WEEK OF SEPTEMBER 10-14

1.  EEOC v. Kronos, Inc., No. 11-02834, 2012 WL 4040258 (3d Cir. Sept. 14, 2012)

Re:  Addressing a confidentiality order containing a provision mandating that in the event of a future FOIA request, certain confidential information will be considered trade secrets or commercial information protected by Exemption 4

Holding:  Remanding to the district court to remove the provision creating a presumption that certain information will be presumed to be trade secrets or commercial information entitled to remain confidential

• Procedural/Exemption 4:  The court rejects appellee's attempt to make information it discloses to the EEOC automatically exempt under Exemption 4.  The court states that "allowing [appellee] to assert unilaterally that any information it discloses to the EEOC is automatically exempt under FOIA precludes EEOC officials from performing the analysis required by FOIA after a request for information is made."  The information may indeed be exempt but the EEOC must be able "to do its required analysis when faced with a FOIA request."

1.  Elec. Privacy Info. Ctr.  v. DHS, No. 11-945, 2012 WL 4044986 (D.D.C. Sept. 14,2012) (Rothstein, J.)

Re:  Request for records concerning DHS's development and use of body scanning technology

Holding:  Granting defendant's motion for summary judgment but finding plaintiff eligible for and entitled to attorney's fees and costs

• Exemption 4:  The court concludes that DHS properly withheld documents under Exemption 4.  The court rejects plaintiff's argument that the documents withheld are publicly available and therefore could not be considered privileged or confidential.  It examines the two documents submitted by plaintiff as support for its contention and finds that the public information cited by the plaintiff is not the same as what the plaintiff requested.  The court looks to DHS's declaration and agrees that "the public documents that [plaintiff] cites contain generic performance information distinct from the specific data included in the document in dispute."  Second, the "pricing document contained in the contract [at issue] … has nothing to do with the pricing under any other contract because [the contractor's] pricing is unique to each procurement."  Segregability:  The court notes that in its declaration the defendant "explains, document-by-document and page-by-page, what the contents include and why they could not be produced." It concludes that this new "court-ordered, enhanced segregability analysis" is sufficient.

• Exemption 5/threshold:  As a preliminary matter, the court holds that documents shared with government contractors who assisted with the development and testing of detection systems were properly withheld under the consultant corollary theory.  The court concludes that "documents at issue were intra-agency communications for Exemption 5 purposes."  It notes that "in order to be excluded from the exemption, the contractors must assume a position that is 'necessarily adverse' to the government."  Here, the contractors are "bound in contract to provide information and analysis to DHS." 

• Exemption 5/deliberative process privilege:  The court finds that three documents were properly withheld under the deliberative process privilege.  The parties agree that the documents are predecisional, but contest whether they are deliberative.  The court examines each of three documents in turn and determines that they are indeed deliberative.  It finds that an email "outlining and 'attaching options," as well as 'choices to be made'" is deliberative and part of the "'give and take' of the policy-making process."  The court likewise finds that minutes of a meeting between DHS officials and a contractor describing "options presented to DHS" and "possible deployment scenarios" are also deliberative.  Finally, the court concludes that "briefing materials prepared by DHS in evaluating [the contractor's] proposal" are deliberative.   The materials, which contain "deliberations about whether to proceed" and "the contractors' advice to the agency concerning the ongoing development of the prototype systems" are properly withheld under Exemption 5.   Segregability: The court is "persuaded that DHS has disclosed all factual material that is not inextricably intertwined with deliberative portions of the withheld records."

Attorney's fees & costs/eligibility: The court finds that the plaintiff has substantially prevailed because after the plaintiff filed suit "DHS released five documents that were not scheduled for release for any other reason, such as an already-existing obligation or commitment to disclose the documents."  "The sequencing of DHS's disclosures as well as the department's change of position as to the propriety of withholding them suggests that this lawsuit was the catalyst for the record release."

Attorney's fees & costs/entitlement: The court also determines that the plaintiff is entitled to attorney's fees.  The court finds that there is a public benefit "arising from the disclosed records," and that the "information 'adds to the fund' of information about body scanners in public places that citizens may use in making 'vital political choices'" about the acceptability of "crowd and pedestrian scanning."  It also notes that "the subject matter contained in the records released as a result of the present action is newsworthy, and the disclosures in this case have added to the body of public knowledge on this issue of public importance."  The court also finds, and DHS does not contest, that there is no commercial benefit to the plaintiff.  Finally, the court concludes that DHS has not demonstrated that its opposition to release was reasonable. The court comments that although DHS argues that it disclosed additional records after the filing of suit, DHS did not provide additional arguments concerning "why the initial withholding had any legal basis."

2.  Wells  v. VA, No. 11-9-BAJ-SCR, 2012 U.S. Dist. LEXIS 131707 (M.D. La. Sept. 14, 2012) (Jackson, J.)

Re:  First party request for records concerning plaintiff's compensation and pension

Holding:  Granting defendant's Rule 12(b)(6) motion to dismiss

Jurisdiction/Exhaustion of Administrative Remedies:  The court dismisses plaintiff's suit because "[p]laintiff has neither alleged nor demonstrated that he has made a request to the VA for reasonably described records; nor that he has appealed a denial of such a request to the VA Office of General Counsel.  It is well established that a claimant must exhaust his administrative remedies prior to requesting judicial relief under FOIA."

3.  Guidetti v. NFN Donahue, No. 6-11-1249-HMH-KFM, 2012 U.S. Dist. LEXIS 130368, (D.S.C. Sept. 13, 2012) (Herlong, J.)

Re:  Plaintiff's motion requesting records under the FOIA from two magistrate judges and a district court judge

Holding:  Denying plaintiff's motion requesting information under the FOIA

• Jurisdiction:  The court denies plaintiff's motion to request information from three judges.  The court notes that "federal courts are not subject to the FOIA."

4.  Monroe-Bey v. FBI, No. 11-1915, 2012 WL 4017729 (D.D.C. Sept. 13, 2012) (Collyer, J.)

Re:  Request for all records concerning "publicized reports of 'discredited FBI laboratory analysts'"

Holding:  Granting defendant's motion for summary judgment

• Fee waiver:  The court holds that the plaintiff fails to qualify for a waiver of fees in connection with his request.  The court evaluates his eligibility in light of the four factors set forth in DOJ's regulations which govern the FBI's fee waiver analysis.  It concludes that the FBI properly asserted that the plaintiff failed to meet the second through fourth requirements of the public interest prong because the requester has pointed to news articles showing that the information is "already in the public domain" and plaintiff  "does not specifically state in his request to the agency or in his submissions to [the] Court how disclosure of the requested records would add anything new to the public's understanding of the operations of the federal government."  The court also comments that the plaintiff cites the need for the public to know about the "operations and activities of the State of Maryland and the U.S. government agency employees responsible for conduct detrimental to equal justice" even though the request "'must concern identifiable operations or activities of the federal government." (emphasis in original).

The court also notes that the plaintiff has "not demonstrated his ability to 'effectively convey' the requested information to the public."  Finally, the court concludes that disclosure is even "less likely to contribute to public understanding" given the plaintiff's "need for the records to prove his innocence – a theme throughout his fee waiver request."

5.  Toensing v. DOJ, No. 11-1215, 2012 WL 4026099 (D.D.C. Sept. 13, 2012) (Howell, J.)

Re: Request for records concerning a criminal investigation in which the plaintiffs were subpoenaed to testify before a grand jury

Holding: Granting defendant's motion for summary judgment in part

• Exhaustion of administrative remedies:  The court finds that plaintiffs have failed to exhaust their administrative remedies and dismisses their claims regarding the propriety of the exemptions invoked by the defendant.  The court holds that "[f]or the administrative exhaustion requirements to serve any meaningful purpose, duplicative requests filed by the same individuals for the same information cannot cure all unexhausted prior requests."  Here, the court holds that "where a FOIA requester fails to exhaust her administrative remedies in connection with an initial request, but then files a subsequent, identical request for which the requester does exhaust her administrative remedies (either constructively or through an administrative appeal), the requester may only obtain judicial review of issues related to the initial, unexhausted request insofar as the agency elected to review those particular issues through an administrative appeal on the merits in connection with the subsequent, identical, exhausted request."  In this instance, OIP did review the adequacy of the searches performed because plaintiffs appealed the search to OIP when they submitted new requests in an attempt to cure the procedural defects in their 2007 and 2008 requests.  However, the plaintiffs "never identified the defendant's [initial] withholding decisions as a basis for their appeals."  As a result, the plaintiff's claims relating to the withholdings made in 2007 and 2008 are dismissed sua sponte by the court.

• Adequacy of search:  The court grants in part defendant's motion for summary judgment with regard to the adequacy of the searches performed.  The court treats the plaintiffs' failure to "challenge the adequacy of the searches performed by the Criminal Division and the FBI" as a concession that those searches were adequate.  With respect to EOUSA's search, the court finds that EOUSA's search for "tapes, recordings, and transcripts of recordings" was adequate.  Although an initial search based only on personal knowledge was insufficient, later searches cured this defect.  EOUSA's 2012 declaration "describes how the search was performed and the fact that [plaintiff's] name was specifically queried." The court finds that a review of a tape log was adequate because the log "was comprehensive, in that it contained 'all recordings, telephonic or otherwise, made during the course of the … investigation."  Additionally, because the log did not contain responsive records, it was logical that no transcripts "are reasonably likely to be located by searching elsewhere."  Finally, "the mere fact that an otherwise adequate search did not uncover such recordings does not automatically render that search inadequate."  EOUSA's search for "documents reflecting an intent to tape" was also adequate.  The court notes that EOUSA's declaration "exhaustively describes how the multi-layer search was performed, who performed it, and what search terms were used, and it also avers that all of the paper and electronic files reasonably likely to include responsive documents were searched." 

• However, the court denies EOUSA's motion in part because it finds that EOUSA's search for records related to the subpoenas was inadequate.  EOUSA did not search six categories of documents because they would be "categorically exempt."  The court notes that "an agency's search obligations are in no way limited by whether certain documents will eventually be classified as exempt from disclosure because an agency is obligated to perform a search 'reasonably calculated to uncover all relevant documents, not just all non-exempt relevant documents.'"  Further, EOUSA did not offer evidence to demonstrate "why these six categories of documents would have been categorically non-responsive."

6.  Wonders v. McHugh, No. 11-cv-1130, 2012 WL 3962750 (D.D.C. Sept. 11, 2012) (Wilkins, J.)

Re:  Request for all documents generated by plaintiff's charges of professional misconduct against an attorney

Holding: Granting defendant's motion for summary judgment

• Exemption 7/Threshold:  The court holds "that the purported records constitute records 'compiled for law enforcement purposes.'"  The court highlights the fact that "any investigation involved here was undertaken in response to 'specifically alleged' act(s) of misrepresentation that could have resulted in civil sanctions by the attorney's state bar association." 

• Exemptions 6 &7C/Glomar:  The court holds that the Army properly asserted Exemption 7C to neither confirm nor deny the existence of records pertaining to the charges against the attorney and any documents or findings regarding the charges.  The court states that the attorney "has a privacy interest in the requested records should they exist," and agrees that "any evidence regarding [Army Professional Responsibility Branch] investigations can lead to rumors, professional prejudice, embarrassment, harassment and can significantly and irreparably damage the reputation of the investigated attorney."  With regard to the public interest, the court notes that the plaintiff has "assert[ed] only a personal interest in the requested information."  With regard to plaintiff's comments that disclosure would be for the "'good of the government and all concerned,'" the court notes that plaintiff has not provided "evidence of misconduct" and "the documents he submitted do not support any alleged misconduct by the agency."  The court finds that because any information that is protected by Exemption 6 would also be protected by Exemption 7C, it need not address Exemption 6 Glomar separately.  The court declines to address the Army's Exemption 5 Glomar.

• Exemption 6:  The court rejects plaintiff's argument that the Army cannot rely on Exemption 6 because the files only pertain to him.  The court notes that the files are the "personnel or similar files of a third party."  Additionally, redaction would not "diminish" any "invasion of privacy….[D]eleting the attorney's name would disclose that she was the subject of an investigation.  As such, deleting the attorney's name, when it is known that she was under investigation, would be pointless."

• In camera review:  The court declines plaintiff's request for in camera review because "ordering an inspection would essentially require that the Army admit or deny whether the requested records exist.  This would be inconsistent with [its] finding that the Army properly invoked the Glomar response.

• Waiver:  The court holds that the Army did not "waive its ability to rely on the Glomar response simply because it acknowledged it had completed its 'review' of [plaintiff's] ethics complaints.  An agency is prohibited from relying on a Glomar response where it has 'officially acknowledged the existence of the record' at issue."  A review of the complaint does not necessarily lead to the creation of any documents.  For example, the court notes that "if a complainant files an ethics charge that is baseless on the face of the document and the complainant fails to submit any supporting documentation, no 'associated documentation' would exist."

7.  Cooper v. DOJ, No. 99-2513, 2012 WL 3939231 (D.D.C. Sept. 11, 2012) (Walton, J.)

Re:  First party request for records concerning plaintiff's arrest and prosecution

Holding:  Granting defendant's renewed motion for summary judgment in part and denying in part; granting plaintiff's "motion for leave and to compel" in part

• Adequacy of Search:  The court holds that USMS has conducted a reasonable search for records responsive to the plaintiff's request.  The court finds that USMS's supplemental declaration explains that USMS "does not, as a matter of practice, search for seized asset information unless the requester asks for it or there is some indication in its records that assets were seized." (emphasis in original)  The court concludes that "even if the initial failure to search for seized asset information was unreasonable, the Marshals Service's supplemental declaration shows that it acted diligently in following 'clear and certain' leads after receiving additional information from [plaintiff] regarding 'a cashier's check [that] was turned over to the [Marshal's Service] for forfeiture proceedings."  USMS "was engaged in an ongoing effort to locate responsive documents, conducting further searches and following reasonable leads whenever it learned of new details concerning [plaintiff's] request."

• Exemptions 2 and 7(C):  The court defers a determination as to the appropriateness of the exemptions applied.  Noting that the defendant is reviewing previous withholdings under Exemption 2 following the Milner decision, and "will file supplemental information regarding Exemption 2 as it becomes available," the court deems it inappropriate to address the exemptions at this time.

• Discovery:  The court denies plaintiff's Motion to File Supplemental Pleading and to Compel Production of Documents to the extent that it seeks discovery "because 'discovery in FOIA is rare and should be denied where,' as here, 'an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains,' and there is no evidence of 'bad faith' on the agency's part."  The court grants plaintiff's motion in part because it did consider the additional arguments presented in the motion to file in addition to the plaintiff's arguments presented in his motion for summary judgment.