FOIA Post (2008): Summaries of New Decisions -- November 2008

December 23, 2008

Summaries of New Decisions -- November 2008

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of November 2008.


1. Thomas v. DOJ, No. 08-5031, 2008 U.S. App. LEXIS 22469 (D.C. Cir. Oct. 28, 2008) (per curiam) (unpublished disposition)

Re: First-party request

•  Litigation considerations: Plaintiff’s motion for appointment of counsel is denied. Defendants’ motion for summary affirmance is granted. “The record supports the district court’s conclusions that the appellee conducted an adequate records search and the Vaughn index was adequate to support the claimed exemptions. . . . The district court properly concluded that appellee provided sufficient justification for withholding the requested records under Freedom of Information Act Exemptions 7(C) and (D) . . . and there were no nonexempt materials that could be reasonably segregated and released. Finally, appellant has failed to establish that the district court erred in denying his request for discovery.”

1. Nat’l Sec. Archive v. CIA, No. 06-1080, 2008 WL 4786623 (D.D.C. Nov. 4, 2008) (Kessler, J.)

Re: Plaintiff’s status as a representative of the news media

•  Litigation considerations: Plaintiff’s motion for reconsideration of the court’s prior denial of plaintiff’s motion for a judgment establishing its status as a member of the news media is granted. Previously, the court had ruled that plaintiff’s claims against the CIA were mooted by the CIA’s promise to halt its practice of denying “representative of the news media” status to plaintiff. However, plaintiff has now provided evidence that the CIA continued this practice even after its “promise ‘that it would in the future comply with the law.’” The court finds that “[s]uch extraordinary misbehavior can no longer insulate [defendant] from accountability. Since the defendants’ past actions strongly suggest that their alleged misconduct will recur, the CIA’s promises to voluntarily halt its behavior no longer moot the issue.”

•  Fee category: Plaintiff is entitled to be classified as a representative of the news media, a fact that defendants do not dispute. Therefore, the CIA is ordered to grant such status to plaintiff “for all pending and future noncommercial FOIA requests.”

2. Edwards v. USDA, No. 04-6051, 2008 U.S. Dist. LEXIS 89443 (W.D.N.Y. Nov. 4, 2008) (Larimer, J.)

Re: Records related to farmland benefit program

•  Exemption 6: The court “conclude[s] that USDS [sic] properly withheld certain limited information from plaintiff under [Exemption 6].”

3. Nat’l Sec. News Serv. v. U.S. Dep’t of the Navy, No. 08-1772, 2008 WL 4768029 (D.D.C. Oct. 31, 2008) (Collyer, J.)

Re: Patient admission records from Portsmouth Naval Hospital for two days in 1964

•  Exemption 6: The court finds that “[t]he patients listed in the requested hospital admission records have a substantial privacy interest in avoiding disclosure of the fact that they sought medical treatment.” The court noted that “[r]ecords, such as the ones Plaintiffs seek here, indicating that individuals sought medical treatment at a hospital are particularly sensitive.” Plaintiffs’ claim that they merely seek “‘duty station assignment information’ is belied by their own FOIA request expressly seeking ‘patient admission records.’” By contrast to the significant privacy interests at stake, “Plaintiffs advance no public interest cognizable under the FOIA that would outweigh the listed patients’ substantial privacy interests. . . .” The court finds that “[d]isclsoure of the requested patient admission records only would reveal who was admitted to the Naval Medical Center; it would reveal nothing about the Navy’s own conduct. This is so irrespective of whether one of the persons then admitted to the hospital is now a public figure.”

4. Elec. Privacy Info. Ctr. v. DOJ, No. 06-00096, 2008 WL 4757163 (D.D.C. Oct. 31, 2008) (Kennedy, J.)

Re: Records pertaining to authorization for domestic surveillance operations

•  In camera review: The court orders in camera review for all documents for which defendant has not satisfied its burden of proof for its summary judgment motion.

•  Exemptions 1 & 3: "This court is not persuaded by [plaintiff’s] argument that because information about [the Terrorist Surveillance Program (TSP)] has become publicly available there is reason to be skeptical of DOJ’s assertion that releasing the withheld documents would harm national security. To the contrary, just because some information about the TSP has become public, it does not follow that releasing the documents poses any less of a threat to national security. . . . Furthermore, it is ‘well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview.’” Though the publicly available portions of the Office of Legal Counsel’s (OLC) declarations are “in and of themselves” insufficient to justify OLC’s withholdings, “[defendant] has submitted far more detailed justifications in the classified portions of its submissions, which this court has reviewed in camera. The D.C. Circuit has long recognized that in camera review of declarations and documents is proper in cases implicating national security. . . .” Though this necessarily limits the adversarial process, “this court is well aware of, and does not take lightly, its obligation to ensure that DOJ has sufficiently justified [its] withholding[s],” which it has done. The FBI has also provided sufficient justification for its withholdings through its classified submissions to the court.

•  Exemption 5 (deliberative process, attorney-client, and presidential communications privileges): Plaintiff’s contention that OLC’s legal opinions are not subject to the deliberative process privilege because they represent DOJ’s final opinion on the subjects in question “is utterly without merit. It is nonsensical to state that legal opinions can never be protected by the deliberative process privilege because of their authoritative nature. If legal opinions are disclosable simply because they are authoritative or conclusive, this ‘would mean that virtually all legal advice OLC provides to the executive branch would be subject to disclosure.’ . . . This would significantly chill the ability of the executive branch to obtain legal advice. Rather, authoritative legal opinions that are promulgated as part of a larger decision-making process may well be protected by the deliberative process privilege.” Here, however, “[t]he court cannot conclude that the deliberative process [privilege] applies to these documents,” because the declarations provide insufficient information as to the decisions to which they relate. Plaintiff argues that OLC’s legal opinions should not be protected “because they most likely contain legal opinions that were adopted by the Attorney General or incorporated into DOJ’s final policies. . . . EPIC provides no evidence to support this assertion other than speculation, however. Such speculation will not suffice. . . . There ‘must be evidence that an agency has actually adopted or incorporated by reference the document at issue.’” Though senior DOJ officials referred to OLC opinions in explaining the Department's decision on the TSP program, “[s]uch a general reference does not constitute a waiver of the deliberative process privilege with respect to any OLC memorandum.” OLC has not provided enough information to sustain its claim that many of the withheld documents were also protected by the attorney-client privilege. OLC’s “declarations do not indicate what agency or executive branch entity is the client for purposes of the attorney-client privilege” or specify that the classified information OLC received came from the agency/client. Plaintiff’s claim that alleged prior waivers of the attorney-client privilege by DOJ prevent the Department from now asserting the privilege is “without merit.” OLC properly withheld documents under the presidential communications privilege. “DOJ is correct that the . . . privilege does not need to be asserted by the President himself.” In order for the privilege to be asserted, OLC’s advice must have been “solicited or received by immediate or key advisors to the President.” Plaintiff’s argument that the privilege only covers “advisory and deliberative documents, or to documents that would reveal the mental processes of the President is without merit.”

•  Segregability: As to some of the withheld documents, OLC has now provided sufficient support for its claim that it was not possible to segregate out and release any additional portions of the withheld documents. As to others, however, the court finds that “‘[a] blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability.’” For these documents, in camera review is required.


1. Mottahedeh v. Tambornini, No. 07-55530, 2008 WL 4833000 (9th Cir. Nov. 6, 2008) (Hawkins, J., Rawlinson, J., and Smith, J.) (unpublished disposition)

Re: Affirmance of the district court’s sua sponte dismissal of FOIA claim for lack of jurisdiction

•  Proper party defendant: The district court dismissed plaintiffs’ FOIA claim against the United States for lack of jurisdiction concluding that “[a]lthough Petitioners may bring a FOIA claim against the appropriate agency, it is clear based on the language of the statute that the United States is not a proper party.” The Ninth Circuit affirmed the district court’s sua sponte dismissal of plaintiffs’ FOIA claim and concluded that “[it] did not err by dismissing without leave to amend.”

2. Haralson v. Peake, No. 2008-7100, 2008 WL 4810054 (C.A. Fed. Nov. 5, 2008) (Newman, J., Schall, J., and Dyk, J.) (unpublished disposition)

Re: The Veterans Court lacks jurisdiction over FOIA actions

•  Litigation considerations: The United States Court of Appeals for the Federal Circuit dismissed plaintiff’s FOIA claim for lack of jurisdiction. Finding that the Veterans Court appropriately dismissed plaintiff’s FOIA claim for lack of jurisdiction, the Federal Circuit Court held that “[t]his Court’s jurisdiction over Veterans Court’s decisions is also limited by 38 U.S.C. § 7292 and we similarly lack jurisdiction to hear [plaintiff’s] remaining claims.” The Court instructed plaintiff that he may proceed with his FOIA claim before the appropriate U.S. District Court.

1. Nat’l Ass’n of Waterfront Employers v. Chao, No. 07-2250, 2008 WL 4885053 (D.D.C. Nov. 13, 2008) (Collyer, J.)

Re: Whether the Department of Labor’s adoption of the Anonymous Claimant Rule in cases involving claims under the Longshore and Harbor Workers’ Compensation Act and the Black Lung Benefits Act violates inter alia, the FOIA.

Anonymous Claimant Rule - the Chief ALJ declared by memorandum that decisions by ALJs regarding the Longshore Act and the Black Lung Act no longer would display the claimant’s full name in the caption and text. Such decisions and orders only display the claimant's initials, and not their full names.

•  Litigation considerations: The court rejected defendant’s argument “that FOIA provides an adequate remedy because FOIA allows a party to file a request with the Department of Labor for records involving a particular individual, and this right is enforceable in federal court.” The court concluded that “FOIA is not an available remedy for [p]laintiffs’ [c]omplaint” because “[p]laintiffs seek vindication of their First Amendment and common law rights to access administrative proceedings through equitable relief.” The court also stated that FOIA was inadequate to address plaintiffs’ other claims because “[p]lantiffs . . . seek to enforce their right to notice and comment rule making under the APA, and they challenge the authority of the Chief ALJ to institute a substantive rule via a memorandum.”

•  5 U.S.C. § 552(a)(2): The court rejected plaintiffs’ argument that the Anonymous Claimant Rule violates Section 552(a)(2). The court pointed out that “[u]nder the Anonymous Claimant Rule, ALJ decisions and orders are created using first and last initials only; no information is deleted from them, and thus they are not redacted documents.” Relying upon the premise that Section 552(a)(2) does not control how an agency creates its documents, the court ruled that plaintiffs failed to state a FOIA claim because “FOIA governs how an agency redacts information from documents that are made publicly available, but not how documents are created initially.”

2. Kishore v. DOJ, No. 07-1299, 2008 WL 4853413 (D.D.C. Nov. 10, 2008) (Collyer, J.)

Re: First-party request

•  Duplicates: Through its submission of a supplemental declaration, Defendant FBI explained that five pages originally withheld in full as duplicates are “‘true duplicates’” of released records. According to the court, “[t]he FBI’s withholding of duplicates of five released pages is immaterial to the FOIA claim because ‘once all requested records are surrendered, federal courts have no further statutory function to perform.’”

•  Exemption 7C: The FBI’s supplemental declaration explained that it originally categorized seven pages as duplicates, but they “‘were not true duplicates in that they contain marginalia, and were consequently a separate record, which should be reviewed for release to plaintiff.’” After review of the pages, the FBI redacted third party information pursuant to Exemptions 6 and 7(C). The court concluded that “[it] previously approved the FBI’s withholding of such information under Exemption 7(C).”

3. Pik v. Inst. of Int’l Educ., No. 08-3909, 2008 WL 4922112 (S.D.N.Y. Nov. 10, 2008) (Buchwald, J.)

Re: Plaintiff’s application for leave to amend complaint to include inter alia, the FOIA

•  Proper party defendant: The court rejected plaintiff’s application for leave to amend because “[p]laintiff’s new purported federal law claims . . . would not survive a motion to dismiss” because “[n]one of the defendants named in plaintiff’s Second Amended Complaint is a state or federal government actor.” Pointing out that FOIA applies to federal agencies, the court concluded that “[p]laintiff therefore has not stated -- and could not state -- a claim against any defendant under the Freedom of Information Act or the due process clauses of either the Fifth or Fourteenth Amendment.”

4. Henderson v. Rice, No. 08-1907, 2008 WL 4809129 (D.D.C. Nov. 5, 2008) (Robertson, J.)

Re: Dismissal of FOIA action for failure to state a claim upon which relief may be granted

•  Exhaustion: The court noted that “[p]rior to obtaining judicial review, a FOIA requester ordinarily must exhaust his administrative remedies by filing a proper request with the agency and appealing any adverse determinations administratively.” The court dismissed plaintiff’s FOIA action “[b]ecause there is no indication that plaintiff has ever submitted a proper FOIA request to the State Department.”


1. Thomas v. HHS, No. 08-0831, 2008 WL 4922792 (D.D.C. Nov. 18, 2008) (Huvelle, J.)

Re: Failure to respond to FOIA request

•  Litigation considerations: The court denies plaintiff’s request for permission to take discovery “[b]ecause discovery is an extraordinary procedure in a FOIA action, and [plaintiff] gives no reason for needing discovery.”

•  Exhaustion: The court concludes that plaintiff is entitled to constructive exhaustion of his administrative remedies due the following factors: “[t]he FDA never provided [plaintiff] with the response to his initial request that is required under 5 U.S.C. § 552(6)(A)(i);” all of the FDA’s letters failed to advise “[plaintiff] of his right to appeal an adverse decision to the agency head;” and “the FDA did not respond to [plaintiff’s] appeal of his constructive denial as required by 5 U.S.C. § 552(6)(A)(ii).” The court further concludes that “when the Clerk of Court received [plaintiff’s] complaint, [plaintiff] was entitled to the benefit of constructive exhaustion under 5 U.S.C. § 552(a)(6)(C).” Regarding the FDA’s letter dated after the filing of plaintiff’s complaint which sought prepayment of search fees, the court finds that it “came too late” because plaintiff “had already submitted his complaint for filing.” The Court directs FDA to “respond promptly” to plaintiff’s request.

2. Rader v. United States, No. 08-00568, 2008 U.S. Dist. LEXIS 93309 (D. Colo. Nov. 17, 2008) (adoption of magistrate judge's report and recommendation) (Miller, J.)

Re: Allegations regarding failure to adequately respond to FOIA request raised during course of investigation into tax liability of petitioners

•  Litigation considerations: Petitioners argue that an IRS Agent acted in bad faith by intentionally failing to adequately respond to their FOIA requests. The court agrees with the magistrate judge’s determination that petitioners’ “argument could not serve to rebut Respondent’s prima facie case as FOIA sets forth the proper procedure to challenge agency action” arising under the FOIA.

3. Cotton v. Stine, No. 07-98, 2008 U.S. Dist. LEXIS 93149 (E.D. Ky. Nov. 14, 2008) (Reeves, J.)

Re: Request for records related to petitioner's civil habeas case

•  Fee Waiver: The court finds that “Congress has specifically rejected a fee waiver provision for indigents, and the D.C. Circuit has held that ‘where the requester seeks information concerning himself only, [denial] of fee waivers will be upheld despite the requester’s indigence.’” Petitioner’s argument that he is entitled to a fee waiver “because the original copies [of the subject documents] were lost when he was transferred to a new unit within the federal prison system,” is unavailing since “there is no indication that these documents are intended for public benefit, but rather appear to only benefit” the requester.


1. Melton v. U.S. Attorney, No. 07-3125, 2008 U.S. App. LEXIS 24194 (7th Cir. Nov. 24, 2008) (unpublished disposition) (per curiam)

Re: Bank surveillance video

•  Exhaustion: There is no evidence that plaintiff ever submitted a FOIA request to defendant, thus the district court correctly dismissed the claim against defendant.

2. Smith v. USPS, No. 08-1158, 2008 WL 4963501 (4th Cir. Nov. 21, 2008) (unpublished disposition) (per curiam)

•  Summary affirmance: The court finds no reversible error in the district court’s judgment and, therefore, affirms the lower court decision.

3. Henderson v. Koch, No. 08-1733, 2008 WL 4934604 (4th Cir. Nov. 18, 2008) (unpublished disposition) (per curiam)

Re: First-party request

•  Litigation considerations: “Because [plaintiff] may amend his complaint to cure the defects identified by the district court, we find that the dismissal order is interlocutory and not appealable.”

4. Henderson v. Paulson, No. 08-1711, 2008 WL 4934574 (4th Cir. Nov. 18, 2008) (unpublished disposition) (per curiam)

•  Summary affirmance: The court finds no reversible error in the district court’s judgment and, therefore, affirms the lower court decision.

1. Bullock v. FBI, No. 07-1013, 2008 WL 4997486 (D.D.C. Nov. 25, 2008) (Huvelle, J.)

Re: First-party request seeking an audio tape

•  Jurisdiction: “[A] FOIA case is not the proper forum in which to raise a Brady claim. . . . Accordingly, plaintiff’s Brady arguments are not relevant to his FOIA case.”

•  Exemption 7(C): The FBI properly redacted portions from the audio tape that would have identified two private individuals who were not a target of the investigation of plaintiff, as well as portions that would have identified an FBI agent and local law enforcement officers. As to the former, “[b]ecause of the stigma of being associated with a drug investigation, the identities of these innocent bystanders are protected by Exemption 7(C).” As to the latter, “[p]laintiff’s unsupported allegations of official misconduct do not outweigh the privacy interests of these law enforcement officers.”

•  Exemption 7(D): The FBI properly withheld a portion of the tape that identified a cooperating witness who was given an explicit promise of confidentiality by the FBI. “This information is protected by Exemption 7(D) unless the ‘exact information’ contained on the tape is already in the public domain.” This tape may be identical to one that was excluded from plaintiff’s trial, but even if it is, this is not enough to meet the public domain standard. “A limited playing of the tape for the purposes of an evidentiary determination did not bring the tape into full public view.”

2. Thompson v. EOUSA, No. 07-1848, 2008 WL 4966506 (D.D.C. Nov. 24, 2008) (Urbina, J.)

Re: Grand jury testimony and statement of witness

•  Exemption 3: EOUSA properly withheld grand jury transcripts and exhibits as records that would “‘tend to reveal some secret aspect of the grand jury’s investigation.’” These materials “[c]learly . . . fall within the . . . categories of protected information.” Plaintiff has not met his burden of showing that the withheld material is identical to material introduced at his trial, and hence in the public domain.

•  Exemption 7(C): EOUSA properly applied this exemption to withhold the statement of a third party. “The plaintiff . . . has presented no facts to credibly refute the defendant’s proper claim of a third-party privacy interest.” In particular, plaintiff provided no supporting evidence to substantiate his allegations of a “‘miscarriage of justice’” or official wrongdoing by the government.

3. Habeus Corpus Resource Ctr. v. DOJ, No. 08-2649, 2008 WL 5000224 (N.D. Cal. Nov. 21, 2008) (Wilken, J.)

Re: Records related to development of regulation detailing certification process for state capital counsel systems

•  Exemption 5 (deliberative process privilege): The court finds that several of the documents (or portions thereof) DOJ withheld must be released, because they either summarize[ ] “issues raised by outside groups” and do “not reflect deliberations within the DOJ,” or were “not prepared to assist an agency decision-maker in arriving at a substantive policy decision,” or do not discuss “substantive policy,” or are “peripheral to the formation of substantive policy." Plaintiff’s contention that DOJ is required to release all documents reflecting its internal process of revising a draft regulation after it received comments from OMB, however, is mistaken. Likewise, plaintiff’s claim that protection is not warranted for “documents ‘reflecting information that formed the basis of the regulations as proposed,’ . . . is not an accurate description of the law. . . .” Finally, plaintiff wrongly claims that DOJ cannot utilize Exemption 5 “because the withheld records may shed light on government misconduct. . . . However, whether particular documents may theoretically be subject to discovery in a particular civil action is irrelevant to whether they are exempt from disclosure under FOIA Exemption 5.”

•  Exemption 6: Two e-mails relating to the hiring of a DOJ attorney are ordered disclosed. “[T]he emails contain no personal information. Plaintiff’s interest-and the public’s interest-in determining whether [the DOJ attorney’s] hiring was improper is sufficient to outweigh any minimal privacy interest [the attorney] may have in keeping these opinions from the public.” The mobile phone number, however, may be withheld.

4. In Def. of Animals v. USDA, No. 02-557, 2008 WL 4966590 (D.D.C. Nov. 21, 2008) (Roberts, J.)

Re: Records concerning investigation of allegations of animal abuse against a research facility

•  Exemption 4/litigation considerations: Defendants’ proposed expert testimony on the impact of negative publicity generated by animal rights groups is excluded. “The animal rights organizations in which [defendants’ expert] claims expertise are not commercial competitors. While the tactics he describes in his expert report may cause harm to [the research facility], it is not harm caused by commercially competitive behavior. Rather the harm [defendants’ expert] describes is akin to the reputational harm caused by negative publicity that the court of appeals has made clear is irrelevant to the competitive harm inquiry under Exemption 4.” For similar reasons, defendants’ proposed exhibits are excluded.

5. Cabreja v. USCIS, No. 08-1992, 2008 WL 4933649 (D.D.C. Nov. 19, 2008) (Robertson, J.)

Re: Third-party request

•  Litigation considerations: Plaintiff’s complaint for mandamus relief ordering defendant to provide him with the requested records is dismissed. Plaintiff has not established that the action he seeks -- the provision to him of third-party records -- is required of the agency. Furthermore, mandamus relief is only available if plaintiff has exhausted all other avenues of relief, something which he has not done.

6. Bickel & Brewer v. IRS, No. 08-0114, 2008 WL 4966655 (N.D. Tex. Nov. 18, 2008) (Kaplan, Mag. J.)

Re: Documents concerning a tax opinion requested by an anonymous client who is represented by plaintiff

•  Exemption 3: 26 U.S.C. § 6103 prohibits disclosure of taxpayer return information. “Plaintiff does not argue, much less prove, that its anonymous client consented in writing to the disclosure of his confidential return information. Instead, plaintiff asks the court to presume consent because the client insists on remaining anonymous. . . . Not surprisingly, no authority is cited to support this novel argument.” Moreover, “there is no evidence that plaintiff represents the anonymous client.” Plaintiff also wrongly asserts that the IRS is required to submit a Vaughn index or the documents themselves to prove that they do, in fact, contain confidential return information. “Such measures are futile where, as here, the ‘FOIA exemption consists of a generic exclusion.’”

7. Johnson v. Behring, No. 08-274, 2008 WL 4936499 (N.D. Fla. Nov. 14, 2008) (adoption of magistrate’s recommendation) (Hinkle, C.J.)

Re: First-party request

•  Proper party defendant: The federal FOIA does not apply to private companies.

8. Bartlett v. Apalachee Ctr., Inc., No. 08-47, 2008 WL 4925646 (N.D. Fla. Nov. 14, 2008) (adoption of magistrate’s recommendation) (Hinkle, C.J.)

Re: First-party request

•  Proper party defendant: The federal FOIA does not apply to non-federal agencies. (posted 12/23/2008)

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