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Compiled FOIA Decisions (Received July-December 1991)

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 1991. 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).

Supreme Court

Assembly of Cal. v. Dep't of Commerce, 501 U.S. 1272 (1991) (in a 6-3 decision without an opinion, the Court granted a stay of a preliminary injunction disclosure order where plaintiff sought through the FOIA a computer tape containing numerical adjusted census data).

Dep't of State v. Ray, 502 U.S. 164 (1991) (Exemption 6: in a 6-2 decision, reverses the lower courts' disclosure orders and finds that the government may redact interview reports to protect the names of Haitians who have returned to Haiti; the privacy interest at stake here is more substantial than the court of appeals recognized; the public interest has been adequately served by the disclosure of the redacted interview summaries; the question of "derivative use" need not be addressed because plaintiff's argument fails a "mere speculation" standard) (Scalia, J., and Kennedy, J., concurring in part and concurring in the judgment).

Appeals Courts

Atkins v. Dep't of Justice, No. 90-5095 (D.C. Cir. Sept. 18, 1991) (unpublished order), 946 F.2d 1563 (D.C. Cir. 1991) (table cite) (the district court's motion for summary judgment in favor of the government is affirmed as moot; the question of whether DEA complied with the FOIA's time limitations is moot because DEA has now responded to the request; the district court properly determined that documents containing information provided by a confidential source are exempt from disclosure under Exemption 7(D)).

Critical Mass Energy Project v. NRC, 942 F.2d 799 (D.C. Cir. 1991) (petition for rehearing en banc granted; the court will reconsider National Parks).

In re Dep't of Justice, 950 F.2d 530 (8th Cir. 1991) (Exemption 7(A): denies the government's motion for a writ of mandamus; Robbins Tire notwithstanding, it is within the district court's power and discretion to order a document-by-document Vaughn Index in an Exemption 7(A) case; the government must make a specific factual showing why each of the 13,800 documents relating to the FBI's investigation into the disappearance of Jimmy Hoffa belongs in one of the 9 categories enumerated by the government and also explain why the category itself is exempt from disclosure) (Wollman, Circuit Justice, dissenting).

In re Establishment Inspection of Microcosm, 951 F.2d 125 (7th Cir. 1991) (Federal Register publication: OSHA had authority to conduct inspections based upon informal complaints, regardless of whether such authority was published in the Federal Register, because the requirement for publication attaches only to matters which if not published would adversely affect a member of the public).

Fazzini v. Department of Justice, No. 91-2219 (7th Cir. July 26, 1991) (summary affirmance granted to the government in this FOIA case where defendant agency demonstrated that its search was reasonable even though no documents were found).

FLRA v. Dep't of the Navy, 941 F.2d 49 (1st Cir. 1991) (FOIA/PA interface: the Privacy Act does not apply to information that must be disclosed under the FOIA) (Exemption 6: this court has assigned a relatively modest privacy interest to individuals' bare names and home addresses; applying Reporters Committee, finds that the court must balance the privacy and public interests at stake without regard to public interests other than the "core FOIA purpose" of opening agency operations to public scrutiny; disclosure of the names and home addresses of federal bargaining unit employees to unions would be a "clearly unwarranted invasion of personal privacy").

FLRA v. Dep't of the Navy, 944 F.2d 1088 (3d Cir. 1991) (Exemption 6: applying Reporters Committee, finds that the names and home addresses of employees in a proposed bargaining unit should not be released because this information is not directly related to the FOIA's purpose in opening a government agency to public scrutiny; Navy employees have a meaningful interest in maintaining privacy in their names, addresses, and identities as Navy employees; disclosure of Navy employees' names and home addresses is not warranted under the FOIA) (Mansmann, Circuit Justice, dissenting).

Ferguson v. FBI, No. 91-6248 (2d Cir. Oct. 29, 1991) (stay pending appeal granted for disclosure orders in court's September 13, 1991 order).

Green v. NLRB, No. 91-1177 (8th Cir. July 31, 1991) (unpublished memorandum), 950 F.2d 727 (8th Cir. 1991) (table cite) (Exemption 5: the deliberative process privilege protects investigation summaries because they are internal documents generated in preparation of an agency decision).

Jaindl v. FBI, 948 F.2d 781 (D.C. Cir. 1991) (summary affirmance granted to defendant in this FOIA case where the government withheld information under Exemptions 2, 7(C), and 7(D)).

Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991) ("exceptional circumstances"/"due diligence": because it is not clear whether the district court considered the government's evidence in its entirety, material facts remain in dispute as to whether a steadily increasing number of FOIA requests received by INS's San Francisco District Office is an "exceptional circumstance"; a genuine issue of material fact also exists as to whether INS exercised "due diligence" in giving due consideration to FOIA requests from aliens who have an urgent need for the information in pending deportation or exclusion proceedings; district court decision reversed and case remanded for further proceedings).

Morello v. Dep't of Justice, 948 F.2d 1337 (D.C. Cir. 1991) (government's motion for summary affirmance granted in this FOIA case where the court held that plaintiff failed to exhaust his administrative remedies because he failed to pay the applicable fees under the FOIA).

Patton v. R.R. Ret. Bd., No. C-91-04 (W.D.N.C. Apr. 23, 1991) (adequacy of request: plaintiff has not stated a claim for relief under the FOIA; rather he has asked a question about a grandfather clause and seeks an explanation regarding the calculation of his benefits), aff'd, 940 F.2d 652 (4th Cir. 1991).

Petroleum Info. Corp. v. Dep't of the Interior, No. 91-5059 (D.C. Cir. Dec. 4, 1991) (denies plaintiff's motion for summary affirmance in this FOIA case where the district court held that the Bureau of Land Management's Legal Land Description File is a purely factual compilation of raw data not exempt from disclosure under Exemption 5).

Pub. Citizen v. Farm Credit Admin., 938 F.2d 290 (D.C. Cir. 1991) (Exemption 8: institutions providing credit services are included in the term "financial institutions" under Exemption 8; Exemption 8 is not limited to cases in which disclosure of an examination report could threaten the solvency of the institution examined; examination reports on the National Consumer Cooperative Bank prepared by defendant are exempt from disclosure; grants defendant's motion for summary affirmance).

Savage v. FBI, No. 90-1110 (7th Cir. July 31, 1991) (unpublished order), 940 F.2d 671 (7th Cir. 1991) (table cite) (the district court was correct in finding that plaintiff's complaint was moot when he agreed to pay duplicating costs of $39.20; plaintiff's other objections are premature).

Scott v. FBI, No. 91-1546 (6th Cir. Sept. 26, 1991) (unpublished memorandum), 945 F.2d 405 (6th Cir. 1991) (table cite) (affirms the district court's judgment that Exemption 7(C) protects the identities of third parties and confidential sources).

Silets v. Dep't of Justice, 945 F.2d 227 (7th Cir. 1991) (en banc, sua sponte) (in camera inspection: by a 10-2 vote, affirms district court's denial of in camera inspection in this FOIA case where the government withheld portions of 10 documents relating to the electronic surveillance of Jimmy Hoffa under Exemptions 2, 3 [Rule 6(e)], and 7(C), finding that because the government's affidavits adequately explain the redacted material, the information logically fits within the claimed exemptions, and as there exists no evidence of bad faith, the district court did not abuse its discretion in denying in camera inspection) (Cudahy, Circuit Judge, joined by Cummings, Circuit Judge -- the original panel majority -- dissenting).

Stebbins v. Sullivan, 946 F.2d 1566 (D.C. Cir. 1991) (grants summary affirmance to defendant in this FOIA case where the defendant agency withheld the address of a third party under Exemption 3 [26 U.S.C. 6103(b)(2)] and Exemption 6).

Texas v. ICC, 935 F.2d 728 (5th Cir. 1991) (attorney fees: a state is eligible to recover attorney fees under the plain language of the FOIA; the information disclosed concerning an ICC proceeding is devoid of public benefit; in fact, the court is under the impression that this FOIA suit may have been a fishing expedition; affirms the denial of attorney fees).

United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991) (Federal Register publication: publication of IRS Form 1040 is not required in order to provide taxpayer with notice of duty to file a tax return).

Warmack v. Huff, No. 90-7630 (11th Cir. Nov. 18, 1991) (unpublished memorandum), 949 F.2d 1162 (11th Cir. 1991) (table cite) (affirms the judgment of the district court; defendant agency's affidavits and Vaughn Indices demonstrate the validity of withholding information about the multi-defendant criminal case in which plaintiff was involved under Exemptions 5, 7(A), and 7(D)).

Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) (Vaughn Index: defendant agency's "coded" affidavits are inadequate and nonspecific; they consist of "boilerplate" explanations which were drawn from a "master" response filed by the FBI for many FOIA requests; no effort was made to tailor the explanation to the specific document withheld) (Exemption 1 [E.O. 12,356]: defendant agency has not demonstrated that the source was truly confidential nor that the disclosure of the withheld information would lead to exposure of the source and "could reasonably be expected to cause damage to the national security"; the affidavits also do not adequately demonstrate the need to withhold intelligence activities and methods and information about foreign relations and governments) (Exemption 3: defendant agency's affidavits do not adequately justify the withholding of information under 8 U.S.C. 1202(f), 26 U.S.C. 6103(b)(2),, and of 3 paragraphs under 50 U.S.C. 403(d)(3); however, the affidavits do justify the withholding of code names under 50 U.S.C. 403g and the location of a CIA installation under 403(d)(3)) (Exemption 7 (threshold): the affidavits failed to sufficiently explain the "law enforcement purpose" underlying the FBI's investigation of John Lennon, other than to say that he was under investigation for possible violations of the Civil Obedience Act and the Anti-Riot Act because of his association with a radical group) (Exemption 7(C): does not apply the "categorical" balancing of Reporters Committee; instead finds that the privacy interests of third parties or informants whose names appear in FBI files, the public interest in disclosure, and a proper balancing of the two will vary depending on the content of the information and the nature of the attending circumstances; the FBI's categorical Vaughn Index is inadequate) (Exemption 7(D): the index does not provide plaintiff with the information necessary to challenge the FBI's conclusion that disclosure of the information would reveal the identity of a confidential source) (case is reversed and remanded; on remand the district court must receive an adequate Vaughn Index and conduct any additional proceedings in order to state in reasonable detail the reasons for its decision as to each document in dispute and also make specific findings on the issue of segregability) (amending its July 12, 1991 opinion, the court subsequently finds that the released portions of a document suggest the identity of the person whose privacy interests are protected by 26 U.S.C. 6103(a); thus, if the precise nature of the tax return information were revealed, the confidentiality guaranteed by 6103 would be compromised, so the FBI was not required to disclose more information than it did (even though the court unfortunately did so in its original panel opinion)).

Wiener v. FBI, 951 F.2d 1073 (9th Cir. 1991) (unpublished order) (government's petition for rehearing en banc denied in this FOIA case where the Ninth Circuit ordered defendant agency to prepare Vaughn Indices of unprecedented specificity).

District Courts

Alaska Pulp Corp. v. NLRB, No. 90-1510D (W.D. Wash. Nov. 4, 1991) (Exemption 7(A): the disclosure of back pay information before the issuance of a back pay specification and the notice of hearing will interfere with NLRB's ongoing compliance investigation).

Andrews v. Dep't of Justice, 769 F. Supp. 314 (E.D. Mo. 1991) (Exemptions 6 and 7(C): applying Reporters Committee, finds that the release of a former prisoner's address, telephone number, and place of employment would serve the public interest in the satisfaction of judgments, but that this interest does not support disclosure under the FOIA).

Antonelli v. Bureau of Prisons, No. 91-C-5776 (N.D. Ill. Oct. 31, 1991) (plaintiff, who has filed more than 60 FOIA complaints in this district, has been "quiescent for some time"; however, because he has recently filed 7 new FOIA suits, it is apparent that he has "caught a new bout of FOIA fever"; orders plaintiff to amend his defective complaint within 20 days, listing all prior FOIA cases he has filed against BOP with a sworn affidavit attesting that he has not previously filed a FOIA suit with respect to the records at issue here).

Arevalo-Franco v. INS, 772 F. Supp. 959 (W.D. Tex. 1991) (attorney fees: although the requested documents were released to plaintiff 3 weeks after he filed this lawsuit, the cause of the delay in the production of the records was a backlog at the INS field office; while the court does not condone what may have been an avoidable delay, plaintiff has not substantially prevailed; attorney fees denied).

Armstrong v. Bush, 139 F.R.D. 547 (D.D.C. 1991) (discovery in FOIA litigation: plaintiff is granted discovery on the issue of whether his FOIA requests were properly denied as unreasonably burdensome; discovery request for a sampling of the contents of computer backup tapes is not a permissible form of discovery for a FOIA request -- samplings have been ordered by the court only to test the validity of the FOIA exemptions invoked by the government).

Assembly of Cal. v. Dep't of Commerce, No. S91-990 (E.D. Cal. Aug. 20, 1991) (Exemption 5: the deliberative process privilege has not been waived, because the information previously disclosed does not duplicate the information being withheld; but even though a computer tape containing numerical adjusted census data was in existence when the Secretary of Commerce was making his decision whether to adjust the 1990 census figures for the State of California, the tape is not "predecisional" because it was not used by the Secretary in making that decision; the deliberative process privilege does not protect the rejected census estimates data because disclosure of the numerical data will not expose the decisionmaking process any more than it has already been exposed) (preliminary injunction: orders defendant to provide plaintiff with the magnetic computer tape requested under the FOIA).

Augustyniak v. Wintrode, No. 1:90-03346 (N.D. Ill. July 17, 1991) (plaintiff's action is premature because he has not yet exhausted his administrative remedies).

Author Servs., Inc. v. IRS, No. 90-2187 (C.D. Cal. Nov. 14, 1991) (duty to search: defendant must search its Exempt Organizations File because plaintiff has demonstrated that it is not unlikely that relevant documents exist in that file) (Exemption 3 [26 U.S.C. 6103(a)]: protects the employer identification number of a third-party taxpayer) (Exemption 5: defendant's Vaughn Index is insufficient; the defendant must make a genuine effort to produce a more detailed index) (Exemption 7 (threshold): there is a genuine issue of material fact as to the legitimacy of this mixed-function agency's claim of a "law enforcement purpose") (Exemption 7(D): defendant's affidavit insufficiently describes the circumstances surrounding the receipt of information which led to the conclusion that there was an implied promise of confidentiality) (Exemptions 7(C) and 7(F): the history of conflict and hostility between the parties involved in these investigations justifies careful precautions to protect the identities of IRS agents and third parties).

Beck v. Dep't of Justice, No. 88-3433 (D.D.C. July 24, 1991) (Exemptions 7(A), 7(C), 7(D), and 7(F): these exemptions are not necessarily waived when information is revealed at a public trial) (plaintiff's motion for reconsideration denied).

Brownstein Zeidman & Schomer v. Dep't of the Air Force, 781 F. Supp. 31 (D.D.C. 1991) (Exemption 4: it is speculative whether the release of modified unit prices that were attached to a contract for the purchase of computers would allow competitors to calculate AT&T's profit margin and consequently underbid AT&T) (Exemption 5: the deliberative process privilege protects a comparative analysis of the various contract proposals submitted to the Air Force because it contains evaluative reasoning and it is not entirely clear whether it was incorporated into defendant agency's final decision; this privilege does not protect the standards used to evaluate the proposals; although the deliberative process privilege does not protect negotiations between the government and outside parties, it does protect summaries of these negotiations because the summaries reflect the thoughts and impressions of the government personnel who prepared them; the deliberative privilege protects predecisional evaluations of the contract proposals but does not protect factual information) (waiver of exemption: orders defendant to search for Page 13 of an amendment to its selection plan; if the page exists it must be produced because no basis has been offered for withholding it).

Church of Scientology v. IRS, 137 F.R.D. 201 (D. Mass. 1991) (discovery in FOIA litigation: grants defendant's motion for a protective order staying further discovery until the court reviews the government's motion for summary judgment).

Church of Scientology Int'l v. IRS, No. 90-2567 (C.D. Cal. Aug. 2, 1991) (adequacy of search: IRS was not required to search its field offices or the Federal Records Center, because plaintiff did not specify this in its FOIA request; because defendant has conducted a reasonable search, it is under no obligation to account for records that the search did not uncover; an IRS agent may make a determination as to whether a particular record is responsive to a FOIA request without the approval of a supervisor or agency counsel, because the "FOIA was not intended to be a vexatious tapeworm inhibiting government functions by mobilizing agency officials at every level"; a search of the Electronic Surveillance Database is necessary to complete an adequate FOIA search in this case).

Church of Scientology Int'l v. IRS, No. 91-1025 (C.D. Cal. Nov. 14, 1991) (upon plaintiff's motion for reconsideration, applies Wiener v. FBI and holds that the interests of justice and the adversarial process will be better served if defendant provides plaintiff with a Vaughn Index prior to either party filing a dispositive motion).

Church of Scientology Int'l v. IRS, No. 91-1120 (C.D. Cal. Dec. 3, 1991) (orders the preparation of a Vaughn Index before the filing of motions for summary judgment).

Church of Scientology Int'l v. IRS, No. 91-1048 (C.D. Cal. Dec. 4, 1991) (orders the preparation of a Vaughn Index before the filing of motions for summary judgment).

Church of Scientology Int'l v. United States Nat'l Cent. Bureau - INTERPOL, No. 89-707 (C.D. Cal. Sept. 10, 1991) (Exemption 7 (threshold): the United States National Central Bureau (USNCB) is a law enforcement agency, serving as the information exchange liaison of INTERPOL; USNCB's investigation of the Church of Scientology meets the exemption's threshold test) (Exemption 7(A): upon in camera inspection finds that the release of the information would impede the ongoing investigation) (Exemption 7(D): defendant agency may withhold information received from foreign INTERPOL offices under express or implied promises of confidentiality) (Exemption 7(E): defendant agency's affidavits demonstrate that the disclosure of law enforcement techniques not known to the public would risk circumvention of the law).

Church of Scientology W. United States v. IRS, No. 90-4784 (C.D. Cal. Aug. 20, 1991) (duty to search: IRS's affidavits indicate with sufficient detail the methods by which its search was conducted and the reasons for doing so; thus, plaintiff's identification of one document that may or may not have been in defendant's possession at the time of the search is not sufficient to undermine the IRS's showing that the search was reasonable; denies plaintiff's request for discovery on the search issue).

Coker v. Simon, No. 89-2791 (W.D. Tenn. July 24, 1991) (summary judgment is granted to defendant in this FOIA case where plaintiff has had access to all the requested records that exist and the remaining records requested by plaintiff do not exist).

Coleman v. FBI, No. 89-2773 (D.D.C. Dec. 10, 1991) (adequacy of affidavit: the person who executes the Vaughn Index is not required to be personally familiar with more than the procedures used in processing the particular request) (Vaughn Index: the supplemented coded index provides an adequate record for review) (Exemption 2: "there can be little question" that this exemption protects an internal routing slip from disclosure) (Exemption 7(C): because plaintiff has failed to offer evidence of agency wrongdoing that would militate in favor of disclosure, the FBI may withhold information that would identify FBI personnel, informants, subjects of investigative interest, state and local employees, and state and local employees who are involved in law enforcement; the privilege is not waived, despite the fact that many of these names have previously been made public) (Exemption 7(D): having demonstrated the "presumption of confidentiality" in a criminal investigation, the FBI may withhold the identities of and the information provided by a third party, a nonfederal law enforcement agency, a state or local agency not involved in law enforcement, and by a commercial or financial institution; public testimony by confidential sources does not waive the right to invoke this exemption) (Exemption 7(E): the FBI may withhold an investigative technique, an analytical technique or methodology, and information disclosing "media techniques"; even though these techniques may be known to the public, the circumstances of their usefulness may not be widely known) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (discovery in FOIA litigation: plaintiff's motion for discovery is denied because he has not raised substantial questions concerning either the factual content of defendant agency's affidavits or the agency's good faith in processing his FOIA request) (summary judgment: summary judgment is appropriate because no issue of material fact exists).

Comm. to Bridge the Gap v. DOE, No. 90-3568 (C.D. Cal. Sept. 9, 1991) (Exemption 5: distinguishing Mobil Oil v. EPA, tentatively finds that the deliberative process privilege is waived for a draft order by the voluntary disclosure of an earlier draft order to a nonfederal third party; defendant must produce the 1988 draft order and all subsequent revisions to the plaintiff in response to its FOIA request).

Comm. to Bridge the Gap v. DOE, No. 90-3568 (C.D. Cal. Oct. 11, 1991) (Exemption 5: distinguishing Mobil Oil v. EPA, ultimately finds that the deliberative process privilege is waived for a draft order by the voluntary disclosure of an earlier draft order to a nonfederal third party; defendant must produce the 1988 draft order and all subsequent revisions to the plaintiff in response to its FOIA request; grants defendant a 10-day stay to decide whether to appeal).

Commodity News Serv. v. Farm Credit Admin., No. 88-3146 (D.D.C. Oct. 10, 1991) (Exemption 5: the deliberative process privilege does not protect notes taken by an agency staff member during an interview with the successful applicant for a receiver position, because the exemption ordinarily does not protect documents embodying an exchange of ideas between an agency and an outside party; nor does it protect notes taken by agency personnel summarizing telephone conversations with a job applicant's references; a list of staff members who met with both candidates for the position is essentially factual and on that basis is not exempt as deliberative) (Exemption 6: protects materials relating to the unsuccessful applicant for the position).

Commodity News Serv. v. Farm Credit Admin., No. 88-3146 (D.D.C. Nov. 8, 1991) (Exemption 5: the deliberative process privilege protects staff opinions regarding the qualifications of 2 job candidates).

Covington & Burling v. Food & Nutrition Serv. of the USDA, No. 88-3713 (D.D.C. Oct. 31, 1991) (at this advanced stage, plaintiff's decision not to continue this FOIA request does not render it moot; however, because plaintiff no longer needs the documents involved in this action, case is dismissed without prejudice).

Cox v. Dep't of Justice, No. 90-0645 (D.D.C. Sept. 19, 1991) (Vaughn Index: defendant's coded affidavit adequately demonstrates that information was properly withheld under Exemptions 2, 3, 5, and 7(C), 7(D), 7(E), and 7(F)).

DeLuise v. N. Bronx Westchester Neighborhood Ass'n, No. 91-258 (S.D.N.Y. July 8, 1991) (jurisdiction: court lacks jurisdiction because the FOIA applies to federal agencies only).

Dickerson v. Dep't of Justice, No. 90-60045, 1991 WL 337422 (E.D. Mich. July 31, 1991) (Exemption 7(A): after in camera inspection, the court is satisfied that the FBI's investigation into Jimmy Hoffa's disappearance in 1975 is active and continuing; defendant's categorical affidavit is sufficient to demonstrate that the disclosure of the information could reasonably be expected to interfere with prospective law enforcement proceedings).

Donleavy v. Region 22 of the NLRB, No. 91-1186 (D.N.J. Nov. 15, 1991) (exhaustion: judicial review is premature where plaintiff has not exhausted his administrative remedies).

Durnan v. Dep't of Commerce, 777 F. Supp. 965 (D.D.C. 1991) (Exemption 3 [5 U.S.C. app. 2411(c)]: the Export Administration Act protects from disclosure documents concerning an application for a license to export certain copper foil technology) (Exemption 4: the release of information concerning an export license application would impair the government's ability to obtain such information in the future and would cause substantial competitive harm to the applying company).

Ekblad v. IRS, No. 91-C-414 (W.D. Wis. Sept. 5, 1991) (grants defendant's motion for summary judgment in this FOIA case where all requested documents have been provided to plaintiff with the exception of those that do not exist).

Farm Fresh, Inc. v. NLRB, No. 91-603 (E.D. Va. Nov. 15, 1991) (Exemption 7(A): disclosure of an audiotape of a meeting between Farm Fresh employees and managers on the subject of a union organizing campaign is likely to interfere with an ongoing unfair labor practices proceeding) (Exemption 7(C): exemption does not protect the tape because it contains no personal information about any individual nor any sense of an expectation of privacy) (FOIA as a discovery tool: there is no doubt that Farm Fresh is seeking access to the tape under the FOIA to circumvent the NLRB's limited discovery procedures; the FOIA is not the appropriate mechanism for obtaining discovery even where the denial may be in violation of constitutional due process).

Ferguson v. FBI, 774 F. Supp. 815 (S.D.N.Y. 1991) (in this FOIA case where plaintiff, a prominent black nationalist figure in the 1960s, seeks FBI records concerning his criminal conviction in 1969, court orders the Attorney General to determine within 10 days whether he should waive, in whole or in part, the application of FOIA exemptions to the documents at issue in view of their age, their lack of relationship to current law enforcement activities, and the fact that they are of historic significance) (denies defendant's motion for clarification to provide that documents given to the court for in camera review will be returned to the FBI for release according to order) (the motion for renewed consideration of defendant's motion for summary judgment is denied because issues of fact exist as to whether the records were compiled for law enforcement purposes) (Exemption 7(D): the FBI cannot invoke this privilege for information provided to it in confidence by the New York City Police Department, because the Police Department had previously released this same information pursuant to state law; the privilege has also been waived by an individual who testified at great length as to the information that is now being sought under the FOIA; the government has not articulated any reason why nonfederal law enforcement agencies would be deterred from sharing information with the FBI as a result of disclosures under these circumstances) (Exemption 7(C): the FBI must ascertain which of its sources are now dead so that the court will be in a position to weigh any decedent's privacy interests against the interests favoring disclosure) (government's motion for a stay pending appeal is denied because defendant has not shown a likelihood of success on the merits, irreparable injury, public interest, or no significant injury to plaintiff) (within 10 days the FBI must make the in camera submissions to the court that were previously ordered).

Ferguson v. FBI, No. 89-5071 (S.D.N.Y. Oct. 28, 1991) (finds that the Justice Department declaration concerning the application of FOIA exemptions to historic investigatory records more than 15 years old that were submitted in compliance with the court's September 13, 1991 order does not comply with the court's provisions; if this matter is not rectified within 10 days, the court will resort to its extraordinary powers).

Fisher v. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (Exemption 2: internal symbols are of no public interest and may be withheld) (Exemption 5: the deliberative process privilege protects the opinions of a DEA Special Agent about the possible future activities of a drug trafficker and the need to relocate certain individuals and the comments of another agent about projected arrests) (Exemptions 7(C) and 7(D): protect the names of law enforcement personnel, third parties, suspects, and individuals who supplied information on a confidential basis and the information supplied by confidential sources) (Exemption 7(E): disclosure of investigative techniques and procedures within the context of the documents at issue could alert subjects in drug investigations about techniques used by the FBI) (Exemption 7(F): protects the names of DEA law enforcement personnel) (waiver: even if some of the withheld information has appeared in the press, nondisclosure is proper because disclosure from an official source would confirm the unofficial information and therefore cause harm to third parties).

Food Chem. News v. HHS, No. 91-0516 (D.D.C. Sept. 9, 1991) (FOIA/FACA interface: as the Federal Advisory Committee Act incorporates both the substance and the procedure of the FOIA, an agency may use procedures established by the FOIA as the mechanism for review of an advisory committee's decision not to make documents available in advance, and for subsequent disclosure of such documents).

Ford v. United States, No. C90-5492 (W.D. Wash. Oct. 17, 1991) (adequacy of search: defendant's affidavits demonstrate that an adequate search was conducted) (Exemption 7(C): the identities of IRS employees and other third parties were properly withheld from records concerning plaintiffs' tax liability).

Freeman v. Dep't of Justice, No. 90-2754 (D.D.C. July 12, 1991) (discovery in FOIA litigation: denies plaintiff's motion for a continuance to take discovery, because plaintiff has failed to demonstrate how a continuance will enable her to better oppose defendant's motion for summary judgment).

Freeman v. Dep't of Justice, No. 90-2754, 1991 U.S. Dist. LEXIS 19214 (D.D.C. Oct. 16, 1991) (adequacy of search: defendant agency has not conducted a reasonable search because it did not contact all the attorneys involved in discussions regarding a possible agreement to combine charges pending in 2 districts against the LaRouche organization to determine whether any of these discussions were reduced to writing).

Gassei v. Dep't of Justice, No. 91-1031, 1991 U.S. Dist. LEXIS 18059 (W.D. Okla. Nov. 22, 1991) (jurisdiction: court lacks jurisdiction in this FOIA case where defendant failed to respond to plaintiff's FOIA request within the 10-day statutory time period but plaintiff failed to file suit before defendant responded to his FOIA request and therefore he was required to file an administrative appeal).

Gould, Inc. v. Mitsui Mining & Smelting Co., 139 F.R.D. 244 (D.D.C. 1991) (discovery/FOIA interface: this court's FOIA decision does not control the issue of the Department of Commerce's compliance with a subpoena in discovery).

Gray v. USDA, No. 91-1383 (D.D.C. Nov. 25, 1991) (fee waiver (Reform Act): the release of the personal bankruptcy papers of a former government official who was terminated and prosecuted for misconduct will not contribute significantly to the public understanding of government operations).

Hammie v. Soc. Sec. Admin., No. 90-6955 (E.D. Pa. Oct. 31, 1991) (attorney fees: attorney fees granted to plaintiff who succeeded in obtaining from the Social Security Administration a Vaughn Index of the contents of his medical files; however, it is settled law in the Third Circuit that a pro se plaintiff may not be compensated for his own legal research and typing; plaintiff's award is limited to $14.55 for postage and copying costs).

Hanner v. Stone, No. 91-71271 (E.D. Mich. Sept. 19, 1991) (grants defendant's motion for summary judgment in this case where defendant has provided all materials available to plaintiff under the FOIA).

Henry v. FBI, No. 90-1987 (W.D. La. Oct. 7, 1991) (agency: the FBI is an agency for purposes of the FOIA; suits against individual agency employees in their official capacities are proper under the FOIA) (Vaughn Index: affidavits alone are insufficient factual bases upon which to decide the exemption issue; the FBI must submit a Vaughn Index).

Hill v. N.J. State Lottery Comm'n, No. 91-0486 (D.N.J. Aug. 27, 1991) (agency: the New Jersey State Lottery Commission is not an agency within the meaning of the FOIA) (Exemption 3 [26 U.S.C. 6103(a)]: protects taxpayers' income tax returns).

Hoffman v. IRS, No. 90-0459 (D.D.C. Oct. 23, 1991) (fee waiver (Reform Act): fee waiver denied because there is no indication that plaintiff intends to, or has the means to, disseminate information beyond the other prisoners in his institution to the general public; plaintiff has made no showing that the release of information, including the IRS manual and information pertaining to the Taxpayers' Bill of Rights, is "likely to contribute significantly to public understanding of the operation or activities" of the IRS).

Hougan & Denton v. Dep't of Labor, No. 90-1312 (D.D.C. July 3, 1991) (Exemption 6: applying Reporters Committee, finds that there is a substantial privacy interest in the identities of participants in a local union's training program and that disclosure would not shed light on the workings of the government).

Howard v. Sec'y of the Air Force, No. 89-1008 (W.D. Tex. Oct. 2, 1991) (proper party defendant: individuals are not proper defendants under the FOIA) (agency records: in light of the fact that outdated CFRs are available at libraries or through the Government Printing Office, defendant agency's definition of "agency records" excluding such material from disclosure under the Act is reasonable) (subsection (a)(2)(B): because outdated CFRs are a codification of the rules published in the Federal Register, this subsection does not apply to them) (interaction of (a)(2) & (a)(3): defendant need not provide plaintiff with outdated regulations on a continuing basis) (adequacy of request: plaintiff's request for copies of all outdated regulations is clearly overbroad).

Husek v. IRS, No. 90-0923, 1991 U.S. Dist. LEXIS 20971 (N.D.N.Y. Aug. 16, 1991) (Exemption 6: the public interest in scrutinizing the hiring decisions of federal agencies outweighs the de minimus privacy interest federal employees have in their citizenship, date of birth, educational background, veteran's preference, and narrative comments and codes).

Johnson v. Dep't of Justice, No. 85-0714, 1991 WL 251940(D.D.C. Nov. 13, 1991) (Exemption 7(C): protects informant information; in the absence of compelling evidence of agency misconduct, plaintiff's contention of "indirect public purpose" -- plaintiff's collateral attack on his criminal conviction -- does not outweigh the substantial privacy interests of the informants).

Lawyers Alliance for Nuclear Arms Control - Philadelphia Chapter v. DOE, No. 88-7635, 1991 WL 274860 (E.D. Pa. Dec. 18, 1991) (Exemption 1 [E.O. 12,365]: exemption protects the results of the U.S.-Soviet weapons tests, because plaintiff has failed to produce any admissible evidence of the Soviet Union's consent to disclose this information and the agreement between the 2 nations states that information produced pursuant to the Joint Verification Treaty shall be held in confidence).

LeMaine v. IRS, No. 89-2914, 1991 U.S. Dist. LEXIS 18651 (D. Mass. Dec. 10, 1991) (Exemption 3 [26 U.S.C. 6103(e)(7)]: there is not sufficient evidence in the record to meet the burden of demonstrating that the release of first-party tax return information would seriously impair federal tax administration) (Exemption 5: the attorney-client privilege protects confidential communications with counsel for the purpose of obtaining legal advice; therefore the privilege protects legal opinions offered by the District Counsel or the U.S. Attorney's Office, but does not protect "matters discussed with" attorneys; after in camera inspection, finds that the deliberative process privilege does not protect documents that are a mix of fact, law, and policy because the release of these pages would not have an adverse impact on the quality of agency decisions) (Exemption 7(A): there has been no showing that the release of plaintiff's tax records would be premature or would result in any specific harm) (Exemption 7(C): protects the identities of persons approached by the IRS to obtain information about plaintiff) (attorney fees: in the First Circuit, attorney fees are not authorized by the FOIA for a pro se plaintiff; although plaintiff has substantially prevailed, his interest in these documents was entirely personal; awards plaintiff only the filing fees as costs in this case).

Lindsey v. Nat'l Sec. Agency/Cent. Sec. Serv., No. 87-1564 (D. Md. July 17, 1991) (duty to search: defendant's affidavit demonstrates that an adequate search for records concerning the Glomar Explorer was conducted, even though no documents were found).

Lyons v. OSHA, No. 88-1562 (D. Mass. Dec. 2, 1991) (duty to search: defendant agency's affidavits demonstrate that it has made a good-faith search in response to plaintiff's FOIA request) (Exemption 7(A): the release of documents would interfere with law enforcement proceedings against plaintiff's client, General Dynamics Corporation) (Exemption 5: the deliberative process privilege protects nonfinal drafts) (attorney fees: attorney fees denied; it is unclear whether the suit caused the production of documents; this suit was brought to advance a large corporate interest).

Martorano v. FBI, No. 89-0377, 1991 WL 212521 (D.D.C. Sept. 30, 1991) (pro se plaintiff: plaintiff, who alleges that he suffers from mental illness, is denied appointment of counsel because his FOIA case does not raise novel or complex questions of law and the burden of proof is on the government) (fee waiver (Reform Act): the FBI is not required to release the requested information to plaintiff until fee has been paid or there is justification for a fee waiver) (Exemption 2: informant- and violator-identifier codes and routing and administrative procedures are of purely internal significance, and their release could risk circumvention of law) (Exemption 3 [Rule 6(e)]: protects transcripts of grand jury testimony) (Exemption 5: the deliberative process privilege protects DEA Special Agents' comments, observations, and recommendations made to their supervisors concerning a particular narcotics investigation) (Exemption 6: protects third-party medical files) (Exemption 7(A): protects information concerning an ongoing enforcement proceeding against plaintiff and another concerning a fugitive who is still at large) (Exemption 7(C): protects the names of DEA Special Agents, and clerical and laboratory personnel who assisted in the investigation) (Exemption 7(D): protects the identities of confidential sources and the information they provided) (Exemption 7(E): protects law enforcement techniques used in narcotics investigations that are not generally known to the public) (Exemption 7(F): protects the identities of DEA Special Agents and other law enforcement personnel who associated with violators in undercover capacities) (summary judgment: summary judgment is granted to DEA, the FBI, the Executive Office for United States Attorneys, and the Bureau of Prisons because they have not wrongfully withheld any information from plaintiff).

May v. IRS, No. 90-1123-W-2 (W.D. Mo. Dec. 9, 1991) (Vaughn Index: a document-by-document Index is not necessary because all of the requested documents relate to the IRS's pending criminal and civil investigations of plaintiff; a categorical index is sufficient) (Exemption 7 (threshold): the threshold requirement is met by documents that were compiled as part of the IRS's investigations of plaintiff for his potential tax liabilities) (Exemption 7(A): the release of third-party correspondence, witness statements, worksheets, and travel vouchers would interfere with the law enforcement actions pending against plaintiff) (Exemption 3 [26 U.S.C. 6103(e)(7)]: disclosure of first-party tax return information would seriously impair federal tax administration).

McCoy v. Moschella, No. 89-2155, 1991 U.S. Dist. LEXIS 13618 (D.D.C. Sept. 30, 1991) (Exemption 2: file numbers identifying certain types of bank robberies may be withheld because they are of no public interest) (Exemption 7(C): protects the identities of FBI Special Agents, clerical and laboratory personnel, of police officers, and of persons who furnished information to the FBI) (Exemption 7(D): protects the identities of confidential sources, and the information they provided, including police agencies and officers, commercial sources, bank employees, and the people who developed the bank surveillance film) (Exemption 7(E): protects file numbers that categorize bank robberies for the purposes of subject identification).

McDonnell v. United States, No. 88-3682 (D.N.J. June 10, 1991) (magistrate's recommendation) (mootness: in this FOIA case where plaintiff seeks information about the Morro Castle Luxury Liner that caught fire along the New Jersey coastline in 1934, plaintiff's requests for higher-quality documents and for information concerning the "Black Tom" explosion are moot) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to his requests for information about J.B. Duffy, George Alagna, and Oscar Niger) (Exemption 1 [E.O. 12,356]: defendant agency's affidavits demonstrate that the release of cryptographic information from 1934 may still impact today's national security; even though the underlying message behind the withheld codes is not confidential, the FOIA does not require the FBI to translate exempted passages) (Exemption 3 [Rule 6(e)]: exemption protects information provided to a grand jury, names of individuals subpoenaed, and transcripts of testimony; [18 U.S.C. 5038]: Section 5038 is an Exemption 3 statute; protects the juvenile court records of George Rogers) (Exemption 6: protects medical information found in the personnel file of an undisclosed individual) (Exemption 7 (threshold): the FBI satisfied the threshold requirement because it initiated and pursued investigations of the allegations of crimes involved in the Morro Castle incident) (Exemption 7(C): exemption protects the identities of certain FBI Special Agents and clerical personnel, other law enforcement officers, other federal government employees, and subjects of investigative interest; even though the FBI has divulged certain information to plaintiff, the confidential status of all related documents has not been waived; the burden is on the FBI to determine whether individuals are deceased; information identifying third parties and informants must be released unless another FOIA exemption applies) (Exemption 7(D): the FBI properly withheld information provided by or information that could identify confidential sources when these individuals were given express assurances of confidentiality; because the FBI has not proven that implied assurances of confidentiality were given to witnesses, the FBI must produce all documents and information withheld pursuant to Exemption 7(D) where implied assurances of confidentiality are claimed, unless that information is protected by another exemption), adopted (D.N.J. Sept. 6, 1991).

Meyer v. Bush, No. 88-3112 (D.D.C. Sept. 30, 1991) (agency: the Presidential Task Force on Regulatory Relief chaired by the Vice President is an agency for purposes of the FOIA because the Task Force did not merely advise and assist the President, but had substantial, independent, directorial authority and took clear and decisive actions in reforming the regulatory process) (agency records: defendants must file a supplemental affidavit indicating whether the Office of the Vice President kept Task Force documents and, if so, the manner in which they were maintained) (Exemption 5: defendants must respond to plaintiff's proposed interrogatories so that the court can determine whether information can be segregated and whether the deliberative process privilege has been waived) (adequacy of search: because defendant may have improperly limited plaintiff's request, defendant must conduct another search of all relevant files and identify documents concerning regulations that were or are still under consideration by OSHA, the FDA, and EPA).

Meyer v. Bush, No. 88-3112 (D.D.C. Dec. 2, 1991) (grants defendant's motion for interlocutory appeal and for a stay pending appeal; the determinations that the Presidential Task Force on Regulatory Relief is an agency subject to the FOIA and that the Task Force's records are "agency records" under the FOIA involve controlling questions of law).

Miss. Ass'n of Coops. v. Farmers Home Admin., 139 F.R.D. 542 (D.D.C. 1991) (allows plaintiff to amend its FOIA complaint only to the extent that it is related in a substantive way to the original complaint) (denies plaintiff's motion for reconsideration of court's October 4, 1991 order in which the court permitted plaintiff to amend its original FOIA complaint only to the extent that it is related in a substantive way to the original complaint).

Mittleman v. United States Treasury, 773 F. Supp. 442 (D.D.C. 1991) (plaintiff's FOIA complaint is dismissed because she never exhausted her administrative remedies).

Nance v. United States Postal Serv., No. 91-1183 (D.D.C. Sept. 24, 1991) ("no records" defense: the index of cashed money orders that plaintiff seeks does not exist, and defendant agency is not required under the FOIA to create records) (with respect to the underlying documents themselves, defendant may submit a renewed motion for summary judgment containing a more detailed showing of the burdensomeness of the request).

N.Y. Times Co. v. NASA, 782 F. Supp. 628 (D.D.C. 1991) (Exemption 6: protects the audiotape of voice communications aboard the Challenger Space Shuttle; even though the substantive information contained in the tape is technical, nonpersonal, and has already been released in written form, the Challenger families have a substantial privacy interest here because even their exposure to the sound of a beloved family member's voice immediately prior to that person's death would cause "a disruption of their peace of mind"; although the public has an undeniable interest in learning the about NASA's conduct before, during, and after the Challenger disaster, the release of the disputed tape will not serve that interest in any significant way).

North v. Walsh, No. 87-2700 (D.D.C. July 26, 1991) (Exemption 5 : on in camera inspection, finds that a memorandum containing a list of witnesses to appear before Congress and a related discussion are protected by the deliberative process and attorney work-product privileges; draft documents regarding instructions about exposure to immunized testimony to be given to witnesses are protected by the deliberative process privilege; other documents reflecting the implementation of the immunization procedures are not protected).

Norwood v. FAA, No. 83-2315 (W.D. Tenn. Dec. 11, 1991) (Exemption 6: adverse action files of employees reinstated as air traffic controllers after their removal from these positions because of their participation in the strike of August 1981 are either "personal" or "similar" files within the meaning of this exemption; defendant agency has failed to demonstrate that the release of the names and identifying information within these adverse action files would violate substantial privacy interests of the reinstated air traffic controllers) (Exemption 5: portions of documents in these adverse action files are protected by the deliberative process privilege because they contain the agency officials' recommendations and proposals used in arriving at the final decision of whether to enter into settlement agreements with the controllers in question; factual portions of these documents are not so "inextricably intertwined" with the deliberative portions as to afford protection under this privilege; document that provides the "facts and circumstances supporting removal" is not predecisional and is therefore not protected by the deliberative process privilege; defendant agency has failed to demonstrate that the factual portions of the documents are nonsegregable attorney work-product; defendant agency has failed to prove that the documents for which the attorney-client privilege is claimed were made by and between an attorney and FAA officials with the expectation of confidentiality) (in camera inspection: denies the government's request for in camera review of the personally identifying information and the factual materials contained in the documents protected by the deliberative process privilege) (defendant must provide plaintiff with these documents within 30 days) (attorney fees: an attorney who is a pro se FOIA plaintiff is not entitled to attorney fees even if he is the prevailing party) (disciplinary proceedings: because the court declined plaintiff's request for attorney fees, both prerequisites of subsection (a)(4)(F) have not been met; contempt sanctions are not warranted because the documents which were discovered by defendant in November 1984 and provided to plaintiff in April of 1985 were not intentionally withheld).

Palmer v. Sullivan, No. H-C-91-13 (E.D. Ark. July 3, 1991) (attorney fees: lawsuit was unnecessary because defendant agency's regulations provide that the audiotape plaintiff sought will be made available upon request; a telephone call or a follow-up letter could easily have avoided this lawsuit; fees denied).

Pennies from Heaven, Inc. v. HUD, No. 88-2163 (D.D.C. Aug. 29, 1991) (discovery in FOIA litigation: grants plaintiff's motion for further discovery; tracer-plaintiff who seeks information concerning mortgagors who are entitled to distributive shares of insurance premiums has demonstrated that defendant agency's "no record" defense is not reasonable because there seems to be at least one record in HUD's system of records responsive to plaintiff's request and HUD may be able to locate more in other record systems).

Pfeiffer v. CIA, No. 87-1270 (D.D.C. Oct. 23, 1991) (attorney fees: because defendant agency made a discretionary decision to release a document that was exempt from disclosure under Exemption 5, plaintiff is not entitled to attorney fees).

Pollack v. United States Bureau of Prisons, No. 90-0405 (D.D.C. Aug. 19, 1991) (mootness: despite plaintiff's contention that he has never received any documents in response to his FOIA/PA request, the court relies on defendant's affidavit which demonstrates that responsive documents have been mailed to plaintiff; case is dismissed as moot).

Providence Journal Co. v. Dep't of the Army, 769 F. Supp. 67 (D.R.I. 1991) (in this FOIA case where dispositive motions have not yet been filed, orders defendant to prepare within 30 days a Vaughn Index of the documents withheld in whole or in part concerning the Inspector General's investigation of the Rhode Island National Guard; it would be unfair to allow defendant months to prepare its case and then force plaintiff to formulate its case in the short time it has to respond to that motion).

Providence Journal Co. v. Dep't of the Army, 781 F. Supp. 878 (D.R.I. 1991) (Exemption 6: an Inspector General's (IG) Report of Investigation cannot be considered a "similar" file because it is not a regularly compiled administrative record) (Exemption 7(C): when high-level government employees are the suspects in an investigation of agency wrongdoing, the balance tips in favor of disclosure) (Exemption 5: factual allegations and conclusions about high-ranking officials contained in an investigative report are not protected by the deliberative process privilege; the deliberative process privilege does protect 3 internal memoranda which directed the IG's office to investigate certain areas) (Exemption 7(D): the Army's promise to keep witnesses confidential to the extent permitted by law and regulation is not sufficient to qualify for protection under this exemption; therefore, the Army can redact the names, ranks, and positions of the witnesses from the report, but even though the court finds the report to be part of a lawful criminal investigation, the content of their statements must be released; when the person interviewed consents to public disclosure of the transcript of his interview, Exemption 7(D) cannot apply; the exemption does not protect 4 anonymous letters because the authors sent copies of those letters to other people and offices).

Pub. Citizen v. Dep't of State, No. 91-0746 (D.D.C. Aug. 26, 1991) (Exemption 1 [E.O. 12,356]: although the defendant agency submitted detailed affidavits, the court has some concern that the public testimony of Ambassador Glaspie about her July 25, 1990 meeting with Saddam Hussein may have waived the exemption; orders in camera inspection of the withheld documents) (Exemption 5: it is unclear whether the precise words the Ambassador selected in summarizing her meeting with Hussein reflected her thought processes, or whether factual information is so intertwined with opinion that it cannot be segregated for disclosure; orders in camera inspection of documents withheld under the deliberative process privilege).

Ray v. Dep't of Justice, 778 F. Supp. 1212 (S.D. Fla. 1991) (Exemption 7(C): after in camera review, finds that the government may neither confirm nor deny the existence of records concerning the results of any Immigration and Naturalization Service investigation of INS Examiner Joe Grillo).

Robert v. Bell, No. 89-3482 (E.D.N.Y. Oct. 24, 1991) (proper party defendant: complaint dismissed because the FOIA does not create a right of action against a subordinate agency official).

Rodrequez v. U.S. Postal Serv., No. 90-1886, 1991 WL 212202 (D.D.C. Oct. 2, 1991) (jurisdiction: court lacks jurisdiction over the United States Secret Service, the Criminal Division of the Department of Justice, and the United States Parole Commission because they have not withheld any requested documents from plaintiff) (exhaustion: plaintiff did not exhaust his administrative remedies with respect the Postal Service because he never appealed its denial of his request for a fee waiver) (Exemption 2: protects DEA informant and violator codes, computer codes, identification numbers, and telephone numbers and other communications information) (Exemption 3 [Rule 6(e)]: defendant may withhold the identities of grand jury witnesses, grand jury testimony, documents considered by the grand jury, and the conclusions reached by the grand jury's investigation) (Exemption 6: the exemption protects an individual's home address) (Exemption 7 (threshold): the threshold requirement is met where the information requested comes from documents recording law enforcement agencies' ordinary investigations and activities) (Exemption 7(C): because plaintiff has demonstrated no public interest, defendants may withhold the identities of individuals implicated by or criminally involved with plaintiff, the names and telephone numbers of law enforcement personnel, other personnel and prisoners, the identities of informants and subjects of investigative interest, and third-party names) (Exemption 7(D): protects the identities of confidential sources and the information provided by them under express or implied assurances of confidentially) (Exemption 7(F): DEA may withhold the names of Special Agents, Supervisory Special Agents, and other law enforcement officials investigating drug activity).

Rogers v. Dep't of Justice, No. 90-65 (D. Mont. May 23, 1991) (magistrate's recommendation) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts, subpoenas, and a notice of disclosure of grand jury materials) (Exemption 5: the attorney work-protect privilege protects attorneys' notes and internal records) (witness statements must be disclosed as the government has not presented a rationale for withholding them), adopted in part (D. Mont. Aug. 20, 1991) (Exemption 7(D): protects witness statements) (the court concurs with the remainder of the magistrate's recommendations and grants defendant's motion for summary judgment).

Rojem v. Dep't of Justice, 775 F. Supp. 6 (D.D.C. 1991) (Exemption 7 (threshold): material provided to the FBI by a state law enforcement agency for assistance in that state agency's criminal investigation is "compiled for law enforcement purposes" under the FOIA) (Exemption 7(C): protects the names of state and local law enforcement personnel and the home telephone number of an FBI Special Agent in this case where plaintiff faces a possible death sentence) (Exemption 7(D): protects information provided to the FBI by state and local law enforcement agencies when plaintiff knows that these agencies provided information to the FBI) (Exemption 7(E): orders in camera inspection of the law enforcement technique that defendant seeks to withhold under this exemption, which it describes as a psychological evaluative and predictive strategy not specific to plaintiff).

Rojem v. Dep't of Justice, No. 90-3021 (D.D.C. Oct. 31, 1991) (Exemption 7(E): after in camera inspection, grants defendant's motion for summary judgment with respect to those documents that contain critical descriptions and chronologies of law enforcement tactics that are not known to the public) (Exemption 7(D): this same information was properly withheld under Exemption 7(D) because it was provided to the FBI by state and local law enforcement personnel as part of a confidential sharing of data).

Rosenfeld v. United States, Nos. C85-1709, C85-2247 (N.D. Cal. Sept. 23, 1991) (Exemption 7 (threshold): denies defendants' motion to reconsider the court's ruling that documents in the FBI's Free Speech Movement file generated on or after January 19, 1965 do not fall within this exemption and must be released unless they are found to fall within another exemption) (Exemption 7(C): applying Reporters Committee, denies defendants' motion for reconsideration as to the names and other identifying information ordered released in its July decision; the records in this case go to the very essence of what the government was up to during a turbulent, historic period of time, and the strong public interest in disclosure outweighs the privacy interests of those individuals) (Exemption 7(D): denies defendants' motion to reconsider its ruling under this exemption; in ruling on claims under Exemption 7(D), the court must consider the totality of circumstances in order to determine whether there was an explicit or implicit guarantee of confidentiality; promises of confidentiality are not "inherently implicit" when the FBI solicits information) (in light of the Supreme Court's order granting defendants a stay, the issue of defendants' contempt of the court's order of March 29, 1991, and subsequent orders, is moot).

Rosko v. IRS, No. 91-1337 (C.D. Cal. Sept. 17, 1991) (attorney fees: because defendant released the majority of the requested documents after the court's May 13, 1991 order, finds that the filing of this lawsuit was necessary; plaintiffs have substantially prevailed even though this case was dismissed pursuant to a voluntary dismissal; because the vast majority of documents were not exempt, it was unreasonable for defendant to withhold them for an extended period of time; the public benefit was served by bringing to light the fact that the IRS used the title "A Tax Shelter Litigation Project Entitled Scientology" for an organization that the IRS did not designate as a tax shelter).

St. Hilaire v. Dep't of Justice, No. 91-0078 (D.D.C. Sept. 10, 1991) (interaction of (a)(2) & (a)(3): ruling (on a point subsequently discredited as a matter of governmentwide policy) that by making the requested records available at the National Archives Building in Washington, D.C., the National Archives and Records Administration has satisfied its responsibilities under the FOIA, even though plaintiff maintains that he is unable to travel to Washington) (exhaustion: because the 20-day statutory time period elapsed by the time plaintiff filed this complaint, plaintiff has constructively exhausted his administrative remedies; because defendant has made no showing of exceptional circumstances, its request for an Open America stay of proceedings is denied).

Sanctuary Holdings, Ltd. v. Dep't of the Treasury, No. 90-0242 (D.D.C. Sept. 30, 1991) (Exemption 5: the deliberative process privilege protects documents concerning proposed tax regulations because they are antecedent to the actual issuance of the final regulations or their subsequent amendments and the documents reflect candid personal opinions and recommendations of their authors).

Searcy v. Soc. Sec. Admin., No. 91-C-0026 (D. Utah Sept. 19, 1991) (grants defendant's motion to dismiss this FOIA case without prejudice to plaintiff should defendant refuse to comply with a proper request for records under the FOIA).

Shell Oil Co. v. IRS, 772 F. Supp. 202 (D. Del. 1991) (Exemption 5: once a government official voluntarily discloses information, a determination of whether the deliberative process privilege has been waived will not turn solely on whether the official intended to limit the scope of the disclosure; waiver of the privilege does not depend on the receipt of a physical copy of the disclosed information; to the extent that a draft notice of proposed rulemaking defining "tar sands" was read verbatim by an IRS official at a meeting of federal government and oil industry representatives, the deliberative process privilege has been waived).

Sibille v. Fed. Reserve Bank, 770 F. Supp. 134 (S.D.N.Y. 1991) (agency records: handwritten notes of meetings and telephone conversations taken by 2 employees for their personal convenience in performing their agency duties are not agency records for purposes of the FOIA; the records served no agency function).

Spannaus v. Dep't of Justice, No. 90-0799 (D.D.C. July 12, 1991) (adequacy of search: while defendant agency's interpretation of plaintiff's request was narrow, it was not untenable; moreover, any prejudice plaintiff may have suffered from this narrow construction was remedied by defendant agency's supplemental searches, which were extensive and thorough) (Exemption 5: the attorney work-product privilege protects material prepared in connection with then-pending civil litigation).

Spirovski v. DEA, No. 90-1633 (D.D.C. July 24, 1991) ("no records" defense: an agency that has conducted a reasonable search and found no responsive documents cannot be found to be in violation of the FOIA) (Exemption 2: exemption protects case and file numbers from the Treasury Department's computer database and other administrative markings) (Exemption 6: protects information about the parole proceedings of plaintiff's co-defendant) (Exemption 7(A): protects all information about an ongoing investigation of a fugitive) (Exemption 7(C): protects the identities of plaintiff's co-defendants and accomplices, suspects, informants now publicly known, third parties, law enforcement agents, and nonundercover law enforcement personnel) (Exemption 7(D): protects the identities of confidential sources, including state and local law enforcement agencies and a report from a local law enforcement agency) (Exemption 7(E): DEA is entitled to withhold information that would disclose techniques and procedures for law enforcement investigations) (Exemption 7(F): protects names, telephone numbers, and addresses of DEA personnel and informants involved in a DEA investigation).

Starkey v. IRS, No. 91-4158 (C.D. Cal. Nov. 7, 1991) (Vaughn Index: although plaintiff's FOIA request is still pending after 21 months, orders defendant to produce within 120 days a Vaughn Index describing those documents that it claims are exempt from disclosure; following Wiener v. FBI, holds that rather than submit a categorical index, the IRS must provide an individualized description of each document as well as individualized reasons for withholding them in whole or in part).

Starkey v. IRS, No. C91-20040, 1991 WL 330895 (N.D. Cal. Dec. 6, 1991) (Exemption 3 [26 U.S.C. 6103(a), 6103(e)(7)]: the release of first- and third-party tax-return information would seriously impair federal tax administration) (Exemption 2: protects facsimile cover sheets and employee travel information) (Exemption 5: records that reflect advice and analyses, recommendations, and proposed courses of action may be withheld under the deliberative process, attorney-client, and attorney work-product privileges) (Exemption 7(A): the release of internal memoranda would reveal evidence and impair the government's ability to present its best case) (Exemption 7(C): protects the names, addresses, and other identifying data of lower-level federal employees).

Staton v. Sessions, No. 90-2961 (D.D.C. Sept. 12, 1991) (Exemption 7(C): redacting the initials of an FBI Special Agent from an internal memorandum "fully comports" with this exemption) (adequacy of search: defendant agency's affidavits demonstrate that a reasonable search was conducted) (in camera inspection: where agency's affidavits are adequate, in camera review of documents is inappropriate).

Summers v. Dep't of Justice, 776 F. Supp. 575 (D.D.C. 1991) (in spite of defendant agency's 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. 1746 is sufficient and agency must process that third party's records).

Thompson v. FBI, No. 90-3020 (D.D.C. July 8, 1991) (exceptional circumstances/due diligence: defendant agency, which has a large backlog of FOIA requests, is responding to plaintiff's request with the required "due diligence"; prisoner seeking information to launch a post-conviction attack is not entitled to expedited processing).

The Times Journal Co. v. Dep't of the Air Force, 793 F. Supp. 1 (D.D.C. 1991) (Exemption 5: the deliberative process privilege protects records related to defendant's Computer Assisted Telephone Interview surveys because this program is used by the Air Force to collect data on attitudes and opinions from department personnel to assist supervisors in formulating department policy; the disclosure of factual data in the form of aggregate survey results would deny confidentiality and impair the candid flow of opinions from Air Force personnel to policymakers and would expose the areas of inquiry deemed important by policymakers).

Tosado v. Klein, No. B90-0082 (D. Conn. Aug. 20, 1991) (jurisdiction: court lacks jurisdiction when no agency records have been improperly withheld).

United States v. Ky. Utilities Co., No. 81-52 (E.D. Ky. Oct. 28, 1991) (agency records: because documents that the Justice Department acquired from Kentucky Utilities as a result of discovery requests were not used or relied on, they were not relevant to the department's decisionmaking process, and thus they are not agency records for purposes of the FOIA).

Varelli v. FBI, No. 88-1865 (D.D.C. July 23, 1991) (defendant's motion for summary judgment is granted as to the information withheld under Exemptions 2, 5, 7(C), and 7(D) because plaintiff makes no objection; however, defendant must submit supplemental affidavits for the information it seeks to withhold under Exemptions 7(A) and 7(E)).

Varelli v. FBI, No. 88-1865 (D.D.C. Oct. 4, 1991) (Vaughn Index: defendant agency's coded Vaughn Index is sufficient to allow the court to make a de novo review of the FBI's classification decisions) (Exemption 1 [E.O. 12,365]: defendant agency properly withheld information concerning plaintiff, a former FBI intelligence source who had infiltrated the Committee in Solidarity with the People of El Salvador (CISPES), because it would identify foreign government information, intelligence activities, sources or methods, and foreign relations or foreign activities of the United States; the release of even mundane information such as file numbers, code names, and symbol source identifiers "would allow a hostile analyst to piece together information which could, in aggregate with other information" disclose intelligence activity) (Exemption 6: although the public has an interest in ensuring the integrity of FBI personnel, this interest does not justify the release of allegations of misconduct by various FBI personnel contained in the investigatory files of the FBI) (Exemption 7(E): exemption protects routine law enforcement techniques when they are used in conjunction with an uncommon technique to accomplish a unique investigative goal) (Exemption 7(F): protects the identities of individuals in El Salvador who knew of plaintiff's relationship with the FBI or CISPES).

Ward v. Dep't of Justice, No. 91-C-3789 (N.D. Ill. Oct. 18, 1991) (Exemption 7(A): in a bench ruling, finds that the exemption is inapplicable to corporate documents; government has 30 days to prepare a Vaughn Index of 200,000 pages of FBI records).

Williams v. FBI, No. 90-2299, 1991 WL 163757 (D.D.C. Aug. 6, 1991) (Exemption 7 (threshold): the FBI had a reasonable law enforcement purpose in launching an investigation of plaintiff who was a member and officer of an organization that the FBI considered to be a threat to the internal security of the nation) (discovery in FOIA litigation: an agency's rationale for initiating an investigation is not the proper subject of a FOIA discovery request) (adequacy of affidavit: the FBI's coded affidavits are not sufficient to enable the court to review the FBI's decision to withhold documents; the FBI may either submit a more detailed Vaughn Index or submit to the court those documents being withheld along with a memorandum detailing the basis for withholding).

Wilson v. CIA, No. 91-0087 (D.D.C. Nov. 5, 1991) (fee waiver (Reform Act): plaintiff's FOIA request does not meet the requirements necessary to qualify for a fee waiver, because plaintiff has made no showing that he has either the ability or the intent to disseminate the information; however, plaintiff may file a revised and perfected version of his FOIA request).

Wood v. IRS, No. 1:90-2614, 1991 U.S. Dist. LEXIS 19707 (N.D. Ga. July 26, 1991) (jurisdiction: court lacks jurisdiction because defendant agency has demonstrated that the documents plaintiff requested do not exist).

Worsham v. Cheney, No. 91-0557 (D.D.C. Oct. 2, 1991) (defendants are granted summary judgment because reasonable searches have uncovered no documents responsive to plaintiff's FOIA request).

York v. United States, No. 91-859 (D. Or. Dec. 4, 1991) (magistrate's recommendation) (exhaustion: plaintiff has not exhausted his administrative remedies under the FOIA because he has made no attempt to comply fully with agency procedures).   (posted 8/29/03)

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