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Summaries of New Decisions

Summaries of New Decisions - March 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 MARCH 1

Supreme Court

1.  FCC v. AT&T, Inc., 131 S. Ct. 1177 (U.S. Mar. 1, 2011) (Roberts, C.J.)

Re: Challenge made by AT&T to FCC order denying AT&T's claim that release of records obtained during course of an FCC investigation would violate Exemption 7(C). 

• Exemption 7(C):  The Supreme Court holds that "the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations."  The Court rejects the Third Circuit's finding that "Exemption 7(C) extends to the 'personal privacy' of corporations, since 'the root from which the statutory word [personal] . . . is derived' is the defined term 'person.'"  The Court notes that while the word "'[p]erson' is a defined term in the statute; 'personal' is not" and "[w]hen a statute does not define a term, we typically 'give the phrase its ordinary meaning.'"  The Court finds that in common usage the term "'[p]ersonal' ordinarily refers to individuals" and that the word is not used to "refer[] to corporations or other artificial entities."  The Court finds that the dictionary definition, the statutory language, as well as the legal usage of the term do not support extending the use of the word "personal" to reference corporations. 

Furthermore, the Supreme Court adds that "the purpose and scope of Exemption 7(C) becomes even more apparent when viewed in [the] context" of the "pre-existing FOIA exemptions."  The Court notes that it "has regularly referred to [Exemption 6]," which contains "nearly identical" terminology as Exemption 7(C), "as involving an 'individual's right of privacy.'"  Moreover, the Court finds that "[e]ven if the scope of Exemption 6 is also limited by the types of files it protects, the 'personal privacy' phrase importantly defines the particular subset of that information Congress sought to exempt" and that "because Congress used the same phrase in Exemption 7(C), the reach of the phrase in Exemption 6 is pertinent in construing Exemption 7(C)."  The Court also finds significant that "Congress did not, on the other hand, use language similar to that in Exemption 4" which "pertains to 'trade secrets and commercial or financial information obtained from a person and privileged or confidential."  The Court notes that Exemption 4 "clearly applies to corporations – it uses the defined term 'person' to describe the source of information – and we far more readily think of corporations as having 'privileged or confidential' documents than personally private ones."  Additionally, the Court points to an Attorney General's memorandum to agencies regarding Exemption 7(C) to illustrate that "the Government has long interpreted the phrase 'personal privacy'" as "'pertain[ing] to the privacy interests of individuals.'" 

District Courts

1.  Concepcion v. U.S. Customs & Border Prot., No. 10-0599, 2011 WL 723115 (D.D.C. Mar. 3, 2011) (Urbina, J.)

Re:  Request for records pertaining to "passenger activity" of plaintiff's deceased brother

• Adequacy of search:  The court denies Customs and Border Protection's (CBP's) motion for summary judgment without prejudice where it failed to "demonstrate that responsive documents would not reasonably be found in other records systems [other than its TECS database] or that it searched any other potential sources but found no responsive records."  Although CBP searched the TECS records system and averred that it does not maintain records pertaining to domestic travel, the court notes that plaintiff's request "is not limited to domestic flight records." 

2. Negley v. FBI, No. 03-2126, 2011 WL 696989 (D.D.C. Mar. 1, 2011) (Kessler, J.)

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

• Litigation considerations:  The court denies plaintiff's motion for contempt based on a claim that the FBI failed to process his FOIA request in accordance with the directives set forth in a court order.  Under the terms of the order, the court finds that the FBI's "legal obligation was only to search for and produce specific documents responsive to Plaintiff's 2002 FOIA request," and not, as plaintiff alleges, to search for records asked for in his broader, subsequent request of 2009 of which the court was unaware.  Additionally, the court notes that "[i]n complying with a FOIA request, an agency is not required to search for records which are beyond the scope of the original request" and that "an agency does not violate its FOIA obligations if it fails to produce administrative documents which have been created as a direct result of responding to the request itself."  Additionally, the court concludes that the FBI's "assumption that Plaintiff's 2002 request was limited to documents in existence at the time of his request and within the scope of the request was eminently reasonable." As such, the court determines that the FBI has not violated the court's "reasonably clear and unambiguous Order." 

3.  Cheese v. Env't & Natural Res. Div., No. 10-2223, 2011 U.S. Dist. LEXIS 19393 (D. Md. Feb. 28, 2011) (Legg, J.)

Re:  Request for "information regarding ceding and acceptance of jurisdiction between the United States and Maryland" in connection with three Maryland addresses

• Adequacy of search:  The court holds that the Department of Justice's Environment and Natural Resources Division (ENRD)'s search was adequate where "[i]t reviewed its legislative jurisdiction files related to the State of Maryland; conducted an electronic data search using relevant verbiage related to legislative jurisdiction and Maryland; and conducted a search of the property addresses [listed] in [plaintiff's] FOIA request."  The court finds that "the fact that the information requested could not be produced does not, in and of itself, result in the conclusion that the search was inadequate."  Moreover, plaintiff's "speculative claim that documents responsive to his request were withheld does not undercut the demonstrated reasonableness of the search."  

4.  Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.)

Re:  Request for records showing all money paid by BOP for lawsuits and claims against it

Adequacy of search:  The court finds that BOP's search is adequate where its "supplemental declarations explain the search methodologies employed by the various [BOP] offices in response to plaintiff's FOIA request," describe its search of electronic databases as well as its paper records, and provide additional detail as to how BOP's litigation reports guided its individual searches.  The court concludes that "plaintiff's speculation [as the existence of additional documents] . . .  is insufficient to rebut [BOP's] affidavits showing that its search for responsive documents was adequate."  The court further notes that "indeed, the plaintiff's possession of [certain] monthly [litigation] reports supports the agency's description of its search procedure – and does not 'rais[e] evidence of the defendant's bad faith.'"

Exemption 6:  With respect to BOP's decision to withhold social security numbers, the court finds that these identifiers have "a specific relationship to [an] individual, thus meeting the threshold requirement for Exemption 6 protection" and that "the privacy interest in one's social security number is self-evident."   However, the court finds that BOP has not sufficiently justified its withholding of personal psychiatric/medical information, noting that "while the Court suspects the [BOP's] redactions were likely proper given the substantial privacy interest that exist in one's medical and psychiatric histories and information, the Court cannot simply take [BOP's] word for it."  Accordingly, the court concludes that "the Vaughn index must provide greater specificity concerning how the redacted information falls within that category."  

• Exemptions 6 & 7(C):  BOP did not adequately describe its rationale for redacting certain third party information in five categories of responsive records related to tort claims and litigation.  The court finds that although it "suspects that it would be an invasion of privacy to produce the contact information (e.g., phone numbers, addresses, etc.) of individuals who work for [BOP], . . . the defendant has simply not made the case for non-disclosure."  "[W]hile [BOP] has repeatedly provided the Court with the law that it must apply, it has not provided the Court with sufficient specificity of the underlying facts needed to appropriately apply that legal authority to the case at hand."  Additionally, the court determines that, with regard to BOP's assertion of Exemption 7(C), it "has not sufficiently established – in any of its filings – that the [five categories of documents at issue] were compiled for law enforcement purposes."   

Exemptions 2, 6 & 7(C):  The court holds that, with respect to four categories of responsive documents, BOP has failed to justify its withholdings pursuant to Exemptions 2, 6 and 7(C).  For one, the court finds that BOP "has made no attempt at showing that the information withheld under Exemption 2 – apparently the EEOC file numbers – was for predominantly internal purposes or 'that disclosure may risk circumvention of agency regulation, or that the material relates to trivial administrative matters of no public interest.'"  In fact, the court notes that "in a case such as this one where the number of responsive pages produced climbs above 11,000, the EEOC files numbers may very much be in the public interest as a means for the effective organization and dissemination of the requested information." 

• Litigation considerations:  The court denies plaintiff's request for an Order "directing [BOP] to provide it 'with a spreadsheet, showing the dates, types of cases, locations, how resolved, and amounts paid.'"  The court "agrees with the defendant that the FOIA does not require agencies to 'organize documents to facilitate FOIA responses.'" 

5. Ioane v. IRS, No. 09-243, 2011 U.S. Dist. LEXIS 19564 (D. Nev. Feb. 25, 2011) (Jones, J.)

Re:  First-party request

• Summary judgment:  The court grants defendant's motion for summary judgment on the basis that IRS's affidavits sufficiently justify its withholdings under Exemptions 5, (deliberative process, attorney work product and attorney client privileges), 6, 7(A), 7(C), 7(D) as well as Exemption 3 in conjunction with the Internal Revenue Code sections 6103(a) and 6103(e)(7) and Federal Rule of Criminal Procedure 6(e).  The court notes that plaintiff "produces absolutely no contrary evidence in response [to IRS's affidavits] or any evidence giving any indication of bad faith."

WEEK OF MARCH 7

Supreme Court

1.  Milner v. Dep't of the Navy, 131 S. Ct. 1259 (U.S. Mar. 7, 2011) (Kagan, J.)

Re: Request for records pertaining to Navy documents related to explosive data and maps used in storing munitions at a naval base

Holding:  Reversing and remanding the decision of Ninth Circuit and holding that: "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources." 

Exemption 2:  The Supreme Court reverses and remands the decision of the Ninth Circuit and holds that "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources."  As such, the Court determines that "[t]he explosives maps and data requested here do not qualify for withholding under that exemption."  Studying the text of Exemption 2, the Court finds that "[t]he key word . . . the one that most clearly marks the provision's boundaries – is 'personnel'" and determines that "[w]hen used as an adjective, as it is here to modify 'rules and practices,' that term refers to human resources matters."  The Court also finds supports for this reading in other parts of the FOIA, concluding that "Exemption 2 uses [the term] 'personnel' in the exact same way" as Exemption 6.  The Court observes that "all the rules and practices referenced in Exemption 2 share a critical feature:  They concern the conditions of employment in federal agencies – such matters as hiring and firing, work rules and discipline, compensation and benefits."  

The Supreme Court further notes that "[c]ourts in practice have had little difficulty identifying the records that qualify for withholding under this reading: They are what now commonly fall within the Low 2 exemption" and concludes that "[o]ur construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . . )."  Furthermore, the Court notes that its "reading instead gives the exemption the 'narrower reach' Congress intended, . . . through the simple device of confining the provision's meaning to its words."  The Court rejects the Navy's assertion that "Congress did not wish 'to limit the Exemption to employment-related matters,'" finding that it will not "allow[ ] ambiguous legislative history [underlying Exemption 2] to muddy clear statutory language."  With regard to the information withheld, the Court holds that "[t]hese data and maps calculate and visually portray the magnitude of hypothetical detonations," which "[b]y no stretch of imagination  . . . relate to 'personnel rules and practices,' as that term is most naturally understood."

With regard to the Navy's claim that Exemption 2 shields predominantly internal material if "its 'disclosure would significantly risk[ ] circumvention of federal agency functions,'" the Supreme Court finds that this "High 2 test (in addition to substituting the word 'predominantly' for 'solely,' . . .) ignores the plain meaning of the adjective 'personnel' . . . and adopts a circumvention requirement with no basis or referent in Exemption 2's language."  The Court also rejects Navy's argument that a House Report concerning the FOIA supports a High 2 interpretation, finding that "the Senate Report says exactly the opposite, explaining in support of a Low 2 interpretation that the phrase 'internal personnel rules and practices of an agency' means 'rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like."  The Court finds that "[w]hen presented, on the one hand, with clear statutory language and, on the other, with dueling committee reports, we must choose the language" of the statute.  Additionally, the Court dismisses Navy's argument that Congress' amendment of Exemption 7(E) codified the "'circumvention of the law' standard" endorsed by the D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco and Firearms.  Instead, the Court concludes that "[t]he decision . . . to amend Exemption 7(E) suggests that Congress approved the circumvention standard only as to law enforcement materials, and not as to the wider set of records High 2 covers" and that "[t]he 1986 amendment does not ratify, approve, or otherwise signal agreement with Crooker'sinterpretation of Exemption 2."  As to the dissent's argument that Crooker "'has been consistently relied upon and followed for 30 years' by lower courts," the Court finds that the clear statutory language controls and comments that not all of the Circuits have accepted or considered Exemption 2 to encompass "High" 2.

The Supreme Court also rejects Navy's argument that "the exemption 'encompasses records concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions.'"  The Court instead finds that "the Government's 'clean slate' construction reaches such documents only by stripping the word 'personnel' of any real meaning" and that "[u]nder this interpretation, an agency's 'internal personnel rules and practices' appears to mean all its internal rules and practices."  As such, "this odd reading would produce a sweeping exemption, posing the risk that FOIA would become less a disclosure than 'a withholding statute.'"  "Interpreted in this way, Exemption 2 – call it 'Super 2' now – would extend, rather than narrow, the [Administrative Procedure Act's] former exemption of records relating to the 'internal management of an agency,'" and the Court rejects such an interpretation because it "has no basis in the text, context, or purpose of FOIA."  Lastly, the Court notes that "the Government has other tools at hand to shield national security information and other sensitive materials" and identifies Exemptions 1, 3 and 7 as possible bases for justifying such withholdings.

• Exemption 7(F):  The Supreme Court observes that "[t]he Navy argued that the [requested] data and maps fall within Exemption 7(F), . . . and that claim remains open for the Ninth Circuit to address on remand."

District Courts

1.  Nat'l Security Archive v. SEC, No. 10-116, 2011 WL 843945 (D.D.C. Mar. 10, 2011) (Leon, J.)

Re:  Request for records pertaining to SEC investigations of Chiquita Brands International, Inc. related to its activities in Colombia

Holding:  Granting SEC's motion for a stay of proceeding for a period of twelve months based on a showing of "exceptional circumstances"

• Open America stay:  The court grants the SEC's motion for a stay of proceedings for a twelve-month period.  In consideration of the SEC's request for a stay, the court notes that SEC's supporting declarations, which are accorded a presumption of good faith, indicate that "unanticipated FOIA requests have increased against the backdrop of the Bernie Madoff investigation, the financial crisis, and related regulatory reforms."  "Specifically, the SEC points to a deluge of complicated requests which, when viewed together support a determination of exceptional circumstances."  Additionally, the court notes that "resources – and most notably, FOIA staff members – have been diverted to assist with multiple FOIA lawsuits, at least five of which are particularly resource-intensive and involve tens of thousands of documents."  Moreover, the court finds that "despite this case load, the SEC also offers evidence of due diligence: first, by creating and implementing a [first-in, first-out (FIFO)] system, . . .  and second, it has, among other things implemented new technology to streamline and expedite the processing of FOIA requests and has made agency records available on the SEC's public website."  Moreover, "[i]t also made reasonable progress by increasing the number of FOIA requests processed and by reducing substantially both the agency's backlog and the number of requests in the FIFO track."  

2.  Island Film, S.A. v. Dep't of the Treasury, No. 08-286, 2011 WL 810825 (D.D.C. Mar. 9, 2011) (Roberts, J.)

Re: Request for records concerning the Office of Foreign Assets Control's decision to block Island Film from receiving $30,000 in Cuba

Holding:  Concluding that plaintiff, a commercial requester, has not exhausted its administrative remedies where it has not sought a fee waiver, and either committed to pay or paid the fees charged by Treasury for searching, reviewing, and duplicating records responsive to its request 

• Exhaustion of administrative remedies:  The court holds that plaintiff, a commercial requester, has not exhausted its administrative remedies where it has not sought a fee waiver, and either committed to pay or paid the fees charged by Treasury for searching, reviewing, and duplicating records responsive to its request.  The court rejects plaintiff's justification for nonpayment, which is premised on the fact that certain records were withheld in full and others were "'extensively redacted,'" concluding "[t]hat Treasury withheld and redacted responsive documents under various FOIA Exemptions has no bearing on [plaintiff's] obligation to pay fees as a commercial requester."  Accordingly, the court finds that plaintiff "is not entitled at this time to judicial review" and provides plaintiff an opportunity to pay the assessed fees before it will dismiss plaintiff's complaint.

• Fees:  The court denies Treasury's request to order plaintiff to pay the fees that the agency "incurred by conducting the search before [plaintiff] paid or committed to paying those fees." "That an agency must estimate the costs of a search and that a plaintiff must pay, commit to pay, or seek a waiver of the search fee prior to the agency undertaking the search . . . ensures that an agency does not force a plaintiff to pay fees it does not wish to incur and provides the parties an opportunity to negotiate a mutually agreeable scope of any search."  

3.  Davis v. FBI, No. 10-0098, 2011 WL 768119 (D.D.C. Mar. 7, 2011) (Sullivan, J.)

Re:  Requests for "bond information" related to plaintiff

Holding:  Finding that plaintiff has not complied with FOIA's requirement that his request be reasonably described and has also failed to exhaust his administrative remedies

• Procedural:  The court grants defendants' motions for summary judgment where "[p]laintiff has not refuted Treasury's and Homeland Security's evidence establishing that his requests to those agencies failed to comply with" their procedural requirements and where he "has not presented any evidence to refute the SEC's declaration stating that it never received a FOIA request from him." 

Exhaustion of administrative remedies:  The court grants defendants' motions for summary judgment based on plaintiff's failure to exhaust his administrative remedies with respect to two requests.  Because "FinCen and the Secret Service each provided timely responses to plaintiff before his commencement of this civil action," "[h]e therefore will be required to exhaust his administrative remedies prior to obtaining judicial review of those entities' responses." 

4.  Concepcion v. FBI, No. 07-1766, 2011 U.S. Dist. LEXIS 22419 (D.D.C. Mar. 7, 2011) (Urbina, J.)

Re:  Request for records related to plaintiff's criminal case; at issue is the withholding of a draft affidavit provided by a law enforcement official in support of a warrant application

Holding:  Concluding that the FBI has complied with an earlier court order and so is entitled to summary judgment

Summary judgment:  In connection with an earlier ruling, the court had determined that "although the FBI had properly withheld certain information contained in the draft affidavit [at issue], it was not entitled to withhold the entire draft affidavit solely because the United States District Court for the District of New Jersey had sealed the final affidavit."  The court grants the FBI's motion for summary judgment based upon its review of the FBI's supplemental declaration and rejects plaintiff's "bald assertions" that "certain records 'continu[e] to be wrongfully withheld'" as well as his allegations of wrongdoing in connection with his criminal case.  With respect to plaintiff's "motion seeking disclosure of the final signed affidavit," the court concludes that the FBI is not obligated to produce that version of the affidavit because it "was not in the FBI's custody or control at the time the FOIA request was made." 

5. Am. Small Bus. League v. DHS, No. 10-4138, 2011 U.S. Dist. LEXIS 21886 (N.D. Cal. Mar. 4, 2011) (Armstrong, J.)

Re:  Request for a specific subcontracting report and its summary

Holding:  Dismissing without prejudice plaintiff's claim with respect to information withheld under Exemption 6 where it failed to challenge DHS's assertion of that exemption at the administrative appeals stage.

Exhaustion of administrative remedies:  The court dismisses without prejudice plaintiff's claim with respect to information withheld under Exemption 6 where it failed to challenge DHS's assertion of that exemption at the administrative appeals stage.  The court finds that "[w]here, as here, the appeal only challenges the application of one particular exemption where multiple exemptions are cited by the agency, it is reasonable for the agency to presume that there is no dispute with respect to the other exemptions to which no objections have been raised."  The court observes that "[i]t is for that reason that courts will only consider those FOIA claims that were expressly included in the administrative appeal."  

6. Steiniger v. IRS, No. 10-282, 2011 U.S. Dist. LEXIS 22265 (S.D.N.Y. Mar. 3, 2011) (Francis, Mag.)

Re:  Requests for plaintiff's tax records and his criminal tax case

Holding:  Granting government's motion for summary judgment upon finding that searches were reasonable and documents properly redacted

• Adequacy of search:  Based on the defendants' declarations, the court concludes that "[t]he IRS and EOUSA have each amply demonstrated the adequacy of their respective searches for the documents requested by [plaintiff]."  The court rejects plaintiff's claim that "additional documents must exist," noting that "'[s]peculation that other documents exist, without more, does not undermine the finding that the agency conducted a reasonable search.'"  Moreover, "the reasonableness of EOUSA's search is not diminished by the fact that documents were not discovered until a second search was conducted."  As to plaintiff's complaints that the IRS "refused to answer his inquiry about his tax status," the court determines that the "FOIA obligates government agencies only to disclose records, not to respond to inquiries." 

• Discovery:  The court denies plaintiff's request to depose the IRS employee responsible for searching for responsive records, finding that "the defendants' searches were satisfactory and there is no basis for requiring any further inquiry."

• Exemption 3:  The court holds that EOUSA properly redacted portions of plaintiff's pre-sentence investigation report prepared in connection with his criminal case pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 32(d)(3)(A).  Specifically, EOUSA correctly "withheld portions relating to (1) diagnoses which, if revealed, could disrupt the plaintiff's rehabilitation and (2) names of third parties who might be subject to harm if their identities were made public." 

• Exemption 5 (deliberative process and attorney work product privileges): EOUSA properly withheld "attorney notes that reflect the thought processes of an attorney prior to taking action in a criminal case" under the deliberative process privilege.  Moreover, the court concludes that these same documents were also protected by the attorney work product doctrine because "[t]hey were prepared by attorneys in anticipation of litigation, the litigation being a criminal prosecution" and also determines that an additional document "is work product, as it is a form prepared by an Assistant United States Attorney in connection with plaintiff's prosecution."    

• Exemptions 6 & 7(C):  The court holds that EOUSA properly invoked Exemptions 6 and 7(C) to withhold the name of a third party listed on plaintiff's rap sheet, "a document prepared by a third party for law enforcement purposes reflecting that person's mental impressions concerning the matter under investigation," and the identities of third parties mentioned in plaintiff's presentence report.  The court finds that "[i]n each instance, the redacted or withheld information plainly implicated the privacy interests of persons other than [plaintiff]" and "in no instance has he suggested what public interest might weigh in favor of disclosure."  Moreover, the court notes that "'[w]here the requestor seeks [private] information in furtherance of private litigation, courts typically reject such disclosure as not falling within the ambit of FOIA's goal of public disclosure of agency action.'"

7.  Donnegan v. USPS, No. 10-706, 2011 WL 818871 (W.D. Pa. Mar. 2, 2011) (Ambrose, J.)

Re:  Request for results of and answers to employment exam taken by plaintiff

Holding:  Granting USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability

• Litigation considerations/Exemptions 2, 3 & 5:  The court grants USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability.  The court agrees with the USPS's invocation of Exemptions 2, 3 and 5 and cites to other court decisions which affirmed agencies' withholding of various employment application information and hiring criteria.  The court denies plaintiff's request to review the exam material in camera, determining that "[p]laintiff cites no law for this 'scenario' and [the court] find[s] no support in the law for it either."  The court concludes that "[p]ermitting a review of documents visually is, in essence, the same result as producing the document in hard copy."  

WEEK OF MARCH 14

Courts of Appeal

1.  Tunchez v. DOJ, No. 10-5228, 2011 U.S. App. LEXIS 5194 (D.C. Cir. Mar. 14, 2011) (per curiam)

Re:  First-party request

Holding:  Granting defendants' motion for summary affirmance

• Adequacy of search:  The D.C. Circuit grants defendants' motion for summary affirmance and rejects plaintiff's challenges to the adequacy of the agencies' searches.  "The mere fact that the agencies failed to produce documents prior to appellant filing suit does not . . . demonstrate that their searches were inadequate."  In response to plaintiff's claim that records were "inadequate because the searches did not locate particular documents," the Circuit notes that a search "is not rendered unreasonable because of the failure of a search to produce particular documents, and 'mere speculation that as yet uncovered documents might exist' does not undermine the adequacy of a search." 

2.  Karantsalis v. DOJ, No. 10-10229, 2011 WL 846242 (11th Cir. Mar. 11, 2011) (per curiam)

Re: Request for booking photos or "mug shots" of third party who pled guilty to securities fraud

Holding:  Affirming the opinion of the district court which upheld protection for "mug shots" under Exemption 7(C); the Eleventh Circuit adopts and attaches to its opinion the opinion of the district court

• Adequacy of search:  The district court, which was upheld by the Eleventh Circuit, concludes that the U.S. Marshals Service's (USMS's) search for responsive records was adequate where the agency's declaration "is nonconclusory, sufficiently detailed, and submitted in good faith" and where plaintiff's opposition "includes no affidavits or other affirmative evidence, [and] does nothing to rebut the evidence proffered by the [USMS]."  

• Internal disclosure policies:  As an initial matter, the district court, which was affirmed by the Eleventh Circuit, finds that "there is no question of material fact" concerning USMS's internal policy that it only releases mug shots of prisoners to the media when "doing so serves a law enforcement purpose" and its position that "the only law enforcement purpose for releasing a booking photograph is to address an issue involving a fugitive" – a situation which is not in evidence here.  The court acknowledges that "these policies do not apply to FOIA requests for booking photographs made from within the jurisdiction of the Sixth Circuit, because the Sixth Circuit has held that, in some circumstance, booking photographs must be disclosed to the media even if doing so does not serve a law enforcement purpose."  However, the court finds that in this case "[p]laintiff has failed to provide any affirmative evidence suggesting that [USMS] does not abide by its stated policies for requests stemming from within the jurisdiction of the Eleventh Circuit."

• Exemption 7/threshold:  The district court, which was affirmed by the Eleventh Circuit, concludes that "it is clear that the booking photographs were compiled for law enforcement purposes because [USMS] is a law enforcement agency tasked with the 'receipt, processing and transportation of prisoners held in the custody of a marshal or transported by [USMS]'" and that the photographs in question "were taken pursuant to this duty."

• Exemption 7(C):  The district court, which was affirmed by the Eleventh Circuit, holds that USMS properly withheld the booking photographs pursuant to Exemption 7(C) because the subject of the photos maintains a "substantial privacy interest" in preventing their public dissemination and, conversely, "the public obtains no discernable interest from viewing [them], except perhaps the negligible value of satisfying voyeuristic curiosities."  As to the privacy interest, the court notes that "[a] booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt."  Additionally, the photo "captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties."  The court further notes that these photographs "are generally not available for public dissemination."  

The court rejects plaintiff's argument that the subject's "privacy interest in the booking photographs is nil because [they] were allegedly published internationally by [USMS] through INTERPOL."  Rather, the court finds that, the INTERPOL photograph, in fact, was a driver's license photo submitted by the FBI and notes that "a driver's license is a substantially different type of photograph than a mug shot."  The court also dismisses plaintiff's claim that the subject's privacy interest "is moot" because he "appeared in open court and pled guilty."  Instead, the court emphasizes that booking photos "raise[ ] a unique privacy interest because [they] capture[ ] an embarrassing moment that is not normally exposed to the public eye."  Additionally, USMS's decisions to release photographs of Bernard Madoff and other prisoners in response to FOIA requests under the Sixth Circuit's jurisdiction has "no bearing on this case."

In terms of the public interest asserted by plaintiff, the court indicates that it "is not persuaded that the facial expression of a prisoner in a booking photograph is a sufficient proxy to evaluate whether a prisoner is receiving preferential treatment."  Moreover, "the general curiosity of the public in [the subject's] facial expression during his booking photographs is not a cognizable interest that would 'contribute significantly to public understanding of the operations or activities of the government.'"  Accordingly, the court concludes that disclosure of the photographs "would not serve the public interest." 

District Courts

1.  United Am. Fin., Inc. v. Potter, No. 06-1023, 2011 WL 939014 (D.D.C. Mar. 18, 2011) (Bates, J.)

Re:  Request for records related to the creation and circulation of an article designating certain insurance employees as 'Nigerian identity thieves'

Holding:  Denying plaintiff's motion for attorney fees

• Attorney fees:  The court holds that "[a]lthough plaintiff is eligible for an award of attorney fees and costs, he is not entitled to one."  "Here, defendant has conceded eligibility because 'this litigation rendered a decision granting, in part, and denying, in part, USPS's Final Motion for Summary Judgment.'"  The court then examines the four entitlement factors to evaluate whether plaintiff is entitled to an award.  In terms of public benefit, the court concludes that "although plaintiff claims that this litigation has produced public benefits [in the form of disclosing how USPS uses its resources to "label insurance salesmen"], there is little evidence that there is a large interested group or even that plaintiff is able to disseminate the disclosed information to the allegedly interested public."  Accordingly, the court finds that the public benefit is "minimal" because "to 'the extent that this information is of any interest to the public, it is likely of interest to a relatively small segment of the population.'" 

With respect to the second and third prongs regarding the commercial benefit to the plaintiff and the nature of his interest in the disclosed records, the court determines these factors "do not support an award for attorney fees and costs."  The court finds that although the plaintiff "may not have plans [to use the records disclosed] for a lawsuit that would produce a commercial benefit, the motive 'need not be strictly commercial' to weigh against a fee award."  In this case, "the limited focus of the disclosed documents illustrate that this FOIA request reflected a private interest on the part of plaintiff and was not for public information purposes." 

Regarding the fourth factor, the reasonableness of the government's position, the court finds that even though the "this litigation stretched on for a period of almost four years, . . . that is not evidence of 'obdurate behavior.'"  In addition, the court determines that "[a]lthough [USPS] ultimately failed to make the required specific and particularized showing that disclosing the identities of these employees would result in harm or harassment [in connection with its assertion of Exemption 7(C)], that failure does not support a finding that USPS was unreasonable."  Rather, "[t]he claim was based on sound legal theory but ultimately failed because USPS was not able to make the required showing of harm."  "Because the Postal Service articulated a reasonable legal position and did not exhibit the kind of stubborn opposition to valid claims that FOIA seeks to discourage, the Court concludes that the fourth factor in the entitlement analysis weighs against an award of attorney fees." 

2.  Beltranena v. Clinton, No. 09-1457, 2011 WL 923938 (D.D.C. Mar. 17, 2011) (Friedman, J.)

Re: Request for records pertaining to refusal of plaintiff's visa application

Holding:  Denying without prejudice defendant's motion for summary judgment and granting protective order

• Proper party defendant:  "Because Secretary Clinton does not seek dismissal on [the] basis [that she is not a proper party to this action], the Court will substitute the Department of State as the real party in interest." 

• Adequacy of search:  The court finds that the Department of State has not demonstrated that its search for responsive records was adequate because its declaration recounts the search in conclusory terms.  The court finds that the declarant "never describes who performed the searches or how the searches were performed; rather, she states only that three file systems were searched and that the Department found responsive records there."  Additionally, "with respect to the specific searches for documents responsive to [plaintiff's], [the declarant] provides no detail about the search terms that were used or the type of searches that were performed on a file system containing 'over 30 million documents.'" The court notes that the "same lack of detail exists with respect to the searches of the Office of Visa Services and the U.S. Embassy in Guatemala."  Accordingly, the court orders the Department of State to supplement its supporting declarations. 

• Segregability:  The court defers consideration of the records withheld pursuant to Exemption 3 which were contested by plaintiff because the "Department has not met its burden of establishing the adequacy of its search."  However, the court notes that "but for five [ ]documents . . . – the Department's only explanation as to how it met the segregability requirement is one blanket statement in the last paragraph of [the declarant's] initial declaration that '[t]he Department determined that no additional, meaningful, non-exempt information can be released from the documents withheld in full or part.'"  The court finds that "[t]his statement is inadequate to meet the Department's burden 'because it does not show with reasonable specificity why the documents cannot be further segregated and additional portions disclosed.'" 

• Discovery/In camera review:  The court grants the Department of State's motion for a protective order staying discovery.  The court denies plaintiff's request for discovery at this time, noting that "even where – as here – 'an agency's affidavits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supplement its affidavits.'"  Likewise, the court denies plaintiff's request for an in camera review.

• Attorney fees:  "[A]t this stage, final judgment is not appropriate, and because [plaintiff] has not articulated any need for an interim award of fees, [his] request for attorneys' fees is premature." 

3.  Reich v. DOE, No. 09-10883, 2011 U.S. Dist. LEXIS 27317 (D. Mass. Mar. 17, 2011) (Gorton, J.)

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

• Proper party defendant/procedural:  The court grants defendants' motion for summary judgment with respect to ORNL because it "is not a proper defendant because it is not a federal agency or even a legal entity."  The court notes that although "DOE owns over 99% of the physical property at the ORNL site, directs and approves all major projects at ORNL and provides funding for carrying out all operations," ultimately, a private corporation "is responsible for the day-to-day operations of ORNL."  The court concludes that DOE's "oversight constitutes merely the 'exercise of regulatory authority necessary to assure compliance with the goals of the federal grant' and not substantial involvement in daily operations."

Agency records:  The court holds that neither the draft nor the final versions of the investigative report are agency records.  DOE obtained both versions and so the court focuses on control.  In order to determine whether DOE exercised sufficient control over the two versions of the reports, the court assesses four factors.  First, in terms of "the intent of the document's creator to retain or relinquish control over" the report, the court finds that the fact that vice president of the private corporation emailed a copy of the draft report to an associate director at DOE "is evidence that he intended for her to retain a copy of that Draft for her records and perusal" and, accordingly, "this factor weighs in favor of finding that the Draft Report is an agency record."  With respect to the final version of the report, the court finds that the vice president "demonstrated intent to retain control of and restrict the DOE's access to the Final Report by retrieving all copies at the end of each meeting, including the binder that was sent to [the DOE associate director] a few days before [a] March, 2007 meeting" which weighs against a finding that the report is an agency record.

Second, examining the DOE's ability to use and dispose the reports, the court concludes that a notice on the front page of both the final and draft versions explicitly prohibiting the DOE from disclosing the copies demonstrates that "agency control is extremely limited here and the second factor weighs against a finding that [these reports] are agency records."  Third, the court looks at the extent to which DOE personnel read or relied upon the reports and considers this "arguably the most important [factor] in determining the agency's control over a document."  The court concludes that "because only one agency employee skimmed the Draft Report and none relied upon either the Draft or Final Report, this factor weighs against a finding that either version is an agency record." 

Fourth, considering the extent to which the reports were integrated into DOE's records systems or files, the court concludes that the presence of one copy of the final report at two separate meeting, during which "none of the attendees even glanced at it," and the associate director's "temporary possession of the Final Report for less than one week did not constitute integration into the DOE's record system."  With respect to the draft version, the court finds that although this copy of the report "remains archived in DOE's email files," "mere storage of a record at a federal agency does not, by itself, make it an agency record." 

• Discovery:  The court denies plaintiff's request for discovery, because DOE's declarations "are 'reasonably detailed' and 'submitted in good faith.'"  The court also notes that the plaintiff "has proffered no evidence that any of the declarants has misled the Court or had any motivation to do so" and further comments that "the purported issues of fact [raised by plaintiff] . . . are actually questions of law."

4.  Monaghan v. DOJ, No. 09-2199, 2011 U.S. Dist. LEXIS 20981 (D. Nev. Mar. 16, 2011) (Mahan, J.)

Re:  Request for records related to September 11, 2001

Holding:  Dismissing for failure to exhaust

• Exhaustion of administrative remedies/failure to pay fees:  The court dismisses the instant action, concluding that "plaintiff's failure to pay the required [search] fees results in a failure to exhaust his administrative remedies."  The court rejects plaintiff's claim that defendant's failure to respond to his request within the 20-days required by the FOIA negated his obligation to pay fees.  Plaintiff's argument was based on the provision added to the FOIA as a result of the OPEN Government Act, which precludes an agency from charging search fees if it fails to comply with the FOIA's time limits, unless 'unusual or exceptional circumstances' exist.  Here, the court finds that "not only has plaintiff waived this argument by not raising it anywhere in his complaint[,] . . . but his request for records from 'the largest and most complex investigatory files ever created by' the FBI . . . would certainly qualify for 'unusual circumstances'" as defined by the FOIA.

5. Russell v. Dep't of State, No. 09-6050, 2011 WL 941334 (C.D. Cal. Mar. 15, 2011) (Gutierrez, J.)

Re:  At issue is the court's previous order granting plaintiff limited discovery on the adequacy of the Department of State's search for records pertaining to the death of her son in China

Holding:  Continuing motion for reconsideration of discovery order to allow the Department of State to submit additional declarations

• Reconsideration/Discovery:  The court grants the Department of State's motion for reconsideration finding that "the remaining issues related to the Department of State's declarations can be resolved in supplemental declarations of [the previous declarant] and/or other individuals with relevant knowledge of the FOIA searches conducted" and concluding that "[a]lternative forms of discovery are therefore no longer warranted."  The court finds that the Department of State's third declaration "does attempt to address the Court's earlier concerns with [the agency declarant's] vague statements as to how the searches were performed, which keywords were used in electronic searches, where the searches were performed, and which records and databases were searched."  With regard to the several inadequacies identified in the agency's latest declaration, the court orders the Department of State to file a supplemental declaration detailing its response to those concerns. 

6.  Scaff-Martinez v. DEA, No. 10-0249, 2011 WL 861653 (D.D.C. Mar. 14, 2011) (Howell, J.)

Re:  Request for records pertaining to an alleged drug smuggling operation in Panama

Holding:  Concluding DEA conducted an adequate search and the requester failed to exhaust by not paying fees

• Exhaustion of administrative remedies:  The court declines to dismiss plaintiff's complaint for "fail[ure] to exhaust his administrative remedies by reasonably describing the records sought" where DEA subsequently conducted a search for responsive records.

• Adequacy of search:  As an initial point, the court finds that DEA "reasonably construed" plaintiff's request as one "seeking 'a document from the Attorney General of the United States authorizing DEA and/or its agents to bring cocaine, associated with an investigation that led to indictments' in the Plaintiff's criminal case."  The court then concludes that DEA's search for records was adequate where the agency "'canvassed' DEA's legal offices and contacted [other internal offices]" in an effort to find whether such an authorization existed and also searched the database most likely to maintain responsive records using plaintiff's personal identifiers. 

• Exhaustion of administrative remedies/failure to pay fees:  The court finds plaintiff has failed to exhaust his administrative remedies with respect to his own investigative records because he "has not paid the assessed fee, and the agency has not granted him a fee waiver."  As such, the court determines that "judicial review prior to the agency's resolution of the fee waiver request and the processing of potentially responsive records would undermine the FOIA's exhaustion purposes and implicitly condone circumvention of the . . . exhaustion requirement by filing a lawsuit." 

4.  Wadhwa v. VA, No. 06-4362, 2011 WL 883157 (D.N.J. Mar. 11, 2011) (Irenas, J.)

Re:  Remaining at issue is a medical chart belonging to one of plaintiff's patients, whom he treated at a VA medical center

Holding:  Granting VA's motion to alter judgment entered in favor of plaintiff where court ordered the release of third party's medical chart

• Exemption 6:  The court grants VA's motion to alter the judgment entered in favor of plaintiff where the court ordered the release of a third party's medical chart.  "[A]fter reconsidering the issue, the Court concludes that it erred in concluding that the patient had no privacy interest whatsoever in protecting the redacted information from disclosure to [plaintiff]."  Although the court comments that plaintiff's relationship with the patient, as his treating physician, is "directly relevant to determining the extent of the privacy invasion," it ultimately concludes that "the extent of the [privacy] invasion [in this case is] de minimus, not zero."  Moreover, "[b]alancing the de minimus invasion (rather than no invasion) of privacy against the entirely absent public interest in disclosure, the scale tips ever so slightly in favor of withholding the redacted material."  

5.  Strunk v. U.S. Dep't of State, No. 08-2234, 2011 WL 855802 (D.D.C. Mar. 10, 2011) (Leon, J.)

Re:  Request for records pertaining to Stanley Dunham, President Obama's deceased mother

Holding:  Granting in part and denying in part without prejudice government's motion for summary judgment, finding that the Department of State conducted an adequate search, but that issues remained as to DHS's search

• Adequacy of search:  The court concludes that the Department of State's search was sufficient where it "establish[ed] that it looked for responsive records in the systems of records most likely to contain Ms. Dunham's passport applications, using several variations of the subject's name as search terms, for the time period set forth in plaintiff's request."  The court finds that the Department of State's "failure to locate a document to which another responsive record referred does not render its search inadequate."  Moreover, "[p]laintiff's opinion and speculation as to the existence or wrongful destruction of responsive records are not relevant considerations in this FOIA action." 

In terms of Customs and Border Protection's (CBP's) search, the court finds that the agency's "cursory description" which merely states that it queried the TECS database and located a one-page record, "provides no basis from which the Court can determine whether the search was adequate under the circumstances."  As such, the court denies CBP's motion for summary judgment without prejudice.   

6. ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik, J.)

Re:  Request for records describing the operation and maintenance of the National Crime Information Center (NCIC) Violent Gang and Terrorist Organization File (VGTOF)

Holding:  Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure

• Exemption 1:  The court finds that the FBI has not justified its use of Exemption 1 to withhold certain information, noting that "[t]he FBI has, in effect, parroted the language of the Executive Order [12958] (in the disjunctive) and declared that the redacted information falls within one or more of the categories covered by the order."  For example, with respect to the FBI's redaction of "'information which relates to unique record identifier and standard terminology/phraseology used in the most recent FBI investigations,'" the court finds that "the FBI has not provided enough information from which the Court could conclude that each of the withheld documents contains classified terminology/phraseology or that its release, in the absence of unique record identifiers, could reasonably be expected to damage national security."  The court notes that the "[p]laintiff does not contest the [Department of State's] withholding" of "information relate[d] to intelligence-sharing with foreign governments" the disclosure of which "could damage U.S. foreign relations."  

• Exemption 2:  In light of the Supreme Court's recent decision Milner v. Department of Navy, "[d]efendant concedes that the investigative techniques and guidelines it has withheld do not fall within [the] limited [scope of Exemption 2.]"

• Exemption 5 (deliberative process privilege):  The court finds that the FBI properly invoked the deliberative process privilege to withhold two documents which "discuss various proposals for how to respond to attempts by persons on the watchlist to purchase firearms."  The court notes that "the fact that the FBI was already making changes to its procedures when [one of the documents] was written does not preclude a finding that these documents were pre-decisional."  Additionally, the FBI properly withheld four other documents that "are drafts that do not reflect final agency decisions" and "are integral parts of an on-going decision-making process within the agency." 

• Exemption 6:  "Plaintiff does not seek disclosure of the names, contact information, or titles of law enforcement personnel or the government contractors" which were withheld by FBI pursuant to Exemption 6.

• Exemption 7(C):  "Having reviewed the declarations provided and the documents discussed by the parties," the Court orders the FBI to release "descriptors that apply to whole populations, such as race, sex, country of birth, and passport country, [because they] are not reasonably likely to identify any particular individual."  Conversely, the court finds "[o]ther information, such as criminal history, telephone number, and license plate number, could be combined with publicly available information to identify an individual and may therefore be redacted under Exemption 7(C)."

• Exemption 7(D):  With regard to document withheld in full which contained information "provided by a foreign government under express and implied assurances of confidentiality," the court finds that "[t]he FBI has not alleged, much less shown, that the information was compiled 'in the course of a criminal investigation' or 'lawful national intelligence investigation.'"  Therefore, the court concludes that the FBI "has failed to justify the nondisclosure of the information provided by the confidential source under Exemption 7(D)."  Additionally, the court determines that the FBI did not sufficiently justify its application of Exemption 7(D) to "letters from the FBI to other law enforcement agencies identifying possible unauthorized uses of the VGTOF database and requesting an investigation" where the source of the information is identified in general terms, some of the information provided by that source has been disclosed, and there is no indication that the source requested or received a promise of confidentiality.  The court also concludes that Exemption 7(D) is not appropriate to withhold a printout provided by a source in the course of a criminal investigation because the "[t]here is no indication that the author requested confidentiality or believed that his communication would be maintained in confidence." 

• Exemption 7(E):  The court concludes that the FBI has not demonstrated that Exemption 7(E) applies to records containing operating procedures related to watchlists where "[t]here is no indication  . . . that every policy or protocol in the document reveals information that could be utilized to avoid detection or develop countermeasures."  Similarly, the court finds that the FBI has not sufficiently justified its decision to withhold personal identifiers contained on forms that are used "to supply information for entry into VGTOF."  The court reasons that "the fact that the list of [these] identifiers was [publicly] disclosed in the past suggests that its public availability did not present a risk of circumvention of agency regulation." 

As to the withholding of "documents that identify where particular sorts of data are recorded within the agency's databases and/or systems," the court finds that the FBI "makes no effort to explain how disclosure of a system's architecture (i.e., where certain pieces of information are stored in relation to others) could allow persons to circumvent VGTOF."  The court also holds that Exemption 7(E) is not applicable to documents referencing a certain watchlist procedure, nomination criteria for entry into VGTOF, VGTOF field codes, and guidelines for encounters with watchlisted individuals because this information has been previously publicly disclosed.  However, the court affirms the FBI's decision to withhold "terrorist-related trend information," which "'could serve to warn suspected terrorists that the FBI is aware of their plans and they could then take countermeasures against law enforcement.'" 

• Fee category/limitation on assessing fees:  The court holds that plaintiff, the ACLU of Washington, qualifies as a representative of the news media.  Further, the court finds that plaintiff "is not required to pay duplication costs associated with its . . . FOIA request above the $100 that has already been tendered" where the FBI "has failed to comply with FOIA's time limits," "did not seek an administrative extension of time in which to produce documents and did not justify its request for an indefinite extension," and where disclosure of the information sought "is in the public interest in that it is 'likely to contribute significantly to public understanding of the operations or activities of the government.'"

7. N.Y. Civ. Liberties Union v. DHS, No. 09-5325, 2011 U.S. Dist. LEXIS 24436 (S.D.N.Y. Mar. 10, 2011) (Koeltl, J.)

Re:  Request for records pertaining to the Lower Manhattan Security Initiative (LMSI) for which the NYPD received grant funding from DHS; eighteen documents remain at issue

Holding:  Granting government's motion for summary judgment with respect to Exemptions 7(E) and 5 and denying motion for in camera review

• Public domain/Exemption 7(E):   Notably, plaintiffs do not contest Exemption 7(E)'s applicability to the material at issue, but rather contend that the information is publicly available.  The court finds that plaintiffs have not met their burden under the public domain doctrine because the "publicly available information it proffered is not 'identical' to the information it seeks to obtain."  For example, "although it is publicly known that the LMSI uses cameras and license plate readers, the specific locations of those devices are unknown, and their disclosure could unquestionably aid criminals in evading detection and thereby circumventing the law."  Additionally, "although the mechanics of cameras and license plate readers are 'generally known,' the specific types of devices used by LMSI, their capabilities and their means of transmitting data are all unknown."  With regard to the DHS's decision to withhold information related to "the number and identity of assets protected by the LMSI" and details about the "goals and challenges of implementation," the court finds that the news reports proffered by plaintiffs are not sufficient to show "actual public disclosure of this information."  Accordingly, the court concludes that plaintiffs "have therefore presented no evidence that could vitiate the declarants' plausible claims that 'release of the number and name of assets would publicize with heightened preciseness the scope and breadth of the LMSI, and would identify to potential terrorists targets that have heightened security due to their significance'" and "'could also nullify the deterrent effect created by the absence of [such] information.'"

• Exemption 5 (deliberative process privilege):  The court finds that DHS properly asserted the deliberative process privilege to protect "an intra-agency memorandum drafted by a division of [DHS's National Protection and Programs Directorate] requesting FEMA's approval of an extension of time to complete certain steps of the grant funding process."  Despite plaintiffs' argument to the contrary, the court finds that DHS is not required to show that "a document is predecisional by pinpointing a specific decision."  Here, the court finds that the document was "'prepared in order to assist an agency decisionmaker in arriving at his decision' and 'bear[s] on the formulation or exercise of policy-oriented judgment.'"  Moreover, DHS is not required to segregate any factual information, since that information is protected from disclosure under other exemptions.

• In camera review:  The court holds that in camera review is not appropriate where, as here, "no 'questions remain after the relevant issues have been identified by the agency's public affidavits and have been tested by the plaintiffs.'"

WEEK OF MARCH 21

District Courts

1.  Long v. DOJ, No. 06-1086, 2011 U.S. Dist. LEXIS 31435 (N.D.N.Y. Mar. 25, 2011) (Mordue, C.J.)

Re:  Request for records from, or relating to, DOJ's Civil Division's case management system database

Holding:  Granting DOJ's Rule 54(b) motion for reconsideration regarding the court's prior order that directed the agency to release fields in the case management database and holding that such information is exempt from disclosure pursuant to Exemptions 3 and 6

• Litigation considerations/motion for reconsideration:  The court grants DOJ's motion for reconsideration in which DOJ asserts 42 U.S.C. § 300aa-12(d)(4)(A) in conjunction with Exemption 3, as a new basis for withholding certain fields in the case management database, which the court had previously ordered disclosed.  Upon review of DOJ's declarations in support of the Rule 54(b) motion for reconsideration and the language of the statute, the court concludes that "reconsideration is warranted to correct a legal error and prevent the manifest injustice resulting from the [] disclosure of private individuals' personal information based upon [DOJ's prior] reliance on the incorrect statutory provision." 

• Exemption 3:   The court determines that, in its motion for reconsideration, DOJ properly asserted Exemption 3 in connection with 42 U.S.C. § 300aa-12(d)(4)(A) to withhold vaccine type and date of vaccine administration fields contained in a case management database.  For one, the court finds that those database fields "fall within the definition of information submitted to a special master and which cannot be disclosed without express permission" under the terms of 42 U.S.C. § 300aa-12(d)(4)(A).  The court rejects plaintiffs' argument that such information falls outside the definition because "[Vaccine Act] petitioners' names and notice of their petitions are published in the Federal Register without any indication that express consent was obtained."  On the contrary, the court notes that the statute specifically requires such publication.  The court also dismisses plaintiffs' contention that "the Court of Federal Claims routinely discloses the vaccine type and date of administration specified in a petition on its docket sheets."  Rather, the court finds it "cannot conclude that [such information is] always included on a case's docket sheet and declines to find that such facts are excluded from § 300aa-12(d)(4)(A)'s definition of 'information' submitted to a special master or the court in a proceeding."  Lastly, the court concludes that 42 U.S.C. § 300aa-12(d)(4)(A) qualifies as an Exemption 3 statute because that section "unequivocally states that information submitted to a special master or the court may not be disclosed to a nonparty without the written consent of the person who submitted the information."  Since "[p]laintiffs do not assert that they have obtained consent" from petitioners, they are prohibited from obtaining such information.

• Exemption 6:  As an threshold matter, the court finds that because the information at issue, i.e., "the vaccine type and date of administration from petitions filed by individuals, or their legal representatives, against HHS, with the Court of Federal Claims alleging injury or death as a result of a vaccination," is derived "from an individual's medical file, it is personal information."  The court then finds that "there is a measurable privacy interest at stake" because the docket numbers, which have already been publicly released, "provide[] the link necessary to indentify the individual to whom the vaccine type and date of administration information belongs."  In terms of the public interest, the court rejects plaintiffs' claims that "disclosure of the vaccine type and date of administration will shed light on the DOJ's handling of petitions brought under the Vaccine Act" and, in particular, will shed light on the government's handling of autism-related claims.  Rather, the court finds release of the requested database fields "would not shed light on the DOJ's handling of autism cases because such information would not indicate whether the petition from which it came contained an 'autism-related claim.'"  Moreover, to the extent that such information is available on court docket sheets, as plaintiffs' contend, the court notes that "they already have access to it."  The court concludes that "disclosure of a list of the vaccine type and date of administration would not shed any light on conduct by the DOJ or HHS," and, accordingly, "[h]aving balanced the privacy interests of the individuals to whom this information belongs against the non-existent public interest, . . . disclosure [is] clearly unwarranted."     

2.  Pruitt v. Dep't of the Army, No. 09-2534, 2011 U.S. Dist. LEXIS 31716 (S.D. Tex. Mar. 24, 2011) (Harmon, J.)

Re:  Request for plaintiff's medical records

Holding:  Dismissing plaintiff's complaint without prejudice under Rules 12 (b)(1) and 12(b)(6) for failure to his exhaust administrative remedies

• Exhaustion of administrative remedies:  The court dismisses plaintiff's complaint without prejudice due to his failure to exhaust administrative remedies where the "correspondence attached to his complaint demonstrates that he has not met that requirement."  The court notes that plaintiff attached to his complaint letters from the National Personnel Records Center which "do not deny his requests for information, but explain the difficulties in finding the documents he seeks and suggest additional sources that he can try to obtain copies of the records he seeks." 

• Exhaustion of administrative remedies/fees:  The court finds that plaintiff has failed to exhaust his administrative remedies concerning the request for a waiver of fees made in his complaint where he "has not alleged nor shown that he made a fee waiver request to the agency, no less that a final decision was made by the agency."

3.  Wade v. IRS, No. 10-65, 2011 WL 1028124 (D.D.C. Mar. 23, 2011) (Collyer, J.)

Re:  Requests for list of Enrolled Agents, who are practitioners who may practice before the IRS; remaining at issue are the home telephone numbers for Enrolled Agents

Holding:  Granting the IRS's motion for summary judgment on the basis that it properly withheld home phone numbers of third parties pursuant to Exemption 6

• Exemption 6:  The court determines that the IRS properly asserted Exemption 6 to withhold the home telephone numbers of third parties who are permitted to practice before the IRS.  The court first examines the public interest, determining that "the disclosure of the home phone numbers of Enrolled Agents here might, as Plaintiffs argue, help the public at large access greater contact information for Enrolled Agents who complete public tax returns, 'but it would not appreciably further the citizens right to be informed about what their government is up to.'"  With regard to the privacy interests involved, the court, citing the Supreme Court's privacy analysis in Department of Defense v. Federal Labor Relations Authority, concludes that "disclosure of the Enrolled Agents' home phone numbers . . . would be an unwarranted invasion of privacy protected by Exemption 6."  "Accordingly, there is compelling public privacy interest in withholding home phone numbers, and, when balanced against the minimal, if any, public interest in disclosure, production of the home telephone numbers of Enrolled Agents would 'constitute a clearly unwarranted invasion of personal privacy.'"  The court rejects plaintiff's claim that "the home phone numbers are not necessarily home phone numbers at all, but really are 'secondary' numbers that the IRS assumes are home numbers."  Rather, the court finds that "the Enrolled Agents identified a number as their 'home' phone number in the [Enrolled Practitioner Program System] database, and should be afforded the privacy attendant to that." 

4.  Bigwood v. Def. Intelligence Agency, No. 08-1431, 2011 WL 988883 (D.D.C. Mar. 22, 2011) (Urbina, J.)

Re:  Records pertaining to Colombian paramilitary leader, Carlos Castano

Holding:  Denying plaintiff's motion for relief upon reconsideration and his motion for attorney's fees

• Litigation considerations/statute of limitations:  The court denies plaintiff's "motion for reconsideration," which it has construed as a Rule 59(e) motion for relief upon reconsideration, requesting that the court retain jurisdiction over the instant matter that was previously dismissed because the complaint was filed outside the FOIA's six-year statute of limitations.  The court finds that "plaintiff's argument that the defendant waived its statute of limitations argument by releasing documents to [him] must . . . fail" because "the expiration of the six-year statute of limitations for FOIA claims deprives the court of jurisdiction, and . . . neither waiver nor equitable tolling can overcome that jurisdictional bar."  The court also rejects plaintiff's argument that "'the equities favor retaining jurisdiction while the plaintiff exhausts his administrative remedies'" with respect to the new and substantially identical FOIA request that he submitted to defendant.  The court finds that plaintiff "in arguing for reconsideration under Rule 59(e), has not demonstrated or even implied that there has been an intervening change of controlling law, that new evidence is available or that the court needs to correct a clear legal error or prevent manifest injustice."  Additionally, the court notes that it "is not aware of any change in the FOIA statute of limitations or the accompanying case law that would provide the court with jurisdiction over time-barred claims against the government."  The court also distinguishes the instant case from one cited by plaintiff which allowed a FOIA plaintiff to amend a time-barred complaint, observing that "plaintiff in that case filed a new FOIA request before the case was dismissed."     

• Attorney fees:  The court denies plaintiff's motion for attorney's fees because he "has not established a causal nexus between the filing of his complaint and the defendant's release of documents as necessary to establish his eligibility for attorney's fees."  The court notes that "[f]rom [the] timeline [provided by plaintiff] it is clear that the agency expended a considerable amount of time and effort processing the plaintiff's request prior to the filing of his lawsuit."  Moreover, "plaintiff does not dispute that his request was broad or that the agency experienced a backlog of FOIA requests."  As such, the court concludes that "[a]lthough the defendant's processing of the plaintiff's FOIA request was extraordinarily delayed, [he] has provided no evidence to suggest that the filing of his lawsuit was the catalyst that caused the defendant to release the documents." 

5. Grieco v. Records Access Officer, P.R. Dep't of the Treasury, No. 09-1860, 2011 U.S. Dist. LEXIS 29510 (D.P.R. Mar. 22, 2011) (Fuste, C.J.)

Re:  Request for records from the Puerto Rico Department of the Treasury

Holding:  Dismissing complaint of plaintiff proceeding in forma pauperis pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted

• Proper party defendant:  "Because the Puerto Rico Department of the Treasury is a state agency, the Court finds that it is not an 'agency' to which the FOIA applies." 

6. Hulstein v. DEA, No. 10-4112, 2011 U.S. Dist. LEXIS 25788 (N.D. Iowa Mar. 11, 2011) (Zoss, Mag.)

Re:  First-party request

Holding:  Granting plaintiff's motion for summary judgment, in part with respect to certain withholdings, and denying in part; reserving ruling on plaintiff's motion for summary judgment until DEA submits supplemental information; and granting DEA's motion for summary judgment with respect to withholding of internal codes and information redacted pursuant to the Bank Secrecy Act

• Exemption 3:  The court finds that DEA properly redacted certain information contained in a "DEA 6" form "on the basis that the information was received from the Secretary of the Treasury under the Bank Secrecy Act, 31 U.S.C. § 5311," which exempts from disclosure "'certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.''  However, the court denies summary judgment to DEA on certain discrete portions of the redacted form and orders an in camera review for other withheld portions. 

• Exemption 6:  The court grants plaintiff's motion for summary judgment with respect to the release of DEA Special Agent names and signatures, but will review its ruling on this point upon receiving a supplemental affidavit from DEA.

WEEK OF MARCH 28

Courts of Appeal

1.  Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160 (9th Cir. Mar. 30, 2011) (Schroeder, J.)

Re:  Interlocutory appeal challenging the district court's sealed, ex parte order containing the district court's decision to make all of its contents public

Holding:  Vacating the district court's sealed order and remanding for revision to eliminate statements designated as national security and law enforcement before it can be unsealed

• Jurisdiction:  The Ninth Circuit concludes that, although the collateral order doctrine may not confer jurisdiction because "it is at least arguable that a collateral decision on this issue may not be 'completely separate' from the merits of the underlying FOIA action," it "has jurisdiction to review the government's appeal under a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651."  Analyzing the factors that the Ninth Circuit set forth in Bauman v. U.S. District Court, the Circuit finds that the first "factor is satisfied here because there is no other remedy available," because "[t]he Sealed Order is interlocutory and non-appealable under 28 U.S.C. §§ 1291, 1292(a)(1), and 1292(b)."  Additionally, other factors support the Circuit's review of the order because "[u]nsealing the district court's Sealed Order will make the information permanently publicly available in a way that is not correctable on later appeal."  Moreover, "[t]he government's appeal also raises new and important problems relating to a sanction in a FOIA case."  Lastly, the Circuit finds that "[t]he dispositive issue is therefore whether the district court's decision to unseal its Sealed Order is clearly erroneous as a matter of law, thereby satisfying the critical third Bauman factor." 

• Litigation considerations:  The Ninth Circuit grants the government mandamus relief concluding that the sealed order should not be publicly disclosed where it contains sensitive law enforcement and national security information "that the FOIA authorizes the government to withhold from plaintiffs and that was disclosed only in camera."  The Circuit notes that although it "agree[s] with the district court that the FOIA does not permit the government to withhold information from the court," "poor litigation strategy by the government is not an independent basis to make public information which, based upon our review of the record, should be kept within the privacy of the agencies that oversee it." 

Responding to plaintiffs' argument that "due process does not authorize keeping the contents of the Sealed Order under seal because the information in the Sealed Order is not classified," the Ninth Circuit cites to the language of the FOIA exemptions and exclusions noting that the statute belies "plaintiffs' contention that only classified information can be withheld under the FOIA."  The Circuit likewise rejects plaintiffs' alternative proposal that the Order "be disclosed to plaintiffs' counsel, through a stringent protective order, so that the counsel may better represent plaintiffs as part of the adversarial process."  The Circuit finds that "[t]here is no authority to support this proposition in civil FOIA litigation."  The Ninth Circuit agrees the D.C. Circuit's finding in Arieff v. U.S. Department of the Navy that such a proposal "would 'color public perception of the security of confidential information in government files' because '[c]itizens whose personal privacy or commercial data is at issue, foreign governments that may have provided secret information to our Executive Branch, and, for that matter, the officials of our Executive Branch itself, will hardly have the assurance which it is the purpose of the FOIA exemptions to provide if hostile counsel and experts can ordinarily obtain access to assertedly exempt information.'"  Moreover, the Circuit "agree[s] with Arieff that the procedure of only allowing counsel access to the protective information would strain the attorney-client relation because it would put 'the attorney in the position of knowing, and being unable to disclose to his principal the very data he has been retained to acquire.'"  The Circuit concludes that "[i]n camera proceedings are . . .  sufficient to comply with both due process and the purposes of the FOIA." 

District Courts

1.  North v. DOJ, No. 08-1439, 2011 WL 1193201 (D.D.C. Mar. 31, 2011) (Kollar-Kotelly, J.) 

Re:  Remaining at issue, certain records related to the grand jury that indicted plaintiff

Holding:  Granting EOUSA's motion for summary judgment on the basis that the search was adequate and its claims of exemption were justified and denying plaintiff's motion for summary judgment

• Adequacy of search:  The court finds EOUSA's search was adequate where one of the attorneys who prosecuted plaintiff provided a declaration "explain[ing] that he searched all the files pertaining to [plaintiff] that were maintained either by personnel who were involved in [plaintiff's] criminal case or by [the office's] Grand Jury Coordinator" and "further explain[ing] that these are all the records within the U.S. Attorney's Office for the District of Massachusetts that are likely to contain records responsive to [plaintiff's] request."  Despite plaintiff's assertions to the contrary, the court finds that "[t]he fact the search did not turn up any documents relating to the extension of the grand jury term or the legal basis for convening the grand jury does not mean that the agency's search was inadequate."  Additionally, "the agency's previous failure to demonstrate that it conducted an adequate search does not call into question the validity of its new search for responsive records."  With respect to plaintiff's complaint that he should be provided "docket entries from his criminal case," the court finds that "EOUSA is only required to produce records that were in its custody or control at the time of the search, not records maintained by the courts."

• Agency requirements:  EOUSA is not required to give "affirmative answers to [plaintiff's] questions about his grand jury term," because "FOIA does not obligate agencies to create or retain documents."

• Exemptions 3 & 7(C):  "The court agrees that EOUSA appropriately invoked Exemptions 3 [in connection with Federal Rule of Criminal Procedure 6(e)] and 7(C) to redact the names of third-party individuals who appear to have participated in the grand jury proceedings."  The court notes that plaintiff "does not argue that EOUSA improperly invoked these exemptions" and that it appears that "all [reasonably segregable] non-exempt information has been produced from the responsive records."      

2.  Judicial Watch, Inc. v. DOJ, No. 06-406, 2011 WL 1195789 (D.D.C. Mar. 31, 2011) (Kennedy, J.)

Re:  Request for legal opinions, orders, and other documents related to the Terrorist Surveillance Program

Holding:  Granting plaintiff an award of attorney fees

• Attorney fees/legal standard:  As an initial matter, the court determines that it need not determine whether to apply "the catalyst test (which took effect while this case was pending) or the stricter Buckhannnon test (which was in effect when the case was filed),""because even under the stricter Buckhannon test, [plaintiff] has substantially prevailed."  Attorney fees/eligibility: Under Buckhannon, the court finds plaintiff "substantially prevailed by virtue of the Court's August 2006 acceptance of the parties' joint stipulation."  Citing the D.C. Circuit's decisions in Judicial Watch, Inc. v. FBI and Davy v. CIA, which found that FOIA plaintiffs "prevailed" on the basis of joint stipulations approved by district courts that required the production of documents, the court concludes that its minute order in this case "fits squarely within the holdings of these cases" because it "'require[ed] the [defendant] to produce all responsive documents by the specified dates.'"  Additionally, the court finds that "DOJ's response – that the Court's order was merely procedural because it did not rule on the merits of [plaintiff's] claim – is an argument that the D.C. Circuit has repeatedly rejected" in Judicial Watch, Davy, and Campaign for Responsible Transplantation v. FDA.

• Attorney fees/entitlement:  Examining the four entitlement factors, the court concludes that plaintiff is also entitled to attorney fees.  In terms of the public benefit factor, the court concludes "dissemination of the information at issue is clearly in the public interest," noting that "the Terrorist Surveillance Program has been the subject of legislative inquiry . . . and significant litigation."  The court rejects DOJ's argument that "any benefit the public has received from [plaintiff's] suit is largely negated by the fact that many of the requested documents were subject of an earlier filed FOIA claim" which was part of different litigation.  The court finds that DOJ has not provided any evidence to the extent to which this material has been publicly disseminated and concludes that "this factor weighs in favor of [plaintiff], albeit with somewhat less force than if none of the documents requested had been released before." 

With respect to the second and third entitlement factors, any commercial benefit and the nature of plaintiff's interest in the records at issue, the court points to plaintiff's uncontested statement that "its purpose – to obtain and disseminate information of interest to the public – is entirely non-commercial and public-oriented."  The court finds this argument persuasive and, as such, finds that these factors weigh in favor of an award of fees.  Lastly, as to the fourth entitlement factor, the reasonable-basis-in-law, the court determines that "[e]ven though DOJ's conduct after the suit was filed was generally reasonable, [its] initial failure to respond still weighs in favor of a fee award."

• Attorney fees/reasonableness of hours:  With regard to DOJ's challenge to the number of hours for which plaintiff seeks compensation, the court finds that DOJ has "failed to provide 'specific countervailing evidence' that establishes the unreasonableness of any specific portion of [plaintiff's] request" for fees.  As to DOJ's request that the lodestar amount "be adjusted downward by fifty percent to reflect the fact that [plaintiff] ultimately obtained less than one quarter of the documents it initially sought," the court finds that DOJ provides no basis for that figure and notes that its "argument appears to neglect the fact that FOIA cases routinely result in the disclosure of a relatively small portion of the documents originally requested."

3.  Int'l Counsel Bureau v. CIA, No. 09-2269, 2011 WL 1195875 (D.D.C. Mar. 31, 2011) (Bates, J.)

Re:  Request for records pertaining to four individuals allegedly or previously detained at Guantanamo Bay Naval Base, Cuba

Holding:  Granting CIA's motion for partial summary judgment as to its assertion of the Glomar response on the basis of either Exemption 1 or Exemption 3

• Exemption 1/Glomar:  The court holds that the CIA properly refused to neither confirm nor deny the existence of any records pertaining to four alleged Guantanamo Bay detainees on the basis that "'clandestine intelligence interest in a  specific individual represents an intelligence activity, source and/or method' and is classified information within the meaning of Executive Order 12,958."  Further, "unauthorized disclosure could reasonably be expected to cause serious damage to national security" and such information about a foreign national is properly classified "because it concerns U.S. foreign relations, and disclosure could reasonably be expected to 'adversely affect' U.S. foreign relations."  At the outset, the court comments that it must "acknowledge the substantial weight accorded to agency affidavits with respect to the classified status of a record" and "while the review of the CIA's 'Glomar' response invoking Exemption 1 must be careful, it remains somewhat deferential to the CIA's national security expertise."  The court finds that the "CIA provided 'reasonably specific detail' about the classified nature of the information, as well as the harm to national security and the adverse effect on foreign relations if the CIA was required to confirm or deny the existence of any records about the specific detainees at issue." 

The court dismisses plaintiff's contention that similarities in the CIA's declaration filed in the instant case and those filed in another FOIA case "should prompt the court to take a skeptical view of the CIA's reliance on national security concerns to support its invocation of a 'Glomar' response here."  Rather, quoting the D.C. Circuit in Larson v. Department of State, the court notes that it is "'not disquieted by [the agency's] similar responses in similar cases . . . [and] similar exemption explanations . . . is not a cause for further judicial inquiry.'" 

• Exemption 3/Glomar:  The court finds that, for the same reasons that asserted with respect to Exemption 1, the CIA properly invoked Exemption 3 in connection with sections of the National Security Act of 1947 and the CIA Act of 1949 as a basis for neither confirming nor denying the existence of information pertaining to four alleged Guantanamo detainees.  The court notes that "[a]s an initial matter, the provisions of the NSA and the CIA Act cited by the Agency plainly are statutes contemplated by Exemption 3."  The court rejects plaintiff's claim that "the 'Glomar' response is not justified because '[i]t is not a secret" that the detainees were in the U.S. government's custody at Guantanamo."  In order to show an official acknowledgment on the part of the CIA, the court notes plaintiff bears the "burden of pointing to the specific information in the public domain that duplicates the information being withheld."  Here, the court finds that plaintiff "has pointed to no evidence that the CIA has specifically acknowledged that it possesses records with respect to the four individuals who are the subjects of [plaintiff's] FOIA requests."  The court concludes that plaintiff's proffered evidence, consisting of a reference to an interview with the then-CIA director concerning other detainees, news articles and a report issued by the Red Cross, are not sufficient demonstrate the CIA has waived its ability to assert the Glomar response.  Additionally, the court determines plaintiff's "reliance on the Department of Defense's disclosure of its own intelligence interest in the four detainees is also unavailing, since disclosure by one agency cannot be imputed to another agency" and adds that "[t]he same reasoning applies even where another agency may have in its possession information obtained and originating from the CIA."    

• Adequacy of search/declarant:  The court agrees with the CIA that its declarant is appropriate where the declaration "clearly states that as [National Clandestine Service (NCS)] Information Review Officer, he coordinates CIA support to other federal departments and agencies, rather than just NCS-specific support," he "is 'authorized to conduct classification reviews and to make original classification and declassification decisions'" and "[t]he declaration does not indicate that [his] authority or role is limited to NCS-specific documents."  "More importantly, because the Court has already determined that the CIA's 'Glomar' response was appropriate under Exemptions 1 and 3, and was adequately supported by affidavit, review of the adequacy of the search is unnecessary." 

4. Griffin v. EOUSA, No. 09-1517, 2011 WL 1211354 (D.D.C. Mar. 31, 2011) (Leon, J.)

Re:  Request for records pertaining to plaintiff; third-party arrest warrant; and third-party transfer records

Holding:  Resolving the last issue in case by granting USMS's motion for summary judgment on its claims of exemption and the adequacy of its searches

Adequacy of declarant:  The court rejects plaintiff's argument that USMS's "supplemental declaration fails to satisfy the 'personal knowledge' requirement" of Federal Rule of Civil Procedure 56(c)(4), finding that declarant "is competent to testify to the matters at hand" where he supervised the search for and release of responsive records.

•Exemption 7/threshold:  In an earlier opinion, the court "determined that plaintiff had raised a genuine issue as to whether the requested records were compiled for law enforcement purposes," but now finds that threshold of Exemption 7 is satisfied "[g]iven that the requested records would have been compiled to 'assist the USMS in carrying out its statutory law enforcement responsibilities related to the execution of federal arrest warrants[,] the investigation of fugitives, [and] the [transport and maintenance] of federal prisoners from . . . their arrest [to final disposition].'" 

• Exemption 7(C):  In terms of the privacy interests at stake, the court agrees with USMS that "third-party information contained in law enforcement files is 'categorically exempt' from disclosure under Exemption 7(C) in the absence of an overriding public interest in its disclosure."  Conversely, the court finds that "[p]laintiff's unsubstantiated claim of official misconduct" is not sufficient to establish a public interest in disclosure.  Identifying "substantial" privacy interests and no public interest in disclosure, the court holds that "USMS is entitled to summary judgment on its application of Exemption 7(C) to the third-party's personal information that was redacted from the released forms." 

• Adequacy of search:  As to plaintiff's assertion that USMS's search was inadequate because it failed to search a particular district office, the court finds that "[p]laintiff's speculation that records may be found in locations not searched fails to create a genuine dispute about the reasonableness of the USMS's search."  Additionally, the court finds that USMS's search was adequate where it searched its electronic indices to identify the location of responsive records, contacted FOIA liaisons in the district offices, conducted a search using names and personal identifiers, and described the disposition of the records.

5.  Lowy v. IRS, No. 10-767, 2011 U.S. Dist. LEXIS 34168 (N.D. Cal. Mar. 30, 2011) (Illston, J.)

Re:  Request for various tax records related to plaintiffs and their company

Holding:  Denying both defendant's and plaintiffs' motions for summary judgment and ordering defendant to supplement its submissions

• Adequacy of search:  The court holds that the IRS conducted an adequate search for responsive records.  Despite plaintiffs' arguments to the contrary, the court finds the agency's declarations "provide sufficient details as to the method and scope of the search," undertaken by the IRS.  The court notes that "the plaintiffs provide no reason to suspect – that documents responsive to plaintiffs' FOIA requests may referenced in" databases other than the one searched by the IRS "and/or were not otherwise captured by [the] search and production" of the "agent in charge of the IRS's examination into plaintiffs' tax affairs."  Additionally, the court finds that "the fact that additional searches were conducted by the IRS and additional responsive documents located after the inception of litigation . . . does not entitle plaintiffs to relief on their claim that the search was deficient."  In sum, the court concludes that "[p]laintiffs fail to point to any evidence that unidentified responsive documents exist or that there are obvious custodians or sources of responsive information that have not been included in the search." 

• Exemption 3:  With respect to the records withheld under 26 U.S.C. § 6105(a), which protects tax convention information, the court, at the outset, notes that "in order to qualify for protection as tax convention information under 6105, the IRS must first demonstrate that the documents that it seeks to withhold under 6105 qualify as return information under 6103(b)(2)(A)."  Here, the court finds that the IRS's declaration detailing the withholding of information under that section is "too 'conclusory and generalized' to meet [the IRS's] burden."  Accordingly, the court directs the IRS to submit a supplemental declaration "providing a general description of the categories of documents withheld under 6105 and whether they are return information as defined by section 6103(b)(2)(A)." 

The court then notes that "[i]f the documents are properly characterized as return information, the next question is whether they can be characterized as 'tax convention information' for the purposes of 26 U.S.C. § 6105."  The court finds that "the documents that the IRS has described as received from Australia or the United Kingdom are exempt from disclosure, so long as they can be characterized as return information under section 6103."  However, based on the declarations, the court determines that it is unclear "whether [some of] these documents were received from or sent to Australia" and that "[i]nformation sent to Australia is only protected insofar as it covers information relating to and/or reflecting information the IRS received from Australia."  As such, the court holds that "the IRS must make a showing that these documents are tax convention information in that they relate to and/or reflect information that was received from Australia."  Additionally, the court finds that the IRS must justify its assertion of section 6105 for certain withheld records for "which do not, on their face, appear to be tax convention information."  Lastly, the court notes that "provided the IRS shows that the withheld documents are tax return and tax convention information in amended submissions, this Court will give deference to [the agency declarant's] determination that releasing the withheld documents would seriously impair tax administration." 

As to the documents that were not tax convention information, the court finds that, based on descriptions contained in the IRS's Vaughnindex, the IRS properly asserted Exemption 3 in conjunction with 26 U.S.C. § 6103(e)(7), which protects "return information" related to tax liability.  The court determines that the IRS has shown that its "civil investigation of plaintiffs is still ongoing, so, unlike [a case where documents were furnished to the IRS after liability had been determined], tax liability [in this case] has not yet been established."  Additionally, the court concludes that "[g]iven the scope of the information plaintiffs seek, and the IRS declarations explaining that release of the administrative file materials would impair their ongoing examination, . . . the release of the requested documents could 'disclose the direction of potential investigation to be followed' and they can properly be withheld." 

• Exemption 7(A):  The court determines that these records were also properly withheld under Exemption 7(A) where "the IRS's submissions show that the release of the documents would interfere with the civil examination."

• Exemption 6:  The court concludes that the IRS's "Vaughn Index provides sufficient justification for the withholding and/or redaction of personal information [such as mobile telephone numbers, bank account numbers of third parties, and similar types of information] under Exemption 6."

6.  Benavides v. BOP, No. 09-2026, 2011 WL 1195800 (D.D.C. Mar. 30, 2011) (Roberts, J.)

Re:  Requests for records pertaining to prison telephone calls made by plaintiff to his attorney

Holding:  Granting BOP's motion for summary judgment in part and denying in part without prejudice and denying plaintiff's motion

• Adequacy of search & Exemption 2:  "[T]he Court treats as conceded the BOP's arguments with respect to the adequacy of its search for records responsive to plaintiff's FOIA requests and its decision to withhold user identification codes under Exemption 2" where plaintiff's opposition states that it challenges "only the withholdings" related to certain telephone recordings.  

• Exemption 7/threshold:  The court agrees with plaintiff that BOP has failed to establish that conversations recorded on its computer systems which monitors, tracks and records inmate telephone calls, were compiled for a law enforcement purpose.  The court finds that BOP's reliance on its "status as a law enforcement agency responsible for the welfare of inmates in its custody, its staff and the public at large" is not sufficient to show that the records at issue satisfy the two-part Pratt rational nexus test articulated by the D.C. Circuit.  That test requires that an agency establish that "'the investigatory activity that gave rise to the documents is related to the enforcement of federal laws, and there is a rational nexus between the investigation at issue and the agency's law enforcement duties.'"  Here, the court finds that "BOP's supporting declaration neither identifies a particular individual or incident subject to an investigation nor connects a particular individual or incident to a potential violation of law." 

7.  Judicial Watch, Inc. v. Bd. of Gvn'rs of Fed. Reserve Sys., No. 09-2138, 2011 WL 1134414 (D.D.C. Mar. 29, 2011) (Roberts, J.)

Re:  Request for visitor logs from the offices of Ben Bernanke, the Chairman of the Board, and a member of the Board

Holding:  Granting the Board's motion for summary judgment where all that was withheld were entries for personal visits

• Adequacy of search:  The court determines that the Board's search for responsive records was adequate where plaintiff did not contest the scope of the search and the declaration established that "the search was reasonably likely to produce results responsive to [plaintiff's] request." 

• Exemption 6:  The court concludes that the Board properly redacted the names and organizations for entries indentified as personal visits from the requested visitor logs pursuant to Exemption 6.  The court rejects plaintiff's claim that "with the exception of visitors identified as family members, the private visitors 'could have been anyone, meeting high level government officials for what, at the moment, are completely unknown purposes.'"  Here, the Board "confirmed with the offices of Bernanke" and a member of the Board that "'the visit was in fact of a personal nature and was in no way business related.'"  The court finds that plaintiff's "[m]ere speculation that the visits may not have been, in fact, personal is insufficient to rebut the presumption of good faith accorded to the agency affidavit." 

In terms of the privacy interest, the court concludes that "visitors have at least some privacy interest in protecting their names from disclosure, as it is quite conceivable that parties other than [plaintiff] might be interested in obtaining the names of individuals personally affiliated with high-ranking members of the Board."  Conversely, "the names of the personal visitors reveal nothing about the Board's activities or conduct, [so] there is no public interest in disclosure."  Accordingly, "[b]ecause [the] privacy interest is more than de minimis, the Board's withholding under Exemption 6 was proper."   

• Segregability:  The court concludes that the Board released all reasonably segregable nonexempt information where it withheld only the first and last names of personal visitors, and in two instances withheld the visitors' organization, which would have revealed the identity of the visitor.  Plaintiff did not challenge this point.

8.  Reno Newspapers, Inc. v. U.S. Parole Comm'n, No. 09-683, 2011 U.S. Dist. LEXIS 33957 (D. Nev. Mar. 29, 2011) (Reed, J.)

Re:  Request for records pertaining to third party inmate

Holding:  Granting in part and denying in part plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment

• Adequacy of Vaughn index:  The court finds that plaintiff's argument that the defendants' "Amended Index fails as a proper Vaughn index because 'it is not in affidavit form and/or sworn to,'" fails.  Citing the Ninth Circuit in Fiduccia v. DOJ, the court notes that "'what matters is the substantive adequacy of the disclosures in whatever form . . . [a]ny form – letter, Vaughn index, affidavit, copy of redacted document – may be adequate or inadequate depending on the circumstances.'" 

• Exemption 5 (deliberative process privilege):  Defendants adequately showed that the communications withheld pursuant to the deliberative process privilege where "both predecisional and deliberative" in nature.  As such, the court rejects plaintiff's contention that the agency failed to "allege[ ] any facts to show that the deliberative process would be compromised."  With respect to plaintiff's argument that lapse of time between the creation of the requested documents and the FOIA request for those records "is material," the court notes that "FOIA protection . . . does not come with an expiration date."  "To impose a time limit on the protection for communications involving an agency's deliberative process would effectively eliminate the incentive for the frank and open discussion of ideas that Exemption 5 is intended to engender." 

• Exemption 6/segregability:  The court holds that "[g]iven Plaintiff's and the public's strong interest in the Defendants' determination that [the subject of the request] was eligible for parole and the congressional policy in favor of disclosure," the defendants must release "all segregable" information from documents that were withheld in full such as the subject's "parole application, [U.S. Parole Comission's (USPC's)] assessment prepared before a parole hearing, USPC's initial parole hearing summary, bank statements, and monthly parole supervision reports submitted by [the subject] to the [United States Probation Office (USPO)] Probation Officer."  The court reasons that "[b]oth Plaintiff and the public have a strong interest in the disclosure of information regarding Defendants' decision that [the subject] was a suitable candidate for parole, as the motivating factors behind this decision could indicate a deficiency in our nation's parole system."  Moreover, the court finds that the subject's "privacy interest in the withheld documents appears to range from a clear privacy interest in the medical . . . and bank records . . . to a more nebulous one in documents such as a USPO Probation Officer's chronological reports."  Additionally, the court notes that "there does not appear to be an alternate source of [the] information" at issue. 

• Exemption 7/threshold:  The court finds that "[a]bsent compelling evidence presented by Plaintiff to the contrary, [it] is persuaded that [the USPC and UPO] are agencies with law enforcement mandates for purposes of Exemption 7" based on their law enforcement functions that derive from the Parole Commission and Reorganization Act.  The court dismisses plaintiff's argument that "Defendants rely solely on their status as law enforcement agencies as the premise from which we should conclude that any record maintained by the Defendants was compiled for law enforcement purposes."  Instead, the court determines that "Defendants provide a description [with respect to each Vaughn index entry citing Exemption 7] of how the particular document has a rational nexus to Defendants' law enforcement activities." 

9.  World Pub. Co. v. DOJ, No. 09-574, 2011 U.S. Dist. LEXIS 32594 (N.D. Okla. Mar. 28, 2011) (Kern, J.)

Re:  Request for booking photographs or "mug shots" of six individuals

Holding:  Concluding that Tulsa World established that it has standing to bring the instant lawsuit; and granting USMS's motion for summary judgment on the basis that it properly withheld booking photographs of third parties pursuant to Exemption 7(C)

• Proper party plaintiff/standing:  The court concludes that "Tulsa World has met its burden of showing that [one of its editors] . . . adequately informed the Defendants that she was making the FOIA request on its behalf."  The court notes "[t]here was no indication in the [request] that [the editor] was a freelance journalist who wrote for several publications, and there is no indication that [she] planned to use the booking photographs in any capacity other than for publication in Tulsa World."  As such, "a reasonable reader would conclude that [the editor] requested the mugshots as an agent of and on behalf of a local newspaper."  In addition, defendants identified Tulsa World as the appellant in administrative appeals correspondence.  Accordingly, the court concludes "at all stages of the request and appeal process, Defendants were on notice that Tulsa World made the FOIA request" and, therefore, "Tulsa World has satisfied its burden of establishing standing." 

• Discovery:  The court denies plaintiff's request for discovery as to whether USMS has released booking photographs outside of the jurisdiction of the Sixth Circuit, the posting of mug shots of captured fugitives on the USMS website, the relationship between USMS and the Tulsa County Sherriff's Office, evidence concerning the privacy interest of the six individuals at issue, and defendant's prior legal positions.  The court finds that these issues are either adequately addressed in USMS's declaration, which is entitled to a presumption of good faith, or has been considered by the court in the instant ruling.  Additionally, plaintiff "has failed to raise substantial questions concerning the content or good faith of [USMS's] [d]eclaration."   

• Exemption 7(C):  The court conducts categorical balancing and holds that USMS properly invoked Exemption 7(C) to withhold the booking photograph of six individuals, who at the time of the FOIA request, "were indicted on federal charges, detained, and awaiting trial."  In terms of the privacy interest at stake, the court finds that "(1) booking photographs are stigmatizing depictions that preserve 'in [a] unique and visually powerful way, the subject individual's brush with the law for posterity,' and (2) indictees could reasonably 'object to public disclosure of his or her mug shot.'"  Additionally, "[e]ven more than an ordinary photograph, citizens have a privacy interest – i.e., an interest in avoiding disclosure of – booking photographs because of their stigmatizing effect and their association with criminal activity."  Moreover, "[t]he Court rejects any notion that federal indictees lose a privacy interest in their booking photographs simply because they have been charged with a crime, are the subject of ongoing criminal proceedings, and are therefore some type of 'public figure' with reduced expectations of privacy."  To the contrary, the court finds that "[t]here is no precedent for importing 'public figure/private person' distinctions or 'expectation of privacy' standards from other areas of law to the Exemption 7(C) analysis." 

• Public domain:  With respect to the public availability of mug shots, the court finds that the "'careful and limited pattern' of authorized disclosure" for law enforcement purposes, as "evidenced by federal statute, federal regulation, the [USMS] Policy, and [USMS's] declaration" shows that USMS's policy of restricting the disclosure of booking photographs "is indeed followed in every jurisdiction except the Sixth Circuit."  The fact that USMS may post booking photographs of captured fugitives on its website "does not impact the Court's conclusion" that these photos are not generally released for public viewing.  Additionally, the court finds that the release of state booking photographs does not "remove the privacy interest that would otherwise attach under Exemption 7(C) to that same prisoner's federal booking photograph."  The court also rejects plaintiff's argument, based on the Sixth Circuit's decision in Detroit Free Press v. DOJ, that "due to the circumstances surrounding a booking photograph, the booking photograph has essentially already been made freely available to the public."  Instead, the court dismisses such "cramped notion of personal privacy," finding that booking photographs "allow the public to connect a name, a criminal charge, and a face" and therefore are "arguably even more private than rap sheets [discussed by the Supreme Court in Reporter's Committee] because the federal mug shot itself is not yet in the public domain at all."  Moreover, "a mug shot captures an entirely different piece of private information" than an indictment because it "captures an expression and a moment in time not otherwise available to the public in any other manner." 

In terms of the public interest, the court determines that "disclosure of federal booking photographs is not likely to contribute significantly to public understanding of federal law enforcement operations or activities."  The court rejects plaintiff's various arguments in favor of public disclosure.  For one, the court finds that "[i]t is an entirely speculative and dubious proposition that disclosure of booking photographs would, on balance, assist federal officials in catching more criminals or catching the correct criminals."  Similarly, plaintiff's stated public interest that disclosure would "show whether the detainee took the charges seriously" "does nothing to shed light on government activities or operations."  Regarding plaintiff's claims that disclosure would uncover government misconduct, the court determines that "an indictee's appearance at the time of his mugshot is not necessarily attributable to his treatment by law enforcement officials."  With respect to allegations of racial profiling, the court finds that "[e]ven assuming the public could properly categorize individuals based on their booking photographs, sheer numbers are not likely to meaningfully contribute to this public discussion."  Based on the foregoing, the court concludes that the balance "tips decidedly in favor of privacy, and disclosure of booking photographs could reasonably be expected to constitute an 'unwarranted' invasion of personal privacy."  

10.  Cherricks v. Univ. of Del., No. 10-1015, 2011 U.S. Dist. LEXIS 31883 (D. Del. Mar. 28, 2011) (Stark, J.)

Re:  Request submitted to the University of Delaware

Holding:  Dismissing complaint of plaintiff, who had been granted in forma pauperis status, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)

• Proper party defendant:  "Because the University of Delaware is not an agency of the federal government, the Complaint fails to state a FOIA claim."

Topic(s): 
FOIA

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Updated August 6, 2014