporting withholding that were made in agency's summary affirmance motion); Greyshock v. United States Coast Guard, No. 96-15266, 1997 WL 51514, at *3 (9th Cir. Feb. 5, 1997) (declining to consider a challenge to a separate FOIA request that was not "mentioned in the complaint or any other pleading before the district court"); McCutchen v. HHS, 30 F.3d 183, 186-87 (D.C. Cir. 1994) (refusing to consider correctness of agency's interpretation of FOIA request when issue was raised for first time on appeal); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 835 (D.C. Cir. 2001) (refusing to consider argument made for first time in appellate reply brief); OSHA/Data/C.I.H., Inc. v. United States Dep't of Labor, 220 F.3d 153, 169 n.35 (3d Cir. 2000) (refusing to permit supplementation of record on appeal). But see also Trans-Pac. Policing Agreement, 177 F.3d at 1027 (allowing segregability issue to be raised for first time on appeal, because "appellants' failure to raise segregability certainly was not a knowing waiver of that argument"); Carter v. United States Dep't of Commerce, 830 F.2d 388, 390 n.8 (D.C. Cir. 1987) (considering sua sponte new theories of public interest in Exemption 6 balancing that were not raised by plaintiff at district court); Farese v. United States Dep't of Justice, No. 86-5528, slip op. at 9-10 (D.C. Cir. Aug. 12, 1987) (finding plaintiff not estopped from challenging use of specific exemptions at appellate stage when he argued at trial court level merely that agency had failed to meet its burden of establishing that documents were exempt).

    541. See FOIA Post, "Supreme Court Declines to Review Waiver Case" (posted 8/7/01) (advising agencies to pay special attention to "the issue of waiver of FOIA exemptions during the course of litigation"); see also Ryan v. Dep't of Justice, 617 F.2d 781, 792 n.38a (D.C. Cir. 1980) (explaining that "raising" an exemption means "identifying it at the district court level" and then demonstrating the applicability of any pertinent exemption).

    542. Tax Analysts v. IRS, 152 F. Supp. 2d 1, 25-26 (D.D.C. 2001) (refusing to allow an agency to invoke an exemption that it had previously abandoned, noting rule that forbids new exemption claims after "the judge has ruled in the other party's favor" (citing Grumman Aircraft Eng'g Corp. v. Renegotiation Bd., 482 F.2d 710, 721-22 (D.C. Cir. 1973)), aff'd in part & rev'd in part, 294 F.3d 71 (D.C. Cir. 2002); see also FOIA Post, "Supreme Court Is Asked to Review Law Enforcement Case" (posted 5/30/01) (discussing circumstances of D.C. Circuit's Maydak decision, and describing its "unrealistic approach to the operation of Exemption 7(A)").

    543. See Baez v. United States Dep't of Justice, 684 F.2d 999, 1005-07 (D.C. Cir. 1982) (en banc); see also Scherer v. United States, 78 Fed. Appx. 687, 690 (10th Cir. 2003) (upholding district court's award of costs to agency); Johnson v. Comm'r, 68 Fed. Appx. 839, 839 (9th Cir. 2003) (approving costs to agency as sanction because appeal was frivolous).

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