Summaries of New Decisions - February 2012

Summaries of New Decisions - February 2012

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 FEBRUARY 6

District Courts

1.  Milton v. DOJ, No. 08-242, 2012 WL 386479 (D.D.C. Feb. 8, 2012) (Roberts, J.)

Re:  Requests for recordings of telephone conversations that plaintiff made from prison to third parties; at issue is BOP's ability to reasonably segregate portions of the telephone recordings

Holding:  Granting BOP's renewed motion for summary judgment on the basis that certain telephone conversations are not reasonable segregable because BOP lacks the technological capacity to segregate the non-exempt portions

• Segregability:  The court holds that BOP is not required to segregate the plaintiff's side of the telephone conversations at issue where it lacks the technological capability to do so.  As to plaintiff's contention that there are "multiple free and low-cost programs . . . that would enable the BOP to edit the .wav files at issue," the court concludes that plaintiff "has not presented any authority for the proposition that the FOIA obligates agencies to acquire new technological capacity in order to comply with disclosure requests."  Additionally, the court finds that BOP's "failure to demonstrate efforts to secure the technology necessary to edit .wav files, where the agency is under no obligation to do so, is not evidence of bad faith." 

2.  Hernandez v. U.S. Customs & Border Protect. Agency, No. 10-4602, 2012 U.S. Dist. LEXIS 14290 (E.D. La. Feb. 7, 2012) (Barbier, J.)

Re:  Request for records pertaining to plaintiff and certain immigration enforcement actions initiated by Customs and Border Protection (CBP)

Holding:  Awarding attorneys' fees and costs to plaintiff in the amount of $51,526.60; and declining to refer the matter to the Office of Special Counsel where CBP's conduct in responding to plaintiff's FOIA request did not rise to the level of arbitrary and capricious

• Attorney fees:  The court awards plaintiff attorneys' fees and litigation costs in the amount of $51,526.60.  Elgibility: In terms of plaintiff's eligibility for attorneys' fees, the court finds that "even accepting [CBP's argument] that Plaintiff has not 'substantially prevailed' on the basis of the catalyst theory," plaintiff's is eligible for attorneys' fees based on the court's order which granted his motion for partial summary judgment.  Moreover, the court comments that "even if it is true that [CBP's] decision to perform the searches that uncovered the[ ] records was voluntary [as defendant asserts], the same cannot be said for its decision to disclose them."  The court finds that many of the documents identified by plaintiff were withheld in full and "[o]nly after the Court granted Plaintiff's motion for partial summary judgment, over Defendant's objections, were any of these documents released to Plaintiff."  The court determines that "[t]his order altered the legal relationship of the parties in Plaintiff's favor, which is all that is required to establish his eligibility for a fee award under FOIA" and it is on this basis that the court finds that plaintiff demonstrated that he has "substantially prevailed." 

Entitlement:  In terms of the entitlement factors, the court finds that the public benefit derived from this litigation weighs in favor of a fee award where "Plaintiff has used the records disclosed as a result of this case to increase public awareness of [immigration enforcement issues and the plight of immigrant workers], as well as to facilitate public oversight of CBP's enforcement of federal immigration law in the New Orleans area, both as it related to his own [deportation] case and in general."  As to the commercial benefit to plaintiff, the court finds that as "an immigrant day laborer with essentially no monetary resources," who is "represented by a public interest organization that performs substantial advocacy work in the day laborer community," "[a]n award of fees in this case would appear to enhance Congress's goal that agency decisions should receive judicial review even when the requestor cannot afford to pay the costs of bringing a lawsuit."  The court also finds that nature of the plaintiff's interest in the records sought favors an award, noting that while plaintiff's interest in the records as they relate to his deportation case is personal, it "also implicates the strong public interest in preserving the administration of justice in our nation's immigration courts."  Moreover, the court finds that "Plaintiff's request was not solely self-motivated; he also sought information in order to raise awareness of issues of public import from which other individuals could benefit."  The court notes that although "it is true, as Defendant suggests, that some courts have recognized that an award of attorneys' fees is generally inappropriate when a litigant utilizes FOIA as a means of obtaining earlier access to information for use in other pending litigation," this case involves a deportation proceeding for which "no formal discovery [is] available to a respondent" and "FOIA is essentially the only means available for an individual to obtain information for use in a deportation proceeding."  As to the fourth factor, i.e., the government's basis for withholding the records sought, the court finds that while "the Court agrees that Defendant's conduct after the commencement of this action was not particularly unreasonable," "this fails to account for Defendant's wholesale disregard of Plaintiff's FOIA request prior to the time that suit was filed."  The court notes that "[h]ere, Defendant offers no explanation for its failure to respond to Plaintiff's initial request or to his follow-up communications," and concludes that this factor also "weighs in favor of a fee award." 

Reasonableness of requested attorney's fees:  The court uses the lodestar method to calculate the fee award.  In terms of the reasonableness of the hours spent by plaintiff's attorneys, the court determines that "the billing records kept by counsel in this case are sufficiently clear and detailed in order to allow for adequate review, and that the hours expended are reasonable" and finds that there is "no basis to conclude that any of the work for which compensation is requested was excessive, duplicative, or otherwise unnecessary."  In terms of the hourly rates of each participating attorney, the court reduces the rates based on its review of recent case law within the district from $350 an hour for one attorney to $300 and from $200 to $180 per hour for another.  The court notes that using the revised figures yields "an aggregate total of $48,909.00," which is presumptively reasonable.  The court then considers the factors enumerated by the Fifth Circuit in Johnson v. Georgia Highway Express in order to determine whether adjustment of the lodestar amount is warranted.  Reviewing fee awards in FOIA litigation outside the district, the court "is sufficiently satisfied that the fee award in this case is not disproportionate to those awarded in other similar cases."  Lastly, the court awards plaintiff litigation costs consisting of deposition transcription costs, and filing fees.

• Referral to Special Counsel:  The court finds that "although CBP's initial failure to respond to Plaintiff's request was unreasonable, on the whole, the Court finds the conduct of the agency personnel involved does not rise to the level of arbitrariness and capriciousness."  Accordingly, the court declines to issue "a written finding that the CBP employees involved acted in an arbitrary and capricious manner, such that the Special Counsel of the Merit Systems Protection Board [could] initiate an inquiry into the need for disciplinary proceedings against those employees" pursuant to 5 U.S.C. § 552(a)(4)(F).

3.  Pub. Emps. for Envtl. Resp. v. U.S. Int'l Boundary & Water Comm'n, No. 10-19, 2012 WL 375517 (D.D.C. Feb. 7, 2012) (Lamberth, J.)

Re:  Requests for a copy of the retainer agreement between the U.S. International Boundary and Water Commission (the Commission) and a law firm concerning a matter before the Merit Systems Protection Board (MSPB) involving the Commission's decision to remove its general counsel; and records that evidenced the source of funds to pay the firm; at issue is the adequacy of the Commission's search related to the portion of its request concerning the source of the funds

Holding:  Dismissing plaintiff's Administrative Procedure Act claim sua sponte; granting plaintiff's motion for summary judgment and issuing declaratory relief that the Commission "is in violation of FOIA by failing to perform an adequate search for records"; and remanding the matter to the Commission in order to conduct a search in accordance with the court's order and to submit a Vaughn index

• Administrative Procedure Act claim:  The court sua sponte dismisses plaintiff's Administrative Procedure Act claim "since it arises from the Commission's response to the FOIA request and seeks the same relief as can be obtained through the FOIA claim itself." 

• Adequacy of search:  The court holds that the Commission's declarations are insufficient with respect to the adequacy of the agency's search for responsive documents.  The court finds that the Commission's submissions "only responded to a question that [plaintiff] did not ask - that is, 'Where did the funds come from that were used to pay [the law firm]?'"  The court finds that plaintiff did not ask that question, but rather "made a routine FOIA records request, calling for '[a]ll documents that evidence the source of the funds used to pay for representation by [the firm] in the [MSPB] matter [involving a Commission employee]."  The court notes that "[t]he Commission's obligation, under FOIA, was not to construe [plaintiff's] request narrowly as a call for the agency's opinion on a question and to produce some records supporting that unsolicited opinion; the agency's obligation was to begin a search for 'all' the documents it had on the topic, and to set the stage for a reasonable search by identifying the agency components and personnel that might have responsive records."  Accordingly, the court concludes that "[b]y impermissibly interpreting [plaintiff's] records request so narrowly, the Commission could not have conducted an adequate search."  Additionally, the court finds that "nowhere in its supporting declarations does the [C]ommission explain how it keeps its documents; which offices, and which personnel, might reasonably be expected to have responsive records; and how it arrived at its decision to search only the records of one employee in one office."  Moreover, the court notes that the Commission does not "refute or address [plaintiff's] reasonable contention that records may exist outside of [its] Acquisition Division."  On this basis, the court grants plaintiff's motion for summary judgment and issues declaratory relief, stating that "the Commission is in violation of FOIA by failing to perform an adequate search for records responsive to [plaintiff's] FOIA request."  Additionally, the court remands the matter to the Commission and orders it to conduct a search for responsive records in certain specified offices and to submit a Vaughn index. 

4.  Nat'l Immigr. Project of the Nat'l Law. Guild v. DHS, No. 11-3235, 2012 WL 375515 (S.D.N.Y. Feb. 7, 2012) (Rakoff, J.)

Re:  Request for records serving as the factual basis for the government's representation before the Supreme Court in Nken v. Holder that deportation of an alien before resolution of an appeal from an order of removal does not constitute irreparable injury because those who prevail can be afforded effective relief upon their return, including restoration of their status; at issue is a four-page chain of emails between the attorneys who argued before the Supreme Court in Nken and other government officials

Holding:  Granting, in part, plaintiff's motion for summary judgment and ordering defendants to disclose factual portions of an email chain that contain statements of agency policy; and, in all other respects, denying plaintiff's motion for summary judgment, and granting defendant's cross-motion for summary judgment 

• Exemption 5 (attorney work-product privileges):  Upon its review of the emails, the court determines that "they do contain, in part, . . . core work-product," for which plaintiff's arguments have "no relevance," but finds that "there are also factual recitations about existing practices that are independent of, and easily severable from, the core work-product."  Accordingly, the court "limit[s] its discussion to the question of whether these factual contents are protected from disclosure."   The court observes that none of the sources identified by defendants as the factual basis for the government's representations in Nken actually provide that support, and finds that "the email chain (as reviewed by the Court in camera) evidences an attempt to cobble together a factual basis for making the representation the OSG made to the [Supreme] Court."  The court determines that "[g]iven the absence of public disclosure of . . . [the] practices [of Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services] and the Government's assertion that it has a adopted a policy, such assertions must amount to a statement of policy" and therefore "the OSG's representation - which it made in a brief to this nation's highest court - constituted  'unilateral testimonial use' of the email chain at issue in this case and is not protected by work-product privilege." 

• Exemption 5 (attorney-client privilege):  As to defendants' reliance on the attorney-client privilege for the email chain, the court finds that "[t]he OSG disclosed the existence of a purported policy [through its 'unilateral testimonial use' of the factual contents of the emails] the details of which do not appear to reside anywhere outside the email chain."  Accordingly, the court concludes that defendants have waived the attorney-client privilege with respect to the factual portions of the emails because "[h]aving chosen to assert the existence of a previously undisclosed policy, the OSG cannot now claim that the attorney-client privilege protects the factual details on which it relied when it made that assertion."  "Independently, moreover, the Court further finds that no attorney client privilege attached" here because "to the extent that the OSG's client agencies described an existing but otherwise unknown policy to the OSG, those agencies had a duty under FOIA to make statements of policy available" and therefore "FOIA barred those agencies from intending to keep statements of their policy confidential." 

• Exemption 5 (deliberative process privilege):  With regard to defendant's deliberative process privilege claim, the court declines to adopt the government's argument that was based on OSG's statutory authority to decide how to present cases to the Supreme Court. 

• Segregability:  The court finds that "the government has not provided any justification, much less a 'detailed justification,' for finding that the non-exempt material in the email chain 'is not reasonably segregable' from the exempt material." 

WEEK OF FEBRUARY 13

District Courts

1.  Velazquez v. DEA Headquarters Unit (SARO), No. 11-820, 2012 WL 523919 (S.D. Cal. Feb. 16, 2012) (Sammartino, J.)

Re:  Request for laboratory results regarding the chemical composition of drugs associated with petitioner's criminal case

Holding:  Granting petitioner's motion to proceed in forma pauperis, and concluding that his claims are sufficiently pleaded to survive the sua sponte screening requirement of 28 U.S.C. § 1915(e)(2) where petitioner alleged that DEA acknowledged, but failed to respond to his FOIA request, and consequently determining the petitioner is entitled service by the U.S. Marshal Service on his behalf; and denying petitioner's motion to direct service as moot

2.  Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle, J.)

Re:  Request for records pertaining to an extradition request for plaintiff's sister

Holding:  Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party 

• Litigation considerations/standing:  The court "grant[s] defendant's motion to dismiss the amended complaint brought by [plaintiff's sister] under Rule 12(b)(1) for lack of standing" where "she was not a party to the underlying FOIA request."  The court concludes that the purported consent of plaintiff's sister submitted after the instant case was filed "does not cure the jurisdictional defect as to [her] because an agency's disclosure obligations are triggered by a request 'made in accordance with published rules . . . and procedures to be followed.'"  Furthermore, the court notes that "a merits determination with regard to records about [plaintiff's sister] would undermine exhaustion principles." 

• Exemption 1:  The court concludes that detailed information in defendant's declaration establishes that the State Department properly withheld "portions from a two-page telegram . . . sent from the American Embassy in Beirut to [the State Department] that were 'originally and currently classified confidential' under sections 1.4(b) and (d) of [Executive Order] 13526 . . . , and a two-page telegram . . . in its entirety" pursuant to Exemption 1. 

• Exemption 5 (attorney work-product privilege):  The court determines that the Department of State properly invoked Exemption 5 to protect "'information . . . that details legal advice given by attorneys of the Office of the [Le]gal Adviser . . . to officials in offices in the Department and at embassies abroad concerning the transport of an accused felon to the United States.'"

• Exemption 6:  The court finds that the Department of State properly invoked Exemption 6 to redact "the name of 'a U.S. individual' planning a 'private visit'" where it asserted "that disclosure of the name would constitute 'a clearly unwarranted invasion of personal privacy.'"

• Exemption 7/threshold:  The court rules that "[t]he threshold law enforcement requirement [of Exemption 7] is satisfied because the request seeks records pertaining to an extradition to answer to a criminal charge." 

• Exemption 7(A):  The court holds that the State Department properly asserted Exemption 7(A) to withhold in full a handwritten note containing attorney work-product, for which it also invoked Exemption 5, where defendant states that "the note 'reflects an ongoing law enforcement issue and potential strategies for handling the issue the release of which could hamper an ongoing law enforcement action.'"

• Exemptions 6 & 7(C):  The court finds that the State Department "properly withheld third-party identifying information under exemption 7(C), and exemption 6 . . . , and plaintiff has not argued the existence of an overriding public interest to compel disclosure of the otherwise exempt information."  Additionally, the court concludes that in the absence of "written consent to disclosure of [plaintiff's sister's] non-public records or plaintiff's showing of an overriding public interest," DOJ properly categorically withheld records concerning plaintiff's sister that were referred to it by the State Department.  The court finds that "[a]lthough [plaintiff's sister] has a public record of a criminal prosecution and conviction,  . . . she maintains a strong privacy interest 'in avoiding disclosure of personal matters, and [in] controlling information concerning . . . her person.'"

• Segregability:  The court is satisfied that the State Department complied with its obligation to disclose all reasonably segregable information where it conducted a document-by-document, line-by-line review of records released in part and properly withheld three documents in full. 

3.  Cunningham v. Holder, No. 10-1860, 2012 WL 414685 (D.D.C. Feb. 10, 2012) (Boasberg, J.)

Re:  Request for records pertaining to plaintiff's conviction on federal drug charges; at issue are grand jury transcripts, and DOJ's determination requiring plaintiff to submit a separate request for publicly available records

Holding:  Dismissing a federal employee and the United States as parties to the action and substituting DOJ as the proper party defendant; granting EOUSA's motion for summary judgment on the basis that it conducted an adequate search and supported its claims of withholdings under Exemption 3, and concluding plaintiff failed to exhaust his administrative remedies for public records

• Proper party defendant:  The court dismisses claims brought against Attorney General Holder and the United States and substitutes DOJ as the proper party to this action.

• Adequacy of search:  Noting that "[p]laintiff here does not challenge the adequacy of Defendant's search," the court "independently finds that the search was adequate" where EOUSA's declaration discusses how the database and the office likely to contain records responsive to plaintiff's request were searched. 

• Exemption 3:  The court concludes that EOUSA properly withheld grand jury transcripts pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e), which "bars the disclosure of matters occurring before a grand jury."  With respect to plaintiff's argument that release of the transcripts is in the public interest, the court finds that "[w]hatever Plaintiff means by 'public interest,' it is simply not a cognizable response to an otherwise valid FOIA withholding based on Exemption 3."  As to plaintiff's claim that the "'minutes can be disclosed if [they] do[ ] not reveal the inner workings of the grand jury,'" the court observes that "[b]y his own admission, Plaintiff here seeks precisely to learn what took place before the grand jury."

• Exhaustion of administrative remedies:  The court finds that plaintiff failed to exhaust his administrative remedies with respect to public records related to his criminal conviction where he did not submit a specific request to EOUSA seeking those records and did not pay any associated copying fees.  For one, the court finds that "EOUSA's request that Plaintiff submit a separate specific request for the public records is consistent with FOIA's requirements."  The court comments that "[t]he requirement of a specific request for public records . . . makes sense" in light of the "FOIA's statutory requirement that agencies 'make records promptly available,' . . . because, unlike non-public records, public records can generally be released more quickly without any need to process them for redactions."  The court concludes that "[p]laintiff here failed to pay the required copying fees, failed to request a waiver of those fees, and failed to raise this issue in his [administrative] appeal . . . , and failed to submit a specific request for public records as required by EOUSA." 

4.  Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2012 WL 424376 (D.N.H. Feb. 9, 2012) (Barbadoro, J.)

Re:  Request for all correspondence between an FAA program manager pertaining to plaintiff and an individual

Holding:  Granting, in part, summary judgment to FAA with respect to certain withholdings under the deliberative process privilege, and Exemptions 6 and 7(C); denying, in part, the FAA's motion for summary judgment as to other redactions under the deliberative process privilege as well as withholdings made pursuant to the attorney-client privilege, and ordering the FAA to supplement its Vaughn index or declaration with respect to those records or to submit them for in camera review; and declining to exercise its discretion to make an interim award of attorney's fees to plaintiff

• Exemption 5 (deliberative process privilege):  The court concludes that the FAA has adequately justified its assertion of the deliberative process privilege to withhold portions of draft responses to a congressional inquiry and discussions regarding the proposed responses.  At the outset, the court notes that the draft responses and associated discussion "are predecisional, as they predated the agency's final response and were prepared to assist the agency official charged with responding to the inquiry."  As to whether the draft responses and the employees' comments on the draft are deliberative, the court finds that the records "meet the First Circuit's 'deliberative document' test" because they "'formed an essential link in a specified consultative process,'" "reflect opinions of individual employees as opposed to the official position of the agency," and "release of the redacted information would inaccurately reflect the views of the agency, as it includes advice, recommendations, and conclusions not incorporated into the agency's final response."  The court rejects plaintiff's "argument that the deliberative process privilege does not attach to the draft responses because responding to a congressional inquiry involves neither the agency's decisional nor its policymaking function."  Rather, the court determines that "[t]he FAA had to respond to allegations [plaintiff] raised against the agency in the inquiry" and "the agency's response to that inquiry plainly involved a deliberative function entrusted to the agency."  As such, the court finds that "[t]he fact that the response is not a formal act of agency policymaking is irrelevant." 

However, the court finds that the FAA did not adequately justify its deliberative process privilege claim for "redactions in 29 email exchanges regarding implementation of the agency's December 2007 agreement with the Government of Bermuda."  As an initial matter, the court notes that although the emails post-date the FAA's agreement with the Bermudan government, they still may be considered predecisional since "[t]he agency clearly had to make subsequent decisions regarding implementation of the agreement."  Here, though, the court finds that the FAA did not provide adequate information for the court "to determine whether the email exchange predated any sort of contemplated agency decision or action regarding the project."  Accordingly, the court directs the FAA to supplement its Vaughn index or affidavit with respect to these records, or to submit them for in camera review.  

• Exemption 5 (attorney-client privilege):  With regard to "email exchanges between [an FAA manager] and FAA legal counsel," the court concludes that the agency "has neglected to supply the court with sufficient facts, either in its index or in the [agency's] affidavit, to permit a conclusion that the attorney-client privilege applies."  Noting that an agency cannot assume that the confidentiality requirement of the attorney-client privilege is satisfied "'merely because the documents are communications between a client and attorney,'" the court finds that "[d]escriptions of the eight pages with respect to which the FAA claims the privilege give no indication as to the confidentiality of the information on which they are based."  The court orders the FAA to provide a supplemental Vaughn index or declaration, or to submit the documents for in camera inspection.

• Exemption 6:  The court holds that the FAA properly withheld pursuant to Exemption 6 identifying information of an agency employee who was investigated for possible misconduct.  In terms of the privacy interests, the court notes that "[a]lthough a government employee investigated for performance-related misconduct 'generally possesses a diminished privacy interest' in comparison to private individuals, 'an internal criminal investigation would not invariably trigger FOIA disclosure of the identity of a targeted government employee.'"  Conversely, the court finds that where, as here, "the agency has disclosed the fact that an unnamed employee was accused of misconduct," "disclosure of the redacted information 'would shed little light on the conduct of the agency; rather, it would simply identify the alleged wrongdoer.'"  Moreover, the court notes that the individual named in the records "was a low-level FAA employee" and concludes that "disclosure of his or her identity would shed little light on the operation of the agency."

• Exemption 7/threshold:  The court finds that records containing communications between an Office of Inspector General (OIG) special agent and an FAA employee "made in the course of an OIG investigation" "were compiled for law enforcement purposes" and so satisfy Exemption 7's threshold. 

• Exemption 7(C):  The court determines that disclosure of an OIG special agent's contact information would constitute an unwarranted invasion of personal privacy under Exemption 7(C).  The court finds that the special agent's "privacy interest in keeping his contact information undisclosed is, substantial."  Moreover, the court concludes that plaintiff "has failed to demonstrate how the disclosure of [the] Special Agent['s] . . . contact information would reveal 'what the government is up to.'"  Public domain: The court finds unpersuasive plaintiff's argument that the information should be disclosed because it is available on a subpoena that was issued to plaintiff.  Rather, the court notes that "'[a]n individual's interest in controlling the dissemination of information regarding personal matters [such as one's home address] does not dissolve simply because that information may be available to the public in some form.'"

5.  Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 424852 (N.D. Cal. Feb. 9, 2012) (Ryu, Mag.)

Re:  Requests for approximately 571 alien files (A-files)

Holding:  Granting defendant's motion to dismiss the complaint, and granting plaintiff leave to file an amended complaint

• Litigation consideration/jurisdiction:  The court "denies DHS's motion to dismiss for lack of subject matter jurisdiction under § 552," which was based on defendant's assertion that plaintiff does not reside or have a principle place of business in this judicial district and the "vast majority of the A-files" requested are not situated in this district.  The court interprets § 552(a)(4)(B) "as a restriction on venue rather than subject matter jurisdiction."  The court also notes that it "need not address whether the Northern District of California is a proper venue for Plaintiff's claim, because DHS has waived any objection to venue by not raising it in its answer or the current motion." 

• Litigation considerations/exhaustion of administrative remedies: The court dismisses plaintiff's complaint with leave to amend where "Plaintiff has not sufficiently articulated" its claim regarding the lawfulness of DHS's regulation that requires requesters making FOIA requests for third party records to submit that party's written consent, and where "the complaint presents no other cause of action that would exempt it from complying with DHS's consent procedures."  The court notes that it "will not apply the administrative exhaustion doctrine [based on plaintiff's failure to comply with DHS's regulations], because the party's claim rests upon statutory interpretation."

The court also elects to address DHS's exhaustion argument, holding that because "DHS has responded to only one appeal in writing and has issued no decisions on any of" plaintiff's other 183 administrative appeals, "further appeals would be futile."  

WEEK OF FEBRUARY 20

Courts of Appeal

1.  World Publ'g Co. v. DOJ, No. 11-5063, 2012 WL 560891 (10th Cir. Feb. 22, 2012) (Kelly, J.)

Re:  Request for booking photographs for six pre-trial detainees

Holding:  Affirming the district court's decision that defendant's assertion of Exemption 7(C) to protect third-party booking photographs was appropriate; and concluding that the district court did not abuse its discretion in denying plaintiff's request for discovery

• Exemption 7(C):  The court holds that the United States Marshals Service (USMS) properly withheld the requested booking photographs pursuant to Exemption 7(C).  The Tenth Circuit considered the holding of the Sixth Circuit in Detroit Free Press, which had found no privacy interest in booking photos under certain circumstances, but then joined the Eleventh Circuit in finding that there was a privacy interest.  In response to plaintiff's argument that "booking photos are generally available from state law enforcement agencies," the court finds that "the actions of state law enforcement agencies in disclosing booking photos does not mean that USMS booking photos are generally available to the public outside of the Sixth Circuit."  The court concludes that "[p]ersons arrested on federal charges outside of the Sixth Circuit maintain some expectation of privacy in their booking photos."  As to the public availability of the photos, the court finds that "[e]xcept in limited circumstances, such as the attempt to catch a fugitive, a USMS booking photograph simply is not available to the public," and determines that notwithstanding any limited disclosures by USMS "'the purpose of Exemption 7(C) . . . remains intact' and applying the exemption is appropriate."  In terms of the public interests involved, the court finds that "there is little to suggest that disclosure of booking photos would inform citizens of a government agency's adequate performance of its function" or "would significantly assist the public in detecting or deterring any underlying government misconduct."  Additionally, the court finds that "[t]here is also little to indicate that the release of booking photos would allow the public to detect racial or ethnic profiling without more information, and profiling has not been alleged here."  Although the court opines that "[i]f a request was made on the basis of case-specific 'compelling evidence' of illegal activity, release might be appropriate after going through the proper Reporter's Committee analysis [set forth by the Supreme Court]," it concludes that in the instant case "when the public interest is balanced against the privacy interest in a booking photo, [plaintiff's] request would not further the purpose of the FOIA."   

District Courts

1.  Roman v. NSA, Nos. 09-2947, 09-4281, 09-3344, 09-2504 & 09-5633, 2012 WL 569747 (E.D.N.Y. Feb. 22, 2012) (Bianco, J.)

Re:  Requests for records related to functional magnetic resonance technology which plaintiff believes is being used by various agencies against U.S. citizens to control their thoughts; and request for records related to the CIA's processing of plaintiff's prior FOIA requests

Holding:  Granting summary judgment to the defendants based on the adequacy of their searches and the propriety of NSA's withholdings under Exemption 3, and the CIA's withholdings pursuant to Exemptions 3 and 5

• Adequacy of search:  As to plaintiff's request to the NSA, the court finds that the agency "reasonably considered the request regarding 'functional magnetic resonance imaging' [(FMRI)] to concern medically-related applications [and advised plaintiff that this technology is] outside the purview of the NSA's mission, which entails information assurance and signals intelligence."  Furthermore, the court notes that in the course of preparing for this litigation, the NSA "re-review[ed] its interpretation of plaintiff's . . .  requests," took the additional step of conducting "a search for the same topic of documents requested by a near-contemporaneous requester" who had submitted a more detailed request that elicited other search terms.  However, the court notes that "interpreting the request to include FMRI technology for non-medical purposes still would not have produced responsive information," because the court determines that the record that was responsive to the other similar request was properly withheld in full pursuant to Exemption 3.  Accordingly, the court concludes that the NSA's search was adequate. 

With respect to plaintiff's requests to the National Reconnaissance Office (NRO), and the Defense Advanced Research Projects Agency (DARPA), the court finds that these agencies' searches were sufficient where their declarations "set forth in reasonable detail the manner in which [their] files are organized, the files NRO [and DARPA] searched in responding to plaintiff's request, and the specific search terms used."  The court also concludes that the CIA's search for records pertaining to plaintiff's prior FOIA requests "was reasonable and adequate" where the agency described the parameters of its search and "aver[red] that all files likely to contain responsive materials were searched and that the records provided constitute a full response to plaintiff's request." 

• Exemption 3:  The court concludes that the NSA properly withheld a contract proposal pursuant to Exemption 3 in conjunction with 10 U.S.C. § 2305(g), which prohibits disclosure of contract proposals by certain agencies including the NSA.  Although the statute contains an exception that allows for the release of "'any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal," the court notes that "[t]he NSA's 'general practice' is not to set forth or incorporate by reference proposals submitted pursuant to a solicitation."  Additionally, the court determines that the CIA properly withheld information related to the "CIA's organization, functions, names and/or official titles" pursuant to the CIA Act of 1949, 50 U.S.C. § 403g, which requires the CIA to protect this type of material from disclosure.   

• Exemption 5 (deliberative process privilege):  The court concludes that the CIA properly invoked the deliberative process privilege to protect "information concerning a directorate's predecisional responses to a [Public Information Programs Division] tasking and comments about whether to withhold documents" in connection with plaintiff's previous request because those discussions are "of a deliberative nature." 

2.  Piccone v. NY State Dep't of Health, Nos. 12-92 & 12-641, 2012 U.S. Dist. LEXIS 21601 (E.D.N.Y. Feb. 21, 2012) (Kuntz, J.)

Re:  Requests for records pertaining to the revocation of plaintiff's medical license

Holding:  Denying plaintiff leave to file, in consideration of the court's prior order barring him from filing complaints without first seeking such permission, where his complaint challenges the constitutionality of the exemptions cited by federal agencies but does not allege that the FBI and U.S. Marshals Service improperly withheld the records that he requested

3.  Weigel Broad. Co. v. FCC, No. 11-236, 2012 U.S. Dist. LEXIS 131797 (N.D. Ill. Feb. 17, 2012) (Guzman, J.)

Re:  Records pertaining to plaintiff's applications to transfer its licenses to three television stations

Holding:  Granting, in part, the FCC's motion for summary judgment on the basis that it properly withheld certain material pursuant to Exemption 5; but ordering that the FCC produce for in camera review two documents, for which it did not provide sufficient detail

• Exemption 5 (deliberative process privilege):  The court concludes that the FCC properly asserted the deliberative process privilege to withhold certain "draft decisions and orders on plaintiff's applications [to transfer its broadcasting licenses], internal memoranda and emails discussing the agency's possible decisions on the applications, its procedures with respect to the possible decisions and its response to an inquiry about the status of the review."  The court finds that "[i]t is clear from the descriptions and dates of these documents [contained in the FCC's Vaughn Index] that they reflect internal agency discussions about what action, if any, to take on plaintiff's applications that occurred before the applications were withdrawn in September 2009." 

• Litigation considerations/in camera review:  The court determines that the agency's descriptions "are too vague" for two specific records and orders "an in camera review of these documents in order to ascertain whether they were properly withheld."

4.  Strunk v. U.S. Dep't of State, No. 08-2234, 2012 WL 562398 (D.D.C. Feb. 15, 2012) (Leon, J.)

Re:  Request for records pertaining to Stanley Ann Dunham, the late mother of President Obama; at issue is her border crossing information maintained by Customs and Border Protection (CBP)

Holding:  Granting, in part, CBP's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemption 6; and denying, in part, without prejudice CBP's motion for summary judgment as to its withholdings under Exemption 7(E)

• Adequacy of search:  The court concludes that CBP's search for responsive records was adequate where it queried its TECS database, "'the only CBP system that would reasonably be expected to contain the requested arrival and departure records of Stanley Ann Dunham for the requested time periods after 1982'" using search terms that "'would be expected to identify all responsive documents for a particular individual.'"  The court finds that plaintiff's speculation as to the existence of additional records "'does not render the searches inadequate.'"  Moreover, the court notes that "[e]ven if the records plaintiff seeks do exist, he provides no support for the proposition that they are maintained in the TECS database or that CBP controls them."  "Without such support," the court finds that "plaintiff can neither overcome the presumption of good faith afforded to agency declarations . . . nor undermine CBP's showing as to the reasonableness of the search."

• Exemption 6:  The court concludes that CBP properly withheld "'unique characters constituting a terminal user ID which is generally assigned to a single person or system user'" and which could identify the agency employee who accessed the record, pursuant to Exemption 6.  Noting that "[t]he information [withheld pursuant to Exemption 6] need not be 'embarrassing or of an intimate nature,'" the court determines that "the TECS user has a privacy interest in the withheld information."  Conversely, the court observes that "[p]laintiff articulates no public interest, significant or otherwise, to show that the public interest outweighs the privacy interest at stake" and, as such, the court determines that "no public interest is served by disclosure of the unique characters constituting a terminal user ID."

• Exemption 7(E):  The court holds that CBP failed to substantiate its Exemption 7(E) withholdings which "'consist[ed] of inspection for entry activities and dispositions' and . . . 'computer screen transaction codes.'"  The court finds that "CBP's submissions offer too little detail to allow this Court to undertake a meaningful assessment of the redacted material" where its declarations state that the withheld information "may include" certain items. 

WEEK OF FEBRUARY 27

Courts of Appeal

1.  Hulstein v. DEA, No. 11-2039, 2012 WL 671964 (8th Cir. Mar. 2, 2012) (Bright, J.)

Re:  Request for investigative records concerning plaintiff; at issue are certain portions of reports that the district court ordered DEA to disclose

Holding:  Reversing the judgment of the district court; and concluding that DEA properly withheld certain information pursuant to Exemptions 7(C) and 7(D)

• Litigation considerations/standard of review:  The Eighth Circuit "review[s] the applicability of FOIA exemptions de novo."

• Exemption 7(D):  The Eighth Circuit reverses the district court's ruling ordering the release of information withheld pursuant to Exemption 7(D) contained in a DEA investigative report.  The Eighth Circuit notes that the district court rejected DEA's "argument that [certain withheld] information could reveal the identity of a confidential source, but did not address whether there was an implied assurance of confidentiality based on the circumstances."  The Eight Circuit finds that it "need not address whether the redacted information in the 1990 report could reveal the identity of the source because [it] determine[s] that an implied assurance of confidentiality rests on the nature of the alleged crime and the witness's relationship to the crime."  Here, the Eighth Circuit determines that the unredacted portions of the report demonstrate that there is a "risk of retaliation against the source," which is not mitigated by the passage of time or impacted by authorities' actions with respect to the allegations directed against plaintiff, and concludes that the redacted portion of one of the reports also "independently supports the DEA's argument that there was an implied assurance of confidentiality with the source." 

• Exemption 7(C):  The Eighth Circuit reverses the district court's decision to release "the names and signatures of law enforcement personnel" from two reports as well as a specific paragraph from one of the reports containing third-party information.  With respect to the law enforcement personnel, the Eighth Circuit notes that plaintiff "presented no public interest to weigh against the agents' recognized privacy interests in their involvement in a particular investigation, nor offered any evidence of government impropriety beyond casting general aspersions on the fact that the DEA was investigating him."  Accordingly, the Eighth Circuit concludes that "[a]bsent any such allegations, the names of the agents involved in the investigation should remain confidential [because] 'something, even a modest privacy interest, outweighs nothing every time.'"  Further, based on an in camera review of the report containing the redacted paragraph, the Eighth Circuit determines that "the withheld information could be used to identify a private individual and, therefore, triggers the privacy concerns under exemption 7(C)" and, conversely, "[t]he information also casts minimal light on the DEA's conduct and would reveal nothing meaningful about the DEA's performance of its statutory duties."  In the absence of any allegations of government wrongdoing, the Eighth Circuit holds that the investigative report was properly redacted. 

District Courts

1.  Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-1021, 2012 U.S. Dist. LEXIS 27298 (D.D.C. Mar. 2, 2012) (Boasberg, J.)

Re:  Request for records pertaining to Congressman Jerry Lewis who had been investigated in connection with allegations that he had improperly provided earmarks and government contracts to donors

Holding:  Granting plaintiff's partial motion for summary judgment; denying defendants' motion for summary judgment; and ordering DOJ to submit a Vaughn Index justifying any withholdings

• Exemption 7(C)/categorical:  At the outset, the court notes that plaintiff concedes that the records at issue satisfy the Exemption 7 threshold because they "were 'compiled for law enforcement purposes.'"  As an initial consideration, the court observes that "Lewis's status as a public official operates to reduce his cognizable interest in privacy as a general matter," but notes that "despite the fact that his privacy interest is 'somewhat diminished' by the office he holds, he nevertheless 'd[id] not surrender all rights to personal privacy when [he] accept[ed] a public appointment.'"  The court determines that he "retains a cognizable privacy interest in the requested records," because although Lewis publicly acknowledged the existence of an investigation, "the details of that investigation have not been publicly disclosed."  The court notes that the "public acknowledgment of an investigation reduces but does not eliminate an individual's privacy interest in preventing the disclosure of the contents of that investigation."  Additionally, the court finds that the congressman "is not the only individual with a privacy interest at stake in these documents" and notes that, "in particular, informants and witnesses, have a significant interest in their contents not being disclosed."

As to the public interest in disclosure, the court finds that "[a]gainst the backdrop of broader public concerns about the agency's handling of allegations of corruption leveled against high-ranking public officials (especially in the wake of its failure to successfully prosecute Senator Ted Stevens), . . . the public has a clear interest in documents concerning DOJ's handling of the Lewis investigation."  Additionally, the court comments that "another court in this District found that the public's interest in disclosure of information concerning DOJ's investigation of a congressman who had been accused of bribery and other illegal conduct was 'very strong,'" "thus determin[ing] that disclosure of the details of the investigation 'would unquestionably' serve the public's interest."  Moreover, because plaintiff does not allege that the records at issue "will demonstrate agency misconduct" as a basis for their disclosure, the court finds that "it need not produce the compelling evidence of illegal activity that would be required if it had done so."  The court concludes that plaintiff "has articulated a specific and significant public interest in the records in question."  

In terms of balancing the privacy and the public interests involved, the court notes that in order "[t]o uphold DOJ's categorical denial [in this case], . . . the Court must find that privacy interests in the documents related to Lewis's investigation 'characteristically' outweigh the public's interests in those documents."  Although the court finds that the practice of categorical denials may be appropriate in instances where the requester fails to identify "a significant public interest," "[i]n light of the strong public interest at stake in the requested records [here], the Court is not persuaded that the balance will favor privacy with respect to each document that concerns the Lewis investigation."  The court finds that because of the "significant interests on both sides of the scale" and possible variation in the responsive documents, "[d]etermining whether withholding is justified . . . requires a more nuanced analysis than can be undertaken without an account of the records in the Government's possession."  Furthermore, the court notes that "this is not a case in which requiring the Government to submit a Vaughn Index might adversely affect an individual's interest in not being associated with an investigation in the first place."  The court states that it "does not decide whether the Government need turn over anything at all in response [to plaintiff's] request" and observes that it will assess any withholdings made by DOJ and subsequent challenges raised by plaintiff after submission of the Vaughn index.

2.  Metro. St. Louis Sewer Dist. v. EPA, No. 10-2103, 2012 U.S. Dist. LEXIS 27902 (E.D. Mo. Mar. 2, 2012) (Jackson, J.)

Re:  Request for records pertaining to a water quality standards determination issued by the EPA

Holding:  Granting defendant's motion for summary judgment on the basis that it properly asserted the deliberative process privilege to withhold certain information, and that it properly released all reasonably segregable material

• Exemption 5 (deliberative process privilege):  The court holds that the EPA properly asserted the deliberative process privilege to withhold certain information, including email communications, "press releases, talking points and 'Q & A,'" drafts, and briefing materials.  With respect to emails that post-date October 29, 2009, the date on which the EPA announced new water quality standards, the court finds that the deliberative process privilege is applicable.  The court finds that the emails "address internal agency deliberations about how to respond to a request for a change in policy from a state agency and thus are part of a predecisional process, albeit one that is separate from that leading up to the October 2009 decision" and, additionally, determines that "disclosure of the contents of [certain] February 2010 emails would reveal information about the course of deliberations leading up to the October 29, 2009, decision."  The court also concludes that emails created on the same date as EPA's water quality standard determination qualify for the protection under the deliberative process privilege because they contain "deliberations about the best means to communicate the [agency's] final decision."  Similarly, the court concludes that the FDA has established that certain "press-release records . . . also have deliberative, predecisional content."  The court rejects plaintiff's argument that the "communications from superiors to subordinates" are not deliberative in nature.  Instead, the court finds that "[t]he fact that superiors are more likely to have policy-making authority does not establish that all communications from superiors to subordinates consist solely of final opinions" and declines to "say, categorically, that all the communications that originated with superiors fall outside the deliberative process exemption."  As to plaintiff's argument that certain factual material was improperly withheld from an email entitled "[Metropolitan Sewer District] facts," the court finds that "[t]he title alone is not sufficient to overcome the presumption of good faith which is afforded to the agency's justification for the exemption."  As to any factual material which may have been adopted in the EPA's final fact sheet, the court determines that "[a] document does not become nondeliberative if facts are included in the deliberations."  With respect to other documents containing revisions, the court finds that "[d]rafts and revisions of text may expose the development of agency thinking before the final product is released and thus can be deliberative."  The court also accepts the EPA's argument that the disclosure of maps of St. Louis and the Mississippi River containing a selection of manmade and natural features, which "were prepared prior to briefing officials who were responsible for making the water quality standard determination," "would reveal the deliberative process." 

3.  Bd. of Supervisors of Prince William Cnty. v. DHS, No. 11-819, 2012 U.S. Dist. LEXIS 27331 (E.D. Va. Mar. 1, 2012) (Cacheris, J.)

Re:  Requests for various records maintained by the Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (CIS) pertaining to illegal immigrants arrested in Prince William County and turned over to ICE

Holding:  Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to its requests

• Exhaustion of administrative remedies:  The court concludes that plaintiff failed to exhaust its administrative remedies with respect to its requests to ICE and CIS.  As to its request to ICE, the court finds that one of ICE's responses, which informed plaintiff that records responsive to two items enumerated in its request "had been located, stated the reason for the redactions in the attached spreadsheet, and notified [plaintiff] of its right to appeal," "was clearly a 'determination' which [plaintiff] was obligated to administratively appeal"  The court determines that because "ICE properly responded to [two] items of [plaintiff's] request before the filing of this suit, . . . [plaintiff] is not entitled to constructive exhaustion as to this portion of its claim."  Moreover, the court notes that "it is by no means clear that ICE's [earlier] response was inadequate" where it "fell within FOIA's twenty-day timeframe, and indicated that ICE had received the FOIA request and intended to process it."  Quoting a recent decision by another district court, the court reiterates that "'in the event the agency intends to produce documents in response to the request, the agency need only (1) notify the requesting party within twenty days that the agency intends to comply; and (2) produce the documents promptly.'"  The court further comments that plaintiff's "'disappointment in the quality of the records provided does not dispense with the administrative appeal requirement of the FOIA.'"

Additionally, with respect to CIS, the court finds that plaintiff's "FOIA claim [is] administratively barred as it relates to [the remaining] item . . . of the FOIA request" because plaintiff failed to respond to CIS's request for additional information.  Here, CIS required plaintiff to provide "written consent and verifications of identity for the individuals whose records were being sought . . . as well as each subject's alien number, name, date of birth, and country of birth" in compliance with DHS's regulations.  The court finds that the relevant portion of plaintiff's "request was facially deficient because it sought records concerning other individuals, but [plaintiff] failed to obtain written consent as required by DHS regulations."  With regard to plaintiff's challenge to "the lawfulness of DHS's consent requirement, and [its argument] that prudential considerations therefore weigh against exhaustion," the court finds that although "[s]uch a challenge turns on statutory interpretation, which does lie in the judiciary's area of expertise," plaintiff's "failure to obtain consent is not the only ground on which CIS deemed the FOIA request defective."  The court finds that whether CIS's "request for additional information was reasonable is a question that is fact-based and agency-specific" and "[i]t is therefore appropriate to require [plaintiff] to seek further administrative review before pursuing judicial intervention."  The court also finds that CIS was not required in its response to inform plaintiff of the right to administrative appeal its determination because "CIS directed [plaintiff] to perfect its FOIA request and asked for names and alien numbers because it found that the request did not reasonably describe the records being sought." 

4.  Ctr. for Int'l Envtl. Law v. Off. of U.S. Trade Rep., No. 01-498, 2012 WL 640882 (D.D.C. Feb. 29, 2012) (Roberts, J.)

Re:  Request for records concerning sessions of the Negotiating Group on Investment for the Free Trade Agreement of the Americas (FTAA); at issue is a one-page position paper produced by the United States during negotiations to conclude a free-trade agreement with foreign nations

Holding:  Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment; and ordering the release of a document for which Exemption 1 was asserted where defendant failed to provide a sufficient explanation as to why its disclosure could reasonably be expected to damage the United States' foreign relations

• Exemption 1:  The court holds the U.S. Trade Representative (USTR) failed to establish that the document at issue is properly classified under Executive Order 12958 § 1.2(a)(3), as amended, because it did not demonstrate that release "'reasonably could be expected to cause damage to the United States' foreign relations.'"  Rather, the court finds that "USTR's various arguments do not present a logical or plausible explanation for its determination, and the record does not support a reasonable anticipation of harm from disclosure."  First, the court notes that there is a "meaningful difference between the United States' disclosure of information that it receives in confidence from a foreign government, with the foreign government's understanding that the information will be kept secret, and[, as is the case here,] the United States' disclosure of a document that it itself created and provided to others."  The court finds that "USTR's arguments regarding loss of trust are at a high level of generality, asserting that the confidentiality agreement facilitates the 'give-and-take of negotiations' . . . without articulating particular reasons why its foreign negotiating partners would have any continued interest in maintaining the secrecy of the United States' own initial position on the phrase 'in like circumstances,'" particularly, because "the FTAA negotiations are not ongoing."  The court finds that USTR's "failure to assert any particular sensitivities implicated by Document 1 leaves the breach of the confidentiality agreement as the sole basis for inferring a loss of trust," which is not adequate to support its Exemption 1 claim.  The court notes that "because breach of a confidentiality agreement does not suffice to establish harm where the breach is caused by release of the United States' own information, reasons for predicting a loss of foreign governments' trust must be tied, but are not tied here, to the specific content of the document at issue."  As to USTR's argument that disclosure will reduce its flexibility in negotiations which will, in turn, harm foreign relations, the court finds that it "ha[s] presented no 'logical or plausible' reason, . . . why future negotiating partners would have so firm an expectation that the current or future United States administration would or should adhere to the same interpretation of 'in like circumstances' presented in the FTAA context such that the United States will be impeded in presenting a different interpretation."  Additionally, the court determines that USTR's assertion that withholding the records "is necessary to preserve its negotiating capital is unpersuasive."  Rather, the court concludes that "the risk that international arbitrators will adopt [what USTR has characterized as its preliminary] position, much less rely on it to the United States' detriment in arbitration, is too speculative to justify a reasonable expectation of harm to foreign relations."     

5.  Beattie v. Astrue, No. 01-2493, 2012 WL 628346 (D.D.C. Feb. 28, 2012) (Roberts, J.)

Re:  Requests for records pertaining to plaintiff; documents related to his supplemental security income (SSI) overpayment; and certain SSA policies regarding SSI payments

Holding:  Dismissing plaintiff's second amended complaint, which includes his FOIA claim, for failure to state a claim upon which relief may be granted

• Exhaustion of administrative remedies:  The court concludes that plaintiff failed to exhaust his administrative remedies where "he submitted only a premature FOIA appeal, rather than an initial FOIA request, to the SSA."  However, the court finds that "[e]ven if [plaintiff] can be considered to have satisfied the exhaustion requirements, 'a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency failed to segregate and disclose all non-exempt information in the requested documents.'"  Here, the court determines that plaintiff "has not specified any FOIA exemption or identified information the agency failed to segregate and disclose." 

6.  Nance v. FBI, No. 08-1643, 2012 WL 628370 (D.D.C. Feb. 28, 2012) (Roberts, J.)

Re:  Requests for records concerning forensic tests conducted by the FBI in conjunction with a murder investigation involving plaintiff

Holding:  Dismissing plaintiff's claims to the extent that he failed to demonstrate the he exhausted his administrative remedies with respect to certain requests; and granting the FBI's motion for summary judgment on the grounds that it conducted an adequate search for responsive records

• Exhaustion of administrative remedies:  The court concludes that plaintiff "has not denied that he failed to exhaust his administrative remedies with respect to his FOIA requests other than [one particular] request number . . . , and thus he has conceded that issue." 

• Adequacy of search:  The court concludes that the FBI conducted an adequate search where it "provid[ed] a detailed account of the scope of [its] investigation by explaining the methods of [its] search, the search terms used, the indices searched, and additional efforts that went into the search, such as communication with and review of files from the Richmond field office."  The court rejects plaintiff's contention that "the FBI's pre-suit searches failed to meet the standard required for an adequate search," concluding that "the timing of a search is irrelevant, so long as an adequate search has been conducted and all redactions from responsive documents are justified."  With respect to plaintiff's argument that "the FBI's searches were inadequate because the FBI misplaced the negative control tests and results" that he requested, the court notes that "[t]he adequacy of a search . . . 'is not determined by its results, but by the method of the search itself[,]' and '[a]n agency's failure to find a particular document does not necessarily indicate that its search was inadequate.'" 

• Adequacy of affidavit:  As to plaintiff's challenge regarding the adequacy of defendant's declaration, the court finds that "[b]ecause [the FBI's] declaration contains a detailed explanation of a search reasonably calculated to uncover all relevant information, and [plaintiff] offers no evidence sufficient to contradict this affidavit, [he] fails to establish that [the FBI's] declaration is conclusory."  Additionally, the court notes that "[t]he fact that the declaration does not explain how or why the negative control tests and their results are not currently in the FBI's laboratory file does not render them conclusory, as the FBI is not responsible for providing such explanations so long as [it] demonstrate[s] that [it has] conducted an adequate search." 

7.  Pellegrino v. U.S. Transp. Sec. Admin., No. 09-5505, 2012 WL 661773 (E.D. Pa. Feb. 28, 2012) (Joyner, J.)

Re:  Requests for records concerning plaintiff 

Holding:  Concluding that plaintiff constructively exhausted her administrative remedies where there was a "substantial delay" on the part of the agency in releasing records; and ordering defendant to provide a Vaughn Index

8.  Mobley v. DOJ, No. 11-1437, 2012 WL 604153 (D.D.C. Feb. 27, 2012) (Howell, J.)

Re:  Request for records relating to plaintiff's incarceration in Yemen

Holding:  Denying defendant's motion to dismiss, and concluding that plaintiff has proffered allegations sufficient to support his FOIA claim; and finding that an agency is not required to provide a listing of withheld records at the administrative stage of a FOIA request

• Litigation considerations/jurisdiction:  The court denies defendant's motion to dismiss, which was based on the ground that plaintiff failed to allege that defendant improperly withheld documents and "therefore 'fails to state a legally-valid claim under FOIA or any other provisions of law.'"  The court instead finds that "the Complaint does not 'explicitly disavow' that the defendant improperly withheld documents, but rather sets forth general allegations sufficient to maintain a cognizable FOIA claim."  Although "plaintiff concedes in his opposition to the defendant's motion to dismiss that 'it is very likely that the records are properly classified and accordingly exempt under FOIA exemption (b)(1), . . . [the court finds that] this frank assessment of his own case does not negate the fact that plaintiff initiated the instant lawsuit because he suspects that the defendant improperly withheld documents, and states in his Complaint that he intends to contest withholdings that he deems to be improper." 

• Procedural:  As to plaintiff's argument that he is entitled to "'at least a list of records that are withheld in their entirety at the administrative stage,'" the court finds that "there is scant support for the position that agencies are required to provide a list of all withheld documents in response to a FOIA request."  Additionally, the court notes that "the statutory text belies such a conclusion" because it only requires that an agency notify the requester of its "'determination and the reasons therefor,' and, inter alia, 'make a reasonable effort to estimate the volume of any [denied] matter.'"  The court concludes that "[g]iven that the unambiguous text of the statute imposes no procedural requirement on agencies to provide a list of withheld documents at the administrative stage, the court declines to devise one here." 

9.  Roberts v. FBI, No. 11-575, 2012 WL 604178 (D.D.C. Feb. 24, 2012) (Bates, J.)

Re:  Request for records concerning plaintiff's criminal prosecution and "the legislative, territorial, and subject matter jurisdiction of the District Court"

Holding:  Granting FBI's motion for summary judgment on the basis that it conducted an adequate search, justified its withholdings under Exemptions 3 and 7(C), and produced all reasonably segregable non-exempt information

• Adequacy of search:  The court holds that the FBI conducted an adequate search where it queried its central records system "us[ing] variations of plaintiff's name, his date and place of birth, and his social security number as search terms."  The court notes that, in accordance with its policy, the FBI's initial search consisting only of its main files did not yield any responsive records, but that its subsequent search for cross-reference files uncovered records.  The court rejects plaintiff's unsupported assertion that the FBI's inability "'to locate documents [responsive to his] request shows that the defendant[']s actions are unlawful,'" and concludes that he "fails to mount a successful challenge to the FBI's searches."

• Exemption 3:  The court concludes that the FBI properly asserted Exemption 3 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, to withhold "'the identities of the individuals targeted for interception through wiretap, the summarized content of the conversations, and the phone number utilized by the subjects of the investigation'" as well as similar information that was "recorded on a 'pen register.'"  As an initial matter, the court finds that "'Title III falls squarely within [the scope of the second prong of Exemption 3], as a statute referring to particular types of matters to be withheld."  Second, the court determines that "the FBI's supporting declaration and copies of the redacted records confirms that the information withheld was obtained pursuant to Title III and that it is properly withheld under Exemption 3."

• Exemption 7/threshold:  The court finds that "[i]t is apparent from the nature of plaintiff's FOIA request that the information he seeks was compiled for law enforcement purposes, namely, the criminal prosecution of plaintiff."  Accordingly, the court concludes that "the FBI meets its initial burden of establishing that the records at issue are law enforcement records for purposes of Exemption 7."  The court notes that because "the records relevant to this discussion were 'compiled for law enforcement purposes thus implicating Exemption 7(C),' . . . the Court need not consider Exemptions 6 and 7(D) separately because the information withheld under these exemptions also is protected from disclosure under Exemption 7(C)." 

• Exemption 7(C)/categorical:  The court holds that the FBI properly invoked Exemption 7(C) to withhold the names and identifying information of various third parties, including special agents, local law enforcement personnel, persons of investigative interest, and individuals merely mentioned in plaintiff's investigative files, finding that the FBI's determination in this regard "is fully consistent with the applicable caselaw."  The court notes that "[p]laintiff raises no objection to the FBI's decision to withhold this information, and presents no evidence to suggest that the FBI is engaged in illegal activity." 

• Segregability:  "The Court has reviewed the FBI's declaration and copies of the redacted records, and finds that these submissions adequately specify 'which portions of the document[s] are discloseable and which are allegedly exempt.'"

Topic(s): 
FOIA

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Updated August 6, 2014