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New FOIA Decisions, July-September 2004

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of July through September 2004. OIP encourages all agencies to make use of telefax transmission -- to (202) 514-1009 -- in forwarding recent FOIA decisions for timely compilation in FOIA Post.

Appeals Courts

Citizens for Pa.'s Future v. United States Dep't of the Interior, No. 03-4498 (3d Cir. July 30, 2004) (FOIA appeal is dismissed as moot; while the opinion does not expressly say so, this is due to the unilateral action of the Interior Department in releasing all the requested records).

City of Chicago v. United States Dep't of the Treasury, 384 F.3d 429 (7th Cir. 2004) (in this FOIA action where the requester sought full access to ATF's weapons-tracking databases, on remand from the Supreme Court the appeals court finds that the Consolidated Appropriations Resolutions of 2003 and 2004 preclude ATF's use of federal funds for the retrieval of information to the public, but do not "substantively change the FOIA" in such a way as to operate as the intended barrier to FOIA disclosure here; appropriation measures can repeal by implication only when the legislation is "clearly intended as a substitute" or when the two statutes are in "irreconcilable conflict"; ATF must provide plaintiff access to the databases through the novel use of a court-appointed special master paid for by plaintiff).

Doe v. Veneman, 380 F.3d 807 (5th Cir. 2004) (preliminary injunction: in this "reverse" FOIA action, reverses and remands portions of the district court's preliminary injunction as they are "overbroad" and, in one instance, the court exceeded its legal basis for review in a "reverse" FOIA case and acted without an actual controversy; the district court exceeded its jurisdiction when it enjoined the release of personal information from the management information system database, because under the terms of the settlement agreement the government had agreed to release only redacted county reports without personal identifying information; the injunction is overbroad because the Complaint does not challenge an agency decision to release the locations where restricted-use pesticides have been employed; the injunction covered all Livestock Protection Collar (LPC) records and not just the application forms that were at issue and it can reasonably be read to apply to requests that were not before the court; the injunction uses vague language and overbroad definitions) (Exemption 3 [7 U.S.C. 136-136y]: protect personal information from LPC application forms about individuals cooperating the program).

Holmes v. Georgia, 108 F. App'x 431 (8th Cir. 2004) (per curiam) (without specification, finds that the district court's dismissal of plaintiff's FOIA Complaint was proper).

Lopez v. United States Dep't of Justice, No. 03-5259, 2004 WL 1701047 (D.C. Cir. July 29, 2004) (per curiam) (defendant agency conducted a reasonable search in response to plaintiff's FOIA request; district court properly denied plaintiff's motions for discovery).

McDonnell Douglas Corp. v. United States Dep't of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004) ("Reverse" FOIA/Exemption 4: applying National Parks, affirms district court's ruling that the Air Force properly sought to release the Over and Above Work Contract Line-items, because McDonnell Douglas failed to show that disclosure was likely to cause it substantial competitive harm by enabling competitors to derive its Labor Pricing Factor; in 2-1 decision, reverses district court ruling that ordered the release of option year prices and Vendor Pricing Contract Line-items, because disclosure is likely to cause substantial competitive harm to McDonnell Douglas; release of the option year prices would enable competitors to underbid McDonnell Douglas in the event that the Air Force rebids the contract and that price is the only readily quantified criterion among the 6 criteria for awarding government contracts; the Air Force has not sufficiently demonstrated that the markets in which prime contractors purchase vendor goods and services are not "effectively competitive"; the court's decision to withhold pricing information "turns upon the particular facts" of this case and is not meant to be a per se rule; "the information now in suit reveals the inner workings of the contractor, not those of the Government, and would seem to shed little if any light upon the 'agency's performance of its statutory duties'") (dissenting judge finds that the court's opinion comes "perilously close to a per se rule" and that if such prices "are covered by the statutes at all, a bar on their disclosure should be the exception rather than the rule"; the opponent of disclosure (McDonnell Douglas), and not the Air Force, should have borne the burden of proving whether that substantial competitive harm was likely to result from disclosure).

McQueen v. United States, 100 F. App'x 964 (5th Cir. 2004) (per curiam) (district court properly denied plaintiff's request for a fee waiver regarding his FOIA request; if plaintiff is willing to pay the applicable fees, he may pursue his FOIA request).

Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 03-14823 (11th Cir. June 24, 2004) (per curiam) (Exemption 7(A): reverses and remands magistrate's ruling that had required disclosure of a computer database compiled by Amtrak and the Department of Justice to investigate anchor bolts used on rail track in the northeast corridor; magistrate judge abused her discretion by excluding defendant agency's entire declaration from the evidentiary record; agency is permitted to establish that disclosure of categories of information in the database, rather than individual pages, could reasonably be expected to interfere with law enforcement proceedings).

Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., 376 F.3d 1270 (11th Cir. 2004) (Exemption 5: reverses and remands district court's ruling and its disclosure order in this FOIA action where plaintiff sought voluminous audit documents relating to a government contract for a rail system in the northeast corridor; Amtrak need not cite to a specific policy decision in connection with which the audit papers and internal memoranda were prepared; the district court's interpretation of the deliberative process privilege was too narrow and restrictive because it focused "exclusively upon whether the final decision-maker viewed the requested material rather than viewing the entire auditing process as a whole"; viewing the entire body of collaborative work performed by all levels of auditors as a process by which Amtrak's auditing policies were formulated, finds that the material is both predecisional and deliberative).

Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 03-15535 (11th Cir. Sept. 3, 2004) (per curiam) (Exemption 5: reverses and remands district court's disclosure order in this FOIA action where plaintiff sought voluminous audit documents relating to a government contract for a rail system in the northeast corridor; the deliberative process privilege protects records relating to litigation before an arbitration panel where the defendant agency is being represented by outside counsel; the district court erred in construing the scope of the privilege too narrowly; on remand, the district court should not focus on the documents solely as they relate to the ultimate decisionmakers, but rather "should view the documents as they relate to the entire deliberative process in which the agency is engaged").

Oguaju v. United States, 378 F.3d 1115 (D.C. Cir. 2004) (Exemption 7(C): on remand from the Supreme Court for further consideration in light of NARA v. Favish, 124 S. Ct. 1570 (2004), finds that because plaintiff offered a "bare suspicion" rather than evidence that "would warrant a belief by a reasonable person" that the Justice Department mishandled his Brady request, plaintiff did not overcome "the presumption of legitimacy accorded to the Government's official conduct"; even if plaintiff "can offer firsthand sworn testimony" to support his allegations, the assertion that the government's informant committed perjury at plaintiff's trial "is too insubstantial to warrant reopening the record in this case").

Perlman v. United States Dep't of Justice, 380 F.3d 110 (2d Cir. 2004) (per curiam) (Exemption 7(C): acting on remand from the Supreme Court and giving the matter further consideration in light of NARA v. Favish, 124 S. Ct. 1570 (2004), reaffirms its prior opinion ordering the disclosure, and permitting the nondisclosure, of different portions of an Inspector General report on the handling of the Alien Entrepreneur program that examined alleged improprieties by a former senior official at INS; observing that in Favish the Supreme Court "imposed an additional burden on individuals making a FOIA claim" of overriding public interest based upon alleged government wrongdoing, but noting that plaintiff's request was not based on a "mere suspicion of governmental impropriety" and that rather he sought a particular report that in fact did substantiate his allegations; the privacy interests of witnesses and third parties outweigh the public interest in disclosure, but the public interest in disclosure substantially outweighs the senior official's privacy interests, with limited exceptions).

Russell v. Dep't of Justice, No. 04-5036, 2004 WL 1701044 (D.C. Cir. July 29, 2004) (per curiam) (the FBI conducted a reasonable search in response to plaintiff's FOIA request).

Terio v. United States, 104 F. App'x 174 (Fed. Cir. 2004) (jurisdiction: the Court of Federal Claims properly found that federal district courts, not the Court of Federal Claims, have jurisdiction over FOIA matters).

Thompson v. Caldera, 109 F. App'x 250 (10th Cir. 2004) (district court properly granted defendant agency's motion for summary judgment in this FOIA action; pro se plaintiff had a fair opportunity to oppose the motion, but failed to take advantage of his options).

United States v. Casas, 376 F.3d 20 (1st Cir. 2004) ("not an agency" defense: the judicial branch is exempt from the FOIA).

District Courts

Ali v. Przbyl, No. 04-CV-0459E, 2004 WL 1682774 (W.D.N.Y. July 26, 2004) ("not an agency" defense: the FOIA does not apply to state and local agencies or to the employees of state and local agencies).

Allen v. United States Secret Serv., 335 F. Supp. 2d 95 (D.D.C. 2004) (adequacy of search: defendant agency's affidavits demonstrate that it conducted a reasonable search for records from the early 1960s concerning self-described JFK paramour Judith Campbell Exner; the fact that plaintiff was able to "independently unearth" an additional record from a database of the National Archives and Records Administration does not render the Secret Service's search inadequate) (discovery in FOIA litigation: denies plaintiff's request for discovery on the search issue because defendant's affidavits were sufficiently detailed and submitted in good faith).

Am. Civil Liberties Union v. DOD, 339 F. Supp. 2d 501 (S.D.N.Y. 2004) (in this FOIA action where 11 months ago plaintiff sent several federal agencies a broad request for information about detainees, orders that by October 15 all defendant agencies must produce or identify all responsive documents and also provide plaintiff with a declaration justifying the nonproduction of records that plaintiff listed in his more recent subset specification).

Bloomberg, L.P. v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004) (personal records: SEC Chairman's appointment calendar and the calendar entries of his personal staff are not "agency records" under the FOIA; calendars were maintained for the individuals' convenience and were not distributed to any other agency personnel; the fact that the calendars were maintained on the agency's computer system does not mean that they were integrated into the agency's records; chairman's telephone logs are not "agency records" under the FOIA; logs were created for the convenience of the chairman, did not serve as an official record of his telephone calls, and only two of his most senior staff had access to them; telephone message slips are not "agency records," because they were intended for the chairman's personal use and were not circulated to anyone other than him and his assistant, who wrote them; the fact that a message slip contains some substantive information "does not by itself render it an agency record"; notes created by the chairman's chief of staff during an official meeting are not "agency records," because he created them for his own personal reference, they were not relied on by any other agency personnel, were not incorporated in agency files, and were not under the agency's "control") (Exemption 5: the deliberate process privilege protects other notes and the subsequent memorandum from a meeting at which officials of companies subject to the SEC's regulatory authority were encouraged to engage in a candid assessment of industry problems and discussions concerning self-regulation of securities analysts; these notes, while factual in form, reflect the impressions of SEC officials; "it would severely undermine the SEC's ability to address such issues if meeting participants did not feel at liberty to engage in an open discussion with the agency regarding self-regulatory responses and potential rules that might be adopted by the agency") (Exemption 8: protects notes from the meeting and the subsequent memorandum because the purpose of this exemption is "to safeguard the public appearance of financial institutions and to ensure that such institutions continue to cooperate with regulatory agencies without fear that their confidential information will be disclosed") (jurisdiction: court has jurisdiction over plaintiff's FOIA request for certain e-mail messages because the SEC's response to this request did not grant or deny it, but merely asked for an extension of time in which to respond; plaintiff was under no obligation to administratively appeal SEC's lack of a decision within the statutory time limits and, therefore, it has constructively exhausted its administrative remedies; within 90 days, the SEC must provide plaintiff with any responsive documents with appropriate explanations as to why information was withheld in whole or in part).

Bogan v. FBI, No. 04-C-532, 2004 WL 1946415 (W.D. Wis. Aug. 24, 2004) (allows plaintiff to proceed in forma pauperis, because it is impossible to determine whether the FBI has complied with his requests for records under the FOIA in a timely manner).

Bower v. FDA, No. 03-224, 2004 WL 2030277 (D. Me. Aug. 30, 2004) (in this FOIA action where plaintiff seeks voluminous records about the drug Luvox and where the government sought a stay until March 2007, grants the FDA an Open America stay until March 30, 2005, at which time it must produce a status report; the FDA is facing "enormous litigation demands" and it has been making reasonable progress with its FOIA backlog).

Carbe v. ATF, No. 03-1658, 2004 U.S. Dist. LEXIS 17339 (D.D.C. Aug. 12, 2004) (in camera inspection: in camera inspection is unnecessary because the Vaughn Index adequately describes the withheld information) (exhaustion: plaintiff failed to exhaust his administrative remedies with the United States Customs Service where the Service has no record of receipt of his FOIA request or administrative appeal) (mootness: plaintiff's FOIA requests to the IRS, the United States Postal Service, and the Justice Department's Executive Office for United States Attorneys and Bureau of Prisons are denied as moot because, after conducting reasonable searches, all nonexempt information was provided to plaintiff; the release of all nonexempt information in response to a FOIA request moots any charge that an agency failed to meet the FOIA deadlines) (Exemption 2 "high": disclosure of violator and informant codes and computer and/or teletype codes used to access confidential information could lead to impairment of investigations; "low": protects file numbers and administrative codes in criminal law databases, case summaries, reports of investigation, and reports of expenditure) (Exemptions 6 and 7(C): protect information that would identify law enforcement support employees, law enforcement agents, third-party witnesses, subjects of investigative interest, and third parties) (Exemption 7(C): protects prisoner numbers and information that would identify government employees or individuals involved or associated with plaintiff, ATF Special Agents, and federal and nonfederal law enforcement personnel contained in criminal investigatory records) (Exemption 7(D): protects the identities of confidential informants who were involved in cocaine trafficking and were given express or implied promises of confidentiality) (Exemption 7(E): protects electronic surveillance request forms and asset forfeiture reimbursement forms because disclosure of these documents would reveal the nature of the electronic equipment and the sequence of its uses in law enforcement investigations) (Exemption 7(F): protects information that would identify DEA Special Agents, Supervisory Agents, other law enforcement officers, and prison informants) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (duty to search: agencies conducted reasonable searches in response to plaintiff's FOIA requests).

Ctr. for Individual Rights v. United States Dep't of Justice, No. 03-1706 (D.D.C. June 29, 2004) (Exemption 5: in this FOIA action where requester seeks all settlement-negotiation communications exchanged between agency and municipal government during prior civil rights litigation, denies agency's motion to dismiss and orders it to respond to requester's motion for summary judgment by July 16, 2004; even though the court in the civil rights case approved withholding these records in civil discovery under the "joint defense privilege" from the requester who was an intervenor in that litigation, agency still must demonstrate that the records it shared are not only privileged, but also "inter-agency or intra-agency" communications under FOIA Exemption 5).

Ctr. for Individual Rights v. United States Dep't of Justice, No. 03-1706 (D.D.C. Sept. 21, 2004) (case or controversy: in this FOIA action where requester had sought and ultimately had received all documents held to have been protected by the common-interest privilege in a prior civil rights lawsuit, grants defendant agency's motion to dismiss; in response to plaintiff's amended Complaint finds that the court has jurisdiction to determine whether an agency has met its FOIA obligations, but when plaintiff's FOIA request has been fully answered the case is moot and there is no further jurisdiction to provide additional declaratory or injunctive relief; plaintiff "cannot articulate what documents it might seek in the future or in what way future requests would mirror the circumstances of its original request").

Dorn v. Comm'r, No. 2:03-cv-539, 2004 U.S. Dist. LEXIS 18962 (M.D. Fla. Aug. 25, 2004) (proper party defendant: the FOIA authorizes suit against only agencies, not individual employees of a federal agency).

Forest Guardians v. United States Dep't of Interior, No. 02-1003, 2004 WL 3426434 (D.N.M. Mar. 1, 2004) (exhaustion: because the defendant agency has an obligation to release all reasonably segregable, nonexempt information in response to plaintiff's FOIA request, plaintiff has exhausted its administrative remedies even though it narrowed the scope of its FOIA request in court; "there is no evidence in the record that the [agency] would reach a different conclusion if given the opportunity to decide a more narrow FOIA request"; plaintiff did not have to amend its Complaint formally when it limited the scope of its FOIA request) (Exemption 6: in this FOIA action where plaintiff, a public interest group, sought copies of lienholder agreements for grazing permits between private citizens and private corporations that are voluntarily filed with the defendant agency only, finds that the agency must comply with plaintiff's narrowed request and release the name of each financial institution and the amounts of the loans; the names of the financial institutions are a matter of public record and disclosure of the amount of each loan would not be a "clearly unwarranted invasion of personal privacy"; to minimize any potential risk that disclosure of the individual loan amounts would reveal the identity of the lienholder, the court orders each field office to make disclosures, and if a field office has only one lienholder, it may join with another field office; in the alternative, at the agency's discretion, it may compile aggregate loan totals for each field office) (fee waiver: agency properly denied this public interest group a fee waiver with respect to this information, some of which is already publicly available; while the limited, redacted documents are informative about the agency's activities in helping to facilitate the process of lending based on the collateralization of public grazing lands and are informative on the amount of government resources expended in maintaining those files, disclosure of this information will not contribute significantly to public understanding of government operations and activities).

Haddam v. FBI, No. 01-434 (D.D.C. Sept. 8, 2004) (in camera affidavit: in this FOIA action where plaintiff seeks information about himself, finds that his request involved "a set of circumstances necessitating" the FBI's use of an in camera affidavit; the FBI's coded affidavit thoroughly analyzes the withholding of a sample 327 documents selected from approximately responsive 2500 records that were identified as responsive and the FBI has created as full a public record as possible; citing Maydak, finds that defendant agency placed all exemptions on the public record that it may rely on after the pertinent law enforcement investigation is completed; nevertheless, approves of application of Exemption 3, without naming the statute, to 23 pages described in its in camera affidavit even though the FBI had not referenced Exemption 3 in its public filings) (adequacy of search: the FBI's public declarations and in camera submissions demonstrate that it conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 1 [E.O. 12,958]: defendant's in camera submissions demonstrate that the disclosure of intelligence activities, sources, or methods, foreign relations or activities, and foreign government information could reasonably be expected to cause serious damage to national security) (Exemption 7(A): defendant's in camera submissions, which used a generic approach, demonstrate that the release of each sample document could reasonably be expected to interfere with an ongoing law enforcement investigation) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Haji v. ATF, No. 03 Civ. 8479, 2004 U.S. Dist. LEXIS 15583 (S.D.N.Y. Aug. 10, 2004) (in this FOIA action where plaintiff seeks records about a confidential informant, the court lacks jurisdiction and the case is dismissed as moot because even if the requested files ever existed, they were destroyed in the attacks of September 11, 2001).

Holmes v. Georgia, No. 4:03CV944 (E.D. Mo. Jan. 30, 2004) (without specification, dismisses plaintiff's Complaint).

Homick v. United States Dep't of Justice, No. C 98-00557 (N.D. Cal. Sept. 16, 2004) (waiver: orders disclosure of some unspecified group of documents due to the FBI's failure to process them) (Exemption 1 [E.O. 12,958]: in this FOIA action where plaintiff, a death row inmate, had been convicted of 5 homicides, finds that the disclosure of portions of a 2-page airtel that identify by name a specific foreign information service that has provided sensitive information to the FBI and an entire 1-page document that contains foreign government information could compromise future cooperation with those foreign governments) (Exemption 2 "high": protects confidential source numbers for 2 individuals even though those numbers already have been released, because there is no authority for waiver under Exemption 2; FBI must disclosure polygraph information because the serial number of the machine already has been released, the type of test given to plaintiff may have been unique, and the FBI has not shown whether the type of machine, test, and number of charts used 20 years ago are the same as or similar to those used today; FBI has not shown that an undercover automobile used in 1982 is the same as or similar to the type being used today and this information must be disclosed) (Exemption 3 [Rule 6(e)]: protects information that would identify witnesses before the grand jury; protects 5 specific documents that were properly described; the FBI must release all other records because it has failed to show that the "type" of information subpoenaed by the grand jury investigation is exempt from disclosure); [18 U.S.C. 2510-20]: protects information relating to the interception of communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968) (Exemption 5: the attorney work-product privilege protects one document that contains legal analysis and recommendations; the exemption does not protect and the FBI must release a document exchanged between an agency employee and a third party's attorney, who was not an employee of a federal agency, because it does not meet the inter- or intra-agency requirement) (Exemption 6: applying NARA v. Favish, 124 S. Ct. 1570 (2004), finds that the exemption does not protect and the FBI must release derogatory information about one individual and personal information about another; the individuals' privacy interests are outweighed by the public interest in disclosure due to the fact that in the course of 3 prosecutions of plaintiff, 2 of them for capital crimes, the government failed to disclose exculpatory and impeachment information) (Exemption 7(C): applying Favish, Reporters Committee, and Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991), finds that the identities of third parties, subjects of investigative interest, and commercial employees are protected from disclosure; the FBI must disclosure information that would identity FBI Special Agents and support personnel, other federal employees, local state, and county law enforcement personnel, state government employees, foreign police, and interviewees; declines to order agency to reproduce an audiotape to distinguish agency's redactions from the original periods of silences) (Exemption 7(D): protects the identities of and information provided by individuals given an express promise of confidentiality by the FBI; exemption does not protect and the FBI must release the information provided by sources with symbol numbers because the FBI has not demonstrated that they were given express promises of confidentiality; exemption does not protect and the FBI must release the identities of or information provided by individuals, commercial institutions, 6 local law enforcement agencies, and foreign police because the FBI failed to demonstrate that they were given implied promises of confidentiality) (Exemption 7(E): protects FBI investigative technique rating information; the FBI has not demonstrated that exemption protects polygraph information for the same reasons discussed above; exemption does not protect and the FBI must release the details of nationwide undercover operations) (Exemption 7(F): plaintiff's violent nature notwithstanding, finds that the FBI has not justified the withholding of, and it must release, information that would identify FBI informants; all reprocessing and disclosures must be completed by October 15) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Lawrence v. United States, No. 8:03-660, 2004 U.S. Dist. LEXIS 15445 (M.D. Fla. July 8, 2004) (the IRS, and not the United States, is the proper party defendant to this FOIA action; grants partial summary judgment to the IRS because it has conducted a reasonable search and has released all responsive records, except for one handbook that is still under review).

Lopez v. United States Dep't of Justice, No. 00-3080 (D.D.C. Aug. 22, 2003) (on in camera inspection finds that a 3-page memorandum was properly withheld under FOIA Exemptions 5, 7(C), and 7(D); all reasonably segregable, nonexempt information has been released).

McMillian v. United States Parole Comm'n, No. 03-1500 (D.D.C. Aug. 11, 2004) (FOIA claim is dismissed because plaintiff failed to exhaust his administrative remedies by submitting an appeal of the initial denial to the agency's disclosure office).

Megibow v. Clerk of the United States Tax Court, No. 04 Civ. 3321, 2004 U.S. Dist. LEXIS 17698 (S.D.N.Y. Aug. 31, 2004) (agency: while denying the government's jurisdictional arguments, dismisses plaintiff's Complaint on the basis that the Tax Court is not an agency for purposes of the FOIA).

Meyer v. VA, No. 02-5343 (D.N.J. Oct. 20, 2003) (mootness: plaintiff's FOIA request is moot because the documents she requested have been provided to her, albeit belatedly) (duty to search: defendant agency has conducted a reasonable search in response to plaintiff's requests for records about herself; agency's supplemental release of documents indicates that any errors that affected the original search were remedied and shows the agency's good faith in complying with plaintiff's requests).

Mokhiber v. United States Dep't of the Treasury, No. 01-1974 (D.D.C. Sept. 26, 2003) (adequacy of agency affidavit: in this FOIA action where plaintiff seeks Office of Foreign Asset Control's (OFAC) records relating to enforcement actions that were settled, denies plaintiff's motion to strike the affidavit of OFAC's director; the director's declaration was based on his personal knowledge or information he acquired through his official duties) (Exemption 5: the deliberative process privilege protects the reasoning behind each OFAC settlement negotiation; because the director's initials on a settlement agreement indicate only that he approved the settlement amount, not that he agreed also with the reasoning behind the recommendation, each rationale is predecisional and is not expressly adopted or incorporated into a final decision of the agency; by October 30, defendant must produce a more detailed Vaughn Index addressing with specificity whether factual information about the particular amount of money offered and factual information in other redacted portions of the records can reasonably be segregated from deliberative material) (Exemption 2 "high": correspondence control numbers are "predominantly" internal and disclosure could enable members of the public to circumvent OFAC regulations; "low": protects correspondence control numbers because they are trivial administrative matters of no public interest) (Exemption 7(C): protects the names of officials and others who worked for the corporate entities that allegedly violated OFAC regulations, with whom the agency was in contact about alleged violations and with whom it conducted proposed settlement negotiations; corporate functionaries have "at least a minor privacy interest" in their names being kept private that "more than outweighs the negligible public interest in disclosure").

Mokhiber v. United States Dep't of the Treasury, 335 F. Supp. 2d 65 (D.D.C. 2004) (Exemption 5: defendant "freely admits" that it withheld under the deliberative process privilege the entire mitigating and aggravating factors sections of records relating to OFAC enforcement actions that were settled; the fact that the amount of factual information in these sections is minimal does not relieve the agency of its obligation to attempt to parse out and disclose it; defendant must release each amount that a third party offered OFAC in a settlement negotiation, because it is factual and reasonably segregable; a redacted version of each document must be filed by October 8).

N.Y. Times Co. v. United States Dep't of Labor, 340 F. Supp. 2d 394 (S.D.N.Y. 2004) (exhaustion: in this FOIA action where the Labor Department responded to plaintiff's FOIA request not by explicitly granting or denying it, but rather by informing plaintiff that in order to respond to its request the agency would have to notify 13,000 businesses, finds that plaintiff has exhausted its administrative remedies; after submitting an initial FOIA request to the defendant agency and filing an administrative appeal and not receiving any documents, plaintiff had no other entity, other than the court, from which to seek relief) (Exemption 4: agency must release Lost Work Day Illness and Injury rates for the year 2000 for 13,000 workplaces with exceptionally high rates because it is not confidential commercial information; these rates cannot be "reverse-engineered" to calculate the total number of hours worked by all employees; there is no reason to believe that posting 4-year-old information would cause competitive harm, especially because contemporaneous information concerning the total number of employee hours worked is now available at work sites).

Peltier v. FBI, No. 02-4328 (D. Minn. Aug. 15, 2003) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until December 31, 2003 to process its Chicago field office documents responsive to plaintiff's FOIA request and a stay until December 31, 2005 for its Minneapolis field office documents; the volume of the FBI's FOIA workload is greater than that anticipated by Congress, and the FBI's resources are strained due to the recent reallocation of it resources towards counterterrorism; the FBI is exercising due diligence in processing its FOIA requests and has made reasonable progress in reducing its backlog of requests) (expedited processing: plaintiff has not submitted an appropriate request for expedited processing for the records at issue here; his request for expedited processing made with respect to another FOIA request in 2000 does not pertain to this request).

Physicians Comm. for Responsible Med. v. NIH, No. 01-2666 (D.D.C. Feb. 4, 2004) (Vaughn Index: in this FOIA action where plaintiff seeks a grant application submitted to the National Institute of Drug Abuse, finds that defendant agency's Vaughn Index is "patently inadequate" to support its withholdings under Exemptions 4 and 5, most notably because it fails to specify adequately the exemptions relied on to protect the information; defendant must provide a further affidavit by February 17).

Physicians Comm. for Responsible Med. v. NIH, No. 01-2666 (D.D.C. Apr. 14, 2004) (orders in camera inspection of the grant application at issue because after reading the renewed Vaughn Index and the parties' motions, the court is unable to make a determination on the claimed exemptions).

Physicians Comm. for Responsible Med. v. NIH, 326 F. Supp. 2d 19 (D.D.C. 2004) (Exemption 4: noncommercial scientist's research design is not a "trade secret" for purposes of the FOIA; defendant has not offered any authority that supports its position that this research has the potential for pharmaceutical development; defendant has not shown that disclosure could result in substantial competitive harm to the research scientist) (Exemption 5: grant application does not meet the "inter- or intra-agency requirement" because the research scientist was not acting on behalf of the government when he received the grant and conducted his research; the scientist's "research design can properly be viewed as a commercially valuable plan used in the processing of a trade commodity" and thus "cannot be considered an integral part of the agency's deliberative process").

Piper v. United States Dep't of Justice, 339 F. Supp. 2d 13 (D.D.C. 2004) (attorney fees: in this FOIA action where plaintiff sought information about the kidnapping of his mother, court applies Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and awards plaintiff attorney fees; plaintiff may be considered the "prevailing party" in that the court's reduction of the FBI's request for an Open America stay from 4 years to 2 years constitutes judicial relief on the merits of plaintiff's claim in that the plaintiff obtained a change in the FBI's conduct "in real world terms"; even though the FBI released approximately 80,000 records in response to plaintiff's FOIA request, it released an additional 25 documents pursuant to a "judicially sanctioned change in the legal relationship of the parties"; the release of 2 of the documents added to the public interest by providing information of possible FBI misconduct relating to evidence tampering in a criminal trial; while plaintiff, a published author, has a personal interest in writing a book about his mother's kidnapping, this "scholarly endeavor" will further contribute to the public fund of knowledge; the FBI's withholdings were unreasonable with respect to 25 documents ordered released by the court; reduces the amount of attorney fees requested by 50% to reflect time spent on unsuccessful motions and to take into account plaintiff's manifest private interest in these documents; awards plaintiff $72,157.25 in attorney fees and $1995.37 in costs).

Robert v. Dep't of Justice, No. 04-CV-1961 (E.D.N.Y. June 22, 2004) (court sua sponte dismisses this action because plaintiff's Complaint is "redundant, immaterial or impertinent" and includes personal attacks on people unrelated to plaintiff's actual FOIA claims).

Russell v. FBI, No. 03-0611 (D.D.C. Jan. 9, 2004) (duty to search: defendant agency has conducted a reasonable search in response to plaintiff's FOIA request for records about himself) (Exemption 2 "high": disclosure of plaintiff's informant source-symbol number, his informant file number, the funds used for undercover operations, and FBI personnel telephone numbers "would undermine the integrity of the FBI's informant program") (Exemption 7(C): protects information that would identify FBI Special Agents, support personnel, and third parties).

Shacket v. United States, 339 F. Supp. 2d 1092 (S.D. Cal. 2004) (Exemption 5: the attorney work-product privilege protects an IRS Special Agent's report, including factual material and the attached exhibits, that led to the decision to prosecute plaintiff; applying an out-of-date higher standard, nevertheless finds that any factual material in the report and the exhibits were selected by the author to support her conclusion that plaintiff should be prosecuted; finding it "irrelevant" that the IRS Special Agent was not an attorney (or someone working under the direction of an attorney) on the basis that the privilege protects memoranda prepared by "an attorney or other representative of a party concerning the litigation").

Tangerine Rd. Assocs. v. United States Fish & Wildlife Serv., No. 02-614 (D. Ariz. Aug. 14, 2003) (defendant agency's letter that merely stated that it was unable to respond to plaintiff's FOIA request within the statutorily mandated time period was not a denial that could be administratively appealed, therefore the court has jurisdiction; plaintiff is entitled to a Vaughn Index because the information it requested has not been provided).

Tangerine Rd. Assocs. v. United States Fish & Wildlife Serv., No. 02-614 (D. Ariz. May 5, 2004) (Exemption 6: agency has not demonstrated that the disclosure of survey forms showing the locations and numbers of pygmy owls on a Native American reservation would reveal information protected by religious privacy).

Tax Analysts v. IRS, No. 98-2345 (D.D.C. Feb. 25, 2004) (Exemption 3 [26 U.S.C. 6103, 6104]: on remand and on in camera inspection, finds that the closing agreement reached between the Christian Broadcasting Network (CBN) and the IRS was not submitted with or in support of CBN's application for tax exempt status; therefore, the closing agreement is "return information" protected by 6103 and is not subject to disclosure under 6104).

Tax Analysts v. IRS, No. 98-2345 (D.D.C. Aug. 19, 2004) (on motion to amend judgment, rules that all remaining claims as to the documents described in the Vaughn Index are dismissed).

Tri-Valley CAREs v. DOE, No. C 03-3926, 2004 WL 2043034 (N.D. Cal. Sept. 10, 2004) (adequacy of search: defendant agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request; the large number of months it took to complete the search was not due to bad faith on the part of defendant, but rather was a reflection of the amount of time needed to collect and get approval for potentially sensitive records from multiple site).

Twist v. Ashcroft, 329 F. Supp. 2d 50 (D.D.C. 2004) (adopts magistrate's recommendation and finds that defendant's Vaughn Index is sufficient to allow the court to grant its motion for summary judgment).

Wickwire Gavin, P.C. v. Def. Intelligence Agency, 330 F. Supp. 2d 592 (E.D. Va. 2004) (duty to search: in a FOIA action, the official who coordinated the search has sufficient knowledge to prepare the affidavit, but here the affidavit fails to describe the search in sufficient detail and does not show that a reasonable search has been conducted) (Exemption 1 [E.O. 12,958]: defendant agency has not provided the court with sufficient information from which it can conclude that an official with original classification authority has determined that these documents are "Secret") (Exemption 3 [10 U.S.C. 424]: protects the names of all employees of the Defense Intelligence Agency).

Wolf v. CIA, 357 F. Supp. 2d 112 (D.D.C. 2004) (Exemptions 1 [E.O. 12,958] and 3 [50 U.S.C. 403-3(c)(7)]: the CIA properly refused to confirm or deny the existence of records on Jorge Elicier Gaitan, a Colombian presidential candidate who was assassinated in 1948, because disclosure could reveal confidential human intelligence sources, methods, and information harmful to foreign relations; there is no need to address the issue of segregability because the very existence of the records themselves is a classified fact) (waiver: exemption was not waived by Admiral Hillenkotter in his testimony before a congressional committee on April 15, 1948, because he merely read a prepared statement and did not officially acknowledge that the agency possessed records pertaining to Gaitan) (duty to search: FBI failed to search a file named "Political Situation in Colombia -- Foreign Political Matter"; the FBI must enlarge the scope of its search to include all record systems that are likely to contain responsive records).

Woodruff v. Office of the Pub. Defender, No. C 03-791 (N.D. Cal. June 3, 2004) (agency: neither the Office of the Public Defender, the Office of the Clerk, individual judicial and executive branch government employees, nor a private attorney is an "agency" for purposes of the FOIA) (exhaustion: plaintiff failed to exhaust his administrative remedies by appealing the defendant agency's finding that it had no records responsive to his FOIA request) ("no records" defense: agency's affidavit demonstrates that it conducted a reasonable search and was unable to find any records responsive to plaintiff's FOIA request).  (posted 10/4/04)

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