WEEK OF SEPTEMBER 17-21

1.  Brennan Ctr. for Justice at New York Univ. Sch. of Law v. DOJ, No. 11-4599, 2012 WL 4094885 (2d Cir. Sept. 19, 2012)

Re:  Request for records containing guidance provided by DOJ's Office of Legal Counsel (OLC) to representatives of the United States Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) relating to the enforcement of the "pledge requirement," which purports to require all organizations that receive funding for HIV/AIDS and anti-trafficking work to have a policy explicitly opposing prostitution and sex trafficking; at issue are three legal memoranda

Holding:  Affirming the district court's grant of summary judgment for the plaintiff with respect to one memorandum and reversing and remanding with respect to the other two memoranda

• Exemption 5/Deliberative Process Privilege/Adoption:  The Second Circuit begins its analysis "by examining the process by which the [document] was created."  Because "[n]o one at the OLC made the decision that the pledge requirement as it pertained to domestic organizations would not be implemented," the memoranda detailing OLC's "advice on the constitutional and legal propriety of the implementation of the pledge requirement" were predecisional and deliberative. 

However, as to the February 2004 memorandum, the Second Circuit concludes "that the OLC's views were adopted by reference by USAID in nonexempt communications, and therefore must be disclosed."  Two public statements referencing the February 2004 memorandum "taken together establish express adoption or incorporation by reference" because these references "demonstrate[] sufficient reliance on both the conclusion and reasoning of the OLC memorandum to remove the protection of the deliberative-process exemption."  The Second Circuit explains, that when an agency "referenc[es] a protected document as authoritative, it cannot then shield the authority upon which it relies from disclosure."

As to the July 2004 memoranda, the Second Circuit concludes "that the district court erred in ordering disclosure of the July memoranda."  "[T]here is no evidence that [the agencies] based [their] change in policy on the draft memoranda."  Neither a general reference to guidance from the Department of Justice, nor "the fact that the agencies acted in conformity with the July memoranda" indicate that the agencies "adopted the reasoning of the July memoranda."  The Second Circuit determines that there is "insufficient evidence that those memoranda were expressly adopted or incorporated by reference…or became the 'working law' of the agency, sufficient to remove the deliberative-process protection."

• Exemption 5/Attorney-Client Privilege:  The Second Circuit notes "[a] party's reliance on an otherwise privileged communication to assert a claim or defense is similar to the type of express adoption or incorporation by reference that vitiates Exemption 5 protection – in either case the party cannot invoke that relied-upon authority and then shield it from public view.  The references to the February 2004 memorandum that served to remove the deliberative-process privilege thus also constitute waiver of the attorney-client privilege."

1.  ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.)

Re:  Results of in camera review in a case involving a request for records describing the operation and maintenance of the National Crime Information Center (NCIC) Violent Gang and Terrorist Organization File (VGTOF)

Holding:  Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary

• Exemption 1:  "Defendant has not shown that the [redacted information] was properly classified, that the terminology used to describe a new handling code or the mention of an attached document constitute intelligence sources or methods, or that disclosure of this information would reveal a protected intelligence source or method."  Additionally, "redacted information relat[ing] to coding options available to an official nominating an individual for inclusion in the NCIC/VGTOF" were not properly classified because the "redacted information does not reveal intelligence collection methods or sources, [or] describe investigative techniques or procedures."  Disclosure of paragraphs discussing "the source of certain intelligence streams and the methods by which those streams are shared" will not be ordered.

• Exemption 5:  The court declines protection for four documents withheld in full "solely on the ground that they are drafts."  "Defendant has failed to show that any portion of these documents, much less their entireties, were prepared to assist an agency decisionmaker in arriving at a decision and reflect a candid discussion of anything more weighty than word choice or grammatical considerations."

• Exemptions 6/7(C):  The court determines that "the redaction of employee/contractor names and their contact information… is appropriate" and that the defendant properly protected "personal (albeit in some cases coded) identifiers and contact information."  However, there does not "appear to be any privacy-related justification for the redaction of agency, center, or other organizational unit names or contact information under Exemptions 6 or 7(C)."  Also, the defendant did not justify "the redaction of telephone conference access information."

• Exemption 7(D):  The court orders the release of information that references a place, but "does not reflect information shared by foreign partners, disclose the existence of a foreign partner relationship, or suggest an express or implied promise of confidentiality."

• Exemption 7(E):  Information that is "not based on geographic area and does not reveal travel patterns or regional data related to law enforcement efforts" cannot be withheld under Exemption 7(E).  The court finds that the defendant properly withheld information that "describes events, behaviors, and objects that should be considered when law enforcement officers are attempting to detect possible terrorist activity."  The disclosure of this compiled information "would make it easier to adjust activities and belongings so that fewer indicators are triggered, thereby frustrating law enforcement efforts."  However, when the information regarding behaviors and objects is "incomplete and very general" and "already known to the public through common sense or other avenues… disclosure cannot reasonably be expected to aid terrorist in their attempts to circumvent the law."  Finally, while the disclosure of information "may…'warn terrorists from this location and/or who fit the described characteristics that they are under investigation,'" if there is "no indication that the redacted information 'discloses techniques and procedures for law enforcement investigations or prosecutions,'" Exemption 7(E) does not apply.

2.  Elec. Frontier Found. v. DOJ, No. 11-939, 2012 WL 4319901 (D.D.C. Sept. 21, 2012) (Leon, J.)

Re:  Request for memorandum prepared by DOJ's Office of Legal Counsel (OLC) interpreting the scope of certain areas of the FBI's authority under federal surveillance law

Holding:  Granting defendant's motion for summary judgment

• Exemption 1:  The court finds that "specific portions of the OLC Opinion that contained highly specific, classified information relating to FBI intelligence sources or methods" were appropriately withheld by DOJ under Exemption 1.  "[T]he Department's submitted declarations are sufficiently specific to satisfy its burden without going so far as to disclose protected information."  The court rejects the plaintiff's argument that there is no "'logical connection' between the withheld information… and the claimed exemption."  The withheld information "reflects classified factual information provided to OLC by the FBI that, if disclosed, could cause damage to national security."  Finally, while the "plaintiff accuses the Department of improperly classifying some of the material to avoid embarrassment or conceal law-breaking," the court notes that "the plaintiff however has no evidence to support its bald allegation of government misconduct."

• Exemption 5/Deliberative Process Privilege:  The court concludes that the OLC Opinion is exempt from disclosure under the deliberative process privilege.  The memorandum in question "'constitutes advice used by decision-makers at the FBI… in the context of their efforts to ensure that any [FBI] information-gathering procedures comply fully with the law.'"  That court notes, "it is not hard to imagine how disclosure of the OLC Opinion would likely interfere with the candor necessary for open discussions on the FBI's preferred course of action."

• Segregability:  The court determines that "although only portions of the OLC Opinion were withheld under Exemption 1, the entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing significant that could be disclosed in a redacted format."

3.  Jurewicz v. USDA, No. 10-1683, 2012 WL 4130515 (D.D.C. Sept. 20, 2012) (Boasberg, J.)

Re:  "Reverse-FOIA" suit brought under the Administrative Procedure Act (APA) alleging that defendant's decision to release information detailing the number of dogs bought and sold each year, as well as, plaintiffs' annual revenue from dog sales, was an arbitrary and capricious exercise of agency authority and not in accordance with Exemptions 4 and 6 of the FOIA

Holding:  Granting defendant's motion for summary judgment

• Exemption 4:  The court concludes that the USDA's "determination that Exemption 4 does not apply here [] was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"  The court explains that "Exemption 4 applies here if Plaintiffs' competitors would be likely to use [the information at issue] to cause Plaintiffs harm."  The USDA "pointed out that similar information was already in the public domain" and "that too many other variables affect each dog's price… to make crude revenue-divided-by-dogs sold calculations useful."  Plaintiffs' claim that "no record evidence shows that the fees paid by dealers are publicly available," was contrary to the facts because "even with the redactions that Plaintiffs seek, the Forms at issue in these very FOIA requests reveal the fee amount paid."  The plaintiffs assert that "'the purpose of the … request for information is to destroy the business[es]'" of the plaintiffs.  However, the court notes that the requesters are not business competitors of the plaintiffs; therefore, the plaintiffs' "comments have nothing to do with substantial competitive harm because they do not allege any injury that would 'flow from the affirmative use of proprietary information by competitors.'"

• Exemption 6:  In discussing the balancing analysis undertaken by the USDA, the court notes that the USDA acknowledged that disclosure of the information in question "could shed light on a dealer's personal finances [and]… disclosure would compromise more than a de minimis privacy interest."  However, the USDA "ultimately concluded that disclosure will give minimal insight into Plaintiffs' personal finances, and that those slight invasions of privacy are not 'clearly unwarranted' in light of the public monitoring of the USDA that disclosure would advance."  The court concludes that the USDA's balancing was not arbitrary, capricious, or an abuse of discretion. 

4.  Seme v. FBI, No. 11-2066, 2012 WL 4336251 (D.D.C. Sept. 20, 2012) (Leon, J.)

Re:  Request for records verifying whether a confidential source worked on behalf of the defendant

Holding:  Granting defendant's motion for summary judgment

• Exemption 7(C)/Glomar:  The court concludes that the FBI's Glomar response was appropriate.  The plaintiff was not able to meet his obligation "to articulate a public interest sufficient to outweigh the [subject's] privacy interest."  While the plaintiff may already know certain information about the subject, the subject "maintains [his privacy] interest even if the requester already knows, or is able to guess, his identity."  Even if a third party's "status as an FBI informant [has] been disclosed in deposition testimony" or that individual "testif[ied] in open court," the third party may "still maintain an interest in his personal privacy."  Finally, the court determines that the plaintiff has not met his "obligation to articulate a public interest sufficient to outweigh the individual's privacy interest" because "[p]laintiff [] puts his personal interest in challenging his criminal conviction above the recognized privacy interest of the subject of his FOIA request."

5.  Venkataram v. OIP, No. 09-6520, 2012 WL 4120438 (D.N.J. Sept. 18, 2012) (Simandle, C.J.)

Re:  Request for records concerning plaintiff's co-defendant, who was dismissed from the indictment; at issue, the search fee imposed by the defendant

Holding:  Denying the plaintiff's motion for waiver of fees

• Fee Waiver:  "Although the records sought in this case clearly relate to government activity, and even assuming that disclosure of such records is likely to contribute to public understanding of government activity, the Court is convinced that disclosure primarily would benefit Plaintiff and not contribute significantly to public understanding of the U.S. Attorney's Office and the process by which it decides not to prosecute subjects of criminal investigations.  Thus, Plaintiff does not satisfy the significant contribution element necessary to qualify for a fee waiver."