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Compiled FOIA Decisions (Received July-December 1997)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1997. OIP is preparing additional compilations of decisions received during previous months and years.

Appeals Courts

Allison v. IRS, No. 97-35434, 1997 WL 786247 (9th Cir. Dec. 18, 1997) (unpublished memorandum), 132 F.3d 38 (9th Cir. 1997) (table cite) (district court did not err in dismissing plaintiff's FOIA case as moot; there were no documents responsive to some of plaintiff's requests, some documents had been provided in response to some of plaintiff's requests, and the remainder of the documents were available at the IRS reading room).

Barrett v. Dep't of Justice, No. 3:95-264 (S.D. Miss. Mar. 13, 1997) (attorney fees: plaintiff has not met his burden of establishing a causal nexus between the filing of a lawsuit and the release of the documents; clarification of plaintiff's request led to the subsequent release of requested records; mere fact that FBI has documents regarding plaintiff's involvement with a political organization does not necessarily lead to the conclusion that the FBI is conducting surveillance on the general public; public benefit from the disclosure of these records is "minimal, at best"; plaintiff, a television show host and journalist, will derive some commercial benefit from the disclosures; plaintiff sought information about himself and about organizations with which he was intimately involved and used the information for journalistic purposes; government had a reasonable basis in law for withholding the documents; attorney fees denied), aff'd sub nom. Barrett v. United States, No. 97-60223 (5th Cir. Nov. 20, 1997) (per curiam).

Carreras v. United States Customs Serv., No. 97-5174 (D.C. Cir. Dec. 23, 1997) (duty to search: agency has demonstrated that it conducted a reasonable search for records responsive to plaintiff's FOIA request).

Chamberlin v. Dep't of Justice, No. 97-5095, 1997 WL 583885 (D.C. Cir. Aug. 22, 1997) (unpublished order), 124 F.3d 1309 (D.C. Cir. 1997) (table cite) (grants government's motion for summary affirmance; district court had ruled that agency properly withheld information under Exemption 7(C) and that FBI complied with its FOIA obligations by making a fragile "visicorder chart," which could not be reproduced safely, available at its headquarters in Washington, D.C.).

Croskey v. Office of Special Counsel, No. 96-5114, 1997 WL 702364 (D.C. Cir. Oct. 17, 1997) (unpublished memorandum), 132 F.3d 1480 (D.C. Cir. 1997) (table cite) (res judicata: district court improperly ruled that plaintiff's claims were barred by the doctrine of res judicata; documents at issue in this litigation are different from those at issue in the earlier litigation; collateral estoppel does not bar plaintiff from litigating this case because the two sets of materials are sufficiently different; vacates decision and remands to the district court, which can request a more detailed affidavit from the agency explaining its reasons for withholding information under Exemptions 5 and 7(C)).

Dong v. Smithsonian Inst., 125 F.3d 877 (D.C. Cir. 1997) (not an "agency" defense: Smithsonian Institution is not an "agency" for purposes of the Privacy Act and, by extension, the FOIA; Smithsonian is not an "establishment in the executive branch," a "Government controlled corporation," nor an "authority of the Government of the United States").

Earth Pledge Found. v. CIA, 128 F.3d 788 (2d Cir. 1997) (affirms district court ruling that agency properly withheld under Exemption 1 [E.O. 12,356] and Exemption 3 [50 U.S.C. 403-3(c)(5), 403g] information that would confirm or deny the existence of an alleged CIA station).

Engelking v. DEA, 119 F.3d 980 (D.C. Cir. 1997) (per curiam) (Exemption 7(D): most of the withheld material in this case was provided to DEA under express promises of confidentiality or under circumstances strongly implying that an assurance of confidentiality was understood; with respect to the 2 remaining pages, the nature of the crime and the source's relationship to the crime support an inference that the source provided information pursuant to an understanding of confidentiality).

Gibbs Int'l, Inc. v. IRS, No. 96-2790, 1997 WL 698948 (4th Cir. Nov. 7, 1997) (per curiam) (unpublished memorandum), 129 F.3d 116 (4th Cir. 1997) (table cite) (affirms district court ruling that Exemption 3 [26 U.S.C. 6103(e)(7)] protects information exchanged pursuant to a tax treaty.

Hennessey v. Agency for Int'l Dev., No. 97-1133, 1997 WL 537998 (4th Cir. Sept. 2, 1997) (per curiam) (unpublished memorandum), 121 F.3d 698 (4th Cir. 1997) (table cite) (Exemption 5: final report prepared by a consultant is not entirely protected by the deliberative process privilege; the process of producing this report was intended as a cooperative effort between AID and Encorp, the company it hired for a building project in Pakistan; Encorp was given a copy of a "substantial" portion of the draft report and it is clear that, prior to receiving the final report, AID intended to share it with Encorp in order to facilitate the completion of the project; by sharing its scheduling documents and software with AID, Encorp was a co-equal partner in the effort to develop a chronology and factual account of events surrounding delays in the project; report is factual in nature and does not relate to the formulation of agency policy; attorney work-product privilege does not protect the report, because report was commissioned not with a view to litigation, but rather as a cooperative effort to further completion of the building project).

Isley v. Executive Office for the United States Attorneys, No. 97-5105 (D.C. Cir. Sept. 8, 1997) (appeal dismissed in this FOIA case where the lower court found that information was properly withheld under Exemptions 5, 6, 7(C), 7(D), and 7(F), but that some information was not properly withheld under Exemption 3 (Rule 6(e)).

Kucernak v. FBI, No. 96-17143, 1997 WL 697377 (9th Cir. Nov. 4, 1997) (unpublished memorandum), 129 F.3d 126 (9th Cir. 1997) (table cite) (Vaughn Index: applying Wiener v. FBI, finds that agency's Vaughn Index supplies a more than adequate factual and legal basis for withholding information under Exemptions 1, 2, 3, 7(C), and 7(D)) (duty to search: affidavits demonstrate that the agency conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (adequacy of affidavits: mere allegations of government bad faith do not undermine the adequacy of sworn affidavits).

Lurie v. Dep't of the Army, No. 97-5248 (D.C. Cir. Oct. 22, 1997) (appeal voluntarily dismissed by government in this FOIA case where the district court ruled that the government improperly withheld certain information under Exemptions 5, 6, and 7(C)).

Martinson v. DEA, No. 96-5262 (D.C. Cir. July 3, 1997) (summary affirmance granted to the Bureau of Alcohol, Tobacco and Firearms (ATF) and DEA; ATF demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request and that it was entitled under Exemption 7(D) to withhold information contained in the state police report; DEA and ATF cannot be compelled under the FOIA to disclose records created by state law enforcement officers which DEA and ATF neither possess nor control; DEA conducted a proper search and was entitled to withhold information under FOIA exemptions; plaintiff has 30 days to show cause why court should not summarily affirm the remaining district court rulings).

Martinson v. DEA, No. 96-5262 (D.C. Cir. Sept. 22, 1997) (summarily affirms district court rulings; IRS conducted a reasonable search and properly withheld information under Exemptions 7(C) and 3 [26 U.S.C. 6103 and Rule 6(e)]; IRS did not violate plaintiff's right under the FOIA by destroying grand jury records in accordance with its records-retention procedures; district court did not err in ruling that the FOIA is inapplicable to state agencies).

McDonnell v. Clinton, No. 97-5179, 1997 WL 812536 (D.C. Cir. Dec. 29, 1997) (per curiam) (unpublished order), 132 F.3d 1481 (D.C. Cir. 1997) (table cite) (proper party defendant: FOIA claims must be directed to federal agencies; plaintiff has failed to state a claim for relief against the President).

Nadeau v. IRS, No. 97-1338, 1997 WL 422226 (1st Cir. July 29, 1997) (per curiam) (unpublished memorandum), 121 F.3d 695 (1st Cir. 1997) (table cite) (court lacks jurisdiction because agency's affidavit demonstrates that there were no additional documents to be disclosed).

Or. Natural Desert Ass'n v. Bibles, 125 F.3d 1282 (9th Cir. 1997) (per curiam) (in begrudgingly belated acceptance of the Supreme Court ruling that Exemption 6 protects names and home addresses from the Bureau of Land Management's newsletter mailing list, reverses judgment of the district court and remands case with instructions to dismiss).

Parsons v. Freedom of Info. Act Officer, No. 96-4128, 1997 WL 461320 (6th Cir. Aug. 12, 1997) (unpublished order), 121 F.3d 709 (6th Cir. 1997) (table cite) (in camera inspection: district court did not err in not reviewing documents in camera; as long as the district court has an adequate factual basis for its decision, in camera review is discretionary) (adequacy of agency affidavit: plaintiff's speculative and conclusory assertions do not overcome the presumption that the SEC has in good faith identified all documents responsive to his FOIA request).

Payne v. Dep't of Justice, No. 96-30840 (5th Cir. July 11, 1997) (unpublished order), 121 F.3d 704 (5th Cir. 1997) (table cite) (duty to search: agency's affidavits demonstrate that it conducted a reasonable search in response to plaintiff's FOIA request; plaintiff's allegations of conspiracy and cover-up are insufficient to overcome the government's submissions) (Exemption 3 [18 U.S.C. 2510-21]: Title III communications fall squarely within the scope of Exemption 3; district court did not err in concluding that wiretap tape recordings were exempt from disclosure) (Vaughn Index: district court did not abuse its discretion in denying plaintiff's request for a Vaughn Index as premature).

Ralph Hoar & Assocs. v. Nat'l Highway Traffic Safety Admin., No. 97-5186 (D.C. Cir. Sept. 10, 1997) (appeal dismissed where the district court awarded plaintiff attorney fees).

Robbins v. HHS, No. 96-9000 (11th Cir. July 8, 1997) (affirms district court ruling that 42 U.S.C. 1306 does not fall within Exemption 3 and that Exemption 6 protects the names and addresses of rejected disability claimants; costs taxed against plaintiff).

Sanders v. United States, No. 96-5372, 1997 WL 529073 (D.C. Cir. July 3, 1997) (defendants named in this action, the United States and the United States Court of Appeals for the Fourth Circuit, are not "agencies" subject to the FOIA).

Savage v. FBI, No. 96-3440, 1997 WL 572891 (6th Cir. Sept. 15, 1997) (unpublished order), 124 F.3d 199 (6th Cir. 1997) (table cite) (district court did not err in ruling that information was properly withheld under Exemptions 1 [E.O. 12,356] and 7(D)).

Smith v. United States, No. 97-30184 (5th Cir. Sept. 12, 1997) (affirms district court's denial of plaintiff's request for attorney fees).

Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (Exemption 3 [26 U.S.C. 6103(b)(2)]: legal interpretations and analyses contained in IRS's Field Service Advice (FSA) memoranda pertaining to individual taxpayers must be disclosed, because they do not fall within the definition of "return information"; IRS may redact true "return information," i.e., taxpayer-specific, factual information that would identify taxpayers) (Exemption 5: deliberative process privilege does not protect legal opinions that IRS's Office of Chief Counsel provides to field personnel because these legal positions constitute agency law, even if their conclusions are not formally binding; disclosure would not harm the functioning of the Office of Chief Counsel; the attorney-client privilege does not apply to legal conclusions in FSAs because these conclusions are based on information obtained from taxpayers, and taxpayers' communications to government officials do not contain confidential information about the agency; attorney-client privilege is "different in the governmental context, when the counsel rendering the legal opinion in effect is making law"; attorney work-product privilege protects any portion of an FSA prepared in anticipation of litigation, not just the portions concerning opinions and legal theories).

Teplitsky v. Dep't of Justice, No. 96-36208, 1997 WL 665705 (9th Cir. Oct. 24, 1997) (unpublished memorandum), 127 F.3d 1106 (9th Cir. 1997) (table cite) (exhaustion: plaintiff did not administratively appeal the initial denial of his FOIA request, even though the FBI notified him of the appeal procedure; plaintiff has not exhausted his administrative remedies under the FOIA).

Twist v. Reno, No. 97-5192, 1997 WL 811736 (D.C. Cir. Dec. 9, 1997) (grants government's motion for summary affirmance; district court had ruled that agency properly used Exemptions 2, 3 [Rule 6(e)], 5, and 7(C) to withhold information), reh'g denied (D.C. Cir. Mar. 20, 1998).

District Courts

Aguilera v. FBI, No. 94-2723 (D.D.C. Dec. 5, 1997) (grants plaintiff attorney fees in this FOIA case because he was the prevailing party and is entitled to an award; grants plaintiff $11,840 in attorney fees and costs).

Andrade v. CIA, No. 95-1215, 1997 WL 527347 (D.D.C. Aug. 18, 1997) (Exemption 3 [50 U.S.C. 403-3(c)(5)]: on in camera inspection, finds that 7 of 8 documents may be withheld because disclosure would reveal the intelligence methods defendant uses in assessing the fitness for duty of its employees and disclosure threatens national security; a portion of the remaining document must be released because it is text written by plaintiff himself).

Baltimore Sun Co. v. United States Customs Serv., No. 97-1991 (D. Md. Nov. 21, 1997) (Exemption 7(C): in this case where a criminal court-released photograph of an individual who pled guilty to trafficking in child pornography "was of such a poor quality as to severely limit its dissemination," finds that the individual "retained at least some privacy interest in preventing the further dissemination of the photographic image"; release of photograph would not show the public "what the government is up to") (plaintiff is not entitled to attorney fees).

Beta Steel Corp. v. NLRB, No. 2:97-358, 1997 WL 836525 (N.D. Ind. Oct. 22, 1997) (preliminary injunction: denies plaintiff's motion for a preliminary injunction compelling disclosure of records requested under the FOIA; unrecoverable litigation expenses are not sufficient to constitute irreparable harm).

Blazy v. Tenet, 979 F. Supp. 10 (D.D.C. 1997) (duty to search: agency properly used date of receipt of letter as the cut-off date for its search for records) (Exemptions 1 and 3 [50 U.S.C. 403-3(c)(6) and 403g]: protect intelligence sources and methods, polygraph information, information that would identify confidential sources, and facts about the CIA's organization, functions and personnel) (Exemption 5: deliberative process privilege protects CIA's meeting minutes and consultations with counsel that were part of the process of determining whether to retain or terminate plaintiff from employment) (Exemption 6: balancing privacy interests against the public interest, finds that the exemption protects the identities of third-party, nonagency personnel in plaintiff's personnel file) ("reasonably segregable": CIA properly withheld 10 documents in full; agency's affidavit does not sufficiently describe the remaining 15 documents that were withheld in full; these documents must be submitted for in camera review within 20 days, along with a supplemental declaration; with respect to 190 documents that were disclosed in part, CIA has adequately demonstrated that further information was not "reasonably segregable").

Boggs v. United States, 987 F. Supp. 11 (D.D.C. 1997) (duty to search: defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover documents responsive to plaintiff's FOIA request) (adequacy of agency affidavit: while an affidavit alone may be sufficient to allow the court meaningful review of FOIA exemption claims, defendant's affidavit is insufficient without specific correlation of documents to exemption claims; agency must submit a Vaughn Index within 30 days).

Brooks v. IRS, No. F-96-6284, 1997 U.S. Dist. LEXIS 13678 (E.D. Cal. Aug. 25, 1997) (Exemption 3 [26 U.S.C. 6103(a)]: 26 U.S.C 6103 is a withholding statute under the FOIA; IRS's declaration is insufficient with respect to the information pertaining to the determination of third-party tax liability because the affiant lacked personal knowledge of the origins of the information; agency has not shown whether any segregable information may be released; plaintiff has not submitted a proper consent form for the release of tax information concerning his wife; IRS properly withheld return information about plaintiff's assets) (Exemption 7(A): release of information concerning plaintiff's assets and liabilities and information from tax year 1990, for which plaintiff has a closing agreement with the IRS, would interfere with the ongoing investigation of plaintiff for subsequent tax years by revealing evidence in the government's case and the direction and scope of its examination).

Brooks v. IRS, No. F-96-6284, 1997 U.S. Dist. LEXIS 21075 (E.D. Cal. Nov. 19, 1997) (mootness: the IRS has demonstrated that it has produced all tax documents requested by plaintiff, with the exception of information that could not be located) (summary judgment: because the IRS's evidence is essentially undisputed, grants defendant's motion for summary judgment with respect to information withheld under Exemptions 5, 7(C), and 3 (26 U.S.C. 6103)) (Exemption 5: deliberative process privilege protects a revenue agent's recommendation that an enforcement action be taken against plaintiff, which was communicated to the District Counsel for consideration).

Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153, 1997 WL 446261 (D.D.C. July 31, 1997) (Exemption 5: because major portions of a memorandum concerning the effect of a railroad merger on employees were adopted and incorporated into the Commission's final decision, the deliberative process privilege no longer protects these portions of the document from disclosure; attorney work-product privilege applies to the memorandum because it was prepared, at least in part, in preparation for "probable litigation"; attorney work-product privilege has been waived with respect to portions of report that were expressly adopted by the Commission; quotations from statutes and case law are not protected by this privilege because they are public knowledge; section titled "conclusion" is protected by the attorney work-product privilege because it contains author's strategic thinking and planning concerning future litigation).

Campbell v. Dep't of Justice, No. 89-3016 (D.D.C. Aug. 6, 1997) (Exemption 7 (threshold): on in camera inspection finds that information in file relating to author/civil rights activist James Baldwin was compiled in connection with an FBI security investigation) (Exemption 7(C): protects the identities of various law enforcement personnel, witnesses, informants, and subjects of investigative interest) (Exemption 7(D): on in camera inspection finds that agency properly used exemption to protect information collected with express and implied promises of confidentiality; the "customary trust" between nonfederal and foreign law enforcement agencies and the FBI creates an implied confidential relationship) (Exemption 7(E): exemption does not protect the use of pretext mailboxes and various pretexts (telephonic and personal), because these techniques are so basic that disclosure would not diminish their effectiveness; exemption does protect other techniques described in the record, because they are secret and disclosure would harm law enforcement efforts by thwarting agency attempts to gather investigative information).

Candito v. DEA, No. 3:95-1692 (D. Conn. Aug. 11, 1997) (plaintiff's FOIA request is moot because the requested information has been provided to him).

Ctr. to Prevent Handgun Violence v. Dep't of the Treasury, 981 F. Supp. 20 (D.D.C. 1997) (exhaustion: plaintiff has not exhausted its administrative remedies with respect to its fee status; claim dismissed) (Exemption 4: agency has not shown that the release of serial numbers of guns and information that would identify gun sellers would cause substantial competitive harm; disclosure would not harm government's ability to obtain such information in the future because federally licensed gun sellers provide multiple sales reports pursuant to a statutory obligation) (Exemption 7 (threshold): multiple sales reports are clearly law enforcement records) (Exemption 7(C): exemption does not apply to "information relating to business judgments and relationships" when the information does not involve suspected criminal activity; gun sellers have no privacy interest in the contents of multiple sales reports; plaintiff does not want to know the identities of the gun buyers; plaintiff seeks information in order to learn how many guns that show up in the Firearms Trace Database were sold in multiple gun transactions; because agency has not demonstrated the existence of more than a negligible privacy interest, plaintiff does not have to show a very compelling public interest to obtain the information it seeks; summary judgment granted to plaintiff with respect to the names and locations of federal firearms licensees and gun serial numbers).

Coleman v. FBI, 972 F. Supp. 5 (D.D.C. 1997) (Vaughn Index: plaintiff's motion for a more specific Vaughn Index is granted in part and denied in part; FBI's Deleted Page Sheets (DPS), each of which includes a narrative specifically describing the withheld documents, adequately describe a number of the entirely withheld documents; when a single DPS with a narrative is used to describe numerous withheld documents, it fails to inform the court as to the contents of the individual documents and the applicability of the claimed exemptions; FBI used 92 DPS sheets to represent 1195 withheld pages from numerous documents without arguing that a "categorical" index was warranted; FBI must submit a more detailed Vaughn with respect to certain, specified withholdings within 30 days).

Confederated Tribes of the Warm Springs Reservation v. Babbitt, No. 96-197 (D. Or. Sept. 30, 1997) (attorney fees: government's extensive delay was "patently unreasonable when viewed in the context of FOIA's fundamental policy of disclosure and the court's finding that no exemption under FOIA in any way supported" the withholding of records; court sets hourly rates for attorneys and paralegals at the contractual lower rate at which this client is billed by its attorney, rather than the higher prevailing rate in Portland; total amount is reduced by 10% because the amount of time charged for conferences is excessive; awards $44,658 in attorney fees).

Cosio v. INS, No. 97-5380 (C.D. Cal. Dec. 22, 1997) (venue: venue is improper for 2 plaintiffs who neither live in the Central District of California nor have their principal places of business there) (jurisdiction: court does not have jurisdiction to exercise for one plaintiff who never submitted a FOIA request; court does have jurisdiction for 2 plaintiffs where INS claims no records were found in response to their FOIA requests, but where each plaintiff received a response letter from INS stating that files exist but cannot be located; agency did not adequately describe its search for these missing files) (exhaustion: all plaintiffs have failed to exhaust their administrative remedies; even though INS failed to respond to their FOIA requests within the statutory time period, before suit was filed each plaintiff received a partial release of documents or a notice that no documents were located and a notice of a right to appeal, which they failed to do).

Dayton Newspapers, Inc. v. Dep't of the Navy, No. C-3-95-328 (S.D. Ohio Sept. 8, 1997) (Exemption 5: with respect to information contained in electronic databases, finds that the attorney-client privilege applies to correspondence between the accused and counsel, the attorney work-product applies to appellate counsels' notes, and the deliberative process protects trial judges' comment field because defendant has demonstrated that the database has built-in safeguards that prevent this information from being disclosed to unauthorized parties) (Exemption 7(C): protects personal data concerning accused individuals, including age, marital status, number of children, the range of performance marks, prior nonjudicial punishments, previous convictions, service record entries, and "other matters of significance"; protects information that would identify witnesses and third parties) (Exemption 6: protects medical record entries for accused individual, victims, and third parties) (in camera inspection: orders in camera inspection of court-martial members' responses to questionnaires in order to determine whether any portions may be segregated and disclosed).

Fedrick v. Dep't of Justice, 984 F. Supp. 659 (W.D.N.Y. 1997) (Exemption 2: protects G-DEP codes, NADDIS numbers, and informant identifier codes because they are predominantly internal and disclosure could significantly risk circumvention of agency law) (Exemption 7(C): protects information that would identify individuals associated with plaintiff in the criminal activity that led to his arrest, and the identities of DEA Special Agents and other law enforcement personnel whose names appear in the investigatory reports) (Exemption 7(D): protects confidential informant codes and confidential source information where sources were given express promises of confidentiality) (Exemption 7(F): identities of DEA Special Agents, supervisory agents, and other law enforcement personnel fall within this exemption because their lives would be unnecessarily jeopardized if their identities were revealed).

Ford v. West, No. 96 N 2621 (D. Colo. Sept. 4, 1997) (exhaustion: plaintiff has constructively exhausted his administrative remedies; agency, in its first response letter, did not notify him of his right to appeal and its second response letter exceeded the statutory time limit for an agency response to a FOIA request) (adequacy of agency affidavit: despite the fact that the defendant agency did not provide a Vaughn Index, its affidavit and brief offered a sufficiently detailed explanation of each redaction and its applicable exemption, precluding the need for in camera inspection) (Exemption 6: information from an investigation into an incident of alleged employee racial harassment at an Army medical center is a "similar file"; the privacy interests of the individuals who spoke to official incident investigators are outweighed by the public interest in disclosure) (Exemption 7 (threshold): requirement met by records compiled in the course of "an inquiry as to an identifiable possible violation of law") (Exemption 7(C): the privacy interests of the individuals who spoke to official incident investigators are outweighed by the public interest in disclosure).

Ginsberg v. IRS, No. 96-2265, 1997 WL 882913 (M.D. Fla. Dec. 23, 1997) (magistrate's recommendation) (Exemptions 3 [26 U.S.C. 6103(e)(7)], 5, and 7(A): exemptions protect only 2 paragraphs of district counsel's memorandum in response to revenue agent's request for technical assistance; memorandum provides instruction and legal interpretation of provisions of Internal Revenue Code and forms the operative body of law found applicable to taxpayers in this civil examination) (Exemptions 5 and 7(A): deliberative process privilege protects revenue agent's request for technical assistance and attachments; premature disclosure of this civil examination would impact tax administration because it is part of an ongoing investigation involving 150 or more entities).

Grand Cent. P'ship, Inc. v. Cisneros, No. 96 Civ. 8238 (S.D.N.Y. Nov. 13, 1997) (duty to search: defendant has sufficiently established that it conducted a reasonable search for records responsive to plaintiff's FOIA request) (personal records: 8 records created for the personal convenience of HUD employees, kept in the authors' personal files, and which the authors had no intention of circulating to other agency employees, are not "agency records" for purposes of the FOIA) (in camera inspection: agency has not demonstrated that portions of 8 other records may be withheld under Exemptions 5 (deliberative process privilege), 7(A), 7(C), and 7(D); within 10 days agency must submit these documents to the court for in camera inspection).

Grand Cent. P'ship, Inc. v. Cisneros, No. 96 Civ. 8238 (S.D.N.Y. Dec. 10, 1997) (on in camera inspection finds that one document must be produced without redaction, 3 must be produced with some redactions, and 4 documents may be withheld in their entireties).

Grine v. Coombs, No. 95-342, 1997 U.S. Dist. LEXIS 19578 (W.D. Pa. Oct. 10, 1997) (Exemption 5: on in camera inspection, finds that e-mail messages were predecisional and involved communications concerning EPA's determination as to what, if any, Superfund removal action should be undertaken on plaintiff's property; neither the deliberative process nor attorney work-product privileges protect assistant regional counsel's handwritten notes because notes are not predecisional and are essentially factual) (Exemption 7 (threshold): on in camera inspection finds that threshold requirement is met by Reports of Investigation (ROIs) and Memoranda of Interviews compiled by EPA's Criminal Investigation Division (CID) in response to complaints of illegal dumping of hazardous waste on or near plaintiff's property; portions of log book which reference CID activities do not meet threshold requirement) (Exemption 7(A): on in camera inspection finds that portions of log book, Memoranda of Interviews, and ROIs are not so sensitive that production would reasonably be expected to interfere with any pending enforcement proceeding) (Exemption 7(C): does not protect Memoranda of Interview conducted with plaintiff and with plaintiff's neighbor; given plaintiff's allegations of illegal dumping of hazardous materials, the investigation of his neighbor does not involve a significant privacy interest).

Hamilton v. Weise, No. 95-1161, 1997 U.S. Dist. LEXIS 18900 (M.D. Fla. Oct. 1, 1997) (Exemption 2 "low": in this case where plaintiff, a licensed pilot denied private employment as a result of records maintained by Customs Service, seeks information on himself, finds that the exemption protects TECS identification numbers, TECS access codes, page numbers, program codes, and case numbers; information is purely administrative) (Exemption 7(C): protects the identities of Customs officers and third parties) (Exemption 7(A): exemption does not protect information in various reports because the investigation occurred over 5 years ago and the case has since been closed) (Exemption 7(D): protects information provided by an anonymous caller because the caller would not have spoken to agency personnel without an implied assurance of confidentiality; protects information provided by another federal agency because the exchange of information is conditioned on a previous understanding that information will be kept confidential) (Exemption 7(E): does not protect the use of planting transponders on aircraft suspected of smuggling, the fact that agencies work together on investigations, or the use of dogs to sniff for narcotics; techniques are common, well known, and disclosure does not lessen their effectiveness) (attorney fees: pro se plaintiff is not entitled to attorney fees; plaintiff has substantially prevailed because he has forced Customs to release a significant amount of redacted information it would not have disclosed without this lawsuit; plaintiff is entitled to costs).

Handlery Hotels, Inc. v. Consumer Prod. Safety Comm'n, No. 97-1100 (S.D. Cal. Dec. 15, 1997) (venue: complaint dismissed for improper venue; plaintiff has its principal place of business in northern California and the agency records in question are located in Suitland, Maryland).

Hardy v. FBI, No. 95-883 (D. Ariz. July 29, 1997) (duty to search: supplemental affidavit shows that the Bureau of Alcohol, Tobacco and Firearms (ATF) conducted a search reasonably calculated to uncover still and video pictures relating to the raid on the Branch Davidian Compound, even though no records were found) ("not an agency record" defense: videotapes and still photographs taken by ATF agents on the day of the raid, regardless of whether they were made with personally owned cameras, were created by ATF; personal use of the tapes was minimal, if any; ATF has failed to show why agents would make videos or take pictures for their own use, in spite of orders from supervisors not to do so; ATF must make a search for all such videotapes and photographs and release them to the plaintiff within 30 days) (Exemption 7(C): on in camera inspection, finds that agency may withhold wounded agent's voice from radio van audiotapes; agency must release the names of supervisory agents, the names of agents involved in the raid whose identities are already known to the public, and common and/or indistinct given names on the audiotapes, because privacy interests are outweighed by the strong public interest in knowing what happened when ATF served the search warrant at the Waco compound; ATF must produce an affidavit for any agent's name withheld in accordance with this order) (Exemption 7(E): agents' call signs/badge numbers may be withheld only if they are not publicly utilized by ATF; any other coded transmissions that are not apparent to the court must be identified by ATF, their use explained, and ATF must show how disclosure would jeopardize future law enforcement activities; ATF must make its redactions and disclose the audiotapes within 30 days).

Harvey v. Dep't of Justice, No. 96-0509, 1997 WL 669640 (D.D.C. Oct. 23, 1997) (Exemption 2: NADDIS numbers, G-DEP codes, and Cooperating Individual codes are predominantly internal and their disclosure would risk circumvention of agency regulations) (Exemption 7(C): protects the identities of DEA support personnel, DEA agents, state and local law enforcement officers, and subjects of investigative interest) (Exemption 7(D): protects the identity of and the information provided by a source who has been given a Cooperating Individual Code and state or local law enforcement agencies or authorities who provided information to DEA on a confidential basis; each informant who is assigned a Cooperating Individual Code is given an express promise of confidentiality) (Exemption 7(F): protects the identities of DEA Special Agents and other law enforcement officials; disclosure could result in "physical attacks, threats, harassment, and attempted murder" and could prevent them from "effectively accomplishing undercover and investigatory assignments") (duty to search: search for records was adequate, reasonable, and conducted in good faith).

Hawthorn Mgmt. Servs. v. HUD, No. 3:96-2435, 1997 WL 821767 (D. Conn. Dec. 18, 1997) (discovery in FOIA litigation: based on allegations in newspaper articles concerning the conduct of HUD auctions of certain unsubsidized mortgage loans and HUD's failure to disclose all pertinent information concerning the bidding process in its initial declaration, finds that plaintiff has made a sufficient showing of bad faith entitling it to the limited discovery it seeks).

Hollar v. IRS, No. 95-1882, 1997 U.S. Dist. LEXIS 12846 (D.D.C. Aug. 7, 1997) (in camera inspection: in camera inspection of the withheld information is unnecessary because IRS's Vaughn Index and affidavits are nonconclusory and sufficiently detailed to enable the court to conduct meaningful review; there is no evidence of agency bad faith) (Exemption 5: attorney-client privilege protects communications between an IRS district counsel and IRS revenue agents regarding tax-collection strategies in plaintiff's bankruptcy proceeding, communications between attorneys in other government agencies and IRS revenue officers, and communications between IRS attorneys and attorneys in other branches of the federal government; IRS was acting as would a private party seeking legal advice to protect its legal interests when the communications were made and the information has been kept confidential; the deliberative process privilege protects a handwritten note from one attorney to another discussing potential action to be taken by the IRS with respect to plaintiff's tax liabilities, 2 sets of drafts of a letter to be sent to plaintiff from the Chief of IRS's Collection Division, a memorandum from a revenue officer to an attorney requesting approval for proposed actions to be taken with respect to plaintiff's outstanding tax liabilities, and a revenue agent's referral report requesting that a certain tax return of plaintiff's be examined; these items were predecisional and deliberative and none represented the final agency decision; the attorney work-product privilege protects an attorney's notes made in preparation for a judicial summons enforcement against plaintiff and an attorney's file memorandum containing arguments, strategies, ideas, and opinions concerning plaintiff's bankruptcy proceeding).

Hunsberger v. Dep't of Justice, No. 92-2587 (D.D.C. July 22, 1997) (FOIA/PA interface: because the FBI exempted from disclosure its Central Records System records, the records were processed for release under the FOIA) (Vaughn Index: use of a coded Vaughn is appropriate) (duty to search: plaintiff presented only unsupported speculations that the FBI's searches were inadequate; FBI was not obligated to search anew based upon plaintiff's subsequent clarification of his request) (Exemption 1: FBI properly withheld classified information concerning intelligence activities or intelligence sources or methods) (Exemption 7 (threshold): files pertaining to national security investigations and to a Secret Service investigation meet the threshold requirement) (Exemption 7(C): protects the identities of federal employees, FBI personnel, and third parties) (Exemption 7(D): protects the identities of and information provided by a financial institution and an employee at that institution who provided information to the FBI under an express promise of confidentiality in the course of a criminal investigation).

Idaho v. United States Forest Serv., No. 97-0230-S (D. Idaho Dec. 9, 1997) (Exemption 6: Forest Service must release the name (but not street address) and city of residence of each individual holding a permit, license, or lease on Forest Service lands in Idaho; list of names and addresses is a "similar file"; individuals' privacy interests are outweighed by the public interest in disclosure; disclosure of individuals' names will shed light on agency's performance of its statutory duties by showing the identities of permittees; disclosure of "city of residence along with the name will prevent mistaken identifications without the intrusiveness that would result if the street address were disclosed as well"; disclosure of street addresses would be a "clearly unwarranted invasion of personal privacy" and would not provide additional insight into agency activities).

Inter Ocean Free Zone, Inc. v. United States Customs Serv., 982 F. Supp. 867 (S.D. Fla. 1997) (Exemption 4: protects "entry documents" submitted to Customs Service by an importer/consignee who imports merchandise to the United States, including the identification of the manufacturer and shipper, description of the merchandise, and other commercial information regarding the importation of goods; even though the company in question is in a weakened financial position, release of this information would disrupt customer relations and the company would, therefore, suffer substantial competitive harm).

Jackson v. DEA, No. 95-1463 (D.D.C. July 29, 1997) (Exemption 2 "high": disclosure of internal DEA markings and phrases, including NADDIS numbers, G-DEP codes, and Informant Identifier Codes, would enable individuals to circumvent agency investigative and law enforcement efforts) (Exemption 7(C): protects information that would identify various individuals who were implicated, involved, or associated with the plaintiff and the DEA's criminal investigation of him; privacy interests at stake outweigh the public interest in disclosure) (Exemption 7(D): agency's affidavits demonstrate that sources were provided with express promises of confidentiality) (Exemption 7(F): agency's affidavit demonstrates that the exemption protects the identities of DEA Special Agents and other law enforcement officers).

Jefferson v. Reno, No. 96-1284 (D.D.C. Aug. 12, 1997) (Exemption 7(A): in this FOIA case where plaintiff seeks 36 boxes containing materials used by the government in plaintiff's criminal trial and appeal, finds that defendant has not demonstrated that there is a currently pending or prospective law enforcement proceeding; at the time of plaintiff's initial FOIA request there were 4 appeals pending; however, shortly after submission of defendant's motion for summary judgment those convictions were affirmed, and after defendant's renewed motion for summary judgment, the Supreme Court denied certiorari; "[l]imiting the court's review of Defendant's decision to the status of the enforcement proceeding [as of the date of the initial denial] would appear to be a largely academic exercise that is both inefficient and contrary to the goals of the Freedom of Information Act"; defendant has not shown how disclosure of these materials would interfere with its enforcement proceedings; court refuses to allow defendant further attempts to justify its withholdings on a category-of-document basis; within 30 days defendant must produce a Vaughn Index of all documents withheld from plaintiff).

Johnston v. Dep't of Justice, No. 8:96-399 (D. Neb. Mar. 19, 1997) (bench order) (adequacy of request: plaintiff's FOIA request cannot reasonably be read to include DEA Agents Manual or any staff manuals; plaintiff did not reasonably describe information he sought relating to third parties) (adequacy of search: defendant has shown that it conducted a reasonable search in response to plaintiff's FOIA request) (agency records: surveillance tapes were not in the control of DEA at the time of the FOIA request) (Exemption 7(C): release of information concerning third parties would not shed light on the operations of the federal government).

Kay v. FCC, 976 F. Supp. 23 (D.D.C. 1997) (in camera inspection: denies plaintiff's request for in camera inspection; plaintiff's evidence of defendant's bad faith is speculative and conclusory; the fact that plaintiff acquired some of the withheld documents through formal discovery in an unrelated litigation does not imply that the FCC improperly withheld these same documents in violation of the FOIA; documents at issue did not exist at the time of the search) (Vaughn Index: FCC's two categorical Vaughn Indices and two accompanying declarations are adequate to allow the court to conduct de novo review) (Exemption 7 (threshold): requirement met by FCC investigation of plaintiff to determine whether he had violated FCC rules regarding the number of frequencies to which he was entitled and whether he had made misrepresentations in his FCC applications and correspondence) (Exemption 7(A): affidavits demonstrate that exemption protects records concerning an ongoing investigation of plaintiff for alleged violation of FCC rules and regulations; FCC may continue to withhold these records until "all reasonably foreseeable proceedings stemming from that investigation" are closed; disclosure of records would significantly harm proceedings; fears regarding witness intimidation are not unfounded) (FOIA was not meant to be used as a discovery tool).

Keen v. FBI, No. C 97-2657, 1997 U.S. Dist. LEXIS 16220 (N.D. Cal. Oct. 17, 1997) (venue: as plaintiff is a prisoner incarcerated at the federal penitentiary in Leavenworth, Kansas and the records he seeks are in the FBI's Honolulu Field Office and its Washington, D.C. Headquarters, venue is not proper in California; transfers action to the United States District Court for the District of Kansas).

Keenan v. Dep't of Justice, No. 94-1909 (D.D.C. Dec. 16, 1997) (Exemption 7(D): plaintiff is unable to point to any evidence to corroborate his belief that the confidential source represented by the permanent symbol was not expressly assured confidentiality; disclosure of a symbol will not shed light on the workings of the federal government) (Exemption 1 [E.O. 12,356]: defendant has not shown how the disclosure of any portion of documents between 32 and 46 years of age can reasonably be expected to cause damage to the national security or that the governments named in the documents still wish to maintain the secrecy of their cooperative efforts with the United States).

Klamath Water Users Protective Ass'n v. Dep't of the Interior, No. 96-3077-CO (D. Or. June 19, 1997) (magistrate's recommendation) (Exemption 5: records meet the "inter- or intra-agency" requirement because the United States and the Department of the Interior have a trust responsibility to protect the rights and resources of Indian Tribes and here the Bureau of Indian Affairs consulted with the Klamath Basin Tribes concerning the development of a local water-management project; deliberative process privilege protects 4 documents that predate the agency's decision regarding the filing of water-rights claims on behalf of the Tribes and 3 documents that predate the agency's release of a Plan of Operations for the Klamath Project; disclosure would expose the agency's decisionmaking process in such a way as to discourage candid discussions within the agency and undermine its ability to function; the attorney work-product privilege protects 3 documents prepared by attorneys in contemplation of potential litigation in the ongoing stream adjudication and the development of the Plan of Operations; disclosure would expose sensitive positions to be taken in the water rights adjudication and the preliminary views and the potential litigation strategy; all segregable portions have been released) (fee waiver (Reform Act): plaintiff has not provided sufficient information to demonstrate its ability to understand, process, and disseminate the requested information; plaintiff did not indicate how it planned to use the information or how the request was in the public interest), adopted (D. Or. Oct. 16, 1997).

Lepelletier v. FDIC, 977 F. Supp. 456 (D.D.C. 1997) (Exemption 4: agency must disclose the names of businesses with unclaimed deposits at failed banks; banks from which agency obtained the information are "persons" within the meaning of Exemption 4; depositors who have abandoned their deposits have no continuing expectation of confidentiality; the District of Columbia and Virginia, where the 3 failed banks are situated, both presume that bank deposits have been abandoned after 5 years of inactivity and provide for publication of the names of depositors) (Exemption 6: plaintiff failed to explain why release of this information would shed light on the operations of the federal government and has failed to demonstrate that this specific information was previously disclosed; court balances the "slight" privacy interest in this case against the nonexistent public benefits and finds that the names of living individual depositors must be protected).

Lurie v. Dep't of the Army, 970 F. Supp. 19 (D.D.C. 1997) (Exemption 7 (threshold): requirement met by internal, informal investigations of a research project conducted at Walter Reed Army Institute into a potential vaccine therapy for people infected with the HIV virus, because the investigations focused directly on the conduct of certain government employees; if the investigations had concluded with a finding of violation of law or regulation, the Army would have the option of conducting disciplinary proceedings; records were compiled for a law enforcement purpose) (Exemption 6: government employees who were targets of the investigation and government employees who were not targets of the investigation have a minimal privacy interest at stake; because the government received an appropriation of 20 million dollars of taxpayer funds, based apparently in part on the researcher's overly optimistic testimony, there is a substantial public interest in disclosure of information concerning the leader of the research project; disclosure would shed light on how the Army conducted its AIDS testing and its relationship with a nongovernment organization that lobbied Congress for funding; disclosure of information concerning individuals who played a lesser role in the vaccine testing would be a "clearly unwarranted invasion of personal privacy"; orders disclosure of factual witness information because the privacy invasion is "de minimus" and the public interest is substantial) (Exemption 5: neither the attorney-client nor the deliberative process privilege protects information in memoranda of telephone conversations and witness statements) (Exemptions 6 and 7(C): exemptions protect some information in 2 memoranda of telephone conversations; while there is only a minimal privacy interest in the redacted material, disclosure would shed no light on the operations of the federal government; protect information concerning personnel performance and employee relations, and information that would identify third parties; exemptions do not protect portions of project leader's statement to the investigating officer, because disclosure would not result in an intrusion of anyone's privacy; exemptions do not protect factual portions of witness statements).

Martin Marietta Corp. v. Dalton, 974 F. Supp. 37 (D.D.C. 1997) ("Reverse" FOIA/Exemption 4: commercial/financial information found in government contracts is "required" under Critical Mass by the Federal Acquisition Regulation and is therefore subject to the National Parks test; prior release of information to a limited number of requesters does not necessarily make the information a matter of common public knowledge or lessen the likelihood of substantial competitive harm if disclosed again; submitter failed to demonstrate that release of cost-and-fee information, contract line item numbers, and procurement strategies from government contracts is likely to cause substantial competitive injury to the plaintiff; in "no sphere of governmental activity" is the FOIA's core purpose of shedding light on the operations of federal agencies "more important than in the matter of government contracting").

Martinson v. DEA, No. 95-2161 (D.D.C. Nov. 27, 1997) (grants DEA's renewed motion for summary judgment because its Vaughn Index is adequate and its search was reasonable).

Martinson v. Violent Drug Traffickers Project, No. 95-2161 (D.D.C. July 16, 1997) (dismisses complaint against the United States Marshals Service and the FBI).

McDonnell Douglas Corp. v. NASA, 981 F. Supp. 12 (D.D.C. 1997) ("Reverse" FOIA/Exemption 4: NASA did not act "arbitrarily and capriciously" in determining that price information submitted by plaintiff in response to a solicitation for bids was "required" under the definition in Critical Mass; therefore, the test in National Parks governs the application of Exemption 4 in this case; it is unlikely that the release of this information will cause NASA difficulty in obtaining future bids; plaintiff has not demonstrated that release of information would cause substantial harm).

McNamera v. Dep't of Justice, 974 F. Supp. 946 (W.D. Tex. 1997) (Exemption 7(C): in this FOIA case where a newspaper publisher requested information about the drug-related convictions of a former county sheriff and a co-conspirator, finds that the FBI and INTERPOL properly refused to confirm or deny the existence of records; where release of information will not contribute significantly to the public understanding of the operation of the federal government and plaintiff is seeking law enforcement information about private citizens, the court need not inspect the documents in camera; neither the FBI nor INTERPOL were the investigating or prosecuting agencies in this matter; balancing the privacy rights of convicted felons against the public interest in disclosure, finds that the balance weighs in favor of withholding; simply because a person was once a public official does not mean that he "retains that status throughout his life"; INS and the Executive Office for United States Attorneys properly withheld information concerning subjects of investigative interest, witness statements, information provided by confidential informants, investigators' notes, rap sheets, names of state and local law enforcement personnel, identities of third parties, and personal information) (Exemption 2: protects internal tracking information, including NADDIS numbers and G-DEP codes because disclosure could compromise ongoing criminal investigations) (Exemption 7(D): DEA's affidavits demonstrate that sources were either given express assurances of confidentiality or information was provided under circumstances that characteristically support an inference of confidentiality).

Medrano v. DEA, Nos. 95-0703, 96-0734 (D.D.C. July 11, 1997) (case dismissed because plaintiff has not exhausted his administrative remedies).

Medrano v. DEA, Nos. 95-0703, 96-0734 (D.D.C. July 29, 1997) (plaintiff's motion for reconsideration is denied; plaintiff has not paid the required search fee, nor formally applied for a fee waiver).

Morris v. Comm'r, No. F-97-5031, 1997 U.S. Dist. LEXIS 21030 (E.D. Cal. Nov. 19, 1997) (adequacy of request: plaintiff did not make a valid FOIA request because he did not request documents in existence) (adequacy of search: defendant conducted an adequate search with respect all documents requested by plaintiff, except those dealing with plaintiff's classification as a tax protester and his tax-related activities) (proper party defendant: federal agencies, not individuals, are proper party defendants under the FOIA) (attorney fees: pro se litigants are not entitled to attorney fees under the FOIA; plaintiff has not substantially prevailed in this action).

Nat'l Veterans Legal Servs. Program v. VA, No. 96-1740 (D.D.C. July 2, 1997) (magistrate's recommendation) (attorney fees: this civil action was necessary and played a role in the ultimate receipt of the requested information, because the agency did not make a good-faith effort to locate the information and was "unjustifiably delayed" in releasing it despite the need for the subject's consent; after the subject consented to the release of the information, the further withholding of it was unreasonable and a "waste of the Court's time and resources"; the release of information was in the public interest because it enabled one individual to utilize her Veterans' benefits; only the subject of the documents would gain by the release of this information, not plaintiff, a nonprofit organization that did not receive any commercial benefit from this action; reduces by approximately one-half the number of hours 2 attorneys and one law clerk claimed to have worked on the complaint; grants plaintiff $5,488.75 in attorney fees), adopted in large part (D.D.C. Oct. 29, 1997) (attorney fees: adopts magistrate's findings, but increases the total amount awarded by $21.40 to cover plaintiff's itemized litigation costs).

N. Dartmouth Props., Inc. v. HUD, 984 F. Supp. 65 (D. Mass. 1997) (Exemption 5: deliberative process privilege protects April 1, 1996 e-mail that was written after agency decision was made, but which relates to and essentially reiterates predecisional deliberations regarding the use of an investigative team at a housing project; disclosure of post-decisional e-mail might affect the quality of agency's decisionmaking process; author may not have known that the agency had reached its final decision at the time he prepared his comments; e-mail did not lose its protection when the agency reached its decision because there is no reason to believe that the author's reasoning ultimately was adopted by the agency; on in camera inspection, finds that there is no factual information in the e-mail message that can be segregated and released without disclosing the nature of the deliberative process; deliberative process privilege protects the March 6, 1996 e-mail, sent by the author to a supervisor and a subordinate, because it predates the agency decision and contains the author's subjective recommendations; privilege protects communications in which a superior "engages[s] a subordinate in candid debate"; there are no segregable portions).

O'Harvey v. Office of Workers' Comp. Programs, No. 95-0187 (E.D. Wash. Dec. 29, 1997) (Exemption 4: disclosure of information in Physician Directory Service would impair the government's ability to purchase software data in the future and would result in substantial competitive harm to the publisher) ("unreasonably burdensome": because the agency does not maintain a contractual relationship with doctors who provide second opinions, a search for these physicians would entail the review of millions of pages of documents and this task would be "unreasonably burdensome" for the agency).

O'Kane v. United States Customs Serv., No. 95-0683 (S.D. Fla. Nov. 5, 1997) (Exemption 7(C): protects the names and home addresses of individuals charged with violating laws of the United States in certain Customs Service forfeiture cases; the Eleventh Circuit has ruled that individuals' privacy interest in their home addresses is "important"; individuals have substantial privacy interests in information that either confirms or denies that they have been subjects of criminal investigations; the Electronic FOIA Amendments merely clarify that records in an electronic format are subject to disclosure to the public; the amendments do not significantly enlarge the scope of the public interest served by the FOIA, nor do they overturn Bibles (or, implicitly, Reporters Committee); release of this information will not shed light on the agency's performance of its statutory duties).

O'Meara v. IRS, No. 96 C 7276 (N.D. Ill. Aug. 4, 1997) (Exemptions 6 and 7(C): protect the names of criminal investigators and any information that would identify investigators in undercover positions) (attorney fees: plaintiff is entitled to costs, but not attorney fees, because defendant's pre-lawsuit position was not substantially justified).

Owens v. Fed. Bureau of Prisons, No. 97-7327 (S.D.N.Y. Oct. 2, 1997) (the statute of limitations for claims filed under the FOIA is 6 years; plaintiff's claim that the warden failed to produce documents on April 24, 1990 is dismissed as time-barred) (Exemption 2: without further specification, finds that the exemption protects personnel information).

Penners v. Comm'r, No. S-97-1327, 1997 U.S. Dist. LEXIS 21869 (E.D. Cal. Dec. 30, 1997) (exhaustion: plaintiff, who has not appealed agency's initial denial of information under the FOIA, has failed to exhaust his administrative remedies).

Peralta v. United States Attorney's Office, No. 94-00760 (D.D.C. June 6, 1997) (in light of recent FOIA amendments, the stay granted to the FBI must be modified; this case shall be stayed until October 2, 1997 (the effective date of the Electronic FOIA Amendments); should FBI require additional time to process plaintiff's request for documents, it must demonstrate that it is in compliance with the standard for agency compliance with statutory time limits under the Electronic FOIA Amendments).

Perdue Farms, Inc. v. NLRB, No. 2:96-27, 1997 U.S. Dist. LEXIS 14579 (E.D.N.C. Aug. 5, 1997) (magistrate's recommendation) (Exemption 5: in this case where plaintiff sought documents concerning the Board's union election fraud investigation finds that the deliberative process privilege protects communications between an NLRB agent and his supervisor, evaluations of the progress of the investigation and proposed direction of the investigation, agents' analyses of the "showing of interest" investigation, witness notes, and recommendations, a draft order, a draft of a letter to Congress setting forth evidence and information in the agency's possession, an assessment of union's possible hearing strategy, and the name of a Special Agent from the Department of Labor; none of the information at issue was adopted formally or informally by the agency; plaintiff has provided nothing to support its conclusory allegation that the defendant was creating a body of "secret law"; attorney work-product privilege protects information pertaining to the progress of the investigation) (Exemption 7 (threshold): "compiled for law enforcement purposes" contains no requirement that the compilation be effected at a specific time; agency's investigation was related to the enforcement of federal laws) (Exemption 7(A): disclosure of a letter explaining Regional Director's opinion of the criminal investigation and the disclosure of the names of Special Agents would interfere with the ongoing investigation) (Exemption 7(C): protects the names of Special Agents).

Pub. Citizen Health Research Group v. FDA, No. 96-1650 (D.D.C. Nov. 3, 1997) (Exemption 4: joint report submitted by 2 court-appointed experts finds that disclosure of protocol for a 10,000 patient post-marketing study of the drug Metformin would not cause competitive harm to the manufacturer; study must be released).

Pub. Employees for Envtl. Responsibility v. EPA, 978 F. Supp. 955 (D. Colo. 1997) (in camera inspection: in this FOIA case where EPA withheld portions of the Office of Inspector General Investigations Manual and related documents, finds that EPA's declarations provide the court with an "passable" description of the withheld material, but give a conclusory explanation regarding the applicability of any FOIA exemptions; orders in camera inspection) (Exemption 7(E): on in camera inspection, finds that disclosure of information concerning the use of search warrants and firearms, information concerning protection of confidential sources' identities, information about a technique known as mail cover, information on EPA's indexing system, information about audio and videotape evidence, information about the coding of confidential sources, procedures for interception of wire, oral, and electronic communications, information on agent deputation and procedures for firearm use, information concerning interactions between investigators and prosecutors, information about expediting the processing of referrals to prosecutors, and sample letters which explain reasons why United States Attorneys might not pursue prosecution in various cases would not risk circumvention of the law; disclosure of information concerning criteria defendant uses to prioritize investigations, guidelines for investigations, and information about investigative procedures and statements would risk circumvention of the law) (Exemption 7(F): release of information concerning procedures for interception of wire, oral, and electronic communications, information on agent deputation and procedures for firearm use would not risk harm to individuals) (scope of request: EPA properly withheld portions of the manual that were rescinded prior to the date of plaintiff's FOIA request, because plaintiff sought information about policies and procedures "currently followed" by EPA).

Rabin v. Dep't of State, 980 F. Supp. 116 (E.D.N.Y. 1997) (adequacy of search: within 30 days the CIA must submit a supplemental affidavit from supervisory personnel describing the structure of its record systems, the identity of the files searched, and an explanation of why its earlier searches would have uncovered requested documents) (pro se plaintiff: courts should afford pro se plaintiffs "special solicitude") ("reasonably described" records: within 30 days the CIA and the State Department must submit supplemental affidavits stating whether they adhere to their earlier determinations that one item in plaintiff's request did not "reasonably describe the records sought" and, if so, explaining why they reached this determination) ("exceptional circumstances"/"due diligence": State Department has demonstrated that it has an overwhelming backlog of FOIA requests and that it processes them in the approximate order received unless there is an urgent need for the information; grants State Department an Open America stay until March 31, 1998) (expedited processing: plaintiff has failed to demonstrate that he has an exceptional need for information concerning the government's "satellite-based assault" on him).

Reiter v. DEA, No. 96-0378, 1997 WL 470108 (D.D.C. Aug. 13, 1997) (Vaughn Index: DEA's Vaughn Index sufficiently describes the type of material deleted, each deletion, and the exemption invoked) (Exemption 7 (threshold): threshold requirement met by DEA investigation of plaintiff, who was the leader of a vast heroin distribution network) (Exemption 7(C): protects the identities of third parties, DEA Special Agents, informants, law enforcement personnel, and state and local law enforcement agencies involved in the investigation of plaintiff, whether they are deceased or not; while the privacy interests of deceased individuals "may diminish, it does not subside entirely") (Exemption 7(D): in this case where DEA demonstrated that its informants were given express promises of confidentiality, finds that the source and the information provided by that source remain confidential indefinitely, despite the fact that the source has testified in court).

Rothman v. Daschle, No. 96-5898, 1997 U.S. Dist. LEXIS 13009 (E.D. Pa. Aug. 20, 1997) (fees (Reform Act): grants defendant's motion for summary judgment; plaintiff has failed to respond to its request for advance payment of photocopying costs in excess of $250 for information responsive to his FOIA request).

Save Our Springs Alliance v. Babbitt, No. A-97-259 (W.D. Tex. Nov. 19, 1997) (Exemption 6: the similar files requirement is met by addresses and a telephone number of private citizens who sent correspondence to the Department of the Interior concerning listing the Barton Springs salamander as an endangered or threatened species; plaintiff has sufficient information to understand the operation of the federal government--it knows the names of the correspondents and knows that they were all residents of the Barton Creek watershed; "any marginal benefit" that would flow from the release of the addresses and the telephone number is outweighed by the significant invasion of personal privacy).

Sawyer v. Musumeci, Nos. 96-6497, 96-6689, 1997 U.S. Dist. LEXIS 9760 (S.D.N.Y. July 8, 1997) (under the FOIA, a denial of information must be appealed to the head of the agency; plaintiff has not exhausted his administrative remedies under the FOIA).

Schrecker v. Dep't of Justice, 970 F. Supp. 49 (D.D.C. 1997) (fee waiver (Reform Act): grants plaintiff a full fee waiver where the FBI sought a reduction due to the fact that 25% of requested documents consisted of materials in the "public domain"; "the mere fact that particular records have been released to other requestors does not mean that the information contained in the records is readily available to the public").

Scott v. DEA, No. 97-0538 (D.D.C. Sept. 19, 1997) (duty to search: agency has demonstrated that it conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request).

Shumaker, Loop & Kendrick v. Commodity Futures Trading Comm'n, No. 3:97-7139 (N.D. Ohio Nov. 4, 1997) (on in camera inspection, without specification, finds that agency properly withheld 4 documents under Exemption 3 and properly withheld 4 documents under Exemption 5).

Smilde v. Richardson, No. 97-568, 1997 U.S. Dist. LEXIS 15050 (D. Minn. Aug. 27, 1997) (plaintiff's FOIA claim is dismissed because he has not exhausted his administrative remedies).

Smith v. ATF, 977 F. Supp. 496 (D.D.C. 1997) (Exemption 7(C): protects the identities of ATF agents, other state and federal law enforcement officers, and third parties contained in records concerning plaintiff's conviction on two federal weapons charges; plaintiff does not have any greater rights under the FOIA because he is seeking exculpatory information; fact that plaintiff can guess whose names have been deleted from the released documents does not act as a waiver of the privilege) (Exemption 7(D): mere fact that confidential informant has testified at trial does not waive the protection of this exemption) (Exemption 7(E): agency's description of deletions pursuant to this exemption are too conclusory for court to determine whether the exemption was properly invoked; agency must file a supplemental declaration by October 20; to the extent necessary, the declaration may be filed in camera) (Exemption 7(F): agency has not demonstrated that the disclosure of the identities of federal and local law enforcement officials would reasonably be expected to endanger their physical safety (the court concluded that the defendant properly invoked Exemption 7(C) to protect this information)) (duty to search: in order to demonstrate the adequacy of its search, agency must submit a supplemental declaration by October 20 which describes the manner in which it searched its primary computer records systems, such as by identifying the queries used) (in camera inspection: the interests of judicial economy are best served by allowing defendant to submit a revised declaration, rather than by in camera review of two withheld documents).

Smith v. IRS, No. 96-0642 (E.D. Pa. Aug. 7, 1997) (duty to search: defendant's affidavit demonstrates that it conducted a search reasonably calculated to uncover documents relevant to plaintiff's FOIA request; plaintiff's speculation that undiscovered documents may exist does not undermine this finding).

Springmann v. Dep't of State, No. 93-1238 (D.D.C. Aug. 6, 1997) (Exemption 1: denies government's renewed motion for summary judgment; agency's supplemental affidavit does not demonstrate that the release of 2 paragraphs from a compliance review of the Riyadh Embassy would cause damage to the national security; court sees no connection between our national security and disclosure of information about the consumption of alcoholic beverages by non-Muslim employees at the embassy, the "offensive" behavior in women's dress or the display of non-Muslim religious symbols).

Steinberg v. Dep't of Justice, No. 93-2409 (D.D.C. July 14, 1997) (duty to search: FBI's search, limited to its Headquarters files, for 7 specific requested documents was adequate; FBI's search of 5 field offices and 2 Legat offices for documents responsive to this request was adequate) (Exemption 1 [E.O. 12,356]: FBI's coded Vaughn Index is not sufficiently detailed to ensure meaningful judicial review) (Exemption 7(C): FBI has not justified the use of this exemption to protect entire documents in which certain people were mentioned in connection with law enforcement investigations, including FBI Special Agents and personnel, informants, subjects of investigative interest, and third parties; with respect to the release of information about 3 named individuals, finds that even widespread knowledge about a person's business dealings cannot serve to diminish his privacy interests in matters that are truly personal (addresses, telephone numbers, and names of family members); privacy waivers from 2 individuals submitted 2 years after this litigation was initiated cannot be used to challenge the propriety of defendant's actions at the time of the FOIA request) (Exemption 7(D): FBI must submit a supplemental Vaughn Index that either discloses all the parenthetical indications concerning express promises of confidentiality, provides a more detailed statement in support of its claim of express confidentiality, or explains why an implied assurance of confidentiality may be appropriate; affidavit describing express promises of confidentiality given to state or local law enforcement agencies must be supplemented by August 7, 1997; FBI has shown sufficient circumstances to warrant a finding of an implied assurance of confidentiality given to a foreign law enforcement agency in South America, where a former member of the CIA may have been involved) (Exemption 7(E): protects information about the use of a computerized telephone numbering file and another technique used to track the travel arrangements of suspect individuals; although criminals may be generally aware of the fact that the FBI can wiretap telephones or track travel arrangements, they may not know the precise details of the technique and disclosure would enable such individuals to circumvent these techniques) (Vaughn Index: FBI must file a notice indicating the earliest date at which it can compile a Vaughn Index with regard to its withholdings under Exemptions 1, 7(C), and 7(D), except as noted above).

Tawalbeh v. Dep't of the Air Force, No. 96-6241 (C.D. Cal. Aug. 8, 1997) (Exemption 7(C): protects the identities of FBI Special Agents and support personnel, Air Force investigators, and third parties) (Exemption 7(D): protects the "T-Symbols" of sources who were given express promises of confidentiality) (Exemption 1 [E.O. 12,958]: agency declarations demonstrate that proper classification procedures were followed and that disclosure of information concerning military plans or weapons, vulnerabilities or capabilities of systems, foreign relations, and intelligence activities could reasonably be expected to damage national security) (Exemption 2 "low": protects FBI's temporary source symbol numbers, because their use is an "internal practice"; "high": protects Air Force's internal intelligence collection codes and security codes because disclosure would enable unauthorized persons to decode classified messages).

Tel. Publ'g Co. v. Dep't of Justice, No. 95-521 (D.N.H. Sept. 30, 1997) (Vaughn Index: defendant's coded Vaughn Index, which divides 14,000 documents into 26 categories, fails to provide the necessary detailed description for many of the withheld documents; in these instances, defendant must submit a supplemental Vaughn Index) (Exemption 7(C): disclosure of the activities of local officials, rather than of a federal agency, is not a public interest that serves the core purpose of the FOIA; there is a public interest in the prosecutorial decisionmaking function of the United States Attorney's Office; despite a "somewhat ill-defined category" in agency's declaration, finds that the exemption protects 10,259 documents responsive to grand jury subpoenas that contain third-party information; while the names of public officials must be released, the exemption protects the identities of federal and state law enforcement personnel and third parties contained in fax cover sheets and agents' notes; from a chronology of events, statements made by third parties, and correspondence; protects medical records, personal expense accounts, and credit histories of law enforcement personnel and informants, but does not protect their connection to the criminal investigation, "personal details," relationships to defendants, and personal experiences; protects presentence reports and personal information about defendants in a criminal action; defendant has not shown that the exemption protects personal information about informants and subjects of investigative interest from 164 pages of correspondence; agency must release a videotape that was televised 4 years before this FOIA request was made) (attorney fees: without specification, finds that plaintiff has not made a sufficient showing in support of its request for interim attorney fees).

Terry v. IRS, No. 96-1642, 1997 U.S. Dist. LEXIS 17025 (D. Ariz. Sept. 30, 1997) ("reasonably described" records: plaintiff's FOIA request for documents or answers to legal questions regarding the basis of our tax system does not describe records sought in sufficient detail; FOIA does not require federal agencies to answer questions; motion for Vaughn denied as moot; grants defendant's motion to dismiss).

Thompson v. Dep't of the Navy, No. 95-347, 1997 U.S. Dist. LEXIS 12583 (D.D.C. Aug. 18, 1997) (Exemption 5: the deliberative process privilege protects 3 documents and 1 videotape created by the Navy while preparing senior Navy officials for press conferences following the 1989 explosion aboard the USS Iowa, because they reflect the strategy sessions in which the Navy formulated its policy for dealing with media inquiries into the incident) (Exemption 6: plaintiff has not demonstrated that privacy interests with respect to 2 documents have been waived).

Unigard Ins. Co. v. Dep't of the Treasury, 997 F. Supp. 1339 (S.D. Cal. 1997) (jurisdiction: plaintiff, whose name does not appear on the FOIA request, does not have standing to sue under the FOIA; it is irrelevant that the agency knew that the FOIA requester represented plaintiff) (venue: Southern District of California is not the proper venue for this FOIA action; the requested agency records are located in Utah and plaintiff's principal place of business is in Washington State).

United States v. Colima-Monge, 978 F. Supp. 941 (D. Or. 1997) (in this criminal case where the court ordered the criminal defendant to issue a subpoena duces tecum to the INS to obtain his co-defendant's "A-file," on in camera inspection of the portion of the file that the INS wished to redact under the FOIA, court finds that the agency must release information that is relevant either to the charges against defendant or to his motion to dismiss; orders that information related solely to internal agency practices be disclosed and the names of government personnel).

Valencia-Lucena v. United States Coast Guard, No. 97-1693 (D.D.C. Dec. 18, 1997) (adequacy of search: agency conducted a reasonable search in response to plaintiff's FOIA request).

Wade v. IRS, No. 96-1855 (D.D.C. Aug. 21, 1997) (fees (Reform Act): defendant need not respond to plaintiff's FOIA request until plaintiff pays or makes a firm commitment to pay $3305.38 for processing his request).

Weinstein v. HHS, 977 F. Supp. 41 (D.D.C. 1997) (Exemption 5: the deliberative process privilege protects a letter written by an applicant for NIH funding in response to comments about his application written by NIH's Scientific Review Group (SRG); release of the letter would effectively disclose the substance of the SRG report and would discourage candid and honest evaluations of applications; while the letter is not an "intra-agency" document per se, it is part of the give-and-take of the deliberative process that has been traditionally protected by Exemption 5).

Weiss v. Sawyer, 28 F. Supp. 2d 1221 (W.D. Okla. 1997) (FOIA does not authorize suit against individuals; case dismissed for failure to exhaust administrative remedies).

Williams v. FBI, 17 F. Supp. 2d 6 (D.D.C. 1997) (attorney fees: in this case where plaintiff brought suit to compel government to release 2 documents, finds that while the FBI ultimately released one document, this lawsuit "encourage[d] [a] reluctant agenc[y] to waive [its] . . . interests" with respect to the first document; after 5 years of litigation the FBI was ordered to release the second document in redacted form; plaintiff has substantially prevailed; documents concerning plaintiff's arrest for narcotics trafficking are of little interest to the general public; plaintiff, a pro se litigant, was motivated by a personal interest because he sought to pursue his constitutional rights; an award of fees would serve a larger public purpose of encouraging service on the Civil Pro Bono Counsel Panel--as has plaintiff's attorney, who has served without compensation for 7 years; government's "obdurate behavior" necessitated years of costly litigation which the FBI could have avoided by simply complying with FOIA's segregation requirement; attorney fees granted to plaintiff).

Willis v. FBI, No. 96-1455 (D.D.C. Aug. 6, 1997) (magistrate's recommendation) (Vaughn Index: agency's affidavit provides explanations for withholding information and correlates the withheld material to specifically cited exemptions) (Exemption 2 "high": disclosure of NADDIS numbers, G-DEP codes, and Informant Identifier Codes "will encourage unauthorized access to privileged information and will diminish the effectiveness of law enforcement investigations") (Exemption 7(C): protects the identities of witnesses and informants, even though the underlying investigation concluded 7 years ago and the identities of the individuals are known to plaintiff).

Woodfolk v. DEA, No. 97-0634 (D.D.C. Nov. 17, 1997) (dismisses this FOIA case against all Justice Department components, except for the FBI; without further specification, grants the FBI a stay until August 31, 2001).   (posted 1/31/02)

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