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Summaries of New Decisions

Summaries of New Decisions - September 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.


Courts of Appeal

1.  ACLU v. DOJ,Nos. 10-5159 & 10-5167, 2011 WL 3890837 (D.C. Cir. Sept. 6, 2011) (Garland, J.)

Re:  Request for records pertaining to government's use of cell phone location data in criminal prosecutions

Holding:  Affirming the district court's order requiring release of specified documents; but vacating the balance of the district court's decision, and remanding for further development of the record

• Standard of review:  The D.C. Circuit "review[s] the district court's disposition on summary judgment de novo."

• Exemption 7(C):  At the outset, the D.C. Circuit notes that although DOJ asserted both Exemptions 6 and 7(C), it "need only consider whether [DOJ] properly invoked Exemption 7(C)" since it "is more protective of privacy than Exemption 6' and thus establishes a lower bar for withholding material" and "plaintiffs concede that the requested records . . . are 'records compiled for law enforcement purposes.'"  The D.C. Circuit first considers the records that the district court ordered defendants to release, i.e., the "docket information (case name, docket number, and court) from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data without a determination of probable cause, and in which those individuals were subsequently convicted or entered public guilty pleas." 

With respect to the privacy interest involved, the D.C. Circuit notes that although the information at issue "by itself [ ] would disclose neither the charges nor the disposition," there is the potential for "derivative use" of the information because "it would take little work for an interested person to use the docket information on the government's list to look up the underlying case files in the public records of the courts, and therein find the information at interest," which plaintiffs intend to do.  While acknowledging that information sought by plaintiffs implicates privacy concerns, the court finds that "[t]he privacy interests at stake in this case . . . are considerably weaker than those at issue in [the] Reporters Committee" case decided by the Supreme Court.  Unlike the rap sheets that were at issue in Reporter's Committee, the D.C. Circuit finds that "even if the docket information [at stake in this case] is used to find the underlying proceedings, for any particular individual it mostly likely would reveal only a single prosecution, rather than a comprehensive scorecard of the person's entire criminal history."  Additionally, the D.C. Circuit notes that "the information at issue here is all less than (and probably quite a bit less than) ten years old, unlike the Reporters Committee rap sheets that recorded a lifetime of everything from major crimes to youthful indiscretions."  The D.C. Circuit also reasons that "[t]he fact that information about these proceedings is readily available to the public reduces further still the incursion on privacy resulting from disclosure."  Moreover, the D.C. Circuit finds that "unlike the rap sheet information in Reporters Committee, the information at issue here is not practically obscure." 

As to defendants' argument that "the disclosures sought here will draw renewed attention to individuals in a way that the initial disclosures did not," the D.C. Circuit finds that "[i]t is little more than speculation to suggest that friends or associates who did not learn of a conviction at the time it occurred (whether through press accounts, press releases, or other means) will hear of it for the first time merely because the Justice Department releases a list of docket numbers, courts, and case names."  To the extent that defendants claim that "the information the plaintiffs seek is practically obscure because they cannot identify the prosecutions in which they are interested without the government's assistance," the D.C. Circuit determines that "all that is practically obscure is information regarding the government's policy" with respect to cell phone tracking, but not the "information that raises issues of personal privacy – that is, the fact that particular individuals have been convicted of or pled guilty to crimes."  With regard to DOJ's assertion that the "derivative use" of the docket information will cause an invasion of privacy because criminal defendants or their counsel may be contacted as a result of any disclosures, the D.C. Circuit concludes that such an intrusion would be "marginal" and also finds that "disclosure under FOIA [will not] make that information any more accessible than it already is through publicly available computerized databases."

In contrast, the D.C. Circuit determines that there is a "significant public interest in disclosure, something altogether absent in Reporters Committee."  First, the D.C. Circuit finds that "[t]he use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attention and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of 1986 . . . should be revised either to limit or to facilitate the practice."  Additionally, the D.C. Circuit observes that "[c]ourts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance" and notes that "[t]he Supreme Court has recently granted certiorari to address the GPS issue."  As such, the D.C. Circuit finds that "[t]he disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool."  The D.C. Circuit rejects defendants' argument that "the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing."  Rather, the D.C. Circuit finds the legality or illegality of such a program "is irrelevant to this case."  Here, "plaintiffs are not (or at least not only) seeking to show that the government's tracking policy is illegally improper, but rather to show what that policy is and how effective or intrusive it is."  Contrary to defendants' contention, the D.C. Circuit also finds that "[t]he fact that the public already has some information [on this subject] does not mean that more will not advance the public interest."  As to defendants' argument that consideration of the "derivative use" of the information at issue in terms of identifying a qualifying public interest is improper, the D.C. Circuit concludes that if it "consider[s] derivative use for evaluating privacy concerns, [then it] must do the same for the public interest."  In conclusion, the D.C. Circuit holds that "in light of the strength of the public interest in disclosure and the relative weakness of the privacy interests at stake, [it] conclude[s] that production of the requested information will not constitute an 'unwarranted' invasion of personal privacy under Exemption 7(C)."

With respect to "plaintiffs' challenge to the district court's refusal to direct the government to produce: . . . the list of docket information for criminal cases in which the defendants were acquitted, or for cases that were dismissed or sealed (and remain under seal)," the D.C. Circuit notes that "the distinction between indictments resulting in convictions or guilty pleas, and those resulting in acquittals or dismissals, or cases that remain sealed," "makes some intuitive sense" because privacy concerns are potentially greater for cases that resulted in an acquittal or dismissal and those that are sealed.  As such, "[r]ather than attempt to resolve [the] question [as to the applicability of Exemption 7(C) to different categories of these cases, which] may turn out be purely academic," the D.C. Circuit vacates the district court's ruling with respect to these materials and orders it "to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed)."  

Likewise, the D.C. Circuit concludes that further development of the record is necessary with respect to the district court's judgment that defendants properly withheld in full the "docket number and case name (with personally identifiable information redacted) of one application to engage in warrantless cell phone tracking" and properly redacted "the docket number of another application."  The D.C. Circuit notes that there are a number of outstanding issues with respect to the nature and status of these documents that need to be addressed before the propriety of the defendants' withholdings can be evaluated.

2.  Robert v. DOJ, No. 09-4684, 2011 WL 3890446 (2d. Cir. Sept. 6, 2011) (unpublished disposition)

Re:  Plaintiff's appeal of district court's grant of summary judgment to defendants; and his appeal of district court's decision enjoining him from filing future FOIA actions without leave of the court

Holding:  Affirming the district court's grant of summary judgment to defendants with respect to multiple FOIA cases; and modifying the district court's final judgment to clarify that the court's filing injunction with respect to plaintiff applies only to future complaints raising FOIA claims and not to FOIA requests

• Standard of review:  The Second Circuit "review[s] de novo a district court's grant of summary judgment under FOIA" and "review[s] for abuse of discretion a district court's decision to impose a filing injunction, or 'leave-to-file' sanctions under the All Writs Act, 28 U.S.C. § 1651." 

• Litigation considerations:  The Second Circuit concludes that the district court did not err in dismissing plaintiff's multiple FOIA claims and rejects the various arguments raised by plaintiff.  Additionally, the Second Circuit "agree[s] with the District Court's finding that the DOJ demonstrated through its supplemental declarations that it had conducted searches that were reasonably calculated to locate the requested documents (assuming any exist), and that [plaintiff] offered only conclusory allegations that were insufficient to rebut the DOJ's showing."   

• Litigation considerations/filing injunction:  The Second Circuit finds that "given [plaintiff's] history of filing vexatious, burdensome, and meritless FOIA complaints," "the District Court did not err or abuse its discretion in enjoining [him] from filing further complaints raising FOIA claims without leave of the court."  The Second Circuit clarifies the order issued by the Clerk of the Court, noting "[i]t is clear that the District Court intended only to enjoin [plaintiff] from filing further FOIA complaints without leave of the court and not to enjoin [him] from filing FOIA requests with appropriate government agencies or officials." 

District Courts

1.  ACLU v. DOJ, No. 10-436, 2011 WL 4005324 (D.D.C. Sept. 9, 2011) (Collyer, J.)

Re:  Request for information about the legal basis in domestic, foreign, and international law for the use of unmanned aerial vehicles, or drones, to conduct targeted killings

Holding:  Granting summary judgment to the CIA on the basis that it properly refused to confirm or deny the existence of records responsive to the request in conjunction with Exemptions 1 and 3

• Exemption 3/Glomar:  The court holds that the CIA properly refused to confirm or deny the existence of responsive records pursuant to Exemption 3 in conjunction with Central Intelligence Agency Act of 1949, which protects from disclosure "the organization, functions, names, official titles, salaries, or numbers of personnel employed," and the National Security Act of 1947 (NSA), which protects from disclosure "intelligence sources and methods."  As a preliminary matter, the court notes that "[i]t is well-established that both statutory provisions cited by the CIA qualify as withholding statutes for purposes of Exemption 3."  Contrary to plaintiff's argument, the court determines that the CIA properly relies on Section 403g of the CIA Act because information about drone strikes relates to "functions" of CIA personnel.  The court finds that "[t]he fact of the existence or nonexistence of responsive information falls within the ambit of § 403g because whether the CIA cooperates with, is interested in, or actually directs drone strikes pertains to (possible) functions of CIA personnel."  Based on the CIA's declaration, "which is entitled to 'substantial weight,'" the court concludes that "the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal information on the CIA's internal structure and its capabilities and potential interests and involvement in/operation of the drone program." 

The court also rejects plaintiffs' argument that the withheld information is not "intelligence sources and methods" protected by the NSA because "a program that targets certain persons for death or incapacitation cannot be deemed a means of collecting intelligence, so that neither a source nor a method of intelligence gathering is implicated by the fact of whether CIA has responsive records."  Although the court acknowledges that "[a]t first blush, there is force to Plaintiffs' argument that a 'targeted-killing program is not an intelligence program' in the most strict and traditional sense," it ultimately finds that "Plaintiffs seek too narrow a reading of the authority conferred by the NSA to protect 'intelligence sources and methods.'"  The court notes that the Supreme Court in CIA v. Sims "'has recognized the broad sweep of 'intelligence sources' warranting protection in the interest of national security.'"  The court notes that it "has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence" and concludes that "taking into account the deference owed the CIA's declaration in the FOIA context, . . . the CIA's justification for its concerns about unauthorized disclosure of intelligence sources or methods to be both 'logical' and 'plausible.'"  The court also concludes that "Plaintiff's argument that a program of drone strikes cannot form the basis of, or involve, intelligence sources or methods also ignores the scope of the CIA's specific authority to engage in activities beyond 'traditional' intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities."  The court observes that "[i]t would surprise no one that the CIA may be authorized to engage in more than gathering facts around the world; the NSA's grant of protection to 'intelligence sources and methods' cannot be so limited."  As such, the court holds that "[c]onfirming the existence or nonexistence of pertinent agency records on drone strikes could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and/or methods."

• Official acknowledgement/waiver:  The court finds unavailing plaintiffs' argument that the former CIA Director "has officially admitted that some or all of the requested records exist so that they are no longer FOIA exempt."  Rather, the court finds that the fact that the former CIA Director "acknowledged that such a program exists [in a public speech] and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA's involvement in such program, nor does it waive the CIA's ability to properly invoke Glomar."  Similarly, the court concludes that general statements made by the former CIA Director to the news media are not sufficient to demonstrate official agency acknowledgment, finding that "Plaintiffs fail to cite any official disclosure containing the exact information sought by Plaintiffs."  The court notes that "[h]ere, Plaintiffs seek exactly what is not publicly available – an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program."  Moreover, the court finds that "none of the comments by former Director Panetta on which Plaintiffs rely constituted an explicit admission 'that a specific record exists.'"  Accordingly, "even if former Director Panetta could be understood colloquially to have suggested some sort of CIA involvement in drone strikes, he neither referenced specific records nor referenced records that go to the exact requests posed by Plaintiffs."  Moreover, the court finds that "despite speculation or overt factual assertions of the CIA's involvement in drone strikes rampant in the various articles cited in Plaintiffs' briefs, the statements of journalists, 'experts,' or even unofficial or unidentified sources (even were they CIA personnel) are not 'official' disclosures by the CIA." 

• Exemption 1/Glomar:  The court also holds that the CIA properly invoked the Glomar response in conjunction with Exemption 1 with respect to the information requested.  The court concludes that through its declaration "the CIA has sufficiently demonstrated that disclosure of records sought by Plaintiffs would cause damage to national security by providing insight into the CIA's intelligence activities, sources and methods, which are properly classifiable under  1.4(c) of Executive Order 13526."  The court notes that in its analysis of the propriety of CIA's application of Exemption 3, it "has already determined that the records sought pertain to 'intelligence sources and methods' under the NSA;" and, indeed, finds that "[i]nformation on drone strikes is even easier to fit within the purview of intelligence activities" covered by the Executive Order and that "[t]he fact of whether or not the CIA has responsive records would reveal whether the CIA has an interest in, or can employ, drone technology."  Additionally, "[i]ndependently, the CIA also demonstrates that the fact of whether or not the CIA maintains responsive records also implicates 'foreign relations or foreign activities of the United States, including confidential sources.'"  The court notes that "[b]ecause the CIA's operations are conducted almost exclusively outside the United States, they inherently involve foreign activities."  Additionally, the court concludes that "[w]hile Plaintiffs may hold a general knowledge of the existence and use of drones, that knowledge does not mean that the underlying intelligence efforts that reveal and guide weapons to targets are somehow unprotected under FOIA and open to any requester."  Noting that with respect to invocation of the Glomar response "the 'test is not whether the court personally agrees in full with the CIA's evaluation of the danger – rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the CIA is expert and given by Congress a special role.'"  Here, the court determines that "[t]he CIA has met its burden of showing that the release of any acknowledgment of responsive records could damage national security; [and, accordingly,] FOIA 'bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.'"    

2.  Tex. Alliance for Home Care Servs. v. Sebelius, No. 10-747, 2011 WL 4005295 (D.D.C. Sept. 9, 2011) (Lamberth, J.)

Re:  Plaintiffs' claim that HHS inadequately published financial standards required for Durable Medical Equipment (DME) suppliers in order to participate in the competitive bidding process violates the FOIA

Holding:  Rejecting plaintiffs' claim premised on Section 552(a)(1) of the FOIA

• Procedural/publication requirement:  The court rejects plaintiffs' claim concerning adequate publication of HHS's financial standards.  As an preliminary matter, the court notes that "§ 552(a)(1)'s publication requirement is subject to an express exception for actual notice."  Here, the court finds that HHS's published rules "explained the need for consideration of financial standards, and published particular examples of standards that would be considered," which was "preceded by a substantial public education program, and was followed by development of a website that provided increased detail on the particular financial standards and ratios to be used in the DME Bidding Program."  Commenting that plaintiffs "simply ignore this publicly-available information," the court concludes that they "have failed to allege sufficient facts to support an inference that they lacked actual knowledge of the applicable standards."  Additionally, the court finds that "[t]he second shortcoming with regard to plaintiffs' allegations is the absence of any adverse effect that plaintiffs have suffered as a result of the purported non-publication."  Additionally, the court notes that publication will not alter plaintiffs' ability to satisfy the standards, noting that "[p]laintiffs' members' financial conditions cannot be changed, but remain unalterable facts that either will or will not meet applicable financial standards – regardless of whether the Secretary [of HHS] publishes such standards." 

3.  Smith v. Cnty. of Alameda, No. 11-2651, 2011 U.S. Dist. LEXIS 101607 (N.D. Cal. Sept. 8, 2011) (Davilla, J.)

Re:  Request for records sent to a California State agency

Holding:  Dismissing plaintiff's FOIA claim for failure to state a claim upon which relief may be granted

• Litigation considerations/proper party defendant:  Noting that FOIA "does not include state agencies," the court finds that "Plaintiff fails to state a cause of action under the FOIA against the County of Alameda, or departments under its authority, as a state agency."   

4.  Kelly v. U.S. Census Bureau, No. 10-4507, 2011 U.S. Dist. LEXIS 100279 (N.D. Cal. Sept. 7, 2011) (White, J.)

Re:  Request for records pertaining to plaintiff's employment, his applications for employment, and termination issues related to his work as a temporary employee

Holding:  Granting defendant's motion for summary judgment on the basis that defendants' searches were adequate and that they properly withheld information pursuant to Exemption 2 and Privacy Act Exemption (k)(6)

• Adequacy of search:  The court concludes that the defendants conducted a reasonable  and good faith search for responsive records.  The court notes that "[t]o the extent there are documents that Plaintiff insists must be in existence in Defendants' records, there is sworn testimony before this Court that, after searching the pertinent records, no such documents exist[ ]."  Moreover, the court finds that "Defendants are not under an obligation to recreate documents that were not in existence at the time the FOIA request was made."  Likewise, defendants are not required to generate statistical information "that was never in existence." 

• Exemption 2:  The court holds, without analysis, that the responsive documents were properly withheld under Exemption 2 and Privacy Act Exemption (k)(6).

5.  Sussman v. USMS, No. 03-610, 2011 WL 3891820 (D.D.C. Sept. 6, 2011) (Kennedy, J.)

Re:  Request for records pertaining to plaintiff; at issue is plaintiff's remaining FOIA claim and his Privacy Act claims

Holding:  Granting defendant's motion for summary judgment with respect to plaintiff's FOIA claims, noting that he has conceded that the these claims are no longer at issue following the defendants' release of additional segregable information in compliance with the court's earlier Order

6.  Bickford v. Gov't of the United States, No. 10-2323, 2011 WL 3891805 (D.D.C. Sept. 6, 2011) (Friedman, J.)

Re:  Request for medical and legal records pertaining to plaintiff and her minor child, which court determines could be construed as a FOIA or Privacy Act claim

Holding:  Dismissing, sua sponte, plaintiff's Privacy Act or FOIA claim under Rule 12(b)(6); and denying her related motion to obtain access to medical and legal records

• Exhaustion of administrative remedies:  "Because there is no indication in [plaintiff's] complaint (or in her motion) that she has ever submitted a request for records to any government agency, the Court will dismiss [plaintiff's] Privacy Act or FOIA claim under Rule 12(b)(6) and will deny [her] related motion to obtain access to all medical and legal records."        


Courts of Appeal

1.  Ctr. for Biological Diversity v. Office of the USTR, No. 10-35102, 2011 U.S. App. LEXIS 19197 (9th Cir. Sept.16, 2011) (unpublished disposition)

Re:  Request for records pertaining to the Softwood Lumber Agreement between the United States and Canada; in particular, the details of the distribution of "meritorious initiatives" funding

Holding:  Vacating the district court's grant of summary judgment to defendant; and remanding for further proceedings

• Standard of review:  The Ninth Circuit employs a two-step standard of review in FOIA cases.  First, the Ninth Circuit "review[s] de novo 'whether the district court had an adequate factual basis for its decision.'"  Second, the Ninth Circuit "'review[s] the district court's [findings] of fact for clear error, while legal rulings, including [the district court's] decision that a particular exemption applies, are reviewed de novo."    

• Adequacy of search:  The Ninth Circuit concludes that the district court erred in finding "that the record before it demonstrated that the USTR had conducted an adequate search for records responsive to the FOIA request" where USTR began its search in June 2006, even though the program was created in April 2006.  The Ninth Circuit finds that "[r]estricting the search for documents to that time period in which 'detailed discussion of implementation issues' occurred is simply not warranted by [plaintiff's] request, which asked for all records related to the implementation of the program."  Accordingly, the Ninth Circuit concludes that "it is reasonably likely that records responsive to [plaintiff's] request were generated as early as April or May of 2006; by failing to search for records during that time period, therefore, the USTR did not conduct an adequate search."  The Ninth Circuit also notes that "a more important point is that none of the USTR's declarations or Vaughn indices provide specific information regarding what files were searched, what search terms were used, why further searches are unlikely to produce additional records, or why additional searches are impractical."  Noting that in camera review is disfavored, the Ninth Circuit holds that "[o]n remand, the USTR must supplement the record with affidavits that meet these criteria before the district court can determine whether the search was adequate." 

• Exemption 5/threshold:  The Ninth Circuit determines that "[t]he district court also lacked an adequate factual basis to rule on the propriety of the USTR's withholding of certain documents under Exemption 5."   The Ninth Circuit finds that "[m]any of the records at issue here are communications between government officials and private third parties," and notes that "[t]his fact alone suggests they do not meet Exemption 5's threshold requirement."  The Ninth Circuit concludes that "[t]he record is insufficiently developed" as to "nature of the relationships between the government agency and the third party or parties."  As such, the Ninth Circuit remands for the district court to consider whether the documents satisfy the "inter-agency or intra-agency" threshold of Exemption 5.

• Exemption 6:  The Ninth Circuit agrees with plaintiff that "the district court failed to apply the proper standard in evaluating whether the USTR could withhold the names of third parties considered for inclusion on a board of directors of a newly-established foundation created to receive 'meritorious initiatives' funds."  The Ninth Circuit observes that "[i]n assessing the applicability of Exemption 6 on remand, the district court should 'consider, first, whether the information is contained in a personnel, medical, or "similar" file, and, second, whether release of the information would constitute a clearly unwarranted invasion of the person's privacy'" and, next, the district court should balance the privacy interests of the individuals identified in the records against the public interest in disclosure.

District Courts

1.  Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon, J.)

Re:  Requests for records pertaining to plaintiff's criminal case, and third parties

Holding:  Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims

• Adequacy of searches:  The court concludes that EOUSA and DEA's searches for responsive records were adequate.  With respect to EOUSA, the court notes that "[h]ere, plaintiff is challenging the adequacy of [its] search based on the results of the search rather than the actual method by which the EOUSA conducted its search."  However, the court observes that "as our case law makes clear, ultimately, the results of a search do not determine whether the search is adequate."  In this case, the court concludes that EOUSA demonstrated "compliance with FOIA's search requirements" where its declarations "explain[ed] in reasonable detail the scope and method of the EOUSA's search."  Likewise, the court finds that DEA's "search was reasonably tailored to plaintiff's request" where it searched "the only DEA records system that would contain criminal investigative records responsive to plaintiff's request seeking all DEA records relating to him."  To the extent that plaintiff attempts to challenge the untimeliness of DEA's searches, the court comments that "an 'untimely response does not entitle plaintiff to judgment in his favor.'"

• Exhaustion of administrative remedies:  The court finds that "[a]lthough plaintiff challenges the adequacy of the FBI's search for records pursuant to [a specific request, he] has failed to exhaust his administrative remedies [as to that request] and, therefore, judicial review is barred." 

• Segregability:  The court finds that "EOUSA, FBI, DEA, and BOP released all reasonably segregable non-exempt information."  The court notes that "[i]n the absence of contrary evidence or specific cites to potentially unsegregated documents, the declarations are afforded the presumption of good faith."  Here, "[t]he Vaughn indices, declarations, and annotations identify the exemptions claimed for each individual document and indicate that any information that could be segregated, was released."  With respect to the segregability of certain recorded telephone conversations, the court finds that BOP's declaration "sufficiently states, plaintiff did not provide consent of all third parties to the calls for release of their portions of conversations, and because BOP does not have the equipment necessary to edit digitally stored recordings, the 'withheld recordings of telephone conversations cannot be segregated and release of the unedited recordings would result in an unwarranted invasion of personal privacy of other individuals.'"

• Exemption 2:  The court concludes that "[a]s other judges in our court have concluded previously, [Geographical Drug Enforcement Program identifier codes], [Narcotics and Dangerous Drugs Information System], telephone, and fax numbers are properly withheld [by DEA] pursuant to Exemption 2."

• Exemption 3:  The court finds that EOUSA properly asserted Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) to protect "'grand jury transcripts and attorney notes associated with a grand jury proceeding,' the release of which 'would reveal the scope of the grand jury and the direction of the investigation by providing the identities of the targets of the investigation, the source of the evidence, as well as the actual evidence produced before the grand jury.'"  The court also finds that the FBI properly invoked Exemption 3 to withhold "records consisting of intercepted communications, which are specifically protected from disclosure by Title III of the Omnibus Crime Control and Safe Streets Act of 1968." 

• Exemption 5 (attorney work product & deliberative process privileges):  The court concludes that EOUSA properly invoked the attorney work product privilege "to protect records reflecting 'such matters as trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to Plaintiff's criminal case.'"  The court also finds that EOUSA properly asserted the deliberative process privilege to withhold "a witness immunity request, handwritten attorney's notes, a warrant affidavit, a property list, a case timeline, and attorney correspondence," the disclosure of which "'would jeopardize the candid and comprehensive discussions that are essential for efficient and effective agency decisionmaking' with respect to litigation strategy."  

• Exemption 7(A):  The court concludes that DEA properly asserted Exemption 7(A) to withhold a file related to one of plaintiff's criminal co-defendants who has a pending appeal.  The court notes that "[f]or purposes of Exemption 7(A), a pending appeal of a criminal conviction qualifies as an ongoing law enforcement proceeding."  The court finds that "because the file was created for law enforcement purposes and disclosure of the withheld information could reasonably be expected to interfere with a pending law enforcement proceeding, DEA has properly asserted Exemption 7(A)." 

• Exemption 7(C):  As a threshold matter, the court notes that "EOUSA, FBI, DEA, and BOP asserted Exemption 7(C) to withhold information clearly compiled for 'law enforcement purposes.'"  Moreover, the court finds that it is "well-settled" that information relating to "the identity of third parties, special agents, government employees, and local law enforcement personnel," for whom Exemption 7(C) was invoked, "have a substantial interest in their anonymity."  The court concludes that "there is no public interest asserted by plaintiff that outweighs such a substantial privacy interest."  Accordingly, defendants properly asserted Exemption 7(C) with respect to this third party information. 

• Exemption 7(D):  The court determines that DEA and EOUSA properly asserted Exemption 7(D) to protect information withheld based on an express grant of confidentiality where their submissions "refer to notations on the withheld documents – specifically the EOUSA's 'CI' notation and the DEA confidential informant code."  The court notes that "[s]uch notations provide probative evidence that the source received an express grant of confidentiality."  Additionally, the court finds that, with regard to information withheld pursuant to an implied grant of confidentiality, the assertion of Exemption 7(D) was appropriate because, based on the violence inherent with illicit drug trafficking, "[i]t is reasonable to conclude that these sources disclosed information in confidence due to the fear of reprisal." 

• Exemption 7(E):  The court holds that the FBI properly asserted Exemption 7(E) to withhold "law enforcement techniques and procedures that relate to the identification and contents of the FBI databases."  The court finds that the FBI "provides a reasonable explanation for why disclosure of such information could impede investigations." 

• Exemption 7(F):  The court determines that DEA properly invoked Exemption 7(F) in order "to protect the physical safety" of "special agents, law enforcement officers, government employees, and confidential sources."   

2.  Brancheau v. Sec. of Labor, No. 11-1416, 2011 U.S. Dist. LEXIS 104674 (M.D. Fla. Sept. 15, 2011) (Presnell, J.)

Re:  Motion for a preliminary injunction seeking to enjoin OSHA from releasing video records and photographs depicting death of an animal trainer at Sea World

Holding:  Denying plaintiff motion for a preliminary injunction brought under the FOIA seeking to prevent public disclosure of material

• Litigation considerations:  The court denies plaintiff's request for injunctive relief as brought under the FOIA, noting that "the Freedom of Information Act does not provide a right of action to enjoin disclosure." 

3. ACLU v. DHS, No. 08-1100, 2011 WL 4100962 (D.D.C. Sept. 15, 2011) (Walton, J.)

Re:  Request for records pertaining to deaths of immigrants in DHS custody

Holding:  Granting plaintiff an award of attorney fees, but making certain deductions based on a computational error and unreasonable billing entries

• Attorney fees:  The court grants plaintiff an award of attorney's fees, deducting certain billing entries that were not reasonable.  Eligibility: In terms of assessing plaintiff's eligibility for attorney fees, the court first notes that "[t]his Court has found that FOIA litigation substantially caused the release of documents when the 'defendant's own affidavits stated that the review of the documents from which [the released] pages were drawn was being done" incidental to the preparation of "one of its Vaugh[n] affidavits.'"  Here, the court finds that "defendants' own submissions admit that at least some of the documents were produced as a result of preparing Vaughn indexes" and concludes that since these records would "not have been produced without litigation; accordingly, the litigation substantially caused the defendants to release these documents."  In addition, the court determines that litigation caused the defendants to continue to search for and produce records after they had filed a report indicating that their response to plaintiff's request was complete.  The court rejects defendants' contention that "some of these records were released as a result of new guidelines implemented by President Obama and Attorney General Eric Holder, and not as a result of this litigation."  The court notes that the Attorney General's memoranda "plainly states that the plaintiff's FOIA request was eligible for review [under the new guidelines] because it was already in litigation at the time the policy change was issued."  The court concludes that "while the release of some records may have been 'precipitated' by the change in policy, . . .  the release of these records was substantially caused by the litigation."  Based on the foregoing factors, the court finds that plaintiff is "eligible" for attorney's fees.  Entitlement: As to the entitlement factors, the court notes that "defendants do not dispute that the first three factors [i.e., the benefit to the public, commercial benefit to the requester, and nature of the requester's interest in the records] favor the plaintiff's 'entitlement' to attorneys' fees."  However, with respect to the fourth entitlement factor, the court concludes that "[p]utting aside the exempt documents [for which the court upheld exemptions asserted by the government], the defendants did not have a reasonable basis for withholding the 8,500 pages of records that were produced after the defendants had 'completed processing and production of all records,' . . . because 'defendant's failure to produce documents due to backlog or administrative issues does not constitute a "reasonable basis in law.'"  Moreover, "[c]onsidering the immense public benefit derived from the disclosure of information concerning ten previously undisclosed deaths, and the plaintiff's total lack of any commercial benefit acquired from the disclosure, the Court finds that [ ] even if the 'reasonable basis in law' factor weighs in favor of the defendants, the other factors nonetheless weigh in favor of the plaintiff being 'entitled' to an award of attorneys' fees."

• Attorney fees/reasonableness:  At the outset, the court makes a deduction "from the requested award to account for [a] mathematical error."  In response to defendants' objection to plaintiff's entries based on "block billing supported by quarter-hour billing," the court observes that "[t]he problem with the practice is that 'billing by the quarter-hour, not by the tenth is a deficient practice because it does not reasonably reflect the number of hours actually worked.'"  However, the court ultimately "adopt[s] the same approach taken by another member of this Court and 'allow [p]laintiff's counsel’s quarter-hour billing increments, but caution[ ] counsel that future time sheets submitted to the Court must reflect billing entries in six-minute increments."  With respect to the reasonableness of other billing entries, the court "agrees . . . with defendants that some of the billing entries must be excluded from the award" and deducts the billing entries related to press communications, a retention letter, and excessive time spent by a junior associate in drafting the complaint. 

4. North v. DOJ, No. 08-1439, 2011 WL 4071634 (D.D.C. Sept. 14, 2011) (Kollar-Kotelly, J.)

Re:  Request for records pertaining to certain grand jury proceedings and a witness who testified against plaintiff at his criminal trial

Holding:  Granting plaintiff's motion for reconsideration, and vacating the court's earlier grant of summary judgment to defendant with respect to records related to a witness at plaintiff's criminal trial; ordering DEA to determine whether certain information is in the public domain

• Public domain:  The court grants plaintiff's motion for reconsideration, vacating its prior ruling that plaintiff "had failed to meet his burden of establishing that the documents he was requesting from DEA were in the public domain and thus could not be withheld under any valid FOIA exemption."  The court finds that "its prior ruling was too broad" because "[w]hile the excerpts of trial testimony produced by [plaintiff] do not establish that the documents themselves became part of the public record, they are sufficient to demonstrate that some information within the requested documents may have been publicly disclosed."   The court concludes that because plaintiff "has met his initial burden of production," "DEA has an obligation to search for and produce any responsive records that contain information identical [to] that which has been publicly disclosed."  Accordingly, "[b]ecause DEA has not demonstrated to the Court that it conducted a search for records responsive to [plaintiff's] request and reviewed those records to determine whether the information contained therein is identical to information that has been publicly disclosed, the Court cannot award summary judgment to DEA" with respect to this count of plaintiff's complaint.

• Exemptions 6, 7(C) &7(D)/Glomar:  The court notes that it "previously declined to decide whether DEA properly issued a Glomar response based on the fact that [plaintiff] was requesting information pertaining to an informant."  However, because plaintiff "has produced trial transcripts demonstrating that the government referred to [the witness] as an informant and that [the witness] testified that he entered into a cooperation agreement to assist the prosecution in [plaintiff's] case in exchange for lenient sentencing in his own case," the court now finds that it "cannot affirm DEA's issuance of a Glomar response." 

5. Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.)

Re:  Requests for various records pertaining to an investigation involving plaintiff and his company

Holding:  Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search

• Adequacy of search:  The court holds that "[d]efendant has met the burden of showing that [it] made an adequate search for records requested and sufficiently conducted 'a search reasonably calculated to uncover all relevant documents.'"

• Exemption 2:  The court notes that, due to the Supreme Court's decision in Milner v. Department of the Navy and becauseBLM used Exemption 2 in conjunction with other exemptions, Exemption 2 "is no longer at issue in this case." 

• Exemption 3:  The court finds that Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) was appropriate to withhold certain information contained in grand jury records.

• Exemption 5 (deliberative process privilege):  The court concludes that BLM properly asserted the deliberative process privilege to protect documents concerning an "undercover operation and investigation which are predecisional and directly relate to the deliberative process."  Moreover, the court notes "[d]raft documents subject to revision or containing proposed changes fall well within the deliberative process privilege." 

• Exemption 5 (attorney-client & attorney work product privileges):  The court concludes that the attorney-client and attorney work product privileges properly protect "written documents or memorandums containing legal advice, as well as client communications to its attorneys, email exchanges between clients and attorneys or amongst government attorneys, letters from the prosecutor to the agency about persons providing information with expectation of confidentiality, memorandums from agents to a prosecutor providing information requested by counsel, letters from attorney to witnesses about case information protected by attorney work product, regarding testimony before the grand jury, and information provided to the attorney by a witness with the expectation of confidentiality." 

• Exemptions 6 & 7(C):  The court holds that BLM properly asserted Exemptions 6 and 7(C) to protect various third party information "including addresses, social security numbers, dates of birth, criminal histories, past addresses, private signatures, phone numbers, drivers license numbers, motor vehicle identification numbers, fax numbers, private e-mail addresses, credit card number, and eBay and Paypal identifiers." 

• Exemption 7(D):  The court concludes that BLM properly asserted Exemption 7(D) to protect "names, identifiers, and information provided by confidential sources" based on an express promise of confidentiality. 

• Exemption 7(E):  The court determines that BLM properly invoked Exemption 7(E) to withhold information about techniques used in undercover investigations.  Here, "the use of some techniques [is] not known to the public" and, additionally, "[t]he information is the type of information that would disclose techniques that could reasonably be expected to risk circumvention of the law."  The court observes that "[k]nowing how law enforcement plans and executes undercover operations is the type of information that, if made public, could allow for planning criminal activity to avoid detection."  

6. Ferguson v. U.S. Dep't of Educ., No. 09-10057, 2011 U.S. Dist. LEXIS 103954 (S.D.N.Y. Sept. 13, 2011) (Maas, Mag.)

Re:  Requests for various records pertaining to accreditation of foreign medical schools

Holding:  Granting, in part, and denying, in part, the Department's motion for summary judgment; and ordering the Department to conduct a limited search for records created during a specific timeframe, but concluding that, in all other respects, the search was adequate

• Procedural/clarification of request:  As an initial matter, the court notes that "[a]n agency clearly may ask a requester to clarify the scope of a FOIA request when it lacks specificity or is overbroad."  Here, the court finds that, although plaintiff claims that he did not agree to modify his FOIA request, evidence shows that he did not object to the agency's suggestion that the search be confined to a particular timeframe.  The court finds that plaintiff "could have declined [the Department's] request and administratively appealed [a Department office's] decision not to search pre-2000 records."  However, "[h]aving failed to take those steps," the court concludes that plaintiff "cannot successfully argue in this forum that his Request remained unrestricted in terms of the applicable starting date."
• Adequacy of search:  The court finds that the Department of Education improperly used the date of the request as the search cut-off date.  The court finds that "the Department has not offered any compelling justification for its decision to limit its search of [an office's] files to records that were created on or before August 3, 2007 – the date of the request" and, accordingly, determines that "the Department has failed to meet its burden of establishing the reasonableness of that aspect of its search."  As such, the court orders the Department to produce any responsive records maintained by that office which were created between the date of the request and the date that the office commenced its initial search.  In all other respects, the court finds that the Department's search was reasonable.  The court finds that plaintiff's "belief that additional responsive records exist – even if correct – . . . does not render the Department's search inadequate."  The court also rejects plaintiff's arguments that the agency should have interviewed various employees in order to ascertain the location of responsive records and that the Department should have reviewed records in the public domain, such as Federal Register announcements, in order to locate additional documents.  The court finds that neither of these approaches is required in light of the fact that the Department searched the offices and databases likely to maintain records responsive to plaintiff's requests.  Additionally, the court rejects plaintiff's claims of bad faith where he "offers nothing more than conclusory statements accusing the Department of 'deliberate[ly]' omitting certain responsive records and questioning the Department's 'due diligence' and good faith in conducting the searches." 

• Discovery/in camera review:  At the outset, the court notes that "[d]iscovery in a FOIA case is 'rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.'"  The court concludes that, in this case, "the Department has proffered detailed declarations describing its search efforts, and [plaintiff] has failed to establish that the search was conducted in bad faith."  Similarly, the court finds that "in camera review of the Department's withheld records is unnecessary inasmuch as the Department has submitted detailed declarations explaining its basis for redacting its records." 

7. Ray v. BOP, No. 06-1673, 2011 WL 4015656 (D.D.C. Sept. 12, 2011) (Roberts, J.)

Re:  Request for various records pertaining to a drug test of plaintiff, information about a particular lab, and disciplinary proceedings related to plaintiff's drug test results; at issue is the search for responsive documents, plaintiff does not contest BOP's claims of exemption

Holding:  Granting BOP's motion for summary judgment on the basis that it conducted an adequate search; and denying plaintiff's motion for leave to file additional "pleadings"

• Adequacy of search:  The court concludes that BOP conducted an adequate search for records responsive to plaintiff's request.  The court rejects plaintiff's claim that defendant's search was inadequate because it failed to locate certain "chain-of custody" records or documents that address specific questions related to his drug testing, or discussions of the test results which support BOP's disciplinary findings.  The court notes that "the FOIA 'neither requires an agency to answer questions disguised as a FOIA request, or to create documents or opinions in response to an individual's request for information.'"  Additionally, the court finds that "[t]he fact that certain records may not have been located neither demonstrates the inadequacy of a search, . . . nor 'plac[es] the sufficiency of the identification or retrieval procedures genuinely in issue.'" 

• Litigation considerations/Administrative Procedure Act (APA) claim:  The court dismisses plaintiff's APA claim that BOP "systematically delays processing prisoners' FOIA requests."  The court concludes that "[b]ecause the FOIA provides an adequate remedy for agency delay – which [plaintiff] utilized in bringing this case – a claim under the APA is not maintainable."  Moreover, the court notes that BOP's 98 percent processing rate, along with its "admitted mishandling" of plaintiff's request due to a processing error, "belie a sweeping claim predicated on a broken system."

8. Elec. Priv. Info. Ctr. v. DHS, No. 09-2084, 2011 WL 4014308 (D.D.C. Sept. 12, 2011) (Urbina, J.)

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

Holding:  Denying plaintiff's motion for relief upon reconsideration brought under Federal Rules of Civil Procedure 54(b), 60(b)(1), and 60(b)(6); and granting, in part, and denying, in part, plaintiff's award for attorney's fees

• Litigation considerations/motion for reconsideration:  The court denies plaintiff's Rule 54(b), 60(b)(1), and 60(b)(6) motions for relief upon reconsideration of the court's earlier order granting summary judgment to DHS with respect to records withheld under Exemption 2 on the basis that the Supreme Court's decision in Milner v. Department of the Navy represents "an intervening change in the controlling law for its case."  The court rejects plaintiff's claim that "Rule 54(b) is an appropriate vehicle for requesting such reconsideration because, in light of the pending motion for statutory attorney's fees, the court's Order should not be considered a 'final judgment,' but rather an interlocutory decision."  The court notes that "[i]f a court has resolved the merits of a case through a final order and only a statutory request for attorney's fees remains, the merits of the case are no longer pending for appeal purposes and the judgment is considered final and immediately appealable."  Here, "[b]ecause the court's January 12, 2011 Order constitutes a final judgment as opposed to an interlocutory order, the plaintiff's motion seeking relief upon reconsideration of that Order is not properly brought under Rule 54(b), which can only be used to seek reconsideration of interlocutory orders."  As for plaintiff's Rule 60(b)(1) motion, the court finds that such a motion, when "brought due to a change in controlling law[,] is timely only if either the movant has already filed an appeal or if the movant files its motion for relief within the appeal period."  In this case, "plaintiff, despite knowing that Milner had been granted certiorari by the Supreme Court, . . . did not file its motion for relief upon reconsideration until ten days after the appeal period closed."  The court concludes that "allowing the plaintiff to artificially extend its appeal time period in this fashion would embrace an interpretation of the reasonable time limits for a Rule 60(b)(1) motion that would undermine the finality of the court's judgment and promote uncertainty."  Lastly, the court "determines that the plaintiff[ ] may not seek relief upon reconsideration under Rule 60(b)(6)," noting that "the change in law presented by Milner is not considered an 'extraordinary circumstance' under [that] Rule."

• Attorney fees:  The court grants, in part, and denies, in part, plaintiff's motion for attorney's fees.  Eligibility:  As a preliminary matter, the court notes that "DHS does not reject the plaintiff's claim that it substantially prevailed."  Additionally, the court finds that in this case "plaintiff's lawsuit has clearly elicited a 'voluntary or unilateral change in [DHS's] position'" because documents were only produced after litigation was initiated and DHS did not "seek to take advantage of the statutory mechanisms available to extend its response time."  Moreover, the court rejects defendant's arguments that "its failure to disclose non-exempt documents was due to 'backlog as well as administrative error,'" concluding that "these generic statements – without any evidence demonstrating that a backlog existed or that the agency performed its due diligence in processing plaintiff's FOIA requests – are insufficient to show that DHS experienced 'unavoidable delay' despite due diligence in the administrative process.'"  Accordingly, the court finds plaintiff is eligible for attorney's fees.  Entitlement: The court holds that plaintiff is also entitled to an award of attorney's fees.  In terms of the public benefit factor, the court finds that "[t]he records disclosed to the plaintiff in the course of this litigation have provided a public benefit in that they were covered extensively in the news and cited frequently as a news source during the public debate surrounding the use of whole body imaging devices in airports." Accordingly, the court concludes that "the records released in the course of this litigation 'further[ed] public understanding,' . . . in that the thrust of the information obtained by the plaintiff is 'likely to add to the fund of information that citizens may use in making vital political choices.'"  The court also finds that "the 'commercial benefit' and 'nature of interest' elements weigh in favor of granting the plaintiff's motion for attorney's fees" because "plaintiff is a '501(c)(3) non-profit public interest research center' . . . [that] derived no commercial benefit from its FOIA request or lawsuit" and "[i]ts aims, which include dissemination of information regarding privacy issues to the public . .  fall within the scholarly and public-interest oriented goals promoted by FOIA."  As to then final entitlement factor, i.e., the reasonable basis in law for withholding the information,  "because DHS's administrative delay and a generic claim of a FOIA backlog do not form a 'reasonable basis in law' for withholding in these circumstances, . . . and because DHS has not provided any other reasonable basis in the law for its failure to respond to the plaintiff's two FOIA requests, the court determines that this factor also weighs in favor of granting the plaintiff's motion for attorney's fees."

• Attorney fees/reasonableness:  At the outset, the court notes that "both parties have effectively assented to the use of the Laffey Matrix as an appropriate baseline for any fee award."  The court finds that "plaintiff's request for attorney's fees warrants a reduction due to several instances of duplicative or excessive billing."  For one, the court concludes that "because both complaints in this case consist largely of boilerplate language and an uncomplicated factual history, . . . the twenty hours spent between them is unreasonable."  Next, the court determines that an award of fees is not appropriate for an unsuccessful motion for summary judgment which "can be reasonably separated from the portion of the litigation that catalyzed the release of responsive records" as well as for "unnecessary work" associated with a motion that was never entered.  However, the court "awards fees related to the plaintiff's review of DHS's [pre-litigation] disclosures" because "it would seem critical to the prosecution of a FOIA lawsuit for a plaintiff to review an agency's disclosure for sufficiency and proper withholding during the course of its FOIA litigation."  With respect to fees incurred in preparing plaintiff's fee petition, the court awards "'fees on fees'" because "upon close scrutiny of the record, . . . the hours spent by plaintiff on these tasks were reasonably expended and do not constitute a 'windfall' for the attorneys."  However, the court concludes that plaintiff is not entitled to a fee enhancement based on its experience litigating such matters because the Laffey Matrix formula already "incorporate[s] higher fees for greater experience" and "would therefore compensate the plaintiff sufficiently in this case."  The court also finds that plaintiff is not eligible for a fee enhancement based on "its 'unusually exhaustive administrative filings,'" noting that "work performed at the administrative level is not compensable under FOIA."  In terms of defendant's arguments that fees should be reduced by 50 percent, the court concludes that "[a]ny deficiencies that [have been] noted in the plaintiff's fee request have not rendered the plaintiff's request 'outrageously unreasonable'" and therefore the fee request "does not approach a level of impropriety that would prompt the court to further reduce the plaintiff's attorney's fee award." 


District Courts

1.  Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS107883 (M.D. Tenn. Sept. 22, 2011) (Trauger, J.)

Re:  Requests for records pertaining to criminal investigation of plaintiff, and information related to third parties

Holding:  Granting summary judgment to defendants based on the propriety of their withholdings

• Exemption 7(C):  As an initial matter, the court notes that although the FBI claimed Exemptions 6 and 7(C) for certain records, "[b]ecause all of the redacted records were compiled for law enforcement purposes, and because Exemption 7(C) provides broader privacy protections than Exemption 6, the court can resolve this motion by largely focusing on Exemption 7(C)."  Based on an in camera review of the records at issue, the court concludes that the FBI properly asserted Exemption 7(C) to protect the identities of FBI agents and employees, third parties who provided information to law enforcement, state and local law enforcement officials, individuals of investigative interest, victims, and the rap sheets of third parties.  In terms of the privacy interests involved, the court finds that "[t]he defendants' suggestion that it is an 'invasion of personal privacy' to release to the public the names and identifying information of those involved in law enforcement investigations is well supported by the case law" and notes that the FBI's declaration also identifies the harms that could be occasioned by disclosure. 

On the other hand, the court finds that "the first 'countervailing public benefit' identified by the plaintiff, [namely,] that the unredacted production would be a tool to aid him in his underlying state collateral review proceedings, is an illegitimate one."  Rather, the court determines that "[t]he purposes of civil discovery (which aids the litigant) and FOIA (which aids the public at large) are clearly distinct, and FOIA does not serve as a 'substitute for the normal process of discovery in civil and criminal cases.'"  As to plaintiff's claim that "it is in the public interest to know whether the 'FBI might be withholding information that could corroborate a death row inmate's claim of innocence,'" the court finds that "[w]hile there is undoubtedly a public interest in shedding light on how the federal agencies operate and whether they could work to imprison someone illegitimately, the specific information being withheld does not shed light on how the FBI works or if the FBI is engaged in conduct that might have resulted in an innocent man being sentenced to death."  Instead, the court notes "the information being withheld is, by and large, the names and identifying information of people who happened to be involved in the investigation" of plaintiff and, as the Supreme Court recognized in Reporters Committee, "[t]his information . . . does not generally assist the public in determining whether the agency is performing its duties properly."  The court notes that plaintiff's reliance on the D.C. Circuit's decision in Roth v. U.S. Department of Justice, which found that "a death sentence 'strengthened the public's interest in knowing whether the FBI's files contain information that could corroborate an innocence claim,'" is not applicable here, because, in contrast to Roth, the FBI did not invoke a Glomar response and the documents were reviewed by the court in camera. As such, the court concludes that public interest implicated by the records is "negligible," and weighing this minimal public interest "against the recognized privacy interests at issue, and it is clear that the defendants are properly redacting names and indentifying information of those connected with the law enforcement investigation."

• Exemption 7(D):  With respect to defendants' "relatively few invocations of Exemption 7(D)," the court gives no weight to plaintiff's assertion that "he has become aware of the names of the individuals that the defendants seek to protect through redaction, along with some of the information that they provided, and that most of this information is contained in state law enforcement files that should have been disclosed at the time of his trial."  Rather, the court finds that "[i]t is well settled . . . that the identity of confidential informants and the information they provide is to be protected under FOIA, even if 'a confidential source is later revealed.'"

• Segregability:  Although the court notes that "[t]here are a handful of places in the record" where defendants' assertion of Exemption 7(C) "does not provide information that is facially 'identifying'" to an individual, it "presumes that the defendants are being extremely 'careful' to redact information that could, if certain connections between individuals were made, arguably be used to identify particular individuals who provided information to law enforcement that was damaging to the plaintiff."  Therefore, "given the challenges posed by the 'reasonable segregability' standard, and the heightened privacy protections that are owed to these individuals who willingly provide potentially incriminating information to law enforcement and the fact that none of the information redacted sheds light on how the Government entity actually performs its functions or suggests that the government agency has been involved in imprisoning an innocent individual, [the court concludes that] the redactions are not inappropriate."  

2.  James v. U.S. Secret Serv., No. 10-1675, 2011 WL 4359853 (D.D.C. Sept. 20, 2011) (Howell, J.)

Re:  Request for information pertaining to criminal investigation of plaintiff; at issue are certain recorded conversations which were part of an earlier FOIA request and litigation initiated by plaintiff and for which the court affirmed the Secret Service's withholdings pursuant to Exemption 7(A) based on the pendency of plaintiff's appeal of his criminal convictions; with respect to the instant request, Exemption 7(A) is not longer applicable because the Seventh Circuit has affirmed plaintiff's convictions

Holding:  Granting defendant's motion to dismiss, or alternatively, for summary judgment

• Procedural/destruction of records:  The court notes that plaintiff does not contest the adequacy of the Secret Services' search for responsive records, but rather, contends that "the agency destroyed the recordings not only prior to the expiration of [the] 10-year period required under 18 U.S.C. § 2518(8)(a), but also prior to the completion of criminal proceedings, namely[,] the expiration of the 'one-year time limitation in which to file his 28 U.S.C. § 2255 petition.'"  The court rejects each of these arguments.  First, the court treats as conceded defendants' motion to dismiss with respect to plaintiff's claim citing 18 U.S.C. § 2518(8)(a), because his complaint states no claim under that statute, and also concludes that, in any event, plaintiff's reading of the statute is incorrect.  Second, the court finds that "the Secret Service no longer maintained or controlled the requested recordings at the time that [plaintiff] submitted his second FOIA request in 2009" and notes that "[a]n agency does not control a record which has been destroyed . . . and it is under no obligation to obtain a duplicate of or to re-create a record."  Third, the court finds that "plaintiff is under the mistaken impression that the Secret Service was to have monitored and therefore known of the conclusion of all post-conviction proceedings, in order to release the desired records without plaintiff having to request them."  Rather, the court states that "[t]he FOIA does not require an agency to update or supplement a prior response to a request for records."  In conclusion, the court determines that "[p]laintiff's bald allegations that [certain] recordings were destroyed in bad faith appear to be based upon misinterpretations of the law and unsupported speculation, and are wholly insufficient to rebut the presumption of good faith afforded to agency declarations." 

3. Bloeser v. DOJ, No. 09-2168, 2011 WL 4346704 (D.D.C. Sept. 19, 2011) (Jackson, J.)

Re:  Request for records pertaining to plaintiff maintained by the Office of the Inspector General (OIG) and the Office of the Attorney General

Holding:  Granting defendant's motion for summary judgment based on the adequacy of its search

• Adequacy of search:  The court determines that "the methods by which defendant has searched for responsive records were reasonable, appropriate, and fully in compliance with its obligations under FOIA, and that plaintiff has offered nothing more than mere speculation that additional records should have been uncovered."  The court finds that "[t]he fact that plaintiff has written on numerous occasions to senior management offices at the Department of Justice[,] has no bearing on the issue of good faith on the part of the agency conducting the search."  Additionally, the court comments that "[t]o the extent that plaintiff can identify documents which he believes exist in a particular office within the Department of Justice, such identifying information should have been included as part of his original FOIA request in order to narrow the scope of the search requested." 

4.Kubik v. BOP, No. 10-6078, 2011 WL 4372188 (D. Or. Sept. 19, 2011) (Coffin, Mag.)

Re:  Requests for records regarding plaintiffs' son's prison transfer and the incident that led to his shooting death in federal prison; at issue is whether BOP conducted an adequate search for responsive records

Holding:  Granting BOP's renewed motion for summary judgment based on the adequacy of its search

• Adequacy of search:  The court concludes that the supplemental declaration submitted by BOP establishes that it "has performed an adequate search," where the declaration "described the search methods employed – including the electronic search terms used, the locations of the files searched and the method in which the searched files were created."  Moreover, although plaintiffs "speculate that additional responsive records exist, they do not present anything in support of this speculation beyond their conclusory statements."  The court also notes that, contrary to plaintiffs' arguments, "BOP's failure to comply with FOIA's twenty day [response] deadline does not preclude summary judgment in the agency's favor."

5.Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2011 U.S. Dist. LEXIS 108142 (D.N.H. Sept. 16, 2011) (Barbadoro, J.)

Holding:  Granting FAA's motion to dismiss or, in the alternative, for summary judgment, but delaying entry of final judgment twenty days in order to allow plaintiff to file an amended complaint to set forth a claim for relief

• Litigation consideration:  The court determines that plaintiff "has made a conclusory allegation in the complaint that 'the FAA has wrongfully withheld agency records'" premised on the FAA's failure to act on an administrative appeal of its initial determination within 20-days as set forth by the FOIA.  The court finds that "[t]he FOIA does not . . . authorize a court to review an agency's failure to act on an appeal" and, as such, plaintiff's "complaint does not plead sufficient facts to support a claim for relief under [the FOIA]."  Accordingly, the court grants defendant's motion to dismiss or, in the alternative, for summary judgment, but "delay[s] entry of final judgment for 20 days to give [plaintiff] an opportunity to file an amended complaint setting forth a claim for relief under § 552(a)(4)(B)."


Updated August 6, 2014