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FOIA Post (2007): Summaries of New Decisions -- April 2007


Summaries of New Decisions -- April 2007

As part of OIP's feature to provide up-to-date information on new court decisions, we have included below summaries of the court decisions that were decided in April 2007. OIP will continue to post monthly summaries until we are current. Thereafter, summaries of new court decisions will be posted regularly.


Appellate Courts

1. Smith v. DOJ, 223 Fed.Appx. 528 (8th Cir. Mar. 28, 2007)

• Venue: The case was remanded to the district court to consider whether transfer is appropriate where plaintiff had now provided a permanent address, thereby allowing the district court to determine the appropriate venue.

District Courts

1. Davis v. Astrue, No. 06-6108, 2007 U.S. Dist. LEXIS 24707 (N.D. Cal. Apr. 3, 2007)

Re: Challenge to denial of disability benefits

• Exhaustion: Plaintiff failed to make any showing of compliance with agency's administrative appeal procedures, therefore the court lacks subject matter jurisdiction over plaintiff's FOIA claim.

2. Clemmons v. DOJ, No. 06-00305, 2007 U.S. Dist. LEXIS 24207 (D.D.C. Mar. 30, 2007)

Re: Plaintiff's background check

• Exhaustion: Plaintiff's FOIA claim is dismissed because of his failure to file an administrative appeal of the agency's initial response.

3. Clemmons v. U.S. Army Crime Records Ctr., No. 05-2353, 2007 U.S. Dist. LEXIS 23919 (D.D.C. Mar. 30, 2007)

Re: Criminal investigation of plaintiff for possible fraudulent misrepresentations regarding furniture repair estimate

• Exemption 2: Agency properly withheld "identifying codes"; there is no public interest in these codes, and their release might allow unauthorized access to agency databases, thereby impeding investigations.

• Exemptions 6/7(C): Pursuant to these exemptions, the agency properly withheld the names of law enforcement officers, military police, other government personnel, and third party witnesses. Plaintiff offered no public interest rationale to overcome these individuals' strong privacy interests.

4. Clemmons v. Dep't of the Army, No. 06-00510, 2007 U.S. Dist. LEXIS 23921 (D.D.C. Mar. 30, 2007)

Re: First-party request

• Jurisdiction: Because plaintiff's FOIA claims are identical to those dismissed in earlier litigation, the court grants the agency's motion to dismiss in part and for summary judgment in part.

5. Cooper v. U.S. Dep't of the Navy, No. 05-2252, 2007 U.S. Dist. LEXIS 23918 (D.D.C. Mar. 30, 2007)

Re: Power Point slides presented by Harvard professor at small, invitation-only conference

• Exemption 4: Information contained in a power point presentation to the agency is commercially significant to the presenter, plaintiff's claim that the information is merely "scientific" notwithstanding. In particular, information reflected in the slides links submitter's patentable invention to a specific date which is crucial to a patent interference proceeding. Furthermore, plaintiff did not counter the agency's assertion that the information was submitted voluntarily. Thus, the court applied the Critical Mass test and determined that the information was not of a type that the presenter would customarily release to the public. The presenter sought and received assurances from the agency that his material would remain confidential, and the agency took steps to enforce this confidentiality during the conference.

6. McBride v. U.S. Dep't of the Army, No. 06-4082, 2007 U.S. Dist. LEXIS 23524 (E.D. La. Mar. 30, 2007)

Re: Records pertaining to Katrina flood control issues

• Mootness: Plaintiff's "failure" lawsuit has been mooted by the agency's subsequent response to plaintiff's request.

• Attorney's Fees: Plaintiff is ineligible for attorney's fees. Even though the agency released records to him after the filing of his suit, this was not done pursuant to an order of the court, as required by Buckhannon. Thus, plaintiff does not meet the definition of a "prevailing party."

7. Kidder v. FBI, No. 05-1094, 2007 U.S. Dist. LEXIS 22885 (D.D.C. Mar. 29, 2007)

Re: Records concerning a Virginia resident detained in Saudi Arabia

• Proper party: The Department of Justice, and not the FBI, is the proper party defendant.

• Adequacy of Search: An agency is under no obligation to search for records under a subject's aliases when these aliases are not referenced in the original request. Plaintiff's mere speculation that more records might be found if the agency conducted further manual searches is not enough to overcome the agency's showing that its search was reasonable and conducted in good faith. The FBI was under no obligation to search for records in its field offices when plaintiff had only made a request to FBI headquarters.

• Exemption 7: Agency records compiled in a terrorism investigation of the subject of the request are law enforcement records, notwithstanding plaintiff's claim that records compiled for "intelligence gathering" purposes are not law enforcement records.

• Exemption 7(A): The agency's investigation of the subject remains ongoing. Despite the fact that the subject was convicted and sentenced, his pending appeal qualifies as a pending law enforcement proceeding. Moreover, related investigations that might involve the subject remain open. The agency properly invoked this exemption to protect confidential witness statements where it could show that release of such material would disrupt the ongoing investigation. Defendant has also shown that release of information obtained from other law enforcement agencies cooperating with the FBI would harm the investigation. The FBI properly withheld information concerning "documentary and physical evidence," because release might lead to identification of the sources of this information, which would harm the investigation. Administrative materials which contain information of investigative interest may also be withheld, as release would reveal information about FBI investigations and investigative techniques.

• Public Domain: The agency does not have to release documents claimed to be already in the public domain where the plaintiff has been unable to make any showing that the documents are identical to previously released documents, or that any exhibits were used in open court.

• Segregability: Plaintiff's unsupported assertion of bad faith by defendant on this issue is not enough to overcome the presumption of good faith by the agency.

8. ICM Registry, LLC v. Dep't of Commerce, No. 06-0949, 2007 U.S. Dist. LEXIS 22853 (D.D.C. Mar. 29, 2007)

Re: Government's role in consideration of plaintiff's proposal to create .xxx domain on the Internet

• Exhaustion: The court refused to dismiss one of plaintiff's claims for failure to exhaust where plaintiff had filed its administrative appeal 42 minutes after the close of business on the day the appeal was due. The agency was well over its own deadlines for ruling on a similar, prior appeal, and the late appeal raised issues identical to the prior appeal also at issue in the litigation, thus the agency had the opportunity to consider the issues raised by the late appeal.

• Exemption 4: A telecommunications consultant has a commercial interest in a memorandum submitted to an agency which reflects her professional expertise. However, the agency has not provided sufficient information for the court to determine whether the submission was voluntary, whether the withheld information is customarily released, and what harm would ensue from release. The agency has also provided insufficient information for similar determinations on other documents, and must submit additional information to the court.

• Exemption 5: Summary judgment cannot be granted with respect to documents withheld where the agency failed to demonstrate that the withheld information was deliberative, and/or to which agency decisionmaking process the information was connected. The fact that documents reflect the opinions of their authors, by itself, is not enough to justify withholding. The agency must provide further information to the court. With regard to drafts of an invitation to a briefing, the agency must indicate how these materials make recommendations or express opinions on policy matters.

9. Stolt-Nielsen Transp. Group, Ltd. v. United States, 480 F. Supp. 2d 166 (D.D.C. 2007)

Re: Conditional leniency granted to company engaged in criminal antitrust conspiracy

• Adequacy of Search: The agency declaration demonstrated that the agency's search was adequate and reasonably geared to locating the responsive records.

• Exemption 2: The agency appropriately withheld certain internal, trivial documents which reflect no genuine public interest. The agency also appropriately withheld leniency agreements. These agreements, if released, would break the confidentiality which is essential to the agency's amnesty program. Additionally, the agency appropriately withheld communications whose release would interfere with ongoing or prospective enforcement proceedings.

• Exemption 3: The agency properly invoked this exemption to protect grand jury materials, including a request for grand jury authority, indictment recommendations, witness identities, subjects of the grand jury investigations, grand jury testimony, and exhibits.

• Exemption 5: The agency appropriately withheld under the attorney-work product and deliberative process privileges materials prepared in anticipation of litigation, draft documents, and proposed direct and cross examinations.

• Exemption 6: Defendant's use of this exemption to withhold phone numbers and e-mail addresses was proper.

• Exemption 7(A): Defendant acted properly in withholding amnesty agreements not previously released or involving plaintiff as well as materials relating to consultations with foreign antitrust officials. Release of these agreements would have a chilling effect on the amnesty program.

• Exemption 7(C): Defendant appropriately withheld the names of individuals mentioned in amnesty agreements.

• Exemption 7(D): Defendant has met the test for implied assurance of confidentiality with regard to the source status of a former employee of plaintiff who is currently suing plaintiff in a separate action. Plaintiff has been unable to show that release of some information concerning amnesty agreements rises to the level of a source showing complete disregard for confidentiality, or that it is publicly known that any particular informant provided information to authorities.

10. Anderson v. DOJ, No. 05-2248, 2007 WL 952038 (E.D.N.Y. Mar. 28, 2007) (adopting magistrate's recommendation)

Re: First-party request

• Adequacy of Search: Defendant's declaration, which documented when and how searches were undertaken was sufficient to establish that defendant's search was adequate. Plaintiff's claim that additional search terms should have been used lacked merit inasmuch as the agency explained that such terms would not retrieve information from the computer system.

11. Snyder v. DOD, No. 03-4992, 2007 WL 951293 (N.D. Cal. Mar. 27, 2007)

• Misc: The court adopts a special master's findings that the agency failed to turn over an "uncorrupted" copy of a computer file requested by plaintiff. Defendant's argument that compliance would require "unjustifiable time and cost" is unavailing; defendant may assess costs after providing the responsive records. Defendant is ordered to transmit an uncorrupted copy of the file to the court; costs for the special master's second report are assessed to the agency.

12. Tax Analysts v. IRS, 483 F. Supp. 2d 8 (D.D.C. 2007)

Re: Tax Assistance Memoranda

• Exemption 5: Pursuant to the deliberative process privilege, defendant properly withheld documents regarding proposed tax forms, possible administrative or legislative changes, and proposed amendments to the Internal Revenue Code, as well as documents discussing the merits of a policy, and documents reflecting debate between the Office of Chief Counsel and the IRS that do not reflect the final position of the Office of Chief Counsel. However, defendant must release Tax Assistance Memoranda relating to specific taxpayer situations that interpret internal revenue laws and which are "legal interpretations" of the Internal Revenue Code regarding specific issues, or which provide legal conclusions regarding tax laws.


District Courts

1. NYC Apparel FZE v. U.S. Customs & Border Prot., 484 F. Supp. 2d 77 (D.D.C. 2007)

Re: Request for records related to seizure of plaintiff's property

• Adequacy of Search: The agency's affidavits were sufficient to explain that defendant had searched the databases that would be likely to contain records related to the subject of plaintiff's request (an administrative seizure of property). The fact that there may be additional responsive records is not relevant to the question of whether the agency's search was adequate.

• Waiver: Plaintiff has failed to identify specific information withheld by defendant that has previously been released to the public, thereby failing to meet its burden of proof on this issue. Prior disclosure of similar information is not sufficient for a waiver claim.

• Exemption 2: Defendant's Vaughn Index is sufficiently detailed to enable the Court to determine how this exemption was applied, including in what instances defendant withheld "low" 2 and "high" 2 information, respectively. The agency properly invoked "low" 2 to withhold internal codes and file numbers, as well as internal operation information and documents reflecting internal agency procedures. Pursuant to "high" 2, the agency appropriately withheld internal operational information related to an ongoing criminal investigation. Release of this information would benefit those attempting to evade detection by the agency of their illegal activities.

• Exemption 4: An IRS number that was involuntarily submitted by a company was appropriately withheld, as disclosure could put it at risk of fraud, which had previously happened from unauthorized use of this information. Voluntarily submitted information, including an IRS number and information relating to the company's business dealings and its shipments, constitutes information that would not normally be provided to the public at large.

• Exemption 5: Defendant properly invoked the deliberative process privilege to withhold a memorandum discussing the possibility of the agency's seizure of plaintiff's property, as the memorandum was predecisional and deliberative. Further, because the factual portions of the memorandum were inextricably intertwined with the opinions and legal conclusions expressed in the document, these portions were also appropriately withheld.

• Segregability: Defendant's Vaughn Index was sufficiently detailed so as to demonstrate that where the agency withheld entire documents, the nonexempt portions were "inextricably intertwined" with the exempt portions.

2. Bigwood v. USAID, 484 F. Supp. 2d 68 (D.D.C. 2007)

Re: Request for records concerning agency funding of projects in Venezuela, and agency's evaluation of the situation in Venezuela from 1998-2004

• Exhaustion: While plaintiff made several requests to the agency, his administrative appeal specifically referenced only one of these requests. Thus, with regard to plaintiff's other requests, he has failed to exhaust his administrative remedies.

• Exemption 6: Defendant appropriately withheld the names of non-governmental organizations ("NGO"s) receiving USAID grants. These organizations are sufficiently small that identifying them is tantamount to identifying the individuals who work for them. These individuals might very well be subject to intimidation and harassment in retaliation for their work with USAID. Thus, these individuals have a privacy interest in "avoiding physical danger" which outweighs the public's interest in identifying the NGOs which receive USAID grants.


District Courts

1. Geschke v. SSA, No. 06-1256, 2007 WL 1140281 (W.D. Wash. Apr. 17, 2007)

Re: First-party request and request for information on third parties responsible for gathering material for plaintiff's file.

• Exhaustion/Jurisdiction: Plaintiff failed to exhaust her administrative remedies as to her first FOIA request by virtue of her failure to file an administrative appeal of the agency's initial response. The court also lacks subject matter jurisdiction over plaintiff's complaint as to her second and third requests because her complaint was filed two days after her second request was deemed received by the agency and prior to the official receipt of her third request. Thus, as of the time of the filing of her complaint, the court lacked jurisdiction. Plaintiff cannot now cure this defect by amending her complaint, notwithstanding the fact that the agency has now made a final decision on the latter two requests.

2. LeRoy v. United States, No. 07-1081, 2007 WL 1139652 (E.D. La. Apr. 16, 2007) (adoption of magistrate's report)

Re: Request for copy of contract between Department of Labor and Private Contractor

• Fee Waiver: Plaintiff requested a waiver of fees for his request, claiming that release would be in the public interest. However, his request was clearly related to a damages claim plaintiff has against the agency, meaning that he has a clear commercial interest in release of the documents. Therefore, his fee waiver claim is frivolous and his complaint should be dismissed. Furthermore, plaintiff's failure to file any objections to the magistrate's report within 10 days of being served with it bar him from attacking the report's factual findings or legal conclusions.

3. West v. City of Norfolk, No. 07-9, 2007 WL 1125618 (E.D. Va. Apr. 16, 2007)

Re: Request for records concerning the death of plaintiff's son

• Procedural: The federal FOIA does not apply to records maintained by a municipal police force.

4. Georgia-Pacific Corp. v. IRS, 2007-1 U.S. Tax Cas. (CCH) 9150,435 (D.D.C. 2007)

Re: Request for records related to modification/promulgation of Department of Treasury regulation

• Adequacy of Search: The agency sufficiently explained its decision to structure its search in the way that it did. While plaintiff's claim that additional documents exist is not "purely speculative," neither is it enough to overcome the defendant's assertions concerning the adequacy of its search, even where the absence of additional records may suggest that the agency failed to meet its records preservation requirements under the Federal Records Act. The agency's search was "reasonably calculated to uncover all relevant documents," and therefore was adequate.

• In Camera Review: Because the agency's declarations were insufficient to establish whether the agency had appropriately applied Exemption 5 to seven challenged documents, and because the agency stated that it did not object to plaintiff's request for in camera review of these documents, the court will perform such a review. It will then issue a supplemental opinion stating its findings concerning the appropriateness of the withholdings.

5. Los Angeles Times Commc'ns LLC v. U.S. Dep't of Labor, 483 F. Supp. 2d 975 (C.D. Cal. 2007)

Re: Request for records related to worker compensation benefits paid out to individuals killed or injured while working as civilian contractors in Iraq and Afghanistan

• Exemption 6: Agency declarations are sufficient to establish that civilian contractors and their family members have a privacy interest in protecting their identities and personal information because of the risk of acts of reprisal by terrorist organizations. This interest extends to family members living outside of Iraq and Afghanistan. The declarations note "numerous instances" of reprisals, and state that contractors and their families remain "prime targets" of terrorist organizations. Though to date such attacks have only taken place in Iraq and Afghanistan, those responsible for them are encouraging attacks on the targeted individuals residing in the United States and other countries. Even evidence submitted by plaintiff in its cross-motion supports the agency's assertions on the risk of harm. The public interest in information pertaining to the agency's performance of its duties is clearly outweighed by the privacy interest the affected individuals have in information that might put their health and safety at risk.

• Segregability: It is undisputed that the agency has no way of segregating out those contractors currently in Iraq or Afghanistan from those who are not. Thus, even if the court had determined that there was an insufficient showing of potential harm to those outside Iraq and Afghanistan, the agency properly withheld all the requested information.

• Misc: There is no basis for the court to grant plaintiff's request and send letters to contractors residing outside Iraq and Afghanistan to see if they would like to waive their privacy rights. The court's role is limited to determining whether any records have been improperly withheld.


District Courts

1. Barbosa v. DOJ, No. 06-0867, 2007 WL 1201604 (D.D.C. Apr. 23, 2007)

Re: First-party request

• Adequacy of search: Additional disclosures by the agency during litigation are not evidence of prior bad faith on the agency's part, but are instead consistent with both the agency's "practice and procedure" of taking "remedial action" to correct administrative errors and with the language of the FOIA.

• Exemption 2: The agency's use of Exemption 2 to withhold identifying codes was appropriate and is consistent with prior precedent on this issue.

• Exemption 7 (threshold): Records compiled during the agency's criminal law enforcement investigation of plaintiff qualify as law enforcement records.

• Exemption 7(C): The agency appropriately used this exemption to withhold names and other identifying information of third-party suspects, codefendants, confidential sources, and law enforcement personnel. All of these people have a strong privacy interest in protecting their identities, and the agency could find no public interest supporting release of this information. Plaintiff's claims that release of this information would be relevant to establishing the validity of his conviction are mere "unsubstantiated grievances" and do not establish a public interest that would overcome the substantial privacy interests sustained by the agency.

• Exemption 7(D): The agency appropriately applied this exemption to "coded confidential informants with express assurances of confidentiality." Exemption 7(D)'s express terms protect the identities of such sources as well as the information they have provided.

2. Davy v. CIA, No. 00-2134, 2007 U.S. Dist. LEXIS 29944 (D.D.C. Apr. 23, 2007)

Re: Request for CIA records allegedly related to JFK assassination

• Attorney's fees: In response to a decision by the D.C. Circuit Court of Appeals that plaintiff was eligible for attorney's fees because he had substantially prevailed in the underlying case, the District Court determined that plaintiff was not entitled to such fees. The records requested by plaintiff concerned the activities of a federal agency in connection with an important historical event, and so these factors favor plaintiff's claim. However, because plaintiff used the information to publish a book on the subject, he had a clear commercial interest in the records (notwithstanding the fact that the book may not have been a significant commercial success). Moreover, given that the agency agreed to disclose the documents within a few months of his second request, the agency's actions had a reasonable basis in law. Thus, the weighing of factors to be considered in determining whether to award fees tilt against such an award.

3. Naoum v. DHS, No. 06-12078, 2007 WL 1158113 (D. Mass. Apr. 19, 2007)

Re: First-party request

• Lit Con: Two subdivisions of defendant agency are dismissed as defendants in this action because they are not "agencies" under the FOIA, as set out in 5 U.S.C. § 552(f)(1).

4. Neal v. Snow, No. 06-1124, 2007 WL 1169339 (D.D.C. Apr. 19, 2007)

Re: Request for various types of "bond" information concerning plaintiff's criminal case

• Adequacy of search: Defendant reasonably tailored its search based on the nature of plaintiff's request for records which, if they existed, would have been in plaintiff's criminal case file. The fact that the search failed to turn up responsive records does not make the search presumptively unreasonable. Plaintiff has "utterly failed" to meet his burden of challenging the defendant's evidence that it conducted an adequate search in good faith. An agency is not required to create records in response to a request, nor can it produce records which it does not possess.

5. Toolasprashad v. BOP, 474 F. Supp. 2d 14 (D.D.C. 2007)

Re: First-party request relating to psychological evaluation of plaintiff

• Adequacy of search: The agency's declarations were sufficient to establish that the agency's search for records was adequate, notwithstanding plaintiff's claim that additional records (allegedly initially provided by plaintiff to the agency) exist. The agency reasonably explained why such records were not located.


Courts of Appeal

1. Van Mechelen v. Dep't of the Interior, No. 05-36237, 2007 WL 1231589 (9th Cir. Apr. 27, 2007)

Re: Appeal of lower court's grant of summary judgment to agency

• Lit Con: The agency's declaration provided an adequate factual basis for the district court's ruling that the agency's search had been adequate. Additionally, the lower court did not abuse its discretion in denying plaintiff's requests for discovery. Finally, plaintiff has waived any challenge to the district court's order denying his motions to strike, for sanctions, and for reconsideration, because these arguments were not raised in his opening brief.

District Courts

1. Elliott v. FBI, No. 06-1244, 2007 WL 1302595 (D.D.C. May 2, 2007)

Re: First-party request

• Adequacy of search: The agency's declaration was sufficient to show that its search for records was adequate and reasonable.

• Exemption 2 (low): The agency appropriately invoked this exemption to withhold the work phone numbers of three FBI lab personnel. These numbers are predominantly internal, and their release would serve no genuine public interest. Plaintiff's contention that the exemption only covers personnel rules and practices has been rejected by the D.C. Circuit.

• Exemption 7 (threshold): Records created in connection with a sexual assault investigation of plaintiff qualify as law enforcement records.

• Exemption 7(C): The agency appropriately utilized this exemption to withhold the names of FBI lab personnel and United States Park employees, as well as the identity of a sexual assault victim. Both lab personnel and park employees could be subject to harassment if their identities and connection to the investigation of plaintiff became known, and this would constitute an unwarranted invasion of their personal privacy. The assault victim has an extremely strong privacy interest; release of her identity could subject her to "additional humiliation." Disclosure of the names of private individuals mentioned in law enforcement records serves a significant public interest only where there is "compelling evidence" of illegal action by the agency; plaintiff has shown no public interest to be served by release of the victim's name. Plaintiff's allegation that the names protected by the agency were made public at his trial does not change the analysis, as such a disclosure would not diminish the privacy interests of the individuals in question.

2. Elliott v. Dep't of Agric., No. 06-240, 2007 WL 1302588 (D.D.C. May 2, 2007)

Re: Request for building blueprints

• Exhaustion: Even though plaintiff's action was filed before the agency's deadline for responding to his administrative appeal, the agency's motion to dismiss is denied because the agency has had "an opportunity to exercise its discretion and expertise."

• Adequacy of search: The agency's declarations demonstrate that its search was "reasonably calculated to uncover all relevant documents." The "search is not presumed unreasonable because it fails to find all the requested information." Plaintiff has not met his evidentiary burden in challenging the presumption of good faith accorded to agency submissions.

• Exemption 2: The agency has failed to show that the withheld blueprints meet the "predominantly internal" standard. Additionally, the agency's declarations have not made clear the connection between release of the blueprints and a risk of circumvention of agency statutes or regulations. Thus, the agency is directed to file a renewed motion with respect to Exemption 2.

3. Trupei v. DEA, No. 06-1162, 2007 WL 1238867 (D.D.C. Apr. 27, 2007)

Re: Request for letter of appointment of DEA Special Agent

• Proper party: The Department of Justice, and not any of its individual components, is the proper party defendant.

• Adequacy of search: The agency's declaration was sufficient to demonstrate that its search was adequate.

• Misc: Plaintiff's claims that the agency's untimely response to his request as well as its failure to forward his request to the agency likely possessing the responsive records do not demonstrate bad faith on the agency's part, and therefore are insufficient to call into question the agency's declaration. Delays in responding to a FOIA request are "rarely, if ever, grounds for discrediting later [agency] affidavits." Furthermore, DEA was under no statutory or regulatory obligation to forward plaintiff's request to another agency or agency component.

4. White v. Ctr. for Medicare and Medicaid Servs., No. 06-2490, 2007 WL 1234987 (E.D. La. Apr. 26, 2007)

Re: Request for records related to contractor's involvement in investigation of plaintiff

• Personal knowledge: The fact that defendant's declarant only recently started at her current position does not disqualify her declaration. She was able to review her predecessor's file, thereby allowing her to meet the personal knowledge requirement.

• Genuine issue of material fact: Unsupported allegation by plaintiff that unidentified agency employee "allegedly said that records were withheld" because release would "incriminate" government officials, does not create a genuine issue of material fact. (posted 9/10/2007)

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Updated August 6, 2014