Summaries of New Decisions

Summaries of New Decisions – October 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 SEPTEMBER 26

Court of Appeals

1.  Wadhwa v. VA, No. 11-1718, 2011 WL 4495600 (3d Cir. Sept. 29, 2011) (per curiam)(unpublished disposition)

Re:  Requests for records pertaining to plaintiff

Holding:  Affirming the district court's decision to grant summary judgment with respect to information redacted pursuant to Exemption 6; vacating and remanding with respect to the district court's determination regarding the adequacy of the VA's search

• Litigation considerations/standard of review:  The Third Circuit employs "a two-tiered test in reviewing an order of a District Court granting summary judgment in proceedings seeking disclosure under the FOIA."  First, the Third Circuit "'decide[s] whether the district court had an adequate factual basis for its determination'; and, second, . . . '''decide[s] whether that determination was clearly erroneous.'" 

• Exemption 6:  The Third Circuit concludes that the district court's grant of summary judgment on the basis of Exemption 6 was correct.  The court finds that "[a]lthough [plaintiff] argues that he should have received unredacted versions of certain [third party] medical files, the District Court reasonably calculated that the level of redaction authorized under the 'personnel and medical files and similar files' exemption to the FOIA disclosure requests, [i.e., Exemption 6], balanced the individuals' right to privacy with the purpose of FOIA."  The Third Circuit notes that plaintiff "has shown no public interest at all in the preservation of the redacted personal information, which (by the descriptions in the Vaughn index) connects names to medical conditions and procedures, and he has also not shown how the disclosure of that information contributes significantly to the public understanding of the operations of the VA."  Accordingly, "the scale 'tips . . . in favor of withholding the redacted material.'"

• Adequacy of search:  The Third Circuit concludes that the district court erred in granting summary judgment with respect to the adequacy of the agency's search.  Rather, the Third Circuit notes that neither declaration submitted by VA "discussed the search methodology used" and therefore plaintiff "has received no assurance that the search for documents was adequate."  As such, the Third Circuit vacates the district court's decision in this respect and remands for further proceedings.

District Courts

1.  Earle v. Holder, No. 10-0422, 2011 WL 4526039 (D.D.C. Sept. 30, 2011) (Friedman, J.)

Re:  Request to amend certain BOP records pertaining to plaintiff

Holding:  Granting defendant's motion to dismiss FOIA claims based on lack of subject matter jurisdiction

• Litigation considerations/jurisdiction:  The court dismisses plaintiff's FOIA claims on the basis that he has failed to establish jurisdiction because he "has not alleged that he requested the disclosure of records and was denied."  Rather, the court observes that "[plaintiff] challenges the accuracy of the agency records, which is the exclusive province of the Privacy Act."  

2.  Earle v. Holder, No. 10-0422, 2011 WL 4500827 (D.D.C. Sept. 28, 2011) (Friedman, J.)

Re:  Request to amend certain BOP records pertaining to plaintiff

Holding:  Granting defendant's motion to dismiss, under Rule 12(b)(6), plaintiff's FOIA and Privacy Act claims brought against two District of Columbia employees

• Litigation considerations/proper party defendant:  The court dismisses plaintiff's FOIA and Privacy Act claims brought against two individuals employed by the District of Columbia.  The court notes that "[b]oth the FOIA and Privacy Act concern the obligations of federal agencies."  Moreover, "individuals are not subject to suit under either the FOIA or the Privacy Act." 

3.  Muttitt v. U.S. Cent. Command, No. 10-00202, 2011 WL 4478320 (D.D.C. Sept. 28, 2011) (Howell, J.)

Re:  Request for various records pertaining to the oil and gas industry in Iraq; at issue is plaintiff's claim that the Department of State and the Department of the Treasury violated the Administrative Procedure Act (APA) by failing to provide plaintiff with estimated dates of completion for his FOIA requests

Holding:  Dismissing plaintiff's APA claim; and concluding his claim under the FOIA's Section 552(a)(7)(B), requiring agencies to provide time estimates for completion of FOIA requests, can proceed against State, but dismissing a similar claim brought against Treasury

• Litigation considerations/APA claim:  The court dismisses plaintiff's claims that the Department of State and Department of the Treasury violated the APA by failing to provide him with estimated dates of completion for his FOIA requests.  Although the court observes that, in certain cases disclosure of the requested record alone may not provide a sufficient remedy, here, the FOIA offers "an adequate remedy [which] include[s] the possibility of equitable relief directing a habitually noncompliant agency to comply with [the FOIA's provision requiring agencies to provide time estimates for the completion of FOIA requests,] § 552(a)(7)(B)."  Citing the D.C. Circuit's decision in Payne Enterprises Inc. v. United States, the court finds that "[c]ourts have interpreted Payne as authorizing declaratory or injunctive relief under FOIA even when a plaintiff's specific claim regarding a FOIA request is moot because the requested documents have been released."  Similar to Payne, plaintiff "seeks declaratory and injunctive relief" – here, on the basis that defendants "allegedly violated FOIA by refusing to provide him with estimated dates of completion of his FOIA requests."  The court finds that, "assuming . . . plaintiff has stated a claim for relief based on an impermissible agency pattern or practice of violating FOIA," then the "FOIA, as interpreted by Payne, provides plaintiff with an opportunity for the declaratory and injunctive relief he is seeking, [and therefore] relief under the APA is not available." 

The court then goes on to find that plaintiff has "stated a plausible claim for relief against State for a pattern and practice of violating FOIA," but has not done so with respect to the Department of the Treasury.  The court finds that plaintiff's allegations that State failed to respond to his inquires for estimated completion dates "for five separate FOIA requests" "are sufficiently detailed to state a pattern or practice claim."  The court further notes that "[t]hese are not the type of 'naked assertions devoid of further factual enhancement' that require dismissal under [Ashcroft v.] Iqbal."  In comparison, the court finds that "[u]nlike the multiple failures to provide time estimates alleged against State, the plaintiff alleges that Treasury failed to provide him with an estimated completion date only one time in relation to a single FOIA request" and "concludes that an allegation of a single FOIA violation is insufficient as a matter of law to state a claim for relief based on a policy, pattern, or practice of violating FOIA."   

4. Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.)

Re:  Requests for records pertaining to plaintiff, various entities and individuals

Holding:  Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions 6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E)

• Exhaustion of administrative remedies:  With respect to plaintiff's request for an open investigative file for which U.S. Postal Inspection Service (USPIS) invoked Exemption 7(A), the court concludes that  "[a]bsent any submission from plaintiff to overcome defendant's showing [that it had no record of an administrative appeal from plaintiff regarding this matter], . . . plaintiff failed to exhaust his administrative remedies."  The court also holds that plaintiff failed to exhaust administrative remedies with regard to his request for information about third parties where "USPIS regulations require that a requester submit written authorization for the release of records pertaining to third parties, and defendant establishes that plaintiff failed to do so."  Additionally, although plaintiff claims that the third parties named in the requests are his aliases, the court observes that "[n]othing in the request itself suggests that plaintiff was requesting information about himself when he listed the four individuals' names in his FOIA request." 

• Adequacy of search:  The court determines that "[d]efendant demonstrates that its searches for responsive records were reasonable under the circumstances" where it searched for the requested names and entities in all the electronic systems of records that are "'searchable by inputting specified identifiers, such as names.'"  The court finds that "plaintiff fails to produce any affidavits or other evidence to support his contention that an agency's declarations do not show the USPIS' compliance with the FOIA's search requirement."

• Exemption 6:  The court determines that USPIS properly invoked Exemption 6 to redact "'personally identifiable information (i.e., names and telephone numbers) of law enforcement personnel'" "from a list of newspapers." 

• Exemption 7/threshold:  The court concludes that the requested records satisfy the law enforcement threshold of Exemption 7 where "[t]he declarant explains that the USPIS 'is a law enforcement agency whose mission . . . is to conduct investigations of possible violations of federal criminal statutes such as mail fraud'" and where "'[t]he majority of documents responsive to [plaintiff's] FOIA requests were prepared as part of USPIS's investigation of whether [plaintiff] and others committed violations of federal criminal statutes.'"

• Exemption 7(C):  The court holds that "USPIS' decision to withhold . . . third party information [of agents and others involved in the investigation of plaintiff] under Exemption 7(C) is entirely appropriate, particularly in the absence of any credible showing by plaintiff to the contrary."  The court further finds that "[p]laintiff's argument that the USPIS 'failed to provide any specific examples of past unwarranted contacts, harassment, humiliation, or stigmatization of the privacy rights of [the individuals named in the records] is unpersuasive, and no agency bears such a burden on summary judgment."

• Exemption 7(D):  Based upon the current record, the court finds that it "cannot determine whether the USPIS properly has withheld information under Exemption 7(D)," because "[t]he declarant neither offers 'probative evidence that the source[s] did in fact receive an express grant of confidentiality,' nor describes circumstances which would support an inference of confidentiality."

• Exemption 7(E):  The court denies, without prejudice, summary judgment with respect to USPIS's assertion of Exemption 7(E) for "specific law enforcement techniques . . . used during the investigation of the criminal activity which resulted in [p]laintiff's incarceration."  At the outset, the court notes that "[n]otwithstanding the categorical protection to law enforcement techniques and procedures afforded under the first clause of Exemption 7(E), no agency can rely on a declaration written in vague terms or in a conclusory manner."

5. Fla. Med. Assoc., Inc. v. Dep't of Health, Educ. & Welfare, No. 78-CV-178, 2011 WL 4459387 (M.D. Fla. Sept. 26, 2011) (Howard, J.)

Re:  Dow Jones & Company and Real Time Medical Data, Inc. (RTMD) move to reopen closed FOIA case, and also move to intervene in the case and, in so doing, seek to vacate and modify the injunction issued by the court in 1979 enjoining HHS's predecessor agency from disclosing certain Medicare reimbursement amounts, and also seek declaratory and equitable relief

Holding:  Adopting, in part, magistrate's report and recommendation, granting Dow Jones' motion to reopen case, and granting Dow Jones' and RTMD's motions to intervene for the limited purpose of vacating or modifying the Final Declaratory Judgment and Permanent Injunction entered in this case on October 22, 1979; but disallowing all other cross-claims raised by the intervenors 

• Litigation consideration/motion to reopen:  The court adopts the magistrate's recommendation granting Dow Jones' unopposed motion to reopen, which was premised on the Eleventh Circuit's holding in Alley v. HHS "that a 'direct attack, instead of a collateral one, is the proper procedure' 'for seeking to vacate or modify the 1979 FMA Injunction,'" which enjoins HHS from disclosing Medicare reimbursement information.  The court notes that "[n]o party objects to this recommendation." 

• Litigation considerations/motion to intervene:  At the outset, the court notes that "'[a] party seeking to intervene as of right under Rule 24(a)(2) must show that: (1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of this action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.'"  As to the first factor, the court finds that "[n]o party has challenged the timeliness of the Motions to Intervene."  Moreover, in light of recent decisions in FOIA cases challenging HHS's withholding of certain Medicare data subject to the injunction issued in this case, the court finds that "although the 1979 FMA Injunction has been in existence for 32 years, the proposed intervenors have established that they have not been dilatory in seeking to intervene for the purpose of seeking vacatur or modification of the injunction in order to protect their interests."  However, "the Court declines to adopt the Magistrate Judge's specific findings and observations regarding the 'additional circumstances militating in favor of determining that the applications are timely'" because those determinations "are beyond the scope of the issues presented by the Motions to Intervene and are not sufficiently supported, at this time, by evidence in the record."   With regard to the second factor, the court concludes that Dow Jones and RTMD "have a sufficient interest in challenging the 1979 FMA Injunction to support their intervention as of right" because these parties "assert they have an interest obtaining the protected government records in conjunction with the operation of their business and/or disseminating the information to the public" and that "the 1979 FMA Injunction interferes with these interests."  As to the third factor, the court finds that "Dow Jones and RTMD have both established that their interests are affected by the 1979 FMA Injunction" and "that their interests continue today, and that the Injunction, as a practical matter, impairs their interests."  Lastly, the court finds that the proposed intervenors have also satisfied the fourth factor concerning whether the existing parties to the lawsuit adequately represented their interests.  Here, the court observes that "the proposed intervenors' interest in obtaining access to Medicare records differs markedly from the interests of [the current] Plaintiffs [to the lawsuit which] represent[ ] Medicare providers, [as well as the interests of] . . . Defendant HHS, who opposes the proposed intervenors' cross-claims to obtain access to specified documents."  In addition, the court also notes that "neither Plaintiffs nor Defendants have sought or are seeking to modify or vacate the 1979 FMA Injunction."  Accordingly, the court holds that the Dow Jones and RTMD have satisfied their burden under Rule 24(a)(2) to intervene as of right in this matter.

• Litigation considerations/standing:  Although the magistrate judge did not address the issue of standing, the court finds sua sponte that the proposed intervenors have standing to intervene in this case.  The court finds that their alleged injury, namely, that the 1979 FMA Injunction "precludes them from securing, pursuant to FOIA, specific government documents they seek in pursuit of their business interests," "is concrete and particularized, continuing, and traceable to the Injunction, as opposed to generalized, and may be redressed by a favorable decision vacating or modifying the injunction."   

• Litigation considerations/scope of the intervention:  The court notes that the Eleventh Circuit in Alley "'has advised that this case is properly before the Court for 'a proceeding to alter or vacate the injunction.'"  Because "[f]inal judgment was entered in this case 32 years ago," the court finds that "[a]t this stage in the litigation, the appropriate procedural vehicle for seeking vacatur or modification of the 1979 FMA Injunction is to pursue a motion pursuant to Rule 60(b)."  Moreover, "[i]n this posture, the rights of all the parties are limited; none are permitted to bring new claims."  Accordingly, the court limits the scope of intervention "to a request on the part of intervenors to vacate or modify the 1979 FMA Injunction, and [construes] those proposed counter-claims and cross-claims seeking dissolution of the 1979 FMA Injunction . . . as a proposed motion to modify or vacate the Injunction brought pursuant to Rule 60(b)."  The court then "require[s] Dow Jones and RTMD to each file a formal Rule 60(b) motion" consistent with this ruling, and disallows all other proposed cross-claims for declaratory and equitable relief. 

WEEK OF OCTOBER 3

District Courts

1.  Cambrel v. Fulwood, No. 09-1930, 2011 U.S. Dist. LEXIS 115458 (M.D. Pa. Oct. 6, 2011) (Caputo, J.)

Re:  Request for various documents relied upon by the Parole Commission as reasons for denying plaintiff parole; at issue are specific disciplinary reports

Holding:  Denying plaintiff's request for mandamus relief

Adequacy of search:  The court denies plaintiff's request for a writ of mandamus directing defendants to disclose records that they allegedly failed to release in response to his FOIA request.  Rather, the court concludes that defendants conducted an adequate search for specific disciplinary reports pertaining to plaintiff and could not locate the requested reports.  The court finds that "[t]he multitude of documents produced by [BOP and the U.S. Parole Commission], the transcript of the excerpt from the 2003 parole rehearing which recites the Hearing Examiner's review of many of the incident reports with Petitioner, the in-house search conducted by the BOP for the files, as well as [plaintiff's] own review of his Parole Commission file – all of which failed to yield the individual pre-1988 disciplinary reports [sought by plaintiff] – support the conclusion of the thoroughness and adequacy of the agency's FOIA responses."  The court notes that it "can not mandate the production of documents the agencies do not have in their custody or control at the time of the FOIA request."

2.  ACLU v. DOD, No. 04 Civ. 4151, 2011 U.S. Dist. LEXIS 115171 (S.D.N.Y. Oct. 5, 2011) (Hellerstein, J.)

Re:  Plaintiffs' motion for civil contempt alleging that the CIA violated the court's orders which directed it to identify or produce videotapes depicting detainee interrogation sessions

Holding:  Denying plaintiffs' motion to hold the CIA in civil contempt

• Litigation considerations/motion for contempt:  The court denies plaintiffs' motion for civil contempt, concluding that such a finding "at this point would serve no beneficial purpose."  The court finds that "[t]he CIA's failure to identify or produce the videotapes in response to plaintiffs' FOIA request and [the court's] repeated orders, and the destruction of the videotapes, has been remedied."  The court further notes that although the requested videotapes have been destroyed, "the CIA has remedied that failure by a massive production of . . . records [that] describe the contents of the videotapes, corresponding in time to their creation, and records that relate to the videotapes' destruction, in particular, the persons and reasons behind the destruction, corresponding in time to both the videotapes' creation and destruction."  Moreover, the court observes that "[p]laintiffs have had a full and fair opportunity to litigate whether those records, or any of them, are exempt from disclosure under FOIA Exemption 1or 3 or must be produced" and further notes that its rulings on those points are currently on appeal.   Additionally, the court finds that "[t]he public gains an additional benefit from the remedial relief put in place by the CIA – improved protocols for the retention of records potentially relevant to an investigation or a judicial, congressional, or administrative proceeding."  And, "contrary to plaintiff's view, [the court opines that] the CIA's new protocols would have a remedial and deterrent effect should a CIA official think to destroy documents."  However, the court notes that the parties agree that it "ha[s] the inherent authority to impose an award of attorneys' fees and costs, as a matter of fairness and equity, without finding the CIA in contempt," and finds that "[t]he parties should endeavor to settle between them the amounts that fairly are due." 

3.  Am. Small Bus. League v. Dep't of the Interior, No. 11-01880, 2011 U.S. Dist. LEXIS 114752 (N.D. Cal. Oct. 5, 2011) (Alsup, J.)

Re:  Request for the names, titles, and contact information of Department of Interior (DOI) employees who were interviewed by Office of Inspector General (OIG) in connection with its review as to whether DOI and its bureaus accurately reported their small business contracting achievement; at issue is defendant's assertion of Exemption 6 to protect identifying information of contracting officers

Holding:  Denying plaintiff's motion for summary judgment; and granting defendant's cross-motion for summary judgment

• Exemption 6/threshold:  At the outset, the court concludes that the responsive records, i.e., "[the workpapers maintained by OIG auditors who interviewed DOI employees to determine why the DOI had overstated its achievements in meeting certain business goals," constitute "similar files" as defined by Exemption 6.  Although plaintiff argues that these records do not meet the threshold of Exemption 6, the court finds that "[p]laintiff presents no evidence to show that the withheld information was not personally identifying information."  The court notes that "[p]laintiff mistakenly contends that the Supreme Court [in U.S. Department of State v. Washington Post Co.] intended the term "similar files" "to apply only to files, which 'contain intimate details of a highly personal nature'" and further observes that "the Supreme Court expressly rejected that contention." 

• Exemption 6:  The court holds that defendant properly invoked Exemption 6 to withhold the names and contact information of agency contracting officers.  For one, the court notes that the Ninth Circuit "has held that the possibility of harassment, embarrassment, stigma, and retaliation [among the harms cited by defendants in this case] are cognizable privacy interests under the exemption six precedents."  The court comments that the responsive records "abound with examples of contracting officers disclosing their own mistakes" and notes that "defendant points to plaintiff's own statements as additional evidence that the contracting officers . . . will be embarrassed, humiliated, or possibly harassed if their names and contact information are released in connection with the reported mistakes."  The court also finds that defendant's contention that "disclosure of the requested information would have a chilling effect on its employees' willingness to speak with candor in future reports" is also as "valid factor to be weighed in balancing the public and private interests."  In terms of the public interest involved, the court agrees with defendant's assertion that because "the [OIG] report and its findings have already been released, and release of the names, titles, and contact information will not further the public good."  Accordingly, the court determines that the "invasion of [the employees'] privacy is not warranted" because their "right of privacy is greater than the public interest served by disclosure of their private information."  

4. Kowak v. U.S. Forest Serv., No. 11-95, 2011 U.S. Dist. LEXIS 114230 (D. Mont. Oct. 4, 2011) (Molloy, J.)

Holding:  Denying plaintiff's request for in camera inspection; but ordering defendants to submit a Vaughn Index

• Litigation considerations/in camera inspection:  The court denies plaintiff's request for in camera inspection, noting that "[w]hile the Court has discretion to order an in camera inspection, it will not do so here, where the agency has not yet filed a Vaughn Index."  However, the court orders defendants to produce a Vaughn Index.

5. Families for Freedom v. CBP, No. 10 Civ. 2785, 2011 U.S. Dist. LEXIS 113143 (S.D.N.Y. Sept. 30, 2011) (Scheindlin, J.)

Re:  Requests for records pertaining to the scope and practices of CBP's operation on inter-city buses and trains within the geographic area known as the "Buffalo Sector"; at issue is defendants' motion for partial reconsideration of the court's previous order

Holding:  Withdrawing the court's previous order directing CBP to produce certain records that the court now deems unresponsive, but ordering CBP to produce certain responsive records, asserting any applicable exemptions, by a specific date

• Litigation consideration/motion for reconsideration:  Under the provisions of the court's local rules, motions for reconsideration "are committed 'to the sound discretion of the district court.'"  Despite plaintiffs' objections, the court finds that CBP's motion for reconsideration is proper in this instance, because "while defendants have had ample time to present the arguments they now make, it is less clear that they have had the opportunity to do so."  Therefore, "in the interests of both correcting material error and preventing clear injustice, [the court finds] it is  appropriate to consider defendants' arguments, even if they were never fully presented prior to the motion for reconsideration."  Accordingly, the court concludes that it "will now consider the responsiveness of each set of disputed documents, based on [its] in camera review, as well as the arguments of counsel." 

• Procedural/responsiveness:  Based upon its in camera review and the parameters of plaintiff's initial FOIA request, the court determines that certain records that it previously ordered disclosed are ultimately not responsive.  Accordingly, the court withdraws the portions of its earlier order directing defendants to release those particular records.  However, with respect to certain e-mails where defendants produced the attachments but not the corresponding e-mail chains, the court finds that "defendants have created an artificial distinction between the attachments, which contain the statistics, and the emails, which solicit, provide, define, categorize, and otherwise discuss those same statistics."  The court concludes that the e-mail chains are responsive to the request, because "[c]ontext matters" and "[t]he attachments can only be fully understood and evaluated when read in the context of the emails to which they are attached."  The court also finds that a memorandum discussing "'the scope of potential liability of Border Patrol agents performing searches aboard Amtrak trains'" is responsive to the portion of plaintiff's request for "'[a]ny materials concerning the standards that apply to the conduct of CBP officers at the border as well as in the interior of the United States.'"  As to any records that the court deemed were responsive, the court orders CBP to produce the records and assert any applicable exemptions by a specific date.

• Procedural/agency records:  The court holds that "'[a] Microsoft Word document containing notes from a meeting that took place between Border Patrol and Amtrak Police personnel'" is an agency record for purposes of the FOIA.  Employing the four-element analysis adopted by the Second Circuit in Grand Central Partnership v. Cuomo, the court first looks to the "'circumstances that led to the creation (or "generation") of the document,'" and "'the purpose for which the document was created.'"  The court finds that these two factors are clear – the notes were taken by a CBP agent during a meeting with Amtrak for the purpose of "memorialize[ing] the discussion and outcomes of the meeting."  In terms of the "'actual use'" of the agent's notes, the court concludes that its "in camera review of the document persuades [it] that this document was likely intended for some official agency use," because "the document is labeled, the date is written out, the full names of the individuals in attendance are listed along with their titles and affiliations, there are section headings, every sentence is complete, and the document is formatted neatly."  Accordingly, "[e]very indication is that this is a document that the author spent some time producing for use by other agency personnel, strongly tipping the balance toward it being an agency record."  With respect to the "maintenance of the document," the court concludes that an unsworn letter written by defendant's counsel which represents that the agent's notes "were 'generated by one employee and maintained by him exclusively'" in his personal files and not incorporated into CBP's records systems, is insufficient to support the agency's burden to show that the notes were not agency records.  Based on a totality of the circumstances, the court concludes that this document is an agency record and also concludes that it is responsive to plaintiffs' FOIA request.

6. Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept. 30, 2011) (Gómez, J.)

Re:  Requests for records pertaining to the applicability or inapplicability of the U.S. federal statute of limitations to taxpayers who take the position that they are bona fide residents of the U.S. Virgin Islands for purposes of income tax

Holding:  Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction

• Exemption 3:  Upon conducting an in camera review, the court adopts the magistrate's recommendation which found that the IRS properly invoked Exemption 3 in conjunction with 26 U.S.C. § 6103(a) to withhold certain records that contain third parties' tax return information.  The court also adopts the magistrate's finding that the IRS properly withheld "drafts of the working agreement between the United States and the Virgin Islands concerning the exchange of taxpayer information, requests for an exchanges[sic] of information, and requests made under the working agreement" under 26 U.S.C. § 6105(c)(1)(E), which protects "tax-convention information."  The court concludes that "[t]he IRS has demonstrated that there is a tax convention between the Virgin Islands and the United States" and that "[t]he parties to this agreement have treated exchanges of information relating to this agreement as confidential." 

• Exemption 5 (deliberative process, attorney-client & work-product privileges):  The court adopts the magistrate's recommendation that, with one exception, all the documents for which Exemption 5 was asserted "were validly withheld because they either contain privileged information or fall within another exemption."  The court notes that "[w]hile some of the documents contain factual material, that material is so intertwined with the analysis that any attempt to reveal only factual material would reveal the agency's deliberations."  However, the court finds that one document "contains mainly factual data" and "the IRS has failed to satisfy its burden with respect to this document."  With regard to plaintiff's argument that no privilege can apply to "communications between the IRS and the [National Tax Advocate]" because it is "'an independent office established by Congress with interests and a mission often adverse to that of the Service,'" the court finds that, because "the NTA reports directly to the Commissioner of Internal Revenue" and "the NTA attorneys are part of the IRS Chief Counsel staff," these communications "are privileged." 

• Exemption 6:  The court adopts the magistrate's finding that the IRS properly withheld a portion of a document under Exemption 6 "because it contains the personal information of an employee."  The court notes that plaintiff "has not challenged the withholding of this document and asserts no public interest in its disclosure."

• Exemptions 7(A) & 7(E):  Based on its in camera review, the court adopts the magistrate's recommendation that certain records were properly withheld pursuant to Exemptions 7(A) and 7(E) because "they either contain information which could interfere with ongoing law enforcement proceedings or which would reveal law enforcement techniques or fall within another exemption." 

WEEK OF OCTOBER 10

Courts of Appeal

1.  Williams v. Comm'r of Internal Revenue, No. 11-30008, 2011 U.S. App. LEXIS 20627 (5th Cir. Oct. 11, 2011) (per curiam)

Re:  Request for documents about an internal IRS investigation conducted as a result of plaintiffs' allegations of misconduct

Holding:  Affirming district court's grant of summary judgment to defendant on the grounds that the IRS properly withheld records pursuant to Exemption 7(C)

District Courts

1.  Bryant v. CIA, No. 09-0940, 2011 U.S. Dist. LEXIS 118841 (D.D.C. Oct. 14, 2011) (Sullivan, J.) (revised mem. op. to correct clerical error in Sept. 30, 2011 decision)

Re:  Request for cases of UFO encounters occurring since 1986; at issue is plaintiff's motion for reconsideration of the court's denial of his request for attorneys' fees

Holding:  Denying plaintiff's motion for reconsideration of the court's denial of his request for attorney's fees

• Litigation considerations/attorney fees:  The court denies plaintiff's motion for reconsideration which asked the court to reconsider its denial of his request for attorney's fees.  Focusing on the entitlement factors for attorney's fees under FOIA, the court finds that "[t]he crucial defect in plaintiff's request for attorneys' fees is that plaintiff, in both the initial request and again in this motion for reconsideration, fails to provide the Court with any basis for determining that the specific documents he obtained as a consequence of this litigation confer some benefit to the public."  The court further notes that where "'there was no public benefit to the litigation, an award of attorneys' fees and costs is unwarranted.'"  As such, the court concludes that "[e]ven assuming that the remaining factors – which evaluate whether plaintiff seeks to gain a commercial or personal benefit from the requested materials and whether the agency had a reasonable basis for not disclosing the material – would otherwise weigh in favor of an award of attorneys' fees, such a determination would not overcome the Court's conclusion here."  Additionally, the court rejects plaintiff's claim that he was entitled to fees based on the fact that the agency, after first denying him representative of the news media fee status, ultimately granted him that fee status.  The court finds this "provide[d] merely a personal benefit to plaintiff."

2.  Bond v. L.A. Cnty. Assessors Office, No. 10-08739, 2011 U.S. Dist. LEXIS 119138 (C.D. Cal. Oct. 14, 2011) (Klausner, J.)

Holding: Ordering plaintiff to show cause as to why his FOIA action brought against a local government entity should not be dismissed for lack of subject matter jurisdiction

3.  Venkataram v. Office of Info. Policyy, No. 09-6520, 2011 U.S. Dist. LEXIS 118661 (D. N.J. Oct. 14, 2011) (Simandle, J.)

Re:  Request for records pertaining to the indictment and subsequent cancellation of an indictment for a third party; at issue is the DOJ's response to the court's order to show cause as to why this matter should not be remanded to DOJ for further determinations

Holding:  Remanding matter to DOJ for a more particularized analysis of plaintiff's FOIA requests

• Exemptions 6 & 7(C) Glomar:  The court rejects DOJ's arguments in response to its order to show cause which sought the continued application of an Exemption 6 and 7(C) Glomar in connection with a request for law enforcement records related to a third party.  For one, the court concludes that "Defendant's argument that EOUSA's policy of categorical non-disclosure [for requests for records pertaining to third parties] is entitled to deference is without merit and unsupported by the plain statutory language" of the FOIA.  The court notes that "Defendant is in essence arguing that the Court give deference to EOUSA's policy interpreting the exemptions under (b)(6) and (b)(7) of FOIA, " but finds that "[t]his argument is contrary to the plain language of the statute which grants the court de novo review of an agency's refusal to disclose requested records."  Second, the court finds unavailing defendant's assertion that the Glomar response is "necessary because confirmation of the documents would associate [the third party] with criminal activity and denial of the documents would allow adverse inferences to be drawn."  Rather, the court finds that "[d]isclosure of the requested records would not associate [the third party] 'unwarrantedly with alleged criminal activity' because [he] is already associated with such criminal activity by virtue of his indictment."  Moreover, the court observes "it is hard to see any privacy rationale at stake for an individual such as [the subject of the request] who was actually indicted for the criminal activity associated with the requested documents."  The court finds that "[i]t is only when the privacy concerns addressed by an exemption are present that the requestor must establish a sufficient reason for the disclosure."

4.  Advocates for Highway & Auto Safety v. Fed. Highway Admin., No. 98-306, 2011 WL 4840463 (D.D.C. Oct. 13, 2011) (Roberts, J.)

Re:  Request for videotapes showing faces of commercial motor vehicle drivers who took part in a research study on driver fatigue from 1989 to 1996

Holding:  Denying, without prejudice, both parties' motions for summary judgment; and ordering parties to make additional submissions to further discuss the public and privacy interests involved

• Exemption 6:  As a threshold matter, the court notes that "[b]oth parties agree that the videos at issue are 'similar files' within the meaning of Exemption 6."  The court then identifies the public interest in the disclosure of the tapes.  For one, the court notes that "despite the passage of some time since the conclusion of the study and the initiation of the instant action," "[t]he study retains importance in the field and has informed successive [Department of Transportation] rulemakings on hours of service of drivers."  The court finds that "[w]hen [as here] an agency relies on information in formulating a rule, there is a strong public interest in disclosing the underlying information, even if it relates to particular individuals."  Moreover, the court determines that "releasing the videotapes will reveal information as to government expenditures on a project of substantial scale and expense," noting that "the videos were gathered as part of a study which spanned seven years and cost $4.5 million."  Lastly, the court finds that although plaintiff has not demonstrated misconduct as to the methodology used in the study, it "raises a legitimate question as to the manner in which relevant data [about whether the subjects of the study appeared drowsy] were extracted from the videos."  As such, the court concludes that "[t]he public has an interest in the accuracy of this method." 

On the other hand, the court finds that "the drivers have a privacy interest in their videotaped images from the study" to the extent that they reveal "personal details, captured up close and over a prolonged period of time, [which] are not generally available in the ordinary course of daily life."  Additionally, the court finds that "[t]he driver's privacy interest is bolstered by the privacy guarantee contained in the form each driver signed."  However, the court notes that while "[a]ssurances of confidentiality are to be accorded some weight in assessing privacy interest under FOIA Exemption 6, . . . such promises do not necessarily prohibit disclosure."  Here, "each driver was promised that his 'name will not be used' and that the results of the study would be identified only 'by code number to maintain your privacy.'"  The court observes that, under a narrow view, "[r]eleasing the videotapes along with corresponding code numbers could violate the privacy pledge . . . , but mere release of the videotapes, with all code number information redacted, might not."  Conversely, taking a broader view, "[r]eleasing the videotapes could directly violate the privacy pledge . . . by subjecting the drivers' images to public view."  The court concludes that "[t]he privacy protected by the form lies between the two extremes" and determines that "[t]he evidence does not show that [the drivers' privacy interests are] so overwhelming as to settle the matter in [the Federal Highway Administration's (FHWA'S)] favor as a matter of law."  Additionally, the court finds that although "FHWA alleges that drivers who are shown to be drowsy or drifting at the wheel might face difficulty in obtaining future employment," the court finds that "FHWA has not presented any evidence that the drivers' current or future employment would be at risk."  Moreover, the court finds that the risk of embarrassment to drivers who appeared drowsy at the wheel "only slightly enhances the drivers' privacy interests" and also concludes that "there is no evidence of a serious threat of harassment to any participant driver."  Lastly, the court finds that "FHWA has failed to provide evidence that releasing the videotapes will chill future studies."  The court finds that "[t]he belief that disclosure might impair the government's ability to acquire similar information in the future carries no weight under FOIA Exemption 6, which focuses on individual privacy interests."  In conclusion, the court holds that "the drivers' privacy interest in the videotapes are more than de minimus and sufficient to withstand summary judgment for [plaintiff], but insufficient to warrant summary judgment for FHWA."  As such, the court denies both parties' motions for summary judgment without prejudice and orders them to submit "specific additional evidence reflecting the weight of the public interest, particularly the present relevance of the study's methodology, and the weight of the privacy interest, particularly the scope of the confidentiality promised and the likelihood of threats of harassment or liability to the drivers who took part in the study."  

5.  Media Research Ctr. v. DOJ, No. 10-2013, 2011 WL 4852224 (D.D.C. Oct. 13, 2011) (Huvelle, J.)

Re:  Requests for records related to involvement of former Solicitor General Elena Kagan in drafting or opposing legal challenges to the Patient Protection and Affordable Care Act

Holding:  Granting DOJ's motion for summary judgment on the basis that it conducted an adequate search for responsive records, it properly determined that certain records were not "agency records" for FOIA purposes, and it properly invoked Exemption 5

• Adequacy of search:  The court concludes that DOJ "demonstrated that the search was reasonably calculated to uncover relevant materials" and therefore was adequate.  The court rejects plaintiffs' claim that the search was inadequate because it failed to uncover records "relating to (1) one meeting that S.G. Kagan mentioned attending and (2) the Attorney General's morning meetings, which S.G. Kagan indicated that she attended in the 'first three or so months of 2010.'"  Instead, the court finds that "[p]laintiffs' argument, that the topics within the FOIA request must have been discussed at these meetings and that records related to this must have exist, is simply conjecture and is therefore insufficient to justify a finding that the search was inadequate."  As to plaintiffs' assertion that the search should have entailed the "files of the Attorney General," the court determines that "this does not render the search inadequate where, as here, DOJ has demonstrated that its decision to search the files of . . . three [specific Office of Solicitor General] individuals was reasonably calculated to uncover relevant documents."  The court also notes that "an agency's search is not presumed unreasonable because it fails to find every potentially responsive document."  Similarly, the court finds that DOJ's decision not to use certain search terms does not render the search inadequate.  The court observes that "plaintiffs' FOIA requests did not 'set forth a discrete list of search terms, and even if [either plaintiff] had included such a list, there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request.'"

• Procedural/agency records:  The court holds that the certain e-mails which contain communications "created or received by S.G. Kagan in her capacity as a judicial nominee for the U.S. Supreme Court" do not qualify as agency records for purposes of the FOIA.  At the outset, the court observes that under the Supreme Court's decision in DOJ v. Tax Analysts "'[d]ocuments qualify as 'agency records' subject to FOIA disclosure if they are (1) created or obtained by an agency, and (2) in the agency's control.'"  Furthermore, citing the D.C. Circuit in Bureau of National Affairs v. DOJ, the court notes that "'in cases [such as this one] . . . where documents are created by an agency employee and located within the agency, use of the documents becomes more important in determining the status of the document under FOIA.'"  Here, "S.G. Kagan's correspondence was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective."  The court concludes that "the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not 'agency records.'"

• Exemption 5 (attorney work-product privilege):  The court concludes that DOJ properly invoked the attorney work-product privilege to withhold portions of six pages.  With respect to redacted e-mails that discuss "specific, imminent litigation," the court finds no support for plaintiffs' argument that DOJ should disclose or provide additional justification for withholding "small amount[s] of information."  As to two redacted e-mails concerning "possible litigation related to the health care reform legislation," the court concludes that contrary to plaintiffs' contention, DOJ is not required to point to specific litigation in order to invoke the attorney work- product privilege.  The court comments that "when government attorneys act as 'legal advisors' to an agency considering litigation that may arise from challenge to a government program, a specific claim is not required to justify the assertion of this privilege."  Rather, "the privilege may be invoked if the agency documents were prepared 'because of the prospect of litigation' and by attorneys who 'subjective[ly] belie[ved] that litigation was a real possibility, and that belief [was] objectively reasonable.'"  Here, the court finds that "DOJ has explained – and the redacted material makes clear – that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge." 

6. Raher v. BOP, No. 09-CV-00526, 2011 WL 4832574 (D. Or. Oct. 12, 2011) (Stewart, Mag.)

Re:  Request for five categories of records pertaining to the solicitation, evaluation, and award of BOP contracts to provide, maintain, and operate private detention facilities for foreign nationals serving criminal sentences imposed by the federal courts

Holding:  Denying plaintiff's motions for sanctions; and denying plaintiff's request for discovery

• Litigation considerations/sanctions:  The court denies plaintiff's motion for sanctions under Federal Rule of Civil Procedure 11 brought against BOP and its counsel based on the agency's decision to withhold records under former "High" 2 and Exemption 4.  With respect to sixteen pages out of 8,000 pages of information that were initially withheld under Exemption 2 and later produced pursuant to the court's order, the court concludes that "any failure by BOP to [segregate and] disclose these few pages [initially] is nothing more than inadvertent and not sanctionable under Rule 11."  Similarly, the court "declines to impose a Rule 11 sanction against BOP or its counsel" for its decision to withhold pricing information under Exemption 4 that was later found to exist in the public domain.  The court determines that "there is no basis to conclude that BOP had any reason to know" that a state agency had made this information publicly available until it was brought to its attention by other parties to this action.  Additionally, the court rejects Rule 11 sanctions on the basis that "BOP took affirmative steps to prevent discovery that [plaintiff] believes would have helped him refute misleading allegations."  Rather, the court holds that "[g]iven [the] high bar to obtaining discovery in FOIA cases, BOP reasonably objected to [plaintiff's] motion to compel discovery and prevailed" and, accordingly, plaintiff failed to show "any unnecessary delay to justify Rule 11 sanctions caused by BOP opposing his discovery request."  Moreover, contrary to plaintiff's arguments, the court finds that it "has no basis to find that BOP and its counsel acted unreasonably by not reviewing every document at issue."  Rather, the court concludes that "performing a representative sampling is an inherently reasonable method of reviewing documents not only by the court, but also by BOP, its employees and counsel."  The court also denies plaintiff's Rule 56(h) motion for sanctions against BOP and the defendant-intervenor on the basis that their declarations "were submitted in bad faith."  The court declines to "impute knowledge" to defendants of the public availability of the withheld pricing information and finds no evidence that any of the parties willfully misled the court.  The court also denies plaintiff's motion for sanctions on the basis of bad faith brought against BOP, the defendant-intervenor, and their counsel under 28 U.S.C. § 1927.  Based on the foregoing, the court also declines to sanction the defendants based on its "inherent authority," noting that "the requisite bad faith to impose sanction is absent."  

• Litigation considerations/discovery:  The court denies plaintiff's request for "discovery to show that sanctions are appropriate," and, specifically, to depose defendants' declarants.  The court notes that it "is not persuaded discovery is necessary to ferret out any alleged wrongdoing."   

7. Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal, Mag.)

Re:  Request for copy of plaintiff's alien registration file

Holding:  Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims

• Litigation considerations/proper party defendant:  The court dismisses plaintiff's FOIA claims brought against individuals, noting that "[i]n actions arising under FOIA, the proper defendant is . . . the federal agency, not the individual employees of that agency."  The court also notes that "Plaintiffs have offered no case law in support of their claim that as a matter of law a pattern and practice challenge under FOIA should be treated differently than a typical FOIA case."  Accordingly, the court finds that U.S. Citizenship and Immigration Services (USCIS), "the sole agency named by Plaintiffs as responsible for the FOIA violations," "is the proper defendant."

• Litigation considerations/proper party plaintiff:  The court finds an immigration attorney who did not submit the instant request, but has made requests to USCIS on behalf of his clients over the years "has standing to assert his pattern or practice claims under FOIA."  The court finds that "[t]he fact that [this individual] continues to work as an immigration attorney who sometimes needs to request copies of his client's alien registration files pursuant to FOIA is as sufficient now as it was over twenty years ago when he first filed suit against INS to seek enforcement of FOIA's timing requirements."    

• Litigation considerations/declaratory & injunctive relief:  The court awards summary judgment to plaintiffs on the basis that they have "establish[ed] a pattern or practice of FOIA violations" by USCIS's actions in repeatedly exceeding the twenty-day response time for requests.  The court finds that "[d]efendants have not offered evidence to the contrary, pointed out inconsistencies in the record that would suggest a genuine issue of fact for trial, or come forward with even assertions that USCIS is in compliance with the timing requirements of FOIA."  With respect to plaintiffs' request for a permanent injunction, the court notes that such relief is available "in order to remedy a pattern and practice of FOIA violations by an agency where there is 'a probability that alleged illegal conduct will recur in the future.'"  Here, the court finds that injunctive relief is warranted based on the "repeated occurrence of the delays and lack of any indication by Defendants of efforts to cease such violations in the future," "the history of past violations by USCIS and its predecessor agency," and the fact that "the effect on the public of disclosure or nondisclosure is substantial where the information sought is not available through any other means."  Based on these findings, the court grants plaintiffs' request for injunctive relief and "require[es] USCIS to:  1) provide a copy of the requestor's file within the twenty-day time limit mandated by 5 U.S.C. § 552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. § 552 (a)(6)(B) if an extension of time is needed due to 'unusual circumstances.'" 

• Mootness:  The court rejects defendant's contention that plaintiffs' claims regarding "the denial of Hajro's expedited request, the failure to respond within the 20-day statutory time limit, and the failure to notify Hajro of any 'unusual circumstances' that would warrant an extension" are moot.  Rather, the court finds that "Plaintiffs' claims are not moot insofar as they raise the specter of a pattern or practice that remains unaddressed, even as the particular requests originally forming the basis for the challenge are no longer active."  Furthermore, the court determines that "[t]he likelihood that USCIS will repeat the same violations against Plaintiffs and in the broader application of its responses to such requests militates against a finding of mootness."

• Exemption 5 (deliberative process privilege):  The court concludes that USCIS has not justified its decision to withhold in full certain handwritten notes "'generated during the deliberative process engaged in by the Service regarding the adjudication of [Hajro's] application for citizenship'" pursuant to Exemption 5.  Although the court finds that the Vaughn Index demonstrates that USCIS "has legitimate concerns that disclosure of the notes risks disturbing and publicizing deliberative process that is essential to an investigative and adjudicative proceeding such as involves the naturalization determination," it concludes that "USCIS has failed to substantiate this legitimate concern with any detailed affidavit or even a description of what type of material the notes cover and, in a non-conclusory manner, their role in the agency's process."  Additionally, the court comments that "USCIS has not set forth any basis for the court to evaluate whether, taking into account the deliberative process as a whole, relevant factual information contained in the handwritten notes may be disclosed without revealing the mental process of the decisionmaker."  As such, "the court finds it reasonable to require USCIS to isolate the [specific] factual information requested [by Hajro regarding his military service] and disclose it."  

• Administrative Procedure Act (APA) claim:  With respect to plaintiffs' claim that USCIS improperly withheld records pursuant to the APA, "the court agrees with Defendants that Plaintiffs' claims under the APA may not stand," "[b]ecause FOIA provides an adequate remedy."

• Litigation considerations/settlement agreement, APA & FOIA claim:  The court awards summary judgment to plaintiffs on their claim that USCIS's FOIA policy and regulations establishing certain processing tracks violates a 1992 settlement agreement between the immigration attorney plaintiff and USCIS's predecessor agency concerning expedited processing of certain FOIA requests.  The court also concludes that this policy "was promulgated in violation of the APA and FOIA" because it was adopted "without opportunity for receipt of public comment" as required by5 U.S.C. § 552(b)(3)(A) and 5 U.S.C. § 552(a)(6)(D)(i).

8. Negley v. FBI, No. 03-2126, 2011 WL 4793143 (D.D.C. Oct. 11, 2011) (Kessler, J.)

Re:  Request for records pertaining to plaintiff located at the FBI's San Francisco Field Office; at issue is plaintiff's motion for an award of attorneys' fees and costs and his supplemental request for attorneys' fees for the work related to the fee petition

Holding:  Granting plaintiff's motion for an award of attorney's fees; and directing parties to provide additional information in order for the court to determine the proper amount of attorneys' fees as well as attorneys' fees based on the preparation of the fee petition

• Attorney fees & costs:  The court grants plaintiff's motion for an award of attorneys' fees.  At the outset, the court notes that the FBI has conceded that plaintiff has "substantially prevailed" with respect to records produced in response a prior opinion by the court.  As to FOIA's entitlement factors for fee awards, the court notes that the "first factor 'requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought.'"  Under the first factor, the court finds that "[p]laintiff fails to explain or offer any evidence that the documents that he sought about himself and/or his company would in any way 'add to the fund of information that citizens may use in making vital political choices.'"  Indeed, plaintiff "does not even discuss the nature of the documents that he has sought and received."  However, the court agrees with plaintiff that the public has benefited from the this case, because "this litigation has produced 'extraordinary information regarding how the FBI maintains its records and the baseline methods by which it will search for and respond to FOIA requests, unless a FOIA requester has information to demand otherwise.'"  The court finds that "[t]his information is indeed 'valuable' for future FOIA requesters and litigants."  Noting that this is the first FOIA attorneys' fees case to "address this anomaly," the court concludes that "[w]hile the disclosures may not be in the traditional form of a document, the information made public in this case resulting from [plaintiff's] FOIA request and subsequent litigation, will enable citizens to more effectively and knowledgeably use the FOIA to obtain information to which they are entitled," and therefore "the public has derived great benefit from the litigation in this case." 

With respect to the commercial benefit to plaintiff and the nature of his interest in the records, the court concludes that "given the sparseness of the record and the purely commercial and personal interest of the Plaintiff, factors two and three do not weigh in favor of awarding him attorneys' fees."  As to the fourth factor, i.e., the reasonableness of the agency's withholdings, the court notes that it "has made ample findings [in this case] demonstrating Defendant's failure to carry its burden of proving that it had a colorable or reasonable basis for refusing to disclose documents and conduct certain searches."  The court concludes that "[t]he FBI's conduct 'was exactly the kind of behavior the fee provision was enacted to combat'" and, accordingly, "the fourth factor weighs in favor of awarding Plaintiff his attorneys' fees and costs."  In terms of the amount of attorneys' fees to which plaintiff is entitled, the court orders the parties to make additional submissions to explain their positions and notes that the "[p]arties should be aware that the Court will award attorneys' fees based upon the applicable Laffey Matrix rates for any given year."  With respect to plaintiff's supplemental request for attorneys' fees based upon the work related to the instant fee petition, the court reduces the figure for billing that is insufficiently detailed.  The court directs plaintiff "to submit an explanation for the amount of time devoted to settlement discussions" and finds that the amount of time must be deducted.  The court also reduces the final award figure by twenty percent for excessive time spent on drafting the motion for attorneys' fees.

WEEK OF OCTOBER 17

District Courts

1.  Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.)

Re:  Request for documents related to the denial of plaintiff's non-immigrant visa

Holding:  Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees

• Adequacy of search:  The court concludes that the State Department's "Third Declaration successfully establishes the adequacy of the Department's searches in response to [plaintiff's] FOIA request" where it "clearly identifies who performed the searches, as well as their qualifications and experience," "explains how the searches were performed," and "provides the terms it used to search the records systems."   In sum, the court finds that State's supplemental declaration "is neither conclusory nor lacking in detail" and concludes that "[t]he record clearly demonstrates a good faith effort on the part of the Department to respond to [plaintiff's] FOIA request 'using methods which can be reasonably be expected to produce the information requested.'"  As such, the court denies plaintiff's request for discovery with respect to the sufficiency of the search.

• Exemption 3:  The court holds that the State Department properly withheld certain consular records pursuant to Exemption 3 in connection with Section 222(f) of the Immigration and Nationality Act, which "forbids [defendant] from disclosing information pertaining to the issuance or refusal of Visas to the public."  As an initial matter, the court notes that this "statute has already been held to qualify as a withholding statute under Exemption 3."  Second, the court finds that the additional declaration provides sufficient information to "successfully demonstrate[ ] the applicability of the claimed exemptions." 

• Reasonably segregable:  The court concludes that "the Department has discharged its obligation to provide [plaintiff] with all the information that is 'reasonably segregable'" where the supplemental declaration "carefully outlines, on a document-by-document basis, the process by which the Department conducted it segregability determinations."  Additionally, the court notes that when the agency relies on Exemption 3 as a basis for withholding information, as the State Department did here, "the scope of the exemption is not provided in the text of FOIA itself, but rather by the disclosure-prohibiting statute made applicable by the exemption."  Here, the court comments that it "is mindful that while an agency must provide a 'detailed justification' for the non-segregability of any material withheld, an agency is also constrained by the need to avoid compromising 'the secret nature of potentially exempt information.'"  Referencing a D.C. Circuit case involving the Immigration and Nationality Act, which was cited as a basis for withholding in this case, the court observes the broad reach of Section 222(f), which "effectively prevents visa applicants from obtaining any materials beyond those that had at one time or another been in the applicant's possession." 

• Litigation considerations/in camera review:  Noting that in camera review is generally only available "'when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims, and when evidence of bad faith is before the court,'" the court concludes that "[n]either circumstance is present here."  Rather, the court finds that the State Department's supplemental declaration "adequately describes the segregability analysis undertaken and provides sufficiently detailed justifications for the non-segregability of each document," and, additionally, "there is no bad faith on the part of the Department."  

• Attorneys fees:  The court denies plaintiff's request for attorneys' fees.  Noting that although it "appreciates that the delays encountered by [plaintiff] were frustrating," the court concludes that "[i]n a case such as this one, where the Department has performed adequate searches for documents responsive to [plaintiff's] FOIA request, has properly applied exemptions and has presented evidence of a carefully-conducted segregability analysis, an award of attorneys' fees to [plaintiff] would be inappropriate." 

2.  Torres-Montalvo v. Keith, No. 11-161, 2011 WL 5023271 (S.D. Tex. Oct. 17, 2011) (Owsley, Mag.)

Holding:  Denying plaintiff's motion brought pursuant to 5 U.S.C. § 552(b)(7)(D) to seal court opinions related to his habeas corpus petition; and noting that "the Freedom of Information Act is inapplicable to decisions issued by federal courts and any argument to refrain from any issuance of an opinion based on § 552(b)(7)(D) fails" 

3.  Taitz v. Ruemmler, No. 11-1421, 2011 WL 4916936 (D.D.C. Oct. 17, 2011) (Lamberth, J.)

Re:  Request for certified copies of the long form birth certificate of President Barak Obama currently in possession of White House Counsel

Holding:  Granting defendant's motion to dismiss; and dismissing plaintiff's suit with prejudice because the White House Counsel's Office is not subject to the FOIA

• Litigation considerations/proper party defendant:  The court grants defendant's motion to dismiss on the basis that the "FOIA does not apply to the White House Counsel's office."  The court notes that "while the textual definition of 'agency' contained in 5 U.S.C. § 552(f) is seemingly broad enough to cover any Executive agency, the Supreme Court has long held that the President's personal staff and advisors are not 'agencies' subject to FOIA requests."  The court finds that "[t]he White House Counsel's Office is one such office that is not subject to FOIA, because the Office's sole responsibility is to render legal advice to the President."  The court rejects plaintiff's argument that defendant's predecessor's participation in a press conference in which he announced the release of and intent to safeguard the birth certificate for the President demonstrated "sufficient independent authority from the President to warrant agency treatment under FOIA."  Rather, the court maintains that "[t]here is no reason to believe that the Office of the White House Counsel's involvement in the release and continued retention of the birth certificate is independent in any sense or outside the traditional auspices of the office." 

4.  Taitz v. Astrue, No. 11-402, 2011 U.S. Dist. LEXIS 119453 (D.D.C. Oct. 17, 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:  Denying plaintiff's Rule 59(e) motion for reconsideration

• Litigation considerations/motion for reconsideration:  At the outset, the court notes that "motions [for reconsideration brought under Federal Rule of Civil Procedure 59(e)] are 'disfavored' and are reserved for 'extraordinary circumstances'" where the moving "party must show that 'there has been an intervening change of controlling law, that new evidence is available, or that granting the motion is necessary to correct error or to prevent manifest injustice.'"  The court rejects plaintiff's claim that President Obama's posting of his 2009 tax return constitutes "new evidence" that "undermines [his] privacy interest in Form SS-5 for the social security number at issue" in this case, given that the tax return was posted "well before plaintiff filed her complaint."  The court also dismisses plaintiff's contention that "the Court erred in declining to consider as evidence her allegation that she used the Selective Service System's online registration verification service to confirm the President's use of" a given Social Security number.  The court finds that "[e]ven if true, this evidence would not undermine the President's privacy interest in the Form SS-5, and does nothing to 'warrant a belief by a reasonable person that the alleged government impropriety,' namely the President's purportedly fraudulent use of the number, 'might have occurred.'"  The court likewise finds that other documentation submitted by plaintiff does not support any evidence of wrongdoing.  Additionally, the court rejects plaintiff's various claims alleging "clear error" and "manifest injustice," concluding that "[n]one of plaintiff's arguments provides this Court any doubt that reconsideration would be inappropriate." 

WEEK OF OCTOBER 24

District Courts

1.  Eckardt v. Clerk of Cir. Ct. of Tenth Judicial Circuit of Ill., No. 11-CV-1243, 2011 U.S. Dist. LEXIS 124452 (C.D. Ill. Oct. 27, 2011) (Mihm, J.)

Re:  Request to Clerk of Illinois State court for plaintiff's juvenile file

Holding:  Adopting magistrate's recommendation, and dismissing plaintiff's FOIA claim for lack of subject matter jurisdiction

• Litigation considerations/proper party defendant: Adopting the magistrate's recommendation, the court dismisses plaintiff's FOIA claim brought against a state employee for lack of subject matter jurisdiction.  The court finds that "a suit against the Clerk of the Court of Tazewell County cannot proceed under the Federal Freedom of Information Act . . . because the statute is inapplicable to an Illinois state agency and its officer" and "the Clerk is not an 'agency' for purposes of the Federal FOIA." 

2.  Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 10-750, 2011 WL 5075102 (D.D.C. Oct. 26, 2011) (Boasberg, J.)

Re:  Requests to Office of Legal Counsel (OLC) concerning guidance on records keeping and certain records pertaining to the storage and retention of staff e-mails; at issue is plaintiff's motion for attorneys' fees and costs

Holding:  Granting plaintiff's motion for attorneys' fees and costs

• Attorney fees:  The court grants plaintiff's motion for attorneys' fees and costs.  First, the court finds that a scheduling order proposed by DOJ and adopted by the court which "required Defendant to complete processing of and produce all non-referred, non-exempt documents by a specified date" constituted a "'a judicial order, or an enforceable written agreement or consent decree,'" which qualified plaintiff as eligible for fees under the FOIA.  The court finds that the fact that defendants proposed the scheduling order, rather than plaintiff, is without consequence.  Moreover, the court determines that "[d]espite Defendant's attempt to characterize the order as mere 'housekeeping,' it does not simply 'require the parties to meet and confer and then submit a joint status or scheduling report.'"  Rather, "[i]t affirmatively requires the processing and production of documents by a certain date."  Additionally, the court rejects DOJ's argument that plaintiff "did not obtain the relief it sought because it desired the 'immediate' release of documents and 'immediate' release was not ordered."  The court finds that the FOIA requires that "[a] party must 'substantially prevail,' not 'precisely prevail'; [and] as a result, [plaintiff] need not obtain an ordering granting relief in language identical to that used in its complaint."

Next, applying the four attorney-fee entitlement factors, the court finds that plaintiff is also entitled to receive such an award.  The court notes that "[a]s a threshold matter, it is uncontested that factors (2) and (3) – the 'commercial benefit' and 'plaintiff's interest' factors, which 'are closely related and often considered together,' – favor [plaintiff.]"  The court concludes that "[b]ecause [plaintiff] derived no commercial benefit from its requests and sought these records in its public-interest capacity, . . . the second and third categories militate strongly in favor of a fee award."  The court also determines that the first factor, i.e., "the 'public benefit derived from the case,' – also weighs in [plaintiff's] favor."  The court notes that "the first request was intended to 'inform the public about whether and to what extent the destruction of these email[s] may have violated DOJ policy and federal laws,' and the second was intended to determine 'to what extent the destruction of emails was limited to [a former DOJ attorney's] role in drafting the terror memoranda and may have been the result of willful actions.'"  Additionally, the court notes that, by granting plaintiff's request for expedited processing of one of its requests, "DOJ acknowledged that the question involved was a 'matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity, which affect public confidence."  Furthermore, the court finds that "[t]he requested documents . . . were not available to the public prior to [plaintiff's] requests" but, as a result of plaintiff's requests, "are now publicly available on its various websites."  The court also determines that the fact that the released "'emails shed no light on what [the former DOJ attorney] did for the Department of Justice' itself sheds light on the extent to which email may have been purposefully destroyed."  Although "[t]he fourth factor – the reasonableness of the agency's withholding – is a closer call," the court concludes that "[i]t is undisputed that OLC failed to meet [the FOIA's statutory] deadlines, and it has not provided any 'reasonable basis in law' for doing so."  The court comments "[w]hile OLC was working with [plaintiff] on the first request and the delay does not seem to have resulted from bad faith on its part, the agency's failure even to respond is hardly reasonable."  Moreover, "considering this failure in conjunction with the other three factors, the Court finds Plaintiff is entitled to a fee award."  The court then provides the parties with an opportunity to attempt to resolve the appropriate amount of fees owed themselves. 

3.  Plumbers & Gasfitters Local Union No. 1 v. Dep't of the Interior, No. 10-CV-4882, 2011 U.S. Dist. LEXIS 123868 (E.D.N.Y. Oct. 26, 2011) (Amon, J.)

Re:  Request for certain payroll and progress reports related to a government contract, the Gateway National Recreation Area Project; at issue is certain "hours worked" data that was redacted from payroll forms produced by agency in response to the request

Holding:  Denying the Department of Interior's (DOI's) motion for summary judgment, and ordering it to produce the information at issue

• Exemption 4/threshold:  The court holds that "DOI has not carried its burden of justifying its refusal to disclose the 'hours worked' columns on Gateway Project payroll forms" and "orders the DOI to turn over [that] data."  At the outset, the court notes that "[t]he parties agree that the records in question were 'obtained from a person'" within the meaning of Exemption 4.  In terms of the nature of the information at issue, the court finds that "[l]ittle more than common sense establishes that the number of hours an employee works is commercial or financial in character."  The court notes that "the entity whose records [plaintiff] seeks, is a commercial entity" and that "because the number of hours worked is a component of these labor costs, that information relates directly to the commerce in which [the submitter] is engaged." 

• Exemption 4/substantial competitive harm:  The court notes that the parties agree that disclosure would not affect the government's ability to obtain the information in the future, "so only the 'competitive harm' prong [of Exemption 4] is at issue."  The court finds that although it "has little trouble crediting DOI's claim that [the submitter] faces 'actual competition,' .  . . DOI has not demonstrated that [the submitter] faces a likelihood of substantial competitive injury."  The court rejects DOI's argument that the submitter would suffer substantial competitive harm because "a competitor could predict [the submitter's] gross labor costs and undercut them" by using other available data.  Rather, the court finds that "[t]he problem with the DOI and [the submitter's] argument is that the information they claim is confidential has already been disclosed, at least insofar as it could cause competitive harm," "because, as [plaintiff] points out, the DOI did not redact [the submitter's] gross labor costs from the Gateway Project payroll forms."  The court observes that "any competitor could get a generalized sense of the time [the submitter] spends on certain tasks from the information already disclosed."  The court concludes that it is "highly unlikely that further disclosure would confer any competitive advantage, let alone one resulting in 'substantial' competitive injury to [the submitter]." 

4.  Nat'l Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, No. 10 Civ. 3488, 2011 WL 5056989 (S.D.N.Y. Oct. 24, 2011) (Scheindlin, J.)

Re:  Request for records pertaining to Secure Communities, a federal immigration enforcement program; at issue is a particular memorandum containing legal advice and analysis concerning a Secure Communities mandate for which the court ordered defendants to provide additional information

Holding:  Granting plaintiffs' motion for summary judgment, and ordering defendants to release the final version of the memorandum at issue with redactions for material properly protected by the deliberative process privilege, and earlier drafts of the memo redacting only information that does not appear in the final version; and also permitting redactions for names of employees other than agency heads and high-level subordinates that appear in the final version and the earlier drafts

• Exemption 5/deliberative process privilege:  As an initial matter, the court reaffirms its earlier decision, which concluded that the majority of the memorandum at issue is not protected by the deliberative process privilege, noting that now "it is even clearer that the document was used to justify an already decided policy, rather than to persuade parties debating a policy shift." 

• Exemption 5/attorney-client privilege:  As a threshold issue, the court notes that "it is undisputed that the memo constitutes communications between a client ([Immigration and Custom Enforcement (ICE)] policymakers) and its attorney (the office of the legal advisor)."  Contrary to plaintiffs' argument that the memo contains "post-hoc legal rationale [that] is . . . not protected 'legal advice,'" the court finds that the "the fact the agency may have already adopted a policy that Secure Communities would be mandatory does not mean that a memorandum containing legal analysis of the Secure Communities mandate does not constitute legal advice." 

• Exemption 5/waiver:  The court "adopt[s] the D.C. Circuit's reasonable burden-shifting formula" whereby "'a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld'" and, once plaintiff has met this burden, "the agency must then meet its burden of proof to establish the exemption."  Here, the court notes that "[p]laintiffs have produced evidence showing that ICE officials discussed [in both general and specific terms] the legal justification for making Secure Communities mandatory with elected officials, immigrant advocates, and other law enforcement agencies at various times during 2010 and 2011."  Additionally, the court notes that "much of the precise information in the October 2 Memorandum [at issue] has already been produced as part of this litigation."  Moreover, the court finds that "[n]early every component of the October 2 Memorandum appears in some public document or statement by the defendants," "includ[ing] nearly all the factual background, specific references to and discussions of all of the statutes upon which the Memorandum relies, and even significant components of the legal discussion regarding the strengths and weaknesses of the agency's position." 

The court also finds defendant's declaration "is insufficient to carry the agency's burden of proving that ICE has maintained the confidentiality of the Memorandum" where "only senders and recipients who were named on the face of a withheld document were asked whether they had disseminated it outside DHS and its component agencies" and not the other individuals who had received it.  The court also determines that ICE did not demonstrate that the standard for invoking the attorney client privilege, "which extends only to 'agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication,'" was satisfied.  The court concludes that defendants failed to show that no disclosure of the memo or the legal analysis contained in it was made "to an agent or employee who was not authorized to speak on behalf of ICE about the mandatory nature of Secure Communities."  The court holds that "[g]iven the extensive and specific evidence produced by plaintiffs showing that the factual information, legal analysis, and legal conclusions in the Memorandum have been disclosed to the public, [it] find[s] that ICE has failed to meet its burden of proving that confidentiality was maintained." 

• Exemption 5/adoption:  The court also concludes that the memo was adopted as the agency's working law where the there is evidence that the agency adopted the conclusions and analysis contained in the memorandum, and "the agency has repeatedly reiterated the arguments of the October 2 Memorandum in other documents and discussions with the public."  Moreover, the court finds that, other than asserting that "plaintiffs have failed to meet their burden of proving adoption," "defendants have produced no evidence rebutting the claim of adoption . . . [and] have failed to even dispute plaintiffs' claim that adoption took place."  Accordingly, the court orders that defendants produce the final version of the memo with redactions for material determined to be protected by the deliberative process privilege, as well as earlier drafts of the memo redacting only information that does not appear in the final version, and also permitting redactions for "the names of employees other than agency heads and high-level subordinates that appear in the final Memorandum or the earlier drafts."