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Summaries of New Decisions

Summaries of New Decisions - August 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 AUGUST 1

Court of Appeal

1.  Judicial Watch, Inc. v. Fed. Housing Fin. Agency, No. 10-5349, 2011 WL 3375576 (D.C. Cir. Aug. 5, 2011) (Griffith, J.)

Re:  Request to Federal Housing Finance Agency (FHFA) for Fannie Mae and Freddie Mac records concerning political campaign contributions

Holding:  Affirming the judgment of the district court that Fannie Mae and Freddie Mac records are not "agency records" subject to the FOIA

• Agency records:  Considering the four factors that determine whether an agency "controls" records as set forth in Burka v. HHS, the D.C. Circuit concludes that Fannie Mae and Freddie Mac records, to which the FHFA has access in its role as conservator under the Housing and Economic Recovery Act of 2008, do not constitute agency records for purposes of the FOIA.  As to the first factor, i.e., "'the intent of the document's creator to retain or relinquish control over the records,'" the D.C. Circuit finds it "agree[s] with [plaintiff] that Fannie and Freddie, the creators of the documents, intentionally relinquished control over the records when they agreed to the conservatorship."  Additionally, the D.C. Circuit determines that "[t]he second Burka factor also supports [plaintiff's] claim, as there is no question that as the conservator of Fannie and Freddie, and the titleholder of their documents, the FHFA enjoys 'the ability . . . to use and dispose of the record[s] as it sees fit.'" 

However, the D.C. Circuit finds that the third factor – "'the extent to which agency personnel have read or relied upon the document'" is "fatal" to plaintiff's claim because "it is uncontested that the FHFA has not used the requested records in any way."  The D.C. Circuit notes that "[i]n deciding whether an agency controls a document its employees created, we have consistently found that 'use is the decisive factor'" and finds that "use is decisive here as well."  The D.C. Circuit comments that "[a]lthough [the court] appreciate[s] [plaintiff's] interest in how much money Fannie and Freddie gave to which politicians in the years leading up to our current financial crisis, satisfying curiosity about the internal decisions of private companies is not the aim of FOIA, and there is no question that disclosure of the requested records would reveal nothing about decisionmaking at the FHFA." 

In terms of the fourth Burka factor, which focuses on "'the degree to which the document was integrated into the agency's record system or files,'" the D.C. Circuit finds that "[i]n this case, the degree is none at all."  The D.C. Circuit notes that here "it is the undisputed testimony of the FHFA's General Counsel that no one at the agency has relied upon these documents in any way."  The D.C. Circuit observes that although "FHFA could consult the requested records as it conducts its business," its "unexercised right to use and dispose of the records requested in this case is not enough to subject those records to FOIA." 

2.  Edwards v. EOUSA, No. 10-11831, 2011 WL 3360655 (11th Cir. Aug. 3, 2011)

Re:  Request for records pertaining to plaintiff's criminal case; specifically, statements made by his codefendant to police

Holding:  Granting EOUSA's motion for summary judgment, and concluding that plaintiff did not establish waiver as to documents for which EOUSA claimed Exemptions 7(C) and 7(D)

• Waiver:  At the outset, the court notes that plaintiff does not challenge any of EOUSA's claims of exemption, but instead argues that EOUSA waived it ability to assert Exemptions 7(C) and 7(D) "because it earlier had disclosed the documents that he requested."  However, contrary to plaintiff's contention, the court finds the investigative report which plaintiff claimed was disclosed by EOUSA was actually released in a redacted form by the Saint Petersburg Police Department in response to a request made under the Florida Public Records Act.  The court finds that the fact "[t]hat [plaintiff] obtained a copy of the investigative report from another source does not establish that the EOUSA voluntarily waived any FOIA exemption on that information."  Accordingly, the court grants summary judgment in favor of EOUSA.

District Courts

1. Murray v. Lappin, No. 09-992, 2011 U.S. Dist. LEXIS 86373 (D.D.C. Aug. 5, 2011) (Robinson, Mag.)

Re:  Request for documents illustrating an accounting of expenditures paid out of plaintiff's Inmate Trust Fund for the installation and anticipated cost of operating the Trust Fund Limited Inmate Communications System (TRULINCS) at a particular BOP institution

Holding:  Granting summary judgment to BOP based on the adequacy of its search; and denying plaintiff's request for attorney's fees and costs

• Adequacy of search:  The court concludes that BOP's search for records responsive to plaintiff's request was adequate where the declarations discuss the scope of the search and how a search of a particular system of records "was tailored to the parameters set forth in Plaintiff's FOIA request."  The court finds that "[p]laintiff cannot merely declare that because he cannot affirmatively calculate the costs for [a specific institution] from the documents he was provided, that somehow the [BOP] should be required to compile a database that would allow such a calculation."   

• Attorney fees & costs:  The court grants summary judgment to BOP "with respect to Plaintiff's claim for reasonable attorney's fees and costs because Plaintiff has failed to allege his legal entitlement to attorney's fees."  The court notes that "[t]his Circuit has held that a person who has appeared pro se in a FOIA case, is ineligible for an award of fees and costs" and comments that "[a]warding [plaintiff] attorney's fees would . . . defeat the legislative intent of the fee provision set forth in the FOIA."  

2. McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler, J.)

Re:  Requests for records pertaining to the Jonestown Massacre

Holding:  Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index

• Adequacy of search:  Despite plaintiffs' challenge to the adequacy of the FBI's search for responsive records, the court finds that "Defendant's affidavit explains precisely what searches it conducted and the databases searched" and, accordingly, "constitutes a 'reasonably detailed affidavit.'"  Additionally, the court notes that "the FBI's search picked up not only 'main' files but also 'cross references,' which are documents 'in an FBI file on another subject of an investigation in which the subject of the FOIA request is merely mentioned or referred to, but in which he/she is not the main subject of the investigation.'"  The court also determines that the fact that some of the enclosures and attachments to documents are missing from the FBI's production, "in the context of the FBI's search and the size of its production, are not sufficient to render the FBI's search inadequate." 

• Exemption 3:  The court finds that the FBI properly asserted Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) to protect the "'Federal Grand Jury subpoenas, as well as the names and identifying information of individuals subpoenaed to testify before the Federal Grand Jury and information that identifies specific records subpoenaed by the Federal Grand Jury'" because this information "plainly implicated 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'"  

With respect to the CIA's assertion of the National Security Act of 1947 and the Central Intelligence Act of 1949, the court finds that, as a threshold matter, "[t]here is no question that both statutes cited by Defendant are 'precisely the type of statutes comprehended by exemption 3.'"  The court then finds that "'given the special deference owed to agency affidavits on national security matters,'" the CIA properly invoked both statutes to withhold information related to the agency's "'functions, foremost of which is the collection of foreign intelligence through intelligence sources and methods, as well as the names of CIA employees, and organizational data, including location of facilities, file numbers and dissemination controls and markings.'" 

• Exemption 7(C):  Balancing the relevant privacy interests and the asserted public interest in disclosure, the court concludes that the FBI properly withheld the names and identifying information of third parties mentioned in the records, including special agents, victims and survivors of the Jonestown massacre pursuant to Exemption 7(C).  The court notes that "[s]uspects, witnesses, investigators, and third parties all have substantial privacy interests that are implicated by the public release of law enforcement investigative materials."  Conversely, the court finds unavailing plaintiffs' argument that the public interest is served by release of the records because "the interest in disclosure is particularly high in this case due to 'the depth and extent of the public interest in the Jonestown records.'"  Rather, the court finds that "[a]lthough the Jonestown Massacre may have elicited a great deal of public attention, the relevant question is not whether the public would like to know the names of FBI agents and victims involved, but whether knowing those names would shed light on the FBI's performance of its statutory duties."  Here, the court concludes that "[p]laintiffs have failed to convincingly explain how knowing the names of the persons involved would achieve that goal."  

• Exemption 7(D):  The court holds that the FBI properly invoked Exemption 7(D) to withhold information related to two sources who were given express promises of confidentiality.  The court rejects plaintiffs' contention that the FBI presented insufficient evidence to demonstrate that these individuals were promised confidentiality, because the FBI's "declarant had no personal knowledge of what assurances were given and that the phrases 'protect identity,' 'confidential source,' and 'In confidence' [noted on the records] 'may have been based on an FBI agent's misunderstanding of the circumstances . . . or were simply part of a bureaucratic routine.'"  The court finds instead that "[p]laintiffs' claims are simply too speculative to overcome the presumption of good faith accorded Defendant's affidavit." 

The court also concludes that the FBI properly asserted Exemption 7(D) to withhold information related to individuals who "gave the FBI information under an implied assurance of confidentiality."  The court rejects plaintiffs' argument that "because the informants' fear of danger may have subsided, they no longer are entitled to an implied promise of confidentiality," finding that "[p]laintiffs point to no authority" for such a claim.  Additionally, the court likewise dismisses as "entirely speculative and unpersuasive" plaintiffs' assertion that "'some of the interviews raise questions about the validity of any confidentiality agreement because they were carried out under conditions suggesting duress.'" 

Exemption 7(E):  The court holds that Exemption 7(E) was properly invoked to withhold "'the type of Stop Notice placed on certain survivors/victims,'" which "is a technique utilized by the FBI to obtain information concerning the movement of individuals of interest."  Although plaintiffs argue that the FBI has not demonstrated that "'this technique is generally unknown to the public'" or shown that a risk of circumvention could reasonably be expected to occur, the court finds that "Exemption 7(E) may be used to protect information where disclosure reasonably could lead to circumvention of laws or regulations even where the existence of the general technique is known to the public."  The court concludes that this information was properly withheld "[b]ecause '[r]elease of the types of stops could allow individuals to circumvent the law by avoiding discovery if they are aware of what action the FBI is requesting from an agency by the placement of a particular type of Stop.'" 

• Adequacy of Vaughn Index/segregation:  The court concludes that the FBI's submissions are "deficient and must be supplemented" because "[a]lthough the court was able to determine the propriety of the asserted Exemptions based upon the Defendant's affidavits, the failure of the Vaughn Index to provide any specific information regarding the missing pages and numerous redactions renders it impossible to evaluate the FBI's conclusions that the pages included no segregable portions."  Additionally, the court finds that the FBI's statement that "'[e]very effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of released material' falls far short of the specificity required to justify non-segregation." 

• Litigation considerations/reprocessing:  The court notes that the FBI has advised that it will file supplemental submissions for records that it previously withheld under "high" 2, which it will no longer defend, as well as a revised declaration for its withholdings made under Exemption 1, and documents protected by a sealing order.  The court therefore does not address those exemptions now, but rules that it will "not consider new exemptions raised by Defendant [for the re-processed material] at this late point in the litigation." 

3. Judicial Watch, Inc. v. DOJ, No. 10-851, 2011 WL 3343622 (D.D.C. Aug. 4, 2011) (Walton, J.)

Re:  Request for records pertaining to DOJ's decision to seek dismissal of certain defendants in a Voting Rights Act lawsuit against the New Black Panther Party for Self Defense; at issue is DOJ's assertion of Exemption 5 as a basis for withholding responsive records

Holding:  Granting DOJ's motion for summary judgment with respect to its withholdings pursuant to the Exemption 5; and ordering DOJ to provide additional information regarding the segregability of documents protected by the deliberative process privilege

• Exemption 5 (attorney work-product privilege):  The court concludes that certain records which pre-date DOJ's dismissal of the civil rights action, such as "e-mails containing draft memoranda along with related discussions and legal analyses about the New Black Panther Party case," "fall well within the scope of the work-product doctrine" because all "were created in 'the context of a reasonable anticipation of the motion . . . filed in' the New Black Panther Party case.'"  The court also finds that "the withheld records contain 'Civil Rights Division's attorneys' private thoughts, tactics, strategy, factual and legal analyses, and appraisals of the sufficiency of the available evidence' . . . and reveal the 'decisionmaking process, strategies and opinions of litigators and officials within [DOJ] on the [New Black Panther Party] litigation."  The court rejects plaintiff's contention that the emails were "'informational.'"  To the contrary, the court determines that defendants' submissions demonstrate that "along with real-time litigation updates concerning the New Black Panther Party case, the documents withheld also convey candid assessments of the evidence and case law as well as commentary and analyses pertaining to draft memoranda and proposed court filings."  With regard to records that post-date the filing of the dismissal papers, the court finds that those documents "were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege," although they are properly protected by the deliberative process privilege. 

• Exemption 5 (deliberative process privilege):  The court finds that records created in order to prepare public statements about the litigation, and to respond to media and Congressional inquiries on issues related to the dismissal of the case, are covered by the deliberative process privilege.  The court notes that post-decisional documents are protectable under the deliberative process privilege "to the extent they 'recount or reflect predecisional deliberations.'" 

• Segregation:  With respect to the documents withheld pursuant to the deliberative process privilege, the court determines that "the description of the DOJ's segregation efforts is too general for the Court, and the plaintiff, to evaluate whether any factual material in these documents is 'inextricably intertwined' with the deliberative material and would thus permit the DOJ to withhold the documents in their entirety."  DOJ is directed to supplement its filings addressing the issue of segregation.

4.  People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, No. 11-555, 2011 WL 3332781 (D.D.C. Aug. 3, 2011) (Huvelle, J.)

Re:  Request for records related to certain leases; at issue is the adequacy of defendant's search for responsive records

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

• Adequacy of search:  The court holds that defendant conducted adequate searches for records responsive to plaintiff's request.  As to the agency's pre-litigation search, the court finds that the "defendant has fulfilled its burden to provide detailed descriptions of 'what records were searched, by whom, and through what process.'"  Moreover, the court finds that defendant's "subsequent [post-litigation] production cannot serve as proof that the agency conducted an unreasonable search initially or acted in bad faith, for such a rule would punish those agencies that attempted to correct past inadequate searches."  The court notes that "[p]laintiff concedes that [BIA's] post-litigation search was adequate" and concludes that "the BIA remedied whatever inadequacies might have existed in response to the . . . request by subsequently searching every single document in every single file that could have contained responsive documents, ultimately producing thirty-seven more documents totaling over 400 pages" after the initiation of the instant action.  The court gives no credence to plaintiff's argument that BIA's post-litigation search and production were evidence of bad faith.

5.  Nat. Res. Def. Council, Inc. v. Wright-Patterson AFB, No. 10-3400, 2011 U.S. Dist. LEXIS 85387 (S.D.N.Y. Aug. 3, 2011) (Stein, J.)

Re:  Request for various records pertaining to a $6 billion "coal-to-liquid facility" for Wellsville, Ohio proposed by a private corporation

Holding:  Granting defendant's motion for summary judgment based on the adequacy of its search; and denying plaintiff's limited motion for discovery

• Adequacy of declarant:  The court dismisses as "meritless" plaintiff's argument that Air Force's declarations are inadmissible "on the grounds that they are not based on personal knowledge and therefore are . . . hearsay."  Rather, the court finds that the declarants who supervised the searches and the processing and were responsible for reviewing the administrative appeal associated with the FOIA request at issue "are competent to testify about the Air Force's search, and their declarations will be considered for the purpose of determining the adequacy of that search." 

• Adequacy of search:  Contrary to plaintiff's assertions that the agency's declarations "lack sufficient detail," the court finds that Air Force's submissions "describe the scope and nature of a thorough search, [and, accordingly] contain sufficient specificity."  Additionally, the court determines that plaintiff's ability to point to additional email exchanges, which were obtained from the state of Ohio, "does not establish that the Air Force possesses additional records."  The court notes that "[a]lthough plaintiff contends that the Air Force has failed to demonstrate that any purported deletion of [responsive] records complied with the Air Force's Records Disposition Schedule, the issue of whether the Air Force complied with its own document retention policy is immaterial to the issue of whether the Air Force met its burden under FOIA."  Additionally, the court comments that "the Air Force is under no obligation to locate every single record that could possibly exist."  To the extent that Air Force's initial declaration admits that it "made a mistake – the Air Force did not turn over responsive documents when it first should have," the court finds that the fact that "the Air Force confessed to a mistake in its initial declaration and then corrected that mistake does not render the search inadequate."  Indeed, the court notes that the D.C. Circuit "has suggested that an agency should be trusted more, not less, when it admits to a mistake."

5. Judicial Watch, Inc. v. SSA, No. 06-2034, 2011 WL 3268092 (D.D.C. Aug. 1, 2011) (Lamberth, J.)

Re:  Request for a list of names and addresses of employers who received "no-match" letters, whereby the SSA detects a mismatch between an employee's name and social security number, during a five-year time period

Holding:  Granting defendant's motion for summary judgment on the basis that it properly refused to disclose taxpayer information pursuant to Exemption 3

• Exemption 3:  The court holds that SSA properly refused to disclose a list of employers who received "no-match" letters pursuant to Exemption 3 in conjunction with Section 6103 of the Internal Revenue Code, which prohibits release of tax return information.  The court finds that "[g]iven that [the requested] list is undoubtedly comprised of companies, corporations, and associations – which constitute 'persons' under § 7701 [of the Internal Revenue Code] – the SSA is prohibited from releasing this list because employers are 'taxpayers' and revealing their identity would violate § 6103."  Furthermore, the court finds that, due to the specific nature of the request, the Haskell Amendment, which "allows an agency to release, for statistical purposes, compilations of data, which do not identify a 'particular taxpayer,'" cannot be used here "as a vehicle to gain access to confidential tax return information." 

6.  Carlson v. DOJ, No. 10-5149, 2011 U.S. Dist. LEXIS 81740 (S.D.N.Y. July 21, 2011) (Fox, Mag.)

Re:  Request for surveillance photographs and any other records maintained by the FBI documenting plaintiff and John Lennon in front of the High School of Art and Design

Holding:  Denying plaintiff's application for appointment of counsel

• Litigation considerations/appointment of counsel:  The court denies plaintiff's application for appointment of counsel in connection with the instant FOIA action.  The court holds that "[t]he key factual and legal issues are not complex, and this case does not present a need for extensive factual investigation."  Moreover, the court finds that plaintiff's contention that "he believes 'the high profile nature of the case' and the need for 'assistance [of counsel in] locating witnesses and help [in] encouraging them to sign affidavits' justify his request, . . . do not constitute special reasons why appointment of counsel would be more likely to lead to a just resolution of this case." 

WEEK OF AUGUST 8

District Courts

1.  Marshall v. FBI, No. 10-871, 2011 WL 3497801 (D.D.C. Aug. 10, 2011) (Collyer, J.)

Re:  Request for documents regarding DNA evidence related to plaintiff's criminal conviction

Holding:  Granting the FBI's motion for summary judgment on the basis that it conducted an adequate search and properly withheld third party information pursuant to Exemption 7(C)

• Adequacy of search:  The court holds that "the FBI conducted a good faith, reasonable search of those systems of records likely to possess the requested information."  Furthermore, the court finds that plaintiff has not met his burden to demonstrate that the search was deficient, noting that "[m]ere speculation regarding the existence and discoverability of other documents is insufficient to rebut [the FBI's] good faith declaration."

• Exemption 7(C):  The court concludes that the FBI properly withheld the names, telephone numbers, and other identifying information related to FBI special agents, agency personnel, and third parties of investigative interest pursuant to Exemption 7(C).  In terms of the privacy interests at stake, the court notes that "Exemption 7(C) protects the identities of suspects, witnesses, and other persons of investigatory interest who are identified in agency records in connection with alleged criminal activity."  The court also finds that "law enforcement personnel have a privacy interest in protecting their own identities because disclosure could subject them to annoyance, embarrassment, and harassment in the conduct of their official and private lives."  Conversely, the court finds that, with regard to any public interests in disclosure, plaintiff "has not produced any evidence that would give rise to a reasonable belief that any government impropriety might have occurred."

• Segregation:  The court determines that "the FBI met its burden of showing with reasonable specificity why documents could not be further segregated" where its declaration "indicates that the FBI only redacted names, telephone numbers, and other information that could be used to identify FBI agents and personnel and third parties."

• Litigation considerations/waiver:  The court grants plaintiff's unopposed motion that it take judicial notice of an order in plaintiff's underlying criminal case whereby the Eastern District of Louisiana noted that he received copies of DNA reports related to him.  However, the court finds that this "Order is not relevant to this proceeding because disclosure obligations under FOIA and disclosure obligations in criminal proceedings are separate matters, governed by different standards."  "Accordingly, the Order in the criminal case against [plaintiff] noting that 'DNA records' were released to [him] does not mandate the release of documents in this case."  The court observes that "[t]his case is governed by FOIA law and not [Federal Rule of Criminal Procedure] 16, Brady, or other rules of criminal procedure." 

2.  Bensman v. Nat'l Park Serv., No. 10-1910, 2011 WL 3489507 (D.D.C. Aug. 10, 2011) (Boasberg, J.)

Re:  Request for records pertaining to certain topographical data; at issue is plaintiff's fee waiver request

Holding:  Concluding that because defendant exceeded the statutory time limit for responding to a FOIA request, it cannot assess search fees

• Litigation considerations/standard of review:  The court notes that under the FOIA in reviewing agency determinations on fee waiver requests, the court's review is de novo, but is limited to the administrative record.

• Fee waiver/OPEN Government Act Amendment:  The court concludes that defendant cannot assess search fees with respect to plaintiff's request because the agency exceeded the FOIA's twenty-day statutory response time.  At the outset, the court finds that Department of the Interior's regulations and guidelines, which provide that "a 'bureau will not start processing a request until [all] fee issue[s have] been resolved,' but [which also provide that] 'the bureau must make [a] determination on the fee waiver request within 20 workdays," are both internally inconsistent and "at odds" with the 2007 OPEN Government Act amendments to the FOIA whereby fees cannot be charged when an agency fails to comply with the statutory time limits (subject to certain exceptions).  Applying theSupreme Court's analysis in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. as to an agency's interpretation of a statute, the court concludes that "the language of the FOIA statute and the 2007 Amendments is unambiguous," namely, that "[a] determination must be made within 20 working days; to the extent tolling is possible, under the 2007 amendments a requester's response to an agency's request for information or clarification 'ends the tolling period.'"

Here, the court finds that Interior asked "for further information regarding Plaintiff's fee-waiver request" and "[p]laintiff provided that three days later."  The court finds that Interior's decision to deny the fee waiver eight months later "plainly violates the 2007 Amendments' proscriptions."  The court rejects Interior's argument that "no tolling is necessary" because the request was not perfected until the fee issues were resolved.  Rather, the court finds that "[b]ecause Defendant's proffered interpretation would require all issues regarding fee assessment to be resolved prior to even starting the 20-working-day time limit, it follows that there would never be a need to clarify fee issues once the time limit did commence; this necessarily must have already taken place."  The court also notes that "[s]uch a position is even more curious because Defendant's own regulations and internal memoranda explicitly acknowledge, in at least four instances, that the statutory time limit does in fact apply to fee-waiver requests."

With respect to Interior's argument that it timely denied plaintiff's fee waiver request in one of its response letters, the court finds that "[t]his argument appears for the first time in Defendant's pleadings and was never raised in its correspondence with Plaintiff" and, as such, "[t]he Court may not entertain litigation positions newly adopted by Defendant after Plaintiff filed suit; even if it could, the Letter does not qualify as a denial under Defendant's own regulations."  Similarly, the court refuses to consider Interior's claim that "exceptional circumstances existed surrounding Plaintiff's fee-waiver request, thus justifying extending the time limit for notifying him of its determination."  The court finds that "this is an argument Defendant failed to make at the administrative level before Plaintiff brought suit, thus barring the Court's consideration of it now."   

3.  Petit-Frere v. U.S. Atty's Office for S.D. Fla., No. 09-1732, 2011 WL 3443831 (D.D.C. Aug. 8, 2011) (Boasberg, J.)

Re:  Request for records related to an application for a wiretap allegedly targeting plaintiff

Holding:  Granting summary judgment to defendants on the basis that they conducted an adequate search; and denying plaintiff's discovery motion as moot

• Adequacy of search:  The court finds that defendants conducted an adequate search where the "declarations in this case plainly lay out: (1) the files that were searched; (2) the reasons for searching those files; (3) the search terms employed; and (4) the search method used."  The court rejects plaintiff's claim that "Defendants should have searched the names of his co-defendants," noting that plaintiff "never asked that these names be searched and he never explains why . . . these files would have contained any documents relating to a wiretap for which [he] was the target."  The court also dismisses plaintiff's contention that "record evidence suggests that a wiretap application was submitted to a federal judge" when "[i]n actuality, the evidence points to precisely the opposite conclusion: no such wiretap application was ever submitted."

4. Moffat v. DOJ, No. 09-12067, 2011 WL 3475440 (D. Mass. Aug. 5, 2011) (Casper, J.)

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

Holding:  Granting summary judgment to defendants based on adequacy of their searches and withholdings; denying plaintiff's request for attorney's fees and costs with respect to DEA and ATF, but permitting him leave to file a memorandum regarding his entitlement to fees with respect to his claim against the FBI

• Adequacy of search:  With regard to the DEA, the court concludes that defendant "met its burden of demonstrating good faith as to the adequacy of its search" where its "affidavits provide in a 'detailed and nonconclusory manner,' . . . descriptions of the DEA's search terms, the types of searches performed, the scope of the search, the method by which the searches were performed and the structure of the DEA's file system."  Likewise, the court concludes that ATF's search was adequate because its "affidavits are 'detailed and nonconclusory,' . . . and provide a thorough explanation of the ATF's search for records responsive to [plaintiff's] request, describing the structure of the ATF's file systems, the methods and types of searches performed, the scope of the search and the search terms."  For the same reasons, the court determines that the FBI also performed an adequate search for responsive records.  The court concludes that plaintiff's "objections [which] amount to mere 'speculation about the existence and discoverability of other documents'" are not sufficient to overcome the defendants' good faith searches.

• Exemption 7 (threshold):  The court holds that the FBI satisfied the threshold of Exemption 7 because "the redacted documents 'relate to [something] that can be fairly characterized as an enforcement proceeding,' . . . and that the enforcement activity involves one of the law enforcement duties of the FBI."

• Exemption 7(A):  The court concludes that the FBI properly redacted "a witness interview form which may later be used as 'part of a Federal Grand Jury proceeding or at criminal trials'" pursuant to Exemption 7(A) "[b]ecause the release of this document could compromise an open investigation."

• Exemption 7(C):  The FBI properly invoked Exemption 7(C) to withhold the identifying information of individuals mentioned in law enforcement records.  With respect to information pertaining to individuals interviewed by the FBI in the course of criminal investigations, the court finds that here "[t]he FBI asserts, and [plaintiff] does not dispute, that disclosure could subject these individuals to harassment, intimidation, threats, or even economic and physical harm, which could deter this kind of assistance to the FBI in the future."  As to federal and state law enforcement agents, the court finds that "disclosure of identifying information concerning these individuals could also prejudice their effectiveness in conducting criminal investigations and may also subject them to various forms of hostility for their roles in criminal investigations."  For individuals of investigative interest, the court finds that "if the FBI disclosed the names of these third parties, they would possibly be subject to harassment or criticism as connections to investigations of criminal activities carry an 'extremely negative connotation.'"  Conversely, the court finds that plaintiff has failed to identify a "superior public interest" in disclosure. 

• Exemption 7(D):  The court concludes that the FBI correctly asserted Exemption 7(D) to protect confidential sources.  The court finds that the FBI properly protected identifying information related to "sources who provided information under an 'implied' assurance of confidentiality" because "[t]hese individuals, given the nature of the information provided, 'would reasonably fear that disclosure of their identit[ies] would place them in danger.'"  Likewise, the court concludes that the FBI properly redacted "information provided by [two] individuals on the basis of an 'express' assurance of confidentiality," noting that "given the content of these investigations, even under an 'implied' assurance of confidentiality the FBI would be permitted to withhold these records as both individuals 'would reasonably fear that disclosure of their identit[ies] would place them in danger.'"

• Waiver:  Despite plaintiff's claim that the government had disclosed an FBI 302 report to a prosecutor prior to his murder trial, "[t]he court finds the previous unredacted disclosure of this document irrelevant to the FBI's redaction determinations at issue here, as the standards for disclosure of information under FOIA are different from the standards of disclosure for information in a criminal trial."

• Attorney fees & costs:  The court denies plaintiff's request for attorney fees and costs with regard to DEA and ATF, but allows him leave to file a memorandum addressing the four entitlement factors for fees with respect to his claim against the FBI.  First, the court finds that plaintiff "has not substantially prevailed against the DEA or the ATF" because both components "provided [plaintiff] with no records as a result of his administrative FOIA request and with no records as a result of his complaint."  However, the court finds that because "[t]he FBI provided [plaintiff] with no records in response to his administrative FOIA request but did provide him with records after performing a more thorough search in response to his complaint," "[t]his unilateral change in the FBI's position may be sufficient to establish that [plaintiff] has substantially prevailed."

5. Queen Anne's Conservation Assoc. v. Dep't of State, No. 10-670, 2011 WL 3426038 (D.D.C. Aug. 3, 2011) (Robinson, Mag.)

Re:  Request for records regarding the plans of the Department of State and GSA to build a training center on two Queen Anne's County farms; at issue is the amount of attorneys fees and costs to which plaintiff is entitled

Holding:  Granting, in part, plaintiff's petition for attorney fees and costs

• Attorney fees & costs:  At the outset, the court notes that a stipulation between the parties provides that "'Defendants agree that Plaintiff is entitled to an award of reasonable attorney's fees and costs.'"  As to the standard governing the award, the court notes that the circumstances of this case "do not present any novel or complex issues of law."  As such, the court indicates that it "will award fees at the U.S. Attorney's Office's Laffey matrix rates."  Upon reviewing the billing reports submitted by plaintiff, the court finds that the "description of the tasks are not sufficiently detailed to permit determination of reasonableness of hours claimed" and, accordingly, finds that "Plaintiff has failed to present well-documented claims."  The court also concludes that plaintiff is not entitled to an award for work performed at the administrative stage of the FOIA request and also "finds no basis for an award of fees after the voluntary dismissal of the action by Plaintiff."  Accordingly, the court orders fees and costs to plaintiff, which "shall be determined by (1) the subtraction of all sums claimed for activity during the administrative phase; (2) the subtraction of all sums claimed for activity following Plaintiff's dismissal of this action unrelated to the fee petition, (3) the application of Laffey matrix rates to the remaining hours, and (4) a 20 percent reduction of that amount." 

WEEK OF AUGUST 15

Courts of Appeal

1.  Yonemoto v. VA, No. 10-15180, 2011 WL 3606596 (9th Cir. Aug. 17, 2011) (Berzon, J.)

Re:  Request for emails to and from specified individuals; at issue is whether the VA's offer to provide 157 emails to plaintiff in an unredacted form in his capacity as an employee mooted his FOIA claim as to those emails, and whether the VA properly redacted nine other emails pursuant to Exemption 6

Holding:  Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings

• Litigation considerations/standard of review:  The Ninth Circuit "consider[s], de novo, whether the VA's offer of 157 of the disputed emails to [plaintiff] in his capacity as a VA employee mooted his claim to those emails under the FOIA" and "evaluat[es], de novo, whether the district court had an adequate factual basis to undertake the balancing of interests" in connection with information withheld pursuant to Exemption 6.

• Litigation considerations/mootness:  The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records.  The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide the access granted by the FOIA."  The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information."  Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot."  As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them.  The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance."

• Litigation considerations/burden of proof:  Contrary to the VA's arguments, the Ninth Circuit finds that allowing plaintiff to view the unredacted versions of the emails at issue does not shift the burden to plaintiff "to disprove the propriety of particular redactions."

• Exemption 6:  With respect to the nine contested emails reviewed by the district court in camera for which the VA asserted Exemption 6, the Ninth Circuit holds that "[i]nsofar as the district court made a categorical privacy judgment," rather than making such a determination on a record-by-record basis, "it erred."  The Ninth Circuit notes that "[s]uch categorical determinations are rarely proper under the FOIA; they are appropriate only in those circumstances in which disclosing a type of record defined by its content, such as an identifiable individual's rap sheet, will invariably result in an invasion of personal privacy." In this case, the Ninth Circuit determines that "an email . . . is defined not by its content but by its mode of transmission" and, as such, would not be the type of record which could be judged on a categorical basis.  Based on its in camera review, the Ninth Circuit concludes that the privacy interests implicated by the records outweigh any public interest in disclosure for emails containing information about an employee's illness, conditions for disqualifying an individual from a clinical trial for medication, and an employee's complaints about a coworker.  With respect to one email discussing VA's policy regarding relocation expenses, the Ninth Circuit rules that the names of individuals may be redacted, but finds that the public interest controls with respect to the content.  Additionally, the Ninth Circuit concludes that VA must release certain reasonably segregable portions of an email that do not relate to any privacy concerns.  For the remaining emails, the Ninth Circuit determines that the VA failed to identify the privacy interests involved and remands this matter to the district court for further consideration, noting that the VA should provide a more detailed Vaughn Index to support its assertion of Exemption 6. 

District Courts

1.  Judicial Watch, Inc. v. U.S. Secret Serv., No. 09-2312, 2011 WL 3610077 (D.D.C. Aug. 17, 2011) (Howell, J.)

Re:  Request for White House visitor logs (Worker and Visitors Entry System (WAVES) and Access Control Records (ACR)); at issue is whether the requested records constitute agency records under the FOIA

Holding:  Granting plaintiff's partial motion for summary judgment and concluding that White House visitor logs are agency records subject to the FOIA

• Agency records:  Applying the two part test outlined by the Supreme Court in Department of Justice v. Tax Analysts, the court "agrees with the conclusions of the other judges in this District" and finds that White House visitor logs are agency records for the purposes of the FOIA.  As to the first part of the test, i.e., whether an agency "'create[d] or obtain[ed] the requested materials,'" which the Secret Service "does not appear to contest," "the court finds that "[r]egardless of what information may be supplied by outside actors, the WAVES and ACR records are largely generated by the Secret Service and are undisputedly obtained by the Secret Service" and, thus, the first prong of the test is satisfied.  With regard to the second part of the test, namely, whether the agency is "'in control of the requested materials at the time the FOIA request is made,'" the court examines four factors: "'(1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.'"  For the first factor, the court concludes that "intent, weighs in favor of the Secret Service's assertion that the records are not under agency control" because "it has been the practice of the Secret Service to regularly transfer copies of the WAVES and ACR records to the [White House Office of Records Management (ORM).]"

However, the court finds that the second factor concerning the agency's ability to use and dispose of the records weighs against the Secret Service because "[r]egardless of its stated transfer policy, . . . the Secret Service has consistently continued to maintain copies of these records on its systems, and has not sufficiently explained any restriction on its use or disposition of these documents."  The court also concludes that "[t]he third factor – the extent to which Secret Service personnel have read or relied upon the documents – cuts strongly against the Secret Service."  Although the Secret Service argues that it only relies on the records to conduct background checks on visitors and verify admissibility at the time of entrance to the White House, the court finds that "the fact that [it] uses the documents for the limited purpose for which they were created strongly suggests the documents are 'agency records' under FOIA."  Lastly, the court finds that the fourth factor, i.e., "the degree to which the records were integrated into the Secret Service's record system, also weighs against the Secret Service."  Although it is "the 'intent' of the Secret Service to erase the WAVES records from their servers after [the] transfer" to ORM, the court finds that this fact "is not dispositive in determining whether the records are integrated."  The court observes that "[e]ven if [it] assumes that all of the records in question have, in fact, been deleted from the Secret Service's computer system since their initial use, the Secret Service does not contest that the records were at one point an integrated portion of its computer system."  Accordingly, the court concludes that these records "were substantially integrated" into the agency's records system.  Balancing all the factors above, the court determines that the visitor logs are agency records.

As to defendant's argument that the court should "construe FOIA not to cover the WAVES and ACR records [in order] to avoid raising serious Constitutional questions" regarding the separation of powers, the court finds that "[t]he Constitutional avoidance doctrine is not applicable here because the Court is not faced with the interpretation of an ambiguous statute."  Moreover, the court notes that "the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises."  The court also rejects defendant's claim that "it would be 'virtually impossible' for the Secret Service to process plaintiff's FOIA request with respect to records created between January 20, 2009 and September 15, 2009 without potentially compromising national security interests."  Rather, the court notes that the Secret Service does not contest that there are "at least some records implicated by plaintiff's FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns."  Accordingly, the court concludes that "[a]t this stage, . . . defendant has not met its burden to show that the requested material either falls within a FOIA exemption or would be unreasonably burdensome to search."  

2. Techserve Alliance v. Napolitano, No. 10-353, 2011 WL 3606525 (D.D.C. Aug. 17, 2011) (Lamberth, J.)

Re:  Request for H1-B visa materials maintained by U.S. Citizenship and Immigration Services (USCIS)

Holding:  Granting defendants' motion for summary judgment on the basis that its search was adequate and its assertions of Exemptions 5 and 7(E) were proper

• Adequacy of search:  As a preliminary matter, although plaintiff contends that defendants' search is unreasonable because it failed to timely respond to the FOIA request, the court notes that the agency's "delayed response in searching for responsive materials will not affect this summary judgment motion" and "will not factor into the Court's decision regarding the adequacy and reasonableness of USCIS's search."  The court concludes that based on defendants' detailed Vaughn Index that "USCIS conducted a good faith search for responsive documents that was reasonably calculated to uncover responsive documents."  Moreover, the court finds that defendant's "inability to locate one document – when it conducted a supplemental search to find it – does not render its search efforts inadequate."  As to the plaintiff's argument that USCIS should be required to supplement its search because it did not disclose the cut-off date that it used for its search, the court finds that "[a]lthough USCIS failed to specifically notify [plaintiff] of its cut-off date policy, the facts of this case support USCIS's contention that it conducted an adequate search."  For one, the court notes that USCIS "conducted supplemental searches when it realized that its search did not include records pertaining to several categories of [plaintiff's] request" and "searched various agencies for missing materials."  Additionally, the court finds that "USCIS did not use the date of the FOIA request as its search cut-off date, rather it used a later date, resulting in a 'much fuller search and disclosure' for [plaintiff]."

• Exemption 5 (deliberative process privilege):  The court holds that that USCIS properly asserted the deliberative process privilege to protect certain email exchanges that discuss possible policy changes, draft documents, and advisory opinions.  The court rejects plaintiff's argument that defendants failed to show the pre-decisional nature of certain documents where they did not "match the document with the corresponding final document."  To the contrary, the court finds that "[a]n agency does not need to identify the policy or act that spurred the creation of a particular draft document."  Here, the court concludes that "e-mail exchanges between various agency officials regarding the possible implementation of changes to processing fraud matters involving H1-B visas," "reflect on-going discussions and debate regarding a change to current processing."  The court determines that release of these e-mails "would stymie the consultative process because employees might hesitate to express their opinions for fear of public disclosure."  As to draft documents, the court notes that they "likely are to be protected under the deliberative process privilege because 'draft documents,' by their very nature, are typically pre-decisional and deliberative.  Here, disclosure "would provide the public with conflicting information."  The court likewise concludes that memos and e-mails that contained advisory opinions, and "seek guidance regarding process and policy changes" were properly withheld in full "because they are all pre-decisional and deliberative" and release "could hinder the deliberative process and confuse the public."

• Exemption 7(E):  The court concludes that USCIS properly invoked Exemption 7(E) to withhold "documents related to 'requests for evidence' in response to a benefits application or petition."  The court finds that "[s]ince USCIS collaborates with other agencies within and outside of DHS to prevent immigration fraud, disclosing any of the aforementioned documents would reveal the selection criteria, fraud indicators, and investigative process that USCIS and other agencies use in fraud investigations during the H1-B visa process."  Accordingly, "[r]eleasing this information would potentially enable the circumvention of law and could create national and homeland security problems." 

3.  Truesdale v. DOJ, No. 08-1862, 2011 WL 3608477 (D.D.C. Aug. 17, 2011) (Friedman, J.)

Re:  Request for certain records allegedly contained within a repository established under 18 U.S.C. § 3662 and records related to plaintiff's criminal conviction located in the Office of the Attorney General

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

• Adequacy of search:  The court holds that DOJ conducted an adequate search where its declarations explain how it interpreted plaintiff's request as "one seeking records pertaining to and contained within a records repository established under 18 U.S.C. § 3662," described scope of the search and the terms used to query its electronic database, and conducted additional research in an attempt to identify the location of potentially responsive records.  The court rejects plaintiff's claim that DOJ's declaration "'is insufficient'" because it fails to address the records systems of other DOJ components.  Instead, the court finds that "[t]he declarant makes no representations regarding records maintained by other DOJ components, and cannot be expected to do so" and notes that DOJ submits its "declaration for the purpose of explaining the search for records thought to be maintained by the Office of the Attorney General."  The court also dismisses plaintiff's complaint that DOJ failed to search for responsive records at other DOJ components, "namely, the FBI, BOP, Bureau of Alcohol, Tobacco and Firearms, Drug Enforcement Administration, and the Executive Office for United States Attorneys."  Rather, the court finds that "[i]n light of plaintiff's clarification of his request – that is, his insistence that records he seeks were or should have been maintained by the Attorney General – defendant's decision to limit its search to the official records repository for the Office of the Attorney General was reasonable under the circumstances."  The court also concludes that plaintiff's mere "speculation as to the agency's bad faith" is not sufficient to "overcome the presumption of good faith afforded the agency's declaration."

4.  Int'l Union of Elevator Constructors Loc. 2 v. DOL, No. 10-1935, 2011 WL 3626411 (N.D. Ill. Aug. 17, 2011) (Castillo, J.)

Re:  Requests for various records related to plaintiff and civil investigations of plaintiff conducted by the Office of Labor-Management Standards

Holding:  Granting defendant's motion for summary judgment based on its withholdings under Exemption 7(A); and denying plaintiff's motions for summary judgment and for disclosure of DOL's in camera declaration and the withheld records

• Exemption 7(A):  Based on its review of a supplemental declaration submitted in camera and the withheld records, the court concludes that DOL justified its claim of Exemption 7(A) for the documents at issue.  The court finds that unlike DOL's initial declarations, the supplemental declaration "is specific, detailed, and demonstrates that the withheld documents logically fall within Exemption 7(A)."  The court notes that the declaration explains the background of the investigation at issue, identifies the responsive records and "highlights in detail the risk that disclosure of these documents would prematurely reveal the Department of Labor's evidence, as well as the nature, scope, direction and focus of its investigations."  Moreover, the declaration explains how disclosure "could enable the targets [of the investigation] . . .  to destroy or alter the evidence or construct defenses" and to intimidate or harass witnesses and informants.  Additionally, the court notes that its in camera inspection "corroborates these declarations."  The court dismisses plaintiff's claim that the documents at issue relate to "closed civil investigations of transactions which occurred more than five years ago and are now beyond the statute of limitations."  Rather, the court finds that DOL has demonstrated that although the records were originally compiled for those now-closed civil investigations, the assertion of Exemption 7(A) is proper because "the material is being relied upon and referenced in the current criminal investigation."  The court also denies plaintiff' s request for disclosure of DOL's in camera declaration, noting that "no portion of [it] can be disclosed without revealing the information the Department of Labor seeks to protect."

5.  Judicial Watch, Inc. v. U.S. Dep't of the Treasury, No. 10-302, 2011 WL 3582152 (D.D.C. Aug. 16, 2011) (Howell, J.)

Re:  Requests for records pertaining to the Troubled Assets Relief Program (TARP); specifically, requests related to three meetings involving Kenneth Feinberg, an official who served as Special Master for Executive Compensation under TARP; at issue are documents for which Treasury claimed Exemptions 4 and 5

Holding:  Granting summary judgment to Treasury based on its withholdings under Exemption 5, but ordering defendant to release reasonably segregable information from one document or to demonstrate why this information is not segregable

• Exemption 5 (deliberative process privilege):  Based on defendant's submissions and an in camera review of the documents at issue, the court determines that deliberative process privilege covers redacted portions of internal emails detailing pre-meeting discussions and memoranda containing a "'draft issues list.'"  The court finds that "defendant properly identified the harm that would result from the release of information by noting that release would 'have a chilling effect on open and frank discussions within the Treasury.'"  Additionally, the court determines that "defendant also properly identified the deliberative process" at issue, namely, the records concern "'possible approaches to take with respect to outstanding policy matters at issue related to the Special Master's ongoing review of AIG's compensation structures pursuant to the Interim Final Rule."

With regard to plaintiff's argument that "an agency must prove that the withheld information 'would actually inhibit candor,'" the court finds that "plaintiff overstates defendant's required showing."  Rather, the court concludes that "defendant only needs to demonstrate that the information was pre-decisional and deliberative and that, therefore, the privilege is ultimately being invoked 'to prevent injury to the quality of agency decisions by allowing government officials freedom to debate alternative approaches in private.'"  The court finds that defendant has made such a showing in this case.

• Exemption 5 (deliberative process privilege)/segregability: The court concludes that "the factual material in the disputed documents [consisting of information related to AIG's historical and proposed compensation payments and structures] was properly redacted or withheld using the deliberative process exemption here."  The court notes that, as in this case, "where factual material was assembled into a summary or memorandum through an exercise of judgment in determining which facts to highlight 'for the benefit of an official called upon to take discretionary action,' [the] deliberative process privilege may be properly asserted."

• Exemption 5 (attorney client privilege):  As a preliminary matter, the court comments that "[s]ince the Court has already determined that the deliberative process privilege shields all of the disputed information in these documents, the issue of the extent of the portions additionally protected by the attorney client privilege . . . is academic."  The court goes on to conclude that the attorney client privilege protects communications containing facts from a third party where the communication concerned "the agency's own actions in its ongoing evaluation of AIG under the Interim Final Rule."  The court finds that, here, the "agency staff sought legal advice 'based upon facts provided confidentially by Treasury to its attorney' and the communication 'has been held in confidence.'"  The court rejects plaintiff's argument that defendant is required to show that certain employees "were authorized to 'speak for'" Treasury in order for the attorney-client privilege to apply.  Rather, the court notes that "[c]ourts in this Circuit have routinely held that attorney-client privilege applies to employees at varying levels of seniority in an agency or corporation" and finds that defendant has shown that communications between these employees and the agency attorney clearly fell "'within the scope of each of these employee's duties'" and therefore is properly covered by the attorney client privilege.

• Exemption 4:  The court also examines defendant's claim that Exemption 4 applies to a "Current Draft Talking Points" document, which was provided voluntarily and "contains confidential commercial or financial information obtained from AIG related to compensation and retention matters."  The court rejects plaintiff's argument that the information document was not kept confidential because it was circulated to individuals at the Federal Reserve Bank of New York (FRBNY).  The court finds that, given the FRBNY's regulatory role in the banking industry, "the limited disclosures of information to the FRBNY are akin to the type of limited disclosures, such as to suppliers or employees, that do not preclude protection under Exemption 4."  The court notes that the submitter's declaration "explains that the information at issue is not a type AIG customarily discloses to the public and the cover email contained a confidentiality legend, which warned the recipients of the e-mail that the information, including the attachment, inside may be confidential and should not be disseminated, distributed, or copied."  As to the documents that were required submissions, the court concludes that it does not need to decide this point, since it has already determined that this information is covered by Exemption 5.

• Segregability:  Based on its in camera review, the court concludes "the 'Current Draft Talking Points' documents contains information that is both reasonably segregable and not confidential in nature."  The court notes that certain portions are "easily separable from the exempt portions and would not produce incomplete sentences devoid of any meaning." 

6. Rimmer v. Holder, No. 10-1106, 2011 WL 3565224 (M.D. Tenn. Aug. 15, 2011) (Trauger, J.)

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

Holding:  Granting defendant's motion to dismiss plaintiff's Administrative Procedure Act claim and his claim for mandamus relief; and holding that the case will proceed solely as a FOIA action

• Administrative Procedure Act Claim:  The court dismisses plaintiff's APA claim because it concludes that he has an adequate remedy under FOIA.  The court finds that, here, "plaintiff seeks the exact same remedy for all of his claims – the production of the full FBI file, un-redacted."  The court notes that "there appears to be judicial unanimity that, where a plaintiff asserts both a FOIA and an APA claim, both of which only seek production of documents allegedly wrongly withheld by an agency, the FOIA claim, with its de novo standard of review, provides the sole avenue for relief."

• Mandamus relief:  At the outset, the court notes that "[m]andamus is a 'drastic' and 'extraordinary' remedy available only if (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff."  The court dismisses plaintiff's claim for mandamus relief finding that "the FOIA claim provides an adequate and available remedy for [him], [because] through the FOIA claim and the mandamus claim, [he] seeks the same relief – the production of the documents." 

7. Niblock v. FBI, No. 09-1346 (D.D.C. July 29, 2011) (Boasberg, J.)

Holding:  Granting FBI's motion for summary judgment as conceded

• Litigation considerations/failure to prosecute:  The court grants the FBI's motion for summary judgment as conceded where the court advised plaintiff of his obligation to file an opposition and warned him of the consequence of his failure to do so. 

8. Evans v. FBI, No. 10-1232 (W.D. Mo. July 19, 2011) (Wright, J.)

Re:  Requests for various records pertaining to plaintiff

Holding:  Granting the FBI's motion for summary judgment based on the adequacy of its search; dismissing plaintiff's non-FOIA claims against the FBI; denying DHS's motion to dismiss and recommending that issues be reframed and presented to court as a motion for summary judgment

• Adequacy of search:  The court holds that "the FBI has carried its burden of showing that it conducted adequate searches reasonably calculated to uncover relevant information in response to plaintiff's FOIA requests" where its "declaration identifies the affiant and his role in the agency, discusses how the FOIA requests were disseminated within their office and the scope of the search, which particular files were searched, and the chronology of the search."  The court finds that "[p]laintiff's conclusory assertions that the FBI falsified documents or destroyed evidence does not raise a material issue of fact."

• Jurisdiction:  "Because the Court's jurisdiction under the FOIA extends only to claims arising from the improper withholding of agency records, . . . plaintiff's remaining requests or allegations (i.e., his cease and desist request and his request that the Court order the agencies to cease monitoring him) are not cognizable under the FOIA" and are dismissed.

WEEK OF AUGUST 22

District Courts

1.  Anderson v. BOP, No. 10-413, 2011 U.S. Dist. LEXIS 95125 (D.D.C. Aug. 25, 2011) (Boasberg, J.)

Re:  Request for records pertaining to plaintiff's prison transfer

Holding:  Granting BOP's motion for summary judgment on the basis that its search was adequate and its withholdings pursuant to Exemptions     7(C) and 7(F) were justified

• Exemption 7/threshold:  The court concludes that the records at issue, which concern BOP's investigation as to whether it was necessary to transfer plaintiff to another facility, "were compiled for a law enforcement purpose."  The court finds that "[i]nvestigations like this can be fairly characterized as enforcement proceedings, where, as here, BOP determines that it is necessary to transfer an inmate to prevent future violence." 

• Exemption 7(C):  The court holds that Exemption 7(C) was properly asserted to withhold seven pages that pertain to a third party.  The court comments that "[a]lthough, given the subject matter of the documents, the Court finds that the privacy interest here may be weak, there is no corresponding public interest whatsoever to overcome even a weak privacy interest." 

• Exemption 7(F):  Based on an in camera review, the court concludes that BOP properly invoked Exemption 7(F) to withhold information related to a specific incident that occurred at a BOP facility, which it asserted "'could jeopardize the safety of individual(s) as it would likely result in harassment and/or retaliation, to possibly include physical assaults, directed toward individual(s) identified in the investigation and resulting in a threat not only to the named individual but also the safe operation of the institution.'"   The court notes that "[w]hile [it] finds the subject matter at issue rather trivial, it is not in a position to second-guess Defendant's valid assertion that disclosure could reasonably be expected to endanger the life or safety of an individual." 

2.  Navistar, Inc. v. EPA, No. 11-449, 2011 U.S. Dist. LEXIS 95128 (D.D.C. Aug. 25, 2011) (Wilkins, J.)

Re:  Requests for records pertaining to the EPA's testing and certification of certain Selective Catalytic Reduction (SCR)-equipped vehicles or engines

Holding:  Denying plaintiff's motions for a preliminary injunction seeking to enjoin EPA from withholding records in response to its FOIA requests and for an order directing immediate disclosure of the records at issue

• Litigation considerations/preliminary injunction:  The court denies plaintiff's motion seeking a preliminary injunction to enjoin EPA from continuing to withhold records in response to its FOIA requests as well as plaintiff's request for an order directing EPA to immediately produce responsive non-exempt records.  The court considers four factor in deciding whether to grant what has been termed by the Supreme Court as "'an extraordinary and drastic remedy:''' "(1) irreparable harm to the movant, (2) the movant's showing of a substantial likelihood of success on the merits, (3) substantial harm to the nonmovant, and (4) public interest."  In terms of the first factor, the court finds that plaintiff fails to substantiate its claim that "it stands to suffer irreparable harm to its competitive advantage because its competitors are able to avoid the research, development, and production costs associated with ensuring that their products comply with the EPA standards" and that it "risks losing sales to competitors."  For one, the court finds that "the economic losses alleged by [plaintiff] do not constitute the type of irreparable competitive injury typically found by courts to support the entry of a preliminary injunction."  Moreover, the court finds that plaintiff "has not demonstrated that a preliminary injunction will remedy its alleged injuries" because it "has not shown how the records it seeks will help it earn more profits or avoid losing sales to its competitors."  Accordingly, the court concludes that the first factor "weighs heavily in favor of denying the motion for a preliminary injunction." 

As to the second factor, the court finds that "even if the EPA failed to respond to [plaintiff's] requests by the statutory deadline, it only entitles [plaintiff] to constructive exhaustion of its administrative remedies, not immediate production of the requested documents."  The court finds that "under no reasonable reading of the statute is [plaintiff] entitled to the immediate production that it seeks here."  With regard to the third factor, "in light of the significant hardship that the EPA would suffer if forced to make an immediate production, and because [plaintiff] has alleged no additional harm if the EPA were allowed to produce the documents in the usual course, the Court finds that this factor weighs against [plaintiff]."  Lastly, the court determines that "[t]he public interest would not be served by the Court's entry of a preliminary injunction" because the "likelihood of success on the merits weights heavily against [plaintiff]" and "there is no allegation that the status quo is being threatened because there is no imminent action by the EPA with respect to the documents requested in [plaintiff's] FOIA requests."    

3.  Skinner v. DOJ, No. 09-725, 2011 U.S. Dist. LEXIS 94450 (D.D.C. Aug. 24, 2011) (Friedman, J.)

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

Holding:  Granting, in part, defendants' renewed motion for summary judgment based on its withholdings under Exemptions 6, 7(C), and 7(E); denying, in part and without prejudice, defendants' motion for summary judgment with respect to information withheld under Exemption 2

• Exemption 2:  In light of the recent Supreme Court's ruling in Milner v. Department of the Navy, the court denies, without prejudice, defendants' motion for summary judgment with respect to internal computer codes, which were withheld under "high 2."

• Exemption 6:  The court concludes that the Army properly redacted third party names in three documents referred by ATF pursuant to Exemption 6, noting that "[w]holly absent from plaintiff's opposition is an assertion of any public interest which outweighs the personal privacy interests of these third parties."

• Exemption 7(C)/categorical:  The court holds that USCIS and ATF properly withheld names and identifying information related to law enforcement personnel and the face of a third party referenced in connection with plaintiff's investigation.  The court notes that "'[t]he D.C. Circuit has consistently held the [E]xemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses and informants, and has determined that such third-party information is categorically exempt from disclosure under [E]xemption 7(C), in the absence of an overriding public interest in its disclosure.'"

• Exemption 7(E):  Noting that "D.C. Circuit precedent 'sets a relatively low bar for the agency to justify withholding' information under Exemption 7(E)," the court concludes that USCIS properly withheld a printout from the Treasury Enforcement Communications System containing, among other things, an "'all-points bulletin' regarding an ongoing criminal law enforcement operation; a brief profile of the subject of this communication, including his involvement, habits and level of threat; subject tracking; and actions to be taken by law enforcement agents stationed at check points if subjects are encountered.'"  Defendant asserts that "[r]elease of this information to plaintiff . . . 'will have the unintended and undesirable result of placing the same information at the disposal of other subjects of investigation(s), assisting them to evade detection and apprehension by alerting them to the investigation techniques used to aid the underlying law enforcement operation and, thereby, impair the effectiveness of those law enforcement techniques.'"  The court notes that "[l]aw enforcement procedures and techniques are afforded categorical protection under Exemption 7(E), . . . and plaintiff presents no argument to rebut the USCIS' showing that the information withheld falls within the scope of such protection." 

4.  Sauer, Inc. v. NASA, No. 11-926, 2011 U.S. Dist. LEXIS 94273 (M.D. Fla. Aug. 23, 2011) (Presnell, J.)

Re:  Request for records related to a project involving replacement of high pressure nitrogen and helium pipelines at the Kennedy Space Center

Holding:  Denying defendant's motion to dismiss based on plaintiff's failure to exhaust administrative remedies

• Exhaustion of administrative remedies:  The court concludes that plaintiff was not required "to pursue an administrative appeal" before filing the instant action.  The court notes that although NASA provided a partial response to plaintiff, at the time that the lawsuit was filed, it still had not made a final determination with respect to hundreds of additional pages that were responsive to plaintiff's request.  As such, the court concludes that plaintiff's "right to bring suit was not terminated by NASA's incremental response."

5.  Judicial Watch, Inc. v. DOJ, No. 11-500, 2011 WL 3664353 (D.D.C. Aug. 22, 2011) (Kessler, J.)

Re:  Request for communications between the Civil Division of DOJ and the NAACP Legal Defense Fund concerning United States v. New Black Panther Party for Self-Defense

Holding:  Granting defendant's motion for summary judgment on the basis that its search was adequate

       • Adequacy of search:  The court concludes that "Defendant has submitted a reasonably detailed affidavit explaining a three-pronged search that was 'reasonably calculated to uncover all relevant documents.'"  First, the Civil Division "conducted searches of all emails, networks and local files" of its Voting Section, which handled the prosecution of the case, using various search terms designed to identify any communications with the NAACP.  Second, the Civil Division reviewed the results of previous searches for records responsive to other FOIA requests and to an inquiry by the United States Commission on Civil Rights (USCCR) pertaining the New Black Panther Party litigation.  Third, based upon the content of four emails between DOJ employees and an NAACP employee that it located on USCCR's website, which forwarded news articles, the Civil Division conducted additional targeted searches of Voting Section emails.  The court rejects plaintiff's argument that the Civil Division's search was inadequate because it failed to locate an email from a Civil Division employee sent to an NAACP employee that was posted on USCCR's website.  Rather, the court concludes that "[d]efendant's affidavit provides a plausible explanation for the failure of a reasonable search to locate a copy of the email," noting that the Civil Division explained that its records retention policy does not require it to preserve emails that "'contain minimal or no documentary or evidential value.'"  The court also finds that plaintiff's argument that the email suggests additional contact between the Civil Division and NAACP "is the type of 'purely speculative claim[ ] about the existence or discoverability of other documents' 'which is insufficient to rebut the 'presumption of good faith' accorded the [defendant's] [d]eclaration."  The court further notes that "'adequacy of a search is not determined by its results, but by the method of the search itself.'" 

6. Carroll v. Dep't of the Army, No. 11-22, 2011 WL 3665336 (W.D. Va. Aug. 22, 2011) (Kiser, J.)

Holding:  Granting defendant's motion to dismiss based on plaintiff's failure to state a claim upon which relief may be granted

• Litigation considerations/jurisdiction:  The court dismisses plaintiff's case on the basis that he failed to establish jurisdiction.  In an earlier decision, the U.S. District Court for the Eastern District of Virginia concluded that plaintiff did not establish jurisdiction in his FOIA action because he did not identify the requested records, the dates of his request, the agency's grounds for denial, and "failed to allege that the records he sought were located anywhere in the Eastern District of Virginia."  Similarly, the court holds that plaintiff's instant complaint fails "to overcome the deficiencies that the Eastern District observed" because it does not describe "the nature of the documents sought, the grounds on which his requests were denied, or whether the documents are in the Western District of Virginia." 

7. Reich v. U.S. Dep't of Energy, No. 09-10883, 2011 U.S. Dist. LEXIS 93600 (D. Mass. Aug. 19, 2011) (Gorton, J.)

Re:  Request for a report written by an independent investigative panel concerning allegations of fraud and misconduct by certain scientists working at Oak Ridge National Laboratory

Holding:  Granting defendant's motion for summary judgment

• Procedural/agency records:  The court expands upon its findings contained in its memorandum and order dated March 17, 2011, in which it concluded that that requested report authored by an independent investigative panel was not an agency record for purposes of the FOIA.  In response to plaintiff's opposition, the court reexamines the four factors that federal courts have used in order to assess an agency's control over records.  The court finds that the first factor, i.e., the intent of the creator of the document to retain or relinquish control of it, "weigh[s] in favor of a finding that the Investigative Report, or at least [the] version [which was submitted by the investigative panel to the Department of Energy] is an agency record."  However, the court determines that the second factor concerning the agency's ability to use and dispose of the record weighs against such a finding, because "the Investigation Report at issue here was scanned by one DOE employee only, who claims that she did not use or rely on the report at all."  Moreover, the document contained "an explicit contractual provision" limiting copying or disclosure of the record.  The court disagrees with plaintiff's argument that the third factor – the extent to which the agency personnel read or relied on the document – demonstrates that the report is an agency record.  Rather, the court "concludes that the DOE's use of the Investigation Report was so minimal to be analogous to no use at all because [the DOE employee] merely scanned the document and did not distribute it to other employees."  In terms of the fourth factor, regarding the extent to which the document was integrated into the agency's records system, the court finds unavailing plaintiff's claim that "there is a genuine issue of material fact with respect to the sufficiency of DOE's search for any copies of the Investigation Report in its possession."  Instead, the court notes that "[a]n agency's possession of a copy of a document does not automatically mean that the document is an agency record."  Based on the foregoing factors, the court holds that the report at issue is not an agency record.

• Exemptions 6 & 7(C):  In the alternative, the court concludes even if the investigative report were considered to be an agency record for FOIA purposes, it would be exempt from disclosure pursuant to Exemptions 6 and 7(C), because it "relates to dismissed allegations of misconduct by individuals employed by a privately-owned facility and does not elaborate upon operations of the DOE."  The court finds that plaintiff has not presented credible evidence to demonstrate that the exemptions have been waived by a purported disclosure of the report to editors of scientific journals, but also opines that "the fact that some information about the investigation was released to the public does not indicate that the privacy of the entire document was waived." 

8.  Pickering-George v. Cuomo, No. 11-741, 2011 WL 3652211 (N.D.N.Y. Aug. 19, 2011) (D'Agostino, J.) (adopting magistrate's recommendation)

Holding:  Granting plaintiff's application to proceed in forma pauperis; and ordering plaintiff to file an amended complaint within thirty days

• Litigation considerations/amending the complaint:  The court adopts the magistrate's recommendation and order granting plaintiff leave to proceed in forma pauperis on his FOIA claim.  The court also concludes that although the magistrate "correctly found that plaintiff's complaint fails to state a claim," "in light of plaintiff's pro se status, [he] will be provided an opportunity to amend his complaint to provide additional factual support of his claims." 

WEEK OF AUGUST 29

Courts of Appeal

1.  Hull v. IRS, No. 10-1410, 2011 WL 3835402 (10th Cir. Aug. 31, 2011) (Baldock, J.)

Re:  Request for records pertaining to the IRS's handling of a submission made by U.S. West, a pension provider, under the Voluntary Compliance Resolution Program (VCRP) to correct errors regarding the calculation of its payments to retirees

Holding:  Rejecting the district court's conclusion that it was jurisdictionally barred from deciding plaintiffs' FOIA claim on the merits; but affirming the district court's judgment in favor of the IRS on the grounds that the IRS properly invoked Exemption 3 with respect to all requested records because they pertained to a third party's return information; and concluding that the district court did not abuse its discretion in refusing to conduct an in camera review

• Standard of review:  The Tenth Circuit "review[s] a district court's grant of summary judgment de novo, applying the same legal standard used by the district court, drawing all reasonable inferences in favor of the nonmoving party – in this case, in favor of Plaintiffs."

• Exhaustion of administrative remedies:  The Tenth Circuit concludes that the district court improperly held that "Plaintiffs' failure to exhaust their administrative remedies under FOIA deprived it of subject matter jurisdiction."  The court below had concluded that because tax return information is protected by 26 U.S.C. § 6103 and plaintiff had not presented a waiver from the taxpayer as required by IRS regulations, the IRS had not received a perfected FOIA request and, accordingly, was unable to issue its final determination.  The Tenth Circuit notes that it is "not entirely convinced of the first premise of the IRS's argument and the district court's holding – that failure to file U.S. West's authorization with their initial FOIA request amounts to failure to exhaust administrative remedies."  Rather, the Tenth Circuit finds that "Plaintiffs have done all they could to challenge the IRS's adverse determination that their request seeks protected return information and to obtain a final administrative decision," which included administratively appealing the IRS's initial response.  The Tenth Circuit also comments that in order "to decide whether Plaintiffs have exhausted their administrative remedies, we would have to answer the same question we would if we proceeded to the merits; has the IRS met its burden of proving all of the requested information constitutes third party return information."

However, assuming that plaintiffs' failure to file the taxpayer authorization with the request "could constitute a failure to exhaust," the Tenth Circuit comments that it "seize[s] this opportunity for clarity by joining the majority of [its] sister circuits in concluding [that] exhaustion under FOIA is a prudential consideration rather than a jurisdictional prerequisite."  Moreover, the Tenth Circuit comments that "[o]ur conclusion does not alter the fact that exhaustion remains a hurdle that FOIA plaintiffs must generally clear in order to obtain relief through the courts," however, "[i]t is just not a jurisdictional hurdle."  Here, the Tenth Circuit finds that "the purposes of exhaustion have been served," because the IRS "has compiled a sufficient record" and it "also asserts that it has given the courts and Plaintiffs all the benefit of its experience and expertise and provided as much of a record as it intends to give."  As such, the Tenth Circuit holds that "[b]ecause exhaustion is a prudential consideration and the purposes of exhaustion have been served, we conclude that the district court should have decided Plaintiffs' FOIA claim on the merits."    

• Exemption 3/categorical:  The Tenth Circuit holds that Exemption 3 in conjunction with Section 6103 of the Internal Revenue Code categorically exempts all of the requested information from disclosure.  The Tenth Circuit rejects plaintiffs' argument that the information sought pertains to the "operation and administration of U.S. West's pension plan, rather than return information."  Here, the IRS has demonstrated that the information submitted by U.S. West through the VCRP qualifies as return information because it "establishes whether the plan has been operating in compliance with the plan's terms or the compliance statement, which, in turn, could affect U.S. West's tax liability, tax-exempt status, or the deductibility of contributions."  With respect to plaintiffs' claim that "the IRS has presented no evidence that the requested information was received, collected, or prepared by the IRS with respect to an actual tax return, liability, or deduction," the Tenth Circuit finds that "the Code defines return information broadly, reaching far more than just information that relates to an actual tax return, an imposed liability, or a taken deduction."  Rather, the Tenth Circuit notes that Section 6103(b)(2)(A) "protects 'data received by . . . prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability . . . for any tax, penalty, interest, fine forfeiture, or other imposition, or offense.'"  Moreover, the Tenth Circuit observes that the Code "appears to take no interest in the Secretary's actual use of the material" and notes that "[t]he statutory definition 'plainly reaches far beyond' information that 'relates to an actual tax return.'"  Accordingly, the Tenth Circuit finds that it "need not determine whether the IRS actually used the information U.S. West provided or that it prepared under the VCRP with regard to an existing return or to calculate an imposed deduction or liability in order to conclude that information is return information." 

The Tenth Circuit also rejects plaintiffs' argument that "the IRS has not carried its burden of proving all of the requested information constitutes return information because the IRS supplies only conclusory assertions as to the information's content based upon declarations of individuals who admittedly have not looked at the requested information" because the IRS did not conduct a search for responsive documents, given the absence of consent by the taxpayer.  First, the Tenth Circuit finds that "Section 6103 no less protects the identity of a taxpayer seeking to protect its own tax-exempt status [than it does] a taxpayer [like the one at issue here] seeking to protect the deductibility of its own contributions to a pension plan by filing a submission with the IRS under the VCRP."  Second, the Tenth Circuit observes that "[p]roviding any more details about the specific contents of the 'submission made by U.S. West and pension plan administrators . . .' would surely compromise the confidentiality required by Section 6103."  Moreover, the Tenth Circuit comments that relaying that certain types of records were submitted by U.S. West in connection with the VCRP "would not enable Plaintiffs to challenge the IRS's withholding [of] the documents in any greater depth."  As to plaintiffs' contention that "the IRS improperly labeled all of the requested information Section 6103 'data,'" the Tenth Circuit finds that "all of the materials describing a pension plan's operational failures and proposed corrections submitted by a taxpayer or person to the IRS under the VCRP are inherently taxpayer-specific."  Here, because plaintiffs requested "information pertaining to a specific taxpayer or person," "Plaintiffs would know [any information released] pertains to U.S. West."  However, the Tenth Circuit "caution[s] that the IRS's approach in this case [to assert Exemption 3 without conducting a search for responsive records] is only acceptable under FOIA because it has demonstrated Plaintiffs' FOIA request on its face solely seeks U.S. West's return information."  The Tenth Circuit concludes that "because Plaintiffs' FOIA request seeks only U.S. West's return information and Plaintiffs have not submitted U.S. West's consent, the IRS has fulfilled its obligations under FOIA and IRS regulations and properly withheld the requested information."  

In camera review:  The Tenth Circuit holds that the district court did not abuse its discretion by declining to conduct an in camera review of the requested records because "[t]he IRS has demonstrated with reasonable specificity why the requested information falls within FOIA's third exemption and Section 6103," and plaintiffs have not presented evidence to contradict the IRS's withholdings or "asserted any colorable claim of bad faith."

District Courts

1.  Negley v. FBI, No. 03-2126, 2011 WL 3836465 (D.D.C. Aug. 31, 2011) (Kessler, J.)

Re:  Request for records pertaining to plaintiff located in the FBI's San Francisco Field Office

Holding:  Granting defendant's motion for summary judgment on the basis that the FBI conducted an adequate search and that its withholdings under Exemption 7(C) were proper

• Adequacy of search:  The court concludes that the FBI conducted a reasonable search in response to its Order.  Contrary to plaintiff's assertions, the court finds that the FBI's failure to locate one document, . . . is not sufficient to defeat summary judgment."  With respect to plaintiff's challenge of the FBI's use of a particular cut-off date, the court finds that "Defendant's search and production in response to [a particular] request was reasonable under the specific circumstances of this case."  Furthermore, the court notes that although it is true that temporal limitations may be prohibited in certain instances, "in this particular circumstance, the FBI responded to Plaintiff's [initial] request while also conducting searches in response to a subsequent, much broader request" and that those searches yielded no investigatory records that had not already been released to him.

• Exemption 7(C):  The court holds that the FBI properly redacted the names and identifying information of third parties, including FBI personnel, confidential sources, state employees and law enforcement officials, individuals interviewed by the FBI, and third parties of investigative interest under Exemption 7(C).  The court finds that all of these individuals have "substantial privacy interests" and notes that "[t]here is no disagreement that disclosure of these materials can lead to great embarrassment and reputational harm" and "could, in some cases, lead to physical harm to the individuals and/or their families."  The court comments that the D.C. Circuit "has held 'categorically, that unless [disclosure of this type of information] . . . is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure."  Here, "Plaintiff does not present any evidence, no less compelling evidence, that the FBI has engaged in illegal activity in this case."  Additionally, the court determines that "Plaintiff never identifies any public interest that would be served by disclosure."    

2.  Negley v. FBI, No. 03-2126, 2011 WL 3836461 (D.D.C. Aug. 31, 2011) (Kessler, J.)

Re:  Request for records pertaining to plaintiff

Holding:  Denying plaintiff's motion asking the court to reconsider its denial of his motion for contempt

• Litigation considerations/motion for reconsideration:  The court denies plaintiff's motion requesting that the court reconsider its denial of his motion for contempt.  Plaintiff argues that the court mischaracterized the geographic scope of his FOIA request and asks that it reconsider the reasonableness of the date used by defendant as the cut-off date for production for responsive records.  In both instances, the court finds that plaintiff failed to present new evidence, law or arguments that would warrant altering the court's prior analysis. 

3.  Brennan Ctr. for Justice at NYU School of Law v. DOJ, No. 09-8756, 2011 U.S. Dist. LEXIS 99121 (S.D.N.Y. Aug. 30, 2011) (Marrero, J.)

Re:  Request for guidance provided by the Office of Legal Counsel (OLC) to HHS or USAID concerning enforcement provisions in two statutes, the United States Leadership Against HIV/AIDS, Tuberculosis, Malaria Act and the Trafficking Victims Protection Reauthorization Act; at issue are three documents authored by OLC and withheld pursuant to Exemption 5

Holding:  Granting plaintiff's motion for summary judgment with respect to three memoranda withheld pursuant to Exemption 5; and ordering defendants to produce certain portions of the withheld documents

• Exemption 5 (deliberative process privilege):  At the outset, the court notes that plaintiff "does not seriously dispute that the OLC Memoranda would, absent subsequent government action, be subject to Exemption 5's deliberative privilege process."  However, the court concludes that "[u]pon review of the evidence presented, including the nonredacted portions of the Withheld Documents that were previously submitted to the Court for in camera review, . . . the OLC Memoranda have lost their deliberative privilege process protections."  Based on all the available information and an in camera inspection, the court finds that "USAID and HHS adopted as agency policy both the conclusions provided in [a particular OLC] Memo . . . as well as OLC's reasoning and analysis."  Moreover, "the exchange of emails between OLC and HHS and USAID before and after the issuance of [a particular OLC] Memo; the publication of official policy statements by both HHS and OLC shortly after [that] Memo was circulated; and the subsequent statements by DOJ and USAID officials concerning the reason for policy reversal in September 2004 all support the conclusion that HHS and USAID took their marching orders – and the rationale for those orders – directly from DOJ and the Administration."  The court further finds that "[t]he Government's suggestion that repeated public characterization of [that OLC] Memo as 'tentative' and 'draft' advice indicates that it was never incorporated into final agency policy ignores explicit policies promulgated by HHS and USAID" as result of that memo.  In addition, the court also concludes that the fact "[t]hat OLC subsequently changed its position does not diminish the impact of its initial determination."  Likewise, the court concludes that "the conclusions and analysis" contained in two additional draft memoranda "were the basis for the Government's determination to alter its policy" and finds that, based on public statements made by HHS and USAID, "the Government incorporated [those two other OLC draft] Memoranda by reference."  Attorney-client privilege: The court holds that "because the Government, in light of all the facts and circumstances [discussed in connection with the court's deliberative process privilege analysis], incorporated the OLC Memoranda into HHS's and USAID's official policy, the attorney-client privilege cannot be invoked to bar the OLC Memoranda's disclosure."        

4.  Pinson v. Lappin, No. 10-1844, 2011 WL 3806160 (D.D.C. Aug. 30, 2011) (Howell, J.)

Re:  Request for names and positions of all BOP employees employed at the Designation and Sentence Computation Center in two regional offices since 2009

Holding:  Granting defendant's motion for summary judgment on the basis of its withholdings under Exemption 6; denying plaintiff's claim for declaratory relief; and granting plaintiff's motion for an award of costs

• Exemption 6:  The court grants BOP's motion for summary judgment on the basis that it properly redacted telephone numbers and email addresses of staff at certain offices pursuant to Exemption 6 "both because this information was not requested and was not responsive to the request and because this information is exempt from disclosure."  Additionally, the court notes that plaintiff concedes that "'[t]here is no further information that could be obtained through [his] lawsuit that the agency has not now released.'" 

• Exemption 7(C):  The court finds that BOP's "supporting declaration offers no explanation for concluding that its staff directory was a law enforcement record suitable for protection under Exemption 7(C)." 

• Litigation considerations:  The court denies plaintiff's claim for declaratory relief, noting that "'[o]nce all requested records are surrendered, federal courts have no further statutory function to perform' with respect to the particular records that were requested." 

• Litigation costs:  The court grants plaintiff's motion for an award of costs incurred in litigating the instant action, consisting of his postage, copying fees, and partial court filing fee.  First, the court finds that "[p]laintiff is eligible for an award of costs because the BOP released the requested records after the filing of and in response to plaintiff's civil complaint."  Next, the court considers the four entitlement factors.  With respect to the first factor, i.e., "'the public benefit derived from the case,'" the court finds that "[r]elease of lists of names and job titles of BOP staff does not obviously accomplish" either of plaintiff's stated goals of demonstrating gender discrimination or corruption in BOP's procurement process.  However, the court notes that "it does not appear that an award of fees, or costs in this instance 'would merely subsidize a matter of [plaintiff's] private concern' or curiosity."  As to the second and third factors – the commercial benefit and the nature of plaintiff's interest in the records, "[t]he Court accepts plaintiff's representations that he derives no commercial benefit and that his interest is in writing articles based in part on information obtained from the BOP."  With regard to the final factor, which looks to the reasonableness of BOP's withholdings, the court finds that "BOP's response to plaintiff was not reasonable under the circumstances" where it "initially denied plaintiff's FOIA request based upon a mistaken belief that there 'was no method to query a BOP data system,'" only released the information subsequent to the filing of the instant lawsuit, and "relied on two FOIA exemptions to redact information, even though plaintiff had not even requested the redacted information so it was not responsive in the first place."  Accordingly, the court determines that "[p]laintiff is entitled to an award equal to his monetary expenditures related to this case to date."  

5.  Taitz v. Astrue, No. 11-402, 2011 WL 3805741 (D.D.C. Aug. 30, 2011) (Lamberth, J.)

Re:  Request for records pertaining to certain social security numbers; at issue is one document, a redacted Form SS-5, of a living individual who holds a particular social security number

Holding:  Granting SSA's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemption 6

• Exemption 6:  As a preliminary matter, the court notes that plaintiff only seeks "the date of the application as well as the zip code and gender of the applicant" that is listed on the Form SS-5 which is at issue.  In terms of the privacy interests, the court finds that "[b]ecause the redacted Form SS-5 contains identifying information associated with a living individual's social security number, its disclosure would compromise a substantial privacy interest."  Redaction of the name, "while still retaining" the number, and other pertinent information, "does not diminish the privacy interest."  Moreover, the court determines that "Plaintiff's allegation that the requested Form SS-5 is associated with a public official [allegedly, President Obama] does not diminish the privacy interest at stake here."  The court further notes "an individual's status as a public official does not, as plaintiff contends, 'make exemption 6 irrelevant to him and his vital records.'"  The court rejects plaintiff's claims of fraud on the part of the Social Security Administration, finding that "plaintiff's unsubstantiated allegations, without more, do not persuade the Court that the requested information 'would likely disclose' official misconduct, . . . and thus do not affect the calculus here."  As to the public interest at issue, the court concludes that "[t]he disclosure of an individual's Form SS-5 would provide absolutely no insight into the SSA's operations or activities."  Furthermore, the court concludes that plaintiff's "vehement allegations of fraud consist of mere 'bare suspicion[s]' and thus fail to satisfy the public interest standard required under FOIA."  

Topic(s): 
FOIA

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Updated August 6, 2014