WEEK OF NOVEMBER 19-23

Courts of Appeal

1. Rimmer v. Holder, 700 F.3d 246 (6th Cir. 2012) (Boggs, J.)

Re: First party request for records concerning plaintiff

Holding: Affirming district court's grant of summary judgment in favor of the FBI

• Exemptions 6 and 7C: The court upholds the application of Exemptions 6 and 7C to the investigative records at issue, noting that "[b]ecause it is undisputed that all the redactions at issue were contained in FBI records compiled for the purpose of law enforcement, the district court correctly applied the more protective standards of Exemption 7C to both the government's Exemption 6 and Exemption 7(C) redactions." The court acknowledges that a "privacy interest exists not only for those who are suspects in an investigation, but also for third parties mentioned in the documents, such as witnesses, informants, and investigators." However, the court concludes that the requester has not presented a public interest that outweighs the privacy rights of the individuals mentioned in the investigative files at issue.
  
  First, the court rejects plaintiff's argument that he needs the information in order to present exculpatory evidence in his state proceeding. "This court has made clear that the purpose of the FOIA is not to act as a 'substitute for the normal process of discovery in civil and criminal cases' and will not turn the purpose of advancing private litigation into a public one."
  
  Next, with regard to the primary public interest argument that plaintiff makes on appeal, i.e. that there is a public interest in "'the revelation of wrongdoing in the [J]ustice [D]epartment," the court notes that "more than bare allegations of federal malfeasance are required before the public interest becomes significant enough to overcome the privacy concerns embodied in Exemption 7(C)." The court "note[s] that FOIA is concerned only with shedding light on misconduct of the federal government, not state governments." In the instant case, "[i]t is true that, if the federal government had prosecuted [plaintiff], it would have had an obligation under Brady v. Maryland, 373 U.S. 83 (1963), to provide him with any exculpatory information in its possession. Here, however, the FBI declined to prosecute [plaintiff], who was prosecuted by Tennessee only. Thus, while the state may have breached its Brady obligations by failing to provide [plaintiff] with evidence of [a witness'] FBI interview and photo-lineup identification, [plaintiff] presents no evidence that the FBI had any similar obligation." The court also comments that plaintiff has not "provide[d] evidence showing that the FBI somehow used its status as a joint investigator to shield exculpatory information from" plaintiff. Thus, the court concludes that there is no evidence of misconduct and,accordingly,no public interest sufficient to outweigh the privacy rights of the third parties mentioned in the files.
  
  Finally, the court notes that even if there were evidence of FBI misconduct, plaintiff's challenge would still fail because "he cannot show that the information he seeks would likely advance the public interest in revealing agency misconduct." "There is no redaction of material describing FBI efforts to hide information, an FBI plan to 'game' the joint investigation so as to sequester information within the non-prosecuting agency, or any other actual action taken by the FBI; all that exists is the deletion of information that would identify those who were mentioned in the … file." The Six Circuit rejects plaintiff's claim that Roth v. DOJ requires "some sort of 'heightened scrutiny,'" finding Roth to be "inapposite, as it dealt with review of the FBI's use of a Glomar response . . . rather than its use of a FOIA exemption to merely redact content," as was done here.

• Exemption 7(D): The court upholds the district court's affirmance of the Exemption 7(D) redactions. Here, "the confidential sources that the FBI redacted under 7(D) were individuals who . . . called a confidential Crime Stoppers hotline to provide information" concerning a murder investigation. The court notes that the "the district court correctly dispensed with [plaintiff's] claim that his personal knowledge of the identity of most of the government's confidential sources neutralized the personal-privacy protection afforded them under Exemption 7(D). In this circuit, it is well-settled that '[i]f a confidential source is later revealed, we nonetheless restrict public access to documents under [Exemption 7(D)] so long as the informant and the agency intended the identity of the source to remain undisclosed at the time the agency compiled the information." The court finds that it is undisputed that both the callers and the FBI "intended that the callers' identities remain undisclosed at the time of the calls."

District Courts

1. Strunk v. U.S. Dep't of State, No. 08-2234, 2012 WL 5875653 (D.D.C. Nov. 21, 2012) (Leon, J.)

Re: Request for records from the State Department and CBP concerning President Obama and his late mother; the only remaining issue is whether CBP properly withheld information from a "TECS Printout of Travel Documents" pursuant to Exemption 7(E)

Holding: Granting State Department's renewed motion for summary judgment

• Exemption 7E: The court holds that "[a]lthough the computer transaction and function codes [of the TECS database] are not themselves 'techniques and procedures for law enforcement investigations or prosecutions' entitled to categorical protection under Exemption 7(E), the CBP's declarant adequately demonstrates that release of the codes, as well as the information in the RSLT column, 'would disclose guidelines for law enforcement investigations or prosecutions[, and that] such disclosure could reasonably be expected to risk circumvention of the law.'"
  
  CBP explained that TECS is "'an overarching law enforcement information, collection, analysis, and sharing environment that securely links telecommunications devices and personal computers to a central system and database.'" CBP's declarant explained that release of computer codes associated with the database "'could reveal the precise procedures for retrieving records from a law enforcement database containing information related to [CBP's] law enforcement mission' and thus 'expose the system to vulnerabilities and compromise the … data compiled for law enforcement purposes and other … missions.'" In addition, the court concludes that information from the "RSLT column," which is the column "that reflects the results of specific law enforcement database queries" was also properly withheld under Exemption 7(E). The court accepts CBP's argument that "'individuals who knew the meaning of the codes contained in the 'RSLT' column would gain access to CBP law enforcement techniques and procedures that would permit them to alter their patterns of conduct, adopt new methods of operation, relocate, change associations, and effectuate other countermeasures, thus corrupting the integrity of the ongoing investigations.'" Segregability: The court finds that all reasonably segregable information has been released. CBP's declarant explained that "she 'conducted a line-by-line review of each record identified as responsive.'" "The CBP's declarations, coupled with a detailed Vaughn index, satisfy the Court that all reasonably segregable information has been disclosed to plaintiff."

2. Walsh v. FBI, No. 11-2214, 2012 WL 5873671 (D.D.C. Nov. 21, 2012) (Roberts, J.)

Re: First party request for recordsconcerning plaintiff and request for records concerning the agents in charge of the Harrisburg office of the FBI

Holding: Granting the VA's and ODNI's motions for summary judgment; dismissing claims against the Foreign Intelligence Surveillance Court (FISC) because it is not subject to the FOIA; denying FBI's motion for summary judgment

• Exhaustion of administrative remedies: The court finds that the requester has not exhausted his administrative remedies with regard to his claims against the VA and ODNI. He "submitted no proof that he mailed this request, or that the VA received it. The VA has presented undisputed evidence that it searched for [the requester's] FOIA request in the places that [his] FOIA request to the VA would have been located, but did not discover any such request. Thus, either [the requester] never properly initiated and exhausted the FOIA administrative process, or if he did send a valid request, the VA has shown that it does not have the request and the request was not exhausted." The court accordingly grants judgment for the VA. Similarly, the court examines ODNI's undisputed assertions and determines that "ODNI conducted a search reasonably calculated to locate [the requester's] alleged FOIA request and did not discover any such request." Accordingly, the court also grants summary judgment in favor of ODNI.
  
  However, the court denies the FBI's motion for summary judgment. The FBI asserted that it sent the requester a letter dated October 12, 2011, advising him that it needed more information to conduct a search for records regarding him and that his request would be closed if the FBI did not receive a response in 30 days. This letter also informed him of his right to appeal. The FBI argued that the requester never responded and never appealed. The requester argued that he never received this letter. With respect to his request for records concerning the agents in charge of the Harrisburg Resident Agency, the FBI asserted that the requester never appealed its denial of his request under Exemptions 6 and 7(C). The FBI stated that it contacted OIP on January 24, 2012 to confirm that the requester had not appealed. However, the court finds that "the FBI does not provide factual detail to show that it searches for [the requester's] responses were reasonably calculated to find his response, nor does the FBI provide any evidence, such as a return receipt, that would resolve the factual dispute about whether it mailed [the requester] the October 12 letter."

• Jurisdiction: The court dismisses the requester's claims against FISC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. "[T]he FISC, as a federal court, is not subject to the FOIA."

3. Baker v. DHS, No. 3:11-CV-588, 2012 WL 5876241 (M.D. Pa. Nov. 20, 2012) (Caputo, J.)

Re: First party request for recordsregarding a dispute with the Secret Service regarding plaintiff's military service

Holding: Granting plaintiff's motion to recover attorney's fees

• Attorney's fees:The court finds that the plaintiff is eligible for attorney's fees because he has demonstrated "that the prosecution of the action could reasonably be regarded as necessary to obtain the requested information," and thus he has substantially prevailed on his FOIA claim. The court notes that there were "several unexplained gaps in [the Secret Service's] activity that do not appear to be the product of unavoidable delay," and that it was "nearly two years since [plaintiff] filed his FOIA request with the agency" and the commencement of this action. Plaintiff "has shown a causal nexus between this action and the release of the requested information and, accordingly, has proven that he substantially prevailed because of a voluntary or unilateral change in position by the Secret Service."
  
  The court rejects plaintiff's argument that he has also substantially prevailed because the court ordered the Secret Service to submit a Vaughn index. The court finds that "because an order compelling the production of a Vaughn index is not court-ordered relief for [plaintiff], he has not substantially prevailed by obtaining relief through a judicial order and is ineligible to receive attorney's fees" based upon the order. The court cites prior case law "[n]oting that a Vaughn index's main purpose is to facilitate the litigation process."
  
  Having determined that plaintiff is eligible for attorney's fees, the court also concludes that he is entitled to them. The court finds a public benefit to his case. "Although [plaintiff's] FOIA request encompassed information relating to his dispute with the Secret Service, the release of the information in this case, especially when viewed in light of his [Merit Service Protection Board] victory, is likely to assist military personnel working with the federal government." The court also notes that the plaintiff did not have a commercial motive in litigating the case. "Given that [plaintiff] filed this suit even after his case before the MSPB was resolved, his motivation was not to accumulate information that would assist him in litigating that matter and obtaining damages." The court also notes that plaintiff's interest was "investigatory." Plaintiff "sought to uncover information relating to the agency's potentially discriminatory action of requiring certain personnel to change their military designation status – information that was likely to assist military personnel working within the federal government." Finally, the court determines that even though "the Secret Service appears to have a reasonable basis in law for withholding and redacting the documents that it did," its other actions, including a two-year delay and the failure to produce a Vaughn index when releasing documents in April 2011, after the complaint had been filed, were not reasonable. "[T]here is ample evidence that the agency was recalcitrant or obdurate in releasing the requested information."

Finally, "the Court finds the fee submitted reasonable" and "award[s] the full amount."

4. Delorme v. EOUSA, No. 12-0535, 2012 WL 5839513 (D.D.C. Nov. 16, 2012) (Huvelle, J.)

Re: First party request for records on self and criminal case

Holding: Granting EOUSA's motion for summary judgment with regard to the adequacy of the search, but directing EOUSA to file a supplemental declaration and if necessary a Vaughn, describing two discs plaintiff claims that he did not receive

• Adequacy of Search: The court holds that EOUSA is entitled to summary judgment on the adequacy of its search. EOUSA's declarant "sufficiently described her search for responsive records in files maintained by the U.S. Attorney's Office in the Southern District of Florida." Plaintiff also does not challenge the search methods, but instead challenges the results because "most of the released pages are not directly related to his criminal case." However, the court, citing prior case law, notes that "'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search," and finds that EOUSA is entitled to summary judgment on the issue of the adequacy of the search. Nonetheless, the court rules that because EOUSA has not replied to plaintiff's arguments questioning the location of two responsive discs, the court orders EOUSA to file a supplemental "declaration, and if necessary, a Vaughn index, describing the released records and confirming whether the information contained on the discs has been released to plaintiff or is exempt."

5. Hildenbrand v. Fahey, No. 3:12-CV-2959-D, 2012 WL 5844185 (N.D. Tex. Nov. 16, 2012) (Fitzwater, J.)

Re: First party request for records concerning plaintiff's criminal conviction

Holding: Granting DOJ's motion for summary judgment and granting motion to dismiss filed by two Assistant United States Attorneys named as parties in the litigation

• Proper party defendant: The court dismisses the case against the two AUSAs named in the case with prejudice under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It cites prior case law clearly establishing that "[a] FOIA plaintiff may not assert a claim against an individual federal official; the proper defendant is the agency." As the court notes, because neither AUSA "is an agency, the actions against them are dismissed with prejudice."

• Jurisdiction: The court rejects DOJ's argument "that the court does not have subject matter jurisdiction over the claims against it because it did not improperly withhold agency records." The court notes that "the jurisdictional attack … is inextricably intertwined with the merits of [plaintiff's] FOIA action, because in order to decide both mootness and the merits of [plaintiff's] FOIA action, the Court must decide whether DOJ improperly withheld agency records under section 552(a)(4)(b)." Having determined that it has subject matter jurisdiction, the court analyzes whether DOJ has met the requirements for summary judgment.

• Adequacy of Search: As in plaintiff's prior FOIA suit, the court determines that "DOJ has shown beyond material doubt that it conducted a search reasonably calculated to uncover all relevant documents." DOJ "produced an affidavit detailing adequate procedures to uncover the requested documents." DOJ explained which database it queried and why and described its other attempts to locate responsive materials by contacting staff members by interoffice email. Plaintiff "has not offered any evidence that DOJ's search was inadequate or in bad faith. She provides no evidence that documents are likely to exist beyond DOJ's search parameters. She also provides no evidence that DOJ 'purposefully withheld documents.'" Even accepting plaintiff's "unsworn assertion … that the factual resume [from her criminal case that was produced by EOUSA] was not responsive, this shows only that DOJ was overinclusive in its production of materials – i.e., the opposite of purposefully withholding documents." Accordingly, the court concludes that DOJ is entitled to summary judgment.