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 1992. OIP is preparing additional compilations of decisions received during previous years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).
Allard v. HHS, No. 92-1303 (6th Cir. Aug. 7, 1992) (unpublished order), 972 F.2d 346 (6th Cir. 1992) (table cite) (Exemption 6: affirms district court ruling that exemption protects information about possible illegal use of Social Security benefits by the ex-wife and children of plaintiff, a prisoner with violent tendencies).
Aronson v. IRS,
973 F.2d 962 (1st Cir. 1992) (Exemption 3 [26 U.S.C.
Assembly of Cal. v. Dep't of Commerce, 968 F.2d 916 (9th Cir. 1992) (amends and supersedes July 1, 1992 opinion and denies rehearing en banc) (Exemption 5: the deliberative process privilege does not protect computer tapes containing block level adjusted 1990 census data for the State of California; even though the tapes predate the decision not to adjust the census, they are not predecisional in any meaningful sense; disclosing the numerical data from the adjusted census tapes would not reveal anything about the deliberative process; inaccuracy is not a basis for a FOIA exemption).
Beck v. Dep't of Justice, No. 91-5292 (D.C. Cir. Nov. 19, 1992) (defendant's motion for summary affirmance granted with respect to the materials withheld under the FOIA by the Justice Department's Executive Office for United States Attorneys, Criminal Division, DEA, and the United States Postal Service; defendant's motion for summary affirmance denied with respect to materials withheld by the Justice Department's Office of Professional Responsibility because the merits of its positions concerning the information withheld are not so clear as to warrant summary action).
Bell v. Dep't of Justice, No. 90-56006 (9th Cir. Aug. 25, 1992) (unpublished memorandum), 977 F.2d 1337 (9th Cir. 1992) (table cite) (reverses and remands district court's grant of summary judgment to defendant; the district court was required to provide plaintiff, a pro se litigant, with fair notice of the requirements of the summary judgment rule; applying Wiener v. FBI, finds that the agency's Vaughn Index is insufficient).
Benavides v. DEA, 976 F.2d 751 (D.C. Cir. 1992) (on the government's petition for rehearing, modifies its June 30, 1992 opinion (published at 968 F.2d 1243), because new arguments and authority now cast "doubt" upon the court's earlier dicta construction of the (c)(2) exclusion; a remand for the district court's determination of whether the informant status of either of the two witnesses has been officially confirmed is of course still in order; this court has not authoritatively construed subsection (c)(2) insofar as determining whether it requires a "Glomar response" or a "none-found" response when it does apply).
Campbell v. Johnson, No. 91-5217 (D.C. Cir. July 3, 1992) (rehearing denied; plaintiff has neither agreed to pay for, nor sought a waiver of, search and duplication fees).
Coleman v. FBI, No. 92-5040 (D.C. Cir. Dec. 4, 1992) (government's motion for summary affirmance granted in this FOIA case where the district court held that records pertaining to plaintiff could be withheld under Exemptions 2, 7(C), 7(D), and 7(E)).
Cotton v. Adams, No. 92-5280 (D.C. Cir. Aug. 27, 1992) (appeal dismissed in this FOIA case where the district court held that the Smithsonian Institution is an agency for purposes of the FOIA and that an internal investigation satisfies Exemption 7's threshold requirement only if it focuses directly on illegal acts which could, if proved, result in criminal or civil sanctions).
Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc) (Exemption 4: reaffirms the two-part National Parks test for determining when financial or commercial information in the government's possession may be withheld as confidential under Exemption 4 of the FOIA -- but where, as here, the information sought is given to the government voluntarily, it will categorically be treated as confidential under Exemption 4 if it is the kind of information that the provider would not customarily make available to the public; the information in the safety reports submitted to the NRC by a nonprofit consortium is commercial in nature, the reports were not "required" to be submitted to the NRC in that they were provided to the NRC on a "voluntary" basis, and the consortium does not customarily release such information to the public) (Circuit Judges Randolph, Silberman, and Sentelle concurring) (Circuit Judges R.B. Ginsburg, Mikva, Wald, and Edwards dissenting).
Duckworth v. Dep't of the Navy, 974 F.2d 1341 (9th Cir. 1992) (the district court did not err by granting defendant's motion for summary judgment in this FOIA case where the agency's affidavits demonstrated that the information requested by plaintiff either was supplied to him or did not exist, and plaintiff filed no response).
Fazzini v. Dep't of Justice, No. 92-5043, 1992 U.S. App. LEXIS 31390 (D.C. Cir. Oct. 14, 1992) (summary affirmance granted to government; the doctrine of res judicata bars plaintiff's relitigation of the adequacy of FBI's response to his request for information; defendants' searches were adequate and the information withheld falls within applicable exemptions to the FOIA).
FLRA v. DOD, 975 F.2d 1105 (5th Cir. 1992) (Exemption 6: when the disclosure request emanates from a statute other than the FOIA, Reporters Committee simply does not apply when disclosure is commanded by that other statute; orders the disclosure of the names and home addresses of federal employees to their bargaining unit representatives because the public interest in collective bargaining outweighs the employees' privacy interests in nondisclosure of this information) (Garza, Circuit Judge, dissenting).
FLRA v. DOD, 977 F.2d 545 (11th Cir. 1992) (Exemption 6: applying Reporters Committee, finds that the release of employees' home addresses to their exclusive bargaining unit representatives would be a "clearly unwarranted invasion of personal privacy"; even if the privacy interest in a home address were minimal, it "cannot be outweighed by a public interest in disclosure . . . that falls outside the FOIA") (Atkins, J., dissenting).
FLRA v. Dep't of the Navy, 975 F.2d 348 (7th Cir. 1992) (Exemption 6: applying Reporters Committee, finds that the release of bargaining unit employees' names and home addresses to their exclusive bargaining representative would be a "clearly unwarranted invasion of personal privacy"; federal employees have more than de minimus privacy interest in this information and its disclosure would not shed light on the inner workings of the federal government).
Food Chem. News v. HHS, 980 F.2d 1468 (D.C. Cir. 1992) (FOIA/FACA interface: an agency is obligated to make available for public inspection and copying all documents that are made available to or prepared by an advisory committee on or before the date of the advisory committee meeting, except those documents that an agency reasonably claims to be exempt from disclosure under the FOIA).
Ford v. United States, No. 91-36319, 1992 WL 387154 (9th Cir. Dec. 24, 1992) (unpublished memorandum), 981 F.2d 1258 (9th Cir. 1992) (table cite) (duty to search: agency's affidavits, submitted by 2 "disclosure specialists," adequately demonstrate that the IRS made a reasonable search for the requested records) (district court properly granted summary judgment to defendant because the IRS released all information except for four pages that it properly withheld under Exemption 7(C)).
Gillin v. IRS,
980 F.2d 819 (1st Cir. 1992) (affirms district court's grant of summary
judgment to the defendant; every document requested either has been produced,
is unidentifiable, or is exempt from disclosure) (Exemption 3 [26 U.S.C.
Glick v. Huff, No. 91-5214 (D.C. Cir. Dec. 4, 1992) (summary affirmance granted to the government in this FOIA case where the district court held that identities of FBI Special Agents and a state law enforcement agency were protected by Exemptions 7(C) and 7(D), respectively).
Hale v. Dep't of Justice, 973 F.2d 894 (10th Cir. 1992) (Exemption 7(D): promises of confidentiality are inherently implicit in FBI interviews conducted in the course of a criminal investigation; the exemption protects the identities of and information provided by nonfederal law enforcement employees, municipal employees, and commercial or financial institutions) (Exemption 7(C): the disclosure of the identities of interviewees, FBI employees, nonfederal law enforcement personnel, municipal employees and institutional sources, information about third parties, and photographs of the murdered kidnap victim would be an unwarranted invasion of personal privacy in this case because there is little or no public interest at stake when plaintiff seeks the information for purposes of a collateral attack on his death sentence) (Exemption 7(E): protects information concerning security devices, modus operandi, and polygraph matters) (Exemption 2: protects administrative markings on documents, room numbers, telephone numbers, a checklist form, FBI employees' identification numbers, personnel directories, and the dissemination page of plaintiff's "rap sheet").
Hanner v. Stone, No. 92-1579, 1992 WL 361382 (6th Cir. Dec. 8, 1992) (unpublished order), 983 F.2d 1066 (6th Cir. 1992) (table cite) (res judicata: although plaintiff litigated a similar FOIA claim in this court, the doctrine of res judicata does not preclude this action because the issue is not the same) (summary judgment: district court correctly granted summary judgment to defendant because all responsive documents were provided to plaintiff).
HHS v. FLRA, No. 92-1012, 1992 WL 390891 (D.C. Cir. Dec. 10, 1992) (grants government's motion for summary reversal; it is a mistake to construe the public interest in the FOIA's Exemption 6 as that embodied in the Federal Service Labor-Management Relations Statute; the public interest in the disclosure of the names of agency employees to the union is outweighed by the employees' privacy interests; the FOIA's public interest would not be served by revealing the names corresponding to the performance appraisals that already have been released).
Hunt v. CIA,
981 F.2d 1116 (9th Cir. 1992) (Exemption 3 [50 U.S.C.
Hunt v. FBI, 972 F.2d 286 (9th Cir. 1992) (Exemption 7(C): reverses and remands a district court decision that had ordered the disclosure of the file of an FBI internal investigation of the alleged misconduct of a female FBI Special Agent with all references to the actual name of the agent deleted; agent's name could be easily traced by anyone having access to the file and was already known to the requestor; disclosure of this single file will not shed any light on whether all such FBI investigations are comprehensive or whether sexual misconduct by agents is common; the FBI conducted a thorough investigation into the alleged misconduct; in this case, the association of the agent's name with the allegations of personal and professional misconduct could cause the agent great personal and professional embarrassment).
Kidd v. Dep't of the Interior, No. 91-15321 (9th Cir. Aug. 31, 1992) (unpublished memorandum), 974 F.2d 1342 (9th Cir. 1992) (table cite) (adequacy of search: since plaintiffs claim that the document they requested was altered before it went through the redaction process, the issue is whether the search for documents was adequate; the agency must demonstrate that the search it conducted was "reasonably calculated to uncover all relevant documents") (discovery in FOIA litigation: nevertheless, the court held that since plaintiffs essentially challenged the adequacy of the agency's search, their discovery request was inappropriate).
Norwood v. FAA, No. 92-5820 (6th Cir. July 2, 1992) (stay granted to the government in this FOIA case where the district court held that Exemption 6 does not protect the names of employees contained in adverse action files).
O'Bryan v. Bowman, No. 91-16037 (9th Cir. Dec. 31, 1992) (unpublished memorandum), 983 F.2d 1077 (9th Cir. 1992) (table cite) (agency: the FOIA does not apply to state governments).
Ostheimer v. Lindquist, No. 90-35246 (9th Cir. Aug. 5, 1992) (unpublished memorandum), 972 F.2d 1341 (9th Cir. 1992) (table cite) (jurisdiction: court lacks jurisdiction since plaintiff has not exhausted his administrative remedies by filing a FOIA request in accordance with agency's published procedures).
Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429 (D.C. Cir. 1992) (Exemption 5: the deliberative process privilege does not protect files from a computer data bank containing factual information pertaining to public lands that are in the process of being developed for incorporation into a larger computer system; the information in that file, even if partly inaccurate, comes exclusively from publicly available documents and it is not associated with "a significant policy decision"; government has also not shown that these files are protectible under Exemption 5's commercial privilege).
Proctor v. Dep't of Justice, No. 91-5305 (D.C. Cir. Oct. 6, 1992) (summary affirmance granted as to that portion of the district court's order that grants summary judgment as to materials withheld by the Executive Office for United States Attorneys and DEA under the FOIA; summary affirmance is denied as to the portion of that order that grants summary judgment as to materials withheld by the FBI, because the Vaughn Index submitted by the FBI is not sufficiently detailed to allow meaningful review on appeal).
Providence Journal Co. v. Dep't of the Army, 981 F.2d 552 (1st Cir. 1992) (Exemption 5: express, rather than implied, adoption of a predecisional document is a prerequisite to loss of the deliberative process privilege under Exemption 5; using the "functional" test, finds that the deliberative process privilege protects factual documents relating to an internal criminal investigation into allegations against officers of the Rhode Island National Guard, because the disclosure of the Inspector General's findings of fact "undoubtedly would divulge the substance of the related recommendatory sections with which they comport" or it would inaccurately reflect the views of the agency) (Exemption 7(D): protects the identities of and the statements solicited from 24 confidential sources under express assurances of confidentiality; the exemption also protects unsolicited statements received from 4 anonymous sources, because disclosure, or even "second-guessing" by the courts, would jeopardize the flow of unsolicited information; the 3 remaining source statements are not protected from disclosure because these individuals expressly waived the IG's assurances of confidentiality) (Exemption 7(C): the Army must disclose, in their entirety, the statements of the 3 nonconfidential sources that relate to the substantiated and unsubstantiated allegations against 2 senior officials, because the officials have a diminished privacy interest and the public has an enduring interest in remaining informed about actions taken by public officials in the course of their official duties).
v. OSHA, 976 F.2d 1444 (D.C. Cir. 1992) (summary affirmance granted in
part; the district court did not abuse its discretion in denying attorney fees
to plaintiff under 5 U.S.C.
Pub. Citizen v. OSHA, No. 92-5126 (D.C. Cir. Dec. 10, 1992) (plaintiff's petition for rehearing denied in this FOIA case; the district court did not abuse its discretion in denying attorney fees to plaintiff, the prevailing party in this action).
Rojem v. Dep't of Justice, No. 92-5088 (D.C. Cir. Nov. 4, 1992) (plaintiff's appeal dismissed, pursuant to Fed. R. App. P. 4(a)(1), for filing out of time (2 days late)).
Simon v. Dep't of Justice, 980 F.2d 782 (D.C. Cir. 1992) (Exemption 7(D): upon in camera inspection, finds that the exemption protects a document created by the FBI in the course of a lawful criminal investigation of plaintiff that consists almost entirely of the statements of a confidential informant) (Vaughn Index: citing Wiener v. FBI, finds that the agency's affidavit is sufficient because the agency cannot describe the document more fully without disclosing the very information being protected under the exemption).
Stebbins v. Sullivan,
No. 90-5361, 1992 WL 174542 (D.C. Cir. July 22, 1992) (unpublished order), 971
F.2d 766 (D.C. Cir. 1992) (table case) (affirms district court decision which
had ruled that Exemption 3 protects the address of a third-party taxpayer because
the IRS's only source of this address would be from tax returns and 26 U.S.C.
Stone v. Def. Investigative Serv., 978 F.2d 744 (D.C. Cir. 1992) (defendant's motion for summary affirmance granted in this case where the district court held that when, in the course of responding to a FOIA request, documents are located that originated in other agencies, the documents are properly referred to those agencies for direct response).
Town of Norfolk v. Army Corps of Eng'rs, 968 F.2d 1438 (1st Cir. 1992) (Exemption 5: the deliberative process privilege protects an unsigned draft letter that contains no factual information, but which reflects a preliminary position of the Army Corps of Engineers regarding a cleanup project).
Van Strum v. EPA, Nos. 91-35404, 91-35577, 1992 WL 197660 (9th Cir. Aug. 17, 1992) (unpublished memorandum), 972 F.2d 1348 (9th Cir. 1992) (table cite) ("unreasonable" burden: EPA was justified in seeking to narrow plaintiff's FOIA request for all documents relating to dioxin, because the request was so broad that the search for documents would have placed an inordinate burden on agency resources) (attorney fees: when the agency had indicated that it would cooperate with plaintiff and produce documents in response to more specific requests, the lawsuit was not reasonably necessary to obtain the records and was not the cause of their release).
Wagner v. FBI, No. 91-5220 (D.C. Cir. Aug. 3, 1992) (summary affirmance granted to defendant in this case where plaintiff challenged the withholding of a transcript of grand jury testimony, DEA's internal numbers used for administrative purposes, the identities of informants and third parties, DEA investigative techniques, and the identities of DEA undercover agents; appointment of counsel denied).
Wagoner v. United States Postal Serv., No. 92-5101 (D.C. Cir. Dec. 10, 1992) (summary affirmance granted in this FOIA case where the district court held that the government properly withheld information concerning plaintiff's arrest and current imprisonment under Exemptions 2, 3 (Rule 6 (e)), 7(C), and 7(D)).
Wrenn v. Kemp, No. 92-3513 (6th Cir. Nov. 24, 1992) (unpublished order), 980 F.2d 732 (6th Cir. 1992) (table cite) (district court properly dismissed plaintiff's FOIA claim because he has received all the records he is entitled to).
Wrenn v. Kemp, No. 91-5382, 1992 WL 381060 (D.C. Cir. Dec. 2, 1992) (government's motion for summary affirmance is denied with respect to information withheld under Exemptions 5 and 7(A) (deliberative process privilege); government's motion for summary affirmance granted with respect to information withheld under Exemptions 2, 3, 6, 7(C), and 7(D)).
Young v. CIA, 972 F.2d 536 (4th Cir. 1992) (waiver: an agency does not waive FOIA exemptions by not raising them during the administrative process) (in camera inspection: denial was no abuse of discretion where the district court explicitly found that the CIA had used "sufficient specificity" in its declarations).
Abdullah v. FBI, No. 92-0356 (D.D.C. Aug. 10, 1992) (Exemption 7 (threshold): threshold requirement is met by records compiled by the FBI in the course of an investigation of drug trafficking) (Exemption 7(A): agency's categorical affidavit demonstrates that disclosure of these documents could reasonably be expected to interfere with the ongoing investigation).
Ackerson & Bishop Chartered v. USDA, No. 92-1068 (D.D.C. July 15, 1992) (Exemption 6: agency has not demonstrated that disclosure of the identities of individual mushroom producers being considered for eligibility to participate in a referendum required by statute would constitute a "clearly unwarranted invasion of personal privacy"; learning the manner in which the USDA conducts a referendum outweighs any minimum privacy interest because of the strong public interest in placing operations under this unusual statute under public scrutiny).
Allnet Communication Servs. v. FCC, 800 F. Supp. 984 (D.D.C. 1992) (Exemption 4: finds that computer models and associated data submitted to the FCC by various telecommunications companies as part of the cost justification for proposed services rates were properly withheld because their disclosure is likely to substantially harm the competitive position of suppliers; plaintiff's vague hearsay that there has been unrestricted disclosure of this information in other proceedings does not constitute competent evidence; there was no waiver when a redacted version of this information was made available pursuant to strict confidentiality agreements at an agency hearing; applying Critical Mass, finds information that was voluntarily provided was properly withheld because the providers would not customarily release it to the public; disclosure of this information also would undermine the effectiveness of the government's open network program).
Armstrong v. Bush, 807 F. Supp. 816 (D.D.C. 1992) (exhaustion: because the defendant maintains that all requested materials are not "records" within the FOIA, it would be futile to require plaintiff to exhaust his administrative remedies with respect to his third request to amend his FOIA request to include additional information that he has learned about the President's electronic communication systems) ("exceptional circumstances"/"due diligence": exceptional circumstances have been shown by plaintiff due to the pendency of this lawsuit and the fear that these electronic records will be lost at the end of the Bush administration) (grants a temporary restraining order to prevent defendants from destroying computer backup tapes in their custody or hereafter created as part of the transition process at the end of the Bush administration).
Atkin v. EEOC, No. 91-2508 (D.N.J. Dec. 4, 1992) (Vaughn Index: agency's Vaughn Index concerning documents it seeks to withhold under Exemptions 5, 6, and 7 (an investigative report, an Acting Legal Counsel's memorandum analyzing the allegations in that report, and the Inspector General's file compiled in response to those allegations) is conclusory and does not adequately permit the court to make a proper de novo determination; in order to withhold these documents, the EEOC must prepare a supplemental affidavit in accordance with the guidelines set forth in this opinion) (duty to search: plaintiff's conclusory allegations are insufficient to raise a genuine issue of fact about the adequacy of defendant's search) (fees: defendant's decision to aggregate plaintiff's FOIA requests for purposes of fee assessment was proper; since plaintiff made 13 separate FOIA requests within a 3-month period relating to the same alleged wrongdoing, it is reasonable to believe that these requests were made separately to evade the payment of fees; however, plaintiff must be given 100 free pages of duplication as required by the FOIA and EEOC regulations) (exhaustion: plaintiff has not exhausted his administrative remedies because he has not paid the fees assessed against him with regard to his requests; "constructive" exhaustion does not occur where the requester has failed to pay assessed fees, even though the agency has failed to timely process a request; also, if the agency responds to a FOIA request in an untimely manner but before the requester files suit, constructive exhaustion no longer applies; an agency may discontinue working on a FOIA request once the requester has failed to pay fees on a prior FOIA request) (fee waiver (Reform Act): agency properly denied plaintiff's fee waiver request for a list of EEOC attorney bar affiliations; the information is already in the public domain; such a list does not concern government operations and would not reveal anything meaningful about alleged wrongdoing on the part of EEOC employees) (denies plaintiff's requests for sanctions, because there is nothing to indicate that the EEOC's declarations were not well grounded in fact) (the EEOC has failed to demonstrate a legal basis for its request for an injunction permanently enjoining the plaintiff from contacting the EEOC or its employees).
Atkins v. EEOC, Nos. 92-1061, 92-1062 (D.D.C. July 7, 1992) (both of these cases are transferred to the U.S. District Court for the District of New Jersey where plaintiff has 4 other FOIA actions pending against the EEOC addressing the same fee waiver issue).
Author Servs., Inc. v. IRS, No. CV-90-2187 (C.D. Cal. July 31, 1992) (Exemption 7 (threshold): the IRS, a mixed-function agency, has not met its burden of proving that documents compiled after the termination of an IRS investigation of plaintiff meet the threshold requirement; defendant's Vaughn Index is inadequate and defendant must produce all documents withheld under Exemption 7).
Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep't of State, 818 F. Supp. 1291 (N.D. Cal. 1992) (adequacy of search: plaintiff's incredulity that no records were uncovered in response to one aspect of its search request does not constitute evidence of unreasonableness or bad faith) (Vaughn index: applying Wiener v. FBI, orders the defendant to produce within 120 days Vaughn indexes that explain in sufficient detail why information in approximately 130 documents concerning the Limited Test Ban Treaty of 1963 and the Nonproliferation Treaty of 1970 is exempt from disclosure, in whole or in part, under Exemption 1 (E.O. 12,356) and Exemption 5 (deliberative process privilege)) (in camera inspection: since defendant has not yet produced adequate Vaughn indexes, in camera review of the disputed documents and/or the appointment of a Special Master is not yet warranted).
Billington v. Dep't of Justice, No. 92-0462 (D.D.C. July 21, 1992) (expedited treatment: in this FOIA request where plaintiff seeks a minimum of 29,400 pages of previously unreleased FBI material, expedited processing is denied because plaintiff has not made an adequate showing that the FBI documents contain materially exculpatory information) ("exceptional circumstances"/"due diligence": the doubling of the FBI's backlog of FOIA requests since 1985 is due to mandatory budgetary reductions and a higher level of new requests; grants Open America stay until May 8, 1995; the U.S. Attorney must inquire at the FBI every 6 months to determine what progress is being made in reducing the backlog of cases and acting upon plaintiff's request, and then report to the court).
Canning v. Dep't of Justice, No. 92-0503 (D.D.C. July 15, 1992) (duty to search: defendant has demonstrated that it has conducted a reasonable search).
Chemcentral/Grand Rapids Corp. v. EPA, No. 91-C-4380 (N.D. Ill. Aug. 20, 1992) (magistrate's recommendation) (exhaustion: plaintiff is deemed to have exhausted its administrative remedies since defendant did not respond until after the statutory time period to plaintiff's FOIA request for information concerning EPA's determination that Michigan Act 307 Rules apply to remedial actions to clean up hazardous substance sites performed pursuant to "Superfund") (Exemption 5: the attorney work-product privilege protects documents generated when EPA was developing its remedial plan for 4 specific sites and legal advice was sought, documents discussing legal strategy, and documents relating to the avoidance of anticipated litigation and settlement negotiations, including correspondence between the agency and the target company; the deliberative process privilege protects documents discussing the adoption of the plan because they are predecisional, draft remedial plans, and also communications between EPA and the state agency because EPA must consult with the state in determining its final remedial action decisions; the attorney-client privilege protects remedial project managers' requests for legal advice from assistant regional counsels).
Chemcentral/Grand Rapids Corp. v. EPA, No. 91-C-4380, 1992 WL 281322 (N.D. Ill. Oct. 5, 1992) (Exemption 5: discussions of the application of Michigan Act 307 to specific Superfund sites are protected by the deliberative process privilege because prior to this time defendant had decided only that the Act could be applied to particular sites; the deliberative process privilege also protects communications between defendant and a state agency because these exchanges were part of the federal agency's deliberative process; remedial plans for specific sites are protected by the attorney work-product privilege because they were generated when defendant had focused its attention on specific entities it believed may have violated the statute, even though the agency later declined to prosecute; the attorney-client privilege was not waived, because the documents in question were circulated to only those employees who needed to review the legal advice contained in them) (magistrate's recommendation adopted).
Church of Scientology Flag Serv. Org. v. IRS, No. 92-338 (M.D. Fla. Nov. 3, 1992) (in this case where plaintiff seeks to obtain documents from the IRS under the FOIA, denies plaintiff's request for sanctions regarding the filing of the declaration of Keith Alan Kuhn; the declaration was relevant to an issue in the pending summary judgment motion, there is no evidence that the IRS knowingly allowed the filing of a false declaration, failure to allow the deposition of Kuhn is not clearly erroneous and defendant's unwillingness to strike the declaration after it had been withdrawn is not subject to sanctions).
Church of Scientology Int'l v. FBI, No. 91-10850 (D. Mass. Nov. 23, 1992) (adequacy of search: the declarant of the FBI's declaration concerning the adequacy of the search of the FBI's Boston field office is an official at FBI headquarters in Washington, D.C.; within 60 days the FBI shall conduct a new search, as described by the court, and shall file competent declarations by individuals with personal knowledge describing the searches of the Boston field office) (Vaughn Index: following Wiener v. FBI, finds that the FBI's affidavits fail to provide specific information which would enable the court to uphold the FBI's claims for exemptions; the FBI shall file a detailed Vaughn Index of over 1000 pages of records within 60 days) (Exemptions 7(C) and 7(D): information concerning individuals who publicly testified at a trial which concerned a theft from the Church, who provided information to the FBI on the Church's behalf, and who have been identified in relation to the events addressed must be released within 30 days to the extent that this information is not withheld under other exemptions).
Church of Scientology W. United States v. IRS, No. CV 90-3773 (C.D. Cal. Aug. 17, 1992) (attorney fees: plaintiff has substantially prevailed because it never would have received the requested records without filing this lawsuit; the release of the documents at issue, including a lengthy list of "illegal tax protestor churches," constitutes a public benefit; there was no reasonable basis in law for withholding these records; awards $16,881.56 in attorney fees to plaintiff).
City of Detroit v. Dep't of Labor, No. 90-72572 (E.D. Mich. Oct. 9, 1992) (magistrate's recommendation) (duty to search: defendant's affidavits demonstrate that its search was reasonably calculated to uncover documents responsive to plaintiff's FOIA request), adopted (E.D. Mich. Oct. 28, 1992).
City of Va. Beach v. Dep't of Commerce, 805 F. Supp. 1323 (E.D. Va. 1992) (Exemption 5: the attorney work-product privilege protects 5 documents that reflect the comments made by the National Marine Fisheries Service (NMFS) to Department of Justice attorneys about characterizations of NMFS's positions in the Department's briefs in litigation concerning the City of Virginia's proposed water supply project; the deliberative process privilege does not protect 38 documents, in draft and final form, that were created while NMFS was formulating a response to a letter from the City in which the City sought explanation for previously adopted policy; these documents also principally contain factual information; for the same reason, the deliberative process privilege also does not protect a preliminary report and related documents prepared by NMFS in response to the City's allegation of misconduct on the part of a scientist employed by NMFS -- they are an after-the-fact explanation of actions previously taken by agency employees; the deliberative process privilege does not protect reports that are factual and investigative in nature; 8 other documents, in whole or in part, must be released because they, too, are postdecisional and are not protected by the deliberative process privilege).
Cohen, Dunn & Sinclair, P.C. v. GSA, No. 92-57-A (E.D. Va. Sept. 10, 1992) (Exemption 4: disclosure of information in AT&T's and Sprint's FTS2000 documents that reflects their long-term pricing approaches and strategies for the telecommunication services they provide to the federal government would cause each company significant competitive harm).
Dalitzky v. SBA, 144 F.R.D. 8 (D. Mass. 1992) (magistrate's recommendation) (Exemption 5: the deliberative process privilege protects SBA's opinions and rationales arising from Southern National Bank's closing, disbursement, and processing of the loan of plaintiff's company; the attorney work-product privilege protects a letter from SBA's district counsel to the bank's loan officer containing a post-purchase review of the loan, prepared in contemplation of future litigation).
Davis v. Dep't
of Justice, 968 F.2d 1276 (D.C. Cir. 1992) (waiver: in this case where
plaintiff sought 43 reels of tape recordings made during a criminal investigation
and where neither plaintiff nor defendant knows which portions of these tapes
were played for the jury as evidence at trial, finds that plaintiff has the
burden of proving actual disclosure if any waiver is to apply) (Exemption 3
Durham v. United States Postal Serv., No. 91-2234, 1992 WL 700246 (D.D.C. Nov. 25, 1992) (Exemption 7(A): release of the investigative memoranda, witness files, and electronic surveillance material requested by plaintiff would substantially interfere with a pending homicide investigation by impeding the government's ability to present its strongest case and might jeopardize witnesses, some of whom are in the Witness Security Program) (Exemption 7(C): it is appropriate to decline to confirm or deny the existence of records about a possible suspect, even though plaintiff argues that the release of this information may prove that third party's innocence) (plaintiff's motion for a Vaughn Index denied because the government has adequately described the records withheld under Exemption 7(A)).
Engelking v. DEA, No. 91-0165 (D.D.C. Nov. 30, 1992) (following Johnson v. Department of Justice, finds that whether or not the requested information contains exculpatory evidence is irrelevant to plaintiff's FOIA request) (Exemption 2: protects violator and informant identifier codes) (Exemption 7(A): protects information in a fugitive's file; even though the case is considered closed, the fugitive is still at large and disclosure would jeopardize current fugitive investigations) (Exemption 7(C): even though the information is available in plaintiff's trial transcript, this exemption protects information about people who were implicated, involved, or associated with plaintiff, because the release of this information would serve no public interest) (Exemption 7(D): protects individuals who provided the DEA with critical information in the course of a law enforcement investigation; an implicit promise of confidentiality exists when dealing in communications with law enforcement agencies) (Exemption 7(E): protects information concerning 2 specific techniques, not generally known to the public, used by DEA in the capture and prosecution of drug traffickers) (Exemption 7(F): protects the names and identities of DEA Special Agents, supervisory agents, and other law enforcement officers) (Exemption 3 [Rule 6(e)]: protects 19 pages of grand jury transcripts because they would reveal the identity of witnesses and the substance of testimony before the grand jury) (to avoid the burden that in camera inspection places on the court, the Executive Office for U.S. Attorneys must file before January 5, 1993 an amended Vaughn Index that specifies which documents or document portions were withheld under Exemptions 5, 7(C), and 7(D)).
Epps v. Dep't
of Justice, 801 F. Supp. 787 (D.D.C. 1992) (exhaustion: plaintiff's complaint
against the United States Attorney's Office is dismissed because plaintiff never
made a FOIA request to that Department of Justice component) (Exemption 2: protects
G-DEP and NADDIS numbers; the exemption does not protect the dates, amounts
and method of payment on behalf of witnesses because this information is not
internal) (Exemption 7(E): protects the dates, amounts and method of payment
on behalf of witnesses; the exemption also protects polygraph charts and lists
of questions, techniques used to protect and/or relocate witnesses, mechanics
of investigative techniques, and information the disclosure of which would be
tantamount to identifying the use of a technique) (Exemption 3 [Rule 6(e)]:
protects information developed before a grand jury, including the identities
of witnesses and the strategy and direction of the investigation; [18 U.S.C.
Ferguson v. FBI, No. 89 Civ. 5071 (S.D.N.Y. Sept. 22, 1992) (plaintiff's complaint is dismissed; because the Second Circuit ruled that the information at issue is exempt under Exemption 7(D), consideration of plaintiff's arguments under Exemption 7(C) is unnecessary).
Four Corners Action Coalition v. Dep't of the Interior, No. 92-Z-2106 (D. Colo. Dec. 9, 1992) (bench ruling) (Exemption 5: the deliberative process privilege protects a "Note to File," a handwritten note, and a briefing paper; privilege does not protect 3 typewritten versions of questions and answers that are essentially factual in nature, even though some information may be inaccurate; however, handwritten marginal notes, interlineations, editorial insertions, deletions and comments, and introductory statements contained in these 3 documents are deliberative and properly protected; insertions on the last several pages of Document 2 are factual and must be released; releasable documents must be tendered to plaintiff on this date).
v. IRS, Nos. 91-4536, 91-4537, 1992 U.S. Dist. LEXIS 18099 (C.D. Cal. Nov.
13, 1992) (adequacy of search: defendant's affidavits demonstrate that its searches
were reasonable) (Exemption 3 [26 U.S.C.
Freeman v. Dep't of Justice, No. 92-0557 (D.D.C. Oct. 2, 1992) ("exceptional circumstances"/"due diligence": vacates, in part, court's May 22, 1992 order; because of the limited scope of plaintiff's FOIA request and because plaintiff has demonstrated that the information will assist him in his defense against state criminal charges for securities fraud where discovery of these records would not be available, orders the defendant to comply with plaintiff's FOIA request by December 31, 1992; and also by that date, to file a Vaughn Index of those documents or document portions for which it invokes exemptions).
Frye v. EPA, No. 90-3041, 1992 WL 237370 (D.D.C. Aug. 31, 1992) (attorney fees: given the scope of plaintiff's FOIA request, defendant's 4-month delay in processing that request and its 2-year delay in completing plaintiff's administrative appeal, the prosecution of this matter appears to have been a catalyst for disclosure; however, given EPA's subsequent voluntary releases of additional information, it is not clear that the lawsuit was the cause of those disclosures; the release of information regarding EPA's interpretation of the term "waters of the United States" does not benefit the public interest; plaintiff, a partner in a law firm that specializes in environmental law, does not deny that he was motivated by the potential for commercial benefit; agency's "gross noncompliance" with administrative deadlines, while not to be condoned, does not warrant an award of fees; attorney fees denied).
Gallant v. NLRB, No. 92-0873 (D.D.C. Nov. 6, 1992) (agency records: NLRB Board Member's letters sent to many individuals in an attempt to secure reappointment to her position are not agency records for purposes of the FOIA; even though these letters were disseminated to 3 agency officials, the letters were not used by them in conducting agency business; the Board Member created the records on her own initiative, she retained control over the letters by never letting them be integrated into the agency's record system, and the agency had no power to "use" the letters) (Exemption 6: protects the names of the recipients of the nomination-related correspondence appearing on agency fax logs).
GC Micro Corp. v. Def. Logistics Agency, No. C91-4027 (N.D. Cal. Aug. 12, 1992) (Exemption 4: release of information from Standard Form 294 would reveal the subcontracting strategy of 3 contractors who do business with the federal government and would give their competitors an unfair advantage in the bidding process).
Globe Newspaper Co. v. FBI, No. 91-13257, 1992 WL 396327 (D. Mass. Dec. 29, 1992) (Exemption 2: exemption does not protect the amount of money DEA paid to an informant over the course of many years, because the public has a right to know whether, in an effort to enforce criminal laws, agencies instead "bankrolled ongoing criminal activities"; disclosure does not pose a significant risk of circumvention of agency regulations or statutes) (Exemption 7(C): the public interest in disclosure clearly outweighs the de minimus privacy interest the informant has in the amount of money he received from DEA) (Exemption 7(D): this exemption applies only to the extent that intelligence from this informant that appears on payment vouchers may be redacted) (Editor's Note: Apparently, Exemption 7(E) was not invoked in this case.).
Green v. FBI, No. 89-699-CIV-5 (E.D.N.C. July 30, 1992) (sanctions: denies plaintiff's request for sanctions; defendant's reliance on unpublished case law is not sanctionable when there is no controlling or definitive authority on the issue; no filing of any document by the government was intended to harass, cause unnecessary delay, or cause needless increase in the cost of litigation) (attorney fees: since plaintiff indisputably prevailed on his second claim for relief, grants him attorney fees and litigation costs of $5384).
Grove v. Dep't of Justice, 802 F. Supp. 506 (D.D.C. 1992) ("no records" defense: both the National Security Agency and the Defense Intelligence Agency have demonstrated that, after reasonable searches, no responsive records were found to plaintiff's FOIA request) (Exemption 7(C): following Reporters Committee, finds categorically that plaintiff is not entitled to any documents "that might exist" in the Navy's criminal investigative files on 4 named private citizens; in the alternative, finds that the privacy interests of the individuals outweigh the public interests claimed by plaintiff; exemption also protects information contained in investigatory records that would identify third parties, including subjects of investigatory interest, government employees, defense contractors, and lawyers) (Exemption 5: the attorney work-product privilege protects information contained in FBI documents but generated by Department of Justice attorneys during litigation, including on various litigation issues, positions, and strategies concerning individuals who were under investigation for mail and wire fraud, theft of government property, and conspiracy to distribute marijuana) (referral documents: while the FBI may refer documents to their originating agencies and enlist the agencies' assistance in making a release determination, the FBI cannot avoid its own responsibilities under the FOIA and must submit a supplemental declaration to either invoke applicable exemptions or release the forwarded documents) (adequacy of search: when plaintiff claims that defendant's search was inadequate because it failed to reveal the existence of a map and yet the defendant has released hundreds of responsive documents, plaintiff has not made a showing of bad faith with regard to the FBI's search of its own documents) (within 45 days the FBI either must provide plaintiff with legible copies of some illegible documents or provide an affidavit specifying any documents for which it has no legible copies).
Hamrick v. Dep't of the Navy, No. 90-0283, 1992 WL 739887 (D.D.C. Aug. 28, 1992) (Exemption 5: the deliberative process privilege protects procurement documents compiled prior to the Navy's decision to "dual source" the F404 engines, because these documents contain personal opinions concerning procurement strategy, projections and forecasts relating to costs and discussions of potential contractors; documents prepared after the Navy's decision to "dual source" the engine are not "formal agency policy," but rather recommendations for future decisions relating to the F404 procurement) (agency records: employee's personal, handwritten notebooks, created and maintained for her own convenience, which were not included or referenced in any agency document, are not "agency records" for purposes of the FOIA).
Hanner v. Stone, No. 92-72719 (E.D. Mich. Oct. 26, 1992) (court sua sponte dismisses plaintiff's FOIA claim under the doctrine of res judicata; plaintiff has brought essentially the same lawsuit, against the same defendant, before this court on three separate occasions).
Harrison v. Lujan, Nos. 90-1512, 91-0250 (D.D.C. Dec. 8, 1992) (Exemption 4: applying Critical Mass, tersely finds that the documents at issue are protected from disclosure because they contain information that the provider would not ordinarily make available to the public).
Hassan v. FBI, No. 91-2189, 1992 U.S. Dist. LEXIS 22655 (D.D.C. July 13, 1992) (Exemption 2: protects trivial administrative data that is of no public interest) (Exemption 7(C): protects the names of subjects of investigative interest, agency personnel, confidential informants, and third parties from the investigative files of the FBI and United States Marshals Service) (Exemption 7(D): protects information provided by confidential sources and information that could lead to the identification of those sources) (Exemption 7(E): after in camera inspection, finds that the exemption protects information concerning common investigative techniques because these common techniques were used in conjunction with an uncommon investigative technique to achieve a unique investigative goal).
Heckman v. Olive, No. 88-2981, 1992 WL 390249 (E.D.N.Y. Dec. 9, 1992) (res judicata: all of plaintiff's FOIA claims prior to 1987 are barred by the doctrine of res judicata) (Exemption 6: protects information (other than names) about successful job applicants, given the lack of public interest in disclosure).
Helmsley v. Dep't of Justice, No. 90-2413 (D.D.C. Sept. 24, 1992) (Vaughn Index: in this FOIA case where the defendant agency withheld 21 boxes of information in whole and 20 boxes in part, finds that the defendant's supplemental categorical index is sufficient to allow plaintiff and the court to determine whether the exemptions apply) (Exemption 3 [Rule 6(e)]: protects information that would reveal the inner workings of the grand jury, including the witnesses who were questioned, the substance of the testimony and the evidence that was considered) (Exemption 5: the attorney work-product and deliberative process privileges protect documents created by and circulated within the Department of Justice and the IRS in the course of its prosecution of Leona Helmsley) (Exemption 7(A): if Ms. Helmsley's appeal of the denial of her new trial motion is granted, she will be entitled to a new trial and the disclosure of witness information and other evidence not previously revealed at trial would allow plaintiff to inhibit further investigation, destroy uncovered evidence, intimidate witnesses and fabricate evidence) (Exemption 7(C): protects the identities of individuals who were implicated with the plaintiff and those who were mentioned during the trial) (Exemption 7(D): protects the identities of and information supplied by confidential sources who did not testify at trial; the release of this information would chill cooperation with the government and pose a risk of retaliation).
Holland v. CIA,
No. 91-1233, 1992 WL 233820 (D.D.C. Aug. 31, 1992) (Exemptions 1 [E.O. 12,356]
and 3 [50 U.S.C.
Hunsberger v. Dep't of State, No. 92-0092 (D.D.C. Dec. 10, 1992) (summary judgment is granted to the defendant in this FOIA case because it has supplied plaintiff with the requested information).
Hunt v. CIA,
No. C-92-1388 (N.D. Cal. Sept. 10, 1992) (Exemptions 1 [E.O. 12,356] and 3 [50
Hunt v. FBI, No. C-92-1390 (N.D. Cal. Sept. 16, 1992) (Exemption 1 [E.O. 12,356]: on the basis of its in camera review, court finds that the disclosure of information concerning Hedayat Eslaminia, a deceased foreign national, "reasonably could be expected to cause damage to the national security" and that none of this information is "reasonably segregable" in any meaningful way; defendant properly classified the Eslaminia documents even though they were seized in the course of an investigation by the Belmont, California Police Department and reflect the thoughts of a private individual; defendant is not required to release the Eslaminia papers merely because similar information has "unofficially" entered the public domain).
Int'l Trade Overseas, Inc. v. AID, No. 87-3102 (D.D.C. Oct. 30, 1992) (attorney fees: plaintiff has not substantially prevailed; plaintiff filed this lawsuit before the agency, hampered by unavoidable administrative delays, was able to administratively process the records it eventually released; attorney fees denied).
Jones v. FBI, No. C77-1001 (N.D. Ohio Aug. 12, 1992) (in camera inspection: where, as here, a large number of documents have been withheld from disclosure, the government may satisfy its burden of proof by providing the court with a sample (2% or 197 pages) of the documents withheld) (adequacy of affidavit: agency's affidavits are sufficiently detailed for the court to decide whether the documents are exempt) (discovery in FOIA litigation: plaintiff's request for discovery denied because there are no material fact issues concerning the government's bad faith in destroying documents or its purpose in investigating plaintiff) (Exemption 1 [E.O. 12,356]: deferring to the agency's judgment, finds that the exemption protects the numerical designation assigned to a national security source) (Exemption 2: protects FBI symbol numbers and file numbers which are used internally to identify confidential sources) (Exemption 7 (threshold): there was a legitimate law enforcement purpose to the FBI's investigation of plaintiff, a member of a potentially violent organization) (Exemption 7(C): protects the identities of FBI agents, other government employees, state and local law enforcement personnel, confidential informants, and other third parties, even if they have testified in court) (Exemption 7(D): identity of a source may be protected even if that source has testified in court) (Exemption 7(E): protects lawful investigative techniques not generally known to the public which continue to be successfully used).
Jurney v. IRS, No. 90-M-1054 (D. Colo. Aug. 10, 1992) (Exemption 7(C): protects the names, job titles, addresses, and telephone numbers of nonemployee witnesses, a retired IRS agent, and the attorney for one of the contacts) ("no records" defense: IRS is not required to produce the names of the plaintiff's accusers or witnesses).
KDKA-TV v. Thornburgh, No. 90-1536, 1992 U.S. Dist. LEXIS 22438 (D.D.C. Sept. 30, 1992) (Exemption 5: deliberative process privilege protects draft safety recommendations, internal memoranda, and internal status reports prepared by the National Transportation Safety Board's (NTSB) investigative staff concerning an air crash in Gander, Newfoundland in December 1985 because these documents are not official statements by the Board, but rather the views of agency staff which the Board examined to determine a course of action; privilege also protects factual material in FBI status reports because these documents were antecedent to the adoption of the agency's policy and were part of the deliberative process; several other documents are predecisional because they relate to the ongoing review over the controversy which continues to the present time about the Canadian accident report; deliberative privilege also protects 3 draft documents: a reply to a congressional inquiry, a response to a newspaper columnist's letter, and a response to a Defense Department letter) (agency records: documents created by a Canadian federal agency and in the possession of the NTSB, which has no authority to release them pursuant to an international agreement, are not agency records for purposes of the FOIA) (Exemption 7(C): protects the identities of individuals interviewed, FBI Special Agents, and other government employees) (Exemption 7(D): failing "conclusive" evidence of nonconfidentiality, court will presume that FBI sources interviewed in the course of a law enforcement investigation were confidential within the meaning of the statute) (adequacy of search: agency's affidavits demonstrate that its search efforts were reasonable and adequate).
Kele v. United States Parole Comm'n, No. 92-1302 (D.D.C. Aug. 18, 1992) (Exemptions 7(C) and 7(F): protect an adverse witness's telephone number and his statements concerning his involvement with plaintiff and his reluctance to testify against him at his probation hearing).
Key Bank v. SBA, No. 91-362, 1992 U.S. Dist. LEXIS 22180 (D. Me. Dec. 31, 1992) (magistrate's recommendation) (Exemption 4: the agency's "speculative assertions" do not support its claim that the release of information the agency received from private credit reporting companies will impair the government's ability to get such information in the future) (Exemption 5: on in camera review, finds that the deliberative process privilege protects numerical ratings, an author's opinion concerning a real estate purchase, a handwritten comment about collateral, and the "Comments" section of a report; deliberative process privilege does not protect factual statements of events, an author's signature, and correspondence between 2 third parties; portions of another document are protected by the attorney work-product and attorney-client privileges) (Exemption 6: given that the subject of the documents has waived any privacy interest she might have in that information, the agency has not demonstrated that the release of information would deprive her of a privacy interest) (the agency must submit for in camera inspection 4 documents in their entirety and portions of 5 others which this court has concluded do not qualify for exemption protection on the basis of the existing record).
Koch v. United States Postal Serv., No. 92-0233 (W.D. Mo. Dec. 17, 1992) (Exemption 7 (threshold): because plaintiff does not deny that the Postal Inspection Service is a law enforcement agency, the court will assume that it is so for purposes of this case only; even though the completed investigation file was sent to plaintiff's supervisor for a decision as to whether disciplinary action was warranted, the records in this case were compiled after the defendant received a report that the plaintiff had made threatening statements; therefore, these records were compiled for law enforcement purposes, in order to prevent potential crimes which could result in civil or criminal sanctions) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects the name of the informant, since disclosure would not shed light on the inner workings of the federal government) (Exemption 7(D): defendant's affidavit demonstrates that the informant provided information under an implied assurance of confidentiality; therefore, the information may be withheld).
Kooritzky v. Martin, No. 92-1271 (D.D.C. Nov. 10, 1992) (Exemption 5: deliberative process privilege protects portions of an option paper that were generated prior to the adoption of agency's alien certification amendment and which constituted a "direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters").
Lindholm v. United States, 808 F. Supp. 7 (D.D.C. 1992) (mootness: plaintiff's FOIA request was properly dismissed as moot; his FOIA request was clearly made in response to a jeopardy assessment that has been abated).
Linneman v. FBI, No. 89-0505 (D.D.C. July 13, 1992) (adequacy of search: in the absence of any evidence to the contrary, finds that the FBI's Mobile Field Office conducted a reasonable search) (Vaughn Index: although the FBI's Denver Field Office did not submit a traditional Vaughn, its detailed affidavit fulfills the requirements of a Vaughn) (Exemption 7(C): protects the names of FBI Special Agents and clerical and laboratory personnel) (Exemption 7(D): protects the identities of sources who furnished information to the FBI in the course of a criminal investigation).
Md. Coalition for Integrated Educ., Inc. v. Dep't of Educ., No. 89-2851, 1992 U.S. Dist. LEXIS 10545 (D.D.C. July 20, 1992) (exhaustion: because plaintiff filed this lawsuit after the agency proffered its untimely responses, plaintiff must exhaust its administrative remedies with regard to the draft reports before challenging nondisclosure) (Exemption 5: the exchange of the documents between agency and state officials does not automatically remove them from the purview of Exemption 5; deliberative process privilege does not protect the federal government's compliance monitoring efforts to determine how well its education policies are being implemented by the state of Maryland; however, it does protect the compliance team's gathering, analysis and notation of information to the extent that these materials go beyond review and critique of the state's programs to discuss broader agency policy) (Exemption 7 (threshold): in a mixed-function agency, documents compiled as a result of the agency's routine oversight responsibilities do not meet the threshold requirement).
McClain v. Dep't of Justice, No. 91-C-0241 (N.D. Ill. Nov. 25, 1992) (fee waiver (Reform Act): even though the requester has no commercial interest in agency records concerning his involvement in an FBI sting operation, a fee waiver is not warranted because he cannot prove that the information will be disseminated to the public).
McCutchen v. HHS, No. 91-0142 (D.D.C. Aug. 24, 1992) (Exemption 7 (threshold): threshold requirement is satisfied because the records at issue involve the enforcement of the Public Health Service Act) (Exemptions 6 and 7(C): in this FOIA request for all cases closed by the Office of Scientific Integrity where there was no finding of scientific misconduct in connection with government research, finds that because the significant public interest in proper government conduct and scientific integrity outweighs the privacy (i.e., professional) interests implicated here, neither the names of the respondents nor the identification of institutions with 3 or fewer grants may be withheld; since there is no public interest in the names of the complainants, their identities may be withheld).
McDonnell Douglas Corp. v. NASA, No. 91-3134 (D.D.C. July 9, 1992) (defendant's motion for reconsideration denied; release of the contract line item prices from a launch vehicle procurement contract remains enjoined).
MCI Telecomms. Corp. v. GSA, No. 89-0746 (D.D.C. Dec. 23, 1992) (exhaustion: while plaintiff did not specifically name AT&T's Initial Cost Proposal, there is no exhaustion problem because its initial FOIA request can be construed as a request for this information) (focus of the FOIA on information: even though AT&T's Initial Cost Proposal (submitted to GSA for the FTS 2000 solicitation) was never made public, it contains contract prices that were publicly disclosed in AT&T's tariff filing with the FCC) ("reasonably segregable": while GSA need not produce nonexempt portions of this report if they are "inextricably intertwined" with the exempt portions, GSA has failed to sufficiently justify nondisclosure of the entire report; GSA has 20 days to file an affidavit detailing what portions of these documents contain nonexempt matters and explain how the material is spread within the document).
Mehl v. EPA, 797 F. Supp. 43 (D.D.C. 1992) (adequacy of search: agency's affidavits demonstrate that its search of its records at EPA headquarters was reasonably calculated to locate any responsive documents; however, the affidavits do not establish that the search of the Region 10 office was adequate; defendant must submit a supplemental affidavit within 30 days that describes the method used to search for documents in Region 10; plaintiff is denied discovery on the search issue because in camera inspection has confirmed the representations in defendant's affidavits) (waiver: an agency may voluntarily disclose a portion of an exempt document without waiving the exemption for the entire document; exemption was not waived for the information contained in a background paper, an option paper, an ownership report, a notice letter memo, and an executive summary when EPA released an inspector general's report that described the information contained in them).
Miscavige v. IRS, No. 91-3721 (C.D. Cal. Dec. 9, 1992) (Exemption 7 (threshold): IRS has not demonstrated that the documents at issue were compiled in the course of a law enforcement investigation because the IRS's investigation of plaintiff was concluded in May 1985 and plaintiff seeks records concerning himself dated from June 1, 1986 to the present; all documents withheld under this exemption must be released within 30 days) (Exemption 5: applying Wiener v. FBI, finds that the agency's affidavit is too vague and conclusory to allow plaintiff to contest the withholding of information under the deliberative process privilege; documents withheld under this exemption must be presented for in camera inspection within 30 days).
Mitchell v. Kemp, No. 91-2983 (S.D.N.Y. July 27, 1992) (jurisdiction: court lacks subject- matter jurisdiction when the agency has not withheld any requested documents from the plaintiff).
Monpas v. IRS,
No. 92-51 (D. Or. July 7, 1992) (magistrate's recommendation) (Exemption 7(E)
and Exemption 3 [26 U.S.C.
Montgomery v. Scott, 802 F. Supp. 930 (W.D.N.Y. 1992) (inasmuch as plaintiff received the information he requested, his FOIA claim is dismissed as moot).
Moore v. United States Marshals Serv., No. 90-3224 (D. Kan. Sept. 30, 1992) (proper party defendant: FOIA authorizes suit against federal agencies, not against individual agency employees) (Exemption 7(C): protects the names, initials, and telephone numbers of prison employees, and the names and register numbers of other prisoners) (FOIA as a discovery tool: the FOIA was not intended to supplement or as a substitute for traditional means of discovery).
Myles-Pirzada v. Dep't of the Army, No. 91-1080 (D.D.C. Nov. 20, 1992) (Exemption 5: deliberative process privilege does not protect an Inspector General's report regarding the merits of the plaintiff's appeal of her transfer from active to inactive status in the D.C. National Guard because this report represents the agency's final decision on her appeal; also, the privilege was waived when an agency official read the report to the plaintiff over the telephone).
Narducci v. Dep't of Justice, No. 91-2972 (D.D.C. July 24, 1992) ("exceptional circumstances"/"due diligence": on defendant's motion for reconsideration, modifies, in large part, its June 16, 1992 order; the defendant shall process plaintiff's FOIA request by no later than February 1, 1993; while plaintiff has articulated a need for expedited treatment, defendant has now shown that it is taking substantial steps to remedy its backlog problem).
Nat'l Sec. Archive v. Office of Indep. Counsel, No. 89-2308, 1992 U.S. Dist. LEXIS 13146 (D.D.C. Aug. 28, 1992) (Exemption 1 [E.O. 12,356]: in this FOIA case where plaintiff requested the notebooks that Oliver North maintained during his tenure at the National Security Council, orders that by October 15, the agency must file affidavits stating publicly "in as much detail as possible" the reasons for the nondisclosure of materials classified under the "USG -Q" code before the court will consider reviewing the agency's in camera submission concerning these materials; agencies' declarations, the FOIA topics, and the redacted notebook pages, when read together, create detailed explanations of redacted materials relating to sensitive foreign policy issues and efforts relating to strategies for countering activities hostile to the United States government or its allies; by October 15, defendant must produce a Vaughn Index justifying all (b)(1) claims made by DEA).
Nation Magazine v. Dep't of State, 805 F. Supp. 68 (D.D.C. 1992) (denies plaintiff's request for a temporary restraining order of the State Department's denial of expedited access to government records concerning presidential candidate H. Ross Perot because plaintiff has failed to establish a substantial likelihood of success on the merits; "exceptional circumstances" and "due diligence" exist in this case, and the court declines to broaden the definition of "exceptional need or urgency" to include FOIA requests concerning presidential candidates filed shortly before an election; it is undisputed that at least some of the documents requested by the plaintiff are exempt from disclosure under the FOIA; the documents cannot be inventoried and processed before the November 3, 1992 election; granting this request would "create an unworkable precedent and would severely jeopardize the public's interest in an orderly, fair, and efficient administration of the FOIA"; within 48 hours of discovery, defendant must notify the court of any past, present or future release of any document by the State Department concerning any presidential or vice presidential candidate resulting from expedited processing of any FOIA request submitted after June 22, 1992).
Nevas v. Dep't of Justice, Nos. 89-0042, 89-0043 (D.D.C. July 9, 1992) (defendant's motion to amend denied).
News Group Boston, Inc. v. Nat'l R.R. Passenger Corp., 799 F. Supp. 1264 (D. Mass. 1992) (Exemption 2: does not protect case-handling statements concerning disciplinary actions taken against certain Amtrak employees; these statements relate to the inner workings of Amtrak, there is a legitimate public interest in them and there is no risk of circumvention of agency law through disclosure; exemption protects payroll codes and job title codes, but does not protect the site code which identifies the location to which an employee is assigned) (Exemption 4: Amtrak has not submitted specific factual evidence to demonstrate that the disclosure of payroll information would cause them substantial competitive injury) (Exemption 5: commercial privilege does not protect withheld payroll information because Amtrak has also not demonstrated that the disclosure of this information would "significantly harm the government's commercial interest") (Exemption 6: applying Reporters Committee, finds that payroll information cannot be protected under Exemption 6 because these records directly reveal information about Amtrak and its fulfillment of its statutory responsibilities; exemption protects employees' names and home addresses, but not their job titles).
Patterson v. IRS, No. 90-1941, 1992 WL 477021 (S.D. Ind. Nov. 3, 1992) (Exemption 7(C): protects the results of IRS investigations concerning IRS employees other than plaintiff, their addresses, and other identifying information) (Exemption 5: deliberative process privilege protects a one-page recommendation concerning possible disciplinary action against plaintiff for violation of agency rules, which was generated prior to IRS making its final decision) (sanctions: plaintiff's request for sanctions must fail because it is based only on conclusory allegations).
Pennies from Heaven, Inc. v. Dep't of the Treasury, No. 88-1808 (D.D.C. Aug. 14, 1992) (Exemption 6: applying Reporters Committee, finds that individuals have a substantial privacy interest in their names, addresses, telephone numbers, and other personal information contained in Treasury Department records relating to matured or called registered securities that have not yet been redeemed and each registered security for which interest is owed; this privacy interest outweighs the limited public interest in disclosure because the release of this information to a tracer company will not instruct the public as to the workings of the Treasury Department).
Pittman v. Phillips, No. 91-3146 (D.D.C. Oct. 8, 1992) (Exemption 7(C): protects the names of law enforcement officers from audio tape recordings made of plaintiff's plea bargain negotiations with government agents).
Pub. Citizen v. Office of the United States Trade Representative, 804 F. Supp. 385 (D.D.C. 1992) (statements of policy: documents regularly submitted by the Office of the United States Trade Representative to dispute-resolution panels convened pursuant to the General Agreement on Tariffs and Trade (GATT) are statements of policy and interpretations which have been adopted by the agency and therefore must be made available for inspection and copying under subsection (a)(2), subject to any exemptions that the agency may claim) (Exemption 3: exemption does not protect the decisions of the panels; inasmuch as GATT and its subsequent modifications are not Senate-ratified treaties, they do not have the status of statutory law) (any future decisions of the GATT should be released immediately in response to any proper FOIA request, after redacting any material exempted by the FOIA).
Rice v. Dep't of Transp., No. 91-3306 (D.D.C. Nov. 17, 1992) (Exemption 6: protects a third-party address, date of birth, and Social Security number).
RMS Indus. v. DOD, No. C92-1545 (N.D. Cal. Nov. 24, 1992) (Exemption 4: release of some information concerning 3 successful bidders for Defense Department glove-insert contracts would cause substantial competitive injury to the companies involved and impair the government's ability to obtain such information in the future; this information includes descriptions of equipment and the names of contacts, customers, key employees, and subcontractors; confidentiality requirement is not met with regard to prices and terms and conditions contained in the contract bids and this information must be released) (Exemption 5: deliberative process privilege protects evaluative statements, but not the conclusions, prepared to assist DOD in arriving at its award of the glove-insert contracts).
Rothschild v. Dep't of State, No. 92-0186 (D.D.C. Aug. 19, 1992) (exhaustion: following Oglesby v. United States Department of the Army, finds that once an agency responds to a FOIA request, even after the 10-day statutory time period has elapsed, the requester must exhaust his administrative remedies; because plaintiff appealed only 3 of the 5 decision letters issued by the agency in response to his FOIA request, the plaintiff has failed to exhaust his administrative remedies with respect to the remaining 2 decision letters; however, because each of the agency's decision letters was issued before the Oglesby decision clarified FOIA's exhaustion requirements, the plaintiff has 60 days to appeal the 2 remaining decision letters).
Ruppert v. Bell, No. 90-0881 (E.D.N.Y. Oct. 26, 1992) (Exemption 5: after in camera inspection, finds that the deliberative process privilege protects 96 documents relating to a regulation promulgated by the Department of Health & Human Services).
Rutter v. United States, No. 90-0365 (D.D.C. Sept. 25, 1992) ("exceptional circumstances"/"due diligence": all defendants have satisfied the requirements of FOIA with regard to timeliness as interpreted by Open America) (Vaughn Index: grants DEA's motion to use sampling techniques in its Vaughn Index) (court has reviewed the lists of documents which defendants claim are exempt from disclosure and approves the legal and factual bases for each claimed exemption; "given the numerous documents at issue in this case, the myriad of exemptions claimed by the defendants, and plaintiff's failure to focus the court's attention on specific withholdings, it is unnecessary to discuss in more detail the court's findings and conclusions").
Savage v. IRS,
No. 92-2654 (C.D. Cal. Oct. 8, 1992) (Exemptions 3 [26 U.S.C.
Schmanke v. United States Postal Serv., No. 92-0701 (D.D.C. Dec. 29, 1992) (fee waiver (Reform Act): plaintiff, a prisoner, has not demonstrated that he has the capacity to disseminate this information widely) (fees (Reform Act): because plaintiff has not paid a debt of $53.50 incurred when defendant processed another FOIA request for the plaintiff in 1988, his current request has not been "properly received" and need not be processed).
Selby v. Dep't of Justice, No. 91-0342 (C.D. Cal. Aug. 19, 1992) (defendant's motion for reconsideration denied in this Exemption 7(D) case where the court, applying Wiener v. FBI, found that defendant's first and second affidavits were insufficient to demonstrate a promise of confidentiality and ordered the transcript of radio transmissions released).
Senate of P.R. v. Dep't of Justice, 795 F. Supp. 26 (D.D.C. 1992) (duty to search: by August 7, defendant must articulate a factual basis for limiting its search to the United States Attorney's Office for the District of Puerto Rico and must supplement its affidavit with respect to the completeness of the search conducted by each of the Justice Department's subdivisions) (Vaughn Index: by September 21, defendant must produce a more detailed Vaughn Index for the FBI documents, describing the investigative context of each document; a sampling procedure is justified only when there is a large volume of documents) (Exemption 3 [Rule 6(e)]: in order to verify that defendant has released those grand jury materials which do not reveal a protected aspect of grand jury proceedings, defendant, by September 21, must file a list of each of the 90 grand jury exhibits which it seeks to withhold under this exemption; but this aspect is also certified for interlocutory appeal).
Seybold v. Derwinski, No. 92-1712 (D.D.C. Dec. 11, 1992) (grants defendant's motion to dismiss on grounds of mootness; however, noting that plaintiff has been given the "bureaucratic run-around," after admonishing the defendant to process FOIA claims in a straightforward manner, advises defendant to seek legal assistance in processing his remaining claims).
Silber v. Dep't of Justice, No. 91-0876 (D.D.C. Aug. 13, 1992) (bench order) (Exemption 2: the Fraud Section Monograph written by the Commercial Litigation Branch of the Justice Department's Civil Division is "predominantly internal" and its release would create a significant risk of circumvention of agency regulations by advising an adversary as to the Department's tactics and strategy) (Exemption 5: finds that the attorney work-product privilege protects the entire monograph, including its historical preface and the table of contents) (Exemption 7(E): disclosure of this monograph "would present the specter of circumvention of the law") (waiver: the release of other manuals in other subject-matter areas does not compel the release of the fraud monograph, nor does the purloined publication of parts of this manual mean that any FOIA exemptions are waived).
Silvers v. Dep't of Justice, No. 92-0736 (D.D.C. July 8, 1992) (grants summary judgment to 2 agencies because plaintiff never made a FOIA request to them; summary judgment is granted to the remaining agencies because plaintiff never provided them with a privacy waiver for the third-party records he requested under the FOIA, which may or may not exist).
Spannaus v. Dep't of Justice, No. 90-0799 (D.D.C. Oct. 22, 1992) (denies plaintiff's request for an additional search because defendant's previous search was reasonable; grants government's motion to dismiss).
Spannaus v. Dep't of Justice, No. 85-1015 (D. Mass. July 13, 1992) (motion to quash granted; plaintiff has not proffered evidence sufficient to justify further discovery).
Spannaus v. Dep't of Justice, No. 85-1015 (D. Mass. Nov. 12, 1992) (adequacy of search: the government's affidavits are sufficient to establish the adequacy of the search for records concerning a federal investigation of the plaintiff or of the Lyndon Larouche organization covering the period from September 1983 to November 1984; the Stawicki affidavit, for the most part, recites firsthand knowledge of contacts personally made; "minor ambiguities" in affidavits concerning an agency search are insufficient to block summary judgment) (Exemption 5: attorney work-product privilege protects a one-page, handwritten draft attorney note and a one-page, internal attorney memo which concern an ongoing investigation; neither testimony at trial nor the actual trial itself waive the protection for documents that were prepared in anticipation of litigation).
Steinberg v. Dep't of Justice, 801 F. Supp. 800 (D.D.C. 1992) (adequacy of search: defendant's affidavits demonstrate that its search was adequate and reasonable) (Vaughn Index: coding technique used by the government is adequate; with minor exceptions (as specified), information was properly withheld under Exemptions 2, 7(C), and 7(D)) (Exemption 1 [E.O. 12,356]: the very nature of the information requested -- regarding the assassination of the prime minister of a friendly country -- implicates international security concerns sufficient on their face to justify classification, given an apparent two-way exchange of information with another government concerning a suspected assassin; passage of time, media reports, and informed and uninformed statements may not be used to undermine the legitimate interest of the government in protecting this information) (Exemption 7(C): protects the names of FBI Special Agents and support personnel, third parties, and informants mentioned in investigatory records).
Stimac v. Barr, No. C92-20479 (N.D. Cal. Nov. 23, 1992) (summary judgment is granted to defendants; their detailed affidavits demonstrate that they have met their obligations under the FOIA).
Varelli v. FBI, No. 88-1865 (D.D.C. July 13, 1992) (attorney fees: there is no evidence that the initiation of this lawsuit caused the release of documents; although the agency was slow in responding to plaintiff's voluminous FOIA request, it was merely "an unavoidable delay accompanied by due diligence in the administrative process"; attorney fees denied).
Watson v. Dep't of Justice, 799 F. Supp. 193 (D.D.C. 1992) (Exemption 2: protects G-DEP and NADDIS codes, an administrative marking used for the security of federal prisoners, teletype routing symbols, and access codes from teletype correspondence) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts) (Exemption 5: the attorney work-product privilege protects documents prepared in anticipation of specific litigation, even after the termination of that litigation) (Exemption 7(C): protects the identities of potential witnesses, innocent third parties, FBI Special Agents, clerical personnel, law enforcement personnel, and subjects of investigative interest) (Exemption 7(D): because the FBI can show that information was solicited during the course of a law enforcement investigation, this raises the presumption that promises of confidentiality were given) (Exemption 7(E): revealing the FBI's law enforcement techniques could reasonably be expected to compromise the effectiveness of the techniques and hamper law enforcement) (Exemption 7(F): protects the names of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers).
Wechsler v. Consumer Prod. Safety Comm'n, No. 92-402 (S.D. Fla. Oct. 19, 1992) (magistrate's recommendation) (Vaughn Index: on in camera inspection, finds that the agency's Vaughn Index is sufficient to justify the withholding of 37 documents concerning an accident that occurred on an amusement ride) (Exemption 7(D): without specifying an exemption, finds that there is a presumption that information obtained in the course of a law enforcement investigation comes from a confidential source; the fact that this confidential source and/or confidential information may subsequently be disclosed does not affect the exemption), adopted sub nom. United States v. Consumer Prod. Safety Comm'n (S.D. Fla. Dec. 1, 1992).
Williams v. McCausland, 791 F. Supp. 992 (S.D.N.Y. 1992) (parties directed to execute a stipulation for the information protected from disclosure under the FOIA; defendant ordered to permit discovery of other documents in plaintiff's personnel file).
Wong v. Dep't of State, No. C-92-0876 (N.D. Cal. Nov. 18, 1992) (Exemption 5: the attorney work-product privilege protects in its entirety a telegram from the Department of State to the American Consulate General in Hong Kong and to the American Embassy in Beijing because it contains the opinions and legal theories of an attorney concerning litigation that is currently pending; deliberative process privilege does not protect portions of a Bureau of Consular Affairs field officer's memorandum about the issuance of a Presidential executive order that was sent to the director of that office and which contains purely factual information; even though the author may have included some candid and informal comments in this memorandum, defendant cannot point to any final agency decision for which these comments served as part of the predecisional deliberative process; defendant may withhold the portion of this memorandum in which the author analyzes the role of the State Department in carrying out the executive order and recommends possible courses of action).
Young v. CIA, No. 91-527 (E.D. Va. Nov. 30, 1992) (attorney fees: the CIA did not release information pursuant to a court order; documents released concern plaintiff herself and do not contain the type of information that would benefit the public; the CIA had both a reasonable and legally sufficient basis for using the FOIA exemptions raised in this matter; attorney fees denied). (posted 6/11/03)
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