Summaries of New Decisions

Summaries of New Decisions – December 2011

            As announced previously by OIP, we are now posting up-to-date summaries of new court decisions.  To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted.  OIP provides these cases summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

WEEK OF DECEMBER 5

1.  Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (Randolph, J.)

Re:  Request for notes of SEC staff members taken during conversations with targets of a securities fraud investigation and their attorneys; at issue are 114 sets of notes withheld pursuant to Exemption 5, eleven of which were disclosed by DOJ during criminal discovery

Holding:  Affirming the judgment of the district court that the controversy is moot as to the eleven sets already provided to plaintiff and holding that work-product protection for the remainder of the notes was not waived by disclosure of the eleven sets

• Mootness/waiver:  With respect to plaintiff's argument that attorney work-product protection has been waived for eleven of the 114 sets of notes which DOJ released in connection with the underlying criminal trial, the D.C. Circuit concludes that "an agency has no obligation to release documents to a requester when another agency has already given the same requester the same documents."  Moreover, the D.C. Circuit finds that "[b]ecause the Department of Justice already turned over to [plaintiff] eleven sets of notes pursued in this appeal [in connection with the criminal prosecution], the controvery is moot with respect to those documents [in the instant FOIA action]." 

• Waiver:  "As to the remaining 103 sets of notes, [the D.C. Circuit] do[es] not believe the SEC has waived work product protection or that the Justice Department's action in the criminal trial had that effect."  For one, the D.C. Circuit reasons that "it does not follow that an agency's decision to release some documents protected by the work product privilege waives FOIA exemption 5 for all of the agency's similar documents."  Furthermore, the D.C. Circuit concludes "disclosure in criminal trials is based on different legal standards than disclosure under FOIA, which turns on whether a document would usually be discoverable in a civil case."  The D.C. Circuit notes that "[s]imilar documents . . . are not – indeed must not be – treated similarly in the two different types of proceedings." 

• In camera review:  The D.C. Circuit rejects plaintiff's request for an in camera review "to determine whether the withheld information (1) could be used for a collateral attack [on its client's] conviction or (2) was material to [his] defense."  The D.C. Circuit finds that under the FOIA "[i]t does not matter why the requester seeks the information, what the requester plans to do with it, or what harm the requester might suffer from not getting the information."  Moreover, the D.C. Circuit comments that "requiring agencies and courts to explore the requester's circumstances and review documents accordingly would create an administrative nightmare."  Furthermore, the court finds that "[i]f [plaintiff] believes that its client should have received the notes during his criminal trial, FOIA is neither a substitute for criminal discovery . . . nor an appropriate means to vindicate discovery abuses." 

1.  ExxonMobil Corp. v. U.S. Dep't of Commerce, No. 10-250, 2011 WL 6091470 (D.D.C. Dec. 8, 2011) (Lamberth, J.)

Re:  Requests for various records pertaining to certain environmental studies ordered by the Exxon Valdez Oil Spill Trustee Council, a body comprised of state and federal trustees

Holding:  Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to three requests, and that other requested records were not "agency records" subject to the FOIA; and dismissing plaintiff's FOIA claims brought under the Administrative Procedure Act and the Mandamus Act

• Exhaustion of administrative remedies:  The court concludes that plaintiff failed to exhaust its administrative remedies with respect to certain requests where it failed to submit timely administrative appeals in connection with two separate FOIA requests and, for a third request, "did not even file an administrative appeal of EPA's response . . . [until] almost one month after filing its Complaint in this Court."  Accordingly, the court notes that it "will not reach the merits of [plaintiff's] arguments regarding these FOIA requests."  

• Agency records:  The court concludes that certain study records requested by plaintiff, which were created by private researchers who received federal funding to finance their research, are not agency records for the purposes of the FOIA.  Considering whether the records were "'created or obtained' by the agency," the court finds that although "data produced by a private researcher may be considered agency records if the researcher was acting on behalf of the agency," it finds that, in this case, the requested studies are not funded directly from NOAA's appropriations, but rather "derived from money transferred to NOAA from the $900 million civil settlement between Exxon and the [federal and Alaskan] Governments."  The court also finds that "NOAA's position as one of the federal trustees on the Trustee Council," which "is responsible for soliciting project proposals, administering the proposal process, and developing work plans based on the funding recommendations," "does not change the fact that the [two requested] [s]tudies were conducted by private researchers for the benefit of the Trustee Council, and were not funded by nor conducted on behalf of one of the Trustee Council's trustee agencies." 

Additionally, the court determines that "[e]ven assuming, arguendo, that the records requested from the Department of Commerce were 'created or obtained' by the agency, NOAA does not meet the second criterion of the 'agency records' analysis [set forth by the Supreme Court in DOJ v. Tax Analysts] requiring that the agency 'be in control of the requested materials at the time the FOIA request is made.'"  First, as to "'the intent of the document's creator to retain or relinquish control over the records,'" the court finds that "it is unclear whether the researchers, by agreeing to abide by the [Trustee Council's] Data Policy, effectively intended to relinquish control over their preliminary findings to the agency."  Second, the court concludes that the Trustee Council's Data Policy "plainly demonstrates that that NOAA has no ability to dispose of the requested records as it sees fit."  Third, with respect to "'the extent to which agency personnel have read or relied upon the document,'" the court finds that there is no evidence that the NOAA Trustee or NOAA personnel read or relied upon the data sought by plaintiff.  Lastly, the court determines that "[t]he requested documents . . . have not been integrated into NOAA's record system or files."  In consideration of all these factors, the court concludes that "requested records are not 'agency records' of NOAA within the meaning of FOIA."  With regard to plaintiff's FOIA request to the EPA, the court finds that "EPA had no involvement in [a particular] [p]roject after the proposal stage, making clear that EPA did not create or obtain the requested materials and thus unquestionably fails to satisfy the first criterion of the 'agency records' test."  As such, "[t]he Court thus sees no need to reach the question of whether EPA was in control of the requested materials at the time of the FOIA request and therefore holds that the requested materials are not 'agency records' of EPA within the meaning of FOIA." 

• Administrative Procedure Act (APA) claim:  With respect to plaintiff's APA claim, the court finds that "it is well established that the existence of an adequate remedy under FOIA precludes the availability of a plaintiff's APA claim."

• Mandamus relief:  The court dismisses claims brought under the Mandamus Act, 28 U.S.C. § 1361, on the basis that plaintiff "has an adequate remedy available under FOIA."   

2.  Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-750 (D.D.C. Dec. 8, 2011) (Boasberg, J.)

Re:  Requests to the Office of Legal Counsel for records concerning guidance on records keeping and certain records pertaining to the storage and retention of staff emails; at issue is the amount of attorneys' fees and costs due to plaintiff

Holding:  Granting defendant's motion to enter judgment and reducing plaintiff's fee award to $7,158.13, the amount recovered for work completed before the government's Rule 68 Offer of Judgment

• Attorney fees & costs:  The court grants defendant's motion to enter judgment and reduces plaintiff's attorney fee award on the basis that it "may not recover any attorney fees or costs incurred following its rejection of the Government's Rule 68 Offer of Judgment" where "the amount that [plaintiff] ultimately recovered for its pre-Offer work was less than the amount in the Offer."  Rule 68 provides that "'[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.'"  First, citing the Supreme Court's decision in Marek v. Chesny, the court finds attorney fees are included in the term "costs" under Rule 68.  Second, the court determines that the text of the FOIA itself "clearly appears to include 'attorney fees' as one type of 'litigation costs.'"  The court observes that "the thrust of Rule 68 [is that] a party who recovers less than it was offered must bear the expense of its erroneous choice."  Accordingly, the court reduces the judgment amount to $7,158.13.

3.  Hughley v. United States, No. 11-3805, 2011 WL 6057743 (S.D.N.Y. Dec. 2, 2011) (Keenan, J.)

Re:  Claim in plaintiff's Complaint requesting U.S. Postal Service records

Holding:  Dismissing action brought by plaintiff, who was proceeding in forma pauperis, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

• Procedural:  At the outset the court notes that "[o]ne seeking to compel a federal agency to comply with FOIA must first make a FOIA request with that agency and receive an unsatisfactory response."  The court denies plaintiff's FOIA claim on the basis that "Petitioner has not indicated that the Postal Service or any of its employees improperly denied him access to the information he has requested" in his Complaint.  Accordingly the court dismisses plaintiff's claim.

4.  Ozment v. DHS, No. 11-429, 2011 WL 6026590 (M.D. Tenn. Dec. 1, 2011) (Haynes, J.)

Re:  Request for records pertaining to a "joint operation" at an apartment complex

Holding:  Granting defendant's motion to dismiss on the basis that plaintiff failed to exhaust his administrative remedies as to the issue of the adequacy of the agency's response

• Exhaustion of administrative remedies:  The court concludes that "Plaintiff was not required to exhaust his administrative remedies before filing this action" because although Immigration and Customs Enforcement's (ICE's) response "was within the statutory period and indicated its intent to comply with Plaintiff's request, [it] was not sufficient under 5 U.S.C. § 552(a)(6)(A)(i) as ICE's letter does not advise Plaintiff of his right to appeal any adverse decision."  However, the court determines that "Plaintiff has not exhausted his administrative remedies with regard to the adequacy of ICE's response," which was made during the course of litigation.  The court holds that "[t]o challenge the adequacy of ICE's response, Plaintiff must first exhaust his administrative remedies on that issue."

WEEK OF DECEMBER 12

1.  Cooper v. Stewart, No. 11-5061, 2011 WL 6758484 (D.C. Cir. Dec. 15, 2011) (per curiam)

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

Holding:  Affirming district court's dismissal of FOIA claims against individual defendants and its grant of summary judgment to DOJ based on the adequacy of defendant's search; and concluding that the Federal Torts Claims Act does not provide a basis for considering plaintiff's FOIA claim

• Proper party defendant:  The D.C. Circuit affirms the decision of the district court dismissing "claims against the individual defendants because the Freedom of Information Act ("FOIA") only authorizes suits against certain executive branch 'agencies,' not individuals."

• Litigation considerations:  The D.C. Circuit holds that the Federal Torts Claims Act (FTCA) does not provide a basis for the court to consider plaintiff's FOIA claim, noting that "'all agency decisions' regarding the classification of information under FOIA are reviewable only under FOIA and are 'not subject to judicial second-guessing in tort' though an FTCA claim."

• Adequacy of search:  The D.C. Circuit affirms the district court's grant of summary judgment to DOJ because "[a]lthough appellant argues that the search did not follow proper procedures, the declarations provided by appellees demonstrate that an adequate search was undertaken of computer files, document systems, and the records of the Assistant United States Attorney who handled the case referenced by appellant in his FOIA request." 

1.  Nat'l Rt. to Work Legal Def. and Educ. Found., Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661 (D.D.C. Dec. 12, 2011) (Lamberth, J.)

Re:  Request for records concerning certain activities and communications between Secretary of Labor Hilda Solis, Deputy Solicitor of Labor Deborah Greenfield and various labor organizations; due to plaintiff's express concessions regarding the adequacy of the Department of Labor's (DOL's) search and its application of Exemptions 1, 7(E) and the attorney-client privilege under Exemption 5, only DOL's assertion of Exemption 6 and the deliberative process privilege remain at issue

Holding:  Granting defendant's motion for summary judgment on the basis that DOL properly protected information pursuant to Exemptions 5 and 6   

• Agency records/waiver:  In addition to the issues for which plaintiff expressly conceded, the court finds that plaintiff "has also conceded (by failing to argue otherwise) that certain documents were properly withheld because they are not 'agency records'" under the FOIA.  The court observes that plaintiff "nowhere challenges the Department's contention in its Motion [that certain handwritten personal notes] . . . fall outside the scope of FOIA" and holds that "[w]hen a party files an opposition addressing only certain arguments raised in a dispositive motion, a court may treat those arguments that the non-moving party failed to address as conceded." 

• Exemption 5 (deliberative process privilege):  The court concludes that DOL's submissions adequately support its assertion of the deliberative process privilege to protect certain records.  Specifically, the court finds that DOL properly withheld "two pages of unattributed handwritten notes" that "recorded discussions of policy issues surrounding . . . rulemaking" for a particular regulation, because "these notes reflect deliberations during the Department's process for arriving at and formulating a final policy."  Similarly, the court determines that DOL properly redacted "34 pages of meeting minutes relating to various rulemakings," which "reflected 'deliberations between managers regarding possible courses of action,'" as well as "portions of an e-mail chain that discussed edits to a draft notice of proposed rulemaking." 

For four other items for which DOL did not provide sufficient detail to support its assertion of Exemption 5, the court conducted an in camera inspection.  Based on that review, the court concludes that DOL properly protected handwritten notes of a DOL employee which "reflect deliberations about policy and the personal opinions of [that individual] prior to the Department's implementation of that policy" as well as those of another employee that "clearly reflect[ed] the Department's discussions of elements of its process of formulating and drafting a final Notice of Proposed Rulemaking, including discussions concerning a draft final rule."  Likewise, the court finds that other handwritten employee notes, which detail aspects of the rulemaking process, also qualify for protection under the deliberative process privilege. 

• Exemption 6:  The court holds that DOL properly invoked Exemption 6 to redact telephone numbers from the Verizon invoices reflecting the cell phone and landline calls of the Secretary of Labor and the Deputy Solicitor of Labor.  The court finds that "[t]hese numbers constitute information that applies to particular individuals . . . despite the fact that it is unknown from the records which individuals are associated with these numbers."  Additionally, the court notes that "there is generally 'a stronger case to be made for the applicability of Exemption 6 to phone numbers . . .'" because "[d]isclosure of these numbers could subject the individuals to 'annoyance, embarrassment, and harassment in the conduct of their official and private lives.'"  With respect to plaintiff's argument that "'the public has a significant interest in knowing what influence, if any, the former association of these two top [Department] officials might have had in the decision to delay and then rescind'" a particular regulation, the court finds that "it is not at all clear that disclosure of these phone numbers would actually advance this rarefied interest in this particular case."  The court notes that "[i]n all likelihood, these calls include not only organizations and entities with whom Ms. Solis and Ms. Greenfield regularly deal in their professional capacities, but a host of other private persons."  The court concludes that "[p]ublic disclosure of all of these numbers would result in a concrete invasion of privacy that outweighs the asserted public interest in this case, making the invasion unwarranted."  Moreover, the court notes that if plaintiffs wanted to determine whether these two officials "corresponded by phone with unions or other organizations with which they are allegedly associated, it could have limited its requests to specific telephone numbers associated with those entities," "[b]ut it did not do so."  Additionally, the court observes that in camera review of these records would not aid the court in this instance "[s]ince only numbers are redacted."
  
With respect to "the names and personal contact information of candidates for jobs that Ms. Solis and Ms. Greenfield interviewed," the court finds that "apart from the unsurprising fact that both [officials] worked for labor organizations in the past, [plaintiff] provides no facts suggesting improprieties in the Department's hiring process that would justify releasing the names and other information associated with these job candidates."  The court finds that "[t]his information clearly applies to particular individuals . . . and their privacy interests outweigh the speculative public interest asserted by [plaintiff] in this case."

2.  Santana v. DOJ, No. 09-300, 2011 WL 6187091 (D.D.C. Dec. 13, 2011) (Leon, J.)

Re:  Request for records pertaining to plaintiff's criminal conviction

Holding:  Granting defendant's renewed motion for summary judgment on the basis that EOUSA did not improperly withhold any records and conducted an adequate search

• Adequacy of search:  As an initial matter, the court finds that despite the fact that EOUSA, had invoked exemptions in 2007 for the requested records, which were affirmed on appeal, by the time of plaintiff's instant FOIA request, which was made in a year later, in 2008, EOUSA "simply no longer possessed these documents."  The court notes that "[s]ummary judgment must, and will be granted in favor of defendant in this case because the defendant has not actually withheld any records and therefore this Court is without jurisdiction to afford plaintiff any remedy."  Construing plaintiff's Complaint liberally, the court interprets his arguments "as a general challenge to the adequacy of [the United States Attorney's Office for New Hampshire's] searches."  The court concludes that plaintiff's "speculation and self-serving statements" are not sufficient to overcome the adequacy of EOUSA's affidavits.  Moreover, the court observes that "[t]he search's futility [to uncover certain responsive records] . . . is not determinative of the search's adequacy."  Here, the court determines that "defendant has submitted affidavits which adequately detail its efforts to search for responsive documents and demonstrates its compliance with FOIA."  

3.  Morley v. CIA, No. 03-2545, 2011 WL 6257183 (D.D.C. Dec. 14, 2011) (Leon, J.)

Re:  Request for all records pertaining to a former CIA operations officer, who plaintiff believes was well-positioned to observe and report on President Kennedy's assassination

Holding:  Denying plaintiff's request for attorney's fees and costs on the basis that he does not satisfy the entitlement factors

• Attorney fees & costs:  As a preliminary matter, the court indicates that "[t]he CIA does not contest whether [plaintiff] is eligible to receive attorney's fees," but instead focuses on the entitlement factors.  The court denies plaintiff's motion for attorney's fees and costs, concluding that he is not entitled to such an award.  In terms of the public benefit, the court determines that "[w]hile the Kennedy assassination is surely a matter of public interest, . . . this litigation has yielded little, if any, public benefit – certainly an insufficient amount to support an award of attorney's fees."   The court notes that, in response to a remand from the D.C. Circuit, the CIA released the personnel records of the particular CIA officer but finds that, contrary to plaintiff's contention, "[t]his litigation did not . . . lead to the publication of Kennedy-assassination documents."  Additionally, "the Kennedy-assassination documents obtained by [plaintiff] through this FOIA litigation are identical to documents which were previously released under the President John F. Kennedy Assassination Records Act of 1992 . . . to NARA and were already in the public domain."  Accordingly, the court concludes that plaintiff "cannot claim that any of this information 'add[s] to the fund of information that citizens may use in making vital political choices.'"  Moreover, the court discounts plaintiff's argument that his use of the "FOIA to sidestep" the copying costs imposed by NARA and "to compel the CIA to search these records" conferred a benefit to the public.  Rather, the court finds that "prior to filing this case, 'the public had the benefit of access to all or most of this information'" and, additionally, plaintiff "has already himself benefited by avoiding the copying costs."  The court also concludes that "[e]ven if the majority of the documents [plaintiff] received had not been previously public, [his] claims about the supposed public benefit of the documents produced in this litigation are unconvincing as based on nothing more than his own conclusory opinions and factually inaccurate statements."   Moreover, the court notes that plaintiff's contention that he should be awarded "attorney's fees based on the documents withheld by CIA" undercuts his claim because "those documents were properly withheld under FOIA." 

As to the commercial benefit and the nature of plaintiff's interest in the documents, the court concludes that plaintiff "has a sufficient private interest in pursuing these records without attorney's fees" where he "had an interest in obtaining the NARA records 'from the CIA at little or no charge under FOIA' to avoid expending his own time and money to obtain the documents from NARA."  With respect to the reasonableness of the CIA's original withholding, the court determines that this "factor also weighs against an award of attorney's fees" because "[t]he CIA has not only relied on reasonable legal interpretations but also acted reasonably throughout this case" by directing plaintiff "to the logical repository of such records – NARA," by asserting the Glomar response in connection with a CIA officer's supposed covert activities, and "for initially contesting [plaintiff's] request to search its operational files."  Moreover, although the D.C. Circuit ruled against the CIA as to the last point, "[that] court noted that the CIA relied on the 'only opinion by a circuit court of appeals' to address the relevant FOIA exemption under the CIA Act."  Furthermore, the court finds that "there is no indication in the record that the CIA has engaged in any recalcitrant or obdurate behavior."     

4.  Gagan v. Holder, No. 11-3062, 2011 WL 6216971 (D. Colo. Dec. 14, 2011) (Babcock, J.)

Re:  Request for public records of a U.S. Attorney

Holding:  Dismissing plaintiff's Administrative Procedure Act claim where relief is available under FOIA; dismissing claims brought against individual defendants; and deferring adjudication of the merits of plaintiff's FOIA claim brought against DOJ

• Administrative Procedure Act (APA) claim: The court dismisses plaintiff's APA claim regarding the processing of his FOIA request, holding that "because all of the relief [plaintiff] seeks in this action is available under FOIA, he may not pursue the same relief under the APA." 

• Proper party defendant:  The court dismisses claims brought against two individuals because "'FOIA authorizes suit against federal agencies, but does not create a right of action against individual employees of the agency.'"   

5.  Citizens for Resp. & Ethics in Wash. v. VA, No. 08-1481, 2011 WL 6257201 (D.D.C. Dec. 15, 2011) (Friedman, J.)

Re:  Request for records concerning any guidance given to VA staff regarding the diagnosis of post traumatic stress disorder in veterans

Holding:  Granting, in part, plaintiff's request for additional discovery as it pertains to explanations provided by the VA regarding the retrievability of certain email backup tapes; denying plaintiff's request to depose another VA employee; and denying plaintiff's request for declaratory relief

• Discovery:  The court allows plaintiff "to take [limited] additional discovery for the purpose of determining whether the [VA's] explanation" regarding its inability to recover certain emails contained on backup tapes, which was detailed by the agency in supplement declarations that were not provided to plaintiff until after plaintiff's deposition of an agency declarant in connection with an earlier court order.  As such, the court "grants in part [plaintiff's] second [discovery] request: that is, it will approve the deposition of [one agency declarant] and an additional deposition [of the primary agency declarant] both at the VA's expense, for the purpose of obtaining discovery regarding the circumstances of the suspension of normal operations in saving backup tapes as it relates to this case and whether the explanation for the suspension is document destruction or something else."  However, the court rules that it will not, at this time, order the deposition of the VA employee whose email accounts were searched. 

• Litigation considerations:  The court denies plaintiff's "request to 'state clearly for the VA the obligations of federal agencies to preserve evidence and impose litigation holds for responsive materials upon receipt of FOIA requests.'"  The court finds that "there is no claim for such relief in [plaintiff's] complaint and, even if there were, it is not clear that an FOIA lawsuit is the proper mechanism through which to litigate such a claim."  The court further notes that "the court of appeals has not set forth a rule requiring that an agency always must preserve backup tapes upon the making of a FOIA request."    

6.  McCann v. HHS, No. 10-1758, 2011 WL 6251090 (D.D.C. Dec. 15, 2011) (Boasberg, J.)

Re:  Request for records pertaining to complaints filed by plaintiff with HHS's Office of Civil Rights alleging that his health care provider had provided "political appointees" access to his drug records in violation of HIPAA and seeking an investigation

Holding:  Granting HHS's motion for summary judgment where it properly withheld material pursuant to Exemptions 5, 6, and 7(E) and disclosed all reasonably segregable information

• Exemption 5 (deliberative process privilege):  The court determines that HHS properly redacted portions of emails containing "'advice, recommendations, suggestions, opinion, and analysis [by HHS employees] about Plaintiff's HIPAA claims'" because they "fall squarely within the parameters of the [deliberative process privilege]," namely, the redacted portions are predecisional and deliberative. 

• Exemption 6:  The court concludes that HHS's assertion of Exemption 6 to protect the identities of "'individuals who provided information to an investigator who was conducting an investigation into Plaintiff's HIPAA complaint'" was appropriate.  As a threshold issue, the court finds that records at issue constitute "similar files" under the meaning of Exemption 6.  In terms of the privacy interest, the court notes that HHS asserts that because the individuals mentioned in the records were plaintiff's co-workers, they "'would be easy to identify'" and disclosure "'could reasonably be expected to cause potential harassment or misuse of the [witness'] information.'"  Conversely, the court finds that, under the Supreme Court's decision in Favish, "[p]laintiff's desire only to 'determine the diligence of [the agency's] investigations' does not present a public interest to trigger the balancing requirement." 

• Exemption 7(E):  First, the court determines that the requested records, which "were 'compiled to conduct investigations into Plaintiff's civil rights complaints' . . . [which] could subject one to civil or criminal penalties," satisfy Exemption 7's threshold.  The court then determines that HHS properly invoked Exemption 7(E) to protect "a six-page internal document and a duplicate that contain 'procedures, techniques, and guidelines for investigating potential violations of the HIPAA Privacy Rule by hybrid entities.'"  The court concludes that "[c]onsidering the availability of civil and criminal penalties for HIPAA violations, Defendant reasonably contends that the disclosure of information about the agency's investigatory tools could 'risk circumvention of the law.'" 

• Segregability:  The court determines that HHS demonstrated that it disclosed all reasonably segregable information where its declarant indicated that "the documents were 'scrutinized' for segreability . . . and states that '[f]or records withheld in their entirety, there was no reasonably segregable material or [any] non-exempt information amounted to essentially meaningless words and phrases.'"

WEEK OF DECEMBER 19

1.  Jordan v. DOJ, No. 10-1469, 2011 WL 6739410 (10th Cir. Dec. 23, 2011) (Kelly, J.)

Re:  Requests for names and titles of all staff at the United States Penitentiary Administrative Maximum Facility (ADX); all psychological and psychiatric files pertaining to plaintiff; and copies of all mail sent to or from plaintiff and copied by staff at ADX 

Holding:  Affirming the decision of the district court granting summary judgment to BOP based on the propriety of its Exemptions 7(E) and 7(F) withholdings; and, after considering application of Exemption 7(E) for material formerly withheld pursuant to High 2 at the district court level, concluding that Exemption 7(E) covers the material at issue

• Exemption 7/threshold:  The Tenth Circuit adopts the "per se rule" followed by the First, Second, Third and Eighth Circuits whereby "'documents compiled by law enforcement agencies are inherently records compiled for law enforcement purposes within the meaning of Exemption 7.'"  In this case, the Tenth Circuit determines that BOP is primarily a law enforcement agency, noting that "BOP's primary purpose is to confine prisoners and prevent their escape" and to perform "other basic law enforcement functions within BOP facilities."  Moreover, the Tenth Circuit observes that its "conclusion that BOP is primarily a 'law enforcement agency' rather than a 'mixed-function agency' is bolstered by the Privacy Act, where Congress designated that 'an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws' includes 'correctional authorities.'"  Applying the per se rule, the Tenth Circuit finds that "[p]lainly, for an agency like the BOP, whose primary function is law enforcement, all records and information it compiles are in furtherance of its law enforcement function and therefore may be withheld from disclosure under Exemption 7 provided that the agency carries it burden of establishing that release would cause one or more of the harms enumerated in [the Exemption's subparts]."  As such, the Tenth Circuit holds that all records requested by plaintiff "were 'compiled for law enforcement purposes.'"

• Exemption 7(F):  The Tenth Circuit concludes that BOP properly withheld ADX staff rosters pursuant to Exemption 7(F).  Distinguishing the instant case from the District Court for the District of Columbia's decision in Maydak v. DOJ cited by plaintiff, the Tenth Circuit finds that unlike Maydak which involved BOP staff names, here, BOP has established that the rosters at issue satisfy the Exemption 7 threshold and "there is no indication that BOP releases the names of Supermax staff to the general public but not to inmates." 

• Exemption 7(E):  The Tenth Circuit affirms the district court's determination that BOP properly withheld plaintiff's mail collected by its Special Investigative Supervisor's office pursuant to Exemption 7(E).  The Tenth Circuit notes that plaintiff has "forfeited his new theories on this issue" where he failed to raise his arguments regarding the propriety of the Exemption 7(E) withholdings in the district court. 

• Exemptions 2 & 7(E):  The Tenth Circuit also finds that BOP may now rely on Exemption 7(E) to redact a portion of plaintiff's psychological report that was formerly withheld under Exemption 2.  The Tenth Circuit observes that "[d]efendants concede, as they must, that in light of [the Supreme Court's decision in] Milner [v. U.S. Department of the Navy], High 2 cannot justify withholding the redacted paragraph of [plaintiff's] psychological record because the redaction does not concern conditions of employment in a federal agency."  However, the Tenth Circuit finds that because "Exemption 7(E) is essentially the same as former High 2" with the added Exemption 7 threshold requirement and "defendants argued for both High 2 and the 'per se rule' in the district court, they effectively presented all the elements of Exemption 7E."  Accordingly, the Tenth Circuit finds that plaintiff "had ample opportunity in the district court and again on appeal to address the circumvention aspect of High 2 and the 'law enforcement purposes' requirement of Exemption 7" and therefore concludes that BOP has not waived or forfeited its ability to assert Exemption 7(E) for this material.  Moreover, the Tenth Circuit finds that it is within [the court's] power to consider Exemption 7E on appeal in lieu of the now-defunct 'High 2' exemption."  Based on the record before it, the Tenth Circuit finds that "the redacted portion of [plaintiff's] psychological records falls within [the] compass" of Exemption 7(E) "given that the redacted portion 'advised all staff regarding appropriate actions to take with regard to [plaintiff] . . ., a dangerous prisoner with a history of threatening staff with bodily harm.'"  As such, the Tenth Circuit determines that the release of this information "would disclose guidelines for a potential law enforcement investigation by giving information BOP staff would be likely to use in investigating [plaintiff's] conduct while incarcerated" and also finds that "knowing BOP strategy could make it easier for [plaintiff] to subvert it." 

2.  Drake v. Obama, No. 10-55084, 2011 WL 6415354 (9th Cir. Dec. 22, 2011) (Pregerson, J.)

Holding:  Affirming the district court's dismissal of FOIA claims brought against individuals on the basis that plaintiffs failed to state a claim upon which relief may be granted

• Proper party defendant:  The Ninth Circuit affirms the decision of the district court which dismissed plaintiffs' FOIA claims for a failure to state a claim upon which relief may be granted.  The Ninth Circuit "agree[s] with the District Court that FOIA does not apply to any of the Defendants because they are all individuals, not agencies." 

3.  Moore v. CIA, No. 10-5248, 2011 WL 6355313 (D.C. Cir. Dec. 20, 2011) (Henderson, J.)

Re:  Request for records pertaining to a third party

Holding:  Affirming the district court's grant of summary judgment to the CIA, which had issued a Glomar response to the request for records on a third party

• Exemptions 1 & 3 (Glomar)/Waiver:  The D.C. Circuit affirms the decision of the district court and holds that the CIA's declaration in this action, which stated that "the CIA asked the FBI to redact some 'CIA-originated information' from [an FBI] Report [concerning the subject of the request] in order to protect intelligence source and methods" "does not constitute an official acknowledgement sufficient to waive Glomar."  The D.C. Circuit recounts that in its earlier decision in Wolf v. CIA it held that the CIA had waived its ability to invoke Glomar where the then-CIA director officially acknowledged certain information by quoting from dispatches during Congressional testimony.Distinguishing the instant case from its decision in Wolf, the D.C. Circuit finds that here the CIA's "declaration dose not identify specific records or dispatches matching [plaintiff's] FOIA request."  The D.C. Circuit comments that "[i]ndeed, because the CIA-originated information was redacted before the FBI released its report to him, [plaintiff] cannot show that the redacted information even relates to [the subject of the request]."  Rather, "[a]ll [plaintiff] can establish is that some unspecified 'CIA-originated information' was redacted from the Report." 

• Waiver:  "To the extent [that plaintiff] suggests that the release of the Report by the FBI constitutes an official acknowledgement by the CIA, his argument is foreclosed by" D.C. Circuit precedence.

1.  Friends of Oceano Dunes, Inc. v. Salazar, No. 11-1476, 2011 WL 6748575 (N.D. Cal. Dec. 22, 2011) (Chen, J.)

Re:  Request for information related to a proposed rule on critical habitat designation for plover (a shore bird)

Holding:  Granting plaintiff a full fee waiver

• Fee waiver:  The court concludes that plaintiff is entitled to a full waiver of fees where it has demonstrated that its request is not in furtherance of a commercial interest and that the information will contribute to the public's understanding of the operations and activities of the government.  In terms of the commercial interest, the court notes that it "does not agree with [plaintiff's] position that its mere status as a non-profit is enough to establish that disclosure of the information requested was not primarily in its commercial interest."  However, the court determines that although it "rejects [plaintiff's] position, it nonetheless concludes that [plaintiff] satisfied its burden on the 'commercial interest' prong because, in papers submitted to the government, [plaintiff] did provide information indicating that disclosure of the information requested was not primarily in its commercial interest."  Specifically, plaintiff claimed that as a watchdog organization it provides guidance to its membership regarding the Fish and Wildlife Service's (FWS's) critical designation of certain habitats that could impact recreational opportunities for plaintiff's membership.  Even though plaintiff's statements supporting the commercial interest prong were made "in conjunction with its discussion of factors relevant to the public understanding prong," the court finds that "the two prongs cannot be viewed in isolation."  Additionally, the court notes that the "government did not tell [plaintiff] – in express terms – that its status as a nonprofit was insufficient to satisfy the commercial interest prong, which would have given clear notice to [plaintiff] what deficiency needed to be addressed." 

As to the public understanding prong, the court finds that "[v]iewing the totality of the statements made in the fee waiver requests and administrative appeal, . . . [plaintiff] met its initial burden."  The court concludes that plaintiff "sought disclosure of information related to a proposed rule on critical habitat designation for the plover and intended to analyze and distribute the results of its analysis to a reasonably broad segment of the interested public."  Discounting the government's objections, the court finds that plaintiff's intent to distribute the information "via its website and emails" is sufficient to demonstrate that it can disseminate the requested information to the public.  The court also dismisses defendant's argument that plaintiff has failed to demonstrate that it has the "'ability to increase public awareness.'"  The court finds that plaintiff is "in a position to analyze the information requested" where it demonstrated that it "hired [a qualified] attorney to help understand and process the information," and that "its own board members 'have years of experience in reviewing and analyzing plover conservation programs and regulations.'"  Additionally, the court determines that "plaintiff did indicate that disclosure would likely contribute significantly to the public understanding because it was asking for, inter alia, new information that FWS was relying on in its rulemaking." 

2.  United States v. Franco-Flores, No. 06-144, 2011 WL 6396554 (D. Nev. Dec. 20, 2011) (Hicks, J.)

Re:  Request to court for records pertaining to plaintiff's criminal case and associated transcripts

Holding:  Denying plaintiff's request for disclosure of records and transcripts

• Jurisdiction:  The court denies plaintiff's request for records and transcripts, finding that "[t]he Freedom of Information Act is inapplicable here, however, as the courts of the United States are not an 'agency' subject to the Act." 

WEEK OF DECEMBER 26

1.  Citizens for Resp. & Ethics in Wash. v. FEC, No. 11-951, 2011 WL 6880679 (D.D.C. Dec. 30, 2011) (Kollar-Kotelly, J.)

Re:  Request for correspondence between FEC Commissioners and outside entities, the calendar and agendas of certain FEC Commissioners, communications between an FEC ethics officer and certain FEC Commissioners or their designees, and statements setting forth the substance and circumstances of any oral ex parte communication prepared by any of these commissioners or someone acting on their behalf and delivered to an ethics official 

Holding:  Denying FEC's motion to dismiss for lack of subject matter jurisdiction; and granting FEC's motion for summary judgment for failure to exhaust administrative remedies 

• Mootness:  The court rejects FEC's argument that "its production of any documents in response to the request moot's [plaintiff's] complaint, which sought to compel some response to [its] request."  Although the court finds that "to the extent that Plaintiff's Complaint challenged the timeliness of their production, it is now moot," it refuses "to dismiss the Complaint in its entirety, because the Complaint does assert a substantive challenge under § 552(a)(3)(A)."  Accordingly, the court denies defendant's motion to dismiss and finds that it retains subject matter jurisdiction over the case. 

• Exhaustion of administrative remedies:  The court grants defendant's motion for summary judgment for failure to exhaust administrative remedies.  Examining the text of the FOIA, the court finds that, in order to qualify as a determination under the FOIA, "the actual statute indicates three things are required in [an agency's] notice to the requesting party: (1) whether the agency intends to comply with the request; (2) the reasons for the agency's compliance or non-compliance; and (3) notice of the right to appeal if the determination was adverse."  As such, the court concludes that "[c]learly, the FOIA does not require the responding agency to respond and produce responsive documents within twenty days in order to require exhaustion of administrative remedies."  Instead, the court finds that "in the event an agency intends to produce documents in response to the request, the agency need only (1) notify the requesting party within the twenty days that the agency intends to comply; and (2) produce the documents 'promptly.'" 

In this case, the court concludes that "the FEC did more than acknowledge receipt of Plaintiff's request before it filed suit."  Specifically, "within two days of transmitting the request to the FEC," the FEC "agreed to produce responsive documents on a rolling basis," and "the FEC was also reasonably prompt in producing documents to [plaintiff]."  The court finds that "[t]en weeks to search, review, and produce documents in response to relatively broad requests in this context is not unreasonably long as to require a finding of constructive exhaustion."  The court further notes the D.C. Circuit's decision in Oglesby v. U.S. Department of the Army supports this reading of the exhaustion requirement where "it held that an agency's response 'is sufficient for purposes of requiring an administrative appeal if it includes:  the agency's determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse.'"  Here, the court determines that "the FEC provided the response that the Oglesby court noted is a sufficient 'determination' under FOIA to trigger the administrative exhaustion requirement." 

The court also dismisses plaintiff's contention that "Congress intended to allow direct access to the courts in the face of agency delay" and that the existence of Open America stays, which can be relied on by agencies that demonstrate "exceptional circumstances" under the FOIA, support its position.  Rather, "[u]nder the Court's interpretation of the § 552(a)(6)(A), requesting parties still have immediate access to the courts in the event that the agency fails to (1) respond at all; or (2) merely indicates that it is 'processing' the request, but does not indicate whether the agency will comply."  The court comments that "adherence to the language of the third sentence of § 552(a)(6)(C)(i), which requires 'prompt' production of responsive documents if an agency intends to comply with the request, will guard against any abuse by responding agencies."  The court further observes that the purposes of the exhaustion requirement to "prevent[ ] premature inference with agency processes" and to "ensur[e] consistency in responding to requests" "supports requiring [plaintiff] to exhaust its remedies in this case."  Moreover, the court notes that "[h]ere, the FEC has not had the opportunity to address any of the objections [plaintiff] lodges to scope of the production, adequacy of the searches, or claimed exemptions and withheld documents."  Additionally, "[p]roviding the FEC the opportunity to review [plaintiff's] objections through the administrative appeal process would among other things allow the agency time to correct any errors alleged by [plaintiff], and create a full record for the Court to review should [plaintiff] seek additional review of the FEC's decision." 

2.  Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.)

Re:  Requests for records pertaining to the scope and practices of U.S. Customs and Border Protection's (CBP's) operation on inter-city buses and trains within the geographic area known as the "Buffalo Sector;" at issue are three sets of documents and plaintiffs' request that defendants "code" certain documents

Holding:  Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E).

• Exemption 7(E):  The court allows CBP to withhold portions of minutes which memorialize a meeting between CBP and Amtrak officials regarding certain transportation checks pursuant to Exemption 7(E).  For one, the court finds that the meeting notes were compiled for a law enforcement purpose where they "discuss how [CBP's] law enforcement activities impacted [Amtrak's] transit operations and how they might adjust those activities."  As to plaintiffs' argument that the notes cannot be withheld because the transportation checks are generally known to the public, the court finds that "the redactions protect details concerning specific techniques used in these transportation checks, not generalities concerning the existence of the checks."  Based on its in camera review, the court indicates that the notes discuss "how often the Border Patrol checks various specific trains, what time of day and at what stations it makes those checks, how its agents board and navigate the trains, and other issues relating to the agency's law enforcement techniques" which "'would disclose techniques and procedures for law enforcement investigations,' not simply 'guidelines and procedures for law enforcement investigations.'"  Accordingly, the court finds "it is irrelevant whether such disclosure 'could reasonably be expected to risk circumvention of the law.'"  However, the court concludes that certain information contained in the notes was not properly withheld under Exemption 7(E).  In particular, the court holds that the job titles of meeting attendees, historical statistics, and other specific passages must be released.  

With regard to emails containing staffing and arrest statistics, agency definitions and names and identifying information, the court determines that some information can remain redacted, but other information should be released.  Specifically, the court concludes that the arrest statistics associated with the requested years must be disclosed.  As to staffing statistics, the court rejects CBP's assertion that "[d]isclosure of manpower devoted to particular investigatory techniques could aid circumvention of the law, in that persons seeking to evade the law could focus their efforts on areas with less manpower."  Noting that CBP's staffing "practices have changed dramatically in recent months," the court concludes that "[r]elease of historical staffing statistics could not reasonably be expected to risk circumvention of the law."  The court also determines that Exemption 7(E) does not apply to definitions which "relate to whether [certain transit] nodes are monitored routinely or only in response to specific intelligence," commenting that "the redacted definitions include little substantive information beyond that already disclosed in [CBP's] declaration." 

• Exemption 6/threshold:  The court holds that Exemption 6 does not apply to names contained with agency emails because "the plain meaning of the statute and the Second Circuit's method of applying it [laid out in Wood v. FBI] make clear that Exemption 6 applies only to personnel and medical files and to similar files, such as those containing investigations of alleged corruption, passport applications, asylum requests, or detainee abuse."  The court finds that "[t]he emails at issue here are nothing like personnel or medical files," but rather "are mundane inter-office communications that do not contain any detailed personal information." 

• Exemption 7(C):  As a threshold issue, the court notes that the emails have been compiled for law enforcement purposes.  In terms of the privacy interests, the court finds that "the disclosure of the names, phone numbers, and email addresses of government employees implicates more than a de minimus privacy interest of those employees."  Balancing that interest against "'the citizens' right to be informed about what their government is up to,'" the court considers the "[g]overnment employee's rank," "[d]egree of wrongdoing" (which is not applicable here), "[o]ther ways to obtain the information," "[s]hedding light on government activity," and "[p]rofessional versus personal information."  "Based on these factors, [the court concludes that] defendants must disclose (a) all titles and names of offices that appear on emails and the (b) names of high level officials such as the chief of staff, deputy chief of staff, and division chief."  The court finds that "[t]he government may redact all email addresses and phone numbers." 

• Procedural considerations/creating a record:  The court also denies plaintiffs' request for defendants to "code" the names of arresting officers in daily reports commentary to allow for better comprehension of the material, but notes that "plaintiffs' may renew their request if they can identify specific instances where the redactions hinder the public's comprehension of the government's activity."  As to plaintiff's request for the dates of the commentary, after in camera review, the court notes that no dates have been redacted, but considering that these were daily reports, the court opines that "it seems unlikely that so many [of them] were created without identifying dates.  For example, the reports' metadata may have contained the date on which they were created; or perhaps they were archived by date."  The court states that "[d]efendants may not withhold this information if it exists."   

• Exemption 5 (attorney-client privilege):  The court holds that a four-page memo "'by an Assistant United States Attorney in the Western District of New York to the chief of that office's civil division, offering a legal opinion on legal standards applicable to immigration checks conducted by the Board Patrol aboard Amtrak trains'" "is a classic attorney-client communication and [additionally] may well be protected attorney work-product" and, as such, "is exempt from disclosure." 

3.  Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780905 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.)

Re:  Requests for records pertaining to the scope and practices of U.S. Customs and Border Protection's (CBP's) operation on inter-city buses and trains within the geographic area known as the "Buffalo Sector"

Holding:  Granting plaintiffs' motion for summary judgment as to the adequacy of defendants' search and for relief through limited discovery

• Discovery:  As a preliminary matter, the court notes that "[d]efendants do not oppose plaintiffs' motion for summary judgment on the adequacy of their search," but, rather, "[r]ecognizing that their search has been inadequate, they ask the Court to hold in abeyance a decision on plaintiffs' motion while CBP completes its searches."  The court dismisses defendants' argument that "because the Court previously found [two agency] declarations sufficient, plaintiffs must show bad faith on the part of the agency in order to obtain discovery."  Instead, the court finds that "because the agency has not satisfied its burden, a showing of bad faith is not necessary."  The court notes that CBP "now acknowledges that its previous searches were insufficient . . . and that its earlier declarations misrepresented the scope of those searches."  Additionally, the court notes that "the accuracy of those declarations has been undercut by evidence in the record, including the agency's latest declaration."  Secondly, the court finds that "there is tangible evidence in the record that establishes that the agency has not performed an adequate search."  The court adds that one declaration "does not explain exactly which files and storage systems are being searched and exactly how the search is being performed."  The court grants plaintiffs' request for discovery and orders plaintiffs "to submit a brief letter to the Court describing precisely what limited discovery they believe is appropriate."