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


Summaries of New Decisions -- May 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 May 2010.


1. Ctr. for Sustainable Economy v. U.S. Dep't of the Treasury, No. 09-00848 (D.N.M. May 5, 2010) (Kelly, J.)



Re: Records pertaining to government programs in support of the domestic auto industry

• Litigation considerations: The court finds that plaintiff's action is moot. Defendant has already conceded that attempting to require a fee agreement from plaintiff before adjudicating plaintiff's fee waiver request was an incorrect application of defendant's regulations. Furthermore, defendant "has taken corrective measures to avoid the error in this case and others," so plaintiff's cause of action does not qualify as "capable of repetition, yet evading review." The court further finds that "[t]he corrective action taken by the Defendant is adequate to meet its burden," and is "unpersuaded" that defendant's "prior practice will recur."

2. Reunion, Inc. v. FAA, No. 09-269, 2010 WL 1759562 (S.D. Miss. May 3, 2010) (Lee, J.)

Re: Records pertaining to lease agreement

• Litigation considerations: Defendant has not shown that plaintiff's claim is moot. Thus, plaintiff's motion for partial summary judgment is granted, and defendant is ordered to produce the documents requested by plaintiff.

• Attorney fees: Plaintiff has made no showing that it is entitled to an award of attorney fees, thus its motion for an award of fees is denied.

3. Pugh v. Nat'l Pers. Record Ctr., No. 10-584, 2010 U.S. Dist. LEXIS 42864 (E.D. Mo. May 3, 2010) (Sippel, J.)

Re: First-party request

• Proper party defendant: "The National Personnel Record Center is not an 'agency' under [the FOIA]; it is merely a repository of personnel-related records."

4. Tibbs v. Sebelius, No. 09-773, 2010 U.S. Dist. LEXIS 42464 (S.D. Ohio Apr. 30, 2010) (Marbley, J.)

Re: Records pertaining to the number of mechanical ventilators in U.S. hospitals

• Proper party defendant: Defendant Sebelius is not an "agency" under the FOIA, and therefore a FOIA action cannot be maintained against her.

• Exhaustion: Even if the court did not dismiss plaintiff's FOIA action for failure to name a proper party defendant, his claim would be dismissed for failure to exhaust his administrative remedies. There is no record of plaintiff having filed an administrative appeal of HHS's initial response to his FOIA request.


1. Houghton v. NSA, No. 09-4440, 2010 WL 1784058 (3rd Cir. May 5, 2010) (unpublished disposition) (per curiam)



Re: First-party request

• Exemption 1: The court finds that NSA properly determined that revealing whether it has investigative records pertaining to plaintiff "could reveal information about intelligence activities, sources and methods, including intelligence targeting, priorities, and capabilities," and thus the existence of such information was properly classified.

• Exemption 3: Pursuant to the NSA Act of 1959, defendant "cannot be compelled to disclose information regarding [its] organization, functions, or activities." Thus, defendant properly invoked Exemption 3 to refuse to confirm or deny the existence of the requested records.

1. Brown v. EEOC, No. 09-111, 2010 U.S. Dist. LEXIS 46466 (W.D. Ky. May 12, 2010) (McKinley, J.)

Re: Request for plaintiff's EEOC charge file

• Exemption 5 (deliberative process privilege): EEOC properly withheld documents which contain an EEOC employee's "preliminary opinions, analysis, and recommendations about the strength of Plaintiff's [employment discrimination] charge and the possibility of achieving resolution of the charge." The court finds that the withheld material is "clearly predecisional and relate[s] to the EEOC's internal decisionmaking process. Disclosure of this information would reveal an EEOC staff member's analysis and could have a chilling effect on the agency's discussions of such matters and undermine the agency's ability to perform its duties."

2. Quinto v. DOJ, No. 09-2068, 2010 WL 1882164 (D.D.C. May 11, 2010) (Huvelle, J.)

Re: Records pertaining to plaintiff's security designation within the federal prison system

• Exemption 7 (threshold): "The records at issue here - communications to the BOP from the U.S. Attorney's office regarding an inmate's placement within the network of institutions under BOP control - are clearly related to the enforcement of federal laws. . . . There is a direct relationship between the BOP's duty to ensure the safety of inmates, staff, and the community and its professional decisions as to where and how to house inmates."

• Exemption 7(C): Defendant BOP properly invoked Exemption 7(C) to withhold the identities of individuals who "have a substantial interest in maintaining their anonymity. Moreover, the Court discerns no public interest in the release of [this information] to plaintiff." Plaintiff wrongly claims that release of this information would shed light on defendant's security policies. "The process by which the BOP calculates an inmate's security level . . . is publicly available. . . . To the extent that plaintiff argues that the documents he seeks may reveal that the BOP has improperly calculated his own [security status], plaintiff's 'bare suspicion' that the BOP has acted improperly in the performance of its duties is insufficient to overcome the privacy interests in these documents."

• Exemption 7(F): "The Court agrees with [defendant] that release of the documents sought by plaintiff could result in the identification of third parties, including the source(s) of the information in the documents and could lead to retaliation against those individuals. . . . And based on its review of the documents, the Court concludes that there is a sufficient nexus between their disclosure and possible harm to these third parties. As such, the Court sustains defendant's Exemption 7(F) claim."

3. Davis v. DOD, No. 07-492, 2010 WL 1837925 (W.D.N.C. May 6, 2010) (Conrad, C.J.)

Re: Records pertaining to deceased Guantanamo detainee Mane Shaman al-Habardi

• Adequacy of search: The court finds that defendant has not provided an adequate description of the searches it undertook for responsive records. In particular, the declarations submitted by DOD do not "make clear whether the particular locations searched are the only places where responsive information is likely to be located," or whether there might be additional databases that should have been searched. DOD is ordered to provide "more detailed and adequate declarations regarding [its] searches."

The court disagrees with plaintiff's claim that defendant should not have limited its search for documents that included the decedent's name or identification number. "Plaintiff ignores . . . that it would be extremely difficult, if not impossible, to locate all items 'related in any way' to [the decedent]. To suggest that [DOD] should have searched for information pertaining to [the decedent] that did not contain either his name or [identification] number is unreasonable."

Vaughn Index: DOD "should correct" a minor error in its Vaughn index and disclose the missing pages to plaintiff.

• Exemption 2 (high): "DOD has sufficiently explained why the (b)(2) high exemption applies. DOD has articulated that the manner in which hunger strikers are secured during involuntary feedings is a non-medical, security procedure. It argues that any more detailed explanation shedding light on the procedure would risk revealing the information that the exemption was intended to protect. It further contends that disclosure of this information would risk circumvention of those procedures by detainees and threaten the safety of the personnel and detainees involved. The Court accepts this argument, especially in light of the importance of deference to the Executive regarding an issue that bears upon national security." Plaintiff's claim that DOD "has failed to index or account for some information that it withheld regarding the method for securing patients," amounts to "no more than an unsubstantiated conclusion."

However, "DOD has not provided the Court with enough information to determine whether, under the three-part test for official acknowledgment, it officially acknowledged [previously] the information that it withheld from Plaintiff regarding securing patients." DOD is ordered to provide these documents for in camera review in order for the court to determine whether these methods for securing hunger strikers have been previously disclosed.

4. Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.)

Re: First-party request and request for BOP Program Statements

• Adequacy of search: "Plaintiff's general criticism of the search fails to cast any doubt on defendant's evidence demonstrating an adequate search."

• Litigation considerations: Though defendant's response to one of plaintiff's requests may not have been timely, once the release is made "'federal courts have no further statutory function to perform.'"

• Exhaustion: Because the administrative appeal of one of plaintiff's requests resulted in a remand to BOP for further processing, "the Court will enter judgment for defendant on this claim without prejudice to plaintiff's filing either a new civil action or a motion to reopen this action after he has exhausted his administrative remedies."

• Exemptions 2 & 7(F): The court finds that BOP has not provided sufficient information to justify its use of these two exemptions. BOP's declaration "has not adequately described the redacted information and explained the possible harm in disclosure." BOP is ordered to provide the withheld material for in camera review.

• Exemption 7(C): BOP properly withheld the name of another inmate pursuant to this Exemption.


1. Penny v. DOJ, No. 08-1666, 2010 WL 1980811 (D.D.C. May 19, 2010) (Urbina, J.)

Re: First and third-party requests; requests for records on certain real property

• Adequacy of search: The court finds that defendant's supplemental declaration demonstrates that its declarant had sufficient knowledge of the search performed by DEA to attest to its adequacy. The court further finds that "defendant has demonstrated that it performed an adequate search for responsive records." By contrast, "plaintiff . . . has failed to raise any specific evidence calling into question the reasonableness of the defendant's search efforts. . . ."

2. Penny v. DOJ, No. 08-1667, 2010 WL 1980808 (D.D.C. May 19, 2010) (Urbina, J.)

Re: First and third-party requests; requests for records on certain real property

• Adequacy of search: Defendant's declaration establishes that it has now conducted an adequate search for responsive records. Plaintiff's challenges to defendant's search are not sufficient to create a genuine issue of material fact on this point.

3. Am. Fed'n of Gov't Employees, Local 812 v. Broad. Bd. of Governors, No. 09-1191, 2010 WL 1976747 (D.D.C. May 18, 2010) (Huvelle, J.)

Re: First-party request; request for information concerning building access policies

• Adequacy of search: "[T]he Court rejects plaintiffs' arguments that defendant's failure to produce any documents until after litigation commenced is evidence of bad faith or an inadequate search." The court also rejects one plaintiff's claim that BBG misread or mischaracterized the request in order to avoid disclosing documents. Similarly, plaintiffs' challenges to the searches conducted by various BBG and contract employees are unfounded, as is a challenge by one of the plaintiffs to the search terms used by BBG. Additionally, the fact that defendant located responsive records "in an unspecified location does not, on its own, suggest that [certain] searches were inadequate."

There is, however, reason to believe that one of the BBG searches may not have been carried out correctly. Similarly, there is nothing in the records to indicate that the paper records of certain BBG officials were searched. "The agency's determination that it was worthwhile to search those individuals' digital files was reason enough to suggest that their paper files might also contain responsive documents." Finally, the court finds that BBG should have searched the files of an office at the agency with responsibility for access procedures for retired employees. BBG will be required to fix these deficiencies in its searches.

• Agency record: The record indicates "that the FBI did not intend to relinquish control over [records it provided to the BBG] or to permit the BBG to use and dispose of the file as it sees fit. The BBG therefore lacks 'control' of the FBI file, and defendant is therefore not obligated to produce it as an 'agency record.'"

• Exemption 2 (high): BBG appropriately withheld "'its internal security operating instructions, including instructions BBG security guards are given regarding appropriate security procedure." If such material were disclosed, it would risk circumvention of the agency's security procedures.

• Exemption 5 (deliberative process & attorney-client privileges): BBG properly asserted these privileges to withhold documents that reflect internal deliberations concerning the request of one of the plaintiffs for access to BBG facilities.

• Exemption 6: No challenge was raised to defendant's use of this exemption to protect the identity of a third party. Defendant has asserted that there is no public interest in release of this information.

4. Pickering-George v. Alcohol Tobacco Tax & Trade Bureau, No. 10-753, 2010 WL 1962667 (D.D.C. May 17, 2010) (Walton, J.)

Re: Firearms licensing

• Litigation considerations: Plaintiff does not appear to have made a request for records under the FOIA, but instead seems interested in obtaining a firearms license. As such, he has failed to state a claim upon which relief may be granted.

5. Lewis v. SSA, No. 09-319, 2010 WL 1936220 (S.D. Ind. May 13, 2010) (Lawrence, J.)

Re: First-party request

• Litigation considerations: Plaintiff's complaint is moot, as defendant has responded by disclosing the requested documents. Plaintiff's argument that there are additional responsive documents "is the result of the imprecise language of his FOIA request itself, not the result of the SSA's failure to respond to the request," and it is now past the point at which plaintiff can modify his request.

6. Melvin v. SSA, No. 09-CV-235, 2010 U.S. Dist. LEXIS 47998 (E.D.N.C. May 13, 2010) (Flanagan, C.J.)

Re: First-party request

• Litigation considerations: Under SSA's Privacy Act regulations, plaintiff was required to designate a third party to receive and review her medical records with her. Plaintiff's failure to do so constitutes a failure to exhaust administrative remedies as to that aspect of her request. To the extent that plaintiff's request includes other records not subject to this requirement, she may proceed with her FOIA claim, though it may also be subject to dismissal at a later date.


1. Lazaridis v. DOJ, No. 09-1177, 2010 WL 2093405 (D.D.C. May 26, 2010) (Collyer, J.)

Re: First-party request; request for records on plaintiff's minor daughter

• Jurisdiction: Plaintiff lacks standing to bring a claim on behalf of his daughter because he is not an attorney or her duly appointed representative. Thus, the court lacks jurisdiction over the claims regarding plaintiff's daughter.

• Proper party defendant: The National Center for Missing and Exploited Children and the International Center for Missing and Exploited Children are not federal agencies subject to the FOIA. Neither of these organizations "exericse[s] independent governmental authority."

• Litigation considerations: DOJ's motion to dismiss plaintiff's claim under the Fugitive Disentitlement Doctrine is denied. The court finds that "DOJ has not established the requisite connection between [plaintiff's] fugitive status and these proceedings," a requirement for application of this doctrine. "Moreover, because FOIA decisions typically turn on the sufficiency of the government's declarations, DOJ would be hard-pressed to assert prejudice based solely on [plaintiff's] absence from this jurisdiction."

2. In re Walker, No. 05-759, 2010 U.S. Dist. LEXIS 50747 (D.S.C. May 21, 2010) (Anderson, J.)

Re: First-party request

• Proper party defendant: A federal court is not an "agency" subject to the FOIA.

3. Kintzi v. Office of the Att'y Gen., No. 08-5830, 2010 WL 2025515 (D. Minn. May 20, 2010) (Doty, J.)

Re: Records pertaining to standards of care in VA hospital for diabetic foot ulcers

• Adequacy of search: "No evidence before the court indicates that the document [plaintiff] seeks exists. Therefore, the court determines that the DVA conducted a reasonable search and properly denied [plaintiff's] request."

4. FPL Group, Inc. v. IRS, No. 09-652 (D.D.C. May 14, 2010) (Huvelle, J.)

Re: Documents pertaining to IRS determinations on tax deductions claimed by plaintiff

• Exemption 5 (deliberative process privilege)/Litigation considerations: Upon in camera review, the court determines that defendant's use of this privilege was appropriate. Plaintiff wrongly claims that defendant may not assert the deliberative process privilege for the first time, having only asserted the attorney work-product privilege previously. Though an agency may not invoke an exemption for the first time after a ruling in a plaintiff's favor, the agency is not invoking Exemption 5 for the first time here, it simply "articulated an additional basis for asserting [it]." Furthermore, the court's prior order, requiring additional submissions by defendant and in camera review by the court "was not a ruling in plaintiff's favor. A denial of a defendant's motion for summary judgment is not 'tantamount to a ruling in [the plaintiff's] favor,' especially where the plaintiff's own motion for summary judgment is not granted." (posted 06/21/2010)

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Updated December 6, 2022