Summaries of New Decisions

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 FEBRUARY 1

Courts of Appeal

1.  CASA de Maryland, Inc. v. DHS, No. 10-1264, 2011 WL 288684 (4th Cir. Jan. 31, 2011) (per curiam)

Re:  Request for records pertaining to an Immigration and Customs Enforcement raid and an investigation of that incident

• Exemptions 6 & 7(C):  The Fourth Circuit affirms the district court's decision ordering the disclosure of names contained in an internal investigation report authored by DHS's Office of Professional Responsibility (OPR).  Upon reviewing the record, the Circuit concludes that the district court properly found that the public interest in disclosure outweighed the privacy interest of individuals identified in the records in light of the evidence produced by plaintiff indicating that agency impropriety might have occurred in connection with the raid.  The Circuit notes that plaintiff "submitted affidavits from thirteen of the arrestees which all suggested that government agents arrested them without first obtaining any information about their immigration status and ignored non-Latino day laborers," and also "submitted the declarations of ICE agents given during removal proceedings for some of the arrestees" which "differed markedly" from affidavits included in the OPR report.  Additionally, the Circuit observes that the OPR report "contained statements from an ICE agent indicating that supervisory personnel suggested that he should not admit that the [ ] raid was intentional." 

District Courts

1.  Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-2436, 2011 WL 332541 (D.D.C. Feb. 3, 2011) (Huvelle, J.) 

Re:  Request for records pertaining to "gold swaps"

• Adequacy of search:  The court concludes that the Board conducted a reasonable search for responsive documents and finds that "plaintiff's arguments fail to raise 'substantial doubt' as to the adequacy of [its] search."  The court finds that "[d]efendant properly relies upon a reasonably detailed affidavit that demonstrates the adequacy of the search."  The court then addresses plaintiff's arguments challenging the sufficiency of the Board's search.  For one, the court rejects plaintiff's contention that the Board "should have identified the 'records systems that were not checked for records responsive'" to its FOIA request, finding that the Board "is not required . . . to provide an additional list of each place that it did not search."  Similarly, the court dismisses plaintiff's argument that the Board's failure to "seek records from 'other potential sources' including the eleven regional federal reserve district banks" indicates the search is inadequate.  Rather, the court finds that the declarant explained the reasons for searching a particular bank and notes that plaintiff "provides no evidence" to suggest that responsive documents would be located in other federal reserve banks. 

With respect to plaintiff's argument that the Board should have referred its FOIA request to the Federal Open Market Committee (FOMC), the court finds that plaintiff fails to explain how such a referral "would be reasonably likely to produce additional materials, particularly in light of the fact that plaintiff subsequently submitted a separate FOIA request to FOMC."  Additionally, the court finds that the fact that the Board withheld documents, which were initially found to be responsive to an earlier, broader, FOIA request regarding a similar subject matter, but that did not specifically pertain to gold swaps, "could indicate that [its prior] search was overbroad . . . [and] do[es] not serve to undermine the adequacy of [its later] search."  The court also rejects as speculation plaintiff's contention that additional records exist and likewise dismisses its argument that the Board's failure to uncover a responsive record posted on its website renders the search inadequate.

• Discovery:  The court denies plaintiff's request for discovery as to the adequacy of the Board's search, noting that "[d]iscovery is generally unavailable in FOIA actions . . . 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.'"

• Exemption 5 (deliberative process privilege): Based on its in camera review of the documents at issue, the court concludes that the Board properly invoked Exemption 5 to withhold certain deliberative and pre-decisional communications, including memoranda, draft documents and other records containing recommendation and analysis.  As an initial matter, the court rejects plaintiff's contention that "the Board must identify a specific decision corresponding to each [withheld] communication."  Instead, the court citing the Supreme Court's decision in NLRB v. Sears, Roebuck & Co., notes that "'[o]ur emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.'"  The court also dismisses plaintiff's assertion that "only the early drafts of documents may be validly withheld pursuant to Exemption 5, and that once a memorandum become finalized it can no longer be 'predecisional.'"  The court finds that "[s]uch a narrow view of Exemption 5 ignores the possibility, as here, that a memorandum may not represent final agency policy, but rather 'the staff's recommendations and advice regarding possible ways to proceed and consequences associated with proceeding in a certain manner.'" 

However, with respect to a staff member's notes that were withheld in full, the court finds that Exemption 5 does not apply because "it is apparent that these notes do not reflect 'the writer's analytical views regarding the matters discussed' . . . but rather are a straightforward factual recounting of a meeting with representatives of foreign central banks, detailing what each of the participants said. 

• Exemption 4:  The court holds that the Board properly asserted Exemption 4 to protect "information provided by foreign central banks ('FCBs') regarding potential draws on currency swap arrangements or inquiries about swap arrangements that were never actually entered into" as well as certain details related to a proposed business transaction.  The court finds that the withheld information "is commercial and financial in nature, as it details banking 'transactions' and 'account arrangements' or 'potential transactions' involving FCBs" and that the information obtained from the FCBs, "was obtained from 'persons' as defined by FOIA."  Additionally, the court holds that although some of the withheld records were created by the Federal Reserve Board and the Federal Reserve Bank of New York, "this does not preclude the application of Exemption 4" because "[a]n agency may withhold portions of its own reports containing information 'supplied by' third parties." 

Lastly, the court determines that "the information is confidential, as the FCB's provided it voluntarily and do not customarily release such information to the public."  Despite plaintiff's argument that the FCB's "'were required to provide the information to [the Board]" as a condition for entering into certain transactions, the court finds the submissions of the FCBs were voluntary and that the Bank lacked "the legal authority to compel any such production from the FCBs." 

• Segregability: "Having reviewed these documents in camera, the Court is satisfied that defendant has produced all reasonably segregable nonexempt material." 

2.  Alston v. FBI, No. 09-1397, 2011 U.S. Dist. LEXIS 9844 (D.D.C. Feb. 2, 2011) (Urbina, J.)

• Litigation considerations:  The court dismisses the case without prejudice where pro se plaintiff's in forma pauperis status was revoked and he did not pay court filing fees within the allotted time.

3.  Raher v. BOP, No. 09-526, 2011 U.S. Dist. LEXIS 10213 (D. Or. Feb. 2, 2011) (Stewart, Mag.)

• Litigation considerations:  The court dismisses plaintiff's civil action brought against a private corporation under 42 U.S.C. § 1983 for depriving him of his rights under the FOIA to access public records.  The court concludes that "Congress foreclosed the use of § 1983 as a private remedy for improper withholding of information by a private individual or state agency under FOIA" and further finds that "the language of FOIA falls well short of unambiguously creating a private right of action and providing a private remedy against defendants that are not federal agencies." 

4.  Buc v. FDA, No. 10-293, 2011 WL 304651 (D.D.C. Feb. 1, 2011) (Kollar-Kotelly, J.)

Re:  Requests for records pertaining to Zicam cold remedy nasal products

• Open America stay:  The court denies the FDA's motion for a stay of proceedings, concluding that "the FDA has failed to carry its burden of establishing the 'exceptional circumstances' required to justify the stay it seeks."  First, the court determines that "[t]he FDA has failed to establish that it is overwhelmed 'with [a] volume of requests . . . vastly in excess of that anticipated by Congress.'"  Despite the FDA's argument that it "no longer sees the same number of requests for common, easy-to-locate records and instead faces a higher percentage of more complex, time-consuming requests" as a result of "its ongoing efforts to post documents of public interest on its website," the court finds that "there is insufficient evidence in the record that would allow this Court to draw a meaningful conclusion as to whether the [FDA's Division of Information Disclosure Policy's (DIDP's)] workload has, on the whole, increased in complexity with sufficient magnitude to offset the downward tread in overall requests."  With respect to the FDA's argument that "DIDP's workload has increased in recent history by virtue of requests from Congress, agencies and foreign, state and local governments," the court concludes that "the FDA again fails to provide a sufficiently particularized showing as to the burdens involved with responding to such requests."  Additionally, the court notes that "even assuming that this aspect of the DIDP's workload was once unpredictable or unforeseen, it now appears to be routine." 

The court also determines that the FDA does not provide adequate support for its assertion that "document productions made in connection with FOIA-related lawsuits and subpoenas comprise part of the DIDP's present workload."  Likewise, the court finds although "'newly' imposed statutory obligations" imposed on the FDA by the Food and Drug Administration Amendment Act of 2007 "may be a valid consideration in determining whether a stay is appropriate, the FDA has failed to provide this Court with sufficient record support to conclude that the enactment of the [statute] has resulted in an unmanageable deluge of unanticipated requests."

Second, the FDA also does not qualify for stay based on a showing of exceptional circumstances because it failed to establish that it made reasonable progress in reducing its backlog of pending FOIA requests.  The court finds that it "cannot determine whether the decrease in the DIDP's backlog is attributable to the measures identified by FDA or rather the contemporaneous and substantial downward trend in incoming requests."  "Nor does the record support the inference that the DIDP has been reducing its backlog of pending requests at a significantly more rapid rate that than the contemporaneous decline in the number of incoming requests."  Third, the court finds that the FDA's failure "to establish that its resources are inadequate to address the volume and the complexity of requests faced" is another factor precluding the finding that exceptional circumstances exist.  Accordingly, the court orders "the FDA to (a) begin processing Plaintiffs' FOIA requests immediately, (b) promptly produce any responsive documents on a rolling basis, and (c) complete its production on or before March 1, 2011."

5.  Dennis v. United States, et. al., Nos. 10-5042, 10-5044, 10-5045, 2011 U.S. Dist. LEXIS 8949 (E.D.N.Y. Jan. 31, 2011) (Gleeson, J.)

• Exhaustion of administrative remedies:  The court dismisses without prejudice plaintiff's FOIA actions against three government entities on the grounds that she failed to exhaust her administrative remedies.  For one, the court finds that plaintiff provided no evidence to show that she submitted administrative appeals in conjunction with her requests to the DOJ's Civil Rights Division and the FBI.  Furthermore, the court finds no evidence "suggesting that [plaintiff] successfully communicated her request to the CIA in the first instance, let alone exhausted her administrative remedies with the CIA."

6.  Reno Newspapers, Inc. v. U.S. Parole Comm'n, No. 09-683, 2011 WL 222144 (D. Nev. Jan. 24, 2011) (Reed, J.)

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

• Exhaustion of administrative remedies:  The court concludes that plaintiff was not required to exhaust its administrative remedies in response to one of the agency's release of documents, which occurred after the instant action was filed.  The court notes that "[o]nly Defendants' first disclosure fell within the time constraints delineated in [the FOIA]" and plaintiff "actually exhausted its administrative remedies with respect to the [agency's initial] disclosure."  The court finds that "[t]he remainder of Defendants' disclosures were made outside section 552's time limits, and thus Plaintiff has constructively exhausted its administrative remedies as to those disclosures."  Moreover, the court "decline[s] to penalize Plaintiff because Defendants chose to respond to Plaintiff's FOIA request in a piecemeal faction."

• Adequacy of Vaughn Index:  The court finds that the Commission's Vaughn index is "insufficiently detailed to pass muster" and that its revised index should "(i) state all claimed exemptions in a single document; (ii) state with greater specificity why an exemption is relevant to a particular document; (iii) clearly state whether any information contained in a withheld document is segregable; and (iv) clarify whether the Commission has a law enforcement purpose or mixed law enforcement and administrative functions with respect to any exemptions claimed under 5 U.S.C. § (b)(7)(C)."  The court notes that "[a]s an initial matter, there appears to be some confusion as to which document or documents constitute the Vaughn index at issue."  Further, defendants did not ask the court to consider their declaration and a subsequent disclosure by the Commission as part of its Vaughn index.  However, the court finds, based on its reading of FOIA case law, that "even if Defendants argued for considering those documents to be part of the Vaughn index . . . a valid Vaughn index must be contained in one document, complete in itself."

The court finds that because the Commission's Vaughn index "do[es] not in every case . . . explain why [a given] exemption is relevant," it is "unable to evaluate the propriety of each exemption without index entries that clearly demonstrate the connection between each exemption and the information withheld."  The court also notes that aside from the "blanket assertion" in the declaration "that the Commission is 'a law enforcement agency whose principal function is the enforcement of criminal laws,'" "Defendants fail to provide sufficient information to enable us to determine whether the Commission has a clear law enforcement mandate or has a mixed function."  Moreover, the Commission failed to "address whether the document at issue has a rational nexus with enforcement of federal law or whether the document has a purpose falling within the Commission's enforcement authority."  Lastly, the court finds that, due to the inadequacies identified in the Vaughn index, it is "premature" for the Commission to argue that lack of a public interest asserted by plaintiff serves as a basis for its withholdings under Exemptions 6 and 7(C). 

WEEK OF FEBRUARY 7

District Courts

1.  Abuhouran v. Nicklin, No. 11-271, 2011 WL 488673 (D.D.C. Feb. 11, 2011) (Huvelle, J.)

• Proper party defendants:  "[B]ecause only a federal agency is the proper defendant in a FOIA action, Plaintiff fails to state a FOIA claim upon which relief may be granted as to individually named State Department defendants." 

• Damages:  The court dismisses plaintiff's claim for money damages, noting that "'[i]t is well[ ] settled that monetary damages are not available under FOIA.'"

• Litigation considerations:  The court severs plaintiff's FOIA claim from the nine non-FOIA claims that he brought against defendants residing in the Pennsylvania and New Jersey areas.  The court reasons that "[t]he FOIA claim . . . shares neither a common question of law nor fact with any [of the] other claim[s]."  With respect to the substance of the FOIA claim, the court orders plaintiff "to identify [by a certain date] whether he wishes to proceed" with the action.  The court cautions that plaintiff's "[f]ailure to respond may result in dismissal of the FOIA action for failure to prosecute." 

2.  Vazquez v. DOJ, No. 10-0039, 2011 WL 474411 (D.D.C. Feb. 10, 2011) (Leon, J.)

Re:  Request for log showing the identities of law enforcement agencies that queried the FBI's National Crime Information Center (NCIC) for plaintiff's criminal history

• Proper party defendants:  The court dismisses plaintiff's claims against three DOJ components, but notes that "DOJ is named as a defendant to this action."   

• Exemption 2 (High 2/Glomar):  As an initial matter, the court finds that "the '[i]nformation detailing which law enforcement agencies query the NCIC database for information is not known to the public,' [ ] thereby satisfying the requirement that the information be predominantly internal" under Exemption 2.  The court then determines that "DOJ justified its Glomar response by showing" "how the requested information relates to the FBI's practice of maintaining and exchanging information pertinent to law enforcement investigations and how a targeted individual could use such information to circumvent detection and/or contravene criminal statutes." 

3. Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.)

Re:  First and third-party requests; at issue is the adequacy of the FBI's revised Vaughn index

• Reprocessing responsive records:  The court finds that the FBI's decision to voluntarily reprocess all the responsive documents involved in the litigation instead of confining its efforts to an agreed upon representative sample does not warrant another reprocessing of the full universe of responsive records.  Significantly, the court finds that because the FBI voluntarily re-processed the entirety of the records ensuring uniform processing "standards and procedures," the "representativeness" of the sample remained.  Moreover, given that the FBI already voluntarily re-processed all the documents, the court observes that plaintiff's "arguments must fail for the fundamental reason that he has already received all the relief to which he might hypothetically have been entitled as a result of any errors in the FBI's first reprocessing efforts."  Additionally, the court rejects plaintiff's contention that additional reprocessing is warranted based on an "error rate," which he calculated by comparing the FBI's initial production with the reprocessed records.  The court finds that plaintiff's "calculations are inaccurate and misleading, and that his argument again ignores the fact that the FBI has already reprocessed the records at issue" and that "[t]here is no evidence in the record, and [plaintiff] has certainly not pointed to any, that would suggest that there is a meaningful incidence of errors in the second reprocessing." 

• Adequacy of Vaughn Index:  The court holds that, with its revised Vaughn index, "the FBI has remedied the infirmities in its prior submissions and has otherwise complied with the applicable legal standard."  The court concludes that FBI was not obligated to include in the Vaughn index records which were not part of the agreed upon representative sample and which plaintiff "affirmatively chose to exclude from the sample."   

The court rejects plaintiff's arguments concerning "the FBI's decision to identify each document individually and then situate the document within one or more of sixteen categories corresponding to the nature of the information at issue and the proffered justification for non-disclosure."  Rather, the court comments that "the case law [in this respect] is clear: an agency is not precluded from grouping categories of documents that merit similar treatment when preparing its Vaughn index."  "The essential point is that the FBI has, in this case, justified its withholding decisions through commonalities, not generalities, and explained why the exemptions claimed to apply to a given document (or type of document) while affording due attention to the contents of the withheld information."  With respect to plaintiff's assertion "that the FBI should be required to reprocess all the records responsive to his various requests due to a handful of 'alleged inconsistencies,' in the FBI's treatment of records," the court determines that "[a]ll of the 'inconsistencies' identified by [plaintiff], to the extent that they can even be characterized as such, are the sort of 'minor ambiguities' that the [D.C. Circuit] has described as 'undeserving of extended treatment.'" 

• Exemption 1/waiver:  The court finds that the FBI properly invoked Exemption 1 for classified information where it explained in detail how the records satisfied the procedural requirements under Executive Order 12,958, and demonstrated "in a reasonably detailed and non-conclusory manner - that each item of information withheld . . . falls within at least one of the categories enumerated within EO 12,958."  The court finds that plaintiff's "contention that the FBI has released other material that was formerly classified, even if true, is neither indicative of bad faith nor sufficient to overcome the substantial weight and deference owed to the FBI's determination as to the harm that would flow from disclosure of the information withheld."  As to whether the "FBI has waived the right to maintain its current classification designations," the court concludes that plaintiff "has failed to establish, as he must, that the information now requested is 'as specific as' and 'match[es] the information previously disclosed.'"  The court also rejects plaintiff's argument that "the passage of time has rendered the FBI's classification claims questionable," noting that "[t]he applicable legal standard . . . is clear and 'allocates to the [g]overnment the responsibility for evaluating the harms associated with public disclosure, and neither the proponent of disclosure nor the district court is free to substitute its own policy judgments for those of the Executive." 

• Exemption 2:  The court concludes that the FBI properly withheld "confidential source symbol numbers and confidential source file numbers" pursuant to Exemption 2.  The court cites to the FBI's declarations that describe how source identifiers are "internal administrative tools [used by the FBI] to protect the identity of confidential sources and to facilitate the exchange of information provided by such sources."  Additionally, the release of the identifiers could compromise identity of sources, "endanger the lives of those sources and their families and associates" and "impede the FBI's effectiveness in gathering confidential information."

• Exemption 7 (threshold):  The court finds the FBI's representations that the records at issue "were compiled by the FBI as part of an 'internal security' investigation of [plaintiff] and various third parties" "suffice to establish a rational relationship between the FBI's law enforcement responsibilities and the records withheld on this basis."  The court rejects plaintiff's unsupported assertion that the records were compiled in connection with unlawful surveillance, finding that "[t]here simply is no competent evidence in the record that the materials as issue here were compiled for any purpose other than that supplied by the FBI."

• Exemption 7(C):  The court holds that the FBI properly invoked Exemption 7(C) to withhold identifying information of various third parties.  The court finds that "[t]he FBI has described, plausibly and in considerable detail, the harms one might reasonably expect to flow from the public disclosure of such information" and "credibly assert[ed] that it reviewed each item of information withheld, and concluded in each instance that the implicated privacy interests outweighed the public interest in shedding light on the FBI's performance of its responsibilities."  Additionally, the court notes that "the FBI did not withhold identifying information where it was able to determine that the individual was deceased or was a high-ranking government official whose activities may be of a greater public interest." 

The court rejects plaintiff's argument that "some small subset of these individuals are his 'friends and associates' and 'would not be concerned with any privacy intrusion."  Rather, the court finds that his assertion is "unsupported by competent evidence and ignores the fact that agencies are permitted to make categorical determinations when making withholding decisions under [Exemption 7(C)]."  The court also finds that the passage of time does not necessarily diminish privacy interests, noting that agencies are required to make "reasonable efforts to ascertain life status," which the FBI has done.  With respect to plaintiff's argument that disclosure of the identities would "further a public interest 'in learning the details of illegal FBI surveillance activities,'" the court finds that "when the substantive contents of the records have otherwise been disclosed, [the release of such information] would shed relatively little light on the performance and activities of the FBI."  Additionally, the court finds that plaintiff "has failed to present anything remotely approaching [the] quantum of evidence" required under Favish to support his allegations of wrongdoing on the part of the FBI.

• Exemption 7(D):  The court determines that the FBI properly withheld information pertaining to confidential sources where it "credibly explains, in a reasonably detailed and non-conclusory manner, that the information at issue in each instance was received in connection with an express grant of confidentiality and describes how the public disclosure of such information would have a chilling effect on the cooperation of other sources and thereby would hinder its ability to gather confidential information."  

• Segregation:  "Based upon [the FBI's detailed] descriptions [in its declarations] as well as a searching review of the records that the FBI has withheld only in part, the Court concludes that the FBI has adequately demonstrated, in reasonable and non-conclusory terms, that all nonexempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

• Litigation considerations:  The court dismisses plaintiff's attempts to re-litigate search issues for which the FBI has already been granted summary judgment, concluding that such an attempt is untimely and that his challenges are "without legal or factual merit."

• Discovery:  The court denies plaintiff's request for discovery, finding that because "summary judgment has already been granted in the FBI's favor as to the reasonableness of the search, . . . there is simply no basis for conducting discovery on an issue already decided by the Court."  Moreover, "where, as here, the agency's declarations are sufficiently detailed and the district court is satisfied that no material dispute remains, discovery should be denied."   

4. Cooper v. Stewart, No. 10-326, 2011 WL 442052 (D.D.C. Feb. 8, 2011) (Howell, J.)

Re:  Request for records pertaining to a detainer lodged against plaintiff

• Proper party defendants:  The court dismisses three federal employees involved in processing plaintiff's FOIA request as party defendants "[b]ecause the FOIA applies only to certain executive branch agencies of the federal government."  Additionally, the court dismisses plaintiff's Bivens and tort claims against these individuals because "such claims are not recognized under the FOIA."

• Adequacy of search:  The court concludes that EOUSA's search, which encompassed querying its case tracking database and involved contacting various employees of the U.S. Attorney's Office, "was reasonably calculated to uncover all records responsive to plaintiff's FOIA request."  In response to plaintiff's complaint regarding EOUSA's method of searching, the court finds that given that his request "specifically mentions criminal case numbers, cases which would have been assigned to an AUSA, [ ] a search conducted in part through an e-mail request to all AUSAs and support staff to search manual and computer files for responsive records is not unreasonable under the circumstances."  The court also find "[s]peculation as to the potential results of a different search do not necessarily undermine the adequacy of the agency's actual search." 

5.  Sullivan v. Dep't of the Treasury, No. 09-3432, 2011 U.S. Dist. LEXIS 11463 (S.D. Tex. Feb. 7, 2011) (Harmon, J.)

Re:  First-party requests for records related to plaintiff's income tax liabilities for four different years

• Exemption 3:  The court affirms the IRS's assertion of Exemption 3 in connection with 26 U.S.C. § 6103(a) to withhold "the name, taxpayer identification number, address, and tax return information of a third party."

WEEK OF FEBRUARY 14

Courts of Appeal

1.  Jones v. United States, No. 10-30093, 2011 WL 573493 (5th Cir. Feb. 16, 2011) (per curiam)

• Exhaustion of administrative remedies:  The Circuit concludes that "[b]ecause [plaintiff-appellant's] complaint reveals, and he does not contest on appeal, that he mailed his Freedom of Information Act (FOIA) request to Secretary of State Condoleezza Rice at an address other than that specified in the applicable FOIA regulations, his request was invalid, and the district court did not err by dismissing his FOIA claim."

District Courts

1.  Jimenez v. EOUSA, No. 09-2254, 2011 U.S. Dist. LEXIS 15346 (D.D.C. Feb. 16, 2011) (Bates, J.) 

Re:  Request for records pertaining to a superseding indictment that plaintiff alleges was docketed in his criminal case

• Adequacy of search:  The court concludes that EOUSA conducted an adequate search for responsive records.  The court dismisses plaintiff's contention that EOUSA's search was inadequate because the "'existent and public superseding indictment is being hidden in [the U.S. Attorney's Office for the Southern District of New York's] secre[ ]t files.'"  Rather, the court determines that "EOUSA is not obliged to produce records that it does not possess, . . . and it is not required to obtain records from the district court.'"  Here, the court finds that EOUSA "not only demonstrate[d] that its search of LIONS [, its case management/tracking system,] and the criminal case file was reasonable, but also it 'took the extraordinary step of obtaining [the superseding indictment, docket no. 128,] from the District Court.'"  Additionally, "EOUSA is not obligated to respond to questions, requests for research or, as in this case, a request to authenticate or verify the contents of a particular document."  The court also notes that "plaintiff's dissatisfaction with the results of the EOUSA's search" and his "speculation as to the existence of additional records, absent support for his allegations of agency misconduct or bad faith," "do[ ] not render the searches inadequate." 

2.  Hodge v. FBI, No. 08-403, 2011 WL 532121 (D.D.C. Feb. 14, 2011) (Leon, J.)

Re:  First-party request for criminal records

• Public domain/waiver:  The court concludes that certain documents proffered by plaintiff in connection with the litigation were not deliberately disclosed by the FBI in response to an earlier FOIA request submitted by a criminal co-defendant.  The court finds that the FBI's declarations averring that the "pages produced by plaintiff were not the same set of documents actually produced in conjunction with the [earlier request]" "is clearly supported by the record." Consequently, the court determines that these records "were not released into the public domain and do not affect any subsequent FOIA disclosures and related claims under the FOIA exemptions." 

• Adequacy of Vaughn Index:  The court finds that the FBI's declaration, together with "coded references within the production" which "refer back to the detailed explanations laid out in the [FBI's] [d]eclaration," and which "contain the statutory provisions under which the information is withheld" are sufficiently detailed.  The court notes that "because the function, and not the form, of the index is dispositive, our Circuit has upheld similar agency declarations coupled with coded categories, in lieu of Vaughn indices."      

• Adequacy of search:  The court holds that FBI's declaration "sufficiently demonstrates [its] compliance with FOIA's search requirements" where it explains its records systems, how those systems are searched, and the results of the searches conducted in this particular case.  The court rejects plaintiff's contention that the "declaration does not provide a 'detailed account of how the responsive documents for [plaintiff's] particular request were collected.'"  Rather, the court finds that "[t]his allegation [ ] is contradicted by the [FBI's] [d]eclaration itself, which explains the comprehensive nature of the databases searched, particularly the [Central Records System], and explains the various identifying terms used in the actual search."  As to plaintiff's assertion that the FBI failed to provide one five-page responsive report, the court determines that "[f]ive pages out of [the] 6000 [pages that the FBI identified as being potentially responsive] is hardly enough to create 'substantial doubt' regarding the sufficiency of the search."  Additionally, the fact that "[t]hat no documents were found to be responsive on the ELSUR Indices or at the Laboratory Division is not determinative of the sufficiency of the search." 

• Segregation:  The court concludes that the FBI's declaration is "sufficient to satisfy this Court's finding that all reasonably segregable non-exempt material has been released."  The court finds that "[b]ecause the [FBI's] [d]eclaration and annotations identify the exemptions claimed for each individual document and, indeed, for each redaction, defendants have met their burden under the law of our Circuit." 

• Exemption 3:  The court finds that the FBI properly invoked Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) to withhold "the names of individuals who were either subpoenaed or appeared as witnesses before the Grand Jury."  The court rejects plaintiff's claims that the redactions were "excessive," finding that these names are protected by other asserted exemptions and that the fact that "these names are contained in an FBI investigative report, FD-302, does not diminish the applicability of Exemption 3."  The court notes that "FD-302s are the very forms on which information relating to Grand Jury witnesses, and others, would appear."

• Exemption 7(C):  As an initial matter, the court finds that the "information in question was clearly compiled for 'law enforcement purposes.'"  The court then concludes that the FBI properly withheld identifying information related to "agents, federal, state and local government employees, victims, and third parties who provided information to the FBI, were merely mentioned, or were of investigative interest" pursuant to Exemption 7(C).  The court finds that "[i]t is well settled that these individuals have a substantial interest in their anonymity" and that "there is no public interest against which to balance such a substantial privacy interest."  The court dismisses plaintiff's claim that the redactions were "excessive," finding that "[t]his argument is to no avail" because "Exemption 7(C) is not limited to basic identifying information such as names, addresses and phone numbers."  Regarding plaintiff's claim that the FBI was "required to determine the life status of any individual whose information was withheld," the court notes that "even assuming all the individuals have died, because there is no identifiable public interest here, their interest, though diminished, would justify withholding information under Exemption 7(C)." 

• Exemption 7(D):  The court concludes that the FBI properly asserted Exemption 7(D) to protect the identities of confidential sources who provided information to the FBI under express and implied grants of confidentiality.  With respect those given an express promise of confidentiality, the court finds that the FBI "detail[ed] the circumstances of that promise" and that the annotations contained in the investigative reports "provide 'probative evidence that the source did in fact receive an express grant of confidentiality.'"  Likewise, the court determines that the FBI explanations detailing the "brutality of the underlying crimes" investigated and how "the information provided by the third parties was 'specific' and 'singular in nature' and led to plaintiff's arrest" is sufficient to support withholding information provided pursuant to an implied grant of confidentiality.  The court finds that "[d]ue to the violent nature of the crimes, it is reasonable to conclude that these sources disclosed information in confidence due to the fear of reprisal."

3.  Marsh v. County of San Diego, No. 07-1923, 2011 U.S. Dist. LEXIS 13666 (S.D. Cal. Feb. 11, 2011) (Sammartino, J.)

Re:  Civil action brought under 42 U.S.C. § 1983 against former state prosecutor for allegedly violating family's privacy rights under the FOIA by copying certain autopsy photos

• Litigation considerations:  The court rejects plaintiff's argument that the FOIA "codifies a statutory right to privacy in 'the body and death images of the deceased'" cognizable under 42 U.S.C. § 1983.  The court finds that "any privacy interest formed out of the FOIA exceptions is formed in the FOIA context" and that it is "inappropriate to extend a privacy interest found in the FOIA context into the present circumstances."  The court notes that the state prosecutor's "photocopying is not comparable to a FOIA request" "[a]nd as a state employee, [the prosecutor] is not even under FOIA's purview."  "Consequently, Plaintiff cannot establish a violation of a right protected by the laws of the United States through FOIA."

WEEK OF FEBRUARY 21

District Courts

1.  Lazaridis v. DOJ, No. 09-1177, 2011 WL 652469 (D.D.C. Feb. 24, 2011) (Collyer, J.) 

Re:  Requests for records pertaining to plaintiff and his daughter

• Adequacy of search:  As an initial matter, the court finds that "DOJ was not required to search for third-party records pertaining to [the plaintiff's] daughter," even though plaintiff alleges that he is her "custodial parent."  The court notes that although plaintiff "claims that 'there can be no expectation of privacy between him and [his daughter]," "this statement ignores the reality that 'a disclosure made to any FOIA requester is effectively a disclosure to the world at large.'"  However, the court concludes that on the current record it cannot find that EOUSA conducted an adequate search for records pertaining to plaintiff.  The court finds that neither of the agency declarants "has explained why the requester's name was the only search term utilized when [the declarant who conducted the search] had identified a USAO criminal file number and, according to [the other declarant], information is retrievable from [EOUSA's case management database] by name, file jacket number and district court case number." 

The court concludes that the FBI conducted an adequate search where its declaration "provided a detailed description of the [Central Records System (CRS)] and retrieval methods, . . . and has explained why the General Indices to the CRS files are the means by which the FBI can determine what retrievable information, if any, it may have in its CRS files on a particular individual."  

The court determines that it "is without sufficient evidence to determine the adequacy of [INTERPOL-U.S. National Central Bureau (USNCB's)] search" where the declaration "describe[s] in general terms how the entity searches for records but [it] shed[s] no light on the search for records responsive to [plaintiff's] request; particularly lacking is any evidence of the search terms utilized and the origin of the retrieved records." 

• Exemption 3:  The court concludes that EOUSA properly invoked Exemption 3 in connection with Federal Rule of Criminal Procedure 6(e) to withhold "grand jury testimony in its entirety because its release 'would reveal the scope of the grand jury and the direction of the investigation by providing the identities of the targets . . . the source of the evidence, as well as the actual evidence produced before the grand jury.'"  Likewise, the court finds that the FBI properly asserted the same rational to withhold "federal grand jury subpoenas, the names and identifying information of individuals subpoenaed to testify before the grand jury, [and] 'information that identifies specific records subpoenaed by the Federal Grand Jury.'"  However, the court finds that the FBI "has not stated how disclosure of the grand jury's meeting dates would reveal its inner working" and, absent clarification on that point, "DOJ will be required to release that information."

• Exemption 5 (attorney work product and deliberative process privileges):  The court holds that EOUSA properly asserted Exemption 5 to withhold "predominantly as attorney work product but also as deliberative process material" various records prepared by the U.S. Attorney's Office pertaining to plaintiff's "'pending kidnapping case.'" The court further finds that EOUSA properly withheld certain pages in full because "[t]he work-product privilege simply does not distinguish between factual and deliberative material [for segregability consideration]." 

• Exemption 7/threshold:  As a threshold matter, the court finds that "[t]he fact that the [U.S. Attorney's Office] 'declined prosecution [of plaintiff for kidnapping offenses],' [ ] does not change the law enforcement purpose for which the records were compiled."  The court also finds that responsive records located by the FBI also qualify for the Exemption 7 threshold where they were "compiled . . .  as a result of a criminal investigation into an alleged illegal relocation of [plaintiff's] minor child outside the United States, based on authority provided in the International Parental Kidnapping Crime Act of 1993."  With respect to the USNCB, the court finds that it "cannot determine the propriety of USNCB's withholding of information under exemption 7 because it has no factual basis to find that the retrieved documents were compiled for law enforcement purposes." 

• Exemption 7(C):  The court concludes that "EOUSA, having no third-party waivers or proofs of death, properly redacted such information from released documents" "[b]ecause third-party identifying information is 'categorically exempt' from disclosure under exemption 7(C)."  However, the court denies EOUSA summary judgment with respect to one document containing redactions that appears to be the same document, or similar to another document that was released in full by EOUSA.  With respect to the public interest analysis, the court finds unavailing plaintiff's assertion that "disclosure is warranted because the requested documents will assist him in proving violations under Brady v. Maryland . . . and future [Bivens] claims."  Rather, the court finds that "the public interest in disclosure 'does not include helping an individual obtain information for his personal use'" and that plaintiff's "speculative and conclusory claims of employee misconduct provide no counterweight to the strong third-party privacy interests shielded by exemption 7(C)." 

As with EOUSA's categorical withholdings, the court holds that "the FBI properly invoked exemption 7(C) to redact the names of and identifying information of FBI Special Agents and support personnel, . . . and that of other third-party individuals of various categories."  Additionally, the court notes that plaintiff "has provided no evidence of an overriding public interest requiring disclosure of the otherwise protected information."   The court rejects plaintiff's claim that some of the information is in the public domain by virtue of a defamation case that he filed in federal court, finding that "[h]e has not shown what, if any, of the protected information is in the public domain." 

• Exemption 7(D):  The court concludes that the FBI has not justified its assertion of Exemption 7(D) to protect information that it claims was provided by a foreign government agency under an express grant of confidentiality where the declarant "does not claim to have any personal knowledge of the agreement and he has presented no probative evidence of such an agreement."  Additionally, the court finds that the FBI failed to provide a sufficient factual basis to demonstrate that that it properly withheld "the identity of and information supplied by an individual 'during the course of [plaintiff's] investigation'" under an implied grant of confidentiality.  The court finds that the FBI's "generalized statement" that "the 'individual . . .  provid[ed] sensitive and secretive information involving [plaintiff] which would reasonably raise fear of retaliation if his/her identity were revealed" "could apply to any law enforcement investigation."  The court observes that "[i]t is unknown what relationship the source had to [plaintiff] and his or her knowledge of any alleged activity from which a reasonable fear of retaliation may be found."  Moreover, the court further notes that "[a]n investigation of parental kidnapping without more does not seem to fit within the narrow category of cases where confidentiality is presumed."  The court also finds that Exemption 7(D) is inapplicable to information provided to an FBI special agent by a local sheriff's office.  For one, the court notes the sheriff's department "is identified and, thus, not confidential."  Additionally, the FBI "has not stated any facts from which the Court can find that 'the particular source [Sheriff's Department] spoke [or conveyed information] with an understanding that the communication would remain confidential.'" 

• Segregability:  The court concludes that it "is without sufficient evidence to make a segregability finding with regard to the FBI records [withheld in full] and, thus, will deny summary judgment on the FBI's withholding of documents in their entirety."  The court finds that although the agency's declarant "concludes that 'the FBI has processed and released all reasonably segregable information['] . . . [,] he has not separately described the 391 pages that were withheld in their entirety and discussed the applicable exemptions."

2.  Nelson v. U.S. Army, No. 10-1735, 2011 U.S. Dist. LEXIS 17193 (N.D. Ill. Feb. 22, 2011) (Pallmeyer, J.)

Re:  Requests for information pertaining to forty-five non-governmental organizations that paid the U.S. Army for use of its computer testing facility from 2001 to 2009; at issue is whether plaintiff is required to pay fees associated with providing submitter notice to those companies

• Exemption 4/fees:  The court finds that the Army properly determined that the requested records are subject to the pre-disclosure notification process detailed in Executive Order 12,600 and that plaintiff is required to pay the fees associated with that process.  The court rejects plaintiff's argument that "none of the information he requested 'includes any confidential, proprietary or trade secret data," and, therefore, the submitter notice process is not required.  Employing the Third Circuit's rationale in OSHA Data/CIH, Inc. v. U.S. Department of Labor, the court reasons that in order "to justify requiring pre-disclosure notification" to confidential business submitters, "Defendant needs only to show that disclosing the information could cause the commercial vendors substantial competitive harm."  The court then finds that the Army's declaration "points out the various ways the commercial vendors could be placed at a competitive disadvantage if the dates of [Technology Integration Center (TIC)] testing and the amounts they paid to use the facility were made public." 

The court also declines to find that the Army "'unlawfully inflated the estimated fees'" associated with processing plaintiff's FOIA request.  The court dismisses plaintiff's challenges to the Army's fee calculations and his argument that the "'information should [have been] provided for no fee.'"  Moreover, the court notes that it "is skeptical of Plaintiff's claim that he seeks the information for non-commerical use" where he "has his own private computer testing facility and his request appears to be motivated by the fact that potential customers are seeking out testing from the TIC rather than from his laboratory." 

• Delay/mootness/damages:  As to plaintiff's claim that "Defendant failed to make timely determinations regarding his FOIA appeals," the court finds that "an order granting the Army additional time to complete its review of Plaintiff's request or compelling prompt compliance would be moot," because "[d]efendant has now responded to Plaintiff's FOIA requests."  Furthermore, the court notes that "[p]laintiff has not suggested any other remedy, and the statute does not authorize any award of damages for the delay."

3.  Caruso v. ATF, No. 10-6026, 2011 U.S. Dist. LEXIS 16888 (D. Ore. Feb. 16, 2011) (Hogan, J.)

Re:  Request for records pertaining to Valliant Firearms, a company previously owned by plaintiff

• Exemption 3:  The court finds that the Consolidated Appropriations Act does not prohibit ATF from disclosing certain federal firearms forms and gunsmith books to a firearms licensee.  As a preliminary matter, the court notes that "[t]here does not appear to be a specific cite to [Exemption 3 in the appropriations bill] and the appropriations bill appears to have been enacted in December of 2009 and the Open FOIA Act appears to have been enacted in October 2009 possibly negating the applicability of the exemption to this case."  Without reaching that issue, the court ultimately finds that although the Consolidated Appropriations Act prohibits disclosure of "information required to be kept by licensees pursuant to [18 U.S.C. § 923(g)]," because that section "actually requires copies of the records to be provided to the licensee, [such as] plaintiff in this case, the appropriations bill . . .  does not [ ] preclude disclosure to plaintiff."

The court rejects ATF's assertion of Exemption 3 in connection with 26 U.S.C. § 6103(a) to redact "names of transferees and transferors and other information that identifies, for example, firearm manufacturers, on Applications for Tax-Exempt Transfer of Firearm and Applications for Tax Paid Transfer."  "The court declines the government's invitation to declare such information constitutes 'return information' within the meaning of 26 U.S.C. 6103(a)." 

• Exemption 6/threshold:  With regard to ATF's assertion of Exemption 6, the court concludes that the requested firearms records "do[ ] not equate to personnel or medical files."  (posted on 03/23/2011)