FOIA Post (2011): Summaries of New Decisions -- January 2011

February 28, 2011
FOIA Post

Summaries of New Decisions -- January 2011

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 cases 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.

WEEK OF JANUARY 3

1.CareToLive v. FDA, No. 09-4084, 2011 WL 31416 (6th Cir. Jan. 6, 2011) (Martin, J.).

Re:  Request for letters written by medical experts regarding Provenge, an immunotherapy treatment for late stage prostate cancer

●  Adequacy of search:  The Sixth Circuit affirms the decision of the district court and concludes that the FDA's declarations establish that it has conducted an adequate search for responsive records.  The affidavits "describe how the FDA determined which offices and departments to search for responsive documents and identify the specific offices, departments, and places searched."  Additionally, the Sixth Circuit finds that the requester-appellant has failed to offer any evidence to rebut the FDA's showing that it conducted a good faith search and notes that "conclusory allegations that the FDA did not conduct a detailed search are insufficient to create a material question of fact precluding summary judgment." 

With respect to appellant's argument that the "search was inadequate because it took nearly two years to complete yet only turned up one document," the Sixth Circuit finds that the agency's delay in processing the request did not reflect bad faith, but rather was a product of the complexity of the instant request and the FDA's backlog of other pending requests.  The Sixth Circuit also concludes that the fact that on of the FDA's center's charged only forty cents for duplication costs and no search costs "is unexpected and unusual, it does not create a material question of fact regarding the adequacy of the FDA's search in light of the detailed affidavits it submitted."

The Sixth Circuit also determines that the FDA is not obligated to attempt to recover certain electronic files that had been deleted from an employee's computer, finding that "performing an invasive search for [such] documents is unnecessary in this case because the FDA maintains that other individuals were copied on these letters and it has, from these other sources, already delivered copies of these documents to [appellant] in response to its inquiry."  The Sixth Circuit indicates that its decision might have been different if the request had specifically asked for records maintained on the employee's computer which were not available through alternate means.  However, the Circuit also stresses that "[a]dopting [appellant's] position could potentially cripple agencies by requiring that after following their normal search procedures, they must have an information technology expert scan relevant computers and servers for additional information that might have been deleted" and that "[t]his is manifestly not what the [FOIA] intends and we decline to require it in this case." 

●  Discovery:  The Sixth Circuit holds that the district court acted within its discretion to deny appellant's request for discovery.  For one, the Sixth Circuit finds that appellant's affidavit in support of its motion for discovery failed to meet the requirements of Federal Rule of Civil Procedure 56(d) because "[t]he statement was not sworn to before a notary public nor signed under penalty of perjury pursuant to 28 U.S.C. § 1746" and also fails to "set forth any factual basis for the relief [appellant] is seeking."  In addition, the Sixth Circuit determines that "[t]he district court did not abuse its discretion when it concluded that [appellant] failed to establish bad faith on the part of the FDA."  The Sixth Circuit finds that appellant's allegations regarding the FDA's decision to place appellant's request in a "complex" track, and its claims about the adequacy of search and the pre-request destruction of records do not evidence any agency bad faith. 

2.  McLaughlin v. DOJ, No. 10-5050, 2011 WL 9080 (D.C. Cir. Jan 3, 2011) (per curiam)

Re:  Request for records pertaining to criminal investigation of appellant

●  Litigation considerations:  The D.C. Circuit denies requester-appellant's motion for appointment of counsel where there he has "not demonstrated sufficient likelihood of success on the merits."

●  Waiver/Public domain:  The D.C. Circuit finds that "[a]ppellant makes a claim of prior disclosure, but he has not met his 'initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.'" 

●  Exemption 7(C):  The appellant has not advanced "any public interest that would outweigh an invasion of privacy resulting from disclosure" and, additionally, "has not produced 'evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" 

●  Exemption 2:  The D.C. Circuit finds that appellant does not address the specific reasons given by the agency for asserting Exemption 2 and "therefore fails in his challenge to the withholding of information pursuant to this exemption."

3. Wilson v. U.S. Dep't of Transp., No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010) (per curiam)

Re:  Request for "all EEO complaints"

●  Adequacy of search:  The D.C. Circuit grants the Department of Transportation's motion for summary affirmance where the declarations are sufficiently detailed and requester-appellant has not shown bad faith or "submitted 'countervailing evidence' to raise a 'substantial doubt' as to the adequacy of the agency's searches." 

●  Discovery:  The Circuit also notes that discovery is not appropriate where "appellant offered no evidence of bad faith to rebut the agency's affidavits." 

1.  Exxon Mobil Corp. v. U.S. Dep't of Interior, No. 09-6732, 2011 WL 39034 (E.D. La. Jan. 3, 2011) (McNamara, J.)

Re:  Motion for review of magistrate's order denying plaintiff's request to depose declarant for Minerals Management Service (MMS) as to the adequacy of agency's search for records responsive to plaintiff's FOIA request and granting MMS summary judgment

●  Adequacy of search:  The court concludes that the magistrate's previous finding that the agency's declarations "are facially adequate, and discovery about the adequacy of the MMS's search is unnecessary because [plaintiff] had not carried its burden of showing bad faith" "is not clearly erroneous or contrary to law."  The magistrate previously found that the agency's declarations sufficiently "'describe[d] the specific fashion in which the MMS responded to [plaintiff's] requests,'" and discussed "'the persons involved in the search and response, the way in which the MMS maintains its files, the location of responsive documents within those files, the limitations imposed by both the file system and the staffing of the MMS office, the time spent by some MMS employees in compiling th[e] information,'" as well as the public availability of certain requested documents.  The court also "reiterates its previous ruling that [plaintiff's] FOIA requests for 'any and all documents' are overly broad and inappropriate requests."  

WEEK OF JANUARY 10

1.Prison Legal News v. EOUSA, No. 09-1511, 2011 WL 72210 (10th Cir. Jan. 11, 2011) (Murphy, J.)

Re:  Request for videos depicting the aftermath of a brutal prison murder and autopsy photographs of the victim which were introduced into evidence and shown in open court

●  Exemption 7(C):  The Tenth Circuit affirms the finding of the district court that certain portions of video and audio recordings depicting the aftermath of a prison murder along with autopsy photographs of the victim were properly withheld to protect the privacy interests of the victim's survivors pursuant to Exemption 7(C).  Comparing the instant case with the facts presented in Favish, the Tenth Circuit finds that "the privacy interest in [the] images [here] is higher than the privacy interest in the photographs at issue in Favish."  "The photographs in Favish depicted the victim of an apparent suicide, . . . but the images did not involve grotesque and degrading depiction of corpse mutilation as do the images at issue here."  Additionally, the Circuit notes that "the images in Favish were all still photographs, whereas the video at issue here depicts corpse mutilation as it occurs."  Likewise, redacted audio portions contain "the voices of the perpetrators themselves describing the heinous acts in progress." 

The Tenth Circuit rejects plaintiff's argument that because the victim "was a prisoner and the images were taken in a prison cell, [he] himself had no expectation of privacy and his family likewise can have none."  Rather, the Circuit holds that "contrary to [plaintiff's] contention that any privacy interest of [the victim's] family is derivative of [the victim's] own privacy interest, family members' privacy interests under FOIA are independent interests." 

The Circuit rejects plaintiff's contentions that "the government was required to offer evidence of the family's objection and that the district court improperly made findings regarding the particular harm the family would suffer."  Instead, the Circuit finds that the "plain language" of Exemption 7(C) shows that "the test is an objective one and does not depend on the affected individuals' statements of objection or their personal views of the harm they might suffer." 

Although the Tenth Circuit finds the public availability of the records at trial "may impact the family's expectation of privacy in those materials[, it] does not negate it."  The court emphasizes that "[h]ere, the images are no longer available to the public; they were displayed only twice (once at each [defendant's] trial); only those physically present in the courtroom were able to view the images; and the images were never reproduced for public consumption beyond those trials."  As such, the Circuit concludes that the victim's "family retains a strong privacy interest in the images."  

With respect to the public interest in disclosure of the images, the Tenth Circuit determines that "[w]hile BOP's protection of prisoners and the government's discretionary use of taxpayer money may be matters of public interest, there is nothing to suggest the records would add anything new to the public understanding."  Moreover, the Circuit notes that EOUSA has fully released the portions of the video and audio files which depict BOP personnel's response to the incident.  The Circuit also finds that the information about the public interests identified by plaintiff, such as the conditions of confinement, the behavior of the two perpetrators and the nature of the mutilation of the corpse, is publicly available.  Accordingly, "to the extent any additional information can be gained by release of the actual images for replication and public dissemination, the public's interest in that incremental addition of information over what is already known is outweighed by the [victim's] family's strong privacy interests in this case."  Similarly, the Circuit concludes that the "audio recordings add little or nothing to the large amount of public knowledge about the crimes and the government's response to them." 

● Waiver:  The Tenth Circuit finds that the family did not waive their privacy interests by virtue of the fact that prosecutors used the images at trial, finding that "[t]he government cannot waive individuals' privacy interests under FOIA."  Additionally, the family's failure to object to the records being made public at trial has no effect on the Circuit's analysis because the "family members did not take any affirmative actions to place the images in the public domain." 

● Public domain doctrine:  With respect to the video and audio recordings at issue, the Circuit differentiates the instant case with the D.C. Circuit's decision in Cottone v. Reno, in which the D.C. Circuit applied the public domain doctrine to rule that the disclosure of wiretapped conversations covered by an Exemption 3 statute that had been played in open court were no longer exempt.  The Tenth Circuit finds that "[e]ven if this court adopted the public domain doctrine [in response to the government's use of the videos at public trial], it would not defeat Exemption 7(C)'s applicability in this matter because the purposes of Exemption 7(C) [i.e., to protect the privacy interests of the victim's family] can still be served."  Lastly, the Circuit rejects plaintiff's "suggestion that admission of certain records at trial is different from other types of public disclosures under FOIA," finding that "for the purposes of FOIA, the only relevant fact about the trial is the extent of disclosure."

● Agency records:  The Tenth Circuit rules that the district court incorrectly limited the reach of the FOIA "to records that shed light on governmental activity." 

1.  EPIC v. DHS, No. 09-2084, 2011 WL 93087 (D.D.C. Jan 12, 2011) (Urbina, J.)

Re:  Request for records pertaining to whole-body imaging technology used to screen air travelers

●  Exemption 2 (high):  The court holds that defendant properly withheld security training materials and 2,000 images created by body scanning technology, some of which were used as training materials, pursuant to "high" 2.  As a preliminary matter, the court treats as conceded TSA's assertion that it properly withheld "non-image" training materials where plaintiff did not contest the withholding.  As to images at issue, despite plaintiff's contention that those "images do not constitute 'personnel rules or internal practices of the agency,'" the court finds that they "can be exempt under 2-high [because] they are so closely related to TSA's rule or practice that their disclosure could reveal the rule[s] or practice[s]" used by TSA to enforce transportation security.  Because the images "would reveal TSA's detection standards, the court concludes that they relate to the rules and practices of TSA."  Additionally, the court notes that "plaintiff does not dispute that the images were prepared solely for internal review and use within TSA" and, accordingly, they are "'used for predominantly internal purposes.'" 

Furthermore, the court affirms TSA's assessment that "the disclosure of the images at issue may provide terrorists and others with increased abilities to circumvent detection by TSA and carry threatening contraband onboard an airplane, undoubtedly violating countless penal statutes and regulations" and, therefore, concludes that the agency "has met its burden of demonstrating that the release of the images would allow individuals to circumvent the law."

●  Segregability:  The court holds that defendants reasonably segregated all non-exempt material because the portions of the body scans which do not indicate the location of contraband "are inextricably intertwined with parts of the images properly withheld under exemption 2-high and need not be released." 

2. Gerstein v. CIA, No. 06-4643, 2011 WL 89337 (N.D. Cal. Jan. 11, 2011) (Chesney, J.)

Re:  Request for records related to criminal referrals submitted by CIA to DOJ since January 1, 2001 regarding unauthorized disclosure of classified information to the press or public and any subsequent investigations related thereto

●  Exemption 7/threshold:  As a threshold matter, the court finds that "the four documents under consideration were compiled in the course of an [Office of Professional Responsibility (OPR)] investigation into the potentially illegal release of information by particular officials. . ., and consequently constitute records 'compiled for law enforcement purposes' under Exemption 7(C)."   

●  Exemption 7(C):  The court concludes that OPR properly withheld identifying information related to an AUSA and an FBI official who were investigated by OPR for the potentially illegal release of information.  The court finds that "the AUSA enjoys a privacy interest in avoiding disclosure of his/her identity, and thus avoiding the embarrassment and stigma associated with disciplinary action."  Moreover, "[w]hile the public has an interest in knowing the identity of such individual, and although this particular AUSA was 'a line attorney acting in a supervisory position' . . ., an AUSA is 'not considered a high-level employee in the DOJ hierarchy,' . . . and the public's interest in learning the identity of such individual is diminished."  The court also notes that, here, "the DOJ concluded the disclosure was not intentional, and warranted only a 'letter[] of caution.'"  "Given the level of the employee in question, the lack of intentional misconduct, and the disclosure of non-exempt segregable portions of the documents, the Court, [after balancing,] finds OPR's withholdings to be proper."   

Likewise, the court concludes that OPR properly withheld the identity of the FBI official "on the ground that a disclosure of his/her identity necessarily would disclose the identity of the AUSA."  The court finds "[i]n light of the lack of serious wrongdoing by the FBI official, . . . the AUSA's privacy interest continues to outweigh the public's interest, such that disclosure of the FBI official's identity 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' with respect to the AUSA."

3.  Rodriguez v. Providence Police Dep't, No. 08-03, 2011 WL 96678 (D.R.I. Jan. 11, 2011) (Smith, J.)

Re:  First-party request

●  Litigation considerations:  The court declines to enter a default judgment against the government where it initially failed to defend against plaintiff's FOIA action, but ultimately litigated the case, explaining the extent of its search and the material located and produced.

4. Chaplin v. Stewart, No. 10-0518, 2011 WL 65742 (D.D.C. Jan. 10, 2011) (Huvelle, J.)

Re:  Requests for records underlying the determination of the magistrate and probation office related to plaintiff's sentencing

●  Litigation considerations:  The court denies defendant's motion for summary judgment where EOUSA "does not refute" that plaintiff received only a portion of the records that EOUSA claimed to have produced.  The court finds that "EOUSA is obligated under the FOIA to produce all responsive records, which it admittedly has not."

Adequacy of search: The court finds that EOUSA's search was inadequate because it failed to search potentially responsive files maintained by the United States Attorney's Office in Philadelphia, which may have originated with the DEA and the court.  The court finds that "[t]he fact that some records may have originated with DEA or with the court does not relieve EOUSA of its statutory obligation to search its files for any responsive records and to either release them to plaintiff or refer them to the DEA for further processing."

WEEK OF JANUARY 17

1. ACLU v . DOD, 628 F.3d 612 (D.C. Cir. Jan. 18, 2011) (Sentelle, J.)

Re:  Request for records pertaining to fourteen "high value" detainees held at the U.S. Naval Base in Guantanamo Bay, Cuba

   Standards of review:  The D.C. Circuit reviews "the district court's decision on the adequacy of the agency's showing de novo" and "reviews a district court's decision whether to conduct in camera review of FOIA documents for abuse of discretion."

●  Exemptions 1 & 3:  The D.C. Circuit affirms the district court's decision that the CIA properly withheld transcripts of Combat Status Review Tribunals and documents submitted by detainees in connection with those hearings pursuant to Exemptions 1 and 3.   Public domain/waiver:   The Circuit rejects appellant's contention that the withheld information is the same as that contained in "three sets of declassified and released government documents" and a Red Cross report that was leaked to a journalist.  Instead, the Circuit finds "[r]eview of the government documents cited by [appellant] supports the CIA's assertion that there are substantive differences between the disclosed documents and the information that has been withheld" and notes that "[d]espite [appellant's] arguments to the contrary, none of these documents contains a comprehensive description of the actual capture, detainment, or interrogation of any specific detainee."  With respect to the Red Cross report, the Circuit notes that it is "hard pressed to understand [appellant's] contention that the release of a nongovernment document by a nonofficial source can constitute a disclosure affecting the applicability of the FOIA exemptions."  The Circuit finds that "[b]ecause the Red Cross report was not 'made public through an official and documented disclosure,' the information that it contains cannot be considered 'officially acknowledged.'" 

The D.C. Circuit also dismisses the appellant's argument that "the redacted information is not exempt from FOIA because the interrogation techniques and conditions of confinement withheld from the requested documents have been prohibited by the President."  The Circuit finds appellant's reliance on the Supreme Court's decision in CIA v. Sims inapposite, noting that the decision "says nothing suggesting that the change in the specific techniques of intelligence gathering by the CIA renders unprotected sources and methods previously used."  Moreover, the Circuit finds that "[t]o the extent that [appellant's] claim rests on [its] belief that the enhanced interrogation techniques were illegal, there is no legal support for the conclusion that illegal activities cannot produce classified documents."  Accordingly, the Circuit concludes that "the President's prohibition of the future use of certain interrogation techniques and conditions of confinement does not diminish the government's otherwise valid authority to classify information about the techniques and conditions and to withhold it from disclosure under exemptions 1 and 3." 

The D.C. Circuit rejects appellant's claims that "the redacted information does not qualify as 'sources or methods' under FOIA exemptions 1 and 3 because the government lacks the authority to classify information derived from the detainees personal observations and experiences" and that "indefinite detention cannot be a permissible justification for the classification of information."  Noting that pursuant to Executive Order 12,958 the CIA has the authority to classify information that is under the government's control, the Circuit finds that "[t]he fact that the information originated from detainees then in the government's custody has no relevance to the unquestionable fact that the information so obtained is in the government's control."  Moreover, the Circuit determines that "[a]ny documents generated in the process of interrogation are in the hands of the government and will remain subject to the government's authority whether the detainees are retained, released, or transferred."

Lastly, the D.C. Circuit finds unavailing appellant's contention that "the government cannot withhold the information under exemption 1 because public release of the information would not damage national security" and likewise rejects appellant's specific objection to the CIA's position "that the redacted information will harm national security because it could be used as propaganda by al Qaeda."  The Circuit notes that the CIA "does not rely on the propaganda justification alone," but also "identified four other potential harms" to justify its withholdings.  The Circuit concludes that "[e]ven ignoring the propaganda justification, the CIA's affidavits establish that public disclosure of the withheld information 'reasonably could be expected to result in damage to the national security,'" finding that "it is both plausible and logical that the disclosure of information regarding the capture, detention, and interrogation of detainees would degrade the CIA's ability to carry out its mission."  Additionally, the Circuit observes that "[t]o the extent that the [appellant] relies on the government's official disclosures [contained in certain previously released memoranda and reports], we have repeatedly rejected the argument that the government's decision to disclose some information prevents the government from withholding other information about the same subject."

The D.C. Circuit concludes that the district court properly "held that the redacted information qualified as 'intelligence sources or methods' under exemptions 1 and 3'" because the CIA's affidavits "explained with sufficient detail why the withheld information qualifies as 'intelligence sources or methods' and adequately described the potential harm to national security that could result from the information's public disclosure" and there is "no evidence of bad faith by the government." 

●  In camera review:  The D.C. Circuit determines that the district court did not abuse its discretion in declining to conduct an in camera review of the records at issue where the CIA's affidavit was "sufficiently detailed" and "there is no evidence of bad faith."  Effect of additional disclosures:  The Circuit dismisses as "meritless" appellant's contention that the CIA exhibited bad faith because the "information disclosed during [a] second FOIA review demonstrates that the CIA improperly withheld information during the initial review, proving that the CIA abused its classification authority."  The Circuit finds that "[t]he government's later decision to declassify [] specific detainee allegations does not prove that they were originally improperly withheld or that the government acted in bad faith."  "To the contrary," the Circuit finds "that the government demonstrated good faith by voluntarily reprocessing the documents after the President declassified" certain documents, and declines "to penalize a government agency for voluntarily reevaluating and revising its FOIA withholdings." 

2. Van Bilderbeek v. DOJ, No. 10-12416, 2011 WL 118247 (11th Cir. Jan. 14, 2011) (per curiam)

Re:  Request for records related to a DEA investigation of plaintiffs and their company

●  Standard of review:  The Eleventh Circuit reviews "de novo a motion for summary judgment and view[s] the evidence in the light most favorable to the nonmoving party." 

Exemption 7(A):  The Eleventh Circuit affirms the district court's grant of summary judgment to government on the basis that the records at issue were properly withheld pursuant to Exemption 7(A).  Applying a two-part test, the Circuit first examines whether "'the district court had an adequate factual basis' to determine that the documents were exempt" and, then, determines "if 'the decision reached by the district court was clearly erroneous.'"  In response to the appellant's challenge to the reliability of the DEA's affidavit, the Circuit finds that "district court did not err by relying on the statements in [DEA's] declaration" where the declarant first learned of the investigation from "'the lead DEA agent,'" but "provided first-hand information about the documents and the sensitive nature of their contents."  Additionally, the Circuit finds that "[t]he district court also did not clearly err in finding that [DEA] had a plausible basis to investigate the [plaintiffs]."  The Circuit points to evidence indicating that plaintiffs were involved in drug trafficking and money laundering and further notes that the three affidavits submitted by plaintiffs "do not establish that the investigation was unfounded." 

The Eleventh Circuit also concludes that DEA's "declaration provided a sufficient factual basis for the district court to determine that the documents were exempt from disclosure."  The Circuit notes that DEA's affidavit "identified in detail the contents of the records and documents, which provided insight into the types of information in particular documents and the close proximity of information that made the documents non-segregable" as well as explained how disclosure of certain information "would not only hamper the investigation but also endanger the individuals identified in the documents."  The Circuit also points out that DEA "did not seek to withhold all documents found in [plaintiffs'] investigatory files," but rather released two pages which it determined would not interfere with the investigation.

1.  Schoenman v. FBI, No. 04-02202, 2011 WL 187223 (D.D.C. Jan 21, 2011) (Kollar-Kotelly, J.)

Re:  First-party request; the remaining issue is the sufficiency of the CIA's search in two of its component offices and its search for "index references"

●  Adequacy of search:  The court concludes that "the CIA has discharged its burden of establishing the reasonableness of its search" for responsive records in the two component offices which remain at issue and, conversely, that plaintiff "has failed to adduce the sort of countervailing evidence that would cast a substantial doubt on the adequacy of the CIA's search."  With respect to its search of the Mission Support Office/Office of Security (MSO/OS), the court finds that the CIA satisfied its burden by "describing in reasonable detail the scope and method of the search it performed and averring that all files likely to contain documents responsive to [plaintiff's] [r]equest were searched."   Furthermore, the fact "[t]hat the CIA's submissions could have hypothetically been more detailed - for example, in describing the number of 'false hits' obtained during the course of its search - does not prevent the Court from concluding that the CIA has satisfactorily demonstrated the adequacy of its search, nor preclude a finding that summary judgment is appropriate."

With respect to plaintiff's assertion that the search "was inadequate because the CIA did not document the search terms used in the course of its initial search in September 2001," the court finds that "[b]ecause FOIA does not obligate agencies to create or retain documents, the CIA was not required 'to provide [plaintiff] with documentation that may or may not exist but which, in any event, was created during the course of searching for records.'"  Moreover, the court observes that the CIA's subsequent search "employed a wide range of search terms targeted to locate and identify documents responsive to [plaintiff's] [r]equest and these terms, . . . were 'reasonably calculated to uncover all relevant documents.'"  For the same reasons, the court rejects plaintiff's argument that "the adequacy the CIA's search cannot be determined in the absence of information concerning the precise content of the MSO's instructions to the MSO/OS, the number of "hits" obtained in response to particular search terms used during the course of the search, and the interplay between certain search terms."  The court further notes that plaintiff's "speculation that his name is so common that one would expect a certain number of 'hits' on a search for his name, . . . falls woefully short of the sort of evidence that would raise a 'substantial doubt' as to the adequacy of the CIA's search." 

Additionally, the court dismisses plaintiff's argument that the CIA should have searched the four other offices within the MSO, finding that "despite [plaintiff's] personal belief to the contrary, the CIA has explained in a sufficiently detailed and nonconclusory manner that it determined, based on the function of the MSO and the nature of the records maintained by the MSO/OS vis-à-vis the MSO as a whole, that the other component parts of the MSO . . . are not reasonably likely to have records pertaining to an individual where there are no records for that individual in the security database maintained by the MSO/OS."  Similarly, the court finds that the CIA's failure to describe the "precise contents of the MSO/OS electronic database" does not affect its assessment of the reasonableness of the CIA's search.  The court notes that although "the CIA's description of its search hypothetically could have been more detailed, [] the law requires not an exhaustive or meticulous account of the agency's search, but merely a reasonably detailed one" and comments that "[p]erfection has not now, and never has been, the relevant standard."

Similarly, the court concludes that the CIA's search of its Directorate of Operations (DO) "was 'reasonably calculated to uncover all relevant documents.'"  The court rejects plaintiff's "conjectures that certain information may be not indexed in searchable field" within the DO's electronic database.  Rather, the court finds that "the CIA is under no obligation to reorganize its files to satisfy [plaintiff's] [r]equest . . . and imposing [plaintiff's] preferences upon the CIA would extend far beyond the reasonable efforts required of agencies in responding to validly lodged requests under FOIA and the Privacy Act."  The court also dismisses plaintiff's questions regarding the structure and contents of the DO's electronic database, noting that his "questions are akin to requests for discovery, but discovery is unavailable where, as here, the agency's declarations are sufficiently detailed."

Lastly, the court concludes that the CIA's explanation as to why no "index references" were located is credible.  Indeed, the court finds that plaintiff's "unsupported allegation that the CIA's explanation lacks credibility and his speculation that such documents simply must exist does not suffice."  The court also finds that various supplemental documents belatedly filed by plaintiff are either irrelevant to the instant case or fail to undermine the reasonableness of the CIA's search. 

Discovery:  The court denies plaintiff's request for discovery because the "agency's declarations are sufficiently detailed," "no factual dispute remains," and plaintiff "has failed to raise substantial, or even colorable, doubt concerning the adequacy or good faith of the CIA's search." 

2. Taylor v. Babbitt, No. 03-0173, 2011 WL 159769 (D.D.C. Jan. 19, 2011) (Urbina, J.)

Re:  Request for plans and specifications for a 1930s-era F-45 airplane submitted to the predecessor of the FAA by the aircraft's manufacturer

●  Exemption 4 (trade secret):  The court grants plaintiff's motion for summary judgment, concluding "the FAA has not demonstrated that the materials sought by plaintiff are secret and commercially valuable, as necessary to demonstrate that they are trade secrets protected from disclosure by Exemption 4."  As a preliminary matter, the court notes that the parties do not dispute that the information at issue bears a direct relationship to the productive process as required by the D.C. Circuit in Public Citizen Health Research Group v. FDA. 

The court concludes that the owner's authorization in 1955 to disclose the materials to outside parties precludes them from being "secret" as is necessary for trade secret production.  In spite of the defendant-intervenor's attempt to revoke its authorization to the FAA to disclose the relevant materials, the court determines that "[t]he FAA has . . . offered no support for the proposition that materials that have been authorized for public disclosure by their owner are considered secret once more when that authorization is revoked."  The court also finds that "even if there are circumstances in which secret status can be restored, they are not present here, where [the intervenor's] predecessor authorized the public disclosure of the records at issue in 1955, and [the intervenor] made no effort whatsoever to revoke that authorization until more than forty years later, when [another individual] submitted his FOIA request" for these materials. 

Additionally, the court notes that although its conclusion that the documents are not "secret" "is sufficient to resolve the parties' cross-motions for summary judgment, the court nonetheless proceeds to the second disputed issue - whether the requested materials are commercially valuable."  Here, the court observes that "the FAA concedes that the F-45 type certification materials are not commercially valuable based on their usefulness in manufacturing aircraft."  With respect to the FAA's contention that the materials are valuable in the antique aircraft market, the court finds that while the records "may be valuable in [such a] market, there is no evidence that these materials are commercially valuable" to the intervenor where the FAA has not shown that the intervenor "currently competes in the antique aircraft market or [] has any intention to do so in the future."  The court concludes that "[b]ecause trade secret protection is ultimately grounded in the 'economic value . . . [from] the competitive advantage over others that [the owner] enjoys by virtue of its exclusive access to the data,' . . . the F-45 type certification materials are not commercially valuable because their economic value does not derive from the competitive advantage they confer upon [the intervenor] within the aircraft market."

3.  Subh v. CIA, No. 10-0725, 2011 WL 149855 (D.D.C. Jan. 19, 2011) (Collyer, J.)

Re:  First-party request for records pertaining to hiring decision

 Exemption 3:  The court concludes that the CIA properly redacted the results of an intelligence check pursuant to two Exemption 3 statutes.  As an initial matter, the court finds that the National Security Act of 1947 and the Central Intelligence Agency Act of 1949, which protect intelligence sources and methods and information about CIA employees, respectively, "'are precisely the types of statutes comprehended by exemption 3.'" 

Characterizing the CIA's response as "essentially a Glomar response," the court concludes that the CIA "establishe[d] that any further response to Plaintiff's FOIA request would reveal agency sources or methods."  The court finds that "[i]f the CIA were to state that it had no information pertaining to Plaintiff, it would indicate either that it has no interest in him or is incapable of acquiring information about him."  Additionally, the court notes that the "[a]lthough the release of the information Plaintiff requests may appear to pertain only to his application for employment, it may have greater significance," and "any further response . . . would result in disclosure of whether [the CIA] has an intelligence interest in Plaintiff, which, in light of the CIA's covert intelligence responsibilities, would amount to the disclosure of an intelligence method."  

4. Bonilla v. DOJ, No. 10-22168, 2011 WL 122023 (S.D. Fla. Jan. 13, 2011) (King, J.)

Re:  Requests for records pertaining to prosecutors involved with plaintiff's criminal case

Adequacy of agency declaration:  The court denies the agency's motion for summary judgment because defendant's "[d]eclaration does not provide the Court with any facts that would support a finding that the records requested by Plaintiff fall within a statutory exception from disclosure."

●  Exemptions 6 & 7(C):  The court concludes the agency's categorical withholding of the requested records is not appropriate where "Defendant has not met its burden of showing the type of record requested by Plaintiff would not reveal any 'official information' about a government agency."  Moreover, "[b]ased on the record before it, the Court cannot find that this is a case where the balance 'characteristically tips in one direction.'" (posted 02/28/2011)

Go to: Main FOIA Post Page

Topic(s): 
FOIA

Related blog posts

Updated August 6, 2014