Summaries of New Decisions – March 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 MARCH 5District Courts
1. Performance Coal Co. v. U.S. Dep't of Labor, No. 10-1698, 2012 WL 746411 (D.D.C. Mar. 7, 2012) (Leon, J.)
Re: Requests for records concerning the cause of a catastrophic accident at the Upper Big Branch Mine in West Virginia, which is operated by plaintiff
Holding: Granting defendants' motion for summary judgment on the basis that they conducted an adequate search, properly asserted Exemptions 5, 7(A), and 7(C), and released all reasonably segregable non-exempt material; and denying plaintiff's cross-motion for summary judgment
• Adequacy of search: The court determines that the agency's declarations "explain in reasonable detail the scope and method of the [Department of Labor's (DOL's)] and [the Mine Safety and Health Administration (MSHA's)] searches, and sufficiently demonstrate their compliance with FOIA's search requirements" where they described their searches of different offices, databases, and paper files, which contained responsive records. The court concludes that "[b]ecause DOL and MSHA searched electronic and paper records reasonably likely to contain responsive documents, the searches were reasonably tailored to plaintiffs' requests and therefore adequate."
• Exemption 5/public domain: As an initial matter, the court rejects plaintiff's contention that defendants waived their ability to assert Exemption 5 for documents associated with a certain memorandum because they "shared a July 2011 press release relating to [that memorandum] with the press." The court concludes that plaintiff failed to meet its burden to show that "the requested information: (1) is as specific as the information previously disclosed; (2) matches the information previously disclosed; and (3) was made public through an official and documented disclosure."
• Exemption 5 (attorney-work product privilege): The court concludes that defendants properly asserted the attorney-work product privilege to withhold materials that "were prepared by the Solicitor General, the top attorney at DOL, 'in contemplation of litigation that would result from investigations being conducted by DOJ and MSHA'" into the mine explosion. The court notes that these records "reflect[ed] 'mental impressions, opinions, legal theories, notes, draft documents, that [were] either prepared by the Solicitor of Labor, or an agency attorney, or DOL officials and subordinates acting on the Solicitor's behalf.'"
• Exemption 5 (attorney-client privilege): The court finds that defendants properly invoked the attorney-client privilege to protect confidential communications between the "MSHA, the client agency" and the Solicitor of Labor concerning advice about responding to allegations made by the mine owner. Additionally, the court also concludes that defendants properly withheld "'e-mail communications between attorneys within the Office of the Solicitor, and MSHA District Managers and inspectors discussing strategies about matters that are at some stage of litigation.'"
• Exemption 5 (deliberative process privilege): The court holds that defendants properly asserted the deliberative process privilege to withhold predecisional material that "was 'created as a result of the confidential intra-agency e-mail exchanges, and deliberations, opinions, legal advice and inquiries contained in e-mails, charts, and other draft documents,'" which discussed how to respond to certain allegations, as well as "'recommendations regarding the potential assessment of fines against a miner or referrals to federal prosecutors of miners for violations of safety hazards.'"
• Exemption 7(A): The court holds that defendants properly withheld "one page of handwritten notes pertaining to ventilation at the Mine" pursuant to Exemption 7(A) "[b]ecause '[p]rematurely revealing the content of this potential testimony could give important information to potential witnesses or defendants that would allow them to construct false testimony or otherwise falsify or alter evidence.'" Additionally, the court finds that defendants properly asserted Exemption 7(A) to protect notes of an interview with an investigator, which address the mine accident and other related information, in order "to prevent interference from ongoing investigations and enforcement proceedings."
• Exemption 7(C): The court concludes that defendants properly withheld under Exemption 7(C) "miner's names, cell phone numbers, and home phone numbers; inspectors' names and e-mail addresses; inspectors' initials; MSHA employees' government issued cell phone numbers, home addresses, and home telephone numbers; third party home addresses, dates of birth, last four digits of social security numbers; and miners' job titles and ethnicities" contained in law enforcement records concerning methane outburst incidents and the mining accident. The court finds that "there is no public interest asserted by plaintiffs that outweighs [the] substantial privacy interest[s]" involved, such as the risk of "'harassment, intimidation and the possibility of physical harm.'"
• Segregability: The court holds that defendants released all reasonably segregable information to plaintiff, noting that "[i]n the absence of contrary evidence or specific cites to potentially unsegregated documents, the declarations are afforded the presumption of good faith."
2. Hall & Assocs. v. EPA, No. 10-1940, 2012 WL 718504 (D.D.C. Mar. 7, 2012) (Lamberth, J.)
Re: Request for records delineating EPA's current and historical position on whether states with approved National Pollutant Discharge Elimination System programs under section 402(b) of the Clean Water Act, may authorize bacteria mixing zones in freshwater lakes and rivers
Holding: Granting plaintiff's cross-motion for summary judgment as to the issue of certain fees assessed by EPA; enjoining EPA from charging fees for work that was completed after the administrative appeals stage; ordering EPA to produce certain records withheld pursuant to Exemption 5; granting EPA's motion for summary judgment as to the adequacy of its search, and certain withholdings under Exemption 5; and denying plaintiff's motion for in camera review
• Exhaustion of administrative remedies/fees: On an issue not yet addressed by the D.C. Circuit, the district court holds that EPA improperly required plaintiff to pay or provide an assurance to pay review and duplication fees, which were incurred after EPA's administrative appeals authority ordered additional processing in connection with the request. The court rejects EPA's argument that its request for payment of fees following the administrative appeal authority's decision requiring additional review and redaction "falls within the definition of 'initial review' as contemplated by FOIA and EPA regulations," which provide that commercial use requesters "'will be charged only for the initial record review.'" The court finds that "when the Agency's FOIA response is deemed inadequate on appeal, the Agency cannot make its production of the originally improperly withheld documents contingent upon further payment from the requester under the theory that the work done in an effort to cure its initial inadequate response is still part of the 'initial review.'" Additionally, the court determines that plaintiff was not required to administratively appeal EPA's fee determinations made after the appeals determination where the agency "never informed [plaintiff] that it had made an adverse determination on this fee issue," as required by its regulations. Accordingly, the court "grants [plaintiff's] cross-motion for summary judgment on this issue, enjoining EPA from charging [plaintiff] for work that should have properly been completed during the initial FOIA review, enjoining EPA from withholding all records or portions thereof that were directed to be released by EPA's appeal determination, and ordering their immediate disclosure to [plaintiff]."
• Adequacy of search: The court determines that EPA has conducted an adequate search for documents responsive to plaintiff's request where it "identified all the offices within EPA that might have responsive information and conducted a search." The court finds that "[t]hese search methods employed by EPA could be reasonably expected to produce the information requested by [plaintiff]." The court rejects plaintiff's challenge to the adequacy of EPA's response, rather than the agency's search. The court concludes that plaintiff "cannot dispute the adequacy of EPA's response without simultaneously disputing the adequacy [of] EPA's search, because the Agency's response is necessarily the result of its search -- they are two sides to the same coin." To the extent that plaintiff is dissatisfied with the "categorical summary" produced by EPA to plaintiff, the court finds that the relief sought by plaintiff "to compel EPA to produce a corrected categorical summary [is] relief not contemplated under FOIA." The court notes that "'[i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request.'"
• Exemption 5 (deliberative process & attorney client privileges): As an initial matter, the court notes that although EPA has not yet provided responsive records to plaintiff pending resolution of the fee dispute, it "has provided both the Court and the plaintiff with a Vaughn index describing the documents it continues to withhold pursuant to Exemption 5 of FOIA and the justifications therefore." Based on EPA's submissions, the court concludes that the Exemption 5 is inapplicable to portions of documents for which EPA failed to "identify how the withheld portions . . . contributed to the agency's deliberative process." The court also orders EPA to release documents that post-date a particular agency decision, finding that "EPA's argument that these postdecisional documents are exempt as predecisional in content is largely misguided." To the contrary, the court concludes that the withheld portions "are postdecisional in form and timing as well as in content." However, the court determines that EPA has adequately supported its assertion of the attorney-client privilege with the exception of one document, which the court orders EPA to release.
• In camera review: The court denies plaintiff's request for an in camera review because it "finds that EPA's Vaughn index and accompanying declaration are sufficiently detailed to permit a meaningful review of the Agency's exemption claims." As to plaintiff's allegations of bad faith on the part of the agency, the court notes that plaintiff "has not provided the Court with any evidence that EPA responded to [its] FOIA request in bad faith" or "any evidence of underlying illegal Agency activity with regard to the documents at issue." The court finds that plaintiff's "mere allegations, without more, are not enough to persuade the Court to conduct in camera review."
3. Pohl v. EPA, No. 09-1480, 2012 U.S. Dist. LEXIS 30789 (W.D. Pa. Mar. 7, 2012) (Standish, J.)
Re: Request for data maintained by private grant recipients; at issue is plaintiff's motion for an award of attorney's fees
Holding: Denying plaintiff's motion for an award of attorney's fees and costs where she failed to establish eligibility for such an award
• Attorney fees: The court concludes that there is no basis for awarding attorney's fees under FOIA as to two Administrative Procedure Act claims, and a FOIA claim that the court dismissed. As to plaintiff's separate FOIA claims brought against EPA and HHS, the court finds that plaintiff has not shown that she substantially prevailed in this litigation because the order upon which she relied "merely memorialized the representations of Government counsel during a case management conference concerning the period needed to review [certain] research data . . . for exemptions before production to [her]." As such the court finds that this "is not the type of judicial order that satisfies" the attorney's fees provision of the FOIA as it "did not change the legal relationship of the parties." Moreover, the court observes that this order "did not relate in any way to [plaintiff's] procedural claims, the only claims in the amended complaint the Court has concluded could be brought under FOIA." In other words, "the Order had nothing to do with [plaintiff's] complaint concerning the EPA's referral of her FOIA request to HHS for processing after the favorable ruling by the EPA's National FOIA Officer or her complaint about HHS's delay in processing her appeal."
Further, the court agrees with defendants that "its December 2, 2010 Order cannot be construed as 'judicial relief' rendering [plaintiff] eligible for an award of attorneys' fees and costs under FOIA 'because the agencies still had the right to withhold certain documents as nonresponsive to [her] request or exempt from production under FOIA, and the merits of any agency withholding were never addressed by this Court.'" As to plaintiff's argument that she prevailed under the catalyst theory, the court "finds no causal connection between the filing of this case and the Government Defendants' production of the requested research data," which occurred as the result of the cooperation of an outside third party who only provided the data to the agency in the course of this litigation. The court also finds that "there is no evidence [plaintiff] objected to the EPA's referral of her FOIA request to HHS" and, as such, "she waived any claim arising out of it." Lastly, the court concludes that the delay in HHS's adjudication of plaintiff's administrative appeal "did not result in any harm to [her]" since as provided in HHS regulations, she "could have initiated this litigation 21 days after the appeal . . . reached the appropriate review official and was not decided."
4. Pickens v. DOJ, No. 11-1168, 2012 U.S. Dist. LEXIS 30449 (D.S.C. Mar. 7, 2012) (Harwell, J.)
Re: Requests for records pertaining to plaintiff's criminal prosecution
Holding: Adopting and incorporating by reference the magistrate's recommendation; and granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly asserted Exemptions 6 and 7(C)
• Adequacy of search: The court accepts the magistrate's finding that "Defendants 'conducted an adequate search for documents responsive to Plaintiff's FOIA requests,'" noting that "[p]laintiff has failed to dispute the Magistrate Judge's findings as to the information in the [agency's] Declaration regarding the manner and method of the FBI's search." As to plaintiff's contention that "the search was inadequate because he requested several documents, including grand jury transcripts, that he did not receive from the FBI," the court finds that "the fact that a search fails to unearth or reveal all potentially responsive documents does not, in and of itself, make a search inadequate."
• Exemptions 6 & 7(C): Noting that plaintiff did not object to the magistrate's finding that the records satisfy the threshold of Exemptions 6 and 7(C), the court concludes that "the documents from which the information has been withheld are the type covered by [those exemptions]." Moreover, the court finds that disclosure of information concerning the third-parties mentioned in the records "would constitute a clearly unwarranted invasion of personal privacy." Although plaintiff cites "improper agency conduct" as a basis for disclosure, the court finds that he "merely states, in a conclusory fashion, that the public has an interest in assessing allegations of 'official misconduct,' . . . and his general and speculative allegations create, at the very most, nothing more than a 'bare suspicion' regarding the same." The court states that it "does not see how disclosure of the limited information that has been withheld – identifying information of third parties and the victim of Plaintiff's crimes – would serve the FOIA's underlying purpose, as that information fails to shed light on the operations of the FBI."
5. Poett v. DOJ, No. 08-622, 2012 WL 691581 (D.D.C. Mar. 5, 2012) (Kollar-Kotelly, J.)
Re: Request for records concerning decision by a division of the Centers of Disease Control and Prevention to deny plaintiff access to select agents and toxins within the course of his work as a chemist with the USDA
Holding: Overruling plaintiff's objections to the magistrate's memorandum opinion and order, and affirming it in its entirety; and declining to award plaintiff attorney's fees and costs
• Attorney's fees: The court rejects plaintiff's challenge to the magistrate's finding that he was not entitled to an award of attorney's fees and costs. As to plaintiff's contention that the magistrate "erred in refusing to consider [his] argument that he served as a 'private attorney general,' acting to vindicate important constitutional rights on behalf of the public," the court finds that "Plaintiff fails to cite any authority for [his] proposition that the Court is required to consider equitable factors in deciding a request for attorney's fees." Additionally, the court notes that in assessing the entitlement factors for attorney's fees, the magistrate "properly rejected Plaintiff's argument that filing suit served anything more than his own private interests." Moreover, the court finds that "[t]he equitable exception allowing attorney's fees for private attorney general suits is inapplicable in this case" because plaintiff's assertion that "his suit might cause Defendants to respond differently in processing other FOIA requests or background investigations" "is a far cry from the direct vindication of [the] rights of others that results from the successful prosecution" in the reapportionment and desegregation cases he cited for support. As to plaintiff's argument that the magistrate "erred in concluding that the public did not benefit from [his] suit," the court finds that "[t]he information disclosed to Plaintiff concerns only Plaintiff himself, and will not 'add to the fund of public information or result in considerable public dissemination or benefit.'" The court also rejects plaintiff's challenge to the magistrate's report on the basis that the judge "erred in finding the Defendant had a 'reasonable basis in law' to withhold the documents in question." Rather, the court finds that the cases cited by plaintiff on this point "are inapposite" and that the FBI's "failure to disclose a document located at a specific field office is not indicative of bad faith." With respect to plaintiff's commercial and personal interest in the records, the court accepts the magistrate's recommendation, concluding that "[p]laintiff may not have been seeking a commercial benefit in filing suit, but his motivations were admittedly personal in nature, which weighs against an award of attorney's fees and costs in this case."
6. Rosenfeld v. DOJ, No. 07-3240, 2012 WL 710186 (N.D. Cal. Mar. 5, 2012) (Chen, J.)
Re: Requests for records regarding various subject matters, including FBI investigations of political activities at the University of California in the 1950s and 1960s; at issue is a document submitted to the court for its in camera review which concerns the traffic violations and arrests of a third-party detailed in an investigation concerning Ronald Reagan's activities and the Communist party
Holding: Granting plaintiff's motion for summary judgment; and, based on an in camera review, ordering defendants to release an unredacted version of the document for which it asserted Exemptions 6 and 7(C)
• Exemption 7/threshold: The court concludes that the FBI has failed to show that the three-page record at issue was compiled for a law enforcement purpose. Noting that the FBI claims that the record "was compiled as part of the 'the FBI's investigation of Ronald Reagan's activities in and involvement with – the Communist Party and other extremist activities,'" the court finds that, as another district court judge previously ruled in this case, "an alleged investigation of the Communist Party is insufficient to constitute a legitimate law enforcement purpose in view of the relevant time frame," i.e. investigations after "the Supreme Court's 1957 ruling in Yates v. United States, which established that the Smith Act and analogous laws allowed prosecution of only active members of the Communist party with specific intent to advocate the forcible overthrow of the United States government." The court notes that, here, the document at issue "was generated in 1975 nearly 20 years after the benchmark date of 1957" and, accordingly, "Defendants reliance on Ronald Reagan's alleged connection to Communism does not constitute a sufficient law enforcement purpose for this document to satisfy the rational nexus test." Additionally, the court finds that "[g]iven Ronald Regan's status as an informant for the FBI [in the 1940s when he headed the Screen Actors Guild], the FBI would have no reason to investigate Ronald Reagan for his involvement in the Communist party during the 1960s and 1970s, and certainly not in 1975 after his term as Governor of California." Moreover, based on its in camera inspection, the court finds that "[t]he document has no apparent connection with national security or any other legitimate law enforcement purpose" because it deals with "the investigation of the traffic violations of an individual closely associated with Ronald Reagan."
• Exemption 6/threshold: As an initial matter, the court finds that "[g]iven [the] broad scope afforded by Exemption 6, . . . the threshold test is met and [it] will analyze whether [the document at issue] should be released under Exemption 6's balancing test."
• Exemption 6: In terms of the privacy interests at issue, the court finds that it "is low because the document concerns traffic violations from forty years ago and because the subject is a public figure." Comparing the Supreme Court's decision in Reporters Committee, which held that release of an individual's rap sheet "would be highly invasive," and D.C. Circuit's holding in ACLU v. DOJ, which determined that limited disclosures about criminal prosecutions "was on the 'lower end of the privacy spectrum,'" the court concludes that in this case, the records at issue "fall in-between the rap sheets in Reporters Committee and the single convictions in ACLU." The court finds that "the fact that the documents concerns [forty year] old traffic violations as opposed to more serious criminal prosecutions decreases the likely stigma that would follow such a disclosure" and "[a]s the likely stigma of disclosure falls, so too does the privacy interest at issue." The court also considers the fact that the person named in the records is a public official who "has placed himself in the public light, writing and speaking about his life experiences while getting heavily involved in recent political events" and finds that, by virtue of his public political work, "the subject has a significantly diminished privacy interest." Conversely, the court concludes that "Plaintiff has sufficiently identified a public purpose," namely, "'revealing how (and against whom) the FBI used its investigative authority to serve Ronald Reagan's personal and political interests.'" As to the FBI's argument that "the redacted information merely identifies the individual that was under investigation, rather than how they were investigated," the court finds that "Plaintiff persuasively argues that the investigation of the subject's old traffic violations has no conceivable purpose other than to aid Ronald Reagan's political career by providing advance notice of any issues of potential embarrassment that might affect any future political campaign." The court concludes that any privacy interests are "outweighed by the public interest in understanding whether the FBI used public resources to compile information, without any apparent law enforcement purpose, to assist Ronald Reagan's political aspirations" and therefore determines that Exemption 6 is inapplicable.
WEEK OF MARCH 12Courts of Appeal
1. Pa. Dep't of Pub. Welfare v. Sebelius, 674 F.3d 139 (3d. Cir. Mar. 15, 2012) (Vanaskie, J.)
Re: Allegation that HHS's Departmental Appeals Board (DAB) does not maintain a current index of its final decisions and orders in violation of FOIA, 5 U.S.C. § 552(a)(2)
Holding: Affirming the judgment of the district court, which dismissed plaintiff's FOIA claim for lack of standing
• Litigation considerations/standing: The Third Circuit affirms the ruling of the district court, which concluded that plaintiff lacked standing to challenge HHS's failure to index certain final agency decisions and orders. The Third Circuit determines that plaintiff's "vague and indefinite allegations" that "the lack of an index causes it difficulty" because "its counsel 'can never be certain that [it has] located all important DAB decisions on a topic because sometimes the topic is not susceptible to a key-word search'" "are inadequate to establish injury-in-fact." Moreover, the Third Circuit notes that plaintiff "does not cure this deficiency by identifying any concrete information or cases that it was unable to find, or any other description of how this inability actually hampered its representation before the DAB." Accordingly, "[s]ince the lack of an index has not made it 'almost impossible' for [plaintiff] to find relevant DAB precedent, [the Third Circuit] conclude[s] that the District Court did not err in concluding that [plaintiff] lacks standing."
2. Shannahan v. IRS, 672 F.3d 1142 (9th Cir. Mar. 13, 2012) (Fletcher, J.)
Re: Requests for records related to IRS tax assessments made on behalf of two individuals, who were indicted for tax fraud and have outstanding warrants for their arrests, and their two companies
Holding: Affirming the district court's ruling that the IRS properly withheld information pursuant to Exemptions 3 and 7(A)
• Litigation considerations/standard of review: In reviewing summary judgment in a FOIA case, the Ninth Circuit first "decide[s] de novo if the district court's ruling was supported by an adequate factual basis" and then "review[s] 'the district court's conclusions of fact . . . for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo."
• Exemptions 3 & 7(A): The Ninth Circuit affirms the holding of the district court, which determined that the IRS properly asserted Exemption 3, in conjunction with 26 U.S.C. § 6103(a), which protects tax return information, and Exemption 7(A). The Ninth Circuit notes that the IRS asserted Exemption 3 on the basis that disclosure of the requested information to the taxpayers "would 'seriously impair Federal tax administration,'" see 26 U.S.C. § 6103(e)(7). The Ninth Circuit finds that, here, "[t]he district court in this case properly relied on both Exemptions 3 and 7(A) in upholding the IRS's refusal to disclose the [tax-related] documents and [an] electronic database." The Ninth Circuit determines that the district court "was meticulous" and "required the preparation of a Vaughn index of representative documents" as well as "an explanation of how the documents were selected, in order to ensure that the documents in the index were truly representative." Further, the Ninth Circuit notes that the district court "insisted on evidence about, and explanation of, the harm that would be caused by the release of two kinds of documents – those prepared by the IRS and other government agencies, and those obtained from third parties" and "an appropriate explanation for why the exempt documents could not reasonably be segregated from non-exempt material." Additionally, the Ninth Circuit comments that "FOIA is not designed 'as a substitute for civil discovery'" so "[t]he fact that [plaintiffs] wish to use the documents they seek in their civil tax proceeding does not make Exemptions 3 and 7(A) inapplicable." The court adds that "[i]ndeed, it is precisely because of the uses to which [plaintiffs] might put the documents that the exemptions are applicable."
• Discovery: The Ninth Circuit also concludes that "[t]he district court properly denied [plaintiffs' attorney's] discovery requests for information concerning the nature and origins of documents he requested."
1. ViroPharma Inc. v. HHS, No. 08-2189, 2012 WL 892926 (D.D.C. Mar. 16, 2012) (Friedman, J.)
Re: Requests for records pertaining to the FDA's decision that abbreviated new drug applications (ANDAs) for the drug vancomycin qualify for a waiver of in vivo bioequivalence standards; and records related to draft guidance on bioequivalence recommendations for vancomycin
Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4 and 5, as well as made certain redactions under Exemption 6, which plaintiff did not dispute; ordering defendant to provide supplemental declarations or a Vaughn index with respect to certain documents identified by the court; and denying plaintiff's motion for summary judgment and its motion for in camera review
• Exemption 4: The court concludes that the FDA properly asserted Exemption 4 to withhold portions of documents that reference pending ANDAs. The court notes that plaintiff "accepts the proposition that 'the identity of the ANDA filers, information regarding the approval status of the ANDA's, trade secret information such as drug formulas or manufacturing processes, or confidential commercial information' all are properly exempt under Exemption 4." To the extent that plaintiff argues that the FDA should release "portions of the documents that 'reference' pending ANDAs," the court "cannot discern any portion of the documents that would 'reference' pending ANDAs but does not discuss information contained in the ANDAs or implicate the approval process." The court finds that, as plaintiff concedes, "the content of pending ANDAs for vancomycin is protected by Exemption 4," as well as the "[i]nformation that discusses or analyzes" those applications. The court notes that the fact "[t]hat whole paragraphs have been redacted in some documents does not alone demonstrate improper withholdings." The court also concludes that "incoming correspondence from drug manufacturers and other members of the industry that relate to the bioequivalence standard for vancomycin" was properly withheld "[w]here the documents reference pending ANDAs." Additionally, "[t]o the extent that the incoming correspondence discusses drug products other than vancomycin, . . . [the court finds that] it is nonresponsive and FDA is not required to release it." However, the court finds that "with regard to the portions of documents that discuss FDA's bioequivalence recommendations for vancomycin generally without reference to a drug manufacturer's pending ANDA filing, FDA must produce this information so long as it is segregable from the properly exempt information." The court directs "FDA to supplement its declarations and Vaughn index to establish whether any [of that information] . . . can be segregated."
• Exemption 5 (deliberative process privilege): The court rules that the FDA properly invoked the deliberative process privilege for certain draft documents. Contrary to plaintiff's argument, the court finds that the FDA is not required to "segregate and disclose the factual background and recitations of past agency final decisions from the draft documents," noting that "[t]he choice of what factual material and prior final agency opinions to include or remove during the drafting process is itself often part of the deliberative process, and thus is properly exempt under Exemption 5." The court also holds that the FDA also properly asserted the deliberative process to redact certain internal review documents, which incorporate factual information, under Exemptions 4 and 5. However, the court finds that, for some internal review documents, it "cannot discern whether factual portions . . . were or were not withheld in full or were provided in redacted form" and orders the FDA to supplement its submissions on these points. With respect to plaintiff's objection "to FDA's withholding laboratory data contained within records prepared to assist the agency's development of its bioequivalence recommendations," the court notes that the status of the agency's policy deliberations may affect the releasability for the data, and orders the FDA to provide additional information "to establish which bioequivalence recommendation the laboratory reports were originally prepared for and why the documents are properly withheld."
• Segregability: "Having reviewed the Vaughn index and the declarations submitted by the defendants, the Court concludes that, except [for the documents which it previously identified], defendants have satisfied their segregability obligations for all documents that they have withheld or withheld in part under an enumerated exemption."
• In camera review: The court denies plaintiff's motion for in camera review and concludes that its allegation of bad faith is unfounded. The court rejects plaintiff's contention that the "FDA's rolling release of documents during the course of this litigation" demonstrates bad faith, noting that this argument "has been 'emphatically reject[ed]' by the D.C. Circuit." Rather, the court notes that "[i]t is established the 'continuing discovery and release of documents . . . shows good faith on the part of the agency that . . . continues to search for responsive documents.'"
2. Sinkfield v. HUD, No. 10-885, 2012 U.S. Dist. LEXIS 35233 (S.D. Ohio Mar. 15, 2012) (Litkovitz, Mag.)
Re: Request for "Technical and Price Proposals" submitted by a certain company
Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted Exemption 3 to withhold the requested contractor proposal
• Exemption 3: The court concludes that HUD properly invoked Exemption 3 in conjunction with the National Defense Authorization Act of 1997, 41 U.S.C. § 253b(m), to withhold the requested contractor proposal. As an initial matter, the court finds that "there is no question that § 253b(m)" qualifies as an Exemption 3 withholding statute and notes that this section "expressly states that [certain] proposals 'may not be made available to any person' unless the proposal is set forth or incorporated in a contract entered into between the agency and the contractor that submitted the proposal." Here, the court determines that, based on the declaration submitted by HUD and the court's in camera review, "(1) the Technical and Price Documents [requested by plaintiff] are a proposal within the meaning of § 253b(m)(3), and (2) the proposal was not incorporated into the subject contract."
3. Davis v. FBI, No. 10-98, 2012 WL 868943 (D.D.C. Mar. 14, 2012) (Sullivan, J.)
Holding: Granting defendants' motion for summary judgment on the basis that DOJ and FBI released all reasonably segregable non-exempt information, and that the FBI has properly withheld grand jury material pursuant to Exemption 3 and a photograph of a third party under Exemptions 6 and 7(C)
4. Simbaqueba v. DOD, No. 11-62, 2012 WL 870862 (S.D. Ohio Mar. 14, 2012) (Smith, J.)
Re: Requests for records pertaining to criminal investigation of plaintiff
Holding: Granting DOD's motion for summary judgment on the basis that it properly withheld five functional categories of information pursuant to Exemption 7(A)
• Adequacy of search: The court concludes that DOD conducted an adequate search where it discussed the databases and offices searched and described the search terms used. Moreover, the court notes that plaintiff "has provided no countervailing evidence relating to the search procedure, nor has the Court found any inconsistency in the DoD's declarations that would undermine its evidence regarding the adequacy of the search."
• Exemption 7/threshold: The court finds that the records at issue meet the Exemption 7 threshold because the Defense Criminal Investigative Service (DCIS), which "is the criminal investigative arm of DoD and has 'statutory law enforcement authority,' to investigate allegations of civil and criminal violations of United States laws, including those at issue in the investigation of [plaintiff and another individual]," "compiled the documents at issue."
• Exemption 7(A): The court concludes that DOD has sufficiently justified its withholding of five functional categories of records under Exemption 7(A) on the grounds that release of the information at issue would interfere with enforcement proceedings against a fugitive third party. The court notes that, as to DOD's first category of records, which includes "DCIS case reports, [containing] information regarding the evidence, subjects, victims, and investigatory leads," and the third and fourth categories, which include investigative information from other federal agencies and state and local law enforcement entities, release of the information could "involve the potential for witness intimidation or harm, manufacture of false defenses or alibis, and alteration or destruction of potential evidence, manufacture of false evidence, or frustration of investigative techniques." Additionally, the court observes that "the third category of documents includes the results of background and other checks concerning suspects that could be used by [the third party] to remain a fugitive." As to the second category, the court finds that "investigative analysis by DCIS personnel and personally identifying information regarding persons of interest" "could permit [the fugitive] to frustrate DCIS's investigative techniques and otherwise tamper with or manufacture false evidence." With respect to the fifth category, which contains information about victims, witnesses, evidence and investigative leads, the court finds that "release of these types of information involve the potential for witness intimidation or harm, manufacture of false defenses or alibis, and alteration or destruction of potential evidence, manufacture of false evidence, or frustration of investigative techniques."
4. Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 769478 (D.D.C. Mar. 12, 2012) (Boasberg, J.)
Re: Allegation that HHS failed to promulgate final agency regulations providing for expedited processing of certain FOIA requests
Holding: Dismissing plaintiffs' FOIA claim for lack of subject matter jurisdiction based on lack of standing; and granting defendant's motion for summary judgment with respect to the adequacy of HHS's search, which was not contested by plaintiffs
• Litigation considerations/standing: The court dismisses for lack of subject matter jurisdiction plaintiffs' claim alleging that HHS failed to promulgate a regulation providing for expedited processing in violation of the FOIA, 5 U.S.C. § 552(a)(6)(E)(i). The court concludes that plaintiffs lack standing to bring such a claim because they "have identified no real support for their allegation that they have suffered and will likely in the future suffer a cognizable injury." Here, the court notes that, in the absence of a final regulation, "[t]he agency considered and rejected Plaintiffs' request for expedited processing using the 'compelling need' standard outlined in the general FOIA statute." Accordingly, the court comments that "[i]f the standard HHS currently employs in evaluating requests for expedited processing is the same as that outlined in the statute and the same as that which a final regulation would likely entrench – given the language of the proposed rule and the agency's representations here – what injury accrued to Plaintiffs from HHS's failure to finalize its expedited-processing rule?" Moreover, the court finds that plaintiffs had notice regarding HHS's criteria for evaluating expedited processing, noting that "[i]t is clear on the face of Plaintiffs' first FOIA request that they were aware of HHS's use of FOIA's 'compelling need' standard because the request made specific reference to the 'compelling need' terminology" and this standard "is clearly set forth in FOIA itself and also on the agency's FOIA web page." Additionally, the court notes that "should HHS in the future fail to follow the statutorily mandated criteria for expedited processing or fail to provide requesters with notice of those criteria, a requester may well suffer a judicially cognizable injury sufficient to confer standing." Further, the court finds that such relief may be available against other agencies that "diverge from the statutory criteria so as to cause injury to requesters." Lastly, the court notes that while this provision of the FOIA "requires agencies to promulgate a regulation . . . [it] simultaneously dictat[es], with notable specificity, what the contents of such a regulation must be."
5. Leonard v. U.S. Dep't of Treasury, No. 10-6625, 2012 WL 813837 (D.N.J. Mar. 9, 2012) (Kugler, J.)
Re: Requests for any whistleblower forms filed with the IRS reporting plaintiff for tax violations; and for any materials containing plaintiff's name or social security number
Holding: Denying the parties motions for summary judgment without prejudice; and ordering defendant to submit, for in camera review, a Vaughn index and any responsive records, and to provide plaintiff with an opportunity to reformulate his generalized request
• Adequacy of declaration/declarant: The court rejects plaintiff's argument that one of the agency's declarations "should not be considered" where the declarant "did not perform the search himself." Rather, the court finds that declaration is adequate and notes that the declarant "supervised the . . . searches" and other supporting affidavits "confirm[ed] the searches described in [the affiant's] [d]eclaration."
• Exemption 3/Glomar: The court concludes that the defendant cannot assert the Glomar response in connection with Exemption 3 and 26 U.S.C. § 6103(e)(7), which prohibits the release of tax return information when disclosure would seriously impair tax administration, to refuse to confirm or deny the existence of certain whistleblower forms pertaining to plaintiff. The court "does not find that Defendant has shown that the mere existence of whistleblower forms filed about Plaintiff would lead to the necessary conclusion that an IRS investigation has been undertaken against him." Moreover, the court finds that "it is not clear that disclosure of the existence of [these forms] will offer Plaintiff any further incentive 'to alter or destroy evidence' than he already has." Additionally, the court notes that "[g]iven that cases necessitating a Glomar response have been deemed 'exceptional' by the Third Circuit, this Court does not find that a Glomar response is necessary here, and will not expand the use of the response to this case." As such, the court "orders Defendant to submit to the Court a private Vaughn index for in camera review 'correlating justifications for non-disclosure with the particular portions of the documents requested' – if, indeed, such documents exist" as well as any responsive material.
• Exhaustion of administrative remedies: Although the court finds that plaintiff's broad request, which "essentially request[ed] any materials, bearing Plaintiff's name or social security number, places an unreasonable burden upon the IRS," it cannot be dismissed on the basis that he failed to exhaust his administrative remedies. The court notes that "[f]ederal regulations require that, where a requester improperly describes the records being sought, 'the requester shall be afforded an opportunity to refine the request.'" Here, the court finds "not only has Plaintiff not been offered an opportunity to refine his request, but he also never received a response of any kind from Defendant to his General Request because his request was inadvertently improperly processed" as a duplicate request. The court concludes that "[a]s required by statute, Defendant must respond to Plaintiff's General Request, and offer Plaintiff an opportunity to refine his request such that it reasonably describes the information being sought."
WEEK OF MARCH 19
Courts of Appeal
1. Wells v. State Att'y Gens. of La., No. 11-30498, 2012 WL 975056 (5th Cir. Mar. 22, 2012) (per curiam)
Re: Request for investigatory documents maintained by a state agency
Holding: Affirming the judgment of the district court, which dismissed plaintiffs' complaint, including their FOIA claim, for failure to state a claim upon which relief may be granted
• Litigation considerations/proper party defendant: The Fifth Circuit concludes that plaintiffs' "argument that the appellees refused to provide copies of investigatory documents in violation of the FOIA fails to state a claim because those federal provisions apply only to documents under the control of federal agencies."
1. Calypso Cargo Ltd. & Carib Petroleum, Inc. v. U.S. Coast Guard, No. 10-2125, 2012 U.S. Dist. LEXIS 39547 (D.D.C. Mar. 23, 2012) (Sullivan, J.)
Re: Requests for records pertaining to the detention of plaintiffs' ship by the U.S. Coast Guard; at issue is plaintiffs' motion for attorneys' fees
Holding: Denying plaintiffs' motion for attorneys' fees on the basis that they are not eligible for such an award because they did not "substantially prevail"
• Attorney fees: The court denies plaintiffs' motion for attorneys' fees, concluding that "plaintiffs have not 'substantially prevailed' and are thus not eligible for attorneys' fees." In contrast to other cases in which courts have awarded such fees to FOIA plaintiffs, the court finds that here, "defendant made a good faith effort to search for information and respond to plaintiffs' request." The court notes that defendant's declarations "provided a detailed timeline of events leading up to the release of the requested records," which "makes clear [that] multiple divisions within the Coast Guard had already begun coordinating and processing the plaintiffs' request before plaintiffs filed their lawsuit." Furthermore, the court concludes that "the delay in the Coast Guard's release was not due to intransigence, but rather was the result of a diligent, ongoing process that began before the initiation of the instant lawsuit." The court also finds that "plaintiffs have provided no evidence to suggest that a causal nexus exists between the filing of plaintiffs' action and the agency's surrender of information."
2. Union Leader Corp. v. DHS, No. 12-18, 2012 U.S. Dist. LEXIS 39730 (D.N.H. Mar. 23, 2012) (Laplante, J.)
Re: Request for the names and addresses of six individuals who were arrested in New Hampshire during 2011
Holding: Granting, without prejudice, defendant's motion to dismiss on the basis that plaintiff fails to state a claim upon which relief may be granted where it failed to exhaust its administrative remedies; denying plaintiff's motion to amend its complaint; and denying plaintiff's motion for a preliminary injunction and request for an expedited hearing as moot
• Exhaustion of administrative remedies: The court grants defendant's motion to dismiss, without prejudice, on the basis that the complaint failed to state a claim upon which relief may be granted where plaintiff failed to exhaust its administrative remedies by not complying with the Immigration and Customs Enforcement's (ICE's) FOIA regulations. The court finds that, rather than submitting the request to one of the offices designated to accept FOIA requests as set forth in ICE's regulations, plaintiff "requested the information in question from an ICE Public Affairs Officer, first via e-mail, then by letter."
• Litigation considerations/amending the complaint: The court finds that "[t]he additional facts pled in the proposed amended complaint do not remedy [the exhaustion] deficiency" where "the proposed amendments allege that ICE withheld the information [plaintiff] sought [in connection with another FOIA request submitted after the instant litigation was commenced] and that [plaintiff] filed an administrative appeal with respect to that information." Rather, the court finds that "the right to appeal is not exhausted by merely filing an appeal; it is only exhausted when the agency either (a) issues a final decision denying the appeal, or (b) fails to act on the appeal within twenty days, as mandated by [the FOIA]." The court determines that "[n]either is the case here – [plaintiff] does not allege that ICE has denied its appeal, and that appeal was taken March 14, 2012, so ICE still has until April 3, 2012, to issue a final decision on the appeal." Accordingly, the court denies plaintiff's motion to amend its complaint on the basis that such amendment would be "futile."
3. Frankenberry v. FBI, No. 08-1565, 2012 U.S. Dist. LEXIS 39027 (M.D. Pa. Mar. 22, 2012) (Caputo, J.) (adopting in part and rejecting in part magistrate's recommendation)
Re: Request for records pertaining to plaintiff's criminal trial
Holding: Granting, in part, defendant's motion for summary judgment as to the adequacy of the FBI's search, and certain withholdings made pursuant to Exemptions 7(D) and 7(E); denying, in part, defendant's motion for summary judgment with respect to certain information withheld pursuant to Exemptions 7(C), 7(D), and 7(E), and ordering defendants to provide additional information to the magistrate judge to further justify these withholdings
• Adequacy of search: The court adopts the magistrate's finding that the FBI conducted a reasonable search where the agency's declarations "provide[d], in detail, an explanation of the FBI's records system," "set forth the manner with which FBI records are stored and retrieved and the basis for the FBI's indexing method," and explained that both "main" files and "cross-reference" files were searched. The court also notes that "[b]ecause plaintiff only requested documents from FBI Headquarters, and not the field office where the alleged documents may more likely be located, Defendants, pursuant to Department of Justice FOIA/[Privacy Act] regulations, were only obligated to search FBI Headquarters' records." With respect to plaintiff's argument that the magistrate improperly refused to consider affidavits submitted by plaintiff which purportedly demonstrated the existence of additional records, the court finds that "even if [the magistrate judge] had considered the affidavits, it would not alter the Court's decision to deny Plaintiff's motion for summary judgment, because . . . Defendants conducted an adequate search for documents responsive to Plaintiff's request."
• Exemption 2: Noting that the magistrate's recommendation affirming the FBI's assertion of Exemption 2 preceded the Supreme Court's decision in Milner v. U.S. Department of the Navy, the court states that it will analyze the withholdings under Exemption 7(E), which was invoked by the FBI as a coextensive basis for non-disclosure.
• Exemption 7(C): The court determines that the FBI's assertion of Exemption 7(C) to protect the identities of special agents, agency support personnel, suspects, individuals merely mentioned in plaintiff's criminal investigatory records, local law enforcement personnel, witnesses, and other federal employees is not appropriate where it "provided no information as to whether [these individuals] are still alive." The court finds that, in this case, it is likely that the number of individuals is relatively small and therefore "requiring Defendants to identify whether these individuals at issue are still alive before asserting a privacy interest on their behalf will not pose an intolerable burden on Defendants." Further, the court notes that the records at issue are thirty years old and finds that "[t]he age of these records increases the likelihood that a number of the individuals named in Defendants' records have died negating the privacy interest asserted by Defendants." As such, the court recommits the matter to the magistrate in order to ascertain the life-status of the third-parties identified in the records.
• Exemption 7(D): For information for which the FBI claimed Exemption 7(D) on the basis of an express assurance of confidentiality, the court finds that it is unable to assess the adequacy of such an assertion because it "has not been presented with contemporaneous documents evidencing express grants of confidentiality or evidence of a policy providing for a grant of confidentiality to specific sources of information." As such, the court recommits the matter to the magistrate and notes that "Defendants will be required to provide probative evidence of an express assurance of confidentiality in order to withhold information pursuant to exemption 7(D)." However, the court holds that the FBI has adequately supported its Exemption 7(D) claims with respect to two documents, which on their face contain indications that informants explicitly requested that their identities be protected. As to the FBI's assertion of Exemption 7(D) in conjunction with implied promises of confidentiality, the court adopts the magistrate's recommendation that summary judgment be granted to the FBI. The court finds that "based on the nature of the investigation and the confidential sources' relationship to the investigation, the information was provided under an implied assurance of confidentiality."
• Exemption 7(E): The court holds that the FBI properly invoked Exemption 7(E) to withhold "'rating columns' on [a particular form], which is used to evaluate the effectiveness of a technique in an investigation, in order to prevent criminals from changing their activities and modus operandi to avoid detection in the future." For one, the court notes that other district courts have permitted the FBI to withhold this type of information pursuant to Exemption 7(E), and also finds that "Defendants provide[d] a detailed justification for withholding the rating columns by specifically articulating that the ratings columns reveal specific investigative techniques and release of these techniques could circumvent the law or impede future investigations." Additionally, with respect to a specific document for which the FBI filed an objection to the magistrate's recommendation, the court concludes that the FBI has sufficiently justified its Exemption 7(E) claim to withhold "information related to expenditures made in the course of investigating Plaintiff." The court finds that the FBI properly withheld this information "as an agency surveillance technique because disclosure of the redacted information could enable criminals to alter their behavior and circumvent the law in the future." The court also concludes that the FBI properly withheld polygraph material pursuant to Exemption 7(E). The court notes that "the polygraph examination and report was clearly 'compiled for law enforcement purposes'" and finds that the FBI's declaration "makes . . . clear that the withheld polygraph procedures are also not generally known to the public and release of this information could encourage circumvention of the law in the future."
4. Pub. Emps. for Envtl. Resp. v. U.S. Sec. Int'l Boundary & Water Comm'n, No. 11-261, 2012 WL 933709 (D.D.C. Mar. 20, 2012) (Rothstein, J.)
Re: Requests for records pertaining to the safety of dams on the Rio Grande river
Holding: Granting defendant's motion for summary judgment on the basis that it demonstrated that it conducted an adequate search, released all reasonably segregable material, and properly justified its Exemptions 5, 6, 7(E), and 7(F) claims; dismissing plaintiff's Administrative Procedure Act claim as duplicative of its FOIA claims; denying plaintiff's cross-motion for summary judgment, and its motion for fees and costs on the basis that it did not substantially prevail; and denying plaintiff's claim for a written finding pursuant to Section 552(a)(4)(F)(i)
• Administrative Procedure Act claim: The court dismisses plaintiff's Administrative Procedure Act (APA) claim, finding that "[w]here a statute, such as the FOIA, provides an opportunity for de novo district court review of an administrative denial, APA review is precluded."
• Adequacy of search: The court holds that defendant's search was reasonably calculated to uncover responsive documents where the offices deemed to maintain those records were searched. The court rejects plaintiff's contention that the U.S. Section, International Boundary and Water Commission's (USIBWC's) failure to locate certain responsive maps during its initial search demonstrates bad faith on the part of the agency. To the contrary, the court finds that "the fact that the USIBWC did not discover every responsive record in its initial search does not itself show bad faith." Moreover, the court notes that "it is well-established that '[t]he adequacy of a search is not determined by its results, but by the method of the search itself.'" The court also finds that USIBWC adequately explained its reason for not initially producing a responsive report where there was originally a question as to its responsiveness.
• Exemption 2: The court notes that in light of the Supreme Court's decision in Milner v. U.S. Department of the Navy, "the USIBWC withdrew its reliance on Exemption 2, and invoked other FOIA exemptions, including Exemptions 5, 7(f), and 7(e), to justify its withholdings." "Because the USIBWC no longer asserts that information has been withheld pursuant to Exemption 2, the court need not consider its application."
• Exemption 5/threshold: As a preliminary matter, the court finds that "[t]he USIBWC contends and the court agrees, that the [a certain] email meets the Exemption 5 threshold because it is an internal communication between agency employees regarding deliberations and comments as to interim risk reduction measures." The court also finds that a Joint Panel Review, which "was authored by a panel of experts and consultants who are not employees of USIBWC," but rather "employees of the United States Army Corps. of Engineers and the United State Bureau of Reclamation," "fairly may be characterized as an 'intra-agency' memorandum." The court finds that "[t]here is not the slightest indication that these experts represented any outside interests," and notes that "[i]t appears that their function was simply to provide accurate information for the USIBWC to use in making various determinations with respect to the Amistad Dam." Conversely, the court notes that plaintiff "has provided no evidence in contradiction."
• Exemption 5 (deliberative process privilege): The court holds that USIBWC properly asserted the deliberative privilege to withhold an email containing "comments on interim risk reduction measures" and the "Joint Expert Panel Review of the Amistad Dam." The court finds that the email at issue is predecisional, in that it "contains opinions and comments on the draft Emergency Action Plan, and was generated before the USIBWC's adoption of a completed Emergency Action Plan." Additionally, the court determines that "[t]he email is also clearly deliberative" and finds that "it is precisely the type of communication that the deliberative process privilege is designed to protect: one that 'reflects the give-and-take of the consultative process.'"
As to the Joint Expert Panel Review, the court rejects plaintiff's assertion that the document has lost its predecisional status because USIBWC's website indicates that it was ultimately adopted and implemented by the agency. Instead the court finds that plaintiff's "citation of a few lines of text on the USIBWC website in which the agency indicates that it intends to implement some of the recommendations contained in the Joint Expert Panel Review is far from convincing proof that the agency has adopted the document as policy." The court determines that the USIBWC has established that this document is predecisional and deliberative, noting that the agency "convened a panel of experts to assess the structural condition of the Amistad Dam, and to make recommendations with regard to the dam's safety rating."
• Exemption 6: The court concludes that "USIBWC correctly invoked Exemption 6 to withhold the contact information of emergency personnel whose names appear in [emergency action plans]." The court agrees with defendant that "although the Plaintiff believes the privacy interests are very weak, it has done nothing to show what the countervailing public interest might be." The court notes that "where there is no public interest in the release of information, 'something, even a modest privacy interest, outweighs nothing every time.'"
• Exemption 7/threshold: The court determines that USIBWC has demonstrated that emergency action plans and inundation maps satisfy the threshold of Exemption 7 where USIBWC "has explained, in detail, how its activities relating to dam safety interact with law enforcement." The court finds that "given the potential for threats against the dams operated by USIBWC, as well as the potential for harm to public safety, the inundation maps and [emergency action plans] are documents that were compiled for law enforcement purposes." The court finds unpersuasive plaintiff's challenge to the validity of USIBW's concerns about risks of terrorism as well as its assertion that other agencies have released this type of information in the past.
• Exemption 7(E): The court concludes that USIBWC properly asserted Exemption 7(E) to withhold the "various guidelines for law enforcement" and "procedures for an emergency such as a terrorist attack" contained in its emergency action plans for dams and power plants. The court determines that dams "are considered possible terrorist threats because of the potential for massive downstream casualties" and finds that these plans "contain sensitive information . . . the disclosure of which could endanger public safety."
• Exemption 7(F): The court holds that USIBWC properly invoked Exemption 7(F) to withhold various inundation maps. The court "agrees with the USIBWC that 'with the ability to deduce the zones and populations most affected by dam failure, release of such maps could increase the risk of terrorist attack[s] on the dams.'" The court comments that plaintiff "would need something more than evidence that different agencies have, at times, made different judgments about the security issues implicated by making inundation maps public."
• Litigation considerations/referral to Office of Special Counsel: The court denies plaintiff's request for a written finding pursuant to 5 U.S.C. 552(a)(4)(F)(i), referring the matter to the Office of Special Counsel, based on its claims that USIBWC "initially denied the existence of [a particular document], and that the agency exaggerated the threat of harm from releasing the withheld documents." The court notes that it "has already rejected these arguments" in connection with this decision, and notes that "the record is devoid of proof of any hostility on the part of the USIBWC." Additionally, the court comments that "there is actually some evidence to suggest the opposite; that the USIBWC handled [plaintiff's] FOIA request in exactly the same manner that it has handled requests from other parties."
5. DeBrew v. Atwood, No. 10-650, 2012 WL 898786 (D.D.C. Mar. 19, 2012) (Bates, J.)
Re: Request for memoranda pertaining to the DNA Act; documentation related to "Code 408," conducting a business for which an inmate can be disciplined; "an administrative remedy index"; financial reports for a trust fund; a public law; and telephone records
Holding: Granting, in part, BOP's motion for summary judgment on plaintiff's FOIA claims on the basis that it conducted an adequate search for certain telephone records and that plaintiff failed to exhaust his administrative remedies with respect to three separate requests; and denying, in part, BOP's motion for summary judgment with regard to its interpretation of and adequacy of its search in connection with plaintiff's request for information about "Code 408"
• Adequacy of search: The court determines that, based on the current record, it cannot determine whether BOP's search for "Code 408" documentation was reasonable. The court notes that "[h]ere, the BOP's declarant only states the result of the search – a program statement regarding the inmate discipline – without offering a description of either the agency's interpretation of the request or the method by which staff conducted the search." With respect to plaintiff's argument that BOP should have interpreted his request as one for recordings of telephone conversations as well as copies of the phone numbers that he had called, the court finds that because "it was determined that BOP 'no longer ha[d] the actual recordings of these conversation[s],' . . . it could not fulfill this portion of the request.'" As such, the court concludes that "[t]he inability to produce recordings of plaintiff's telephone conversations during the relevant time period does not render the BOP's searches inadequate or its response to the request inappropriate."
• Exhaustion of administrative remedies: The court holds that plaintiff failed to exhaust his administrative remedies with respect to his request for the "DNA Act" where he failed to respond to BOP's determination letter requesting additional information. The court concludes that plaintiff's "unsupported assertions" that "had he received [BOP's] response, he would have clarified or narrowed his request" "do not overcome the BOP's showing on summary judgment." The court also concludes that plaintiff failed to exhaust his administrative remedies with respect to his requests for an "administrative remedy index," financial reports for a trust fund, and a public law. The court finds that his request which was sent directly to the BOP facility's warden "does not comply with BOP's regulations, and hence it is not a proper request." The court also determines that "[a]lthough plaintiff may have directed the other requests properly to [BOP's] Central Office, he does not show that the Central Office actually received them." The court notes that "'[w]ithout any showing that the agency received the request, the agency has no obligation to respond to it.'"
6. Labella v. FBI, No. 11-23, 2012 U.S. Dist. LEXIS 37830 (E.D.N.Y. Mar. 19, 2012) (Garaufis, J.)
Re: Requests for thirty-seven categories of records maintained by the FBI concerning "gang stalking," and data maintained by the DOJ's Office of Justice Programs (OJP) related to the Supplemental Victimization Survey to the 2006 National Crime Victimization Survey
Holding: Granting defendants' motion for summary judgment on the basis that the FBI conducted an adequate search, and OJP adequately responded to plaintiff's request
• Adequacy of search: The court determines that "the FBI has met its burden to show by affidavit that it conducted a search 'reasonably calculated to discover the requested documents'" where it searched certain electronic records systems "using the terms specified in [plaintiff's] request as well as dozens of additional terms related to gang stalking." The court finds that plaintiff's submission of "documents indicating the breadth of the 'national phenomenon of gang stalking,'" "two press releases supposedly showing the FBI's involvement in and access to data on stalking," an affidavit from a private investigator who formerly worked for the FBI and left the agency in 1979, and articles criticizing the FBI's FOIA practices in general do not call into question the FBI's good faith search.
• Procedural/choice of format: Noting that because plaintiff did not contest the magistrate's report and recommendation to grant OJP's motion for summary judgment and conceded that OJP "could not reproduce the records in another 'electronic format,'" it "reviews [the magistrate's findings] for clear error" and finds none. As to plaintiff's argument that " OJP could have 'narrowed down the records on the released disc and sent [him] a sub-set in printed form," the court "finds no clear error in [the magistrate judge's] determination that '[n]either [plaintiff's] FOIA requests to defendant OJP, nor [his] complaint, include any demand for information from the Survey in printed form,' and [notes] that [plaintiff] did not seek production of data on the Survey in printed form until the instant cross-motions were filed." To the extent that plaintiff requested that OJP "aggregate data," the court concludes that "[a]s [the magistrate judge] correctly noted . . . FOIA did not obligate the OJP to provide [plaintiff] with 'aggregate data,'" which was not in existence.
7. Carlson v. DOJ, No. 10-5149, 2012 WL 928124 (S.D.N.Y. Mar. 19, 2012) (Engelmayer, J.)
Holding: Adopting magistrate's report and recommendation to grant defendant's motion for summary judgment and dismiss plaintiff's FOIA case where plaintiff failed to object in a timely manner to that report, and where the court finds no facial error in the magistrate's conclusions
WEEK OF MARCH 26
Courts of Appeal
1. Negley v. FBI., No. 11-5296, 2012 U.S. App. LEXIS 6324 (D.C. Cir. Mar. 28, 2012) (per curiam)
Re: Affirming the district court's grant of summary judgment to the FBI; concluding that the FBI's use of the date of plaintiff's request as the cut-off for the search was reasonable, its search was adequate, and its withholdings pursuant to Exemption 7(C) were proper; and finding that the district court did not abuse its discretion when it declined to hold the FBI in contempt of a court order
1. Tereshchuk v. BOP, No. 09-1911, 2012 U.S. Dist. LEXIS 44456 (D.D.C. Mar. 31, 2012) (Roberts, J.)
Re: Requests for BOP records; at issue is BOP's motion to dismiss three separate FOIA requests for failure to exhaust administrative remedies, and plaintiff's request for leave to file a supplemental complaint alleging that he has exhausted his administrative remedies with respect to two requests
Holding: Granting, in part, BOP's motion to dismiss with respect to two requests for which plaintiff failed to his exhaust administrative remedies, but denying BOP's motion to dismiss with respect to one request for which plaintiff did exhaust; denying plaintiff's motion for leave to file a supplemental complaint under Federal Rule of Civil Procedure 15(b)(2) as premature on the basis that no trial of this matter has begun and his proposed pleadings fail to state a facially plausible claim
• Exhaustion of administrative remedies: The court concludes that plaintiff constructively exhausted his administrative remedies with respect to one request where he "filed this civil action . . . after the twenty-day deadline but before BOP's letter" assessing fees. The court notes that "BOP's belated fee letter does not restart the exhaustion clock" with respect to that request. However, the court finds that plaintiff failed to exhaust his administrative remedies as to two other requests where his "proposed pleading neither alleges nor proffers that he has paid the requisite fees or sought a fee waiver."
2. Am. Immigr. Laws. Ass'n v. DHS,No. 10-1224, 2012 WL 1066499 (D.D.C. Mar. 30, 2012) (Sulllivan, J.)
Re: Requests for information concerning adjudication of H1-B temporary visa petitions in connection with a Benefits Fraud Compliance Assessment Report; at issue is whether DHS waived its right to withhold certain information which allegedly is in the public domain, whether it properly asserted Exemption 7(E) in connection with three sets of documents, and whether it released all reasonably segregable information
Holding: Concluding that plaintiff has failed to establish that the withheld information is in the public domain; determining that defendant adequately supported its Exemption 7(E) withholdings; and denying, without prejudice, defendant's motion for summary judgment insofar as it did not demonstrate that it disclosed all reasonably segregable information, and ordering defendant to supplement its submissions on this point
• Waiver/public domain: The court finds defendant has not waived its ability to assert Exemption 7(E) where plaintiff failed to sustain its "initial burden of pointing to specific information in the public domain that duplicates what is being withheld." With respect to a Compliance Review Report Form which plaintiff alleges is in the public domain, the court finds that plaintiff "has not established that any of [the four versions of] instructions [that it proffered] specifically correspond to the version of the form that it seeks [U.S. Citizenship and Immigration Services (USCIS)] to produce in full, which bears an apparent date of June 19, 2009." The court notes that the versions provided by plaintiff do not contain that date and finds that "[p]laintiff has failed to persuade the Court that the date is not relevant to the public disclosure analysis." Further, the court observes that "[t]he general description of site visits [submitted to the court by plaintiff] . . . is even less specific than the different versions of the instructions, giving the reader only a general overview of the process." As to a document that was publicly filed in a different and unrelated civil action, the court concludes that "because the fraud referral form filed in the [other] matter was a different version than the one at issue in this case, [plaintiff] has failed to meet its burden." Additionally, the court finds that "even if [plaintiff] could establish that the form was the same form at issue in this matter, [it] has not established that the form was made public through an official disclosure." The court notes that "[i]ndeed, it appears the only reason the form was filed on the public docket in [the other case] is because it was attached to [the other] plaintiff's FOIA request in that matter, which USCIS then filed as an exhibit to a declaration explaining the steps taken to respond to that plaintiff's FOIA request." The court further finds that plaintiff "has not persuaded the Court that the attachment of the FOIA request (and the H-1B Fraud Referral Sheet) was done for the purpose of any desire to officially disclose the documents." With respect to a memorandum, the court finds that plaintiff has not supported its burden to show waiver where it merely makes general allegations that the information at issue was disclosed in a public report. The court concludes that plaintiff "has fallen far short of showing that the redacted material in . . . [the m]emorandum is the specific information disclosed in the [publicly available r]eport or that it matches the material in the . . . [r]eport." Lastly, the court determines that plaintiff's general and unsupported assertion that USCIS must disclose publicly available portions of documents that it released during the course of litigation also fails to establish "that the specific information contained in any of these documents exists in the public domain."
• Exemption 7(E): The court holds that USCIS has properly invoked Exemption 7(E) to withhold fraud indicators contained in three sets of documents that "would provide a 'roadmap' or 'guidance' to those looking to circumvent the law, which would thwart future law enforcement efforts." The court disagrees with plaintiff that "certain factors, such as gross income of a company, the number of employees in the company, and the number of years the company has been in existence," "could not logically be used to circumvent agency regulation." Moreover, the court finds that "the mere fact that public may know about site visits generally, or may know some information about fraud indicators does not mean that defendants must disclose all details concerning fraud indicators."
• Segregability: The court concludes that the agency's "submissions fail to describe the proportion of exempt to non-exempt information and fail to establish that any non-exempt information is 'inextricably intertwined' with exempt information." The court also determines that USCIS must explain any differences between the withheld information and other information that the agency has officially disclosed in other formats. The court orders defendant to submit revised Vaughn submissions in order to address the issue of segregability.
3. Abdelfattah v. U.S. Immigr. & Customs Enforcement, No. 07-1858, 2012 U.S. Dist. LEXIS 44387 (D.D.C. Mar. 30, 2012) (Lamberth, J.)
Re: Request for records pertaining to plaintiff
Holding: Granting Immigration and Customs Enforcement's (ICE's) renewed motion for summary judgment on the grounds that it properly asserted Exemptions 7(C) and 7(E), and disclosed all reasonably segregable information
• Exemptions 7(C) & 7(E)/threshold: The court rejects plaintiff's argument that "[Immigrations and Customs Enforcement (ICE)] cannot withhold any information pursuant to FOIA Exemption 7" based on his claim that "he is a law-abiding person and could not be the subject of any legitimate investigation by law enforcement authorities." Rather, the court finds that ICE has demonstrated that it has satisfied the threshold of Exemption 7 where its "declaration indicates that 'the records at issue were compiled by ICE in the context of its investigation into suspected violations of federal immigrations or customs law'" and plaintiff does not rebut that claim. The court then holds that, in the absence of any arguments to the contrary, ICE properly invoked Exemptions 7(C) to redact "the names and other indentifying information of federal government employees and third parties" and Exemption 7(E) to withhold "'program codes, investigative notes, and internal instructions'" that "'would reveal both a law enforcement technique and an internal investigative practice and could adversely affect future investigations and operations. '" Plaintiff did not argue to the contrary.
• Segregability: The court dismisses plaintiff's conclusory assertion that ICE failed to produce all reasonably segreable information. The court finds that ICE is entitled to summary judgment where its declarations were sufficiently detailed and contained a statement "representing that a 'line-by-line search [for segregable information] was conducted.'"
4. Thompson v. DOJ, No. 11-272, 2012 WL 1066729 (D.D.C. Mar. 30, 2012) (Walton, J.)
Re: Request for certain fingerprint "lift images" and records reflecting the "chain of custody" in connection the FBI's bank robbery investigation of plaintiff
Holding: Granting FBI's motion for summary judgment on the basis that it conducted an adequate search and properly justified its claims of Exemptions 7(C) and 7(E)
• Adequacy of search: The court finds that the FBI has conducted an adequate search for records responsive to plaintiff's request. To the extent that plaintiff argues that "the documents released by the FBI do not establish the chain of custody" of certain evidence, the court observes that "plaintiff confuses the FBI's obligation under the FOIA with the government's obligation to present admissible evidence at trial." Moreover, the court also finds that "plaintiff's confusion as to the meaning of the terms used by the FBI to refer to the fingerprint images that he requested does not undermine the assertions set forth in the FBI's supporting declaration" as to the adequacy of its search. The court also concludes that "the FBI is under no obligation to now conduct a new and different search" for items not included in plaintiff's initial request.
• Procedural considerations/creating or authenticating a record: The court further notes that beyond demonstrating an adequate search, "[t]he FBI is under no obligation under the FOIA to respond to questions . . . or to authenticate documents produced in response to a FOIA request."
• Exemption 7/threshold: The court "agrees with the defendant that the investigation that resulted in plaintiff's conviction [on bank robbery and other charges] 'fall[s] squarely within the law enforcement duties of the FBI.'" As such, the court concludes, and plaintiff does not dispute, that the records at issue meet the threshold of Exemption 7.
• Exemption 7(C)/categorical: The court finds that the FBI's decision to categorically withhold under Exemption 7(C) identifying information of special agents, support personnel, third parties mentioned in the records, individuals interviewed by the FBI, and local law enforcement officials "is fully consistent with the applicable case law." Additionally, the court comments that "plaintiff raises no objection to the FBI's decision to withhold this information, and that he presents no evidence to suggest that the FBI is engaged in illegal activity."
• Exemption 7(E): The court holds that the FBI properly invoked Exemption 7(E) to withhold portions of an internal form "'used by FBI [Special Agents] to report investigative accomplishments . . . such as an arrest[ ] or recovery of stolen property; '" specifically, a rating column pertaining to investigative techniques and assistance the release of which "could allow the 'plaintiff and others involved in criminal violations such as plaintiff's [to] change their activities and modus operandi in order to avoid detection and/or surveillance in the future.'"
• Segregability: Based on its review of the FBI's declaration and the redacted records, the court concludes that "these submissions adequately specify 'which portions of the document[s] are discloseable and which are allegedly exempt. '"
5. Serv. Women's Action Network v. DOD, No. 10-1953, 2012 U.S. Dist. LEXIS 45292 (D. Conn. Mar. 30, 2012) (Kravitz, J.)
Re: Requests for various records concerning sexual assaults and harassment maintained by the Department of the Navy, DOD's Office of Inspector General, the Department of the Air Force, the Department of the Army, the Marine Corps, and DOD
Holding: Granting, in part and denying in part, defendants' motion for summary judgment and concluding that defendants appropriately did not respond to two requests that were questions regarding government policies, and finding that there is a question of fact as to whether plaintiff's request for "all records related to non-judicial or administrative resolution of sexual-related complaints that did not result in court martial" is unduly burdensome; and determining that five of defendants' declarations indicate that a reasonable search was conducted, but finding that nine of defendants' declarations are not sufficient, and ordering defendants to submit additional affidavits to demonstrate that adequate searches were conducted
6. Gov't Accountability Project v. DOJ, No. 11-342, 2012 WL 1038616 (D.D.C. Mar. 29, 2012) (Bates, J.)
Re: Requests for records concerning a case that that the World Bank referred to DOJ's Criminal Division for prosecution
Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to one request, DOJ conducted adequate searches for responsive records, and properly invoked the deliberative process and attorney work-product privileges to withhold certain information; and denying plaintiff's cross-motion for summary judgment and its requests for discovery and in camera review
• Exhaustion of administrative remedies: The court concludes that plaintiff failed to exhaust its administrative remedies where it informally discussed the request with the Criminal Division's FOIA Public Liaison, but did not submit an administrative appeal. The court finds that "[e]ven though [plaintiff] claims that its informal communications should be considered a 'request to perform a better search' or alternatively, 'an administrative appeal,' [plaintiff] does not seriously contest that it failed to comply with DOJ's published regulations governing administrative appeals for FOIA requests."
• Adequacy of declarant: The court rejects plaintiff's assertion that the agency's declarant lacks personal knowledge. To the contrary, the court finds that the declarant is familiar with the Criminal Division's general procedures for processing requests and with its processing in conjunction with this request in particular. Moreover, the court notes that the declarant "describes how she reviewed the files for each request, personally communicated with the personnel responsible for conducting the searches, and reviewed records."
• Adequacy of search: The court determines that the Criminal Division conducted an adequate search where it searched the sections requested by plaintiff and "identified the procedures used to initiate the searches, the databases and record repositories searched, and the terms used for those searches." Additionally, the court notes that the Criminal Division also expanded its searches in response to additional information provided by plaintiff about the records sought. The court also finds that "DOJ's failure to locate [certain documents] . . . does not render its search inadequate."
• Exemption 5 (deliberative process and attorney work-product privileges): The court concludes that the Criminal Division properly asserted the deliberative process and attorney work-product privileges to protect portions of emails between Criminal Division attorneys as well as a handwritten page of attorney's notes in full, which "involve[d] the Fraud Section's decision not to prosecute a matter referred by the World Bank." In terms of the deliberative process privilege, the court finds that "[t]hese documents were clearly intra-agency communications that related to, and preceded a final decision by the DOJ not to pursue prosecution of a case referred to it by the World Bank." The court rejects plaintiff's argument that the declaration "fails to support DOJ's assertion of Exemption 5 because [the declarant] lacked personal knowledge or involvement with the processing of the underlying FOIA requests." The court finds that the declarant "makes clear that she has the authority to claim the privilege, as well as her own familiarity with the procedure for processing FOIA requests, and familiarity with the particular requests at issue here." As to the Criminal Division's assertion of the attorney work-product privilege, the court determines that the emails and the notes at issue "are clearly prepared in anticipation of litigation as they relate to whether the DOJ should pursue prosecution of the case." Moreover, "[t]he documents discuss the attorney's impressions about the case, the evidence that would be needed to make a determination as to whether prosecution should be pursued, and his thoughts on possible next steps in the case." Further, the court finds that plaintiff "cites to no caselaw standing for [its] proposition that only the attorneys directly involved in the actual potential litigation can determine – on behalf of the agency as a whole – whether certain documents should be withheld under FOIA."
• Segregability: The court notes that because the attorney work-product privilege applies, "it need not consider whether any information in the documents was properly segregable."
7. Parker v. DOJ, No. 10-2068, 2012 WL 1038615 (D.D.C. Mar. 29, 2012) (Jackson, J.)
Re: Request for six categories of records pertaining to a former Assistant United States Attorney (AUSA)
Holding: Denying, without prejudice, EOUSA's motion for summary judgment; ordering EOUSA to supplement the record as to the adequacy of its search, and its claims of exemption, and concluding that one of plaintiff's requests is reasonably described and must be processed; and denying plaintiff's cross-motion for summary judgment as moot
• Adequacy of search: The court concludes that it cannot determine whether EOUSA's search for personnel records related to a departed employee is adequate where EOUSA "told plaintiff that the records are 'most likely' in St. Louis at the [National Personnel Records Center (NPRC)] and in NARA's custody and control," and NARA advised plaintiff that EOUSA still maintained those records. The court notes that "[w]hile it is true that NARA is responsible for processing FOIA requests made at the NPRC under [its] regulation[s], the Court cannot conclude that responding to the FOIA request in this case fell within NARA's purview instead of [EOUSA's] because no one has been able to inform plaintiff or the Court where the records are actually located." The court recommends that EOUSA "communicate with NARA [which is not a party to this lawsuit] to ascertain: (1) where the records are located; (2) which agency bears the responsibility to search the records in that location; and (3) the status of the accession of the records concerning [the former AUSA] to NARA's permanent collection."
• Exemption 7/threshold: The court rejects EOUSA's assertion of Exemption 7(C) in conjunction with the Glomar response in order to neither confirm nor deny the existence of disciplinary records concerning a former AUSA where EOUSA has not shown that records were "compiled for law enforcement purposes" in accordance with the standard set forth by the D.C. Circuit in Rural Housing Alliance v. USDA. In that case, the D.C. Circuit concluded that "'[a]n agency's investigation of its own employees is for 'law enforcement purposes' only if it focuses 'directly on specified illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.'" The court finds that "[t]he only evidence the agency offers to support their contention . . . is a single sworn statement that '[a]ll information at issue in this case was compiled for law enforcement purposes'" which "is not sufficient for the Court to evaluate whether these particular disciplinary records meet the Rural Housing Alliance test." Additionally, the court notes that plaintiff's request as worded "could conceivably include documents unrelated to any law enforcement purpose." The court finds that "[i]t is simply not possible that [EOUSA] knows whether any particular records were or were not compiled for law enforcement purposes without first conducting a search and identifying any responsive records."
• Exemption 6: The court directs EOUSA to engage in a balancing of the privacy interests and public interests at stake with respect to disciplinary records concerning a former AUSA. In terms of the privacy interest, the court finds that the former AUSA maintains "a valid privacy interest" in these documents because "[t]hese records, if they exist, would reveal that DOJ took internal disciplinary action as a result of her misconduct, implicating her recognized interest 'in avoiding disclosure of personal matters.'" As to the public interest, the court finds that, despite plaintiff's argument that "any privacy interest is not significant because the events underlying any disciplinary action are a matter of public knowledge," the former AUSA "does not lose all of her privacy interests simply because the information [regarding the surrender of her law license] has been made public in the past." However, the court determines that "there is a valid public interest in knowing how DOJ handles the investigation of unlicensed attorneys," which must be balanced against the privacy interests at stake.
• Procedural/reasonably described: The court concludes that EOUSA failed to respond to one of plaintiff's requests for documents "related to DOJ's policies regarding unauthorized practice of law by Assistant U.S. Attorneys, specifically, any remedial policies." Although EOUSA asserted that the request was not reasonably described, the court finds that it is "clear enough to constitute a valid FOIA request." Additionally, the court notes that, under DOJ's regulations EOUSA cannot "deny[ ] a request simply because it is unclear," but rather must give the requester notice and an opportunity to modify the request.
8. McKinley v. Bd. of Gvn'rs of Fed. Res. Sys., No. 10-751, 2012 WL 1034464 (D.D.C. Mar. 29, 2012) (Jackson, J.)
Re: Requests for records seeking deliberations undertaken by the Board of Governors of the Federal Reserve System (the Board) concerning what systemic effect, if any, the failure of American International Group (AIG) and Lehman Brothers had on the financial markets
Holding: Granting the Board's motion for partial summary judgment as to the adequacy of its search, and its claims of Exemptions 4, 5 and 8, the propriety of which were supported by the agency's declarations and the court's in camera review
• Adequacy of search: The court concludes that the Board's decision to search its Project Collect Repository, a compilation of "materials related to the AIG loan and Lehman Brothers bankruptcy, among other topics," was sufficient in light of the fact that plaintiff's requests focused on the Board's decisions and actions related to the failure of those institutions. Accordingly, the court rejects plaintiff's claim that the Board should have searched the Federal Reserve Bank of New York (FRBNY) for responsive records, finding that records retained by FRBNY "are beyond the scope of [plaintiff's] FOIA requests." The court further notes that "[b]ecause [plaintiff's] request seeks only records contained in the repository, the Court need not determine under what circumstances, if any, records created by the FRBNY pursuant to its independent lending authority, may constitute records created 'on behalf of' the Board, subject to disclosure under FOIA." Moreover, "[b]ecause in the absence of contrary evidence, agency declarations are given a presumption of good faith and are generally sufficient to demonstrate an agency's compliance with its obligations under FOIA . . . and because [plaintiff] does not dispute that the Board conducted adequate searches of the Project Collect repository, the Court concludes that the Board's search of the Project Collect repository was 'reasonably calculated to uncover all relevant documents.'"
• Waiver/public domain: As to plaintiff's assertion that the Board has waived its ability to assert exemptions for seventeen records that are publicly available on a congressional committee website, specifically, the Financial Crisis Inquiry Commission's (FCIC's) website, the court finds that the "mere fact that the committee . . . without authorization [from the Board], published the records does not constitute a waiver." The court notes that sixteen of the disputed documents were provided to the committee subject to "a written confidentiality agreement and that the seventeenth record was not provided to the FCIC at all."
• Exemption 4: As an initial matter, the court notes that plaintiff does not dispute the Board's claim that two of the records withheld pursuant to Exemption 4 were voluntarily provided by submitters and therefore subject to the Critical Mass standard. The court accepts the Board's assertions that certain withheld information provided by a "'confidential market source'" would not be customarily disclosed to the public and that release of other information concerning Lehman Brother's foreign operations "likely would impair the Board's ability to obtain necessary information in the future as foreign bank supervisory agencies would be unlikely to provide information if they knew that it would be disclosed to the public.'" Additionally, the court finds that the Board properly withheld other submissions, which were mandatory, but for which the Board asserted protection because disclosure was likely to cause substantial competitive injury to financial institutions or to "diminish[ ] the quality or reliability of information provided" in the future. Moreover, the court finds that plaintiff "points to no evidence in the record that would controvert the Board's declarations, nor any evidence of agency bad faith."
• Exemption 5 (deliberative process privilege): With respect to plaintiff's assertion that the Board withheld "'purely factual'" information pursuant to the deliberative process privilege, the court concludes that, as in his previous lawsuit in which the D.C. Circuit affirmed the Board's assertion of the privilege, "the record here demonstrates that Board and FRBNY staff culled selected facts and data from the mass of available information regarding AIG and Lehman Brothers so as to assist the Board in its decision making process." Accordingly, the court finds that the factual information was deliberative within the meaning of Exemption 5 and notes that its in camera review "confirms that the disputed records contain a mix of factual material and analysis in the form of spreadsheets, emails, and memoranda."
• Exemption 8: The court concludes that the Board's declarations demonstrate that records "contain[ing] information from supervised financial entities" "logically fall[ ]" within Exemption 8.
9. Surgick v. Cirella, No. 09-3807, 2012 U.S. Dist. LEXIS 43426 (D.N.J. Mar. 29, 2012) (Hillman, J.)
Re: Request for records pertaining to plaintiffs' deceased father and his estate, including records related to a private corporation in which their father alleged had ownership, control or an interest
Holding: Granting the IRS's motion for summary judgment on the basis that it conducted a reasonable search for responsive records, and properly invoked Exemption 3 to withhold certain third-party tax records; and dismissing as moot the IRS's motion to strike plaintiffs' demands for a jury trial
• Adequacy of search: The court concludes that the IRS conducted an adequate search for tax records pertaining to plaintiffs' deceased father and his estate where its "declarations clearly set forth the search terms and the types of searches performed by the IRS" and "sufficiently aver that all files likely to contain responsive materials were searched because the IRS searched [the Integrated Data Retrieval System (IDRS)] its primary resource in searching for tax records and followed up on the results of IDRS searches by working with the Federal Records Center to locate any responsive documents." The court finds that plaintiffs' general and unsupported allegations of bad faith and their request for further information about records destroyed pursuant to records retention schedules are not sufficient to contradict the IRS's declarations.
• Exemption 3/segregability: The court concludes that the IRS properly withheld tax records related to a private corporation pursuant to Section 6103 of the Internal Revenue Code, which prohibits disclosure of tax return information. Additionally, "the Court agrees with the IRS that FOIA's segregation requirement is not applicable in this case because Plaintiffs seek [a private company's] tax returns," finding that "not only are the documents entirely exempt from disclosure, but also . . . there is no form of non-exempt information in these documents which the IRS could segregate and disclose to Plaintiffs." Further, the court observes that "even if the IRS were to redact identifiers from the documents at issue, such redaction is insufficient to deprive the requested documents of their protected status under Section 6103."
10. Appleton Papers Inc. v. EPA, No. 11-318, 2012 U.S. Dist. LEXIS 44625 (E.D. Wis. Mar. 29, 2012) (Griesbach, J.)
Re: Request for records maintained by DOJ concerning the reports prepared by engineering firms and supporting documentation which contain estimates regarding the relative amounts of pollution in the Fox River released by potentially responsible parties; and request for records maintained by EPA pertaining to remedial design proposals to mitigate damage from pollution in the Fox River
Holding: Granting defendants' motion for summary judgment on the basis that it properly withheld certain information pursuant to the attorney work-product and deliberative process privileges; and concluding that plaintiff waived any challenge as to the adequacy of defendants' search where that issue was fully briefed and plaintiff failed to challenge it
• Exemption 5 (attorney work-product privilege): The court finds that DOJ properly asserted the attorney work-product privilege to withhold "technical reports, drafts, data and other communications about those reports." The court rejects plaintiff's claim that "the documents are not work product because 'purely factual material' may be severable from the rest of the reports or communications." The court notes that Federal Rule of Civil Procedure 26 concerning discovery "allows a greater zone of privacy for those kinds of reports" when, as here, "the retained expert is not intended to testify" "the theory being that a party should be allowed to conduct its own private investigations without fear that the results would have to be turned over to the other side." The court concludes that "because it is conceded [by plaintiff] that the expert reports and communications were obtained and made in anticipation of litigation, Rule 26(b)(4)(D), incorporated into Exemption 5, would shield them in civil litigation." The court also dismisses plaintiff's argument that defendants adopted the work of consultants as the agency's policy by relying on that "work in formulating its litigation strategy." Rather, the court concludes that if such an action "constitutes 'adopting' an agency policy, the adoption exception would swallow Exemption 5 itself because government litigants could never cite the work of the consultants it hires without subjecting that work to full disclosure."
• Exemption 5 (deliberative process privilege): At the outset, the court notes that the attorney work-product privilege is inapplicable to the documents withheld by EPA insofar as they "do not appear to be linked to any particular litigation strategy." However, the court concludes that the EPA properly invoked the deliberative process privilege to withhold "internal drafts, comments and proposed modifications" to a memorandum and other documents related to remedial design proposals. The court notes that plaintiff "does not contest the applicability of the deliberative process privilege to these documents," but rather challenges the EPA's segregration of factual material. The court finds that "[a]part from [a] single example," which consists of spreadsheet already in plaintiff's possession, plaintiff "has not explained how the government's segregability analysis has been deficient."
• Waiver: The court declines to find waiver based on defendants' limited public disclosures of related information. The court finds that "[t]he government has . . . cited its consultants' work in litigation before this court, but only in passing and certainly not in order to make a dispositive point." Additionally, the court notes that "to the extent [that the government] has shared some of the [requested] report with the other side, that was done in an effort to facilitate settlement discussions."
11. S. Alliance for Clean Energy v. U.S. Dep't of Energy, No. 10-1335, 2012 WL 1021487 (D.D.C. Mar. 28, 2012) (Lamberth, J.)
Re: Request for various records pertaining to applications for loan guarantees for nuclear power projects; at issue are the parties' two separate cross-motions for summary judgment, one concerning the Department of Energy's (DOE's) withholding of "term sheets" under Exemption 4, and another pertaining to DOE's withholding of portions of emails, reports, meeting agendas, letters, and other documents pursuant to Exemptions 4, 5 and 6
Holding: Denying, in part and without prejudice, DOE's cross-motion for partial summary judgment as to certain records withheld under Exemption 4, finding that DOE justified its assertion of that exemption for eleven specific redactions, but ordering DOE to provide additional justification for other Exemption 4 withholdings, and to release other information to plaintiff; granting, in part, DOE's motion for summary judgment with respect to certain withholdings under Exemptions 4 and 5, and ordering additional submissions to justify other withholdings; and denying, without prejudice, plaintiff's request for in camera review
• Exemption 4/information obtained from a person: The court holds that DOE failed to demonstrate that certain "term sheets," which "'set[ ] forth the general terms and conditions under which DOJ may issue a loan guarantee,'" "was 'obtained from' the [loan] Applicants, as Exemption 4 requires." As an initial matter, the court notes that "the key distinction [with respect to determining whether information is "obtained from" a person] . . . is between information that is either repeated verbatim or slightly modified by the agency, and information that is substantially reformulated by the agency, such that it is no longer a 'person's' information but the agency's information," which "is not shielded by Exemption 4." The court concludes that DOE submissions "[w]hile in all other respects [are] rather detailed and comprehensive, . . . generally are short on the facts concerning where the redacted information came from." However, the court identifies eleven redactions for which "DOE's supporting materials provide sufficient detail for the Court to conclude that this information was developed by the Applicants, and either incorporated without change into the final term sheets or slightly modified through negotiation." As to the remaining material, the court "order[s] DOE to revise its Vaughn indices to include (if it can) facts supporting its contention that the specific information redacted from the term sheets was 'obtained from' the Applicants." Furthermore, the court cautions that "the mere fact that a term or provision in these documents was 'negotiated' will be insufficient for it to carry its burden; DOE must also provide specific information upon which the Court could conclude that the Applicants either provided the very information that was redacted or that the redacted information is only a minimally modified version of information that originally came from the Applicants."
With regard to other information for which the agency also claimed Exemption 4, the court likewise concludes that DOE "fails to provide any information concerning the origins of most of this redacted information." For one document for which DOE provided sufficient detail about the origins of the information, the court determines that the information was not "obtained from" a person because "[t]hese estimates were clearly generated within DOE [albeit from information provided by an outside applicant], and are therefore presumptively outside the scope of Exemption 4" and concludes that this information must be disclosed to plaintiff. Additionally, the court orders the agency to provide revised Vaughn indices to support the additional Exemption 4 withholdings.
• Exemption 4/competitive harm/program effectiveness: The court determines that with respect to the eleven redactions that the court identified as being "obtained from" a person, "DOE has met is burden as to the remaining disputed requirement of Exemption 4 – namely, that this information is 'confidential.'" For one, the court notes that plaintiff "does not appear to challenge DOE's contention that the Applicants face actual competition in the relevant markets, and DOE has (in any case) presented sufficient evidence on that issue." Moreover, the court finds that "DOE's evidence is also sufficient to show a likelihood that disclosure would cause the Applicants substantial competitive harm." For example, the court points out that the DOE's submission demonstrated that "detailed project cost estimates" and "'repayment' or 'loan draw' schedule[s]" could be used by the applicant's competitors to benefit at the applicant's expense. The court concludes that "[t]hese are not, as [plaintiff] argues, simply bare speculations on the part of DOE and the Applicants, but reasonable predictions of how competitors in the power generation market could (and likely would) exploit detailed and valuable business information not ordinarily available to them." Additionally, the court determines that "DOE has demonstrated that disclosure of the redacted information . . . would likely interfere with DOE's ability to fulfill its statutory mandate to promote and finance financially-risky clean energy projects" because "[p]ermitting the disclosure, through FOIA, of valuable and confidential business information would necessarily serve as a disincentive for companies to pursue such loan guarantees." Accordingly, "the statutory goal of promoting projects that are cleaner and more advanced than those currently in service would be frustrated."
• Exemption 5 (deliberative process privilege): The court concludes that DOE properly withheld "discussions among DOE personnel and contractors about various provisions of the Applicants' proposed term sheets and other agreements prior to the issuance of final term sheets" under the deliberative process privilege. The court finds that these documents which reveal discussions regarding provisions in the draft agreement "are clearly predecisional in character as well as deliberative, forming part of DOE's process of finalizing the draft terms sheets" and concludes that "[d]isclosure of these materials would likely stifle the necessary candor in the agency's decisional process." Additionally, contrary to plaintiff's assertion, the court finds "no evidence that DOE later expressly adopted any of the information." The court also determines that DOE properly asserted Exemption 5 to protect "drafts of documents and discussions among DOE personnel and consultants concerning draft documents and proposed courses of action" as well as "status reports, internal discussions about meetings during the process of arriving at final term sheets, and internal discussions about the timing of DOE's actions on [a certain p]roject," which the court finds are predecisional and deliberative in nature. However, the court determines that for other documents for which DOE claimed the deliberative process privilege, it "fail[ed] to provide the Court with sufficient information about the withheld material and the role it played in the decisional process." The court orders DOE to provide additional information with respect to these records.
• Exemption 6: The court notes that plaintiff "does not contest DOE's withholdings, under Exemption 6, of various e-mail addresses and phone numbers of DOE personnel and consultants" and the court concludes that this information was properly redacted.
12. Nat'l Sec. Counselors v. CIA, No. 11-442, 2012 WL 1026671 (D.D.C. Mar. 28, 2012) (Collyer, J.)
Re: Requests for records concerning the CIA's Mandatory Declassification Review Program (MDR)
Holding: Denying the CIA's motion for summary judgment on the basis that it failed to adequately describe its search for responsive records
• Adequacy of search: With respect to one of plaintiff's requests, the court finds that although the CIA's declaration "is sufficient as it outlines with reasonable detail the CIA's decision to limit its search to the Director's Area," it merely "concludes that a 'thorough and diligent search' was conducted [and] does not detail what search terms were used, who conducted the search, how the search was conducted, or what 'other' . . . records systems that were searched." Moreover, the court finds that CIA "might have . . . unreasonably limited" the scope of plaintiff's request, which asked for all documents "'in current' use" on the subject, where it searched for "'[o]nly documents used under the MDR provisions of Executive Order 13,292,'" rather than related documents that may have been developed under the previous Executive Order on classification and still in use by the agency. The court holds that "[t]he CIA must clarify whether such other documents exist and, if so, conduct a reasonable search for them." With respect to plaintiff's other request for special procedures implemented by the Director of Central Intelligence in connection with the Executive Order 12,958 and 13,292, the court finds that the CIA's declaration is "sufficiently ambiguous" as to the scope of the search and directs the CIA to clarify whether its search covered the tenure of multiple CIA directors.
13. Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 1026725 (D.D.C. Mar. 28, 2012) (Boasberg, J.)
Re: Requests for records related to plaintiffs' employment with HHS
Holding: Granting, in part, HHS's motion for summary judgment to the extent that it properly asserted Exemptions 5, 7(C) and 7(E) to withhold certain information, but directing defendants to release other discrete information that it withheld under Exemptions 5 and 7(C); and concluding that plaintiffs' lack standing with respect to their "pattern and practice" claim
• Exemption 7/threshold: The court concludes that the records contained in two investigative files of HHS's Office of Inspector General (OIG) satisfy the law enforcement threshold. At the outset, the court notes that "Exemption 7 does not exempt '[i]nternal agency investigations . . . in which an agency, acting as the employer, simply supervises its own employees,'" but rather is "triggered when 'the files sought relate to anything that can be fairly characterized as an enforcement proceeding.'" In this case, the court finds that "records in both investigative files were compiled to investigate allegations that specific individuals at FDA had engaged in specific acts that could constitute violations of criminal and civil laws." The court observes that "[t]his is not a case involving personnel files maintained in the ordinary course of monitoring employees' performance at an agency." Moreover, the court finds that "[i]t is of no moment that both investigations resulted in findings of no misconduct and that no sanctions were ultimately imposed by OIG."
• Exemption 7(C): Based on an in camera review and its evaluation of the agency's submissions, the court concludes that in the majority of instances for which HHS claimed Exemption 7(C), it did so properly. As to the individuals mentioned in the investigative records for which HHS "has excised personally identifiable information through the use of discrete redactions," the court concludes that the persons' privacy interests outweigh any public interest in disclosure. The court notes that "[p]laintiffs do not object to the withholding" of these discrete pieces of information. With respect to a records consisting "of reports of conversations, reports of interviews, and 'handwritten notes of OIG agents taken during witness interviews and handwritten notes of FDA employees provided to OIG during OIG's investigation[s],'" the court "accepts OIG's determination that the contents of the reports and notes . . . unless withheld in their entirety, would reveal the identity of a target or witness in OIG's investigations." The court also notes that "deference to the government's evaluation [with respect to these documents] is warranted because this is not a case in which OIG has categorically withheld in full all documents for which it claims Exemption 7(C)." In terms of the public interest in disclosure, the court notes that "even were the Court to find – which it does not – that Plaintiffs had presented compelling evidence that OIG engaged in illegal activity by improperly investigating their allegations of misconduct at FDA, they have not shown that disclosure of the documents at issue here – and, correspondingly, the identities of the particular individuals involved – would be necessary to confirm or refute such allegations." However, the court orders released information pertaining to an FDA employee "who signed a privacy waiver in connection with Plaintiffs' FOIA requests."
With regard to "documents in which [HHS redacted] accusations and derogatory statements made against an individual, as well as that individual's identity," the court finds that individuals named in the records have a privacy interest because such statements, "if made public, can reasonably be expected to result in an intrusion on those individuals' personal privacy by causing embarrassment and reputational harm," "particularly when they have been found not to have officially committed any misconduct." In terms of the public interest involved, the court finds that "[t]he identities of the individual FDA officials that Plaintiffs have accused of wrongdoing need not be released in order to probe the propriety of the investigations themselves." The court determines that "[t]o the extent the public has an interest in information that sheds light on whether or not OIG properly conducted the investigations at issue in this case, the nature of the accusations made against government officials may be probative of the propriety of the steps OIG took to investigate." Accordingly, the court concludes that "if the accusations and derogatory statements contained in the documents Plaintiffs seek can be redacted such that the identity of the individuals against whom they are made will remain private, OIG may not withhold them under Exemption 7(C)."
• Exemption 7(E): The court holds that based on its "in camera review [of] both un-redacted copies of each of [the] pages [withheld pursuant to Exemption 7(E)] as well as a declaration prepared by OIG's FOIA Officer . . . further explaining the non-public nature of the law-enforcement techniques withheld under this Exemption," "it is clear that the redacted portions of the documents at issue relate to investigative techniques and procedures that OIG uses to gather and analyze evidence that are not generally known to the public, and the disclosure of which could reasonably be expected to risk circumvention of the law." Additionally, the court notes that "[t]o describe these techniques in greater detail here would risk disclosing them – the very harm Exemption 7(E) seeks to prevent."
• Exemption 5 (deliberative process privilege): The court holds that as to HHS's assertion of the deliberative process privilege to withhold certain "handwritten notes describing a meeting, phone call, or interview," which were "prepared during [OIG] investigations" and "all predate the October/November 2010 conclusion of those investigations," HHS's justification for asserting Exemption 5 "is overbroad" and observes that "Exemption 5 provides no general exclusion for handwritten notes prepared by an agency employee, even though such notes inherently reveal what the notetaker thought was noteworthy about the subject of the notes." Rather, the court finds that "[t]o the extent such notes merely record or summarize factual content from the meetings, calls, or interviews, those purely factual portions must be disclosed," unless they are inextricably intertwined with deliberative sections. However, the court determines that, based on its in camera review, the deliberative process privilege properly applies to certain of these notes. Additionally, the court finds that Exemption 5 is properly applied to other documents related to the investigation which pre-date the agency's decision. However, the court finds that HHS has failed to carry its burden with respect to a page containing "purely factual information regarding the investigation" and for a document "explaining or justifying prior [agency] decisions, rather than making recommendations for future ones."
• Litigation considerations/standing: The court holds that plaintiffs lack standing to pursue their claim that "HHS maintains 'a policy or practice that intentionally avoids appellate or judicial review of withholding decisions' in violation of FOIA and the [Administrative Procedure Act]" based on HHS's decision to close plaintiffs' pending appeals following the withdrawal of its assertion of Exemption 7(A) and to process plaintiffs' requests under new tracking numbers. The court finds that "[h]ere the undisputed facts of the case disprove the substantive injury Plaintiffs allege they suffered as a result of Defendants' dismissal of their administrative appeals." The court finds that "Plaintiffs did not need to bring this suit to challenge Defendants' reliance on Exemption 7(A); such reliance – and, ergo, such injury – had ceased by the time of filing." Additionally, the court finds that any allegation that plaintiffs "'stand[ ] to continue to be harmed by this ongoing practice in the future'" is "too vague."
14. Gatson v. FBI, No. 08-6348, 2012 U.S. Dist. LEXIS 41636 (D.N.J. Mar. 27, 2012) (Sheridan, J.)
Re: Request for records concerning the FBI's investigation of plaintiff
Holding: Granting the FBI's motion to dismiss and for summary judgment on the basis that it conducted an adequate search and that it properly withheld certain information pursuant to Exemptions 2, 7(E), 6, and 7(C) as well as the identifying information of individuals on a grand jury under Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e); and denying plaintiff's claim regarding expedited processing of his request as moot
15. Menasha Corp. v. DOJ, No. 11-682, 2012 WL 1034933 (E.D. Wis. Mar. 26, 2012) (Griesbach, J.)
Re: Request for records pertaining to a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enforcement action involving plaintiffs; at issue is plaintiffs' request for attorney's fees
Holding: Denying plaintiffs' motion for attorney's fees and costs on the basis that their interests were essentially private and the request does not serve the public interest
• Attorney fees & costs/standing: As an initial matter, the court notes that although defendants conceded that plaintiffs are eligible for a fee award because they substantially prevailed, defendant nevertheless argues that plaintiffs lack standing because neither of the companies named as plaintiffs "were named in the FOIA Request." The court rejects this argument, noting that "no fewer than four separate writings identif[y] that the FOIA Request had been submitted on their collective behalf." Additionally, the court comments that this argument "would have been more appropriately raised in [defendants'] briefing on summary judgment – prior to the fee stage." The court also dismisses defendants' contention that "Plaintiffs are 'not within the award category of FOIA plaintiff for whom an award of fees is appropriate,'" i.e. "the 'average person.'" The court finds that, to the contrary, "the plain language of the FOIA and its legislative history confirm that no class of plaintiffs is automatically excluded from recovering attorneys' fees" and "[n]othing in FOIA's language or structure indicates that a corporation or municipality should per se be barred from using [the attorney's fees] provision."
In terms of the entitlement factors, the court finds that the public benefit factor "does not meaningfully support Plaintiffs' request for costs and fees" because "there is little suggestion that any person or entity beyond . . . litigants [involved in a separate environmental enforcement action] have an actual 'public' interest in these specific communications, or that the disclosure will further the central purpose of the Act, which is to assist citizenry in making informed choices so vital to 'the maintenance of a popular form of government.'" Moreover, the court finds that "the likelihood that these particular internal DOJ communications and memoranda will be disseminated beyond the [other] litigation remains entirely speculative." In terms of the commercial benefit to the plaintiffs and the nature of their interest in the records, the court determines that they "had a strong private incentive to pursue this FOIA action as a means to secure discovery in the related . . . lawsuit and to limit their liability for contributions to PCB pollution in the Fox River." Additionally, the court finds that "[t]he fact that Plaintiffs were not requesting information pertaining to their own liability does not mean that they did not have private interests in the information." As to the reasonableness of defendants' withholdings, the court finds that although it ultimately "did not agree with the government's interpretation of precedent [as to certain documents withheld pursuant to the civil discovery privileges of Exemption 5], and indeed ruled that the DOJ was not justified in withholding the requested documents, given the lack of case law [on the underlying legal issue, the court] cannot conclude that the government's withholding was entirely unreasonable or without basis." In addition, the court notes that "there is no evidence that the United States acted in bad faith or with an intent to frustrate Plaintiffs or avoid embarrassment." Indeed, "[w]ithin six weeks of the administrative FOIA request, DOJ produced thousands of responsive documents consisting of almost 40,000 pages" and worked with plaintiffs "to narrow the scope of the request." In sum, the court concludes that plaintiffs are not entitled to an award of attorney's fees and costs because their "interests were essentially private and the request does not greatly serve any public interest."