WEEK OF DECEMBER 10-14

Court of Appeals

1. Judicial Watch, Inc. v. SSA, No. 11-5246, 2012 WL 6134933 (D.C. Cir. Dec. 11, 2012) (Kavanaugh, J.)

Re: Request for names of the 100 U.S. employers with the most instances where employees' names and social security numbers as listed on W-2 Forms do not match the information in the Social Security Administration's (SSA) database

Holding: Affirming the district court's determination that the requested information is protected from disclosure by Exemption 3 and 26 U.S.C. § 6103(a)

• Exemption 3: The D.C. Circuit finds that the requested information satisfies the definition of "return information," which is protected from disclosure by 26 U.S.C. §6103(a). The court explains, "[r]eturn information is defined to include any 'data' that is 'furnished to' the IRS" and "[a]n employer's identity is 'data' furnished to the IRS on the Form W-2." The D.C. Circuit also rejects the appellant's assertion that this information falls within the exception known as the Haskell Amendment, which excludes "'data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer'" from the definition of "return information." That court finds that "[t]here is no basis for reading the Haskell Amendment to apply only to the employees' identities," and that the language "'a particular taxpayer'…includes the employer."

District Courts

1. Georgacarakos v. FBI, No. 11-1655 (JDB), 2012 WL 6210119 (D.D.C. Dec. 12, 2012) (Bates, J.)

Re: Request for "copies of all 302's" related to the death for which plaintiff was prosecuted

Holding: Granting defendant's motion for summary judgment

• Adequacy of Search: The court finds that the FBI's search was reasonable upon review of the filings and "absent any challenge by plaintiff." The FBI conducted a search of its records system using "variations of plaintiff's names as search terms." One responsive file was located and the FBI "identified and processed all 302s in the case file."

• Exemption 3: The court concludes "[b]ased on defendant's submission… that the information withheld under Exemption 3, if disclosed, would 'tend to reveal some secret aspect of the grand jury's investigation."

• Exemption 7(C): The court affirms the defendant's withholding of "identifying information of 'dozens of individuals,' most of whom were inmates 'interviewed by the FBI during the course of the … murder investigation.'" The court notes that "[i]n no circumstances does the declarant identify a public interest sufficient to outweigh the privacy interests of these third parties."

• Exemption 7(D): The court finds that the circumstances indicate an implied assurance of confidentiality where "the topics of the interviews include the murder itself as well as events leading to and following after the murder, what is described as 'an extremely violent stabbing of a prison inmate by other inmates.'" The court also noted that information about and from a specific third party was protected because "the FBI expressly granted confidentiality by promising him that neither his identity nor the information he provided would be disclosed, and by inserting the term 'Protect Identity' in the body of the FD-302." Despite the plaintiff's arguments to the contrary, "Exemption 7D permits the FBI to withhold not only the source's identity but also the information provided by that source."

• Segregability: "[T]he Court finds that the agency has redacted only what was necessary to protect the exempt information and has explained the basis for the redactions."

2. Roman v. CIA, No. 11-CV-2390 (JFB) (WDW), 2012 WL 6138487 (E.D.N.Y. Dec. 11, 2012) (Bianco, J.)

Re: Request for records pertaining to plaintiff's prior FOIA requests to defendant

Holding: Granting defendant's motion for summary judgment

• Adequacy of Search: The court finds the defendant's search "adequate" based on its declarations describing the search terms and locations, in addition to the fact that "in an abundance of caution" the agency performed additional searches.

• Exemption 3: The court determines that 50 U.S.C. § 403g is "properly within the bounds of Exemption 3 because it leaves no discretion as to whether the information should be withheld from the public." Therefore the names, titles and other information about CIA personnel are exempt from disclosure.

• Exemption 5: The court concludes that the defendant's declaration "sufficiently explains why each withheld document was deliberative in nature and exempt under the deliberative process privilege, a privileged communication between the agency and its attorneys and exempt under the attorneyclient [sic] privilege, or contained work product of an attorney which was prepared in anticipation of litigation and exempt under the attorney work-product doctrine." Segregability: The agency conducted a "line-by-line" review of the records and determined that the "nonexempt information is 'so inextricably intertwined with exempt material that no portions can be reasonably segregated and released.'" The court finds that the "[p]laintiff has produced no evidence that the agency's declarations were made in bad faith, or that their detailed response should not be accepted by the Court."

2. Mobley v. DHS, No. 11-2074 (BAH), 2012 WL 6103000 (D.D.C. Dec. 10, 2012) (Howell, J.)

Re: Request for records from defendant's Terrorist Screening Database and DHS Watchlist Service

Holding: Denying plaintiff's petition for attorney fees

• Attorney Fees: The court first determines that plaintiffs' petition for attorney's fees is untimely. The fourteen-day time period for filing a motion for attorney's fees under Federal Rule of Civil Procedure 54 was intended to "allow a court to decide any claims to attorney's fees 'in time for any appellate review of a dispute over fees to proceed at the same time as review of the merits of the case.'" The court continues, "[t]he time limit was also designed, like a statute of limitations, to promote the finality of closed cases and prevent disputes about stale facts." The court finds that the "Order dismissing the case was not conditional and did not contemplate any further proceedings," therefore the order was "final and appealable, triggering the fourteen-day filing requirement under Rule 54." The plaintiffs filed their motion for attorney fees six months after the case was closed.
  
  Next, the court rejects the plaintiffs' assertion that they "substantially prevailed" because the processing of the request occurred after the filing of plaintiff's preliminary injunction. The court explains that the "D.C. Circuit has interpreted the term 'substantially prevailed' rather narrowly to require that a FOIA plaintiff relying on the catalyst theory must receive records responsive to its request in order for that plaintiff to have 'substantially prevailed.'" However, the court finds that the statutory language "suggests that a broader conception" of the term "is possible." Nevertheless, here the court finds that "even assuming that the defendant processed the plaintiffs' request as a direct result of the filing of the plaintiffs' first motion for a preliminary injunction[,]" the plaintiffs have not substantially prevailed. First, "the fact that the plaintiffs received no documents, despite the fact that the defendant processed their request, militates against a conclusion that the plaintiffs substantially prevailed." The court goes on to explain that "the government did not engage in the sort of dilatory litigation tactics that the [attorney fees] provision was aimed to prevent," rather the "government's compliance with the plaintiffs' request so early in the litigation is not the sort of agency behavior that Congress intended to prevent by awarding attorney's fees." The court concludes by referencing statements made by members of Congress and declaring that it "is cognizant that voluntary compliance very early in a FOIA litigation, like the government's compliance here, should be encouraged rather than punished."