FOIA Post (2010): Summaries of New Decisions -- June 2010

July 15, 2010

Summaries of New Decisions -- June 2010

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 June 2010.


1. Vento v. IRS, No. 09-289, 2010 WL 2181312 (D.D.C. June 2, 2010) (Facciola, Mag. J.)

Re: First-party requests

• Adequacy of search: The request by the IRS for more time to complete its processing of plaintiffs' requests did not alter the cut-off date for processing the request. "That the IRS needed more time to process the request and suggested that it would finish by a certain date did not somehow retroactively amend plaintiffs' request so that it should be deemed to include documents created after the date of the request, June 6, 2007, but before the date IRS proposed as the day it hoped to finish, April 10, 2008." IRS's use of a "date of request" cut off date is proper given that its search began within five days. As to the databases searched by the IRS, "[t]he presence of other IRS employees at interviews in 2008, after the date of the request, does not in itself provide any evidence that those or other employees would have documents that were created prior to the cut-off date." Mere "speculati[on] about the existence of other documents does not rebut the presumption of good faith accorded to affidavits submitted by the agency."

• Exemption 5 (attorney-client, attorney work-product, & deliberative process privileges): IRS withheld documents that "are clearly communications to or by an attorney and relate to advice on the legal ramifications of agency action." "Plaintiffs also argue that factual information should be segregated and disclosed. . . . On this point, plaintiff is incorrect. Factual information provided by the client to the attorney is the essence of the privilege." For one document, IRS appears to have claimed this privilege inadvertently, when it should have claimed another exemption; IRS is ordered to submit further briefing to the court on this document.

The court further finds that IRS properly withheld under the attorney work-product privilege (and Exemption 7(E)) a memorandum which "provid[es] litigation guidelines for enforcing IRS summonses." Disclosure of this document "'could provide parties who do not wish to comply with the summons with information they could use to fight or otherwise circumvent the summons.'"

Plaintiffs claim that defendant improperly invoked the deliberative process privilege, speculating that some of the withheld documents contain agency working law, and are therefore not predecisional. However, the court "cannot find that the exemption was improperly [applied] on mere speculation."

• Exemption 7 (threshold): "The documents related to the examination, or audit, of the plaintiff's tax liability are most certainly 'law enforcement records' under this exemption. Plaintiffs' assertion that a distinction should be drawn between civil and criminal enforcement of the Internal Revenue Code is incorrect. . . . To create the narrower exemption that plaintiffs want, premised on the popular use of the words 'law enforcement' to mean police agencies, amends the statute and imputes to Congress an irrational intention to distinguish between the manner in which various agencies enforce law."

• Exemption 7(C): IRS properly invoked this exemption to withhold personal information pertaining to "third party witnesses not directly involved with the examination of the plaintiff's tax liability." Plaintiffs "cannot claim that the disclosure of the identifying information the IRS deleted would advance any public interest," as they "seek this information to benefit themselves as private litigants." Disclosure "would not provide the public with information about agency action." Plaintiffs claim that there is a public interest in demonstrating that defendant acted improperly by withholding the requested documents, but their "argument is tautological and misconceives the [Supreme Court's] ruling in [Favish]." Plaintiffs' claim "that the IRS should disclose the documents to them in order to prove that they did not improperly withhold the documents goes completely against the process of review provided in FOIA. In addition, the improper withholding of requested documents is not the type of government 'impropriety' to which the interest of privacy yields."

• Segregability: The IRS is ordered to explain to the court why it withheld the names of the sender and recipient of emails it withheld, and why this information could not be reasonably segregated out and released.

2. Feinman v. FBI, No. 09-2047, 2010 WL 2102326 (D.D.C. May 26, 2010) (Huvelle, J.)

Re: Requests for records concerning investigations and capture of Manuel Noriega and Fawaz Younis

• Litigation considerations: Plaintiff's claim under the Administrative Procedures Act is dismissed. "This Court and others have uniformly declined jurisdiction over APA claims that sought remedies made available by FOIA." Plaintiff claims that the court should hold differently because he invokes the APA not to challenge defendants' substantive determination on his FOIA requests, but to challenge defendants' "'procedural policies that authorize making that substantive determination.' . . . This distinction is unpersuasive. Because FOIA 'imposes no limits on courts' equitable powers in enforcing its terms,' . . . the Court finds that if [plaintiff] were to prevail on Counts Two and Five, the statutory and equitable remedies available to him under FOIA would provide the same relief from the alleged policies as would the APA." Furthermore, "within the context of Counts Two and Five, [plaintiff] can also challenge the validity of defendants' policies of categorically refusing to search for documents, without resort to the APA."

3. Brooks v. Legislative Bill Room, No. 10-00379, 2010 WL 2106475 (E.D. Cal. May 25, 2010) (Newman, Mag. J.)

Re: Request for copies of certain California Senate and Assembly bills

• Proper party defendant: The federal FOIA does not apply to state agencies.


1. Zavala v. DEA, No. 09-5357, 2010 U.S. App. LEXIS 11582 (D.C. Cir. June 7, 2010) (Per curiam)

Re: First-party request

• Litigation considerations: Plaintiff's motion for appointment of counsel is denied where he has failed to demonstrate "sufficient likelihood of success on the merits."

• Adequacy of search: The adequacy of an agency's search "depends on the methods used, not on the records revealed or not revealed" and, accordingly, is not undermined by "an agency's failure to turn up a particular document."

Vaughn index: "By way of the agency's declaration and Vaughn index, appellee has demonstrated 'beyond material doubt' that its search was reasonably calculated to uncover all relevant documents under the Freedom of Information Act." Additionally, "appellant's unsupported contentions" did not call into question the agency's claims of exemption.

2. Isasi v. Office of the Att'y Gen., No. 09-5122, 2010 U.S. App. LEXIS 11409 (D.C. Cir. June 2, 2010) (Per curiam)

Re: First-party request; request for information related to his extradition proceedings

• Litigation considerations: The district court properly dismissed appellant's claim for damages against individual federal employees "because no Bivens-type remedy is available for an alleged FOIA violation." Moreover, "[t]he FOIA claim against the agency was properly dismissed as moot, because the two pages appellant had requested were subsequently released to him in their entirety."

1. Citizens for Responsibility & Ethics in Wash. v. NARA, No. 07-0048, 2010 WL 2265036 (D.D.C. June 7, 2010) (Walton, J.)

Re: Request for documents related to retention and disposition of White House Workers and Visitors Entrance System (WAVES) records

• Exemption 5 (attorney work-product and deliberative-process privileges): Based upon an in camera review, the court determines that NARA properly asserted the attorney work-product privilege to withhold certain pages in full because the documents "appear to have been prepared in anticipation of litigation, and as discussed in the Court's earlier opinion, the defendant's anticipation that litigation would occur was reasonable." The court declines to decide whether those pages had also been properly withheld under deliberative process privilege. Additionally, after conducting in camera inspection of one page for which only the deliberative process privilege was invoked, the court concludes that the supplemental declaration resolved its concern that the defendant's initial Vaughn index was unclear as to "whether the document was 'drafted by [the defendant] in formulating policy' and 'what role the document[ ] played in the administrative process.'" With respect to an additional page withheld in part, the court finds that NARA properly asserted the deliberative-process privilege where "the initial declaration indicated that the document was deliberative" and now the "additional declaration indicates that it is predecisional as well."

2. Smith v. Delaney, No. 10-0919, 2010 WL 2266359 (D.D.C. June 4, 2010) (Huvelle, J.)

Re: Request for a writ of mandamus to compel the Clerk of the Superior Court of the District of Columbia to process his FOIA request

• Jurisdiction: The court dismisses plaintiff's complaint because it's "mandamus powers extend only to 'officer[s] and employee[s] of the United States" and, additionally, "the Superior Court is not subject to the federal FOIA, which applies only to executive-branch agencies of the United States."

3. Saldana v. BOP, No. 08-1963, 2010 WL 2245696 (D.D.C. June 4, 2010) (Bates, J.)

Re: First-party request

• Adequacy of search: The court finds that the supplemental declarations submitted by the FBI and USMS establish that the searches conducted during the course of litigation were adequate. "Even if [plaintiff's] claims were not moot at the time he filed the complaint, then they have since become moot by the FBI's additional searching, processing, and release of the records." Similarly, USMS's provided sufficient details regarding a later search at the Federal Records Center to render plaintiff's claims of an inadequate search moot.

4. Ruston v. BOP, No. 10-0917, 2010 WL 2266065 (D.D.C. June 3, 2010) (Huvelle, J.)

Re: First-party request

• Jurisdiction: The court dismisses plaintiff's complaint where he failed to demonstrate that he had submitted a "Certification of Identity" in connection with his first party request. "Because plaintiff failed to submit a proper FOIA request, no improper withholding has occurred regarding the subject request."

5. Calvert v. U.S., No. 08-1659, 2010 WL 2198224 (D.D.C. June 3, 2010) (Urbina, J.)

Re: Request for samples of an FBI Special Agent's signature

• Adequacy of search: The court dismisses plaintiff's argument that the delay in producing responsive records "renders the search inherently adequate." Accordingly, the court finds that defendant's eventual release of four-pages of records containing a Special Agent's signature renders plaintiff's FOIA claim moot. Additionally, plaintiff did not contest the redactions made by the FBI pursuant to Exemption 6.

• Attorney fees/costs: The court holds that "plaintiff, a pro se litigant who is not an attorney, cannot recover attorney's fees." Additionally, the court finds that although plaintiff is eligible for costs given that the defendant released the records pursuant to the court's order, he is not entitled to costs because plaintiff sought the records for personal reasons - namely, for "'the specific purpose'" of comparing the agent's signature "'with the signature that appears on [the criminal complaint]' sworn against him."

6. Tunchez v. DOJ, No. 09-473, 2010 WL 2202506 (D.D.C. June 3, 2010) (Kollar-Kotelly, J.)

Re: First-party request

• Procedural: "An agency cannot improperly withhold records if it did not receive a request for those records." Plaintiff provides no evidence of making a request and so fails to overcome the FBI's sworn statement that it has no record of the request.

• Adequacy of search: The court rejects plaintiff's arguments challenging the sufficiency of the search. Neither an agency's failure to locate a particular document, nor its delay in searching for responsive records after the requester files a lawsuit, demonstrates that a search is inadequate. Additionally, the court notes that "a FOIA requestor is not entitled to a search of files specified by the requestor, but rather to a search of files 'that are likely to turn up the information requested' . . . regardless of how many or how few records systems are searched and whether they were identified by the requestor." The court finds that based on the declarations submitted "the agencies have each conducted searches that were reasonably calculated to produce the information requested."

• Public domain: The court rejects plaintiff's unsupported claims that "'the information has been released into the public domain via judicial proceedings and media,'" because he "has not identified any specific information or 'the exact portions' of a specific document that is in fact 'preserved in the public domain.'"

• Exemption 7(E): Despite plaintiff's arguments to the contrary, the court finds that the FBI has adequately justified its assertion of Exemption 7(E). The FBI's declarations demonstrate that the withheld pages would "identify which among the 27 techniques and procedures listed on the documents were used in investigating [plaintiff] and the FBI's evaluation of those techniques and procedures" and that the disclosure of this information could aid other investigative targets in evading detection.


1. Surgick v. Cirella, No. 09-3807, 2010 U.S. Dist. LEXIS 59454 (D.N.J. June 15, 2010) (Hillman, J.)

Re: Request for tax records maintained by the IRS pertaining to a deceased individual

• Jurisdiction: The court dismisses without prejudice plaintiffs' claim that the IRS and other private defendants "violated their First Amendment rights to freedom of information and federal statutory law, specifically 26 U.S.C. § 6103(e)(3) and 'IRS Code 1729' and the Privacy Act." The court finds that "Section 6103 does not provide an independent, legally cognizable means to challenge the IRS's non-disclosure of tax information and that a person requesting such information and seeking enforcement must abide by the mechanisms prescribed by FOIA." The court further holds that because the "plaintiffs are acting pro se and have since [initiating the action] attempted to comply with FOIA," they may "amend and resubmit their complaint with regard to any claims they may have against the IRS under FOIA." Additionally, plaintiff's claim" under the Privacy Act or the FOIA against . . . a private corporation, fails as a matter of law."

2. Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2010 WL 2399991 (E.D.Va. June 14, 2010) (Cacheris, J.)

Re: Request for investigatory records related to client and to Unconventional Concepts, Inc.

• Litigation considerations: The court grants defendant's motions to vacate the scheduling order and stay the proceedings. The original issue before the court-"whether [defendant's] withholding of the requested documents under Exemption (7)(A) is unlawful is moot because Defendant agrees that '[w]ithin next two weeks, [it] will provide [Plaintiff] with' the documents that were previously withheld on the basis of Exemption (7)(A)." In consideration of defendant's concern that plaintiff might request production of an additional fourteen boxes of documents for which he has not yet agreed to pay, the court "finds that a stay is justified and appropriate to afford adequate time for both parties to release and review the requested documents."

3. Geiersbach v. Comm'r of the IRS, No. 10-0025, 2010 WL 2349098 (W.D.Mo. June 8, 2010) (Kays, J.)

Re: Request for mandamus relief requiring IRS to provide various tax assessment records

• Litigation considerations: The court dismisses plaintiff's complaint for mandamus relief against the IRS because the FOIA provides him with "an adequate remedy other than mandamus."


1. Lahr v. NTSB, No. 09-1283, 2010 U.S. Lexis 5143 (June 21, 2010)

Re: Request for records related to the explosion of TWA flight 800

• Litigation considerations: Denying petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. The court below reversed the decision of the district court to disclose names of eyewitnesses to the explosion, it affirmed the remainder of the district courts rulings with respect to defendants' search and exemption claims, and it remanded for reconsideration of plaintiff's award of attorneys' fees.

1. Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2010 WL 2532649 (D.D.C. June 24, 2010) (Bates, J.)

Re: Request for records pertaining to permit requests and supporting documentation for development on two islands in the Magothy River in Maryland

• Exemption 7(C)/public domain doctrine/waiver: The court finds that the agency can no longer redact the names of certain sources "'who provided information to the Corps that resulted in an enforcement action,'" where it had inadvertently released their names in its initial Vaughn index. "Although, the Corps may continue to withhold the sources' remaining personal contact information - for example, their home addresses, telephone numbers, and relation to the enforcement action - it must release their names."

• Exemption 7(D): The court finds that the agency cannot rely on Exemption 7(D) to protect information about sources, where "it fails to explain in any of its submissions how this exemption applies to the redacted information."

• Exemption 5 (attorney-client, attorney-client common interest and deliberative process privileges): The court finds that a document containing "an email exchange among Corps regulatory personnel, public affairs officers, and legal counsel that 'discusses guidelines regarding presenting the ongoing enforcement investigation to the press'" does not qualify for protection under the attorney-client privilege. The agency's submissions fail to establish "that the purported 'legal advice' was conveyed 'as part of a professional relationship in order to provide [the Corps] with advice on the legal ramifications of its actions'" or indicate that the "advice was kept confidential." The court also concludes that the attorney-client common interest privilege does not apply to records containing "privileged communications from [Maryland's] Anne Arundel County employees to their attorney that [were] then shared with Corps officials" because "the Corps has not shown that it has an attorney-client relationship with counsel from Anne Arundel County or the county itself." Additionally, the court is unable to assess the applicability of the deliberative process privilege because the agency's declaration "describes the discrete [regulatory enforcement] activities of the investigators and state officials, but fails to situate them in the 'give-and take' of the decisionmaking process" and, in fact, "does not explain the process at all." For example, the agency's submissions are not clear as to "whether an investigator's enforcement recommendations are ever incorporated into the Corps's final policy." Because the agency's third Vaughn index and supplemental affidavit were not sufficient to cure deficiencies in its prior submissions, the court "will require the Corps to disclose those records that have been withheld under the deliberative process privilege."

2. Kalwasinski v. BOP, No. 08-9593, 2010 WL 2541159 (S.D.N.Y. June 23, 2010) (Crotty, J.) (adopting magistrate's recommendation)

Re: Request for certain records related to requester's incarceration at the Metropolitan Corrections Center (MCC) in New York

• Adequacy of search: The court accepts the magistrate's conclusions that BOP's search was reasonable even though it did not initially locate responsive records. "While [BOP's] initial search was 'plainly insufficient,' MCC staff later remedied this deficiency by searching for and obtaining plaintiff's property form folder, which was provided in its entirety . . . [and plaintiff] failed to offer evidence to allege that [BOP's] search was inadequate or in bad faith."

• Exemptions 6 & 7(C): The court adopts the magistrate's findings that "prospective visitors had a privacy interest in the information that [BOP] withheld" and that any public interest in the release of the information was "minimal."

• Segregability: BOP "successfully established that it did not withhold any reasonably segregable non-exempt information" from the pages that were withheld in full and that "redactions of all exempt material . . . would leave only meaningless information."

3. Tamayo v. DOJ, 07-21299 (S.D.Fla. June 18, 2010) (Jordan, J.)

Re: Requests for records pertaining to a criminal investigation of a former government official

• Exemption 1: Acknowledging that the court must "'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record,'" the court finds that the FBI's declaration shows that it "followed the proper classification procedures." Based upon an in camera review, the court concludes that "the classified records at issue . . . 'logically fall within the claimed exemption' because there are reasonable grounds for expecting harm to national security" and that "disclosure would reveal the sources and methods applied in an investigation of a government official."

• Exemption 7(C): The court finds that the FBI properly invoked Exemption 7(C) to protect the "substantial" privacy interests of a government official who was the target of an investigation as well as other third parties. Despite the fact that the former government official pleaded guilty to a felony, he "retains a privacy interest in the records because disclosure could further damage his reputation by providing authoritative confirmation of the full scope of his wrongdoing." Additionally, his "role as a former official does not 'render [his] interest in preserving [his] personal privacy without weight.'" The court also finds that the privacy interests of other third parties mentioned in the records are "particularly strong because association with the 'material in question demonstrates or suggests they had at one time been subject to' or 'involved in a criminal investigation.'" Additionally, "documents that reveal the identities of law enforcement personnel are properly withheld because '[p]ublic identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.'" Conversely, the court finds that there is minimal public interest in "learning the full extent of the illegal conduct committed by one of its Government officials." Furthermore, the "disclosure would provide little relevant information about agency conduct."

• Exemption 6: The court holds that the Navy properly withheld personally identifying information pursuant to Exemption 6. As with its analysis of the withholdings under Exemption 7(C), the court finds that all of the third parties mentioned in the records "have a protected privacy interest" and that any public interest in disclosure is "minimal." The court rejects plaintiffs argument that they "do not need to submit any evidence" to show government negligence or malfeasance since the individual "is a 'responsible official' and his guilty plea indicates 'government impropriety.'" Instead, the court finds that the official's "guilty plea does not show that the FBI's investigation of his conduct or the DOJ prosecution was improper" and "plaintiffs do not allege (or set forth evidence) that [his] illegal conduct was taken in his capacity as a government official, or in furtherance of agency action, and therefore his guilty plea is not evidence that the Navy took any improper actions."

• Segregability: Because records withheld by the FBI pursuant to Exemption 1 "are properly classified, none of the classified information is segregable and subject to disclosure." The court also notes that none of the records withheld pursuant to Exemptions 6 and 7(C) "contain reasonably segregable portions subject to release."

Vaughn index: The court finds that plaintiffs have waived any claims for documents that were produced for in camera review, but were not described in the agencies' Vaughn index. ["P]laintiffs did not protest the fact that these documents were not on the Vaughn index" or "contest the government's assertion that they may not be subject to the FOIA request."

4. Benavides v. DEA, No. 10-0043, 2010 U.S. Dist. LEXIS 60937 (D.D.C. June 18, 2010) (Roberts, J.); Benavideas v. EOUSA, No. 10-0061, 2010 U.S. Dist. LEXIS 60938 (D.D.C. June 18, 2010) (Roberts, J.); Benavides v. BOP, No. 10-0062, 2010 U.S. Dist. LEXIS 60942 (D.D.C. June 18, 2010) (Roberts, J.)

Re: Requests for agency records

• Litigation considerations: The court denies plaintiff's application to proceed in forma pauperis in connection with three separate FOIA actions on the basis that he has "accumulated more than three strikes" under the Prison Litigation Reform Act and that he does not qualify for such status under the imminent danger exception.

5. Valfells v. CIA, No. 09-1363, 2010 WL 2428034 (D.D.C. June 17, 2010) (Collyer, J.)

Re: Request for records pertaining to deceased Icelandic citizen who spent time in the United States

• Exemptions 1 & 3 (Glomar)/waiver: "In this case, Plaintiffs do not challenge whether Exemptions 1 and 3 were legitimately raised nor do they dispute that a Glomar response is proper in cases where the fact of the existence or nonexistence of an agency record itself falls within a FOIA exemption." Instead, plaintiffs asserted that the CIA waived its ability to assert the Glomar response due to the fact that the FBI released a report containing "redactions of CIA-originating information made at the request of the CIA on the basis of Exemption 1." However, the court finds that plaintiffs' "[l]ogical deductions [about the source of the information] are not . . . official acknowledgments" and notes that, in fact, "[t]he CIA asked for redactions and thus attempted to avoid anything that could constitute an official acknowledgment, while the FBI, which has very different interests, was able to fulfill the goals of the FOIA and release most of the documents to Plaintiffs." The court contrasts the instant case with D.C. Circuit decision in Wolf v. CIA. In Wolf, "it was the Director of the CIA himself who divulged information before a Congressional committee," but, here, despite the fact that "responses to FOIA requests are also official to some degree, it cannot be said that an FBI response to a FOIA request constitutes an official action by the CIA." The court also notes that even if the FBI's disclosure of the report represented an "'official acknowledgment' by the CIA, as the CIA had the opportunity to review the report and request redactions, Plaintiffs would still be entitled to nothing more," and "the CIA would be required only to acknowledge the existence of information contained in the [report]."

• Segregability: The court concludes that the FBI's declaration "provides a 'detailed justification' and not just 'conclusory statements' to demonstrate that all reasonably segregable information has been released."

6. Monaghan v. DOJ, No. 09-2199, 2010 U.S. Dist. LEXIS 60310 (D.Nev. June 17, 2010) (Mahan, J.)

Re: Request for records related to terrorist attacks of September 11, 2001 and for a waiver of all search and duplication fees associated with that request

• Fee waiver: The court concludes that plaintiff is not entitled to a fee waiver because he fails to satisfy the first half of the two-prong fee waiver analysis - i.e., that "disclosure of the requested information is in the public interest because it is likely to contribute significantly to the public understanding of the operations and activities of the government." In considering the four factors related to the first prong, the court finds that plaintiff does not submit any evidence to support his contention that "his commentary on a sub-blog" within the "'9/11 Blogger' website demonstrate[s] his ability to disseminate information to the general public." Additionally, plaintiff fails to meet his burden to show that the requested disclosure will contribute to the public understanding because he does not explain "how the requested information will help to achieve [his stated] purpose" of "'settl[ing] the broad skepticism regarding American Airlines flight 77 and United Airlines flight 93.'" Since plaintiff does not satisfy the above-mentioned factors, he necessarily fails to show that the requested disclosure is "likely to contribute 'significantly' to the public understanding." (posted 07/15/2010)

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