WEEK OF JUNE 4 - 8

1. Flaherty v. IRS, No. 11-5237, 2012 U.S. App. LEXIS 11436 (D.C. Cir. June 6, 2012) (per curiam)

Re:  Requests for "government assessments" of plaintiff's tax records

Holding:  Affirming order of the district court dismissing individual defendants from the case and substituting the IRS as the proper party and its finding that plaintiff failed to exhaust his administrative remedies; and denying plaintiff's request to strike defendant's filings

• Proper party defendant:  The D.C. Circuit affirms the decision of the district court to dismiss claims brought against individuals and to substitute the IRS as the sole proper party defendant because the FOIA "only authorizes suits against certain executive branch 'agencies,' not individuals." 

• Exhaustion of administrative remedies: The D.C. Circuit affirms the finding of the district court that plaintiff failed to exhaust his administrative remedies with respect to one of his requests.  Although plaintiff alleged that he constructively exhausted his administrative remedies because the IRS did not respond to his request within twenty days, the D.C. Circuit finds that he "did not file his complaint until . . . well after the government responded to [his] FOIA request," which re-triggered the exhaustion requirement.

1. Mobley v. DOJ, No. 11-1437, 2012 U.S. Dist. LEXIS 79410 (D.D.C. June 8, 2012) (Howell, J.)

Re:  Request for records relating to plaintiff and his incarceration in Yemen

Holding:  Granting defendant's motion for summary judgment on the basis that it properly asserted Exemption 1 to withhold thirteen documents in full; and concluding that defendant's redactions to another document made pursuant to Exemption 5 were conceded where plaintiff did not contest them

• Exemption 1:  The court concludes that the in camera, ex parte submissions filed by defendant "amply sustained its burden of showing that the documents at issue were properly withheld from disclosure under FOIA exemption 1."  As a preliminary matter, the court notes that due to the "'highly sensitive nature'" of the records at issue, the Office of Legal Counsel was unable to submit public affidavits to demonstrate that the requirements of Executive Order 13526 were met "because 'the very association of the identities of the original classifying authorities with this matter is itself a classified fact.'"  After review, the court finds that the in camera, ex parte classified filings establish that the procedural and substantive requirements of Executive Order 13526 were satisfied and further finds that "[t]hese submissions were sufficiently thorough and detailed to allow for appropriate judicial review of the agency's decision." 

The court rejects plaintiff's contention that defendant should be required to disclose additional information about the withheld records, such as the date the record was created, the author of the record, the number of pages, and information about its classification.  The court notes that although it "is cognizant of its responsibility to 'make as much as possible of the in camera submission available to the opposing party' as is appropriate," it determines that "[i]n this instance, . . . no portion of the in camera submission is appropriate for disclosure since, as the defendant made clear, the submission contains 'highly classified' information, 'including information that is classified Top Secret.'"  Noting that the court, like plaintiff is disadvantaged, where information cannot be made available on the public record and where "it does not have 'benefit of criticism and illumination by a party with the actual interest in forcing disclosure,'" the court observes that it "must therefore scrutinize carefully the government's justifications for the withholdings, which it has done in this case."  The court concludes that "[b]ased upon this review, [it] agrees with the defendant that even the 'banal information' regarding the documents that the plaintiff seeks in this case is properly classified."  Moreover, the court comments that "[i]ndeed, the D.C. Circuit has often recognized that national security concerns may override a plaintiff's desire for information necessary to litigate FOIA claims."  "[T]he Court concludes not only that the documents responsive to the plaintiff's FOIA request are properly withheld under FOIA exemption 1, but that considerations of national security appropriately preclude the defendant from publicly releasing additional information regarding the documents."  

2.  Brodzki v. United States, No. 12-898, 2012 U.S. Dist. LEXIS 78244 (D.D.C. June 5, 2012) (Roberts, J.)

Holding:  Dismissing plaintiff's FOIA claim on the basis that he did not exhaust his administrative remedies where he failed to allege that he requested records from an agency under the FOIA and was denied

3.  Kelly v. Judge Advoc. Gen. of the Navy, No. 12-3067, 2012 WL 1997862 (D. Kan. June 4, 2012) (Crow, J.)

Holding:  Granting plaintiff twenty days to submit a partial filing fee, and to show cause as to why this FOIA action should not be dismissed for failure to state a claim upon which relief may be granted

• Proper party defendant:  The court dismisses plaintiff's FOIA claim as brought against individual named defendants.  The court notes that "FOIA governs requests made for records of a federal agency."  To the extent that plaintiff requested records maintained by state or local entities or their employees, the court finds that such records "are not 'federal government information,' and FOIA does not apply" to them. 

• Exhaustion of administrative remedies:  The court dismisses plaintiff's FOIA claim brought against the "'Judge Advocate General of the Navy'" where he "does not allege that he submitted a FOIA request for information to a federal agency" or "describe what documents or information he requested in a FOIA request, or provide the agency's response to his FOIA request."