The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of January through June 2000. OIP is preparing additional compilations of decisions received during previous months and years.
AFGE v. HHS, No. 99-2208, 2000 U.S. App. LEXIS 10993 (1st Cir. May 18, 2000) (per curiam) (affirms district court ruling that 6 documents pertaining to an air quality issue are predecisional and within the deliberative process privilege).
Dev. Co. v. CIA, No. 99-10327 (5th Cir. Jan. 28, 2000) (per curiam)
(unpublished memorandum), 208 F.3d 1007 (5th Cir. 2000) (table cite)
(Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C.
Arriaga v. West, No. 00-1171, 2000 WL 870867 (Vet. App. June 21, 2000) (jurisdiction: the Court of Appeals for Veteran Claims does not have jurisdiction over FOIA matters).
Campaign for Family Farms v. Glickman, 200 F.3d 1180 (8th Cir. 2000) ("reverse" FOIA/Exemption 6: affirms district court order prohibiting disclosure of names, addresses, and telephone numbers of 19,000 hog farmers who signed a petition concerning whether USDA should take a vote of all hog farmers on a controversial issue; exercising its discretion to reach the merits of USDA's determination on appeal, finds that the substantial privacy interest in a secret ballot overrides the "slender" public interest in the oversight of the petition-verification process; disclosure of each petitioner's position on the referendum would "vitiate the petitioners' privacy interest in a secret ballot"; privacy interest was not waived just because a small number of like-minded petitioners may have seen other names on the petition; individuals who signed the petition in a business or entrepreneurial capacity have a substantial privacy interest) (preliminary injunction: remands to the district court for entry of a preliminary injunction prohibiting the release of this information).
Green v. DEA, No. 99-5356, 2000 WL 271988 (D.C. Cir. Feb. 17, 2000) (summary affirmance granted with respect to information withheld by the agency under Exemptions 2, 7(C), 7(D), and 7(F); summary affirmance is denied in part and case remanded because the district court failed to make a finding as to segregability).
Hill v. USDA, No. 99-5365, 2000 WL 520774 (D.C. Cir. Mar. 7, 2000) (summary affirmance granted to the government in this FOIA action where the district court ruled that Exemption 6 protected information concerning Farmers Home Administration loans; appellant offered no specific reasons why discovery was necessary for him to respond to the motion for summary judgment).
Juda v. United States Customs Serv., No. 99-5333, 2000 U.S. App. LEXIS 17985 (D.C. Cir. June 19, 2000) (summarily reverses the district court's grant of summary judgment to the defendant; defendant has not conducted an adequate search in response to plaintiff's FOIA request, has submitted an insufficient Vaughn affidavit, and has not shown that all reasonably segregable information has been released to the plaintiff; case remanded to the district court for further proceedings).
Lynch v. Dep't of the Treasury, No. 98-56368, 2000 WL 123236 (9th Cir. Jan. 28, 2000) (unpublished memorandum), 210 F.3d 384 (9th Cir. 2000) (table cite) (adequacy of agency affidavit: ATF's declarations are sufficiently detailed and gave the district court an adequate factual basis on which to make its decision) (Exemption 7 (threshold): threshold requirement met; while the ATF may have closed its investigation into a fire in Salt Lake City, the inter-agency task force (of which ATF is a member) investigation is ongoing) (Exemption 7(A): because the inter-agency task force investigation is still ongoing, some legal action is "in prospect"; the release of witness statements, reports of investigation, cause and origin reports, photographs, and surveillance-authorization records could reasonably be expected to harm the investigation; the identity of the requester has no bearing on a FOIA case).
Neely v. FBI, 208 F.3d 461 (4th Cir. 2000) (Exemption 7(C): public knowledge or availability does not preclude the application of this exemption; protects names of FBI agents and other government employees, subjects of investigative interest, and informants because the negligible public interest does not outweigh the substantial privacy interests in the withheld information) (Exemption 7(D): district court erred to the extent that it denied the protection of this exemption to sources whose identities have previously been disclosed; on remand, the district court must make findings of express or implied promises of confidentiality).
Nowak v. IRS, No. 98-56656, 2000 WL 60067 (9th Cir. Jan. 18, 2000) (unpublished memorandum), 210 F.3d 384 (9th Cir. 2000) (table cite) (Exemption 7(E): district court properly ruled that IRS's affidavit demonstrates that disclosure of withheld information would significantly hamper its tax collection and law enforcement efforts) (waiver: plaintiff has not demonstrated that the document he requested under the FOIA has been previously disclosed by the agency) (in camera inspection: in camera inspection was not necessary in this FOIA case because the agency's affidavit was sufficiently detailed).
Pray v. DEA, No. 99-5328 (D.C. Cir. Feb. 9, 2000) (grants government's motion for summary affirmance in this FOIA case where the district court ruled that all reasonably segregable material).
Rzeslawski v. Dep't of Justice, No. 00-5029 (D.C. Cir. Apr. 11, 2000) (appeal dismissed; district court's denial of plaintiff's motion for discovery is not immediately appealable on an interlocutory basis, but may be challenged upon entry of final judgment).
Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000) (subsection (a)(1)(D): plaintiff has failed to show that he was "adversely affected by" the VA's failure to publish the full text a precedential opinion of its general counsel in the Federal Register).
Tax Analysts v.
IRS, 214 F.3d 179 (D.C. Cir. 2000) (Exemption 3 [26 U.S.C.
Allnutt v. Dep't
of Justice, No. Y98-1722, 2000 U.S. Dist. LEXIS 4060 (D. Md. Mar. 6, 2000)
(magistrate's recommendation) (fees: after providing plaintiff with the first
49 documents with a request for reimbursement of $16.40, the agency improperly
required plaintiff to make an "advance payment" for copying charges in the amount
of $64.60 for 100 documents; requester need only agree to pay the anticipated
cost; plaintiff has neither refused to pay the anticipated cost nor failed to
pay a previous FOIA fee) (fee waiver (Reform Act): plaintiff's conclusory statements
do not demonstrate that he is entitled to a fee waiver for documents pertaining
to his bankruptcy case) (Exemption 5: without further specifying, finds that
the agency properly withheld 14 documents, in whole or in part, under the deliberative
process and attorney work-product privileges) (Exemption 7 (threshold): requirement
not met by documents compiled in connection with a bankruptcy proceeding; requirement
is met by an audit of an individual's income tax liability) (duty to search:
agency conducted a reasonable search in response to plaintiff's FOIA request;
agency need not conduct research, answer questions, or create records in response
to a FOIA request) (exhaustion: when IRS failed to respond to 2 of plaintiff's
3 FOIA requests, plaintiff's administrative remedies with respect to those 2
requests were "effectively exhausted"; plaintiff had exhausted his administrative
remedies with respect to Department of Justice's Executive Office of U.S. Trustees
because the component's response letters did not contain the information required
by the FOIA statute) (Exemption 3 [26 U.S.C.
Allnutt v. Dep't of Justice, 99 F. Supp. 2d 673 (D. Md. 2000) (duty to search: adopts magistrate's finding that the IRS conducted a reasonable search in response to plaintiff's FOIA request; Department of Justice's U.S. Trustee conducted a reasonable search with respect to plaintiff's January 1998 FOIA request) (res judicata: accepts the conclusion of the District Court of the District of Columbia that the U.S. Trustee's search was adequate in response to plaintiff's September 1997 FOIA request) ("not an agency record" defense: records in the possession of the private trustee, who is an agent of the United States Trustee, are not under the control or possession of the United States Trustee and are not "agency records" for purposes of the FOIA) (Exemption 7 (threshold): orders in camera inspection of one document compiled in connection with civil bankruptcy litigation for which the Justice Department has not demonstrated that the threshold requirement has been met).
Allnutt v. IRS, No. 97-1555, 2000 U.S. Dist. LEXIS 3973 (D.D.C. Feb. 29, 2000) ("reasonably segregable": defendant's supplemental affidavit demonstrates that all reasonably segregable portions of over 2000 pages of records have been released; agency properly withheld information under Exemptions 3 (Rule 6(e)), 5, and 7(C).
Aquino v. DEA, No. 99-1031 (D.D.C. June 8, 2000) (dismissal for failure to prosecute: because plaintiff has failed to prosecute and because defendant's motions are well taken, grants the defendant's motion for summary judgment; agency properly withheld information under Exemptions 2 (internal material), 3 (Rule 6(e) and wiretap information), 7(C) (unwarranted invasion of personal privacy), 7(D) (identities of and information provided by confidential sources), 7(E) (law enforcement techniques), and 7(F) (identities of prisoners who are to be kept separate from plaintiff); all reasonably segregable information has been released) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to information requested from the Executive Office of United States Attorneys because he has not paid $347.90 in search and copying fees).
Beneville v. Dep't of Justice, No. 98-6137 (D. Or. Feb. 4, 2000) (grants FBI's motion for a protective order prohibiting further discovery, except that plaintiff shall receive from the FBI the complete copy of its administrative records for plaintiff's FOIA request and FOIA appeal within 20 days).
Camp v. Reno, No. 99-2213 (D.D.C. June 1, 2000) (because of plaintiff's failure to prosecute, dismisses all his FOIA claims against the Department of the Treasury and the Justice Department, with the exception of FBI's headquarters and Atlanta field office).
Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 93 F. Supp. 2d 1 (D.D.C. 2000) (adequacy of agency affidavits: in this Exemption 4 case where plaintiff seeks information concerning automobile air bags, denies plaintiff's motion to strike the declarations submitted by manufacturers, the suppliers, and the agency, finding that the declarants had the requisite personal knowledge) (Exemption 4: 10 of the 28 items regarding the physical and performance characteristics of air bags that the agency seeks to protect are "trade secrets," even though the manufacturers have "publicly disclosed" the air bags by putting the automobiles on the market and the air bags may be dismantled to learn this information; the remaining items are protected under this exemption because they are commercially valuable confidential information voluntarily provided by a person; information that is old or that consists of only test results has commercial value because disclosure would provide insight into the manufacturer's "design concept and philosophy" and would give competitors information about how air bag systems are performing; finds that the information was provided to the agency "voluntarily" because the information was intended to assist the agency in developing a substantive policy position and because the agency violated the Paperwork Reduction Act when it failed to get clearance from OMB for its Information Request and, therefore, the manufacturers did not have to respond to it; this information is not "customarily" disclosed by the manufacturer; manufacturers make a limited, minimal disclosure to the general public or a discrete disclosure accompanied by a confidentiality agreement, but the detailed, comprehensive compilations at issue here are not in the public domain).
Citizens Against UFO Secrecy, Inc. v. DOD, No. 99-0108, 2000 U.S. Dist. LEXIS 22450 (D. Ariz. Mar. 30, 2000) (duty to search: even though no records were found, defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).
Claudio v. Soc. Sec. Admin., No. H-98-1911 (S.D. Tex. May 24, 2000) (Exemption 5: in this case where plaintiff seeks records concerning an Administrative Law Judge who denied plaintiff's claim for disability benefits, finds that the deliberative process privilege protects predecisional compilations of facts that are "inextricably intertwined" with evaluations and recommendations because disclosure would reveal the decisionmaking process) (Exemption 6: protects entire records because the documents pertain to one individual and even redaction would allow the plaintiff to infer information that is privileged) (Exemption 7(C): agency properly refused to confirm or deny the existence of investigative records on a single individual because to do so would be an "unwarranted invasion of personal privacy") (attorney fees: plaintiff has substantially prevailed because this suit was necessary to receive the information he requested under the FOIA and the suit had a causative effect on the receipt of the information; the subject's privacy interests here were found to outweigh the public interest in disclosure; plaintiff brought this suit because he seeks a favorable determination on his application for Social Security benefits; government had a reasonable basis in law for withholding some of these records; government's action in not delivering the majority of the documents until after suit was filed and in failing to provide a Vaughn Index until ordered to do so by the court, makes the court inclined to exercise its discretion and award attorney fees in this case; grants attorney fees in the amount of $14,712.50).
Coalition on Political Assassinations v. DOD, No. 99-0594 (D.D.C. Mar. 29, 2000) (duty to search: defendant's affidavit demonstrates that it has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request; while "it is true that defendant may have once possessed records responsive to plaintiff's request, plaintiff has put forth no evidence demonstrating that such records remain in defendant's possession").
Cooper v. FBI, No. 99-2305 (D.D.C. June 28, 2000) (duty to search: "in light of the Act's purpose of affording the public access to government records and the current policy encouraging discretionary disclosures," the FBI "is encouraged to clarify the geographic scope of its searches conducted in response to a request sent to FBI's headquarters") ("exceptional circumstances"/"due diligence": given the FBI's "well documented" backlog and the recent progress it has made in reducing that backlog, grants FBI an Open America stay until October 1, 2000; FBI intends to work with plaintiff to narrow the scope of his request to limit the 11,000 pages of potentially responsive records, so that plaintiff's request can be placed in a faster queue).
Crews v. Internal Revenue, No. 99-8388, 2000 U.S. Dist. LEXIS 21077 (C.D. Cal. Apr. 26, 2000) (mootness: FOIA action is moot because agency, after a reasonable search, produced the documents requested by plaintiff, except when the document had been provided to plaintiff in response to a previous FOIA request) (interaction of (a)(2) & (a)(3): statements of policy and administrative staff manuals that are publicly available under (a)(2)(B) and (C), either in the agency's paper reading room or on its Web site, are not subject to disclosure through FOIA requests) (attorney fees: pro se plaintiff is not eligible for attorney fees under the FOIA; plaintiff is not entitled to costs because costs were not incurred before this action became moot) (sanctions: court reminds plaintiff of a local rule that provides for sanctions against individuals who file frivolous claims).
Curry v. IRS, No. 98-336 (E.D. Wash. Jan. 7, 2000) (mootness: FOIA case was mooted when IRS produced all documents requested; IRS's denial of plaintiff's administrative petition to correct tax records is not at issue in this action).
Davric Me. Corp. v. United States Postal Serv., No. 99-380, 2000 U.S. Dist. LEXIS 2854 (D. Me. Mar. 3, 2000) (magistrate's recommendation) (recommends that the defendant's motion to dismiss as moot be denied; in this case where agency responded to plaintiff's FOIA request after this lawsuit had been filed, finds that defendant's failure to timely respond to plaintiff's FOIA request serves as a constructive exhaustion of plaintiff's administrative remedies; plaintiff should not be "forced to undergo administrative appeals procedures" with defendant's "flouting of the statutory requirements").
D.C. Technical Assistance Org., Inc. v. HUD, 85 F. Supp. 2d 46 (D.D.C. 2000) (fee waiver (Reform Act): "technology has made it possible for almost anyone" to demonstrate the ability to disseminate information; plaintiff has not demonstrated that the disclosure of the requested information would contribute significantly to the public's understanding of government activities).
Eison v. Dep't of Justice, No. 98-6277 (S.D.N.Y. June 1, 2000) (on in camera inspection, and without further specification, finds that the representative sampling of documents demonstrates that the FBI properly withheld information in response to plaintiff's FOIA request; court "cannot allow the plaintiff's personal interest to enter into the weighing or balancing process").
Emerson v. CIA,
No. 99-0274 (D.D.C. May 8, 2000) (Exemption 1 [E.O. 12,958]: CIA properly refused
to confirm or deny intelligence interest in a specific individual because this
interest represents an intelligence activity, source, or method and disclosure
could reasonably be expected to harm national security) (Exemption 3 [50 U.S.C.
Fisher v. FBI, 94 F. Supp. 2d 213 (D. Conn. 2000) (no "improper withholding": FBI's affidavits demonstrate that its delay in responding to plaintiff's FOIA request was caused by the FBI's substantial FOIA backlog, which it is handling in a reasonable manner) (duty to search: FBI conducted a reasonable search in response to plaintiff's FOIA request) (jurisdiction: court lacks jurisdiction because FBI has not improperly withheld requested records) (mootness: FOIA case is moot because requested records have been provided to the plaintiff).
Forest Guardians v. United States Forest Serv., No. 99-615 (D.N.M. Mar. 29, 2000) (discovery in FOIA litigation: FOIA does not allow submitter-intervenor to seek information through discovery from the plaintiff requiring plaintiff to account for its activities and further dissemination with respect to information released to it under the FOIA) ("reverse" FOIA: plaintiff cannot be held to task for making a FOIA request that the agency may have handled inappropriately; intervenors have sufficient information to address the FOIA issues in this case concerning submitted information that was withheld), on reconsideration (D.N.M. Apr. 3, 2000) (orders parties to submit legal memoranda addressing the issue of jurisdiction and lack of an administrative record).
Galpine v. FBI, No. 99-1032 (E.D.N.Y. Apr. 28, 2000) (duty to search: the FBI conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 2 "low" and "high": protects an internal FBI fax number, a file number for a confidential informant, and an informant symbol number) (Exemption 7 (threshold): requirement met by records compiled by the FBI in the course of its criminal investigation of plaintiff) (Exemption 7(C): protects the identities of FBI Special Agents, local law enforcement personnel, subjects of investigative interest, third parties, probation officers, and other federal employees, even though they may have testified at plaintiff's trial) (Exemption 7(D): protects the identities of and information provided by sources who were given express promises of confidentiality by the FBI) (Exemption 7(E): protects information on FBI's FD-515 Form that would reveal the use and effectiveness ratings of various investigative techniques) (Exemption 7(F): FBI's affidavit does not articulate the factual basis for invoking this exemption to protect the identity of a cooperating witness, but court has ruled that this information is protected under Exemptions 2 and 7(D)).
Gilmore v. Dep't of State, No. C 95-1098 (N.D. Cal. June 15, 2000) (after in camera review of documents selected for review by the plaintiff, grants government's motion for summary judgment in this FOIA case).
Grecco v. Dep't of Justice, No. 97-0419 (D.D.C. Mar. 31, 2000) (Exemption 7(A): agency's affidavit demonstrates that disclosure of categories of documents would have interfered with law enforcement proceedings that were pending against the plaintiff at the time the agency made its initial determination) (Exemption 5: the attorney work-product and deliberative process privileges protect documents prepared by the government because disclosure would reveal the government's thought processes and evaluations of its case against plaintiff) (Exemption 7(C): protects the identities of third parties and special agents, government employees, and local law enforcement personnel involved in the investigation and prosecution of plaintiff; plaintiff has not even alleged a public interest in disclosure) (in camera inspection: in camera inspection is not necessary because the exemptions were properly applied).
Hambarian v. Comm'r, No. 99-9000, 2000 U.S. Dist. LEXIS 6317 (C.D. Cal. Feb. 16, 2000) (Exemption 5: the attorney work-product privilege protects documents prepared by an IRS attorney in preparation for litigation against the plaintiff which contain the attorney's analyses and conclusions regarding the evidence obtained during the IRS's investigation of plaintiff's tax liability) (Exemption 7(A): disclosure of these documents would interfere with the IRS's ongoing tax case against plaintiff) (Exemption 7(C): protects the identities of IRS employees who took part in the investigation of plaintiff).
Heggestad v. Dep't of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) (Exemption 3 [Rule 6(e)]: release of prosecution recommendations which refer to or summarize testimony of grand jury witnesses or evidence to the grand jury would reveal the scope and direction of the grand jury's investigation and would identify and describe specific evidence considered by the grand jury) (Exemption 5: the attorney work-product and deliberative process privileges protect portions of 5 documents and all of 2 documents created by the Justice Department that pertain to the prosecution of the Reverend Sun Myung Moon; the ultimate decision for making a final decision on whether to prosecute was vested in the Assistant Attorney General of the Tax Division because of the initial conflict within the Justice Department and because it was a high-profile case; documents reflect the give-and-take of agency decisionmaking up the line of authority and were prepared by attorneys to aid in the determination whether to authorize prosecution; attorney work-product privilege also protects recommendations against prosecution; these privileges protect a letter from the Justice Department to Senator Orrin Hatch that was written after the litigation was concluded; neither privilege was waived when the letter was disclosed to a third-party Member of Congress) (Exemption 7(C): protects the identities of grand jury witnesses because their privacy interests "clearly" outweigh the public interest in disclosure).
Hightower v. FBI, No. 98-2817 (D.D.C. Mar. 20, 2000) (Exemption 7(C): protects the identities of FBI agents and employees, local law enforcement personnel, and third parties) (duty to search: defendant has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request) (attorney fees: denies costs to plaintiff because he has not "substantially prevailed").
Hoffman v. Dep't of Justice, No. 98-1733 (W.D. Okla. June 21, 2000) (no "improper withholding": defers ruling on defendant's motion for summary judgment; defendant will be entitled to judgment that documents concerning the bombing of the Murrah Federal Building have not been improperly withheld if, by July 30, it demonstrates that: the trial judge's injunction against disclosure is still in effect, that the trial exhibits were filed under seal and remain under seal, and that the videotapes are the only documents responsive to plaintiff's FOIA request that were introduced at trial).
Jefferson v. O'Brien, No. 96-1365 (D.D.C. Feb. 22, 2000) (duty to search: the FBI conducted a reasonable search for records in response to plaintiff's FOIA request) (Vaughn Index: FBI's selection of 100 pages (or 4% of the total) as a representative sampling was sufficient) (Exemption 2 "high": protects undercover activities and permanent symbol and file numbers assigned to confidential sources because disclosure would "significantly risk circumvention of the law") (Exemption 6: protects third-party rap sheets) (Exemption 7(C): protects the identities of law enforcement officers, subjects of investigative interest, informants, state government employees, and third parties contained in criminal investigative files; protection is not waived because some of these individuals were witnesses or co-defendants at plaintiff's trial or because plaintiff can guess their identities) (Exemption 7(D): when individuals testify at trial, this exemption continues to protect all references to these individuals in the FBI's files) (Exemption 7(E): protects evaluations of law enforcement techniques contained in FBI's Form FD-515 because these techniques are not generally known to the public) ("reasonably segregable": in its representative sampling, the FBI did not include any records from the 373 pages withheld in their entireties; FBI must submit a renewed motion for summary judgment with respect to these records, demonstrating that there is no reasonably segregable nonexempt information withheld, within 30 days).
Jefferson v. Reno, No. 96-1284 (D.D.C. Mar. 29, 2000) (proper party defendant: agency only, not an individual employee, is the proper party defendant under the FOIA) (sanctions: court cannot grant plaintiff's motion for sanctions under the FOIA because the court has not yet made a finding that the agency improperly withheld agency records; the court, relying on its inherent authority "to guard against abuses of the judicial process," grants plaintiff's motion for sanctions; court "will not hesitate" to impose monetary penalties in the future if it finds that the defendant has delayed the production of records; the evidence does not support a finding that Exemption 7(A) was used "routinely" by the agency as a "blanket exemption" in response to plaintiff's FOIA request; court awards attorney fees and costs "based on its inherent authority to impose monetary sanctions to maintain control of the litigation" and to recompense plaintiff for time spent monitoring defendant's reconstruction and production of records responsive to plaintiff's FOIA request that were destroyed by the prosecutor in plaintiff's criminal trial; court refers plaintiff's request for an investigation of the destruction of his records to the Justice Department's Office of Professional Responsibility; defendant's actions in failing to comply with the court's February 12, 1999 order, which imposed a schedule for reconstructing the destroyed files, are "sufficiently flagrant" to warrant the imposition of a $10,000 fine).
Johnson v. Executive Office for United States Attorneys, No. 98-729, 2000 U.S. Dist. LEXIS 6095 (D.D.C. May 2, 2000) (proper service of process: the summons and complaint were served upon a second party who was not authorized to accept service for the named agency official) (proper party defendant: under the FOIA, the proper party defendant is the agency rather than individual employees).
Judicial Watch, Inc. v. Dep't of Commerce, 90 F. Supp. 2d 9 (D.D.C. 2000) (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects lists (including notes and comments) of companies being considered for participation in foreign trade missions, memoranda concerning certain companies under consideration, and intra-agency proposals concerning trade missions because disclosure "would result in precisely the type of 'fish bowl' effect that the deliberative process privilege is designed to prevent"; defendant has made "ample efforts" to disclose all reasonably segregable information).
Judicial Watch, Inc. v. Dep't of Justice, 102 F. Supp. 2d 6 (D.D.C. 2000) (duty to search: in this case where plaintiff's FOIA request repeated requests for certain categories of records that had been previously requested by a related organization, finds that agency's treatment of the second request as merely an update of the first was "unduly narrow"; agency must conduct a new search) (waiver: because agency first raised the attorney-client privilege in its reply brief, the plaintiff was denied the opportunity to respond to this argument; court declines to consider this argument now, but will allow agency to raise it in a future motion for summary judgment) (Exemption 5: the deliberative process privilege protects handwritten notes taken by Attorney General Janet Reno during meetings regarding Department of Justice's Campaign Finance Task Force because disclosure of the Attorney General's "deliberations" (that were not shared with a third party) would have a chilling effect; agency need not demonstrate that the material withheld does not reveal government misconduct; deliberative process privilege does not end after deliberations have ended and a decision has been rendered) (Exemption 6: agency has not demonstrated that the exemption protects information that would identify Democratic National Committee employees, Capitol Hilton employees, lower-level agency employees, and third parties; information must be released; exemption protects telephone numbers and addresses of individuals who corresponded with the Justice Department concerning Independent Counsel matters, but summary judgment is denied with respect to these individuals' names and "other" identifying information) (Exemption 7(A): agency has shown that there is an ongoing investigation into campaign-finance law violations and has articulated the harms that could reasonably be expected to result from disclosure).
Judicial Watch, Inc. v. Dep't of State, No. 99-1130 (D.D.C. Feb. 17, 2000) ("exceptional circumstances"/"due diligence": grants agency an Open America stay until December 29, 2000 because of its unanticipated workload, the inadequate resources of the agency, and the complexity of many FOIA requests it receives; agency has been exercising due diligence in processing FOIA requests) (expedited processing: plaintiff has not demonstrated a compelling need for records concerning U.S. involvement in Eastern European affairs).
Judicial Watch, Inc. v. GSA, No. 99-1859 (D.D.C. Feb. 18, 2000) (duty to search: agency's affidavits demonstrate that it conducted a reasonable search in response to plaintiff's FOIA request, even though no documents were found).
Keen v. Executive Office for United States Attorneys, No. 96-1049 (D.D.C. July 14, 1999) (magistrate's recommendation) (Exemption 7 (threshold): requirement met by records compiled in the course of the criminal investigation of plaintiff for violation of federal laws) (Exemption 7(A): finds that because there was an enforcement proceeding pending at the time of plaintiff's FOIA request -- his criminal case was then on appeal -- agency properly claimed this exemption, even though the court is adjudicating the FOIA claim after the requester's appellate court reversal and subsequent guilty plea, which itself is now on appeal as to length of sentence; categorical index submitted by the agency sufficiently categorizes the types of records withheld), adopted (D.D.C. Mar. 23, 2000).
Found. v. IRS, 87 F. Supp. 2d 21 (D.D.C. 2000) (Exemption 3 [26 U.S.C.
LaRouche v. Dep't
of the Treasury, No. 91-1655, 2000 U.S. Dist. LEXIS 5078 (D.D.C. Mar. 31,
2000) (duty to search: agency has demonstrated that it conducted a reasonable
search in response to plaintiff's FOIA request) (Exemption 3 [26 U.S.C.
Laughlin v. Comm'r, 117 F. Supp. 2d 997 (S.D. Cal. 2000) (proper party defendant: only federal departments and agencies are proper party defendants under the FOIA) (mootness: FOIA case is moot here where plaintiff downloaded a copy of the requested report from a nongovernment Web site at no cost) ("no records" defense: there is no evidence that a list of certain employees exists and defendant is not required to create such a list in response to plaintiff's FOIA request) (attorney fees: pro se plaintiff is not entitled to attorney fees, only costs; costs denied; there is no public interest in a report that is available over the World Wide Web and which consists of personal opinions of a former government employee; information plaintiff requested will further a lawsuit he is pursing against the FBI; IRS had a reasonable basis in law for withholding the records).
Lawrence v. Comm'r, No. 99-251, 2000 U.S. Dist. LEXIS 5058 (C.D. Cal. Mar. 2, 2000) (proper party defendant: only federal departments and agencies are proper party defendants under the FOIA) (jurisdiction: court lacks jurisdiction because agency has not improperly withheld records requested by plaintiff under the FOIA).
Lepelletier v. FDIC, No. 96-1363 (D.D.C. Mar. 3, 2000) (order and transcript) (unreasonable burden: converting computer files to print form would be an unreasonable fiscal and administrative burden on the agency) (Exemption 6: within 30 days, agency must release "printed reports of unclaimed accounts containing some partial addresses," subject to any FOIA exemptions that the FDIC may assert at the time).
Looney v. Walters-Tucker, 98 F. Supp. 2d 1 (D.D.C. 2000) (mootness: case is not moot because plaintiff has a legally cognizable interest in having the court determine whether the agency's search for records was adequate in response to his FOIA request) (duty to search: agency's most recent affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request; agency's "successive affidavits" do not demonstrate bad faith, but rather they support a finding that "defendant was careless in complying with its FOIA obligations") (attorney fees: plaintiff has substantially prevailed in this action, because it is "patently obvious" that he would not have received the records produced without filing this action; grants plaintiff $150 in litigation costs).
Mallinckrodt Inc. v. West, 140 F. Supp. 2d 1 (D.D.C. 2000) ("reverse" FOIA/Exemption 4: information relating to rebates and incentives does not constitute "pricing data" and was "voluntarily submitted" in connection with a successful bid for a government contract; Federal Acquisition Regulation provision requiring the disclosure of unit prices does not include rebates and incentives; information is shielded from disclosure by Exemption 4).
McDaniel v. Dep't of Justice, No. 99-1935 (D.D.C. May 9, 2000) (jurisdiction: under the FOIA the court does not have the power to order another polygraph test for the plaintiff or to determine if the polygraphs were properly conducted) (Exemption 2: while the court rules that Exemption 7(E) properly applies to the make, model, and serial number of the polygraph machine used to examine plaintiff, as well as the type of and tests administered to plaintiff, the withholding of this information under Exemption 2 has been upheld in this district court) (Exemption 7(E): protects nonpublic law enforcement techniques concerning polygraph tests; protects other information in order to preserve the effectiveness of polygraph examinations, including the number and sequencing of questions and the numerical ratings assigned by the polygraph examiner to plaintiff's responses).
McDonnell Douglas Corp. v. NASA, 102 F. Supp. 2d 21 (D.D.C. 2000) ("reverse" FOIA/mootness: applying the "capable of repetition, yet evading review" exception, finds that this "reverse" FOIA case is moot; the action was fully litigated before the requester withdrew its request for contract pricing information; there is no reasonable expectation that the plaintiff will be subjected to the same action again, inasmuch as the agency has stated that it does not intend to disclose the pricing information that was the subject of the adverse court of appeals ruling; denying a permanent injunction).
Parks v. Dep't of Educ., No. 99-1052, 2000 U.S. Dist. LEXIS 600 (D. Or. Jan. 26, 2000) (duty to search: agency conducted a reasonable search for records in response to plaintiff's FOIA request) (mootness: plaintiff's FOIA request became moot when agency provided full disclosure to all records found in its search).
Parmley v. Huff, No. 99-1592 (D.D.C. Mar. 20, 2000) (duty to search: despite the absence of a sworn affidavit from the field office employees who conducted searches in response to plaintiff's FOIA request, finds that the FBI has demonstrated that it conducted a reasonable search) (discovery in FOIA litigation: denies plaintiff's request for discovery from an individual FBI Special Agent; only federal agencies, not individuals employees, are obligated to produce agency records under the FOIA).
Pentagen Techs. Int'l v. United States, No. 98-4831, 2000 WL 347165 (S.D.N.Y. Mar. 31, 2000) (in camera inspection: agency affidavit sufficiently describes the withheld information so that the court can make its determinations without in camera inspection) (Exemption 4: information was voluntarily provided to the Army to supplement its understanding of the IBM proposed solution for the Army's software concerns and to explain the benefits of IBM's product; this "highly confidential" material is not generally disclosed to the public; disclosure would cause the contractor substantial competitive harm and would impair the government's ability to obtain necessary information from bidders in the future).
Peyton v. Reno,
No. 98-1457, 2000 U.S. Dist. LEXIS 873 (D.D.C. Jan. 6, 2000) (grants defendant's
unopposed motion for summary judgment; additionally finds that defendant properly
withheld information under Exemption 3 [Rule 6(e) and 26 U.S.C.
Pub. Citizen v.
Dep't of State, 100 F. Supp. 2d 10 (D.D.C. 2000) (duty to search: because
the State Department did not apply its "time-of-request cut-off" policy to plaintiff's
first FOIA request, plaintiff lacks standing; plaintiff may have standing with
respect to its second FOIA request and because of its status as a "frequent
filer"; under FOIA, the court finds that the record does not show that the issue
is ripe for review and that plaintiff has not demonstrated that the hardship
it will suffer outweighs the government's interest in deferred review; under
APA, court holds that the "time-of-request cut-off" is a procedural rule exempt
from the general notice and comment requirements of 5 U.S.C.
Pub. Citizen Health Research Group v. FDA, No. 99-0177, 2000 U.S. Dist. LEXIS 4108 (D.D.C. Jan. 19, 2000) (Exemption 4: affidavits do not demonstrate that disclosure of raw patient data will cause substantial competitive harm to the drug manufacturer by assisting competitors' product development efforts or by discouraging people from participating in future drug studies; disclosure of scientific investigators' names and titles of their unpublished scholarly works would cause competitive harm by enabling competitors to "free-ride" on the manufacturer's extensive research investments, even though the drug manufacturer does not restrict its investigators' ability to publish these articles).
Rashid v. HHS, No. 98-0898 (D.D.C. Mar. 2, 2000) (Exemption 5: the attorney work-product privilege protects 2 letters from an Assistant United States Attorney asking 2 expert witnesses to review and evaluate evidence regarding plaintiff's medical practice and a cover sheet requesting comments on one of the letters in draft form; finds that there is no reasonably segregable information in 21 documents withheld under the deliberative process privilege; plaintiff has not shown that information in 8 documents is segregable or has previously been disclosed; agency must release portions of 6 documents that are not deliberative) (Exemption 7(C): protects the identities of third-party physicians).
Schladetsch v. HUD, No. 99-0175 (D.D.C. Apr. 4, 2000) ("no records" defense: notwithstanding agency's argument, electronic database searches are not regarded as creating new records; neither the programming required to "search" electronic databases nor the extracting and compiling of information that exists in HUD's database amounts to the creation of a new record) (duty to search: FOIA applies equally to all agency records, regardless of format; in this case, agency is obligated under FOIA to conduct an electronic database search estimated to require 185 hours at a cost of $14,041 to respond to plaintiff's FOIA request) ("unreasonable" burden": it is not proper for an agency to withhold information requested under the FOIA just because the information has already been made publicly available; HUD's affidavits do not demonstrate in sufficient detail that this search effort would "significantly interfere" with its automated information system; HUD must fully comply with plaintiff's FOIA request within 60 days).
Sherman v. Dep't of the Army, No. H 98-1616 (S.D. Tex. Mar. 31, 2000) (Exemption 6: protects the Social Security numbers contained in the Army's post-1968 award orders because the award recipients have a legitimate expectation of privacy that outweighs the public interest in disclosure; protection was not waived when the Army included multiple award recipients' names and Social Security numbers on individual letters notifying recipients that they had received an award) (exhaustion: plaintiff has "constructively" exhausted his administrative remedies because the Army failed to respond to his request for a fee waiver) (fee waiver: plaintiff has not shown that disclosure of a compilation of military awards containing the recipients' names and Social Security numbers will shed light on the operations and activities of the Department of the Army; denies plaintiff's request for a waiver of fees of as much as $1,000,000.00 for the redaction of the awards; delivery of the records in an electronic format would not significantly reduce the cost of reproduction).
Springmann v. Dep't of State, No. 93-1238 (D.D.C. Feb. 24, 2000) (Exemption 1 [E.O. 12,356]: on in camera inspection, finds that the release of 2 paragraphs from a compliance review of our embassy in Riyadh, Saudi Arabia would cause harm to foreign relations of the United States because the information relates to "offensive" behavior by Americans and others in Saudi Arabia; all reasonably segregable information has been released).
Summers v. Dep't
of Justice, No. 87-3168 (D.D.C. Apr. 19, 2000) (on in camera inspection
of approximately 4000 pages, grants summary judgment to the defendant, but holds
that information found not protected by a FOIA exemption must be released to
the plaintiff within 30 days) (Exemption 1 [E.O. 12,958]: for reasons stated
at the December 1, 1999 status hearing, finds that classified information was
properly withheld under this exemption) (Exemption 7 (threshold): FBI's declaration
demonstrates that records found in J. Edgar Hoover's "official and confidential"
files which were marked with an FBI file number was compiled for specific law
enforcement purposes) (Exemption 7(C): protects information that would identify
subjects of investigative interest, informants, and third parties contained
in law enforcement files) (Exemption 6: protects information that would identify
informants; agency has not shown that disclosure of the identities of 15 informants
would be an unwarranted invasion of personal privacy; disclosure of information
concerning Martin Luther King, Jr.'s sexual behavior and personal relationships
would be an unwarranted invasion of personal privacy of his family and several
named third parties) (Exemption 3 [26 U.S.C.
Tax Analysts v. IRS, No. 94-0923 (D.D.C. Mar. 14, 2000) (grants plaintiff attorney fees in the amount of $1,429.44 with respect to 2 appeals that the defendant filed and later dismissed).
Tax Analysts v. IRS, No. 96-2285, 2000 U.S. Dist. LEXIS 5066 (D.D.C. Mar. 31, 2000) (displacement of FOIA: case dismissed in part; the Internal Revenue Service Reform and Restructuring Act of 1998 (IRSRRA) divests the court of subject-matter jurisdiction over plaintiff's pre-IRSRRA FOIA claims).
Tax Analysts v.
IRS, 97 F. Supp. 2d 13 (D.D.C. 2000) (interaction of (a)(2) & (a)(3):
on motion for summary judgment, finds that the FOIA authorizes courts to order
agencies to produce records to the complainant; it does not authorize courts
to order placement of records in a reading room) (Exemption 5: the deliberative
process privilege protects portions of legal memoranda that do not contain the
official position of the Office of Chief Counsel because they reflect agency
give-and-take leading up to a final agency decision; by May 30, IRS must supplement
its Vaughn Index to demonstrate that portions of documents called "Technical
Assistances" were properly withheld under either the deliberative process or
attorney work-product privilege; the attorney-client privilege protects communications
from field personnel that would reveal the scope, direction, or emphasis of
audit activity) (Exemption 3 [26 U.S.C.
Times Publ'g Co.
v. Dep't of Commerce, 104 F. Supp. 2d 1361 (M.D. Fla. 2000) (Exemption 3
[50 U.S.C. app.
Turner v. FBI, No. 99-0908 (D.D.C. Mar. 29, 2000) (duty to search: defendant's affidavit demonstrates that it has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request).
Unger v. Dist.
Disclosure Office, IRS, No. 1:99-698, 2000 U.S. Dist. LEXIS 5260 (N.D. Ohio
Mar. 28, 2000) (Exemption 3 [26 U.S.C.
Valencia Lucena v. DEA, No. 99-0633 (D.D.C. Feb. 8, 2000) (duty to search: DEA conducted an adequate search in response to plaintiff's FOIA request) (Exemption 2 "high": disclosure of NADDIS numbers would risk circumvention of agency law) (Exemption 7 (threshold): requirement met by records relating to DEA's prosecution of plaintiff for drug-trafficking offenses) (Exemption 7(C): protects the identities of law enforcement personnel, third parties, informants, and plaintiff's co-defendants; the fact that plaintiff can guess some of the identities does not waive the privilege; FBI properly refused to confirm or deny the existence of records on an informant where that disclosure would not shed light on the FBI's conduct) ("reasonably segregable": all segregable portions have been disclosed) ((c)(2): section (c)(2) does not apply to this FOIA request because the identity of the informant is known) (exhaustion: plaintiff failed to exhaust his administrative remedies when he was unable to specify the Department of Justice components where records responsive to his FOIA request would likely be located).
Van Fripp v. Parks, No. 97-0159, 2000 U.S. Dist. LEXIS 20158 (D.D.C. Mar. 16, 2000) (fee waiver: the prison population can constitute the "public-at-large" within the meaning of the FOIA; denies plaintiff's request for a fee waiver because his request for information on the Inmate Trust and Welfare Fund does not relate to the defined operations or activities of the Bureau of Prisons, disclosure will not enhance the existing level of public understanding, there is no evidence of misappropriation of funds, and plaintiff has not demonstrated the ability to disseminate this information among the prison population or outside the Bureau of Prisons).
Voinche v. FBI, No. 99-894-B (M.D. La. Feb. 2, 2000) (magistrate's recommendation) (recommends that defendant's motion for summary judgment be granted; defendant conducted a reasonable search and was unable to locate any records responsive to plaintiff's FOIA request), summary judgment granted (M.D. La. Apr. 12, 2000).
W. Ctr. for Journalism
v. IRS, 116 F. Supp. 2d 1 (D.D.C. 2000) (duty to search: denies plaintiff's
motion for discovery because the IRS's affidavit demonstrates that it conducted
a search reasonably calculated to uncover all documents responsive to plaintiff's
FOIA request) (Exemption 3 [26 U.S.C.
W. Ctr. for Journalism
v. IRS, No. 99-906, 2000 U.S. Dist. LEXIS 10615 (D.D.C. June 14, 2000) (reconsideration
denied in this FOIA case where the court previously ruled that the agency conducted
a reasonable search in response to plaintiff's FOIA request, that information
was properly withheld under Exemptions 3 [26 U.S.C.
Winterstein v. Dep't of Justice, 89 F. Supp. 2d 79 (D.D.C. 2000) (Exemption 5: the attorney work-product privilege protects a prosecution memorandum concerning a former Nazi because there is "no question" that it was prepared in anticipation of litigation).
York v. Comm'r, No. 99-0080 (S.D. Cal. Mar. 20, 2000) (attorney fees: pro se plaintiff may not recover attorney fees under the FOIA, only costs; costs denied; plaintiff has not provided the court with sufficient evidence to make a determination whether he has "substantially prevailed" in this action; there is no public interest in the release of information concerning 2 trusts; awarding costs would "'merely subsidize a matter of private concern' at taxpayer expense"; plaintiff has not provided the court with sufficient evidence to show that defendant's withholding of records lacked a reasonable basis in law).
Comm'r, No. 2:99-9253, 2000 U.S. Dist. LEXIS 5083 (C.D. Cal. Mar. 6, 2000)
(proper party defendant: only federal departments and agencies, not the United
States, are proper party defendants under the FOIA) (duty to search: agency's
affidavit demonstrates that it conducted a search reasonably calculated to uncover
all records responsive to plaintiff's FOIA request) (Exemption 3 [26 U.S.C.
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