Summaries of New Decisions -- March 2009
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 March 2009.
WEEK OF MARCH 2
1. United States v. Banks, No. 06-4332, 2009 WL 458787 (3d Cir. Feb. 25, 2009) (per curiam)
Re: First-party request
• Litigation considerations: The district court properly denied plaintiff's motion to compel disclosure of records filed in post-conviction proceedings.
1. Grandison v. DOJ, No. 08-0024, 2009 WL 535969 (D.D.C. Mar. 4, 2009) (Leon, J.)
Re: Discovery materials from tort action
• Adequacy of search: "Based [o]n its review, the Court concludes that the Civil Division and the EOUSA conducted searches reasonably calculated to locate records responsive to plaintiff's FOIA requests[.]"
• Exemption 6: Defendants have established that the individuals who would have information about them released have strong privacy interests in the withheld material, including those individuals accused of wrongdoing as part of the underlying tort action, and especially in light of plaintiff's conviction of the murder of a government witness. Defendants "took appropriate steps to verify" the deaths of two of the individuals at issue and released additional information accordingly. As to a third individual, plaintiff has not sufficiently established that this individual is deceased, and unsupported speculation is insufficient proof, as is a Google search when done for a person with a common name. Plaintiff has also not established that complete versions of the records he seeks are in the public domain. Nor has plaintiff demonstrated any public interest in release of the requested information. Thus, defendants' withholdings were proper.
• Exemption 7 (threshold): The court finds that the "requested discovery materials were generated in the course of a civil action filed . . . against the United States" and "[n]otwithstanding the circumstances under which the civil causes of action arose [the murder of a witness who testified against plaintiff at his trial]" . . . "it cannot be said that the deposition transcripts and interrogatories deemed responsive to plaintiff's FOIA requests were compiled for law enforcement purposes."
2. Amuso v. DOJ, No. 07-1935, 2009 WL 535965 (D.D.C. Mar. 4, 2009) (Leon, J.)
Re: First-party request
• Adequacy of search: "On this record, the Court concludes that the methods by which FBI staff searched for records responsive to plaintiff's FOIA request were reasonable under the circumstances." The fact that documents may have once existed in a field office "does not weaken the FBI's position."
• Procedural: "Absent additional information from the BOP as to its rationale for withholding [records referred to it by the FBI], the Court cannot determine whether its decision is proper. Nor can the Court determine whether the BOP withheld or released [an additional page referred to it by the FBI][.]"
• Segregability: The FBI has demonstrated that "only the exempt records or portions of records have been withheld," even where this has left little releasable information on many documents. "Plaintiff's level of satisfaction with the content of redacted records does not undermine the FBI's decisions to redact or withhold information under the claimed exemptions."
• Exemption 2 (high): The FBI properly withheld informant file numbers and permanent source symbol numbers. It established that these numbers are used predominantly for internal purposes. Defendant further established that "disclosure of informant file numbers and source symbol numbers would risk circumvention of statutes or agency regulations" by identifying sources and thereby discouraging future cooperation with FBI investigations, and also by revealing the volume of sources utilized in a given area. The FBI also properly withheld information that would reveal its investigatory techniques, amounts of money used to purchase evidence, and information concerning the logistics of its undercover operations.
• Exemption 6: The FBI properly withheld names and identifying information of individuals who provided information to the FBI through interviews. Plaintiff asserts that this information has been released to him through his criminal trial, but even if true, it "is not relevant to this FOIA action." Furthermore, plaintiff's asserted interest in having this information to prove his innocence "does not overcome the individuals' privacy interest" and does not qualify as a public interest for purposes of the FOIA.
• Exemption 7 (threshold): Although the FBI's declaration "offers little detail" on this point, "[t]here can be no dispute, . . . that the FBI is a law enforcement agency." "[I]t is clear from the supporting declaration and from the language of plaintiff's FOIA request itself [which references the criminal investigation of plaintiff] that the relevant records were compiled for law enforcement purposes."
• Exemption 7(C): Pursuant to this exemption, the FBI properly withheld names and identifying information of FBI Special Agents, FBI support personnel, local law enforcement personnel, third parties who provided information to the FBI, third parties merely mentioned in FBI records, and third parties of investigative interest to the FBI or other law enforcement agencies. All of these people have substantial privacy interests at stake, including fear of harassment and avoiding the stigma associated with being linked to a law enforcement investigation. Plaintiff has identified no public interest in release of this information. Moreover, "[p]rivacy interests do not diminish with the passage of time." Plaintiff's interest in challenging his conviction does not qualify as a public interest for purposes of the FOIA.
• Exemption 7(D): The FBI properly withheld confidential source file numbers, permanent source symbol numbers, and information provided by the symbol numbered sources. "Its declaration explains that these sources provided information under an express grant of confidentiality, and that disclosure of this information could reasonably be expected to disclose their identities." As to information received from a foreign government source, "[a]bsent a more substantive description of the nature or scope of the agreement with this foreign source" the FBI has not established that it received the information under an express grant of confidentiality. The FBI properly withheld the identities of third parties pursuant to implied grants of confidentiality. "In this case, where plaintiff is a member of an organized crime family who has been convicted of racketeering, extortion and murder, it is reasonable for these sources to fear retaliation if the FBI were to release their names or any other information that might reveal their identities."
• Exemption 7(E): The FBI properly withheld information pertaining to its investigative techniques and procedures whose disclosure "would provide insight into its investigatory or procedural techniques" and where release of this information could allow others to "circumvent the law or otherwise jeopardize future investigations or undercover operations."
• Exemption 7(F): The FBI properly withheld source symbol number informants and the names and identifying information of cooperating witnesses. Although plaintiff claims that the FBI incorrectly assumed he was involved with organized crime, a Second Circuit opinion and the FBI's declaration establish that plaintiff was "'a ruling figure'" of an organized crime family. Given the violent nature of plaintiff's crimes and his established membership in an organized crime family, "[i]t is reasonable . . . to conclude that disclosure of this information could threaten the lives of or otherwise endanger [these individuals'] safety."
3. Ubungen v. U.S. Citizenship & Immigration Servs., No. 08-673, 2009 WL 504680 (D.D.C. March 2, 2009) (Sullivan, J.)
Re: Third-party request for last known address of her sister, who had ceased communicating with her family
• Exemption 6: Defendant properly withheld the last known address of the subject of plaintiff's request. There is no public interest in release of this information. Here, "the plaintiff's interest in the information about her sister is . . . purely personal. . . ." Because there is no public interest, the agency properly withheld the personal information.
4. Neff v. Walker, No. 09-0386, 2009 WL 498071 (D.D.C. Feb. 26, 2009) (Huvelle, J.)
• Proper party defendant: The federal FOIA does not apply to state officials.
5. Judicial Watch, Inc. v. DHS, No. 07-506, 2009 WL 481675 (D.D.C. Feb. 25, 2009) (Leon, J.)
Re: Request for records pertaining to prosecution of border patrol agents for shooting accused drug smuggler
• Exemptions 6 & 7(C): "Where, as here, the requested records could shed light on agency action-information that falls 'squarely within [FOIA's] statutory purpose,' . . . an agency must, for each record, conduct a particularized assessment of the public and private interests at stake." Unlike "rap sheets" which the Supreme Court found to be "categorically exempt," in Reporters Committee, "the balance between private and public interests in the records requested here is a much closer call."
6. Moore v. Bush, No. 07-107, 2009 WL 504623 (D.D.C. Feb. 23, 2009) (Collyer, J.)
Re: First-party request; request for records pertaining to alleged existence of "brainwave technology"
• Exhaustion: Because plaintiff failed to file administrative appeals for two of his FOIA requests, his complaint is dismissed as to those two requests.
• Procedural: As to plaintiff's request to defendant NSA for "statements regarding whether brainwave technology exists," as well as for answers to related questions, NSA was not required to respond. The FOIA "does not obligate agencies to create . . . documents."
• Adequacy of search: Defendants' affidavits are sufficient to show that they each conducted adequate, good faith searches. Plaintiff's "speculative claim that other documents regarding alleged brainwave surveillance exist is insufficient."
• Exemptions 1 & 3/Glomar: Defendant NSA properly refused to confirm or deny whether plaintiff is a subject of NSA surveillance. This information is classified. Furthermore, "confirmation or denial that a particular individual has been or is the target of NSA surveillance efforts is precluded by statute," specifically 50 U.S.C. § 403-1(i)(I).
• Exemptions 6 & 7(C): Defendant FBI properly withheld the name of a Special Agent as well as the name and phone number of an FBI support employee. "Release of such identifying information could subject the Agent and the employee to harassment," and plaintiff "has not articulated any public interest whatsoever that would be served by disclosure."
WEEK OF MARCH 9
1. Stonehill v. IRS, No. 08-5060, 2009 WL 564617 (D.C. Cir. Mar. 6, 2009) (Rogers, J.)
Re: Records related to raid on plaintiff's decedent's office in Philippines
• Litigation considerations/waiver of exemptions: The district court correctly ruled that defendant did not waive the right to claim Exemption 5 privileges in plaintiff's FOIA action by not claiming similar privileges in a related discovery action involving the same documents. Though agencies are generally required to invoke all FOIA exemptions at the same time in the original district court proceedings, "[t]he FOIA disclosure regime . . . is distinct from civil discovery." For one thing, "while information disclosed during discovery is limited to the parties and can be subject to protective orders against further disclosure, when a document must be disclosed under FOIA, it must be disclosed to the general public and the identity of the requester is irrelevant." Furthermore, "not all documents available in discovery are also available pursuant to FOIA." As a result, "[t]he fact . . . that certain FOIA exemptions overlap with grounds for nondisclosure in discovery does not require extending the equitable FOIA waiver rule even when the discovery proceedings and FOIA litigation are contemporaneous and involve the same documents and parties and equally applicable privileges." Contrary to plaintiff's claims, "extension of the FOIA waiver rule to discovery proceedings would not advance the policy interest in finality and judicial economy." Separate reviews for discovery and FOIA would not be avoided by extending the FOIA waiver rule to discovery. This is true in part because "some FOIA exemptions are not applicable to discovery," thus agencies may still be forced to conduct independent reviews of documents for discovery and FOIA purposes. Additionally, "the stakes of disclosure are different in the two regimes, justifying and arguably necessitating separate reviews with distinct considerations in mind during each." Adopting plaintiff's rule might needlessly delay certain proceedings, as agencies would be forced to consider whether they would need to claim certain privileges in a discovery dispute even where they would not be applicable in order to preserve them in case of FOIA litigation. Finally, the waiver rule itself "is not rigidly applied[;] . . . the court sometimes excuses apparent waivers based on extraordinary circumstances."
1. Jones v. DOJ, No. 06-461, 2009 WL 595604 (D.D.C. Mar. 10, 2009) (Urbina, J.)
Re: Records pertaining to criminal investigation of plaintiff
• Adequacy of search: Plaintiff's challenges to defendant ATF's search are not well-founded. ATF has explained why it would be unlikely to have records concerning a drug investigation of plaintiff. Furthermore, ATF is not required to search databases belonging to other agencies.
• Litigation considerations: Defendants were not required to file an answer to plaintiff's complaint before filing their motion for summary judgment. "Indeed, it is standard practice in FOIA cases for the defendant to file a motion for summary judgment instead of filing a responsive pleading." Additionally, defendants did not default by not responding to plaintiff's motion for summary judgment, which was filed before defendants were served, since the court denied plaintiff's motion and did not order defendants to respond.
2. Banks v. Lappin, No. 07-0309, 2009 WL 596464 (D.D.C. Mar. 9, 2009) (Sullivan, J.)
Re: First-party requests
• Exhaustion: Defendants have established that they have no record of having received requests from plaintiff. Therefore, he has not exhausted his administrative remedies.
3. Speight v. BOP, No. 07-0481, 2009 WL 559511 (D.D.C. Mar. 5, 2009) (Lamberth, J.)
Re: First-party request
• Exemptions 2, 7(C), 7(D), 7(E), & 7(F): Upon in camera review of the withheld documents, and based upon defendant's declarations and Vaughn index, the court finds that "defendant has properly released all responsive and segregable information that it is obligated by law to release."
4. Herrick v. U.S. Customs & Border Prot., No. 08-0035, 2009 WL 559700 (D.D.C. Mar. 4, 2009) (Robertson, J.)
Re: Request for names and addresses of individuals from whom defendant seized currency in ten cases
• Exemption 7(C): Defendant properly withheld the addresses of individuals whose names it released. The Supreme Court and the D.C. Circuit have applied categorical protection to third party information in law enforcement files. Moreover, "[t]he addresses plaintiff seeks reveal nothing about Customs or what it is up to. Customs is not alleged to be connected to any possibly illegal activity." Thus, there is no public interest in disclosure that would outweigh the privacy interests at stake.
5. Clark v. EOUSA, No. 05-0091, 2009 WL 546216 (D.D.C. Mar. 4, 2009) (Robertson, J.)
Re: Records pertaining to plea negotiations on plaintiff's case
• Adequacy of search: Defendant EOUSA performed an adequate search even though plaintiff claimed a proposed plea agreement referenced in a letter was not located. "[N]either adequate affidavits nor adequate searches can be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" Plaintiff has not shown that defendant failed to search for responsive records in "'particular offices or files where the document might well have been found.'" Furthermore, "'[w]hen a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return.'"
• Exemption 5: Defendant's declaration establishes "that the handwritten notes and plea agreement were prepared in anticipation of litigation and consist entirely of work product."
WEEK OF MARCH 16
1. Coleman v. Lappin, No. 06-2255, 2009 WL 692161 (D.D.C. Mar. 18, 2009) (Collyer, J.)
Re: Request for records on former BOP employee
• Exemption 2 (low): BOP properly withheld internal agency fax and telephone numbers. Such information is "routinely" withheld under Exemption 2.
• Exemption 5 (deliberative process privilege): BOP's "declarant does not identify the record or page on which [the deliberative material] appeared, and the Court cannot readily determine whether the information properly is withheld." Defendant's motion for summary judgment is therefore denied without prejudice as to the record or page withheld under this exemption.
• Exemption 6: BOP properly withheld the identities of and information concerning BOP staff members and BOP inmates. "[T]here is no public interest to outweigh the individuals' privacy interests."
• Exemption 7 (threshold): Records created as part of an investigation into allegations of misconduct against a BOP employee qualify as law enforcement records.
• Exemptions 6 & 7(C), 7(E), & 7(F): BOP failed to justify its use of these exemptions. Its declaration did not "describe the information withheld and show that the information falls within the claimed exemptions." Defendant is directed to file a renewed motion.
2. Federal Cure (FedCURE) v. Lappin, No. 07-843, 2009 WL 692159 (D.D.C. Mar. 18, 2009) (Walton, J.)
Re: Records concerning use of ion spectrometer scanning at BOP facilities
• Fee waiver: It is uncontested that the requested information concerns an identifiable operation or activity of the government, and that plaintiff lacks a commercial interest in the information. Plaintiff "analyzes and synthesizes technical information" for its on-line discussion group, and has shown that it will disseminate the requested information "'to a sufficiently broad audience'" of those interested in the subject. The fact that plaintiff does not distribute printed materials is not a bar to its claim, and its "website, [online] newsletter and chat room are an adequate means of disseminating information." Furthermore, plaintiff's "stature as the largest advocacy group for federal inmates . . . lends credence to its position that a substantial number of individuals have and will continue to access its newsletters, chat room services and daily news updates." Finally, given the limited amount of information concerning ion spectrometry currently available, "any dissemination of information regarding the BOP's use of [it] will enhance the public's understanding of the technology."
3. Moore v. United States, No. 08-223, 2009 WL 691120 (D.D.C. Mar. 17, 2009) (Sullivan, J.)
Re: Transcripts of phone calls made by plaintiff
• Waiver: Plaintiff claims that BOP must release transcripts "similar" to those disclosed at his criminal trial, but which were not actually disclosed. However, "[b]ecause there is no permanent public record of the information [plaintiff] seeks, the exemption is still effective if the agency can show, as it has here, that the material falls within the statutory exemption." Furthermore, "it is irrelevant that the records could have been publicly disclosed sometime in the past, because they were not, in fact, publicly disclosed."
• Exemption 7(C): Plaintiff has not identified a public interest in release of the records. Instead, his interest is a purely personal one, namely, challenging his conviction. Such an interest "is irrelevant to the FOIA."
4. Sellers v. IRS, No. 08-553-AC, 2009 WL 700647 (D. Or. Mar. 17, 2009) (Acosta, Mag. J.)
Re: Records pertaining to tax policies of Northern Mariana Islands
• Adequacy of search: Defendant's declarant "describes a thorough search process aimed at the likely locations for the documents [plaintiff] requested, and which engaged the appropriate agency personnel to confirm whether or not the documents were available, all of which was 'reasonably calculated to uncover all relevant documents.'"
• Exemption 3: The IRS properly applied this exemption and 26 U.S.C. § 6103 to withhold records which discussed or pertained to third-party tax returns. The IRS also appropriately utilized Exemption 3 and 26 U.S.C. § 6105 to withhold tax convention information exchanged between an IRS employee and "'her counterpart in [the Northern Mariana Islands].'"
• Exemption 5 (deliberative process, attorney-client, and attorney work-product privileges): The IRS properly withheld documents reflecting deliberations among federal agency personnel concerning changes to an IRS publication as well as memoranda regarding tax issues pertaining to residents of the Northern Mariana Islands. The IRS's Vaughn index also indicates that the withheld documents were reviewed in order to ensure that only deliberative portions were withheld. The IRS also properly used the attorney-client privilege "to protect communications between government attorneys and other government agencies, i.e. clients." Finally, the IRS's use of the attorney work-product privilege to protect discussions of certain claims where the "IRS believes there is a reasonable likelihood litigation will result" was proper.
• Exemption 6: The IRS properly withheld the last four digits of employee telephone numbers as well as the name of a "low-level [Social Security Administration] employee." This sort of information is "typically found in a personnel file . . . and add[s] no illumination to the governmental decision-making process. Thus, the balance between the privacy interests of individuals and the public interest involved rests firmly on the side of non-disclosure."
• Exemption 7(C): The IRS properly withheld the identity of an individual as well as the identity of this individual's attorney, "compiled in connection with the investigation of a civil claim filed by" that taxpayer.
5. Citizens for Responsibility & Ethics in Washington v. DOJ, No. 05-2078, 2009 WL 649699 (D.D.C. Mar. 16, 2009) (Sullivan, J.)
Re: Records related to reduction of monetary-penalty requests against the tobacco industry
• Fee waiver: The court finds that "[f]ee-waiver requests are evaluated based on the face of the request, not on the possibility of eventual exemption from disclosure. . . . Exceptions to this standard of review are made only where information is 'patently exempt' on the face of the request. . . . Because the requested information was not patently exempt from disclosure, [plaintiff's] request should have been evaluated on its face." The court further finds that the "failure to do so was improper, as it based its rejection of [plaintiff's fee waiver] request on the likelihood of later exemptions, a factor not controlling under the terms of FOIA." Under this standard, plaintiff's request for a fee waiver should have been granted. "The Court . . . is not persuaded that 'disclosure' in the statute speaks to anything other than a necessary assessment of whether or not the request seeks documents that, if disclosed, would be in the public interest." Though prior cases have ruled that fee waivers may be denied where the requested records were "patently exempt" from disclosure, these cases "demonstrate that the patently exempt standard sets a high bar for denial of a fee waiver." Furthermore, "basing eligibility for a fee waiver on likely exemption from disclosure would improperly invert the burden of proof, putting the burden on the plaintiff to prove the validity of its request for documents when that burden should rest with the agency." The court further finds that "the public value of the information sought by [plaintiff] was stated with enough specificity to qualify for a fee waiver." Plaintiff's reference to news reports questioning the propriety of DOJ's actions shows that it "did more than make 'bare allegations of malfeasance.'" Furthermore, "[g]iven that much of the government's case rests on the privileged nature of the requested documents, it is clear to the Court that this information is not publicly available[,] . . . [and] given the scale and public nature of the tobacco litigation, the Court is persuaded that the significance of any additional information is likely to be high, regardless of whether the documents uncover any wrongdoing."
6. Haralson v. Stoverink, No. 09-00056, 2009 WL 690123 (E.D. Mo. Mar. 10, 2009) (Hamilton, J.)
Re: Request for plaintiff's military records
• Proper party defendant: The federal FOIA only applies to the actions of federal agencies. As plaintiff only named individual federal employees as defendants, and as these individuals are not "agencies," plaintiff's complaint is dismissed without prejudice.
7. Keys v. DHS, No. 08-0726, 2009 WL 614755 (D.D.C. Mar. 10, 2009) (adoption of magistrate's recommendation) (Huvelle, J.)
Re: First and third-party requests
• Litigation considerations: As to the portion of plaintiff's complaint that relates to his 2003 FOIA request, his claim is barred by claim preclusion. Plaintiff previously brought suit with regard to that request, and judgment was granted to defendants. His current claim based on that request is identical to the prior one.
Exhaustion: With regard to plaintiff's 2004 and 2007 FOIA requests, plaintiff's claims are dismissed for failure to exhaust administrative remedies. With regard to one request, plaintiff did not reasonably describe the records sought when he failed to identify which of the more than 100 district offices he wished to have searched. With regard to both requests, he failed to file an administrative appeal.
8. Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 604886 (D. Me. Mar. 4, 2009) (Woodcock, C.J.)
Re: Records relating to approval of gas leases
• Litigation considerations: Plaintiff is entitled to relief from judgment under Federal Rule of Civil Procedure 60(b)(5). The Court's prior ruling has been reversed by the First Circuit "based for the most part on the BIA's change in position." Plaintiff is also entitled to relief under Rule 60(b)(2) in light of the discovery, several years after the request, lawsuit, and appeal, of additional responsive documents. "If known, this information would necessarily have had a significant impact on the adequacy of the BIA's document search and whether the BIA's lack of complete disclosure represents a pattern and practice of delayed and partial disclosure." The court will not reach plaintiff's motion for relief under Rule 60(b)(6) because this "catchall provision " only comes into effect where relief is not available under the first five clauses of Rule 60(b), and plaintiff has already obtained relief under clauses 2 and 5.
WEEK OF MARCH 23
1. The Cornucopia Institute v. USDA, No. 07-1912, 2009 WL 776460 (7th Cir. Mar. 26, 2009) (Kanne, J.)
Re: Records pertaining to pasture guidance and pasture rules for organic dairy cows
• Litigation considerations: The district court did not err when it ruled that plaintiff's claim was mooted by virtue of USDA having released all requested documents while the suit was pending. "It is well established that the federal courts have no authority to rule where the case or controversy has been rendered moot." Plaintiff has not shown that a declaratory judgment in its favor would affect it.
• Attorney fees: The district court's ruling that plaintiff was not eligible for attorney fees was not premature, even though it had not yet filed a motion for fees, since plaintiff moved for summary judgment "'on the issue that it is a prevailing party,'" and the district court ruled that plaintiff was not, in fact, a prevailing party. The court will not reach the question of whether the OPEN Government Act's alteration of the standard for fees eligibility should apply retroactively, because plaintiff has waived the argument.
1. Ramstack v. Dep't of the Army, No. 08-0658, 2009 WL 756976 (D.D.C. Mar. 24, 2009) (Urbina, J.)
Re: First-party request
• Proper party defendant: Because the FOIA only applies to federal agencies, plaintiff's complaint is dismissed as to several named individuals as well as to several subdivisions of defendant U.S. Army. Plaintiff's complaint is also dismissed as to two defendants to whom plaintiff has failed to allege that he made a request.
• Exhaustion: Plaintiff failed to exhaust his administrative remedies as to defendants Department of State and CIA for some of his requests by failing to provide proper certification of his identity and by failing to provide these agencies with additional information concerning him that they required. However, as to other of plaintiff's requests, these defendants have not provided sufficient information for the court to determine whether or not plaintiff exhausted his administrative remedies.
• Adequacy of search: Defendants CIA and Army conducted proper searches for records as to certain of plaintiff's requests. Their declarations demonstrate both that they searched the databases most likely to contain responsive records and that there was nothing in plaintiff's requests that would have required an expansion of their searches. However, the court denies without prejudice Army's motion for summary judgment on certain claims where the Army provided plaintiff with the contact information for the National Personnel Records Center, but did not explain how it had "adequately responded" to the requests.
2. Durrani v. DOJ, No. 08-0609, 2009 WL 755219 (D.D.C. Mar. 24, 2009) (Kollar-Kotelly, J.)
Re: First-party request and request for records pertaining to export licenses
• Adequacy of search: The court finds that all defendants conducted reasonable searches for responsive documents.
• Exemption 2 (low and high): Defendant Immigration and Customs Enforcement (ICE) properly withheld, inter alia, telephone numbers, internal codes, and a custody receipt under "low" 2. Similarly, defendant Customs and Border Protection (CBP) properly withheld internal administrative markings under "low" 2. ICE also appropriately withheld as "high" 2 certain internal codes that "'serve a dual purpose,'" because they reflect coordination of investigative efforts with other agencies. Disclosure of these codes "'would reveal investigative procedures [and] the scope of investigations,'" thereby interfering with the agency's enforcement efforts. Defendant CBP properly withheld, inter alia, records pertaining to its "'examination and inspection procedures.'" Release of this information "could 'permit potential [lawbreakers] . . . to develop countermeasures to evade detection."
• Exemption 3: Defendant State Department properly applied this exemption and 8 U.S.C. § 1202(f) to withhold portions of documents pertaining to determinations on whether to grant or refuse a visa or permit to enter the United States, although State did not show that it had conducted a sufficient segregability review of these documents. Likewise, further justification is needed regarding segregation for information concerning export license applications, which are covered by 22 U.S.C. § 2778(e).
• Exemption 5 (attorney work-product, deliberative process, and attorney-client privileges): Defendant EOUSA properly withheld under the attorney work-product privilege a draft indictment, draft prosecutorial memorandum, and handwritten notes, all written by attorneys, as well as communications between attorneys concerning plaintiff's criminal case. Defendant State Department properly withheld a draft document concerning "potential testimony by a Department employee" in plaintiff's criminal trial (which never took place). State also appropriately withheld deliberative communications concerning export licenses, but must release portions of documents that post-dated the government's decision not to prosecute plaintiff. Defendant CBP properly withheld a handwritten note which reflected the substance of a conversation between government employees and contained internal deliberations and also discussed legal advice sought from an assistant United States Attorney.
• Exemption 7(A): The court finds that defendant ICE has not "provide[d] a sufficient basis for withholding records under exemption 7(A)." ICE has failed to "identify a pending or potential law enforcement proceeding or provide sufficient facts from which the likelihood of such a proceeding may be reasonably inferred." Furthermore, ICE "has not correlated this exemption with the applicable withheld portions [of the documents]."
• Exemption 7(C): Defendant U.S. Marshals Service appropriately withheld the names of law enforcement officers. Plaintiff has raised no challenge to these withholdings. Defendant ICE also properly withheld the names and identifying information of law enforcement officers and other personnel, plaintiff's "unsubstantiated and conclusory assertions" of government misconduct are not sufficient "to trigger the balancing requirement."
• Exemption 7(E): Defendant ICE properly applied this exemption to withhold "'surveillance' techniques 'not known to the subject or potential subject(s) of the ongoing investigation.'"
3. Davis v. DOJ, No. 88-0130, 2009 WL 755192 (D.D.C. Mar. 24, 2009) (Kennedy, J.) (overturning magistrate's recommendation and denying motion for attorney fees)
Re: Audiotapes from criminal investigation
• Attorney fees: While the general rule is to apply the law as it stands at the time a judgment is rendered, there is an exception to this rule when, as with attorney fees awards, it involves a waiver of sovereign immunity by the federal government. In such circumstances, "'the rule of strict construction requires . . . the statute . . . to be construed no more broadly than is required by its terms.'" Retroactivity will not apply in cases where the government is the defendant "absent a showing of Congressional intent."
4. Banks v. DOJ, No. 06-1950, 2009 WL 737498 (D.D.C. Mar. 23, 2009) (Sullivan, J.)
Re: First and third-party requests
• Exhaustion/Fees/Fee Waiver: The fact that plaintiff was granted in forma pauperis status with regard to the filing fee for the instant case has no bearing on his obligation to pay fees under the FOIA. Furthermore, there is no record of plaintiff having requested a fee waiver from the FBI, but even had he made such a request he has failed to show any public interest in release of the requested records. Plaintiff's only asserted interest is in challenging his criminal conviction, which is a "private interest." Plaintiff's failure to pay duplication fees constitutes failure to exhaust administrative remedies as to defendant FBI.
• Adequacy of search: Defendant BOP's declarations establish that it conducted a reasonable search for records responsive to plaintiff's requests. Defendant USPIS does not make clear whether it treated plaintiff's three requests as related or not. Furthermore, USPIS has not established that it conducted a reasonable search for records responsive to plaintiff's first request.
• Exemptions 5, 6, & 7(C): Because BOP has not made any explanation of its withholdings under these exemptions, the court cannot rule on the legitimacy of its withholdings.
5. Allard K. Lowenstein Int'l Human Rights Project v. DHS, No. 06-1889, 2009 WL 763620 (D. Conn. Mar. 20, 2009) (Kravitz, J.)
Re: Records pertaining to immigration enforcement program, "Operation Frontline"
• Litigation considerations: "[M]any of the descriptions of the [withheld] documents are so vague and general that they are of little, or no, use to Plaintiffs or this Court." Additionally, DHS's latest declaration "is still not sufficiently detailed to permit Plaintiffs to make responsible arguments regarding disclosure or the Court to make a reasoned decision concerning whether each document was properly withheld." Nevertheless, the court conducted in camera review and so was able to reach a determination on defendant's withholdings.
• Exemption 1: Upon in camera review, the court determines that this exemption was applied correctly. "The [withheld] documents refer to sources of intelligence, recite specific information received from those sources, include a matrix of specifically-identified tasks along with the dates for completion of those tasks, and describe the specific manner in which intelligence gathered during the operation will be used." Additionally, even if some of the information contained within these documents is not classified, it would be covered by Exemptions 2 and 7(E).
• Exemptions 2 (high) & 7(E): Some of DHS's withholdings were proper under these two exemptions. However, certain information must be released, as release would not disclose confidential investigative techniques or risk circumvention of the law. For example, DHS must disclose certain bulleted headings on documents, the names of other agencies with which it coordinated on Operation Frontline, the names of two past enforcement initiatives, and a description of Operation Frontline itself. DHS properly withheld a reference to a specific database "used as a lookout," as well as "specific information about sources for DHS leads," but must release portions of a document containing information that "is sufficiently general in nature and relates to other information that has already been disclosed." DHS properly withheld information indicating what criteria the agency used to prioritize its cases, as well as how many cases were in each category. References to press coverage of Operation Frontline must be disclosed.
6. The James Madison Project v. CIA, No. 07-1154, 2009 WL 712486 (D.D.C. Mar. 19, 2009) (Urbina, J.)
Re: Internal CIA regulations on several different issues
• Adequacy of search: CIA's search was reasonable. Its declaration establishes that it searched the one records system in which it maintains records responsive to plaintiff's request. Additionally, "the court is not persuaded by the plaintiff's contention that the fact that various statutes require the promulgation of internal CIA regulations not produced in response to the plaintiff's request 'reveals a positive indication of overlooked materials,'" as plaintiff has not shown that these additional documents, even if they exist, would be responsive to its request.
• Exemption 1: CIA's use of this exemption, including its reliance on the "mosaic" theory, was proper. CIA "has satisfied its burden of offering a 'plausible assertion' that the information withheld was properly classified. . . . And the court in turn defers to the defendant's 'facially reasonable concerns' regarding the damage that disclosure of the withheld documents would cause to national security."
• Exemption 2 (low & high): Defendant properly invoked "high" 2 to withhold internal security policies and procedures relating to CIA employees and foreign nationals. The CIA "has described with adequate specificity how disclosure of its security policies and procedures would create the risk that those policies could be circumvented." Defendant has also properly used "low" 2. Its declaration "specif[ies] that the documents withheld have only internal application and do 'not purport to regulate the public's activities or set standards CIA personnel must follow when deciding whether to proceed against or take action affecting members of the public.'"
• Exemption 3: The CIA properly invoked this exemption, along with the National Security Act, 50 U.S.C. § 403-1(i)(1), and the CIA Act, 50 U.S.C. § 403g, to withhold information whose release would disclose intelligence methods. "Applying the 'special deference owed to agency affidavits on national security matters,' the court determines that the [CIA's] declaration adequately demonstrates that the internal CIA documents withheld contain information that would risk disclosing the defendant's intelligence methods."
7. Schoenman v. FBI, No. 04-2202, 2009 U.S. Dist. LEXIS 22060 (D.D.C. Mar. 19, 2009) (Kollar-Kotelly, J.)
Re: First and third-party requests
• Litigation considerations: Plaintiff's Statement of Material Facts is "largely inadequate." This document is based primarily on statements he makes in his declarations, but these declarations "do not provide an indication as to how Plaintiff has personal knowledge of such facts." Additionally, many of his statements of "fact" are instead legal arguments, which cannot be taken as uncontroverted. Furthermore, many of the alleged facts in plaintiff's statement are immaterial to the matter at hand, even if they could be shown to be true. Plaintiff's motion for discovery is denied, as he has not raised a sufficient question as to the CIA's good faith.
• Adequacy of search: The CIA's decision to limit its search to two directorates was reasonable. It "has explained in a reasonably detailed and nonconclusory manner that it determined, based on the respective functions of each directorate, that only the [two directorates searched] were likely to contain responsive material." Plaintiff's mere speculation that he was of sufficient interest to the CIA that records exist in additional locations is insufficient to rebut the CIA's detailed, nonconclusory explanation of its search decisions. However, the CIA has not provided a sufficiently detailed explanation of its search methodology for the areas in which it did search. CIA's declaration "fails to include sufficient reasonable detail as to the specific search conducted in response to Plaintiff's FOIA/PA request." Plaintiff challenged the adequacy of the CIA's search by noting that he requested search slips "'used in searching his request,'" but did not receive any. Plaintiff has not provided any evidence to rebut the CIA's claim that no search slips would have been created until after the completion of its search, which would have been after the cut-off date for processing his request (i.e., the date the search was initiated). Plaintiff has notice of that cut-off date. "More importantly, this Court previously concluded that Plaintiff's request for search records is inconsistent with Supreme Court precedent holding that the FOIA 'does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created or retained. . . .' In asking the CIA to provide him with documentation that may or may not exist but which, in any event, was created during the course of searching for records responsive to Plaintiff's FOIA/PA request, Plaintiff essentially seeks to have the CIA create or retain such documents. The Court again declines to condone such a request." However, the CIA must "provide an explanation for its failure to provide 'index references' to Plaintiff, as requested."
• Exemption 1: "The CIA has provided a reasonably detailed and nonconclusory description of both its procedural and substantive compliance with [Executive Order] 12,958 in determining that material . . . should be withheld." CIA's declarant also provided "a significantly detailed explanation demonstrating that the materials at issue substantively fall within one or more of five categories within the scope of the Executive Order." In the court's view, "Plaintiff's arguments for declassification 'do not overcome the "substantial weight" the court must accord "to an agency's affidavit concerning the details of the classified status of the disputed records."'" The CIA has established that the records in question fall under two of the exceptions to Executive Order 12,958's automatic declassification provision. Plaintiff has not established that the withheld records are "substantially similar" to records previously released by the CIA. Moreover, "the CIA may have a genuine interest in protecting the confidentiality of its intelligence sources, regardless of . . . the amount of time that has passed and whether the source is alive or dead." Thus, the Court agrees "that the need to assure the appearance of confidentiality is so essential that [the CIA] may protect the identity of intelligence sources from disclosure even after they are deceased, inactive, or indeed, made public through other means." Finally, plaintiff's claim that the documents in question were improperly classified fails. He has not provided any specific information to call into question the CIA's classification determinations.
• Exemption 3: The CIA properly applied the National Security Act, 50 U.S.C. § 403-1(i)(1), to withhold information whose release would disclose intelligence sources and methods, and the CIA Act, 50 U.S.C. § 403g to withhold agency functions and the identities of CIA employees. Plaintiff's assertion that the CIA's definition of "intelligence methods" is "too broad" is unfounded. Furthermore, CIA is not restricted to protecting information concerning unknown intelligence methods.
• Segregability: "[T]he Court agrees with the CIA that it makes little sense to require it to spend time and resources redacting entire documents in order to provide Plaintiff with his name, dates he has already been provided, and the basic letterhead or formatting of the document." The CIA's segregability determination was "based on its reasonable, and non-conclusory conclusion that the 'fragmented' and 'isolated' occurrences of non-exempt material in the documents at issue are so 'inextricably intertwined with the exempt information' that the non-exempt material could not be reasonably segregated."
8. Blanck v. FBI, No. 07-0276, 2009 WL 728456 (E.D. Wis. Mar. 17, 2009) (Adelman, J.)
Re: First-party request
• Litigation considerations: The court accepts defendant's Vaughn index, which includes a sample of approximately ten percent of the responsive documents. The FBI has averred "that the sample includes each of the various types of documents within the file, all categories of exemptions used and the entire date range of the records." Plaintiff's motion for appointment of counsel is denied. He has not shown what, if any, efforts he has made to secure outside counsel on his own. Furthermore, he "has been competent enough to bring his case this far."
• Adequacy of search: "Plaintiff raises no genuine issue of material fact with regard to the adequacy of the search for documents. . . . [H]e is dissatisfied with the FOIA search and release of documents because it failed to yield certain information he seeks. . . . Yet the fact that the defendant's search failed to turn up the document(s) does not render the search inadequate." Plaintiff has not rebutted the FBI's showing that it conducted a reasonable, good faith search for responsive records.
• Exemptions 2, 3, 6, 7(A), 7(C), & 7(D): The court has "reviewed the representative sample of the responsive documents and conclude[s] de novo that the FBI correctly applied the FOIA exemptions when it redacted and withheld certain pages from the disclosure."
WEEK OF MARCH 30
1. Zanoni v. USDA, No. 08-939, 2009 WL 840753 (D.D.C. Mar. 31, 2009) (Sullivan, J.)
Re: Records pertaining to registrants with the Animal Plant Health Inspection Service (APHIS)
• Procedural: Although the Food, Conservation and Energy Act of 2008 (FCEA), 7 U.S.C. § 8791(b)(2)(A) was enacted after plaintiff made her request, it is appropriate for the court to consider it in making its ruling on USDA's actions. "[T]he general rule is that the applicable law in a case is the law in effect at the time the court makes its decision."
• Adequacy of search/waiver: Plaintiff has not challenged the adequacy of USDA's search. The court finds, nonetheless, that "her FOIA request in this area appears to have been satisfied."
• Exemption 3: FCEA qualifies as an Exemption 3 statute. It "prohibits disclosure and gives little discretion to the agency as to how the provision should be applied." The information plaintiff requested, contact information for registrants in the National Premises Information Repository, clearly qualifies as information concerning "agricultural operation." Thus, it is covered by the nondisclosure provision of FCEA and was appropriately withheld by USDA.
2. Schoenman v. FBI, No. 04-2202, 2009 WL 881060 (D.D.C. Mar. 31, 2009) (Kollar-Kotelly, J.)
Re: First and third-party requests
• Fee waiver: "The Court agrees with Plaintiff . . . that a requester's FOIA request 'should be evaluated based on the face of the request and the reasons given by the request[e]r in support of the waiver,' not on the possibility that the records may ultimately be determined to be exempt from disclosure." Additionally, "the Court concludes that the FBI improperly determined that certain records" did not qualify for a fee waiver because they were "repetitive" of previously disclosed material. Similarly, the fact that some of the released material contains only "administrative information" does not preclude a fee waiver. As to material which originates outside the government, the "Court is persuaded that, in this instance, information targeted and collected by the FBI as part of its investigations into the 'peace/anti-war movement of the 1960's' . . . can provide insight" into FBI operations. Finally, the fact that some of the materials are duplicative of materials previously released to plaintiff is not a basis for denial of a fee waiver.
• Adequacy of search: Plaintiff has not challenged the reasonableness of the FBI's search. Thus, the FBI's motion for summary judgment as to its search is taken as conceded.
• Litigation considerations: The FBI's Vaughn index is inadequate. The parties agreed that the FBI would prepare a Vaughn index consisting of a sample of the responsive documents, but it is not possible to tell from what the FBI submitted whether all of the sample documents have been included in the index. Furthermore, the declarations accompanying the FBI's submission "provide no functional description of the materials withheld." The index itself "does not uniformly provide sufficient contextual information about the material withheld." The FBI has also acknowledged that some of its initial processing was done incorrectly, without providing any details about these mistakes. While there was some genuine confusion among the parties about which documents plaintiff intended to have included in the sample index, it was the FBI's responsibility to resolve these problems. The court is also "troubled" by the fact that months after the initial briefing was completed, the FBI is now releasing additional documents as well as referring documents to other agencies for processing. Finally, given that the Vaughn index "is spread out over five separate filings," an additional, "piecemeal" supplement by the FBI is "simply unacceptable." Instead, the FBI will be required to provide a single, comprehensive index. In light of this, the court denies without prejudice plaintiff's motion that the FBI be required to reprocess all responsive documents as well as both parties' motions as they relate to the FBI's use of exemptions. In its new index, the FBI should be prepared to explain the prior errors in processing, its efforts to ascertain whether individuals mentioned in the responsive records are dead or alive, whether the responsive documents qualify as law enforcement records, and provide a complete accounting of all referrals.
3. Kenney v. DOJ, No. 07-1989, 2009 WL 807433 (D.D.C. Mar. 30, 2009) (Friedman, J.)
Re: Records concerning criminal case against plaintiff and co-defendants
• Procedural: Defendant EOUSA did not act inappropriately when it asked plaintiff to clarify his request, and when it processed the request based upon its reasonable interpretation of plaintiff's clarification. EOUSA's interpretation of plaintiff's clarification "appears to the Court to have been made in good faith." Conversely, "[p]laintiff's challenge to the EOUSA's interpretation of the term 'investigative records' appears to be little more than the expression of his wish that he had not narrowed his request so substantially." The records plaintiff now complains were not processed clearly "fall outside the scope of his appropriately narrowed request." Furthermore, given that plaintiff's narrowed request was limited to records on himself as well as several deceased individuals, he cannot now challenge EOUSA's rejection of several waivers plaintiff claims to have obtained from living third parties. EOUSA also appropriately referred documents originating with the FBI to that component for processing.
• Exhaustion: As plaintiff did not administratively appeal EOUSA's decision to refer documents to the FBI, he did not exhaust his administrative remedies on that issue. Thus, he cannot challenge this action in court.
• Litigation considerations: Plaintiff does not have a right to relief under the Administrative Procedure Act (APA). Though plaintiff claims that he seeks exculpatory material that should have been provided to him at his criminal trial, the APA only affords him relief "where 'there is no other adequate remedy in a court.'" As plaintiff has an avenue for relief under the FOIA, he cannot sustain a claim under the APA.
4. Concepcion v. FBI, No. 07-1766, 2009 WL 794484 (D.D.C. Mar. 27, 2009) (Urbina, J.)
Re: Records related to criminal investigation of plaintiff
• Adequacy of search: "On this record, the court concludes that the methods by which FBI and EOUSA staff searched for responsive records were reasonable under the circumstances. The plaintiff's speculation as to the existence of additional records, absent support for his allegations of agency bad faith, does not render the searches inadequate." Though "the plaintiff may have received records that he did not request," this was a not unreasonable response to the "steady stream of repetitive FOIA requests" made by plaintiff as well as to the instant civil action.
• Exemption 2 (low & high): The FBI appropriately withheld Special Agent telephone numbers as "low" 2 material. "Such telephone numbers are merely tools used by FBI personnel in performing their duties," and "release of these numbers 'would impede the FBI's effectiveness by subjecting the FBI employees . . . to the possibility of harassment.'" Similarly, EOUSA properly utilized "low" 2 to withhold phone numbers of agency employees. The FBI's use of "low" 2 to withhold source symbol numbers and informant file numbers was proper. In both cases, there is no public interest in release of this sort of information. Defendant Customs and Border Protection (CBP) used "low" 2 to withhold internal administrative markings which are "of little or no interest to the public," and whose release "'could facilitate improper access to . . . sensitive records.'" Under "high" 2, EOUSA properly withheld investigative forms which detailed "the specific manner in which the government was to conduct its investigation" of plaintiff and his co-conspirators. EOUSA's declaration "establishes that release of these investigation forms may risk circumvention of the law."
• Exemption 3: The FBI properly withheld certain matters pertaining to the grand jury investigation that resulted in the indictment of plaintiff in his criminal case, including the names of (and personal information concerning) individuals who testified before the grand jury as well as property items seized during the government's investigation of plaintiff. Defendant EOUSA properly withheld confidential conflict of interest certification forms. Under the Ethics in Government Act of 1978, 5 U.S.C. App. 4 § 107(a)(1), agencies are barred from disclosing such documents.
• Exemption 5 (deliberative process and attorney work-product privileges): The FBI failed to establish that a draft affidavit was deliberative, but will be allowed to file a renewed motion on this issue. EOUSA demonstrated that materials it withheld under the attorney work-product privilege, including a letter from an AUSA discussing contemplated litigation, drafts prepared for the criminal case against plaintiff, a prosecution memorandum, and other litigation materials were prepared by an attorney in anticipation of litigation, and were therefore properly withheld.
• Exemption 6: Defendants EOUSA and CBP properly withheld names and identifying information (including Social Security numbers) concerning several individuals, including an alleged co-conspirator as well as government employees. There is no public interest in release of this information.
• Exemption 7 (threshold): Defendants FBI and EOUSA demonstrated that the records withheld under Exemption 7 were compiled for law enforcement purposes, namely the criminal investigation of plaintiff.
• Exemption 7(C): Defendants FBI, EOUSA, and DEA properly withheld names and identifying information concerning their own personnel. The FBI also appropriately withheld identifying information of local law enforcement agents who assisted the FBI in its investigation of plaintiff. Defendants FBI and EOUSA also withheld information concerning third parties of investigative interest as well as information pertaining to third parties merely mentioned in plaintiff's file. These "decisions to withhold . . . are fully supported by the case law."
• Exemption 7(D): The FBI's declaration establishes that its sources provided information under an implied grant of confidentiality, both because the information was in some cases "singular in nature" and because its release would likely disclose the sources' identities, possibly resulting in "'violent reprisals.'" "Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality." The FBI also appropriately withheld a source symbol number. Such numbers are assigned to confidential sources who have been given express grants of confidentiality.
• Exemption 7(E): The FBI properly withheld information which rates the effectiveness of certain publicly known investigative techniques. Additionally, the FBI properly withheld records which would disclose certain other "techniques and procedures for conducting investigations and undercover operations" which "'could jeopardize any future criminal investigations.'"
5. County of Santa Cruz v. Ctrs. for Medicare & Medicaid Servs., No. 07-2889, 2009 WL 816633 (N.D. Cal. Mar. 26, 2009) (Chesney, J.)
Re: Records related to defendant's physician fee schedule system
• Exhaustion: Plaintiff's failure to pay the full amount of search fees it owed related to one of its requests for records constitutes failure to exhaust administrative remedies as to that request.
• Proper party defendant: Defendant "has failed to show it is an improper party to the instant action. Although [Centers for Medicare and Medicaid Services (CMS)] notes it is part of the Department of Health and Human Services, CMS has failed to demonstrate it is not an 'establishment in the executive branch of the government.'"
• Adequacy of search: Defendant's declarations "fail to sufficiently describe 'what records were searched, by whom, and through what process.'" Additionally, the declarations do not "describe the filing systems employed by any of the CMS components whose records assertedly were searched." Defendant will be afforded the opportunity to submit additional filings on this issue.
• Exemptions 4 & 5: Plaintiff has not challenged defendant's use of these exemptions to withhold portions of the responsive records. Thus, defendant is granted summary judgment as to its use of exemptions.
6. Prison Legal News v. Lappin, No. 05-1812, 2009 WL 792225 (D.D.C. Mar. 26, 2009) (Walton, J.)
Re: Records showing money paid by Bureau of Prisons for lawsuits and claims against it between 1996 and 2003.
• Litigation considerations/adequacy of search: Defendant's declarant does not "indicate how he is personally aware of the search procedures or that he knows they were followed by each of the Bureau's entities tasked with responding to [plaintiff's] request." Because the agency "bears the burden of demonstrating that its search for records was adequate, the court cannot presume personal knowledge by the affiant." Defendant correctly asserts that it was not required to provide plaintiff with documents which may once have existed in its files but which since have been destroyed. However, the court lacks sufficient basis to determine that defendant conducted an adequate search. Defendant must either undertake a new search or supplement its declaration to demonstrate to the court that the search already conducted was adequate.
• Exemptions (misc.): Defendant has not provided the court with an affidavit which establishes that its use of exemptions to withhold documents was proper. Defendant may submit new affidavits following remand to the agency.
7. James Madison Project v. CIA, No. 07-1382, 2009 WL 780228 (D.D.C. Mar. 26, 2009) (Urbina, J.)
Re: Records pertaining to operation of CIA's Publications Review Board (PRB)
• Adequacy of search: "The court determines that the defendant's explanation of its rationale demonstrates that the searches were reasonably calculated to discover the requested documents." Plaintiff's challenges to the CIA's search "misconstrue the [CIA's] burden." The CIA "need not show that it has 'actually uncovered every document extant.'" Rather, it need only show that its search was reasonable.
• Exemption 1: "'[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified. . . .' By asserting that the defendant must elaborate on what 'insights into the CIA's past activities and clandestine operations' disclosure of the memorandum would provide . . . as well as articulate 'the extent to which the [memorandum] identifies "specific CIA classified sources . . ."' the plaintiff . . . misapprehends the defendant's burden. . . . The defendant need only 'describe with reasonable specificity the material withheld and demonstrate that it has specifically tailored its description of the harm likely to result from release to each particular redaction.'"
• Exemption 2 (low & high): The CIA properly withheld, as "high" 2 material, an internal handbook used by its internal publication reviewers. "The court agrees with the defendant that an individual who sought to publish classified information could better circumvent the PRB if he or she knew the procedures by which the PRB made its decisions." Additionally, defendant properly withheld as "low" 2 material certain internal records, including employee telephone and fax numbers, names and/or numbers of internal CIA regulations, employee bulletins, and other internal policies and procedures. "The defendant has persuaded the court that the information withheld . . . [is] of no genuine public interest."
• Exemption 3: Defendant properly relied on the National Security Act, 50 U.S.C. § 403-1(i)(1), and the CIA Act, 50 U.S.C. § 403g, to withhold documents whose release would reveal CIA sources and methods, as well as organizational functions and employee names. "Bearing in mind its obligation to give 'substantial weight and deference' to the [CIA's] declaration, the court determines that all of the information withheld falls within the scope of the National Security Act and the CIA Act."
• Exemption 5 (deliberative process and attorney work-product privileges): As to two of the documents withheld by the CIA pursuant to the deliberative process privilege, the agency did not identify to the court the role played by the author of these two documents, and thus the court cannot determine this individual's decisionmaking authority or the relationship between this individual and the recipients of the documents. Thus, the CIA has not met its burden as to these two documents. The CIA properly applied the attorney work-product privilege to two documents that concern its compliance with a timeline prescribed by the PRB as well as the method by which the PRB reviews factual material in fictional manuscripts. "Because the legal advice contained in the documents covered documents that the defendant has frequently litigated, the court determines that litigation on these topics was reasonably foreseeable when the documents were created, even though no specific claim was contemplated at the time."
8. Schied v. Daughtrey, No. 08-14944, 2009 WL 818095 (E.D. Mich. Mar. 25, 2009) (Zatkoff, J.)
Re: First-party requests
• Exhaustion: Plaintiff failed to provide the identifying information requested of him by the FBI and failed to exhaust his administrative remedies. As a result, the court lacks jurisdiction over his FOIA claim.
9. Mangham v. Shinseki, No. 07-1338, 2009 WL 799541 (Vet. App. Mar. 25, 2009) (Lance, J.) (unpublished disposition)
Re: Request for Root Cause Analysis of incident investigated by Veterans Administration
• Litigation considerations: The Court of Veterans Appeals has no jurisdiction to review the agency's denial of plaintiff's FOIA request.
10. Jackson v. Ferrell, No. 09-00025, 2009 U.S. Dist. LEXIS 24893 (E.D. Mo. Mar. 25, 2009) (Webber, J.)
Re: Records relating to plaintiff's criminal trial
• Proper party defendant: Defendant, a prosecutor, is not an "agency," and is therefore not a proper defendant in a FOIA action.
• Litigation considerations: The Clerk of the Court will not issue service of process on the complaint because it is legally frivolous and fails to state a claim.
11. Carroll v. Dep't of the Navy, No. 09-0077, 2009 WL 792293 (D.D.C. Mar. 24, 2009) (Walton, J.)
• Litigation considerations: As a prisoner who has filed at least three prior cases dismissed as frivolous, plaintiff is not eligible for in forma pauperis status. Though there is an exception for prisoners who can show that they are "'under imminent danger of serious physical injury,'" plaintiff has not made a showing to this effect.
12. Carroll v. FBI, No. 09-0076, 2009 U.S. Dist. LEXIS 25487 (D.D.C. Mar. 24, 2009) (Walton, J.)
• Litigation considerations: As a prisoner who has filed at least three prior cases dismissed as frivolous, plaintiff is not eligible for in forma pauperis status. Though there is an exception for prisoners who can show that they are "'under imminent danger of serious physical injury,"' plaintiff has not made a showing to this effect.
13. Ebersole v. DHS, No. 08-2166, 2009 WL 792271 (D. Md. Mar. 20, 2009) (Blake, J.)
Re: Records pertaining to storage and removal of explosives
• Adequacy of search: As to the one part of defendant's response to plaintiff that remains in dispute, DHS failed to provide "an affidavit stating the search terms and the type of search performed, and alleging that all files likely to contain responsive materials (if such records exist) were searched. Thus, respondents have not established that they are entitled to summary judgment." DHS will be given an opportunity to supplement the record in order to fix this defect.
14. Rougeau v. FBI, No. 07-0912, 2009 WL 773262 (W.D. La. Mar. 20, 2009) (Drell, J.) (adoption of magistrate's recommendation)
Re: Records pertaining to investigation of complaint filed by plaintiff
• Exemptions 2, 6, & 7(C): The FBI correctly applied exemptions except as to one paragraph of one document, which can be released to plaintiff "without implicating FBI internal rules and regulations or invading the privacy of the FBI agents and employees or anyone else." This paragraph provides plaintiff with information he seeks about the conduct of the FBI related to his complaint. (posted 4/20/2009)
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