WEEK OF MAY 28 - JUNE 1

1.  Yonemoto v. VA, No. 06-378, 2012 U.S. Dist. LEXIS 76311 (D. Haw. June 1, 2012) (Kurren, Mag.)

Re:  Requests for emails to and from specified individuals; at issue is plaintiff's motion for attorney fees and costs

Holding:  Granting, in part, plaintiff's motion for attorney fees, but reducing the award based on objections raised by defendant; and awarding plaintiff attorney fees in the amount of $134,512.89 and costs in the amount of $17,668.17

• Attorney fees & costs/eligibility:  The court awards plaintiff attorney fees with respect to certain emails that the VA produced voluntarily to him following an adverse ruling by the Ninth Circuit with respect to those records.  As a preliminary matter, the court finds that plaintiff did not substantially prevail with respect to emails responsive to his request that the VA produced as part of the discovery process of separate EEOC proceedings.  The court finds that "[t]his Court did not order the VA to produce the EEOC emails, and the VA did not 'voluntarily' change its position with respect to those emails."  However, the court concludes that plaintiff substantially prevailed on the remaining emails where "[t]here is no indication from the record that Plaintiff could have obtained the requested documents without filing the instant action."  The court finds that "this lawsuit directly caused the VA to disclose the remaining documents to Plaintiff." 

• Entitlement:  The court also determines that "Plaintiff is entitled to attorneys' fees because the action benefited the public and the VA's basis for withholding the documents was not entirely reasonable."  As to the public benefit factor, the court finds that "Plaintiff's FOIA action benefited the public because it shed light on how the VA interacts with personnel."  The court notes that "[a]lthough Plaintiff is not eligible for fees for the derogatory comments produced in the EEOC litigation, he has revealed information regarding the working environment of the VA through the comments of its supervisory employees" and concludes that such disclosures "benefit[ ] the public by revealing the VA's sometimes tenuous working environment."  Additionally, noting that "the VA withheld emails under the triviality exception to FOIA, but later disclosed those emails voluntarily," the court finds that there was "some public benefit from this action by bringing the VA into compliance with FOIA."  Furthermore, the court comments that the Ninth Circuit recognized that there was "a strong public interest in some of the other emails produced by Plaintiff," for example, an interest in how expenses related to employee relocation may influence the VA's hiring decisions.  With regard to the commercial benefit to plaintiff and nature of his interest in the information, the court finds that "[a]lthough Plaintiff has a personal and commercial interest [based on his employment discrimination claims brought against the VA], . . . these factors are outweighed by the public benefit of the action and the VA's failure to disclose the disputed documents earlier."  As to the reasonableness of the VA's determination to initially withhold the records, the court determines that "this factor weighs in favor of awarding attorneys' fees, because the VA's failure to disclose the 157 emails prior to Plaintiff's appeal[, while not in bad faith,] was not completely reasonable." 

• Reasonableness of fee award:  The court reduces the "hourly rates and the number of hours billed" in connection with plaintiff's award of attorney fees.  The court "declines to award attorneys' fees for any litigation prior to the Ninth Circuit's December 8, 2008 opinion," on the basis that plaintiff did not substantially prevail with respect to that portion of the action.  The court also reduces by half the hours spent by one attorney "reviewing the EEOC files after the first appeal," finding it "excessive."  Further, the court makes reductions to the fee award based on its findings that the number of attorneys involved in the litigation caused an "excessive amount of time spent reviewing [each other's] files and communicating with one another" and that the attorneys spent an "excessive" time researching the FOIA.  However, the court declines to reduce the fee award for hours spent for specific filings, determining that the attorneys "did not spend an excessive amount of time on the filings" and they were not frivolous.  The court also adjusts the hourly rates claimed by the attorneys downward "[a]fter reviewing the prevailing rates in this community."  Using the lodestar amount, the court determines that plaintiff is entitled to a total fee award of $134,512.89 as well as costs in the amount of $17,668.17, which includes the search and duplication fees incurred in the course of the processing of plaintiff's request.

2.  Wingate v. DHS, No. 11-223, 2012 U.S. Dist. LEXIS 75270 (M.D. Fla. May 31, 2012) (Hernandez Covington, J.)

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

Holding:  Dismissing plaintiffs' complaint for lack of subject matter jurisdiction because they lack standing to bring the case

• Litigation considerations/standing:  The court holds that plaintiffs lack standing to bring the instant case where they "were not mentioned by name in the FOIA requests or related correspondence with the agency."  The court rejects plaintiffs' argument that "they were not required to be mentioned by name because their attorney submitted the request in a representative capacity."  Additionally, the court dismisses "Plaintiffs' argument that they have standing because their counsel identified them in a series of telephone calls to the Department of Homeland Security."  The court finds that "[t]he case law does not support Plaintiffs' contention, and Plaintiffs have not supplied the Court with any support for this misguided proposition."

3.  Nicholls v. OPM, No. 11-1654, 2012 WL 1921396 (D.D.C. May 29, 2012) (Boasberg, J.)

Re:  Requests for records pertaining to the Government's treatment of individuals under 5 U.S.C. § 3328, which prohibits persons who have not registered for the Selective Service from holding appointments in federal agencies

Holding:  Denying, in part, defendant's motion for summary judgment as to adequacy of its search for records in a given division and insofar as it construed plaintiff's request for certain records too narrowly; and denying, in part, plaintiff's motion for summary judgment as to her challenge to OPM's search premised on her contention that the agency should have searched beyond a certain database for responsive written or typed records 

• Adequacy of search:  The court concludes that OPM did not adequately address plaintiff's argument that, based on her conversation with an agency official, its Federal Investigative Services (FIS) division, might maintain responsive records.  The court finds that "[d]efendant's failure to refute Plaintiff's argument that it should have checked with FIS precludes summary judgment on this issue" and orders OPM to conduct a search of that division and "inform Plaintiff of its result before moving again for summary judgment."  However, the court rejects plaintiff's claim that "OPM should have searched beyond [its database containing government-wide workforce information] for written or typed records."  The court finds that plaintiff "has no basis to believe that responsive materials exist in such records," particularly in light of the fact that "Plaintiff is seeking aggregate data about types of governmental action – i.e., the sort of information contained in databases – rather than individual records themselves."  Moreover, the court finds that "[e]specially in light of [the agency declarant's] explicit statement that he went so far as to consult the agency's expert on how OPM processes personnel actions – the individual who, quite literally, wrote the book on the topic – 'to ensure that [he] was not overlooking any other repository or method by which OPM could potentially identify or produce responsive records' . . . the agency's representation that the aggregate information Plaintiff seeks does not exist is credible."  Accordingly, "Plaintiff's conjecture that aggregate information might be located in non-electronic records does not undermine the agency's position." 

• Procedural/interpretation of request:  The court finds that OPM's interpretation of plaintiff's request for "'records relating to any formal or informal appeals . . . regarding the termination, denial of employment, or withdrawal of an employment offer pursuant to 5 U.S.C. § 3328'" is too narrow.  The court notes that the OPM has "'has records of adjudications and reconsiderations of whether an individual's failure to register was knowing and willful.'"  As such the court finds that although "[r]ecords related to OPM's initial determination . . . would be outside the scope of the request," "[a]ny reconsideration process . . . clearly falls within the definition of 'appeal.'"  The court observes that "[t]he reconsideration process is plainly an appeals process, and a FOIA requester need not utilize the precise jargon employed by agency officials."  Additionally, the court notes that based on the wording of plaintiff's request OPM "cannot avoid disclosure on the ground that reconsiderations may have taken place prior to any formal employment action."

4.  Hiken v. DOD, No. 06-2812, 2012 WL 1929820 (N.D. Cal. May 24, 2012) (Ware, J.)

Re:  Request for documents concerning rules of engagement and other DOD rules applied to military personnel serving in Iraq; at issue is defendants' motion for partial reconsideration as to material for which it initially claimed Exemption 2 and now asserts Exemption 1, and for material for which it invoked Exemption 6

Holding:  Granting defendants' partial motion for reconsideration; allowing defendants to assert Exemption 1 with regard to information for which it had asserted Exemption 2 prior to Milner, and holding that those documents are properly classified under Exemption 1; and concluding that defendants properly asserted Exemption 6

• Litigation considerations/waiver of exemptions in litigation:  The court grants defendants' motion for reconsideration insofar as they seek to invoke Exemption 1 for "certain information that they unsuccessfully sought to withhold under Exemption 2."  The court determines that there is "good cause to allow Defendants to [now] assert Exemption 1 as to the documents at issue," noting that "three years after the briefing in this case was completed, but prior to the Court's issuance of the February 2 Order – the Supreme Court issued its opinion in Milner, which overturned an interpretation of Exemption 2 that had 'been consistently followed, or favorably cited, by every Court of Appeals to have considered the matter during the past 30 years.'"  The court concludes that "the Supreme Court's decision, in Milner, to overturn the interpretation of Exemption 2 on which Defendants had relied constitutes an 'interim development in applicable legal doctrine' sufficient to warrant the government's assertion of a belated FOIA exemption." 

• Exemption 1:  "Upon review of the government's declaration regarding the documents and the documents themselves, the Court finds they are properly classified under Exemption 1" as "military plans, weapons systems, or operations." 

• Motion for reconsideration/Exemption 6:  The court grants defendants' motion for reconsideration with respect to its earlier order finding that "certain 'names and official email addresses and official telephone numbers' were not covered by . . . exemption [6] as they both 'fail to meet the similar files prong of Exemption 6 and fail to amount to an unwarranted invasion of personal privacy,'"  which relied on "a 2005 decision of the District [Court in the] District of Columbia holding that names and telephone numbers are not protected by Exemption 6."  The court finds that subsequent decisions of district courts in the District of Columbia have found that such material can, in fact, qualify for protection under Exemption 6.  Despite plaintiff's objections, the court finds that because the court relied entirely on the decision of the district court in the District of Columbia, changes in the law in that district are relevant for the purpose of reconsideration.  Moreover, the court notes that "due to the fact that venue in FOIA cases is, by statute, established 'in the District of Columbia,' a significant proportion of FOIA cases arise in that District, which means that the decisions of [that district] with regard to FOIA are entitled to considerable deference."  As to the merits of the withholdings, the court concludes that "Defendants may withhold the personally identifying information of the individuals at issue, including photographs of those individuals, insofar as: (1) these individuals 'have a clear privacy interest in avoiding the disclosure' of such personally identifying information; and (2) releasing such personally identifying information would 'serve[ ] no public interest,' because it 'would not reveal what the government is up to.'"

5.  Brooks v. Legis. Bill Room, No. 10-379, 2012 U.S. Dist. LEXIS 74726 (E.D. Cal. May 25, 2012) (Newman, Mag.)

Re:  Request to the California Legislative Bill Room for copies of certain Senate and assembly bills

Holding:  Dismissing plaintiff's FOIA claim for lack of subject matter jurisdiction where his complaint alleges that he submitted a request to a California state entity inasmuch as FOIA "does not apply to state agencies." 

6. N.Y. Times Co. v. DOJ, No. 11-7562, 2012 WL 1869396 (S.D.N.Y. May 17, 2012) (Pauley, J.)

Re:  Request for classified report to Congress from the Attorney General and the Director of National Intelligence regarding foreign intelligence collection authorized by section 215 of the USA PATRIOT Act

Holding:  Granting defendant's motion for summary judgment on the basis that it properly asserted Exemptions 1 and 3 to withhold a classified report; and declining to find bad faith where the court's in camera inspection bears out defendants' exemption claims; and concluding that no portions of the report are reasonably segregable 

• Exemption 1:  The court holds that the requested report was properly withheld pursuant to Exemption 1.  As an initial matter, the court notes that plaintiffs "do not dispute that the first two conditions for classification [under Executive Order 13526] are met," namely, that the report was classified by an original classification authority, and that it is owned or produced by, or under the control of the government.  Based on its in camera review of the documents at issue, the court finds that "the Report falls within at least one of the eight categories listed in section 1.4" of Executive Order 13526, which protects intelligence sources and methods.  Moreover, the court "credits the Government's assertion that disclosing this information could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence collection capabilities."  

• Exemption 3:  In addition to Exemption 1, the court finds that the requested report was also properly withheld under Exemption 3 in conjunction with the National Security Act of 1947, as amended.  Based on its in camera review, the court concludes that "disclosing the Report would reveal and potentially compromise intelligence sources and methods."  The court comments that "it is principally the duty of the Executive Branch, 'not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the [Government's] intelligence-gathering process.'" Additionally, the court rejects plaintiff's argument that the "even if the Report is covered by Exemptions 1 or 3, the Government may not withhold it to the extent that it 'sets forth or clarifies an agency's substantive or procedural law[.]'"  Rather, the court finds that plaintiffs "cite no case law in which a court applied the 'secret law doctrine' to mandate the disclosure of classified national security information protected by Exemptions 1 or 3, and this Court has found none."  Further, the court declines "to read a 'secret law' exception into the FOIA exemptions without a statutory tether."