WEEK OF JULY 16-20

1. White v. DOJ, No. 12-5067, 2012 U.S. App. LEXIS 14864 (D.C. Cir. July 19, 2012) (per curiam)

Re:  Request for records pertaining to a criminal case purportedly prosecuted by the U.S. Attorney's Office (USAO) for the Eastern District in New York in 1998 

Holding:  Affirming the district court's grant of summary judgment to EOUSA based on the adequacy of its search

• Adequacy of search: The D.C. Circuit affirms the judgment of the district court granting summary judgment to EOUSA on the basis that it "satisfied its obligation under the [FOIA] . . . to search for records responsive to appellant's request."  The D.C. Circuit notes that "[a]ppellee's failure to locate documents responsive to appellant's request appears to be a function of the limited information provided in appellant's request, and appellant has not demonstrated that appellee had a duty to investigate and provide additional search terms." 

2. Newport Aeronautical Sales v. Dep't of the Air Force, No. 10-5037, 2012 WL 2892372 (D.C. Cir. July 17, 2012) (Garland, J.)

Re:  Request for technical orders concerning the care, maintenance and/or repair of military equipment; at issue is plaintiff's claim that the records at issue, which ultimately were released under DOD Directive 5230.25, be released under the FOIA, and its request for declaratory judgment that Air Force's alleged policy of applying that directive to non-critical data violates the FOIA

Holding:  Affirming the district court's decision that 10 U.S.C. § 10(a) is a withholding statute under Exemption 3 and that the Air Force properly withheld the technical orders at issue under that statute

• Litigation considerations/mootness:  The D.C. Circuit finds that the case is not mooted by the Air Force's production of unredacted copies of all the requested records under DOD's Directive 5230.25, rather than the FOIA.  The D.C. Circuit concludes that, under the standard that it set forth in Payne Enterprises, Inc. v. United States, plaintiff's challenge to the Air Force's "practice of denying FOIA requests for data that does not depict 'critical technology,' and thus requiring [plaintiff] to seek the data under the restrictive terms of Directive 5230.25" is not moot.  The D.C. Circuit notes that plaintiff specifically takes issue with the requirement that in order "to obtain technical data governed by the Directive, a qualified contractor [such as plaintiff] must sometimes identify a specific bid or contract that the data will support" at least when "release 'may jeopardize an important technological or operational military advantage,'" which plaintiff often cannot establish.  The D.C. Circuit finds that plaintiff "has . . . shown that it will suffer continuing injury from this alleged unlawful policy [because] its business depends on continually requesting and receiving documents that the policy permits the Air Force to withhold in the absence of bid or contract information that [plaintiff] cannot always provide; and the Air Force has no intention of abandoning that policy because it does not believe the policy violates FOIA."    

• Exemption 3:  The D.C. Circuit holds that the Air Force properly withheld certain technical orders pursuant to Exemption 3 in conjunction with 10 U.S.C. § 130(a), which permits the withholding of "'technical data with military or space application . . . , if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 or the Arms Export Control Act.'"  As a preliminary matter, the D.C. Circuit concludes that "[b]ecause 'technical data with military or space application,' as further defined by subsection 130(c), plainly sets forth a 'particular type [ ] of matter[ ] to be withheld,' 5 U.S.C. § 552(b)(3)(A)(ii), subsection 130(a) readily qualifies as an Exemption 3 statute."  The D.C. Circuit then finds that "the withheld information plainly falls within the coverage of § 130(a)" because "[t]here is no disagreement that the information [plaintiff] seeks qualifies as 'technical data with military or space application,' and that it cannot be exported without a specific license under the relevant export statutes."  The D.C. Circuit rejects plaintiff's primary argument that "Congress intended § 130(a)'s withholding authority under FOIA to be limited by regulation to 'sophisticated technologies,' which it equates with the 'critical technologies' that it maintains are excluded from the purview of Directive 5230.25."  Contrary to plaintiff's argument, the D.C. Circuit finds that the "[t]here is nothing in the text of § 130(b) that evidences a congressional intent to restrict by regulation the broad authorization to withhold data from FOIA disclosure that § 130(a) grants the Secretary of Defense."  The D.C. Circuit determines that, to the extent that § 130(b) directs the Secretary to promulgate regulations regarding release of technical data to qualified contractors, "[t]his cannot be reference to disclosure under FOIA" because "'FOIA does not make distinctions based on who is requesting the information.'"  As such, the D.C. Circuit holds that "a provision that contemplates releases only to U.S. allies and contractors cannot be read as limiting the Defense Department's withholding authority under FOIA."  The D.C. Circuit also dismisses plaintiff's argument that "the legislative history of § 130 demonstrates that Congress intended the Defense Department to issue regulations under § 130(b) that would narrow § 130(a)'s withholding authority," finding that the statute's "text and structure . . . plainly refute [plaintiff's] position."     

Additionally, the D.C. Circuit rejects plaintiff's argument that Directive 5230.25 should be treated as an Exemption 3 statute, concluding that plaintiff's reliance on its ruling in Wisconsin Project on Nuclear Arms Control v. Department of Commerce, in which the court treated an executive order as an Exemption 3 statute, is inapposite.  The D.C. Circuit concludes that, unlike Wisconsin Project where the withholding statute had lapsed, "[h]ere, 10 U.S.C. § 130 is in full effect, and there is no reason to look elsewhere to assess the Air Force's withholding authority."  Further, the D.C. Circuit finds that in Wisconsin Project, the "'the executive order 'continued precisely the provision originated and written by Congress'" whereas here plaintiff "maintains that the Directive only authorizes withholding of data that discloses critical technology, a limitation absent from the provision written by Congress."  Moreover, "even assuming arguendo that the Air Force is violating Directive 5230.25 by restricting the disclosure of technical information that does not depict 'critical technology,' that practice does not violate FOIA." 

1. Wingate v. DHS, No. 11-223, 2012 U.S. Dist. LEXIS 100227 (M.D. Fla. July 19, 2012) (Covington, J.)

Re:  Requests for records from FEMA regarding the City of Tarpon Springs, Florida, and a particular residence in that city

Holding:  Denying plaintiffs' motion for reconsideration brought under Rule 59(e) requesting that the court reconsider its decision to dismiss the action for lack of subject matter jurisdiction

• Litigation considerations/motion for reconsideration:  The court denies plaintiffs' motion brought under Rule 59(e) to reconsider its dismissal of the case on the basis that plaintiffs lacked standing to bring the suit where their "names do not appear on the FOIA requests and correspondence."  The court finds that correspondence from a senator reporting the results of his inquiry to FEMA on plaintiffs' behalf, and a letter from FEMA to the senator referencing plaintiffs "do not warrant reconsideration."  For one, the court determines that these "documents do not constitute 'new evidence' because Plaintiffs candidly admit that they had the documents on file prior to the entry of the Court's Order of dismissal."  Furthermore, the court finds that "[e]ven if [it] were to consider this belatedly submitted evidence, such evidence would not change the outcome of this case."  The court concludes that "[t]he correspondence from Senator Nelson concerning the [plaintiffs], dated six months after [their] attorney['s] . . . FOIA request to FEMA has no bearing on the issue of whether Plaintiffs' complaint establishes the Court's jurisdiction."  The court holds that "'a person whose name does not appear on a request for records has not made a formal request for documents within the meaning of the statute.'"  The court concludes that "because the FOIA requests at issue did not indicate that they were presented by or on behalf of the [plaintiffs], or otherwise mention [them] by name, the [plaintiffs] lack standing to bring the present action." 

2.  Nat'l Day Laborer Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, No. 10-3488, 2012 WL 2878130 (S.D.N.Y. July 13, 2012) (Scheindlin, J.)

Re:  Request for records pertaining to Secure Communities, a federal immigration enforcement program; at issue are the defendants' searches for responsive records
 
Holding:  Granting defendants' motion for summary judgment with respect to DOJ's Office of Legal Counsel (OLC) and the Executive Office for Immigration Review (EOIR); and granting, in part and denying in part, defendants' motions for summary judgment regarding ICE, the FBI and DHS; ordering parties to design and execute a small number of targeted searches; and directing defendants to document the results of those searches

• Adequacy of search:  As to plaintiff's contention that defendants improperly excluded the files of certain custodians who were likely to possess responsive records from their searches, the court reviews the efforts of ICE, the FBI, DHS and DOJ to search various locations.  Based on its review, the court concludes that defendants' have not met their burden of establishing that it was reasonable not to search the offices of:  ICE's Homeland Security Investigations; ICE's Office of State, Local, and Tribal Coordination; the FBI Director's Office; the Privacy and Civil Liberties Unit of the FBI's Office of General Counsel; the FBI's Interoperability Initiatives Unit; DHS's Office of General Counsel; and DHS's Homeland Security Advisory Council.  In most instances, the court concluded that defendants failed to adequately address or counter evidence that tended to show that these offices might maintain responsive records.  The court also orders ICE to "inform plaintiffs about the extent to which contractors were included in the searches, and, if plaintiffs are dissatisfied, submit to the Court a supplemental declaration."  The court notes that the FBI's OGC's National Security Law Branch "has the option of either conducting and fully documenting a new search or submitting a declaration from a supervising attorney stating that, based on her personal knowledge, it is not reasonable to believe that the office has [certain responsive] documents . . . and that no search is therefore required under FOIA." 

However, the court determines that defendants' searches of or explanations as to why they did not search ICE's Deputy Director's office; ICE's Privacy Office; the FBI's Science and Technology Branch and Office of Law Enforcement Coordination; DHS Secretary Napolitano's office; DHS's U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT); OLC; and EOIR were all adequate.  With respect to ICE's Privacy Office, the court concludes that the Privacy Officer's "presence at one meeting [about Secure Communities] . . is not sufficiently probative of the existence of records in the office's control so as to render unreasonable the government's determination that the Privacy Office was not likely to have responsive records."  As to the search of Secretary Napolitano's office, the court rejects plaintiff's arguments that a search of all "'documents sent to or from the Secretary are not likely to encompass all the documents the Secretary possessed or created.'"  Rather, the court finds that such a search "examined a universe of documents reasonably calculated to uncover all responsive documents."  The court also determines that "DHS acted reasonably in not searching records of the [Chief Information Officer for US-VISIT], whom it determined would not likely have responsive records" and likewise for records maintained by that office's Deputy Director.  With respect to OLC's search, the court finds that it "was reasonably designed to uncover all responsive documents and was thus adequate."  Although OLC did not use certain search terms, the court finds that it "is extremely unlikely" that the search terms that were used would have failed to capture responsive final opinions by the office.  Additionally, the court notes that "the discussions with long-time supervising attorneys wisely helped guide the search," and concludes that plaintiff's contention that "these attorneys' memories were faulty is unsupported."  Lastly, the court finds that "the query of every attorney in the office was comprehensive" and while "the FOIA officer should have followed up with the attorneys who did not respond to the email query" concerning the request, "in light of the totality of steps that it took to search for responsive documents (and that fact that none of them revealed that its attorneys had worked on Secure Communities), the OLC's search was adequate."
 

The court then examines other searches conducted by the FBI, DHS and ICE, finding that "[i]t is impossible to evaluate the adequacy of an electronic search for records without knowing what search terms have been used."  Further, the court opines that "[t]here is a 'need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce emails or other electronically stored information.'"  The court adds that "beyond the use of keyword search, parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents."  "Aware of the limitations of keyword searching and in the absence of evidence showing the efficacy of the terms used, [the court finds that] it is impossible for [it] to assess the adequacy of most of the keyword searches used by defendants" in this litigation.  The court holds that the "the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched for the full text of documents."  In light of its prior findings, the court determines that "[s]imple keyword searching is often not enough."  In this case, the court finds that "[r]ather than fully revisit old searches, the parties will need to work cooperatively to design and execute a small number of new, targeted searches."  Additionally, the "[c]ustodians who should have searched their records but did not will need to conduct complete searches."  Further, the court determines that "a sample of the custodians who conducted searches, but failed to provide the Court with any details about those searches will also need to conduct new, fully-documented searches; so will a smaller sample of the custodians who listed the search terms that they used but provided no evidence about the efficacy of those terms."  The court directs the parties to "agree on search terms and protocols – and, if necessary, testing to evaluate and refine those terms."