Summaries of New Decisions

Summaries of Court Decisions (April 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 APRIL 4

1.  Schwarz v. DOJ, No. 10-3065, 2011 U.S. App. LEXIS 6968 (2d Cir. Apr. 5, 2011) (unpublished disposition)

Re:  Requests for records pertaining to two monetary awards to which plaintiff alleges she is entitled to in connection with whistleblower activity

Holding:  Affirming the judgment of the district court, which ruled that defendants conducted adequate searches for responsive records

• Litigation considerations/adequacy of search:  Reviewing de novo the district court's grant of summary judgment to the defendants, the Second Circuit "affirm[s] the judgment below for substantially the same reasons stated by the District Court in its well-reasoned decision" in which the court held that defendants' affidavits established the sufficiency of their searches for responsive records.  The Circuit dismisses plaintiff's arguments on appeal, concluding that "they are without merit."     

1.  Quick v. Dep't of Com., No. 09-2064, 2011 WL 1326928 (D.D.C. Apr. 7, 2011) (Kollar-Kotelly, J.)

Re:  Request for raw data used by the National Institute of Standards and Technology (NIST) in its architectural and engineering remodeling of the collapse of the World Trade Center 7 building on September 11, 2001

Holding:  Granting defendant's motion for summary judgment based on the adequacy of its search, its withholdings under Exemption 3, and its showing of segregability; denying plaintiff's cross-motion for summary judgment and his request for discovery

• Litigation considerations:  Given that plaintiff did not submit a counter-statement to defendants' statement of material facts not in dispute as required by the court's local rules, "[t]o the extent that the Court is unable to discern the extent of [plaintiff's] agreement or disagreement with NIST's proffered facts from the contents of his statement [of facts submitted with his cross-motion for summary judgment], the Court shall, in an exercise of its discretion, assume the uncontroverted facts identified by NIST to be admitted for purposes of resolving the pending motions."  The court further notes that since there "appears to be surprisingly little disagreement between the parties about the underlying facts, the impact of this conclusion is likely de minimus."  Moreover, "[b]ecause [plaintiff] has completely failed to contest NIST's arguments that it conducted a reasonable search for records, produced all disclosable records, and properly withheld responsive records, the Court shall treat those arguments as conceded."  Despite this finding, the court also determines that the agency's affidavits establish the adequacy of its search, justify its exemption claims, and demonstrate that it released all reasonably segregable nonexempt information. 

• Adequacy of search:  The court finds that the agency made a "'good faith effort to conduct a search for the requested records'" where it "submitted a detailed declaration describing the contours of its search for the raw data used to prepare the architectural and engineering models simulating the collapse of the WTC 7 building."  Notably, the agency's "search included consulting with experts in NIST's Building and Fire Research Laboratory . . . the agency component responsible for performing the modeling in question and the area most likely to maintain records responsive to [plaintiff']s request," which was the place where records were in fact located. 

• Exemption 3:  The court concludes that "NIST has provided ample support for its contention that its decision to withhold 68,500 data files involved in a straightforward application of FOIA Exemption 3" in conjunction with a provision of the National Construction Safety Team Act, 15 U.S.C. § 7606(d), which allows NIST to protect "any information that it receives in the course of an investigation . . . if [NIST's] Director finds that the disclosure of that information might jeopardize public safety."  Here, the court notes that under this provision, "the Director of NIST made an express finding that the public disclosure of certain types of information pertaining to the architectural and engineering modeling of the collapse of the WTC 7 building might jeopardize public safety."  In contrast to the information disclosed to plaintiff, the court finds that "the withheld data files contain information that could be used to predict the collapse of a building and, if made available to a person with the appropriate level of expertise, would provide instruction to individuals wanting to learn how to simulate large building collapses and how to most effectively destroy large buildings." 

• Segregability:  The court determines that "NIST's sworn declarations describe how, after conducting an extensive interrogation of the data files responsive to [plaintiff's] request, it has carefully reviewed and released all reasonably segregable information." 

• Vaughn Index: The court observes that "NIST's submissions are a perfect illustration of how abstraction and categorical treatment, used properly may assist the court in evaluating the agency's withholding decisions," noting that NIST's "Vaughn index divid[es] the data files into their organizational and functional case folder[s]" and sets forth detailed information about the nature of the withheld information.

• Attorney fees:  The court denies plaintiff's cross-motion for summary judgment to the extent that it is premised on his contention that he "'substantially prevailed' in this action because NIST produced records responsive to his request after the commencement of the instant action."  The court rejects this claim, finding that this "question goes to his entitlement to attorneys' fees, and . . . [plaintiff] has since conceded that it is premature for the parties to address the recovery of attorneys' fees at this time." 

• Pattern or practice of delay:  With respect to plaintiff's argument that "he is entitled to summary judgment because NIST has 'an unlawful patten [sic] and practice' of producing records only after a requester takes the step of commencing a lawsuit," the court finds that this assertion is "without merit" because "nothing even remotely resembling a 'pattern or practice' claim appears within the four corners of [plaintiff's] Complaint" and "he would nevertheless lack standing to pursue such a claim in this action" because "the record is clear that [plaintiff] was not himself subject to such a pattern or practice."  While NIST did not respond within the "twenty-working-day default period," that is "unremarkable" given the "staggering scope and complexity of the data" requested. 

• Discovery:  The court denies plaintiff's renewed request for "'limited discovery' as to whether NIST was actually taking action in processing his request prior to the filing of this action."  For one, the court finds that plaintiff "still has not made a formal showing, by affidavit or declaration [required by Federal Rule of Civil Procedure 56(d)], that he 'cannot present facts essential to justify [his] opposition."  Rather, plaintiff "never identifies precisely what information he would seek or what evidence he hopes to discover" and "fails to articulate how his speculative discovery requests 'would alter the [C]ourt's determination.'"  Second, the court finds discovery unwarranted because the "agency's declarations are sufficiently detailed" and plaintiff "has failed to raise substantial or even colorable doubt concerning the adequacy or good faith of NIST's response to his request." 

2.  Rosario v. Holder, No. 10-1565, 2011 U.S. Dist. LEXIS 37825 (D.D.C. Apr. 7, 2011) (Bates, J.)

Re:  "Petition for writ of mandamus" to compel DEA to release a daily log book maintained by a DEA agent at San Juan International Airport  

Holding:  Dismissing plaintiff's action under Rule 12(b)(6) on the grounds that it is barred by res judicata

• Res judicata:  As an initial matter, the court notes that "[b]ecause a claim for agency record is properly brought under the Freedom of Information Act . . . , defendants have construed this action as brought under the FOIA, and the Court will do so as well."  The court holds that plaintiff's action is barred by the doctrine of res judicata where "this case is predicated on the same FOIA request forming the basis of Rosario I," a 2008 lawsuit brought by plaintiff where the court granted summary judgment to the government as conceded.  Here, the court finds that the elements of claim preclusion are met because the parties and claims are the same in both the earlier and the instant action and court entered a final judgment for the defendants in the earlier case and "[p]laintiff did not appeal that order, which 'operated as an adjudication on the merits.'"

3.  Margolin v. NASA, 2011 U.S. Dist. LEXIS 40882 (D. Nev. Mar. 31, 2011) (Hicks, J.)

Re:  Records pertaining to an administrative claim of patent infringement made by plaintiff, an inventor

Holding:  Granting defendant's motion for summary judgment for all but one document based on Exemptions 3, 4 and 5; and granting plaintiff's summary judgment as to the one document

• Exemption 3:  The court concludes that NASA properly withheld copies of the proposal of a contractor involved in its Small Business Innovation Research program under Exemption 3 in conjunction with 41 U.S.C. § 253b(m), and 10 U.S.C. § 2035(g), which "expressly prohibit disclosure under FOIA of a 'competitive proposal' submitted by an agency contractor, unless the proposal 'is set forth or incorporated by reference in a contract entered into between the agency and the contractor.'"  Here, NASA submissions established that this particular "proposal was not incorporated by reference into the resulting contract."

• In camera review:  The court finds that NASA's submissions "set forth in sufficient detail the factual and legal basis for withholding the [contractor's] proposal under Exemption 3" and that plaintiff's "mere refusal to believe [the agency declarant's] sworn representations is insufficient to warrant in camera review."  

• Exemption 4:  The court holds that NASA properly invoked Exemption 4 to withhold certain offers of settlement or compromise by a company involved with NASA in a patent dispute, as well as information pertaining to those offers, such as license fees and other financial details relating to patents disputed in the administrative claim for infringement.  NASA also properly withheld certain communications between another NASA contractor and its attorneys related to that claim.  First, the court finds that these documents "plainly qualify as 'commercial or financial information' with in the meaning of [Exemption 4]."  The information "was also obtained from a 'person.'"  Next, the court determines that "the information is 'confidential' because disclosure would likely 'impair the government's ability to obtain necessary information in the future,'" "for fear that NASA would again release the information to the public." 

In the case of records claimed as privileged under Exemption 4 under "attorney-client, attorney work product, and common interest privileges," the court finds that "even if [plaintiff] were correct that [the NASA contractor's] materials ceased to be privileged upon disclosure to NASA, the information is still exempt from disclosure" because Exemption 4 covers information that "may be either 'privileged or confidential.'"  Moreover, "if the common interest privilege were inapplicable, the [contractor's ] materials would qualify as confidential a fortiori, as the potential waiver of the attorney-client privilege and the public disclosure of attorney work product would certainly dissuade an agency contractor from providing its attorney work product to NASA in the future."

• Waiver/inadvertent disclosure:  NASA's inadvertent release of "bank account numbers and other information related to the . . . offers of settlement or compromise [in relation to the patent infringement dispute] in its initial FOIA response do not preclude NASA from withholding the same or similar information under Exemption 4 in its supplemental response."  The court finds that "[a] contrary holding would only increase the reticence to provide commercial and financial information to NASA, thereby further impairing the agency's ability to obtain such information in the future." 

• Exemption 5 (attorney-client, attorney work product & deliberative process privileges):  As a preliminary matter, the court determines that various communications, involving NASA attorneys and personnel and related to the patent infringement claim and the FOIA request underlying the instant litigation for which NASA claimed Exemption 5, "were circulated among NASA personnel and therefore qualify as 'intra-agency materials."  The court then concludes that "these materials were circulated among NASA attorneys and between NASA attorneys and NASA's technical experts in the course of the investigation and analysis of [plaintiff's] administrative claim for patent infringement and NASA's response to [plaintiff's] FOIA request" and that "[s]uch attorney-client communications and attorney work product in the course of an agency's response to administrative claims against the agency and in contemplation of potential litigation against the agency are not 'normally' or 'routinely' subject to disclosure in civil litigation and therefore are exempt from mandatory disclosure under Exemption 5, without regard to the status of any litigation." 

Additionally, the court finds that "the same documents are also protected under the deliberative process privilege, at least insofar as they predate NASA's final agency decision on the patent infringement claim and NASA's final decision on [plaintiff's] FOIA request."  The court notes that it "need not reach the parties' disagreement as to whether Exemption 5 and the common-interest privilege apply to the [contractor's] attorney-client communications that were disclosed to NASA, as the court has already concluded that such materials are exempt from disclosure under Exemption 4."  However, the court grants summary judgment to the plaintiff with respect to one document for which NASA has not sufficiently justified its assertion of Exemption 5.  The court finds that with respect to that document "NASA's submissions fail to identify [the sender or recipient of the communications], describe the subject matter of the patent claim, or establish how this document constitutes privileged intra- or inter-agency material." 

• Exemption 6:  The court finds that NASA properly redacted the "personal information, including telephone numbers, street addresses, e-mail addresses, bank account information, and social security numbers" because "[s]uch information is properly considered private information within the purview of Exemption 6."  As to plaintiff's assertion that "NASA's redactions of names and addresses is 'disingenuous' because 'NASA openly posts names and addresses of many NASA employees on their Web sites,'" the court finds that this "argument misses the mark . . . as NASA has not claimed an exemption for agency information, only personal information" and, moreover, plaintiff "has entirely failed to carry his burden of showing how disclosure of such information would shed light on NASA's performance or otherwise let citizens know what their government is up to."

WEEK OF APRIL 11

1.  Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 09-5439, 2011 WL 1437419 (D.C. Cir. Apr. 15, 2011) (Williams, J.)

Re:  Request for records pertaining to import restrictions imposed on cultural artifacts from China, Italy, and Cyprus

Holding:  Affirming the judgment of the district court that withholdings under Exemptions 1 and 5 were proper; reversing and remanding the district court's dismissal of plaintiffs' claims with respect to one record withheld under Exemption 3 and, in part, the holding on the adequacy of the agency's search

• Exemption 1/prior disclosure:  The D.C. Circuit affirms the decision of the district court that the State Department properly withheld, pursuant to Exemption 1, portions of reports of the Cultural Property Advisory Committee (CPAC) containing information provided by the government of Cyprus and a request from China for American import restrictions.  The Circuit dismisses plaintiffs' argument that Exemption 1 protection was waived for the information provided by Cyprus because it was shared with a private organization.  Rather, the Circuit finds that plaintiffs' "evidence falls way short" of satisfying its burden to identify "specific information in the public domain duplicative of the withheld information."  Additionally, the Circuit comments that "[e]ven if [the State Department] had disclosed such information, a limited disclosure to a small number of individuals might not be enough to render classification inappropriate."  As to "State's publication of a summary of [China's] application [for import restrictions] on its website," this limited release "does not, in itself, make classification of material in the longer [undisclosed] report inappropriate."  The Circuit notes that "as a simple factual matter, publication of part of a document does not put the rest into the public domain" and concludes that "[w]e have no reason to doubt State's contention that the full application contains information on looting that is properly classified."

• Exemption 3:  The D.C. Circuit concludes that provisions of the Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2605(h), 2506(i)(1), qualify as an Exemption 3 withholding statute.  With respect to plaintiffs' argument that section "2605(h) does not meet Exemption 3's requirements," the Circuit finds that because the provision "authorizes the President or his designee to close CPAC meetings otherwise required to be open, exempts materials 'involved in' such proceedings from the open-meetings provisions of [the Federal Advisory Committee Act (FACA)], and provides 'particular criteria' for deciding on such closures (or at least as 'particular' as one can expect criteria to be in the realm of foreign affairs), § 2605(h) qualifies as an Exemption 3 withholding statute."  The Circuit also rejects plaintiffs' contention that "the resulting non-disclosure [under § 2605(h)] should be understood to apply only until negotiations on the agreement at issue have ended."  Rather, the Circuit observes that "the language of §2605(h) invites no such temporal slicing" and finds that "[w]hile it may be especially obvious that disclosure in advance of agreement may stifle the negotiating process, the threat of imminent disclosure – ripening just at the moment of agreement – would surely inhibit the candor that [the provision] is meant to foster."  As to plaintiffs' challenge that the State Department's declarant is "not the proper official to make . . . a determination" under §2605(h), the Circuit notes that "[t]his argument misunderstands the standard" and concludes that "[t]he decision to close a CPAC meeting itself required a determination by the President or his designee under § 2605(h)" and that the agency's declaration explains that "the proper official made such a determination."

The D.C. Circuit agrees with plaintiffs that as to one withholding made under § 2605(i)(1), which "prohibits disclosure . . . of any information 'submitted in confidence by the private sector to officers or employees of the United States or to the Committee in connection with the responsibilities of the Committee,'" the State Department has not met its burden.  Applying the standard for confidentiality discussed by the Supreme Court in Landano, the Circuit determines that the State Department's declaration does not sufficiently explain "how the declarant knows that [a certain individual] provided information in confidence."  Accordingly, the Circuit reverses and remands to the district court for that document and states that "[o]n remand, State may provide additional reasons for its belief that [the individual] provided information in confidence."  

• Exemption 5 (deliberative process privilege):  The D.C. Circuit affirms the district court ruling that the State Department properly withheld portions of CPAC reports.  The Circuit finds that although CPAC is subject to the disclosure provisions of the FACA, "[r]ather than preempting the FOIA exemptions, the relevant portion of FACA explicitly incorporates FOIA into the standard for public disclosure of committee reports, presumably with its exemptions intact."  Contrary to plaintiffs' assertions, the fact that the CPAC reports are required to be made available to Congress "does not . . . imply a waiver of later invocation of such exemptions" because the "the statute explicitly makes disclosure to Congress an exception to the rule that information 'submitted in confidence by the private sector . . . shall not be disclosed to any person." 

The D.C. Circuit notes that plaintiffs did not raise the issue as "whether CPAC is an agency for purpose of Exemption 5," but since "plaintiffs seem to share State's assumption that the documents here qualify as interagency or intra-agency memoranda," "we will assume without deciding that they are such memoranda." The Circuit finds that "CPAC recommendations are pre-decisional because "they were created '[a]ntecedent to the adoption of an agency policy.'"  Moreover, the Circuit finds that factual summaries contained in the reports are also protected by Exemption 5 because they "reflect CPAC's predecisional deliberative process," in culling certain facts from a much larger universe of facts, as was done in Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993). 

• Adequacy of search:  The D.C. Circuit concludes that the State Department must supplement its declarations regarding the adequacy of its search.  As an initial matter, the Circuit disagrees with plaintiffs' "first contention – that State's search was inadequate because it turned up only a few emails from CPAC's Executive Director – even if that slim yield may be intuitively unlikely."  Rather, the Circuit finds the fact "[t]hat State's search turned up only a few emails from [the Executive Director] is not enough to render its search inadequate, even supposing that any reasonable observer would find this result unexpected."  However, the Circuit finds that plaintiffs' "second argument, that State failed to show the adequacy of its search, because it didn't address its employees' archived emails and backup tapes, has more merit."  The Circuit determines that the State Department failed to explain whether it has email archives for certain employees, "whether there are backup tapes containing staff member emails and, if so, whether such backup tapes might contain emails no longer preserved on staff members' computers."  The Circuit acknowledges that “[i]t may well be that searching additional emails archives and backup tapes would be impossible, impractical, or futile,” still, given that plaintiffs raised this issue before the district court, the Circuit concludes that "it is reasonable to expect State to inform the court and plaintiffs whether backup tapes of any potential relevance exist; if so, whether their responsive material is reasonably likely to add to that already delivered; and if these questions are answered affirmatively, whether there is any practical obstacle to searching them."  The issue is remanded.

1.  Ctr. for Int'l Envtl. Law v. Office of the U.S. Trade Rep., No. 01-498, 2011 WL 1379823 (D.D.C. Apr. 12, 2011) (Roberts, J.)

Re:  Request for records concerning sessions of the Negotiating Group on Investment for the Free Trade Agreement of the Americas (FTAA); remaining at issue is one document withheld pursuant to Exemption 1

Holding:  Denying USTR's renewed motion for summary judgment where it has not sufficiently demonstrated that disclosure of one particular document would harm the United States' national security interests, and directing the filing of a schedule on which the case should proceed

• Exemption 1:  The court denies USTR's renewed motion for summary judgment on the basis that it did not adequately justify its assertion of Exemption 1 to protect a document discussing the United States' interpretation of the phrase "in like circumstances," the meaning of which "defines the conditions under which the national treatment and most-favored-nation treatment rules apply."  First, the court finds that "while disclosure here would breach the understanding with the other participating governments [taking part in the FTAA negotiations], the claim that such a breach would harm national security is much less compelling than it was in other [Exemption 1 cases decided by the district court and the D.C. Circuit], since the United States would be revealing its own position only, not that of any other country."  Therefore, the court concludes that USTR "has not shown it likely that disclosing [the] document [at issue] would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential."  

Additionally, the court finds USTR's contention that disclosure "could 'undermine the ability of the United States to negotiate and conclude the FTAA and other trade and investment agreements on terms favorable to the U.S. economic and security interests' by damaging the trust that negotiating partners have in the United States" is inconsistent with USTR's justification for withholding the meaning of the phrase "in like circumstances," i.e., that "foreign nations could use USTR's position as evidence that the United States has breached investment agreements [and thereby] could 'potentially subject the United States to trade or investment retaliation, causing harm to U.S. foreign relations.'"  The court notes that "[i]t hardly seems consonant to argue on the one hand that disclosure would harm national security because it would undermine trade partners' trust in the United States, and on the other hand that disclosure would harm national security because it would prevent the United States from articulating one interpretation of 'in like circumstances' in trade negotiations and then adjusting that definition to suit its needs in other situations – a tactic that would presumably undermine the trust of foreign governments in the United States."  Accordingly, the court finds that "[s]uch inconsistency is an indication of unreliability and the agency affidavits will be shown no deference with respect to any justification for withholding that involves maintaining the trust of negotiating partners."    

The court also discounts USTR's claim that "disclosure of its own trade positions would create the perception among foreign nations that the United States is attempting to strengthen its bargaining position through public pressure, which, in turn, might cause foreign nations to attempt to increase public support for their own positions and might reduce the likelihood of compromise among nations."  The court determines that "[t]his explanation does not provide a logical nexus between the document and the claimed national security exemption."  Moreover, "USTR would not be releasing [the] document [at issue] by way of a unilateral decision that a negotiating partner could perceive as a negotiating tactic," but rather "to comply with the FOIA – after protracted litigation no less." 

2.  McCoy v. FBI, No. 10-1973, 2011 WL 1343048 (D.D.C. Apr. 7, 2011) (Wilkins, J.)

Re:  Plaintiff's motion for leave to supplement his complaint with a discussion of the Prisoner Litigation Reform Act and request for grant of in forma pauperis status under Rule 15(d) or for court to reconsider its order vacating plaintiff's in forma pauperis status

Holding:  Denying plaintiff's motion to supplement complaint under Rule 15(d); denying plaintiff's motion to reconsider its decision to vacate order granting plaintiff in forma pauperis status

• In forma pauperis:  The court denies plaintiff's request for reconsideration of its order vacating his in forma pauperis status premised on his claim that he qualifies for the imminent danger exception to the Prison Litigation Reform Act's three-strikes rule.  The court finds that plaintiff's claim that he is in imminent danger in prison has "nothing to do with [his underlying FOIA] claim."  "Plaintiff's action under the Freedom of Information Act . . . is wholly unconnected to the generalized allegations of danger Plaintiff allegedly faces in prison."  The court notes "[i]n other words, whether Defendants improperly withheld records in response to Plaintiff's FOIA request bears no relation to whether Plaintiff faces danger from prison violence."  

3.  Ferrigno v. DHS, No. 09-5878, 2011 WL 1345168 (S.D.N.Y. Mar. 29, 2011) (Sullivan, J.)

Re:  Request for records pertaining to plaintiff's employment-related harassment complaint

Holding:  Granting DHS's motion for summary judgment as to the adequacy of its search and its withholdings under Exemptions 5 and 6; ordering DHS to submit certain documents for in camera review in order to evaluate segregability

• Adequacy of search:  The court holds that DHS conducted a reasonable and good faith search for e-mails responsive to plaintiff's request and that discovery on this point is unnecessary.  The court "agrees with plaintiff that Defendant should have searched for the e-mails at the time of plaintiff's original request; however, the Court finds that Defendant's later supplemental search was reasonable, if not perfect."  The supplemental search included backup tapes, which is where DHS determined that the e-mails would be located.  The court further notes that "[p]laintiff has presented no evidence that Defendant acted in bad faith, by for example, intentionally deleting the e-mails to avoid disclosing them."  With respect to records other than e-mails, the court concludes that DHS search was sufficient because its declaration showed that DHS performed "an extensive search for responsive documents in five of its subdivisions and has provided copies of all documents that do not fall within an exemption under FOIA" and plaintiff does not contest those searches.

• Fee waiver:  The court denies plaintiff's request for a waiver of fees, concluding that "Plaintiff has failed to demonstrate that the disclosure of information about the investigation into his harassment complaint will open agency action to the light of public scrutiny."  The court rejects plaintiff's argument that he is entitled to a fee waiver because the e-mails at issue "'may involve the planning of unlawful or inappropriate actions by high ranking officials.'"  For one, the court notes that "Plaintiff's allegations of government impropriety are purely conclusory" and that he "has presented no evidence challenging the [Immigration and Customs Enforcement (ICE)] Investigator's finding that his allegations against [his] Supervisor were unfounded."  Additionally, the court concludes that "this 'allegedly 'public' interest is easily outweighed by the private benefit plaintiff seeks,'" noting that his "request for the e-mails seems to be little more than an attempt to continue the investigation and settle old scores," which "can hardly be said to be in the public interest and do not justify a fee waiver."  Moreover, "Plaintiff has not even argued that he has an intention of disseminating the e-mails to the public, much less demonstrated his ability to do so."    

• In camera review:  The court declines to conduct an in camera review for the purpose of "determining the applicability of the FOIA exemptions in this case" because DHS's "Vaughn Index and Declaration are sufficiently detailed." 

• Exemption 6: The court concludes that DHS properly withheld third party information contained in investigative memoranda pursuant to Exemption 6.  As an initial matter, the court finds that "the requested files – records of ICE's internal investigation containing the names and statements of witnesses, the Investigator, and the Supervisor are clearly similar files for the purpose of Exemption 6."  In terms of the privacy interests, the court determines that "the Supervisor, the Investigator, and the interviewees whose statements are recorded in the memoranda at issue all have a more than de minimus [sic] privacy interest in these memoranda, as being identified as part of the investigation in Plaintiff's complaint could subject them to embarrassment and harassment."

Conversely, plaintiff failed to identify any countervailing public interest in disclosure.  The court notes that "[t]o the extent Plaintiff is asserting that his interest in vindicating his claims, justifies disclosure, this private reason for obtaining the information is clearly insufficient."  Moreover, the court further states that "[p]laintiff has produced absolutely no evidence that government impropriety might have occurred, beyond his own assertions."  Balancing the privacy and public interests involved, the court holds that disclosure of information pertaining to third parties named in the records would constitute a clearly unwarranted invasion of personal privacy.  Although the court noted that "there is a stronger case for releasing" the identity of the supervisor, it ultimately concluded that "the Supervisor's somewhat low rank, the relatively minor charge against him, and the weakness of the evidence all weigh against disclosure." 

• Exemption 5 (deliberative process privilege):  The court finds that DHS properly invoked the deliberative process privilege to withhold portions of investigative memos containing witness statements collected during the course of an investigation into plaintiff's harassment complaint.  The court determines that "[t]he witness memoranda in this case are certainly pre-decisional, as they were prepared before [the] decision [as to whether to discipline the supervisor] was made and were created to help ICE officials make that decision."  Additionally, the documents were also "deliberative, as the information contained in the interview memoranda formed an important link in the investigative process . . . , the memoranda reflect the personal opinions of the interviewees . . . , and their public disclosure is likely to have a chilling effect on witnesses in future investigations."

• Segregability:  Even though DHS's declaration provides some details regarding segregability of non-exempt information, the court concludes that it will review the documents in camera in order to evaluate whether any withheld portions are reasonably segregable. 

WEEK OF APRIL 18

1.  Sanders v. DOJ, No. 10-5273, 2011 U.S. App. LEXIS 8326 (D.C. Cir. Apr. 21, 2011) (per curiam)

Re:  Requests for certain records pertaining to plaintiff's prosecution

Holding:  Granting summary affirmance of the district court judgment, which dismissed plaintiff's claims against individual defendants and his various requests for relief unrelated to the disclosure of records, ruled that a grand jury transcript was properly withheld under Exemption 3, and concluded that the government conducted an adequate search

• Proper party defendant:  The D.C. Circuit holds that "[t]he district court properly dismissed claims against the individual defendants because such claims are not cognizable under the Freedom of Information Act." 

• Adequacy of search:  The D.C. Circuit concludes that the district court properly found that the agency "met its burden of demonstrating that its search for responsive records was adequate" "through its detailed declarations."

• Exemption 3:  The D.C. Circuit affirms the district court's decision that the agency properly withheld grand jury transcripts pursuant to Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) because they "would reveal 'such matters as the identities . . . of witnesses . . . , the substance of testimony, [and] the questions of jurors.'"  

• Relief:  The D.C. Circuit holds that "because FOIA requesters are not entitled to relief beyond the disclosure of the records that they seek, the district court properly concluded that appellant's various requests for relief in addition to the disclosure of documents are not available to him in this FOIA suit."

2.  Stevens v. Colt, No. 10-14387, 2011 WL 1500599 (11th Cir. Apr. 20, 2011) (per curiam)

Re:  Mandamus petition to compel IRS agents to provide documents supporting their authority to file liens and levies on plaintiff's assets

Holding:  Affirming the district court's decision to dismiss plaintiff's mandamus petition

• Jurisdiction:  The Eleventh Circuit concludes that plaintiff "failed to demonstrate entitlement to mandamus relief sufficient to sustain mandamus jurisdiction" and, furthermore, notes that the FOIA "provided an alternative avenue of relief, as it authorizes judicial review of an agency decision to withhold agency records." 

3.  Brayton v. Office of the U.S. Trade Rep., No. 09-5402, 2011 WL 1466337 (D.C. Cir. Apr. 19, 2011) (Griffith, J.)

Re:  Request for a classified international trade agreement between the United States and the European Union concerning Internet gambling

Holding:  Affirming the district court's denial of plaintiff's request for attorney fees where USTR declassified and released the requested trade agreement to the public after the parties moved for summary judgment but before the court ruled

• Standard of review:  The D.C. Circuit reviews for abuse of discretion the district court's denial of plaintiff's request for an award of attorney fees and "examine[s] de novo whether the district court applied the correct legal standard." 

• Attorney Fees:  The D.C. Circuit affirms the judgment of the district court that  plaintiff is not entitled to recover attorney fees in connection with a FOIA request when the agency's "initial decision to withhold was clearly justified."  Indeed, despite the change in the "eligibility" standard brought about by the OPEN Government Act of 2007, that "did not have any effect on the standard for fee entitlement."  "For purposes of fee entitlement, the rule remains that if the government was 'correct as a matter of law' to refuse a FOIA request, 'that will be dispositive.'"  The Circuit rejects plaintiff's argument that the district court, despite finding that he was not entitled to an award of attorney fees, "still should have considered awarding him fees because his claim for disclosure was 'not insubstantial.'" 

The D.C. Circuit also finds that plaintiff's interpretation of the fee award provision "would make the law of FOIA fee entitlement even more favorable to plaintiffs than it was before Buckhannon" and concludes that the legislative history of the OPEN Government Act does not support such a reading.  Additionally, the Circuit comments that "[i]f a court finds that there were genuine issues of material fact in dispute before the case was settled, the court may still award fees as long as the plaintiff has substantially prevailed on the basis of a claim that was 'not insubstantial.'"  The Circuit notes that ironically awarding fees in cases such as this one "might prod government agencies to be less rather than more transparent."  Conversely, however, "[u]nder the rule applied by the district court, agencies in USTR's position can choose to relent for the sake of transparency and release requested documents without exposing themselves to monetary penalties: the fact that their initial nondisclosure decision rested on a solid legal basis creates a safe harbor against the assessment of attorney fees."  

1.  Porter v. CIA, No. 10-050, 2011 WL 1497648 (D.D.C. Apr. 21, 2011) (Boasberg, J.)

Re:  Requests for records pertaining to plaintiff 

Holding:  Granting summary judgment to defendants based on reasonableness of their search for responsive records

• Procedural/Adequacy of search:  The court determines that "[h]aving previously conducted searches in response to two substantively similar FOIA requests from plaintiff," the CIA's decision to confine the timeframe of its search to a period which "represents the time between Plaintiff's second request and Defendant's acceptance of his third request" was reasonable.  In light of the fact that the CIA twice notified plaintiff regarding the limited scope, the court finds "Defendant's belief that Plaintiff had acquiesced by his silence in the scope of the search was reasonable."  Additionally, the court finds that "Defendant's decision to limit the time period was independently reasonable, given that this was Plaintiff's third request for the same information" and that "[p]laintiff has submitted neither evidence nor persuasive argument to support its position that the time limitation was unreasonable or that documents not previously located might crop up on this occasion." 

• Exhaustion:  The court concludes that plaintiff's challenge to the scope of the search would also fail on the grounds that "he has not exhausted his administrative remedies on this issue."  Although plaintiff submitted an administrative appeal in connection with his third FOIA request, and did appeal the adequacy of the search, "[a]t no point during the appeal process did Plaintiff ever aver that he was appealing the timeframe of the search."  As such, the court finds that "summary judgment on this issue is consistent with the purposes of exhaustion and FOIA's detailed administrative scheme." 

• Adequacy of search:  The court holds that the CIA conducted an adequate search for responsive records where its declaration "lays out in detailed fashion: (1) the files that were searched; (2) the reasons for searching those files; (3) the search terms employed; and (4) the search method used."  With respect to plaintiff's argument that the CIA failed to produce one document that was previously released to him under another request, the court finds "given the more recent timeframe of the search, it is unsurprising that this older document was not uncovered."  Moreover, "the fact that responsive documents once existed does not mean that they remained in Defendant's custody or that Defendant had a duty to retain them, and the agency's failure to turn up a particular document – or mere speculation that as yet uncovered documents might exist – will not undermine an otherwise adequate search." 

2.  Physicians for Human Rights v. DOD, No. 08-273, 2011 WL 1495942 (D.D.C. Apr. 19, 2011) (Bennett, J.)

Re:  Request for records pertaining to mass gravesite in Afghanistan where Taliban fighters are allegedly buried; at issue is the sufficiency of a supplemental search for records by the U.S. Central Command (CENTCOM) and its withholding of certain information contained in three documents uncovered during the search

Holding:  Granting defendants' renewed motion for summary judgment based on the adequacy of its supplemental search and its justifications for withholding information pursuant to Exemptions 1, 2, 3, and 6

• Adequacy of search:  The court concludes that CENTCOM's search was adequate based on its declaration, which "describes in sufficient detail the location, search methods, and scope of the search conducted."  Contrary to plaintiff's arguments, the court notes that "there is no requirement, and [plaintiff] points to no case law so indicating, that an agency is required to list the individual units of an agency that were not searched – indeed, such a requirement would impose a burden on Defendants that FOIA does not contemplate."  The court likewise rejects plaintiff's arguments that "the declaration is insufficient because it is not detailed enough with regard to how the key word search was carried out, that the declaration fails to identify the specific individuals who conducted the searches, and because the declaration does not indicate the precise method by which Defendants ruled out false positive responses."  As to defendants' key word searches and its ability to rule out false positives, the court finds that CENTCOM's "declaration sufficiently sets forth 'the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials . . . were searched" and, consequently, "[t]he declaration allows this Court to assess CENTCOM's search to the extent necessary to determine that it satisfied its burden."  With respect to defendants' failure to identify the specific individuals conducting the search, the court determines that this fact "is of little moment – FOIA does not impose such a burden on the agency."  Additionally, the court finds plaintiff's "contention that Defendants' search was inadequate because the declaration does not establish that CENTCOM searched in Afghanistan, can be easily disposed of" because "[i]t is clear that the declaration sufficiently states the geographic scope of Defendants’ search and this Court concludes that the search was adequate and included records located in Afghanistan."

• Exemption 1 (Exec. Order 12,958):  The court holds that defendants properly redacted certain information concerning intelligence activities and foreign relations pursuant to Exemption 1.  The court dismisses plaintiff's claim that "the declaration does not describe how Exemption 1 applies to each of the redacted sections individually," finding that "the very case relied upon by [plaintiff] does not impose such a requirement, and [the agency's] declaration provides this court with a sufficient basis to evaluate the exemption claim" where it describes the withheld material and identifies the harm that would be occasioned by its disclosure.

• In camera review: The court concludes that in camera review is not warranted to inspect the material withheld under Exemption 1 "[b]ecause this Court has already concluded that the affidavit submitted by Defendants is sufficient, and because [plaintiff] has put forth no arguments or evidence tending to question the justifications provided in the affidavit."

•Exemption 2: Citing Crooker and not referencing the Supreme Court's decision in Milner, the court concludes that defendants properly withheld internal telephone numbers pursuant to Exemption 2, noting that "[t]he withholding of internal telephone numbers is generally appropriate, and is appropriate in this particular case as well.'"

• Exemption 3:  The court concludes that defendants properly invoked Exemption 3 in conjunction with 10 U.S.C. § 424, which "protects 'sensitive identifying information . . . ., including the name, geographic location, and subject matter responsibilities of some of its offices,'" to withhold a Defense Intelligence Agency unit and its location.

• Exemption 6:  "Considering the fact that [plaintiff] does not challenge Defendants' invocation of Exemption 6 with regard to the withholding of certain individuals' names, and that this Court has previously found that Defendants properly withheld individuals' names in similar circumstances, . . . [the] Court concludes that the names at issue were properly withheld."

WEEK OF APRIL 25

1.  Madison v. United States, No. 10-742, 2011 WL 1591811 (Fed. Cl. Apr. 28, 2011) (Hodges, J.)

Holding:  Dismissing plaintiff's FOIA claim for lack of subject matter jurisdiction

Jurisdiction:  The court holds that it lacks jurisdiction to hear claims brought under the FOIA.

2.  Islamic Shura Council of S. Cal. v. FBI, No. 07-1088, 2011 WL 1576476 (C.D. Cal. Apr. 27, 2011) (Carney, J.)

Re:  Request for records pertaining to any FBI investigation or surveillance of plaintiffs; at issue is a remand from the Ninth Circuit concerning the government's challenge to the district court's sealed, ex parte order

Holding:  Vacating court's previous ex parte, sealed order in its entirety

• Litigation considerations/summary judgment:  The district court, in response to a remand from the Ninth Circuit, vacates the court's prior sealed, ex parte order to make all the contents of the order public.  The court finds that "[a]lthough the FOIA allows the Government to withhold certain categories of documents from requestors such as Plaintiffs pursuant to statutory exemptions, 5 U.S.C. § 552(b), or exclusions, 5 U.S.C. § 552(c), the FOIA does not permit the Government to withhold responsive information from the Court."  The court notes that its prior order "reflect[ed] the Court's erroneous understanding of the facts of this case" based on defendants' initial representations and, accordingly, vacates the order in its entirety.  With respect to the parties' cross-motions for summary judgment, the court holds that "Plaintiffs are not entitled to any further information regarding the Government's previous searches for documents, and the Government does not need to conduct any additional searches for responsive documents."  Additionally, the court advised plaintiffs that "the Government located more documents responsive to their FOIA request," but notes that "disclosing the number and nature of the documents the Government possesses could reasonably be expected to compromise national security."  The court holds that "[f]or this . . . reason, the Government does not have to confirm or deny whether any of the Plaintiffs is a subject or material witness in any criminal investigation." 

3.  Jacobs v. BOP, No. 09-2134, 2011 WL 1576013 (D.D.C. Apr. 26, 2011) (Wilkins, J.)

Re: Requests for records pertaining to prices charged for commissary items at a federal prison; plaintiff's placement in a special housing unit; and his prison transport

Holding:  Granting defendant's renewed motion for summary judgment, and denying plaintiff's request for court fees and costs

• Litigation considerations:  The court treats as conceded defendant's renewed motion for summary judgment where plaintiff failed to file a timely opposition or request an extension and the court had advised him of his obligation to do so. 

• Litigation/fees & costs:  The court denies plaintiff's request for reimbursement of his fees and costs associated with litigating this case.  As an initial matter, the court notes that BOP claimed that it "received the requests only after this litigation commenced."  Plaintiff produced certified mail receipts demonstrating that he had submitted the FOIA requests prior to initiating the instant action.  The court finds that BOP's "response to the requests reasonably can be considered 'a voluntary or unilateral change in position by the agency' after a lawsuit was filed."  However, under the entitlement prong, the court ultimately finds that plaintiff is not entitled to court fees and costs because his claim is insubstantial.  First, the court finds that the information sought was for plaintiff's "personal use only."  Second, the court notes that although "[i]t does not appear that plaintiff derives a commercial benefit from the requested records, [there is likewise no showing] that the public benefits in any way from their release."  Lastly, the court comments that "if the BOP had no record of receipt of the requests, it hardly is surprising that it failed to respond promptly." 

4.  Honeywell Tech. Solutions, Inc. v. Dep't of the Air Force, No. 05-1772, 2011 WL 1595161 (D.D.C. Apr. 19, 2011) (Hogan, J.)

Re: Reverse-FOIA suit; plaintiff seeks to enjoin the Air Force from disclosing certain information pursuant to a FOIA request pertaining to a contract between the two parties

Holding:  Remanding the case, in part, for the Air Force to consider plaintiff's arguments regarding substantial competitive harm with respect to certain documents; granting plaintiff's motion for summary judgment, in part, as to a record for which it demonstrated that substantial competitive harm would likely result from its release; holding in abeyance plaintiff's motion to strike declaration filed by the Air Force

• Standard of review:  "The Court reviews this case under the Administrative Procedures Act, and will set aside the agency's decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'" 

• Exemption 4/voluntary or required submission:  As an initial matter, the court notes that "[t]he parties do not dispute that the contested information is 'commercial or financial' information, or that [plaintiff, as the submitter of commercial information,] is a 'person' within the meaning of Exemption 4."  Because plaintiff submitted the information at issue as part of a bidding process for an Air Force contract, the court finds that "the contested information is generally governed by the National Parks standard [as a required submission] unless some specific exemption applies."  Although acknowledging that "there is precedent in this Circuit for treating certain information submitted as part of a bid for a government contract as voluntarily submitted while treating accompanying information as involuntarily submitted," the court finds that based upon the existing record, it cannot determine whether the Request for Proposal (RFP) associated with the particular contract in question "required the submission of [certain] 'non-core' work solutions" as part of the bidding process.  As such, the court orders the parties to file the RFP "for its consideration before [it] rules on whether the RFP required submission of 'non-core' work solutions." 

• Exemption 4/impairment prong:  Applying the National Parks test to the records at issue, the court rejects plaintiff's claim that "if the information being sought is released, it would likely impair the government's ability to obtain similar information in the future."  The court finds that "nothing in the record indicates that the Government ever assured [plaintiff] that this information could not or would not be released pursuant to a FOIA request" and notes that "as a large government contractor, [plaintiff] surely was aware that courts have authorized release of similar information in other FOIA cases."  Moreover, the court finds "the claim that [plaintiff] would abjure the opportunity for a multi-million-dollar contract to avoid a FOIA disclosure strains credibility" and notes that plaintiff maintained "inconsistent positions" as to "the likelihood that [it] would not have produced the information to the government under these circumstances."  The court also indicates that plaintiff failed to present "evidence that it or any other government contractor has withheld such information for fear of FOIA disclosure."  Lastly, the court comments that if plaintiff "could successfully invoke the government-impairment prong with conclusory and unintuitive statements as those offered here, it could transform the prong into a de facto prohibition on disclosure."

• Exemption 4/substantial competitive harm prong/actual competition:  In terms of the demonstrating substantial competitive harm, the court concludes that despite the Air Force's arguments to the contrary, plaintiff faces "actual competition" in the marketplace.  For one, the court determines that plaintiff "need only present evidence that it faces competition regarding the types of services offered under the Contract," rather than showing actual competition with respect to this particular contract.  The court finds that plaintiff's evidence that it faces competition in connection with four upcoming contracts that likely "involve similar if not identical services as those offered under the [instant] Contract" is sufficient to demonstrate actual competition.  Moreover, the court notes that "because the . . .  Contract [at issue] is such a comprehensive contract, it is reasonable to assume that some of the myriad services offered thereunder would be relevant to some other upcoming government contract."  Moreover, "the Court is mindful that a group representing [plaintiff's] major competitors is apparently behind the FOIA request at issue here."

• Exemption 4/substantial competitive harm prong:  Concluding that the "record suffers from a frustrating ambiguity, i.e., what [plaintiff's] arguments were, and to what arguments the Air Force reasonably thought it was responding," the court identifies in plaintiff's submissions "three possible theories" as to why certain technical and financial information is sensitive.  Namely, the court notes that plaintiff may be arguing that the technical and financial information is sensitive because it reveals "how work is being done," "how [plaintiff] allocates resources," or "granular cost elements."  The court notes that Air Force only responded to the third argument and that "if the Court credits [plaintiff] with having made Arguments 1 and 2, the Court could find that the Air Force did not meet its burden in rebutting those arguments."  The court, however, notes that "'the evidence must be analyzed in the light most favorable to the non-movant [Air Force], with all justifiable inferences drawn in [its] favor'" and, accordingly, "remands the case to the Air Force so that the Air Force may clarify its position as to what it considers [plaintiff's] arguments to be, and to respond to Arguments 1 and 2 to the extent that it feels that [plaintiff] raised them in the existing record." 

Additionally, the court awards summary judgment to plaintiff enjoining the Air Force from releasing in response to the pending FOIA request, a certain "section" reflecting plaintiff's "'strategic approach'" that would afford insight into how to structure award fee plans because disclosure would likely result in competitive harm.  The court finds that the Air Force "does not rebut the substance of [plaintiff's] argument" that "on its face the information's structure is sensitive and can be copied by competitors to [plaintiff's] detriment."  

Litigation considerations/Motion to strike:  The court holds in abeyance plaintiff's motion to strike one of the declarations submitted by the Air Force.  Plaintiff argues that the declaration "improperly supplements the existing administrative record with 'a post-hoc explanation of the Air Force's decision that is not reflected in the Air Force's [earlier] decision letter.'"  The court concludes that [it] needs "a complete and legible version of the [Request for Proposal]" before it determines whether the declaration merely explains the original record or whether it contains new rationalizations, which would be impermissible.