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 1993. OIP is preparing additional compilations of decisions received during previous months and years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).
Anderson v. HHS, 3 F.3d 1383 (10th Cir. 1993) (mootness: the district court properly dismissed plaintiff's action under the FOIA once she received all the documents she requested, even though the attorney fees issue remained unresolved; "the expiration of the underlying cause of action does not moot a controversy over attorney's fees already incurred"; until the district court enters final judgment on the merits of the fee issue, plaintiff may not appeal the district court's interlocutory denial of her request to take depositions in connection with her application for attorney fees).
Army Times Publ'g Co. v. Dep't of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993) ("reasonably segregable": in this FOIA request for the results of telephone polls conducted by outside pollsters, the court, applying PHE, Inc. v. Department of Justice, reverses and remands the district court's finding that this information may be withheld under Exemption 5; despite defendant's specific request, the district court failed to enter a finding of segregability; the Air Force has not met its burden of showing that no reasonably segregable information exists within the documents withheld; releasing certain poll results and not others "strongly suggests" that the remaining survey results are not worthy of a blanket claim of exemption) (waiver: the Air Force has not waived its claim to this exemption simply because it has released similar information in the past).
Atkin v. EEOC, No. 93-5457 (3d Cir. Dec. 6, 1993) (FOIA case dismissed for failure to timely prosecute).
Atkin v. Kemp, No. 93-5548 (3d Cir. Dec. 6, 1993) (FOIA case dismissed for failure to timely prosecute).
Beck v. Dep't of Justice, 997 F.2d 1489 (D.C. Cir. 1993) (Exemptions 6 and 7(C): agency properly refused to confirm or deny the existence of records concerning alleged wrongdoing by 2 named DEA agents; in the absence of any publicity regarding such matters, these records will not "shed light on what the government is up to"; there is no public interest in disclosure, so there is no need to "linger over the balance"; a government employee has at least some privacy interest in his own employment records).
Bell v. FBI, No. 93-1485 (6th Cir. Oct. 18, 1993) (unpublished memorandum), 9 F.3d 106 (6th Cir. 1993) (table cite) (Exemption 7(C): protects identities of third parties contained in plaintiff's criminal investigation records, including informants and FBI employees and Special Agents) (Exemption 7(D): applying Landano, finds that the exemption protects information containing the names of local enforcement agencies and officers of these agencies with whom the FBI has an ongoing relationship in regard to the investigation of drug trafficking).
Chesapeake Bay Found. v. USDA, 11 F.3d 211 (D.C. Cir. 1993) (attorney fees: in this case where the plaintiff requested information concerning the use of pesticides in and around the Chesapeake Bay watershed, reverses and remands the district court's grant of attorney fees to the plaintiff because the court "completely failed" to consider the "reasonableness" of the agency's withholding of requested documents; even the plaintiff concedes that the USDA's basis for withholding the survey data was reasonable; the district court must either disallow fees, if it finds that the agency's withholding was reasonable or correct, or if it finds that the agency's position was incorrect, it must weigh the conceded "reasonableness" of the withholding along with the other entitlement factors).
Comm. to Bridge the Gap v. DOE, No. 92-55604 (9th Cir. Nov. 15, 1993) (unpublished memorandum), 10 F.3d 808 (9th Cir. 1993) (table cite) (attorney fees: the district court did not abuse its discretion in denying the plaintiff attorney fees in this FOIA case where plaintiff sought draft orders which were not binding and had never been implemented; the lower court had found that the public benefit in the plaintiff's lawsuit "does not seem overwhelming" and that the withholding of the documents was reasonable).
Currier v. IRS, No. 93-1667 (7th Cir. Dec. 29, 1993) (unpublished order), 14 F.3d 604 (7th Cir. 1993) (table cite) (the district court properly granted summary judgment to the government in this FOIA case where the payment of fees was the only issue, even though the IRS delivered the requested documents to plaintiff 3 days before summary judgment was granted).
In re Dep't of Justice, 999 F.2d 1302 (8th Cir. 1993) (en banc) (Exemption 7(A): in an 8-2 decision, the en banc court, citing Robbins Tire, Reporters Committee, and Landano, finds that the Supreme Court has consistently interpreted Exemption 7 of the FOIA to permit the government to proceed on a categorical basis in order to justify nondisclosure under one of Exemption 7's subsections; these interpretations are strengthened by Congress's 1986 FOIA amendments; the government does not have to provide fact-specific, document-specific information with respect to each of 13,800 documents to justify its claim that Exemption 7(A) applies to the FBI's files concerning the disappearance of Jimmy Hoffa; the district court went beyond the scope of its authority when it ordered the FBI to produce such a Vaughn Index; the government may meet its burden by defining functional categories of documents and conducting a document-by-document review to assign documents to proper categories and then demonstrate how the disclosure of each category would likely interfere with its investigation; case vacated and remanded to the district court for further proceedings) (McMillian, J., dissenting, joined by Arnold, J.).
Dickerson v. Dep't of Justice, No. 92-1458 (6th Cir. Aug. 3, 1993) (rehearing en banc denied in this Exemption 7(A) case where the court had ruled that a full document-by-document Vaughn Index of the FBI's Jimmy Hoffa files was not necessary).
Durham v. United States Postal Serv., No. 92-5511 (D.C. Cir. July 27, 1993) (summary affirmance granted in this FOIA case where the district court had ruled that the release of information concerning a pending homicide investigation was protected by Exemptions 7(A) and 7(C)).
Engelking v. DEA, No. 93-5091 (D.C. Cir. Oct. 6, 1993) (summary affirmance granted to the government as to information withheld under Exemptions 2, 3 [Rule 6(e)], 5, 7(A), 7(C), 7(E), and 7(F)) (the parts of the district court opinions that upheld nondisclosure under Exemption 7(D) are vacated and remanded to the district court for further proceedings in light of Landano).
Farese v. Dep't of Justice, No. 93-5034 (D.C. Cir. July 27, 1993) (grants agency's motion for summary affirmance; agency properly withheld information under Exemptions 3 (Rule 6(e)) and 7(C)).
Ferguson v. FBI, No. 92-6272 (2d Cir. July 19, 1993) (Exemption 7(D): in light of Landano, case is remanded to the district court for a document-by-document analysis to determine whether FBI sources are confidential).
Gen. Dynamics Corp. v. Dep't of the Air Force, No. 92-5186 (D.C. Cir. Sept. 23, 1993) (this "reverse" FOIA case is vacated as moot because the FOIA request was withdrawn).
Hale v. Dep't of Justice, 2 F.3d 1055 (10th Cir. 1993) (Exemption 7(D): in light of Landano, modifies the Tenth Circuit rule to require a source-by-source determination of the expectations of confidentiality of sources; if the district court chooses to rely on an inference of confidentiality, it should indicate that it is doing so and articulate the circumstances relied on to support such an inference; in all other instances, the court should make findings peculiar to the source as to whether that source "furnished [the] information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes"; remanded to the district court for reconsideration of plaintiff's claims to access documents withheld under Exemption 7(D)).
Hanner v. Stone, No. 92-2565, 1993 WL 302206 (6th Cir. Aug. 6, 1993) (unpublished order), 1 F.3d 1240 (6th Cir. 1993) (table cite) (the doctrine of res judicata bars the plaintiff from relitigating claims raised in prior complaints).
Koch v. United States Postal Serv., No. 93-1487, 1993 WL 394629 (8th Cir. Oct. 8, 1993) (unpublished memorandum), 7 F.3d 1042 (8th Cir. 1993) (table cite) (Exemption 7 (threshold): investigatory report compiled after it was alleged that plaintiff threatened to bring a grenade into work was compiled for law enforcement purposes) (Exemption 7(C): protects the identity of the informant) (Exemption 7(D): applying Landano, finds that the exemption protects the identity of the informant and the information provided by that person; in light of the alleged threat and because the informant made a sworn statement at the request of Postal Inspectors, the court concludes that an assurance of confidentiality may be reasonably inferred).
Lindsey v. NSA/Cent. Sec. Serv., No. 92-2309 (4th Cir. Sept. 16, 1993) (unpublished memorandum), 7 F.3d 224 (4th Cir. 1993) (table cite) (defendant's affidavit demonstrates that an adequate search for records concerning the Glomar Explorer was conducted, even though no documents were found).
Mapother v. Dep't of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (Exemption 5: the deliberative process privilege protects the Waldheim Report because the majority of its "factual material was assembled through an exercise in judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action"; however, part of this report entitled "Chronology of Mr. Waldheim's Military Service" is merely an inventory and must be released; finds additionally that this Chronology is not protected by the attorney work-product privilege or by Exemption 7(C)) (Exemption 7(A): exclusion actions qualify as "enforcement proceedings" under this exemption; applying Reporters Committee, finds that a categorical approach is appropriate in determining the likelihood of enforcement proceedings in cases where an alien is excluded from entry into the United States because of his alleged participation in Nazi activities; therefore, the exemption's requirement that enforcement proceedings be reasonably anticipated is met; the premature disclosure of a 43-page index of all documents in the Waldheim active file could prejudice an enforcement proceeding; remands the remainder of the Justice Department's Exemption 7(A) withholdings for further consideration).
Md. Coalition for Integrated Educ., Inc. v. Dep't of Educ., No. 92-5346 (D.C. Cir. Dec. 15, 1993) (appeal dismissed in this FOIA case where the district court ruled that the deliberative process privilege does not protect compliance monitoring efforts).
Massey v. FBI, No. 89-12C (W.D.N.Y. Feb. 7, 1992), aff'd in part & vacated & remanded in part, 3 F.3d 620 (2d Cir. 1993) (Exemption 2: protects the names of informants from an FBI document concerning plaintiff's New York murder conviction) (Exemption 7(D): in light of Landano, remands this case to the district court for a "particularized" showing that the FBI received information from informants, including nonfederal law enforcement agencies, under circumstances which give rise to an inference of confidentiality) (Exemption 7(C): applying Reporters Committee, finds that this exemption protects the names of FBI agents, witnesses, third parties, and cooperating law enforcement officials from a newspaper article and an internal FBI memorandum; individuals "can retain strong privacy interests in government documents containing information about them even where the information may have been public at one time") (FOIA as a discovery tool: disclosure does not turn on the purposes for which the request is made).
Mayo v. Gov't Printing Office, 9 F.3d 1450 (9th Cir. 1993) (agency: the Government Printing Office is a part of the legislative branch and therefore is not subject to the requirements of the FOIA).
McClain v. Dep't of Justice, 13 F.3d 220 (7th Cir. 1993) (affirms district court's denial of a $950 waiver of duplication fees; plaintiff has not demonstrated that the release of information concerning his conviction would "contribute significantly to public understanding of the operations or activities of the government").
United States, 4 F.3d 1227 (3d Cir. 1993) (jurisdiction: even though a
motion for attorney fees is outstanding in the district court, the district
court's order granting partial summary judgment to both parties is a final appealable
order giving the Third Circuit jurisdiction over this appeal under 28 U.S.C.
Miller v. USDA, 13 F.3d 260 (8th Cir. 1993) (Exemption 7 (threshold): documents concerning an investigation into the purchase and shipment of cattle infected with brucellosis were compiled for law enforcement purposes) (Exemption 7(A): the government must make a more specific showing of why disclosure of the requested documents "could reasonably be expected to interfere with law enforcement proceedings"; case remanded for a determination of whether the administrative proceedings against the plaintiff were initiated in bad faith).
Miscavige v. IRS, 2 F.3d 366 (11th Cir. 1993) (Vaughn Index: affidavits can be sufficient for summary judgment purposes "if they provide as accurate a basis for decision as would sanitized indexing, random or representative sampling, in camera review, or oral testimony"; in this case, which concerns approximately 50 pages on appeal, finds that a Vaughn Index would not have assisted the court in making its decision, because the district court had an adequate factual basis for its decision that the documents were protected by the FOIA exemptions) (in camera inspection: while in camera inspection would have furnished further support for the trial court's decision, there was no reversible error in failing to conduct such an inspection; suggests that when so few documents are at issue, an in camera inspection might be the preferred procedure, but it is discretionary and not required) (discovery in FOIA litigation: plaintiff's early attempts to obtain a Vaughn Index and to depose IRS agents was inappropriate in a FOIA case until the government had had its first chance to provide the court with its affidavits).
Morrow v. FBI, 2 F.3d 642 (5th Cir. 1993) ("exceptional circumstances"/"due diligence": the district court's dismissal, as frivolous, of this death row inmate's complaint challenging the FBI's failure to comply with the FOIA's 10-day time requirement constituted an abuse of discretion, because the FBI was not even given the opportunity to demonstrate to the court, as it must, that it acted with "due diligence" and that "exceptional circumstances" caused the delay [nor was it given the opportunity to explain why the requested material did not effect his death sentence]) (Wiener, J., concurring).
Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993) (amends May 21, 1993 order; recognizes possible need under Exemption 6 to allow redaction of information other than "those items which 'by themselves' would identify individuals"; merely "relying generally on the claim that 'fragments of information' might be able to be 'pieced together into an identifiable set of circumstances,'" is insufficient to justify nondisclosure) (rehearing en banc denied in this FOIA case where the district court held that Exemption 6 does not protect the names of employees contained in adverse action files and where the appeals court recognized the possible need to allow redaction of information other than "those items which 'by themselves' would identify individuals").
Pub. Citizen v. Dep't of State, 11 F.3d 198 (D.C. Cir. 1993) (Exemption 1 [E.O. 12,356]: applying Afshar, finds that an agency official does not waive Exemption 1 "by publicly discussing the general subject matter of documents which were otherwise properly exempt from disclosure"; the privilege has not been waived as a result of Ambassador Glaspie's public congressional testimony on March 20-21, 1991).
Ruthers v. United States, No. 92-7073 (4th Cir. Dec. 17, 1993) (unpublished memorandum), 14 F.3d 596 (4th Cir. 1993) (table cite) (affirms district court's ruling that Exemption 7(D) protects information provided to the federal government in confidence by the West Virginia Department of Public Safety and the Baltimore, Maryland Police Department in the course of a criminal investigation).
Savage v. FBI, No. 93-3733 (6th Cir. Aug. 17, 1993) (appeal dismissed for lack of jurisdiction).
Schwarz v. Dep't
of Commerce, No. 93-1117 (D.D.C. May 28, 1993), summary affirmance
granted, No. 93-5203 (D.C. Cir. Oct. 14, 1993) (Exemption 3 [13 U.S.C.
Selby v. Dep't of Justice, No. 92-56348 (9th Cir. July 26, 1993) (remanded in light of Landano).
Slade v. Armistead, No. 93-6520 (4th Cir. Dec. 22, 1993) (unpublished memorandum), 14 F.3d 596 (4th Cir. 1993) (table cite) (affirms district court's ruling that courts of the United States are exempt from the requirements of the FOIA).
Stimac v. Barr, No. 93-15106 (9th Cir. Nov. 23, 1993) (unpublished memorandum), 10 F.3d 808 (9th Cir. 1993) (table cite) (publication: subsection (a)(1)(D) does not require an agency to formulate policy, but only to publish it in the Federal Register if it does exist) ("no records" defense: the agency is not required to create documents or explanatory material; after a reasonable search, defendant provided the plaintiff with all known documents in existence responsive to his FOIA request).
Summers v. Dep't
of Justice, 999 F.2d 570 (D.C. Cir. 1993) (affirms district court's opinion;
under Department of Justice regulation requiring notarized privacy waivers,
third party's privacy waiver that is not notarized but that is declared and
signed under penalty of perjury pursuant to 28 U.S.C.
Voinche v. FBI, 999 F.2d 962 (5th Cir. 1993) (mootness: plaintiff's suit for FBI's failure to respond within the statutory time limits has been mooted, because the FBI responded to his FOIA request after this complaint was filed) (exhaustion: because plaintiff has not filed an appeal of the FBI's denial, he has failed to exhaust his administrative remedies with respect to the adequacy of the FBI's response; he may now do so, and only then bring a new lawsuit).
Young v. CIA, No. 92-2561, 1993 WL 305970 (4th Cir. Aug. 10, 1993) (unpublished memorandum), 1 F.3d 1235 (4th Cir. 1993) (table cite) (attorney fees: the district court did not abuse its discretion by failing to decide whether the plaintiff had substantially prevailed; the district court correctly concluded that release of information about Inspector General investigations arising out of plaintiff's complaints would not be of any public benefit and would only serve plaintiff's self-interest; the district court correctly concluded that the CIA had a reasonable and legally sufficient basis for its FOIA claims; there was no attempt to thwart the FOIA policies).
AGS Computers v. Dep't of the Treasury, No. 92-2714 (D.N.J. Sept. 16, 1993) (Exemption 4: applying Critical Mass, finds that company's submission of its records to the IRS was "voluntary," if it had been "obligatory, there would have been a controlling statute, regulation or written order"; the fact that there is ongoing litigation in which this information is under protective order, and marked "confidential," demonstrates that this information is of the sort that is not customarily disclosed) (Exemption 5: finds that the deliberative process privilege protects 6 documents, some of which are not dated, because they contain a corporate official's analysis and opinions of problems with another company; all factual information contained in these documents is "inextricably intertwined" with deliberative material; a seventh undated document must be released because it is not related to any final decision; it would be unduly burdensome for the government to show for each and every predecisional document withheld that its recommendation was expressly adopted by a final decision; in light of the fact that the government has had 2 opportunities to demonstrate that 12 other documents should be withheld under the deliberative process privilege and has not done so, these documents must now be released).
Alexander & Alexander Servs., Inc. v. SEC, No. 92-1112, 1993 WL 439799 (D.D.C. Oct. 19, 1993) ("Reverse" FOIA/Exemption 4: plaintiff in this "reverse" FOIA action was given ample opportunities to substantiate its claims that information was confidential and to appeal SEC's adverse determination; applying Critical Mass, remands this case in part to the SEC for a determination by January 10, 1994 of whether "numerous other documents" voluntarily submitted should be released; plaintiff must submit these documents to SEC by November 10, 1993; plaintiff has not demonstrated why the disclosure of all of the materials would cause substantial competitive harm; since the Trade Secrets Act and FOIA's Exemption 4 have been deemed to be co-extensive, if documents cannot be protected under Exemption 4, they will not be protected under the Trade Secrets Act) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects the names and addresses of shareholders and customers and personal information about corporate officers, directors, and employees; the SEC may not release personal information about individuals when the references to them deal only with their professional capacities and not as targets of investigation) (Exemption 7(B): plaintiff has failed to meet its burden of explaining how the release of particular documents would jeopardize its right to a fair trial in its litigation with the FOIA requester) (Exemption 5: the SEC declined to apply the deliberative process privilege in this case because that privilege is designed to protect the deliberative process of the government, not private parties) (seal: documents subject to the FOIA request shall remain under seal until a determination has been made that those documents are subject to release; however, plaintiff must prepare a redacted version of pleadings to be publicly filed).
Am. Civil Liberties Union v. Dep't of Justice, 833 F. Supp. 399 (S.D.N.Y. 1993) ("reasonably segregable": defendant must provide specific assurance that the FOIA's segregation requirement has been met) (Vaughn Index: defendant's affidavit does not adequately describe why information has been withheld from documents concerning the Justice Department's National Obscenity Enforcement Unit and Child Exploitation Section; defendant must identify the recipients of each document, identify the custodian of each document, the source or author of some documents, the location, date, nature, sponsor, list of participants or attendees of meetings and conferences, and must further describe "action," "course of action," and "third parties"; in addition, defendant must clarify multiple withholdings in a single document, must better describe the "subject" of a withheld document, and must state the ultimate fate of policies discussed in documents withheld under the deliberative process privilege; the defendant must provide information on the status of law enforcement proceedings; for investigative documents withheld under Exemption 7(A) but not related to any particular, pending case, the defendant must provide sufficient information for the court to determine whether disclosure would actually threaten enforcement proceedings; the defendant has sufficiently represented that documents withheld under Exemption 7 were compiled for law enforcement purposes).
Armstrong v. Executive Office of the President, 829 F. Supp. 1 (D.D.C. 1993) (plaintiffs' FOIA request for electronic records involves many of the same issues and arguments as are currently before the Court of Appeals in this case; therefore, it is in the interest of judicial economy to stay any ruling on this portion of the complaint until the appeal is decided) (an updated and complete Vaughn Index is needed so that the court can rule on all of plaintiffs' FOIA requests for paper materials at the same time; the defendant must complete this index by August 18; both parties must submit dispositive motions regarding paper materials by August 25).
Armstrong v. Executive Office of the President, 830 F. Supp. 19 (D.D.C. 1993) (Vaughn Index: orders defendant to prepare by October 8, 1993, a Vaughn Index of the materials in paper format located at the National Archives pursuant to a protective order entered in United States v. Weinberger) (agency records: even though the Weinberger materials were transferred from one agency to another, they are subject to FOIA because they are in the possession of a government agency) (seal: applying Morgan v. Department of Justice, finds that the protective order issued in the criminal case does not exempt the materials from disclosure under FOIA) (duty to search: in this case where plaintiff requested materials that were in paper format, even though these records were not converted from electronic to paper form until 10 months after plaintiff revised his FOIA request, the government has not shown why it is "reasonable" to exclude the materials in question from its response).
Assassination Archives & Research Ctr. v. Dep't of Justice, 828 F. Supp. 100 (D.D.C. 1993) (denies plaintiff's motion for reconsideration in this FOIA case where the court previously held that the JFK Assassination Records Statute neither supersedes the FOIA nor alters the process by which FOIA cases relating to the Kennedy assassination should be adjudicated).
Atamian v. Delmarva Found. for Med. Care, Inc., No. 93-1773 (D. Md. Sept. 21, 1993) (agency: defendant, a federally mandated peer review organization, is not an "agency" for purposes of the FOIA) (exhaustion: plaintiff has not exhausted his administrative remedies because his letter, "even charitably treated," cannot be considered a FOIA request).
Atkin v. EEOC, No. 91-2508 (D.N.J. July 14, 1993) (Exemption 5: the deliberative process privilege protects an investigative report prepared in response to accusations of wrongdoing against various EEOC attorneys which contains the Audit Director's analysis of the allegations and evidence, conveys the author's views about whether the allegations are substantiated, and offers recommendations to the Chairman; the facts in this report are also protected because they were selected and summarized by the Audit Director from a large body of evidence; even assuming that portions of this report are potentially segregable, the EEOC is entitled to withhold the report in its entirety because the plaintiff has an unauthorized copy of the report and he would be able to compare the released document to his copy; the deliberative process privilege protects a legal counsel memorandum which contains legal analysis of the allegations and evidence of misconduct, a note of a telephone conversation that includes both opinions, analysis and selected facts, and two transmittal memoranda which analyze plaintiff's motivation; the deliberative process privilege does not protect the agency's rationale for closing this file) (Exemption 7 (threshold): the threshold requirement is met by documents compiled in the course of an investigation of agency employees conducted in response to allegations which, if proven, could result in disciplinary proceedings, as well as criminal sanctions) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects the names and phone numbers of mid- and low-level employees accused of misconduct, agency investigators, FBI Special Agents, congressional staff members, and other agency personnel) (Exemption 7(A): disclosure of information concerning the FBI's criminal investigation of plaintiff would interfere with the investigation).
Bauer v. Dep't of Justice, No. C90-3568 (N.D. Cal. Dec. 1, 1993) (FOIA suit dismissed for plaintiff's failure to prosecute).
Bauer v. United States, No. 92-0376 (D.D.C. Sept. 30, 1993) (Exemption 2: protects case and file numbers and other administrative markings used for the purposes of indexing, storing, locating, retrieving, and distributing information) (Exemption 4: without citing to any authority, upholds the deletion of the name of a corporation mentioned in an investigatory report, because disclosure would cause "undue speculation and commercial harm to that corporation") (Exemption 5: the deliberative process privilege protects a letter between a Customs Patrol Officer and a staff member that discussed how to respond to this FOIA request) (Exemption 7(A): the Customs Service properly withheld information about pending criminal investigations) (Exemption 7(C): protects the identities of clerical personnel, local law enforcement officers, and subjects of investigative interest) (Exemption 7(D): applying Landano, finds that the identity of confidential sources may be protected because of defendant's uncontradicted affidavit concerning assurances of confidentiality) (Exemption 7(E): protects law enforcement techniques even though they are known to the public, because these techniques are currently being used successfully).
Biase v. Office
of Thrift Supervision, No. 93-2521 (D.N.J. Dec. 10, 1993) (Exemption 3
Buckner v. Huff, No. S93-1517 (D. Md. Nov. 15, 1993) (proper party defendant: although plaintiff named an incorrect defendant in this suit, dismissal of this case will not be granted solely on these grounds, because the law is not settled on this point in the Fourth Circuit and plaintiff is pro se) (exhaustion: all but one of plaintiff's FOIA requests are barred by his failure to exhaust his administrative remedies) (Exemption 7(C): protects the names of investigating officers and other third parties from records concerning the theft of a drug shipment).
Burka v. HHS, No. 92-2636, 1993 WL 13140669 (D.D.C. Dec. 14, 1993) (agency records: two survey tapes generated by a contractor and a subcontractor to the National Institutes of Health which contain information concerning the advertising of tobacco products are agency records for purposes of the FOIA; one survey was located in a government office, administered by federal employees and subject to the day-to-day supervision of government employees; in the second tape, the script for the telephone survey instructed the callers to identify themselves as "working with the National Cancer Institute"; the contractor and subcontractor will turn the data tapes over to the government at the conclusion of the project; the contractor did not have the authority to release the tapes without the government's permission; the defendants "constructively possess" the data tapes) (Exemption 5: the inter- or intra-agency requirement is met by information generated by a contractor; this information is protected by "confidential research" privilege because release of these tapes would interfere with the conduct of scientific research; disclosure of this information before researchers had the opportunity to publish them would endanger the researchers' ability to have their research published in prestigious, peer-reviewed journals).
Cal-Almond, Inc. v. USDA, No. F89-574 (E.D. Cal. July 12, 1993) (denies defendant's request to modify court's March 17 order; since Blue Diamond is unable to provide the defendant with the list of almond growers as plaintiff requests, the defendant must retrieve a copy of the list using "all legal means necessary;" if need be, the defendant should order Blue Diamond to compile a new list of these almond growers).
Carolina Biological Supply Co. v. USDA, No. 2:93-0113 (M.D.N.C. Aug. 2, 1993) ("Reverse" FOIA/Exemption 4: the release of information concerning the number of cats used in the business of supplying preserved laboratory specimens will not cause substantial competitive harm; the same information will be released for all such suppliers; this information cannot be used to accurately determine market size, especially given that demand exceeds supply).
Church of Scientology Int'l v. Dep't of Justice, No. 92-12197 (D. Mass. Dec. 2, 1993) (duty to search: the affidavit demonstrates that the agency's search was "reasonably calculated" to uncover the requested documents, many of which concern a check fraud matter) (Vaughn Index: the index and the accompanying declarations justify the defendant's withholdings with sufficient specificity) (Exemption 3 [Rule 6(e)]: protects information that would reveal the identities of grand jury witnesses or jurors, the substance of grand jury testimony, the strategy or direction of the investigation, or the focus of the grand jury's deliberations; the government need not explain its decisions to withhold in such detail as to "effectively reveal the very information it hopes to protect") (Exemption 5: the agency's affidavit demonstrates that it properly withheld information under the deliberative, attorney work-product, and attorney-client privileges; this includes records that reflect trial preparation and predecisional communications among government personnel) (Exemption 7 (threshold): threshold requirement met by records compiled as part of the Justice Department's various civil and criminal law enforcement efforts) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects the identities of FBI Special Agents, federal, state, and local government personnel, informants, subjects of investigatory interest, and third parties; the Church has a history of seeking retribution against its perceived enemies; this information reveals little or nothing about the conduct of agency business) (Exemption 7(D): the agency's affidavit demonstrates that its withholdings under this exemption satisfy the Landano standard) (Exemption 7(F): the agency's affidavit demonstrates that the release of 6 documents would threaten the safety of certain government employees and third parties) (discovery in FOIA litigation: discovery is unnecessary in this case because of the reasonableness of the government's search and the legitimacy of the exemptions it has invoked).
Church of Scientology
Int'l v. IRS, 845 F. Supp. 714 (C.D. Cal. 1993) (Vaughn Index:
in this case involving approximately 12,000 pages of documents, approves of
IRS's categorical approach; the index is "methodical and exhaustive") (Exemption
3 [26 U.S.C.
Cleary, Gottlieb, Steen & Hamilton v. HHS, 844 F. Supp. 770 (D.D.C. 1993) (adequacy of search: the affidavit of the Centers for Disease Control (CDC) demonstrates that it has conducted a reasonable search for records pertaining to the published Kamb study on a possible causative link between the amino acid L-tryptophan and eosinophilia-myalgia syndrome; the CDC also made a reasonable search for documents pertaining to the Miller study and made a good faith production of them, even though the plaintiff states it never received the records; the second electronic database connected with the Swygert study, which is a modified version of the database already released to the plaintiff, must be released because it existed at the time of the original FOIA request) (not an "agency record": defendant need not reconstruct records or databases to plaintiff's specifications; because computer software is an agency record under the Tenth Circuit's commonsense definition of "record" in DiViaio v. Kelly, finds that the software programs created by Dr. Philen in conjunction with her study are "agency records" under the FOIA) (exhaustion: plaintiff may not raise the issues of "completeness" and "intelligibility" before the court because it has not appealed these issues to the CDC) (Exemption 5: the deliberative process privilege protects the draft manuscript of the study prepared by Dr. Philen for review by her collaborators because disclosure would undercut the openness of the decisionmaking process; the privilege also protects the software programs developed by Dr. Philen because they were designed to manipulate a set of data in a certain way and they reflect her mental processes in the selection of relevant facts, "translating the culling process envisioned by the creators into a language that the computer can follow").
Cotton v. Adams, No. 91-2827 (D.D.C. Dec. 14, 1993) (attorney fees: in this FOIA case where both parties agree that plaintiff has substantially prevailed, finds that because the court held that the Smithsonian is an "agency" for purposes of the FOIA, there is a substantial public benefit; plaintiff had a personal interest in documents she sought for litigation; even if the court were to hold that the government had a reasonable basis for withholding documents, it would not outweigh the great public benefit derived from this case; plaintiff is entitled to attorney fees; two parties have accepted the proposed fees offered by the government and the only amount still in dispute is that of the attorney fees owed to the law firm of Ross, Marsh & Foster; reduces the hourly rate for an attorney with more than 20 years experience to $285; $75 per hour is reasonable for a law clerk; plaintiff should be compensated for time spent contesting defendant's motion to reconsider its status as an "agency"; in light of some overstaffing prior to March 18, 1993 and the hourly rates mentioned above, reduces by 30% the amount requested by plaintiff; awards Ross, Marsh & Foster $24,247.19 in attorney fees and $120.00 in costs; plaintiff must be compensated within 30 days).
Creel v. Dep't of State, No. 6:92-559, 1993 U.S. Dist. LEXIS 21187 (E.D. Tex. Sept. 13, 1993) (magistrate's recommendation) (Exemption 3 [Rule 6(e)]: release of records would reveal the inner workings of the grand jury by disclosing the scope of the investigation into the possible misuse of Social Security entitlement checks, what records were subpoenaed, and what records were actually considered by the grand jury) (Exemption 7(C): from the Inspector General's investigatory records, the exemption protects personal identifying information about a subject of investigatory interest and third parties and the names and telephone numbers of a Secret Service Agent and government employees who were contacted during the investigation) (Exemption 5: the attorney work-product privilege protects one page of notes from an interview with a public employee made by a Special Agent) (mootness: plaintiff's challenge as to the timeliness of the agency's response is moot because the defendant has now responded), adopted, 1993 U.S. Dist. LEXIS 21186 (E.D. Tex. Dec. 30, 1993).
Creel v. HHS,
No. 91-3305 (D.D.C. Oct. 13, 1993) (Exemption 3 [26 U.S.C.
D'Angelica v. IRS, No. S93-0857 (E.D. Cal. Oct. 14, 1993) (jurisdiction: court lacks jurisdiction in this case because the defendant's affidavit demonstrates that no document entitled "Warrant of Distraint" exists).
Dayton Newspapers, Inc. v. FBI, No. C3-85-815 (S.D. Ohio Sept. 30, 1993) (Exemption 7(D): applying Landano and Kiraly v. FBI, finds that the FBI must release the name of a deceased local law enforcement officer who provided information to the FBI in the course of his duties).
Donham v. United States Forest Serv., No. 92-4157 (S.D. Ill. Dec. 2, 1993) (scope of request: documents created after the date of the Strategic Issue Papers plaintiff requested can "in no way be 'related to' the preparation of the papers") (Exemption 5: in order to withhold an internal memorandum under the deliberative process privilege, defendant must demonstrate what deliberative process was involved and what role this document played in that process).
Dunyan v. United States Postal Serv., No. 3:93-0403 (M.D. Pa. Sept. 15, 1993) (magistrate's recommendation) (exhaustion: plaintiff constructively exhausted his administrative remedies with respect to his FOIA request to the FBI's Harrisburg office because the FBI did not comply with the 20-day appeal deadline; applying Oglesby, finds that plaintiff did not exhaust his administrative remedies with respect to the Postal Service because he did not properly appeal the agency's "no records" response before filing suit; the plaintiff should be granted an additional 30 days to file an administrative appeal with the Postal Service; because the Executive Office for United States Attorneys (EOUSA) responded more than 10 days after it received plaintiff's FOIA request, plaintiff has exhausted his administrative remedies) (Exemption 7(C): protects information concerning an FBI investigation into allegations of improper mail handling at a correctional institute) (EOUSA is entitled to summary judgment because it found no documents responsive to plaintiff's FOIA request), adopted (M.D. Pa. Oct. 22, 1993).
Durham v. Dep't
of Justice, 829 F. Supp. 428 (D.D.C. 1993) (Exemption 2: protects the symbol
numbers of informants) (Exemption 3 [Rule 6(e)]: protects transcripts of grand
jury testimony, grand jury subpoenas, letters to grand jury witnesses and a
foreman's memo requesting evidence for inspection by the grand jury; [26 U.S.C.
Fikes v. Myers, No. C93-20906 (N.D. Cal. Dec. 21, 1993) (plaintiff's FOIA complaint is dismissed because he failed to exhaust his administrative remedies).
Fine v. DOE, 830 F. Supp. 570 (D.N.M. 1993) (government's request for a modification of this court's March 29, 1993 opinion is denied; the defendant must release all documents as ordered in that opinion within 10 days) (Exemption 5: the deliberative process privilege protects the number of days of plaintiff's proposed suspension from DOE, as the proposed suspension never took place; however, the "release of factual material fulfills Congress's intent 'to delimit the exception  as narrowly as consistent with efficient government operation'"; in a departure from Martin v. Special Counsel, finds that purely factual information which does not reveal the "mental impressions, conclusions, opinions, or legal theories" of the Office of Inspector General's counsel must be segregated and released from 25 pages of notes that the defendant sought to protect under the attorney work-product privilege).
Fritz v. Locke, No. 93-C-0548 (W.D. Wis. Oct. 26, 1993) (proper party defendant: the FOIA permits actions against federal agencies and not individual defendants) (proper service of process: court lacks jurisdiction because plaintiff has not perfected service pursuant to the Federal Rules of Civil Procedure) (jurisdiction: court lacks jurisdiction also because plaintiff has not made a proper FOIA request and therefore has not exhausted his administrative remedies).
Gilmore v. NSA, No. C92-3646 (N.D. Cal. Sept. 13, 1993) (mootness: while this court previously ruled that defendant properly withheld the records requested under the FOIA, it did not render moot plaintiff's challenge to NSA's FOIA policies as a whole) ("exceptional circumstance"/"due diligence": the failure to receive a timely response to a FOIA request gives a party standing to challenge that request in court; plaintiff's "pattern and practice" claim is ripe for decision because the issues raised are legal and do not require further factual development) (injunctive relief: denies plaintiff's request for injunctive relief for failure to meet FOIA's time deadlines; injunctive relief is appropriate for violations of the FOIA only where the procedures provided by the FOIA do not provide an adequate remedy; the use of injunctions is an inappropriate remedy for the problem of tardy FOIA responses; following Caifano v. Wampler, finds that NSA could consistently meet the FOIA deadlines only by restructuring its resource allocation in order to "devote more resources to the task of FOIA compliance and less to the substantive focus" of the agency).
Goldgar v. Office of Admin., Executive Office of the President, No. 93-1402 (E.D. La. Sept. 10, 1993) (magistrate's recommendation) (focus of the Act on information: the FOIA deals with records and not "information" in the abstract; if plaintiff is seeking information, and not an agency record, then he is "abusing and misusing" the FOIA) (jurisdiction: in this case where plaintiff seeks information concerning federal agencies and their involvement in the treatment of "thought transparency," finds that plaintiff has not met his burden of demonstrating that agency records have been improperly withheld) (should plaintiff, who has sought similar information from other government entities, file another complaint under FOIA in this court which is found to be without jurisdictional basis, he may be charged with costs, attorney fees, and appropriate sanctions).
Gray v. Dep't of Justice, No. 92-0775 (D.D.C. Sept. 24, 1993) (referral of request to another agency: the Justice Department must submit an additional Vaughn Index for those documents that it referred to the USDA) (adequacy of search: the defendant must submit a supplemental affidavit to establish the adequacy of its search) ("reasonably segregable": defendant must submit a supplemental affidavit to justify the withholding of records in their entireties under Exemption 5) (Exemption 7(C): protects the identities of third parties and a USDA agent).
Greenberg v. FBI, No. 92-2218 (D.D.C. Sept. 15, 1993) (duty to search: in this case where the plaintiff requested records relating to himself and all records relating to the NAACP Legal Defense and Education Fund, an organization with which he was closely associated for over 35 years, it is not legally adequate for the FBI only to search the FBI's indices; the defendant must manually search the NAACP file, the Legal Defense file, and 21 FBI field offices for records pertaining to the plaintiff; the FBI must complete these searches and provide plaintiff with all retrieved records within 60 days; if the FBI withholds any record or portion of a record located as a result of these searches, it must complete a Vaughn Index addressing these withholdings within 20 days of the supplemental release).
Greene v. FBI, No. 92-3401 (S.D.N.Y. July 23, 1993) (exhaustion: after the agency granted itself an extension of the 10-day statutory time period by written notice to the plaintiff, plaintiff was not immediately entitled to an administrative appeal remedy) ("improper withholding": plaintiff has produced no evidence to rebut the FBI's showing that there were no agency records in response to his FOIA request) (jurisdiction: court lacks jurisdiction because the plaintiff has neither exhausted his administrative remedies nor shown that a withholding of agency records has occurred).
Harper v. Dep't of Justice, No 92-462 (D. Or. Aug. 9, 1993) (Vaughn Index: in this FOIA case where the government claimed that information concerning missile defenses and weapon technologies was properly withheld under Exemption 1, finds that plaintiff's broad attack on the sufficiency of defendants' declarations is "unsubstantiated and unpersuasive"; a large volume of information has been carefully reviewed, segregated, and provided to plaintiff) (statute of limitations: plaintiff could not initiate and maintain a lawsuit against the defendants until plaintiff received all of defendants' releases) (waiver: the exemption has not been waived as to the Fletcher report and the Hoffman report; there has been no full disclosure from an official source) (fee waiver (Reform Act): there is no evidence that release of this information would increase the public understanding of the operations of the federal government; plaintiff failed to assert more than a broad, conclusory statement that the information he seeks is exculpatory).
Harry v. Dep't of the Army, No. 92-1654 (D.D.C. Sept. 10, 1993) (Exemption 5: no segregable factual information remains in the redacted portions of a Commander's Inquiry Report that were withheld under the deliberative process privilege, because these portions contain the recommendations and opinions of the author; applying United States v. Weber, finds that given the "intimate character of the ROTC corps at Slippery Rock University" in which this investigation took place, the investigating officer could not have "ensure[d] frank and open discussion" with the employee-witnesses without making explicit promises of confidentiality; investigating officer's notes from witness interviews are nondisclosable and nonsegregable) (Exemption 6: witnesses' personnel files fall within the ambit of the exemption; the privacy interests of lower-level federal employees are not outweighed by any public benefit that would result from the disclosure of this information; no segregable information is in these personnel file, because redacted records would still be recognizable to plaintiff who was the commander-in-charge).
Heat & Frost Insulators & Asbestos Workers, Local 16 v. Dep't of the Air Force, No. S92-2173 (E.D. Cal. Oct. 4, 1993) (Exemptions 6 and 7(C): applying Reporters Committee and Ray, finds that the release of information (excluding names, addresses, and Social Security numbers) from certified payroll records would enable a knowledgeable person to identify the entry for an individual worker, given the number of characteristics revealed and the small number of workers; however, considering the difficulty in obtaining information from the records and the information revealed, the consequences likely to ensue from this threaten an invasion of privacy that is not great; although these records do not shed light on what the government is up to, the records help the union to ascertain that the Air Force is collecting records in compliance with federal regulations and to monitor the agency's statutory enforcement function; the agency must disclose these records and should also delete gender and race information; the Air Force may, but need not, rearrange these records in a random, rather than alphabetical, order).
Hendricks v. Dep't of Justice, No. 92-5621, 1993 WL 294767 (E.D. Pa. July 29, 1993) (attorney fees: plaintiffs have not substantially prevailed because they have not forced the government to surrender information that it had previously withheld; the filing of this lawsuit brought to light only the fact that there were no documents responsive to plaintiffs' FOIA request).
Hunsberger v. Dep't of Justice, No. 92-2587 (D.D.C. Oct. 29, 1993) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until June 1, 1994; the FBI has received an average of 15,082 FOIA requests for the past 5 years; it processes these requests on a "first-in, first-out" basis; plaintiff, who claims he was "forcibly uprooted" from his home in Pennsylvania, is not entitled to expedited processing).
Inst. for Policy Studies v. NSA, No. 92-0340 (D.D.C. Oct. 23, 1993) (attorney fees: after reviewing defendant's in camera affidavit, grants defendant's motion for a protective order in this FOIA case where plaintiff requested leave to depose an agency official to determine the reasons why most of the documents it requested under the FOIA were voluntarily released; defendant declassified the records in question for reasons unconnected with the filing of this lawsuit).
Jett v. Dep't of Justice, No. 93-515 (M.D. Ala. Dec. 20, 1993) (Exemption 2 "low": internal computer codes are trivial administrative data of no genuine public interest and protected by this exemption) (Exemption 7(C): protects the identities of FBI Special Agents) (Exemption 5: the attorney work-product privilege protects in its entirety a one-page personal evaluation of evidence regarding events pertinent to the prosecution of the plaintiff) ("exceptional circumstances"/"due diligence": the FBI is deluged with a volume of FOIA requests vastly in excess of what was envisioned by Congress; even though it cannot begin work on plaintiff's FOIA request for one and one-half years, it has acted with "due diligence").
Johnson v. Gomez, No. C92-20606 (N.D. Cal. July 19, 1993) (agency: only federal agencies, not a state defendant, are proper defendants for purposes of the FOIA).
Kamman v. IRS,
No. 91-1352 (D. Ariz. July 7, 1993) (Exemption 3 [26 U.S.C.
Kan. Gas & Elec. Co. v. NRC, No. 87-2748 (D.D.C. July 2, 1993) ("Reverse" FOIA/Exemption 4: in keeping with the FOIA's bias toward disclosure, the court lacks authority under the FOIA to enjoin disclosure of agency records, unless the withholding is justified by another statute; collateral estoppel bars the submitter from relitigating its previously unsuccessful state court claim that documents were protected by the self-critical analysis privilege; documents concerning an in-house safety oversight scheme that NRC obtained through an unknown source can be released).
Kennedy v. Dep't of Justice, No. 93-0209 (D.D.C. July 12, 1993) (exhaustion: plaintiff avers that he mailed a request for administrative review to the Office of Information and Privacy, a request which was never received by that office; applying Oglesby, the court will allow plaintiff to refile his administrative appeal within 30 days).
Lanter v. Dep't of Justice, No. 93-34-R (W.D. Okla. July 30, 1993) (failure to file a timely administrative appeal constitutes a failure to exhaust administrative remedies and compels dismissal of plaintiffs' FOIA claim).
Lanter v. Dep't of Justice, No. 93-34-R (W.D. Okla. Aug. 30, 1993) (plaintiff's request to amend his pleading is denied in this case where the court dismissed plaintiff's FOIA claim for failure to exhaust administrative remedies).
Leier v. Dep't of Treasury, No. 92-0583 (M.D. Fla. Nov. 18, 1993) (jurisdiction: the plaintiff cannot claim that the IRS withheld records where the agency released them before the filing of this suit; defendant's affidavit demonstrates that other tax records do not exist) (attorney fees: pro se plaintiffs are not entitled to attorney fees in the Eleventh Circuit; because the court finds that the requested records were released before the initiation of this lawsuit, the plaintiff has not substantially prevailed; plaintiff is not entitled to costs).
Lesar v. Dep't of Justice, No. 92-2216 (D.D.C. Oct. 18, 1993) (duty to search: the FBI's search of the main JFK assassination files for the media references requested by plaintiff was reasonably calculated to produce the information requested; however, by December 20, 1993 the FBI must search the "executive conferences" main file after the date of the JFK assassination for documents responsive to plaintiff's request) (Exemption 2: protects FBI file and symbol numbers which concern various confidential sources and are utilized solely to facilitate the flow of information within the FBI) (Exemption 7 (threshold): the threshold requirement is met by a document that memorializes Jim Garrison's alleged unwillingness to work with the FBI in the JFK assassination investigation; it is a law enforcement record compiled in the investigation) (Exemption 7(D): in light of Landano, the FBI must provide by December 20, 1993 a further substantiation of the confidentiality of its sources) (the JFK Assassination Records Act does not apply to this request; an agency's duty to organize and release JFK assassination records does not run for 300 days after October 26, 1992 and plaintiff's request was made on August 14, 1991).
Lykes Bros. S.S. Co. v. Peña, No. 92-2780 (D.D.C. Aug. 31, 1993) ("Reverse" FOIA/Exemption 4: giving deference to the agency's interpretation of its own statute, holds that the submission of transfer documents was not "voluntary"; these documents were necessary for agency approval of the operating-differential subsidy contract; plaintiffs failed to show how the release of these documents, with all price terms, financial terms, and rates redacted, would cause them substantial competitive harm).
Manna v. Dep't
of Justice, No. 92-1840 (D.N.J. Aug. 27, 1993) (letter opinion) (Exemption
3 [18 U.S.C.
Manna v. Dep't of Justice, 832 F. Supp. 866 (D.N.J. 1993) (Vaughn Index: in this case where plaintiff requested all information resulting from the DEA's electronic surveillance of him, finds that the agency's affidavit adequately describes how the exemptions relate to material withheld, with two exceptions as discussed below) (in camera inspection: in camera inspection is not warranted here because the affidavit demonstrates with reasonable specificity why information was withheld) (duty to search: DEA's affidavit shows that the scope and methodology of its search were reasonable) (Exemption 7(D): following Landano, finds that DEA made a "particularized" showing that local law enforcement personnel who provided information to DEA about organized crime figures did so under circumstances from which confidentiality could reasonably be inferred) (Exemption 7(C): following Landano and Reporters Committee, finds that the exemption protects the identities of persons who were implicated, involved, or associated with an individual who was investigated by DEA; however, DEA also withheld what it termed "personal information" about these individuals and this characterization lacks the requisite specificity; the government may submit a supplemental itemization and explain why the release of this particular information would be an unwarranted invasion of personal privacy) (Exemption 2: violator identities were properly withheld by DEA; agency did not adequately justify the withholding of "internal markings"; the government may submit a supplemental affidavit to explain why this particular information should be withheld).
Manos v. Dep't of the Air Force, 829 F. Supp. 1191 (N.D. Cal. 1993) (attorney fees: court has previously found in this FOIA case that pro se plaintiff has substantially prevailed; a pro se plaintiff in a FOIA claim who is also an attorney is not entitled to attorney fees; attorney fees denied, but plaintiff is entitled to costs incurred in this litigation).
Manos v. Dep't of the Air Force, No. C92-3986 (N.D. Cal. Oct. 29, 1993) (costs: denies plaintiff reimbursement for parking expenses; pursuant to Federal Rule of Civil Procedure 4(d)(5), grants plaintiff $126.88 for fees of the clerk and service of summons and subpoena, $57.90 for mail expenses, and $362 for printing and copying expenses).
Marr v. Dep't of Justice, No. 92-0795 (S.D. Ala. Sept. 7, 1993) (Exemption 3 [Rule 6(e)]: protects transcripts of grand jury testimony) (Exemption 5: defendant's affidavit does not adequately demonstrate why 2 pages of notes should be withheld under the attorney work-product privilege; the attorney work-product privilege protects draft indictments and 2 inter-agency letters that contain the legal and evidentiary bases for the proposed prosecution of the plaintiff; both the attorney work-product and deliberative process privileges protect the Assistant United States Attorney's undated, handwritten trial preparation and investigatory notes) (scope of request: documents generated after a FOIA request has been made are outside the scope of that request) (referral of request to another agency: documents referred to their originating agency were not wrongfully withheld by the Department of Justice and are therefore outside of the court's jurisdiction).
Martech USA, Inc. v. Reich, No. C93-4137 (N.D. Cal. Nov. 24, 1993) ("Reverse" FOIA/Exemption 4: denies plaintiff's request for a temporary restraining order to enjoin the release of a Conciliation Agreement between plaintiff and the Office of Federal Contract Compliance Programs; while the release of this information may result in unfavorable publicity about plaintiff's hiring of minorities and women, it will not result in any competitive harm).
McDonnell Douglas Corp. v. NASA, No. 91-3134 (D.D.C. July 9, 1993) (seal: this court's sealing order of January 8, 1992 temporarily precluded the release of documents under the FOIA, because "that order was not intended to operate as the functional equivalent of an injunction prohibiting release"; the order does not effect the future disclosure by the defendant of material filed under seal in this case).
McDonnell Douglas Corp. v. NASA, No. 93-1540, 1993 WL 796612 (D.D.C. Nov. 17, 1993) ("Reverse" FOIA/Exemption 4: the en banc ruling in Critical Mass was intended to be a "categorical rule" that would greatly simplify the application of Exemption 4; rejects NASA's "tortured effort to start carving out exceptions to Critical Mass"; plaintiff's comments and reasons as to why NASA should not release line-item costs and profits in a launch services contract were solicited by NASA and were voluntarily submitted by the plaintiff; enjoins the release of this information "pursuant to the current request").
McGilvra v. NTSB,
840 F. Supp. 100 (D. Colo. 1993) (Exemption 3 [49 U.S.C. App.
McLaughlin v. Sessions, No. 92-0454, 1993 U.S. Dist. LEXIS 13817 (D.D.C. Sept. 22, 1993) (adequacy of search: in this case where plaintiff requested information about an FBI investigation into possible corrupt activities by various individuals and corporations in connection with the rehabilitation of a low-income housing project in Hartford, Connecticut, the court finds that defendant conducted an adequate search for information concerning the corporations, even though only headquarters was searched, as plaintiff requested; the FBI offered to search its New Haven Field Office in an additional 4 to 6 months, but plaintiff never responded to this offer; the FBI may not refuse to conduct a document search on named individuals because the disclosure of any responsive documents would categorically be an "unwarranted invasion of personal privacy"; an adequate search must be performed, responsive documents identified and a Vaughn Index must be filed by November 24) (Exemption 7(C): applying Reporters Committee, finds that because the plaintiff is seeking information in order to determine whether an FBI investigation was improperly terminated, his interest in the scope and course of the FBI's investigation constitutes a recognized public interest which must be balanced against the privacy interests of the named individuals).
Meirovitz v. FBI, No. 91-Z-1468 (D. Colo. Sept. 24, 1993) (Exemption 7 (threshold): despite the fact that the FBI does not address the issue of whether records concerning the sole government witness in the criminal case against plaintiff were compiled for law enforcement purposes, the court will assume they were because of the nature of the documents sought and because the FBI's primary mission is criminal law enforcement) (Exemption 7(C): applying Reporters Committee, finds that the arrest records of a third party may be categorically withheld when the request seeks no "official information" about a government policy).
Meyer v. Bush, No. 88-3112 (D.D.C. Nov. 5, 1993) (vacates order dismissing this case; case is reopened to address whether the Presidential Task Force on Regulatory Relief is an "agency" for purposes of the FOIA, whether Exemption 5 was properly claimed for one document, and whether 7 other documents are "agency records" under the FOIA; defendants must respond to interrogatories concerning the Exemption 5 issue by November 30, 1993; plaintiff may take discovery regarding the 7 documents but must complete it by December 31; defendants must conduct a further search of all relevant files and either release documents responsive to plaintiff's FOIA request or prepare a Vaughn Index by January 21, 1994).
v. HHS, No. 92-2720 (D.D.C. Nov. 17, 1993) (Exemption 6: the public interest
in examining FDA's actions in disseminating results of preliminary studies concerning
mortality rates and the use of kidney dialysers outweighs the privacy interests
of the patients whose information was used to compile the data; the FDA must
release the data underlying the 2 studies, redacting patient names, addresses,
places of birth, and the last 4 digits of each patient's Social Security number)
(Exemption 3 [42 U.S.C.
& Bldg. Corp. v. IRS, No. 91-5037 (E.D.N.Y. July 30, 1993) (Exemption
3 [26 U.S.C.
Nayed v. INS,
No. 91-805 (D.D.C. Nov. 29, 1993) (Exemption 1 [E.O. 12,356]: applying the "mosaic"
theory, finds that the CIA properly refused to confirm or deny the existence
of records on plaintiff, a former Libyan national who was denied entry into
the United States; deferring to the expertise of the FBI, finds that disclosure
of a file number could lead to the exposure of intelligence activities) (Exemption
3 [50 U.S.C.
Neill v. Dep't of Justice, No. 91-3319 (D.D.C. July 20, 1993) (Exemption 2: protects source symbol numbers because they are of no substantial public interest and are used solely as an internal means of identifying confidential sources) (Exemption 5: the attorney work-product privilege protects information prepared by the FBI in anticipation of litigation in Oklahoma state court; the deliberative process privilege protects opinions and recommendations formulated in anticipation of a prospective prosecution) (Exemption 7(A): since plaintiff has been granted a new trial for his murder conviction, the release of this information could reasonably be expected to harm the pending proceeding) (Exemption 7(C): applying Johnson v. Department of Justice, finds that Brady notwithstanding, this exemption protects the identities of individuals involved in the investigation of the plaintiff) (Exemption 7(D): information given to the FBI in the course of a law enforcement investigation is entitled to a presumption of confidentiality) (Exemption 7(E): commonly known law enforcement techniques are protected from disclosure when they are used in conjunction with other techniques not commonly known).
Or. Natural Desert Ass'n v. Bibles, No. 93-895 (D. Or. Nov. 18, 1993) (Exemption 6: following (reluctantly) the Ninth Circuit in FLRA v. Department of the Navy and also Reporters Committee, finds that the privacy interest in the disclosure of the BLM News mailing list is minimal; the privacy interests here are further diminished by the fact that the people on the BLM mailing list actively sought to have their names and addresses included on this list and thereby "have opened their mail boxes to the receipt of information about BLM activities"; while mailing lists actually reveal very little about the inner workings of the government, because disclosure is the rule rather than the exception under the FOIA, the mailing lists must be released).
Petroleum Info. Corp. v. Dep't of the Interior, No. 89-3173 (D.D.C. Nov. 16, 1993) (attorney fees: the public benefit in the release in electronic form of information already in the public domain weighs slightly in favor of plaintiff; plaintiff, a commercial entity in the business of selling information to domestic and international petroleum industries, would have filed its claim regardless of whether it could recover attorney fees and costs; even though defendant's reasons for not releasing this information were readily rejected by the courts, defendant did not "offer a frivolous defense, nor did it engage in recalcitrant or obdurate behavior"; attorney fees and costs denied).
Pollack v. Dep't of Justice, No. 89-2569, 1993 WL 293692 (D. Md. July 23, 1993) (exhaustion: where, as here, the court effectively stays further judicial proceedings and permits the administrative process to continue, plaintiff is obligated to keep his action alive by "timely efforts" to challenge any administrative determinations; plaintiff also failed to either pay the required fees or to seek a fee waiver) (Vaughn Index: a Vaughn Index is appropriate only with respect to an outstanding claim of improper withholding).
Quinn v. HHS, 838 F. Supp. 70 (W.D.N.Y. 1993) (Exemption 5: the deliberative process privilege protects the January 31, 1991 memo and draft letter because they were generated by counsel before the agency decided to terminate its inquiry into plaintiff's Tampa travel voucher and reflect the "give-and-take" of the consultative process; attorney-client and attorney work-product privileges also protect these documents; privilege from disclosure has been waived with respect to the December 4, 1992 memo and draft letter because they contain information substantially identical to that which has already been released to plaintiff).
Ray v. Dep't of Justice, No. 90-1721 (S.D. Fla. Aug. 13, 1993) (Exemption 6: the release of the names, places of birth, and addresses of repatriated Haitians would not be a "clearly unwarranted" invasion of personal privacy; in light of the Eleventh Circuit's acceptance of the "derivative use" theory, plaintiff's intention to use this information to investigate interdiction and return of the Haitians comprises a significant public interest; this information must be released) ("no records" defense: defendant's affidavit demonstrates that logs memorializing interviews between the Immigration and Naturalization Service and the Haitian interdictees do not exist).
RMS Indus. v. DOD, No. C92-1545 (N.D. Cal. July 27, 1993) (attorney fees: plaintiff is not entitled to attorney fees for work accomplished after defendant turned over the requested documents in accordance with the court's November 24, 1992 order).
Rothschild v. Dep't of State, No. 92-0186 (D.D.C. Sept. 29, 1993) (Vaughn Index: defendant's affidavit describes the withheld material with enough specificity to permit meaningful review of the agency's rationale) (Exemption 1 [E.O. 12,356]: giving due deference to the agency, finds that information concerning fluctuations in world oil prices in a 2-year period may be withheld because its release would jeopardize foreign government information, foreign relations, and intelligence sources and methods) (Exemption 5: denies as untimely plaintiff's request for additional discovery with regard to material withheld under the deliberative process privilege).
Schwarz v. Cal. Dep't of Corr., No. C92-4119 (N.D. Cal. July 1, 1993) (agency: state agencies are not subject to the federal FOIA).
Senate of P.R. v. Dep't of Justice, No. 84-1829, 1993 U.S. Dist. LEXIS 12162 (D.D.C. Aug. 24, 1993) (Exemption 2: defendant has not explained why 34 miscellaneous documents (telephone messages, routing slips, and note cards) found in the FBI's investigative file relating to the killing of 2 Puerto Rican political activists should be protected under this exemption; these documents must be released in their entirety) (Exemption 5: 2 Justice Department transmittal slips, one routing slip, and a 2-page memorandum to the Solicitor General must be released because the defendant failed to show why any of these documents were protectible under the attorney work-product or deliberative process privileges; defendant has not shown that a routing slip and 27 pages of attorney work notes were prepared in anticipation of litigation so that they would be protectible under the attorney work-product privilege; these notes must be released; defendant has failed to show how a memorandum of a Justice Department inquiry into the conduct of the FBI in this investigation is protected by the deliberative process privilege) (Exemption 7(C): the memorandum of the Justice Department inquiry must be released, withholding only information that would identify 2 subjects of investigative interest; exemption protects an individual named in a routing slip, as well as the accompanying 2-page letter; this exemption protects 2 draft "Agreements Concerning Interviews" written by a private attorney on behalf of his client, a 20-page presentence report, and the names of federal agents, government witnesses, suspects, and an official translator found in 7 released documents; 4 pages of medical information on a third party must be released, with identifying information redacted; a "two-page document written in Spanish" and a number of "Advice of Rights Forms" must be released, with information that would identify FBI Special Agents, clerical personnel, and third parties redacted) (Exemption 6: the defendant has not shown that a one-page Justice Department letter regarding the sentencing and cooperation of an inmate should be protected; only information that would identify the inmate can be withheld) (Exemption 7(D): applying Landano, finds that defendant has failed to provide the court with any information by which the court could determine whether 2 documents were properly withheld; these 2 documents must be released with only the names of suspects, witnesses, and FBI Special Agents redacted in accordance with Exemption 7(C)) (seal: applying Morgan v. Department of Justice, finds that the defendant must provide more information for the court to determine whether defendant properly withheld sealed court records).
Solone v. IRS, 830 F. Supp. 1141 (N.D. Ill. 1993) (attorney fees: plaintiff sought information from the IRS to advance a personal interest; he needed it to attack his IRS-restructured income calculations; the government's basis for withholding plaintiff's betting slips had a reasonable basis in law; the release of this information was of little public interest; attorney fees denied).
Sosa v. FBI, No. 93-1126 (D.D.C. Nov. 4, 1993) (denies motion to expedite FOIA determination and/or motion to stay state habeas corpus proceedings of death row requester).
Source One Mgmt., Inc. v. Dep't of the Interior, No. 92-Z-2101 (D. Colo. Nov. 10, 1993) (bench order) ("Reverse" FOIA/Exemption 4: applying Anderson v. HHS and Critical Mass, finds that information in a government contract was voluntarily submitted to the agency and its disclosure would not cause the plaintiff substantial competitive harm).
Spannaus v. CIA, 841 F. Supp. 14 (D.D.C. 1993) (duty to search: the defendants' affidavits demonstrate that their searches of conversations recorded on the CIA's secure voice communications system for references to Lyndon LaRouche and others were adequate; while new, sophisticated word-spotting technology may be better able to search the CIA's tapes, the CIA is not required to purchase new equipment to respond to a FOIA request; plaintiff's speculation that records mentioning Lyndon LaRouche and others ought to exist is insufficient to raise a material question of fact; the CIA's failure to perform a tape-by-tape listening search of an undetermined number of tapes containing 293 references from its keyword search does not create a genuine issue as to the adequacy of its search, since, based on its knowledge of its storage system, the CIA has deduced that such a listening search would be burdensome; the Office of Independent Counsel conducted a systematic search of its voice communication tapes for responsive records).
Spannaus v. DOD, No. 92-2435 (D.D.C. Sept. 13, 1993) (bench order) (duty to search: the agency's 15 affidavits demonstrate that its search was reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (Exemption 7(C): protects the identities of FBI Special Agents and Defense Department personnel).
Spurlock v. FBI, No. 91-5602 (C.D. Cal. Nov. 29, 1993) (Exemptions 7(C) and 7(D): after trial, finds that all the remaining documents concerning 3 named informants are well within these 2 exemptions; however, the FBI should be "sensitive" to the fact that one or more of these informants may have falsified information either in their public statements or in their statements to the FBI; therefore, the FBI, "perhaps with the help of the plaintiff," should attempt to determine if there is any conflict between these public and confidential statements, and where a conflict exists, the defendant should release this information to the plaintiff).
Steinberg v. Dep't of Justice, No. 91-2740, 1993 WL 385820 (D.D.C. Sept. 13, 1993) (duty to search: defendant's index searches were reasonably calculated to uncover information requested by plaintiff; plaintiff's motion for additional searches is denied) (Exemption 1: giving deference to the agency's judgment, finds that plaintiff's speculative assertions about the lessened sensitivity of information due to recent changes in world affairs is insufficient to overcome the agency's assertions concerning the need to protect intelligence methods and activities) (Exemption 5: the deliberative process privilege protects communications which were incorporated into the FBI's decision to pursue a criminal investigation rather than an international terrorism investigation, because this is merely "an intermediate step in a larger investigative process") (Exemption 7(D): in light of Landano, the agency must within 30 days reevaluate those documents withheld under this exemption) (given the near-complete resolution of this matter, denies plaintiff's request to amend his complaint to include counts relating to additional FOIA requests).
Steinberg v. Dep't of Justice, No. 91-2740, 1993 WL 524528 (D.D.C. Dec. 2, 1993) (Exemption 7(D): in accordance with Landano, defendant reviewed the documents withheld under Exemption 7(D) in this case and released 292 pages of previously withheld documents; defendant's affidavit justifies the withholding of the remaining pages under this exemption based on express assurances of confidentiality given to the sources, the sensitive nature of the crimes at issue, and the sources' relationships to investigations) (plaintiff's motion to reopen the Exemption 7(C) issue is denied).
Strout v. United States Parole Comm'n, No. 93-72345 (E.D. Mich. Dec. 21, 1993) (magistrate's recommendation) (mootness: even though plaintiff has received the documents he requested, this case is not moot because the issue is whether the defendant violated the FOIA by the manner and means of disclosure which requires a discussion of the merits) (FOIA as a discovery tool: the purpose of the FOIA is access by the public to government information; the statute was not intended as a method for obtaining documents for use in a parole hearing) (fees (Reform Act): defendant properly advised plaintiff that $10.75 would be required for the release of information responsive to his first FOIA request and an additional $22.80 for the release of information responsive to his second request).
Sweetland v. Walters, No. 93-1134 (D.D.C. Nov. 9, 1993) (agency: the Executive Residence at the White House is not an "agency" for purposes of the FOIA).
Szymanski v. DEA, No. 93-1314, 1993 WL 433592 (D.D.C. Oct. 5, 1993) (grants defendant's motion to strike plaintiff's amended FOIA complaint; the inclusion of non-FOIA claims would only complicate this matter and further delay the resolution of the case).
Thott v. Dep't of the Interior, No. 93-0177-B (D. Me. Nov. 5, 1993) (Exemption 6: in this FOIA request where the Fish and Wildlife Service (FWS) released the names, but withheld the addresses, of private landowners who sold land to the FWS, applies Reporters Committee to find that there is a genuine issue of material fact about whether the release of the addresses would shed light on the expansion practices of the FWS).
Trenerry v. IRS, No. 90-C-444-B, 1993 WL 565354 (N.D. Okla. Oct. 28, 1993) (duty to search: defendant has made a reasonable search for various tax assessment records) (seal: plaintiff's request to seal the pleadings in this case from 1991 to 1993 is untimely) (fees (Reform Act): plaintiff was properly charged $53.00 in copying fees) (attorney fees: while plaintiff may be eligible for attorney fees, she is not entitled to them because her FOIA requests regarded her own self-interest and were of no public benefit; pro se litigants are not entitled to attorney fees).
Triplett v. Attorney Gen., No. C2-92-211 (S.D. Ohio Aug. 17, 1993) ("no records" defense: after reasonable searches, the General Services Administration, the Defense Contract Audit Agency, and the Justice Department could locate no telephone records of various employees and agencies) (discovery in FOIA litigation: plaintiff may not conduct his own search of agency records) (agency records: transcripts of judicial proceedings are court records, not subject to a FOIA request made to a federal executive agency) (exhaustion: plaintiff filed this complaint 16 days after giving notice of his administrative appeal; therefore, he has not exhausted his administrative remedies) (grants the National Archives' motion for dismissal because plaintiff failed to effect service of process as required by the federal rules).
Tsimbidis v. IRS, No. 93-605 (E.D. Va. Oct. 21, 1993) (jurisdiction: court lacks jurisdiction in this FOIA case where defendant conducted a reasonable search and found that the requested forms do not exist and all other responsive records have been turned over to plaintiff).
United States Comm. for Refugees v. Dep't of State, No. 91-3303 (D.D.C. Aug. 30, 1993) (adequacy of search: defendant's search of 5 record systems was adequate as a matter of law in light of plaintiff's request for documents regarding Haitian refugee interdiction) (Exemption 1 [E.O. 12,356]: the disclosure of 4 documents and portions of a fifth could reasonably be expected to damage national security by jeopardizing the success of negotiations with Haiti on the migrant issue and damaging relations between the United States and other countries discussed in the documents) (Exemption 5: the deliberative process privilege protects portions of 9 documents which contain discussions evaluating the Haitian immigrant program, and proposing and analyzing options for its modification) (in camera inspection: in camera inspection is unnecessary when the agency's affidavits are sufficiently detailed to permit meaningful judicial review) (attorney fees: attorney fees denied because the plaintiff has not substantially prevailed; the filing of this lawsuit did not alter the timing or results of defendant's search).
Wemhoff v. Dep't of the Interior, No. 93-859 (E.D. Va. Sept. 21, 1993) (Exemptions 6 and 7(C): after in camera inspection of documents concerning complaints against a park police officer for which the agency had given a "Glomar" denial, inexplicably finds that none of the documents is responsive to plaintiff's FOIA request; even if the documents had been responsive, they could have been withheld under Exemption 6).
Whalen v. IRS, No. 92-C-4841 (N.D. Ill. Dec. 20, 1993) (attorney fees: the length and timing of the IRS's delays in producing the requested documents indicate that plaintiff's FOIA litigation was a "significant catalyst" and led the court to conclude that the plaintiff has substantially prevailed; even though plaintiff sought these documents to use in civil rights litigation with the IRS, this information served an even stronger public interest in ensuring that IRS guidelines and policies comply with civil rights laws; finding that the IRS's compliance with this FOIA request was "sluggish," and that its grounds for exemption were either suspect or unexplained, concludes that the IRS did not have a reasonable basis for withholding the requested documents; pro se attorney, who was also represented by counsel, is not entitled to fees for his own services in this case; grants plaintiff $2281.25 in attorney fees and $153.58 in costs).
Williams v. Dep't of the Army, No. C92-20088 (N.D. Cal. Sept. 13, 1993) (attorney fees: plaintiff is eligible for attorney fees because the defendant did not respond to his FOIA request for records concerning his knee surgery performed by Army medical staff until plaintiff filed this lawsuit; there is a public benefit in requiring the government to respond to FOIA requests in a timely manner, particularly in a case such as this where the records concern a "potentially botched surgery and an individual's health"; plaintiff's interest in these documents for use in litigation against the surgery pump manufacturer is outweighed by his interest in a complete and accurate set of records relating to his current medical condition; the defendant did not have a reasonable basis in law for withholding medical information; lowers the lodestar figure due to numerous lengthy, unnecessary, and repetitive motions; the law in this case was straightforward and easily accessible; reduces the compensable time allowed to 60 hours; an hourly rate of $200 is reasonable; grants plaintiff attorney fees of $12,000 and costs of $270).
Williams v. FBI, No. 92-0767 (D.D.C. Nov. 18, 1993) (duty to search: defendant's search of its headquarters and field offices for the second of 2 videotape recordings that once existed was reasonable) (adequacy of request: under the FOIA, plaintiff is not entitled to the first original videotape recording).
Williams v. FBI, No. 91-1054 (D.D.C. Dec. 9, 1993) (Exemption 7(D): applying Landano, finds that when the Charlotte, N.C. Police Department gave an arrest report it had prepared to the FBI in the course of a criminal investigation, it had no particular reason to expect that the FBI would maintain the report in confidence; arrest report must be released).
Wilson v. CIA, No. 91-0087 (D.D.C. Oct. 14, 1993) (adequacy of search: defendant's search was sufficient even though it did not ask its employees about documents not recorded on the computer, did not locate some specific documents, and did not search by plaintiff's name (because information is not so catalogued)) (Exemption 1 [E.O. 12,356]: protects a 3-page memorandum the disclosure of which would reveal that a particular individual is of intelligence interest to the CIA, the extent of the CIA's knowledge about this person, and the intelligence method by which this information was obtained) (orders in camera inspection of a third document withheld in its entirety under Exemption 7(C)).
Wrenn v. Chairman, EEOC, No. 90-1063 (D.D.C. July 14, 1993) (Exemption 5: all material in the withheld documents concerning the issuance of a cause or no-cause determination is protected by either the deliberative process or attorney work-product privilege).
Go to: Main FOIA Post Page // DOJ FOIA Page // DOJ Home Page