WEEK OF SEPTEMBER 24-28
Courts of Appeal1. Thompson v. Dep't of the Navy, No. 11-11782, 2012 WL 4464648 (11th Cir. Sept. 27, 2012) (unpublished disposition)
Re: First party request for records on self
Holding: The court affirms the district's court dismissal of plaintiff's claim for failure to exhaust administrative remedies.
• Exhaustion of administrative remedies: The court holds that the district court properly dismissed plaintiff's claim. "Under the facts alleged in [plaintiff's] complaint, he 'neither actually nor constructively exhausted his administrative remedies.'" The Defendant notified plaintiff of his right to appeal on May 5, 2008. However, the plaintiff did not appeal until April 29, 2009. The defendant responded that it declined to adjudicate plaintiff's appeal because it was untimely. Plaintiff filed a lawsuit "even though he had failed to pursue timely all administrative remedies" and here the court accordingly affirms the district court's dismissal of plaintiff's claim for failure to exhaust his administrative remedies.
District Courts1. Marino v. CIA, No. 11-813, 2012 U.S. Dist. LEXIS 139661 (D.D.C. Sept. 28, 2012) (Collyer, J.)
Re: First party request for records related to an alleged 1996 operation during which plaintiff claims the government implanted electronic tracking devices in him
Holding: Dismissing plaintiff's complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure
• Jurisdiction: The court finds that there is no basis for plaintiff's account of the implantation of devices and dismisses his complaint. The court notes that "'Federal courts are without power to entertain claims otherwise within their jurisdiction if they are 'so attenuated and unsubstantial as to be absolutely devoid of merit''"
2. Skinner v. DOJ, No. 09-0725, 2012 WL 4465788 (D.D.C. Sept. 28, 2012) (Friedman, J.)
Re: First party request for records on self; last remaining issue is the releasability of a screen print-out showing information concerning plaintiff in the Enforcement Communications System (formerly the Treasury Enforcement Communications System (TECS) database
Holding: Granting defendant's second renewed motion for summary judgment
• Exemption 7E: The court holds that "although the computer access codes are not themselves 'guidelines for law enforcement investigations or prosecutions' entitled to categorical protection under Exemption 7E, the declarant adequately demonstrates that release of the codes 'would disclose guidelines for law enforcement investigations or prosecutions[, and that] such disclosure could reasonably be expected to risk circumvention of the law." The court explains that the defendant has "describe[d] the TECS database in detail …[and] explain[ed] the link between disclosure of authorized users' access codes and the many ways individuals could exploit the information to circumvent the law or to corrupt the database itself."
3. Argus Leader Media v. USDA., No. 11-4121, 2012 U.S. Dist. LEXIS 139069 (D.S.D. Sept. 27, 2012) (Schreier, C.J.)
Re: Request for records from retail stores participating in the Supplemental Nutrition Assistance Program (SNAP); at issue, the withholding of redemption data, which is the dollar amount of goods that each retailer sells to SNAP beneficiaries and subsequently redeems from the federal government in a given year, under Exemption 3 and 7 U.S.C. § 2018(c)
Holding: Plaintiff's motion for a Vaughn index is denied; defendant's motion for summary judgment is granted
• Vaughn Index: The court denies plaintiff's request for a Vaughn index as "unnecessary and duplicative in this case." The court explains that the "affidavits submitted [by the defendant]… described redemption data in detail—how it is gathered, used, and why is should remain withheld," finding that "[t]his is not the sort of information where a Vaughn Index would give the requester useful information that would help with the litigation because the information is a number and nothing more."
• Exemption 3: The court determines that the statutory language "is the type of language that, on its face, is indicative of a withholding statute." The court analyzes the language of 7 U.S.C. § 2018(c) and finds that the statute "directs that disclosure of information is prohibited and gives little discretion to the agency as to how the information can be disseminated." The court rejects the plaintiff's argument that the "redemption data is not the type of information that was meant to be withheld under § 2018." "The type of information that is to be withheld under the plain language of the statue is any information." The court concludes by noting that "[a]lthough Congress has not expressly deemed redemption information as essential data to be included under § 2018, the statutory language encompasses this type of income and tax information because redemption data naturally falls under either term's broad umbrella." As a result, "[b]ecause § 2108 is a withholding statute and redemption data is the type of information reached by the plain language of the statute, it was appropriate for USDA to withhold said data under exemption 3."
4. Degenes v. FBI, No. 11-916, 2012 U.S. Dist. Lexis 139307 (W.D. Pa. Sept. 27, 2012) (Conti, J.)
Re: All records regarding plaintiff
Holding: Dismissing the complaint for lack of subject-matter jurisdiction
• Jurisdiction/Exhaustion of Administrative Remedies: The court dismisses the complaint for lack of subject-matter jurisdiction, concluding "[p]laintiff's failure to exhaust the administrative remedies provided by the FOIA precludes this court from exercising jurisdiction in this case." "The FOIA is clearly an instance where Congress has intended to impose an exhaustion requirement not subject to the discretion of the courts."
• Jurisdiction/Improper Withholding: The court concludes that "[t]he search for responsive records through multiple databases using several variations of the plaintiff's name constituted a reasonable search." Because no responsive documents were located, "no documents were improperly withheld, and the judicial remedy is not properly invoked."
5. Prater v. DOJ, No. 11-1873, 2012 U.S. Dist. LEXIS 138818 (D.D.C. Sept. 27, 2012) (Collyer, J.)
Re: First party request for records on self
Holding: Holding that DOJ is entitled to judgment after it re-releases a document plaintiff alleges he did not receive; denying plaintiff's request for costs
• Costs: The court directs DOJ to re-release a copy of a document plaintiff alleges he did not receive, and finds that after that release DOJ will be entitled to summary judgment. With respect to costs, the plaintiff has not made any argument that the release of the records will "likely add to the fund of information that citizens may use in making vital political choices.'" The court notes that "an award of costs is 'usually inappropriate' when, as here, agency records are sought for personal reasons."
6. Hoover v. CIA, No. 6:11-cv-1459-Orl-28DAB, 2012 WL 4458370 (M.D. Fla. Sept. 26, 2012) (Antoon, J.)
Re: First party request for records concerning CIA's alleged surveillance of plaintiff
Holding: Dismissing plaintiff's complaint without prejudice; Granting defendant's motion in part and denying defendant's motion for summary judgment as moot
• Motion to Dismiss: The court holds that plaintiff's complaint rests entirely on "frivolous factual allegations." The court determines that plaintiff relies on baseless allegations that the CIA is working to prevent disclosure of their actions against the nation on September 11, 2001 and other "similarly incredible" and "irrational factual allegations." Accordingly, the court dismisses the complaint filed in forma pauperis under 28 U.S.C. § 1915(e)(2)(b) without prejudice because it determines the action is frivolous.
7. North v. DOJ, No. 08-1439, 2012 WL 4373459 (D.D.C. Sept. 26, 2012) (Kollar-Kotelly, J.)
Re: The only remaining issue is defendant's Glomar response to the request seeking information regarding a purported Drug Enforcement Administration (DEA) informant who testified against plaintiff at his trial
Holding: Denying the defendant's motion for summary judgment and granting plaintiff's motion for summary judgment.
• Waiver of Glomar: The court concludes that the evidence presented by the plaintiff demonstrates a genuine issue of material fact and defendant's motion for summary judgment must be denied. The plaintiff submitted transcripts from the trial which indicate "that the DEA publicly acknowledged [the subject] as a DEA informant during Plaintiff's trial, triggering the 'public domain' exception and barring the DEA from employing a Glomar response."
The court finds that "Plaintiff is entitled to summary judgment to the effect that the DEA has officially acknowledged [the subject] as a DEA informant and therefore the DEA's Glomar response was improper."
8. Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012) (Sullivan, J.)
Re: First party request for records on plaintiff and why he was detained while traveling
Holding: Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment and determining that plaintiff is not entitled to attorney's fees
• Adequacy of Search/Allegations of Bad Faith: As an initial matter, the court rejects plaintiff's argument that the defendants acted in bad faith when processing his request. The court notes that "[n]one of the pleadings filed by plaintiff set forth any factual basis, other than purely speculative claims about the agencies' motives, to suggest that [the United States Transportation Security Administration (TSA)] or DHS acted in bad faith. Accordingly, plaintiff has failed to rebut the presumption of good faith. Moreover, there is nothing about the failure of an agency to produce documents promptly that would require the agency to waive otherwise properly claimed FOIA exemptions." The court notes that defendants "properly rel[ied] on a detailed, nonconclusory declaration that demonstrates the adequacy of the search." The defendants identified offices "most likely to have responsive records" and explained "in considerable detail the processes undertaken to search" and "search terms used."
• Adequacy of Search/Referral: The court also rejects plaintiff's arguments that the search was inadequate because of defendants' failure to search records from the United States Customs and Border Patrol (CBP) and the FBI. The court notes that the plaintiff's request was only directed to TSA. The issue of whether the request should have been referred to CBP, which like TSA is a component of DHS, is moot because defendants referred the request during the course of the litigation. The court notes that the FBI is not a component of DHS, and thus, TSA was under no obligation "to search for FBI records." Finally, the court notes that TSA was not obligated to produce records that post-dated plaintiff's request and that there was "no particular need to produce back to plaintiff documents that plaintiff or his counsel already have." As to plaintiff's references to letters written by CBP officials, the court notes that these are also not proof that the search was inadequate given that the request was made to TSA, not CBP.
• Exemption 3/Waiver: The court holds that information was properly withheld under Exemption 3 pursuant to 49 U.S.C. § 114(r) and its implementing regulations "'prohibiting the disclosure of information obtained or developed in carrying out security … if the Under Secretary decides that disclosing the information would … be detrimental to the security of transportation.'" The court rejects plaintiff's arguments that the defendants waived their right to the exemption because they did not decide that it would apply until after the litigation was filed. Likewise, the court holds that defendants have not waived their right to invoke this exemption because plaintiff alleges that an unnamed CBP employee at an airport told him that he was on a watch list. The court determines "that there is nothing official about" an "alleged disclosure … by an unnamed CBP employee while plaintiff was stopped at an airport."
• Exemption 3/Glomar: The court holds that the TSA properly refused to confirm or deny whether the plaintiff was on a Federal Watch List. "Federal Watch Lists constitute 'Sensitive Security Information' that is exempted from disclosure." The court cites to prior case law establishing that revealing this sort of information "'would enable criminal organizations to circumvent the purpose of the watch lists by determining in advance which of their members may be questioned.'"
• Exemption 6: Plaintiff concedes that Exemption 6 is applicable to withhold the names and contact information for third party federal workers. The court finds that redaction of this information was proper. The court notes that "TSA determined that the information would provide very little insight into the manner in which the TSA performs its statutory duties. TSA also considered the likelihood that disclosure would result in harassment and annoyance of TSA employees in light of their involvement in traveler redress activities."
• Segregability: The court finds that "defendants have redacted only what was necessary to protect the exempt information, and defendants are not withholding any documents in full."
• Attorney's fees: The plaintiff failed to respond to defendants' arguments concerning why he is not entitled to attorney's fees. The court notes that the plaintiff initially proceeded pro se and only obtained counsel for his cross-motion for summary judgment. "That motion advances substantially all of the same arguments made while plaintiff was pro se …. and plaintiff has not prevailed on any of those arguments."
9. White v. DOJ, No. 11-2045, 2012 WL 4458413 (D.D.C. Sept. 26, 2012) (Leon, J.)
Re: First party request for all records on self
Holding: Denying without prejudice defendants' motion to dismiss or for summary judgment
• Adequacy of search/adequacy of affidavit: The court declines to rule on the defendants' exhaustion argument and when addressing the merits holds that defendants have not provided enough information for the court to uphold the adequacy of the search performed or the applicability of the exemptions applied. The court determines that the declaration is too "conclusory" and likewise finds "no basis to rule on the propriety of the asserted exemptions."
10. ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.)
Re: Request for information concerning "unauthorized interrogation techniques" from reports relating to the "detention, interrogation or treatment of individuals apprehended after September 11, 2001, and held at detention facilities outside the United States"
Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review
• Exemption 3: The court concludes that the CIA properly withheld all eleven documents under Exemption 3 pursuant to the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. The court notes that "information about interrogation techniques pertains to 'intelligence methods or sources'" and thus falls within the ambit of both statutes. Although the CIA argues, and the plaintiff disputes, that the CIA has never confirmed or denied whether its methods were authorized, the court does not resolve this issue because information concerning unauthorized techniques may also be withheld. The court notes that "there is nothing in statute or case law that requires courts to treat information about unauthorized interrogation techniques differently from information about authorized techniques."
• Exemption 1: The court holds that the CIA properly withheld all eleven documents under Exemption 1. The court notes that the "'intelligence sources or methods' language under Exemptions 1 and 3" is analyzed in the same way. Since the court has already determined that the information concerns an 'intelligence source or method' under Exemption 3, the information also meets this prong under an Exemption 1 analysis. As to "whether disclosure of the information could reasonably be expected to result in damage to the national security," the court defers to the CIA's affidavits predicting harm. The court determines that the CIA's justifications are "plausible and logical." The court holds that is not "unreasonable for the government to believe that disclosure of information about [the use of certain interrogation techniques] would reveal details about interrogation methods that could assist foreign terrorist organizations and foreign governments, and thereby damage national security." The court rejects the argument that the information should be released because the information could not cause "any new damage to the national security" given what has already been placed into the public domain. The court accepts the CIA's assertion" that the withheld documents contain detailed information that is not in the public domain." The court also acknowledges that even if the information may seem "innocuous given what is already publicly available, '[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because much like a piece of a jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.'"
• Public Domain/Waiver: However, the court holds that the CIA must disclose any information "that has already been officially acknowledged by the government." Based upon explanations offered by the CIA and its own in camera review, the court determines that for documents 1-2 and 4-11, the information is not the same as what has been previously disclosed. However, the court remands with respect to document 3 so that the CIA can "review the document more closely and release any information that matches information previously disclosed."
• Exemption 5/Deliberative Process Privilege: The court finds that information was properly withheld under the deliberative process privilege. The information withheld was predecisional. "Each of the documents reports on the findings of some investigation or analysis, and contains evaluations, opinions, and recommendations from one set of CIA officers to another." The documents "were part of an intra-agency evaluation process … and were used to determine whether or not the agency should take some administrative action.
• Segregability: With regard to segregability, the court concludes that it need not determine whether certain "limited purely factual portions" should be segregated because it has already found that the information was properly withheld under Exemptions 1 and 3. In addition, the court's own analysis of whether portions of documents had already been officially acknowledged led it to the conclusion that "only document number 3 requires a more detailed review by the agency.-"
11. Ameren Mo. v. EPA, No. 4:11CV02051AGF, 2012 WL 4372518 (E.D. Mo. Sept. 25, 2012) (Fleissig, J.)
Re: Request for records concerning Notices of Violation issued to plaintiff for failure to obtain permits under the Clean Air Act
Holding: Granting defendant's motion for summary judgment and denying plaintiff's request for attorney fees
• Exemption 5/attorney-client privilege: The court finds that EPA has established that "preliminary, 'screening level' emissions analyses" are covered by the attorney-client privilege. It notes that these analyses were "prepared by EPA staff with the assistance of counsel to determine whether Plaintiff should have expected emissions to increase as a result of undertaking one or more projects at each emissions-producing unit." Additionally, the court notes that "apart from consultation with DOJ counsel representing [the] Defendant, the Withheld Documents" were not "disclosed to anyone outside of the EPA."
• Exemption 5/attorney work-product privilege: The court also finds that information was properly withheld pursuant to the attorney work-product privilege. "The Redacted and Withheld Documents constitute internal analyses of emissions data carried out by EPA scientists and engineers acting under the supervision of, or in consultation with, EPA and DOJ attorneys, and were compiled in reasonable anticipation of litigation and possible enforcement actions." The court rejects plaintiff's argument that the records are "purely factual" because they "involve data and calculations or are spreadsheets." Noting that the assessments "derive from raw data (that has been disclosed to plaintiff) selected and analyzed pursuant to its own formulas by Defendant's technical staff, scientists, and engineers, working in conjunction with or at the direction of attorneys," the court finds that the numeric information qualifies as work product because it "constitutes 'mental impressions, conclusions, opinions or legal theories.'" Segregability: The court finds that the defendant has disclosed all reasonably segregable information. With respect to the redacted documents, the court finds that the defendant "provided specific, detailed designations indicating the types of information redacted." With regard to documents withheld in full, the defendant's sworn statement shows that the "'factual information … was determined to be inextricably intertwined with privileged information and …could not be reasonably segregated."
• Exemption 7 threshold: The court determines that the defendant also properly withheld records pursuant to Exemption 7A. The court notes that the information "compiled as part of Defendant's investigation of Plaintiff's possible violations of the CAA [Clean Air Act]" was "compiled for law enforcement purposes."
• Exemption 7A: The court finds that release of this information would cause harm by giving "advance disclosure of [the government's] enforcement and litigation strategies." With respect to plaintiff's argument that it is entitled to this information because it was the target of the investigation and must defend itself, the court notes that "the FOIA is not intended as a substitute for civil discovery and the Court's determination here in no way affects Plaintiff's ability to employ civil discovery tools in any proceeding against it."
• In camera review: The court denies plaintiff's request for in camera review. "In camera review is not required where the Court is satisfied that the agency has adequately supported their exemption claims."
• Vaughn index: The court also denies plaintiff's request that the defendants be required to provide a Vaughn index. "[U]nder Eighth Circuit law, no Vaughn index may be required where Exemption 7, the law enforcement exemption, forms a basis for withholding."
• Attorney fees: The court denies plaintiff's request for attorney's fees. The court holds that in the absence of a favorable judgment, the plaintiff must show that that "'(1) the prosecution of the action could reasonably be regarded as necessary to obtain the information and (2) that the existence of the lawsuit had a causative effect on the release of the information.'" The "plaintiff cannot demonstrate either of these elements" and the court finds that the exemptions were properly applied. Accordingly, the court determines that an award of attorney's fees was not appropriate.
12. Elec. Frontier Found. v. DOD, No. C 09-05460 SI, 2012 WL 4364532 (N.D. Cal. Sept. 24, 2012) (Illston, J.)
Re: Request for records concerning "agency guidelines, manuals, and procedures regarding agency use of social-networking sites in their investigations and to gather data"
Holding: Granting in part and denying in part defendants' motion for summary judgment; denying plantiff's motion for summary judgment
• Exemption 7E: The court holds that Immigration and Customs Enforcement (ICE) and United States Secret Service (USSS) properly withheld information pursuant to Exemption 7E. The court finds that plaintiff has not demonstrated that "ICE's position – that detailed technical analyses of [ICE's] use of the internet have not been disclosed – is incorrect or otherwise without support." Likewise, plaintiff has not shown "how the publicly-known fact that ICE uses social networking sites for its gang investigations by itself means that the detailed instructions and guidance the agency internally uses for those activities are either well-known or can be fully anticipated by the public." USSS has similarly explained why "a list of search terms used to detect threats against Secret Service protectees" must be withheld because they are part of "techniques and methodologies used by the Secret Service that are not generally known and could circumvent their law enforcement functions."
The court decides that the FBI properly withheld documents that explain "guidelines for use of investigative techniques," "standards for requesting user information from online services" and "guidelines for use of online services in investigations," because they go to the "heart of how and when the FBI is using social networking sites for investigations, and, as such, the risk of circumvention from disclosure is readily apparent." However, the court directs the FBI to supplement its declaration "to provide adequate justifications for withholding information regarding 'techniques and procedures,' information regarding the agency's 'potential online focus,' unit titles and the FBI divisions and location of field offices and task forces."
• Exemption 5/Attorney-client privilege: The court holds that ICE properly withheld an "email between ICE attorneys and ICE special agents concerning subpoena procedures for Facebook information" pursuant to the attorney-client privilege under Exemption 5. The court finds that "[t]he fact that the email at issue concerned 'procedures' does not undercut the government's position that what was occurring were discussions between attorneys and their clients of whether those procedures could be applied to a new and different context." With respect to the FBI's withholdings pursuant to the attorney-client privilege, the court notes that the FBI has properly withheld information under Exemption 5. "[T]he FBI has redacted information from email conversations from or to counsel, and withheld attached documents, regarding 'discussions' and questions as [to] whether certain policies 'apply' to new situations, 'impressions,' 'corrections' and 'changes' prior to guidance, 'tentative' guidance, seeking input regarding 'future' issues, and otherwise seeking legal advice that is not a 'neutral application of established policies."
• Exemption 5/Deliberative process privilege: The court holds that USSS properly withheld a memorandum concerning a system purchased to help detect threats. The court finds that the memorandum is "an analysis providing 'opinions and recommendations' regarding funding and functionality of a system" and thus properly withheld as "predecisional and deliberative."
• Adequacy of Search: The court holds that the number of documents produced by ICE "does not mean ICE's search was inadequate." The court finds that the plaintiff has not shown "why the limited search conducted by [ICE's Office of Enforcement and Removal Operations] – limited to only to [its Law Enforcement Service Center] and then limited by the use of only two search terms because employees were prevented from accessing social networks for all purposes – was unreasonable." However, the court decides that ICE does need to address in a supplemental declaration whether it was reasonable for employees to search "only their own computer files, whether there are other unit or agency-wide record systems that exist that might contain responsive documents, and whether these systems were searched or not searched because it was determined that they were unlikely to contain responsive records."
13. Mantilla v. U.S. Dep't of State, No. 12-21109-CIV, 2012 WL 4372238 (S.D. Fla. Sept. 24, 2012) (O'Sullivan, Magistrate J.)
Re: First party request for records on self
Holding: Denying defendants' motion for summary judgment
Exemption 3: The court holds that "Section 222(f) of the [Immigration and Nationality Act (INA)] does not apply to visa revocations." Instead, the INA applies to the "issuance or refusal of visas." Accordingly, the court denies the defendants' motion for summary judgment with regard to Exemption 3 based upon the INA.
14. Havemann v. Astrue, No. ELH-10-1498, 2012 WL 4378143 (D. Md. Sept. 24, 2012) (Hollander, J.)
Re: Request for detailed data from two Social Security Administration databases, the Supplemental Security Record ("SSR") and the Master Beneficiary Record ("MBR") concerning individual benefits decisions for social security benefits recipients
Holding: Granting defendant's motion for summary judgment
• Exemption 6: The court determines that individuals have a significant privacy interest in their social security records and that this interest is not outweighed by the public interest in determining how well SSA is performing its statutory mandates. As an initial matter, the court determines that the social security records qualify as 'similar' files. The court identifies "two core privacy interests" at stake in this request. First, "there is a significant privacy interest in the control of private information maintained in SSA's databases." As the court notes, recipients must provide "personal identifying information, and data on income, family status, and medical records" and "names, addresses, and other identifying information." Second, "substantial privacy interests are implicated by the disclosure of information that has the potential to invade an individual's privacy or harm the individual through commercial or criminal use." The court notes that as released by SSA, the information has been "de-identified," and that "the record reflects that nondisclosure was a carefully considered decision by SSA based on the way that each field of data interacts with the information already released to [plaintiff] as well as publicly available information." The court highlights the fact that "an individual's privacy interest does not diminish merely because several steps are needed to connect private information to the individual's identity." It accepts the SSA's detailed "explanations of how each piece of withheld data could be manipulated to attribute private financial information – such as benefit status and amounts – to particular individuals."
In terms of the public interest, the court determines that plaintiff "has more than adequate data to ascertain whether SSA is overpaying or underpaying benefits, whether certain categories of beneficiaries have been 'left behind,' and whether SSA appears to be cooperating with the VA." Plaintiff also has not explained why the information he was provided "does not fully satisfy the goals envisioned by FOIA." The court further comments, that "the question is whether the information reflects the agency's conduct, not whether it could lead to a public benefit." (emphasis in original). The court finds that the information that plaintiff seeks might be "enlightening for the casual reader or policy analyst to see how different communities are affected by social security benefits" but the articulated interest is not within the "'ambit of the public interest the FOIA was intended to serve'" given there is no indication that SSA treats beneficiaries differently based on their zip code or county of residence," and plaintiff does not argue otherwise.
