Elec. Privacy Info. Ctr. v. CBP, No. 14-1217, 2017 WL 1131875 (D.D.C. Mar. 24, 2017) (Walton, J.)
Re: Request for records concerning defendant's Analytical Framework for Intelligence ("AFI") system
Disposition: Granting defendant's renewed motion for summary judgment; denying plaintiff's renewed motion for summary judgment
- Exemption 7(E): "The Court . . . concludes that the defendant has satisfied its burden of establishing that the disclosure of the . . . records at issue risks circumvention of the law." The court first notes that "plaintiff does not challenge . . . [the] threshold requirement." The court then finds "that the disclosure of records detailing the function, access, navigation, and capabilities of the AFI system, which 'enhances [DHS's] ability to identify, apprehend, and prosecute individuals who pose a potential law enforcement or security risk, and aids in the enforcement of customs and immigration laws,' . . . presents a risk that could facilitate circumvention of the law that is logically connected to the content of the withheld documents[.]" Additionally, "[t]he Court agrees [with defendant] that disclosure details regarding products or services utilized by the defendant to search, organize, or report information in the AFI system presents a risk of circumvention of the law when those records could reasonably be used by potential bad actors to thwart the defendant's law enforcement efforts." Also, "the Court is satisfied that the disclosure of the sources of data utilized by the AFI system risks circumvention of the law because the data sources 'could reasonably allow a person to recognize identifiers that law enforcement use to query' the defendant's information databases and thus circumvent detection." Responding to plaintiff's argument, the court finds that "nothing in the FOIA's language suggests that Exemption 7(E)'s scope is limited to records compiled in connection with criminal investigations."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "[a]lthough [defendant's] Declaration merely recites the segregability standard, . . . the Vaughn index provides greater insight into the contents and length of each withheld document, . . . and when read in conjunction with the declarations, the Court concludes that the defendant's has provided 'a detailed justification,' as opposed to 'just conclusory statements,' showing that it has complied with the segregability requirement."
Lucaj v. FBI, No. 16-1381, 2017 WL 1101610 (6th Cir. Mar. 24, 2017) (Moore, J.)
Re: Request for records concerning requester's arrest, detention, and interrogation in Austria
Disposition: Reversing and remanding district court's grant of government's motion for summary judgment
- Exemption 5, Threshold: The Court of Appeals for the Sixth Circuit holds that "to be inter-agency memorandums or letters, the [requests for assistance ("RFAs")] must have been sent from an authority of the Government of the United States to an authority of the Government of the United States." "The [Office of International Affairs ("OIA")], undoubtedly an authority of the Government of the United States, sent the RFAs to the Central Authority of Austria and an unnamed country, undoubtedly not authorities of the Government of the United States." "The RFAs' recipients having failed to meet FOIA's definition of agency, we hold that the RFAs from the OIA to the Central Authority of Austria and the unnamed country are not inter-agency." "And given that the RFAs are not intra-agency either, they may not be withheld under Exemption 5."
The Court of Appeals for the Sixth Circuit also rejects the government's common interest argument and holds that "however important it may be for the OIA to have frank communications with the Central Authority of Austria and an unnamed foreign government, however common the interest between the OIA and its international partners, the Central Authority of Austria and an unnamed foreign government are not, so far as Congress has defined the term, agencies." "Therefore, the RFAs from the OIA to these countries are not 'inter-agency or intra-agency memorandums or letters' within the scope of Exemption 5."
Apotosky v. FBI, No. 15-1619, 2017 WL 1093890 (N.D. Ohio Mar. 23, 2017) (Lioi, J.)
Re: Request for records concerning plaintiff's criminal case
Disposition: Granting defendants' cross-motion for summary judgment; denying plaintiff's dispositive motion
- Litigation Considerations, Pleadings: The court finds that "summary judgment is granted in favor of defendant Executive Office for United States Attorneys" because plaintiff does not "even mention defendants' argument regarding waiver/abandonment, much less attempt to refute it" and "[t]he Court construes plaintiff's silence to mean either that plaintiff is conceding that he has stated no claims against EOUSA or that he has abandoned any claims that may have been asserted."
- Exemption 7(E): "The FBI has demonstrated that documents requested have either been produced, were unidentifiable, or were exempt." Specifically regarding Exemption 7(E), the court finds that defendant's use of this exemption was appropriate because, as defendant explains, "'[p]roviding detailed information about the software, equipment, techniques, procedures, and/or types of reports generated by technicians during their forensic testing processes would impede the FBI's effectiveness in investigating crimes where evidence can be found on computers and other digital media.'" "'It would also aid in circumvention of the law by providing criminals the information necessary for them to adjust behavior in order to avoid detection, develop and/or utilize technology less susceptible to law enforcement detection or scrutiny, and/or use or develop technology to counteract techniques used by forensic computer technicians.'"
- Litigation Considerations, Adequacy of Search: The court finds that the FBI demonstrated that it had conducted an adequate search. The court explains that "the FBI has not said that credit card records or reports never existed." "Rather, after again reciting the extensive steps the FBI took to search for documents responsive to this request, the FBI determined that it 'was unable to locate the credit card records Plaintiff seeks.'" "Plaintiff has made no attempt to submit evidence to refute the FBI's declarations or to show any bad faith that might overcome the presumption afforded the declarations." "He simply steadfastly disagrees with them." "That is not enough."
- Attorney Fee, Eligibility: The court relates that "plaintiff requests attorney fees and costs pursuant to 5 U.S.C. § 522(a)(4)(E)(i), arguing that, but for this litigation, he would not have received any response to his various FOIA requests and that he has, therefore, 'substantially prevailed.'" However, the court finds that "[defendant's] two declarations establish that defendants have not wrongfully withheld documents from plaintiff." "Therefore, plaintiff has not prevailed in any way, much less in a substantial way." "The fact that defendants may have offered assistance to obtain some documents that had been previously sealed (and which he would not have had any right to obtain, absent unsealing) does not transform him into a prevailing party." "Further, it is well settled that, because plaintiff is not an attorney, he cannot recover attorney fees under FOIA, in any event."
Henson v. HHS, No. 14-908, 2017 WL 1090815 (S.D. Ill. Mar. 23, 2017) (Herndon, J.)
Re: Multiple FOIA requests, majority of which concern FDA's premarket approval of particular device and its supplements
Disposition: Granting defendants' motion for summary judgment
- Litigation Considerations, Adequacy of Search: "The Court believes, and Plaintiff . . . presents no evidence to refute, that the search undertaken by the FDA was reasonably calculated to uncover all relevant documents." "The declarations and charts show how plaintiff's FOIA requests were processed . . . and the final result of the disclosures . . ., all of which offers further support for the Court's conclusion."
- Exemption 4: "Based on [defendants'] explanation regarding Exemption 4, and no evidence to the contrary, the Court finds the redaction under Exemption 4 to be appropriate." The court relates that defendants stated that they "'generally relied on FOIA Exemption 4 to withhold information related to . . . trade secrets or confidential commercial information used to support [an] application . . . and supplements to [that application].'" "'For example, [defendants] asserted FOIA Exemption 4 to withhold information relating to . . . raw material used in [a] manufacturing process, raw material used in [a] testing process, and [a] pump's battery film.'" "[Defendants] also relied on FOIA Exemption 4 to redact . . . confidential commercial information in documents related to [the] processing of [a] Trade Complaint[.]'"
- Exemption 5, Deliberative Process Privilege: "[T]he Court finds the redaction under Exemption 5 is appropriate." The court relates that defendant withheld "'pre-decisional deliberations regarding how to manage Plaintiff's voluminous correspondence with FDA[,]'" "'emails that discussed FOIA requests submitted by requestors other than Plaintiff[,]'" and "'Plaintiffs appeal of an FDA FOIA request.'"
- Exemption 6: "[T]he Court finds the redactions of personal privacy information under Exemption 6 to be appropriate." The court relates that defendant withheld information concerning "specific…patients[ of a company]" as well as "a limited amount of private personal information related to [a company] and to FDA personnel."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court finds that "FDA ensured that any information that could reasonably be segregated within [the] records was disclosed to plaintiff."
Turner v. Dep't of Treasury, No. 15-00007, 2017 WL 1106030 (E.D. Cal. Mar. 23, 2017) (Drozd, J.)
Re: Request for records concerning plaintiff
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for protective order
- Litigation Considerations, Adequacy of Search: "In light of the evidence submitted by defendant on summary judgment and plaintiff's failure to make any evidentiary showing in response, the court concludes that defendant has satisfied its burden of establishing the adequacy of its search of non-[Bank Secrecy Act ("BSA")] FinCEN Enforcement Division files made in connection with plaintiff's FOIA request." The court finds that "the declarations submitted by defendant identify the files searched, . . . [how] the search for non-BSA documents was conducted[,] . . . and specif[ies] the terms used to conduct this computerized search."
- Exemption 3: "With respect to plaintiff's FOIA request for a copy of a [Currency Transaction Report ("CTR")] submitted by Bank of America in his name, however, the court is not persuaded that defendant properly excluded BSA records from the search it conducted." "In its summary judgment motion, defendant invokes Exemption 3 and 31 U.S.C. § 5319 as grounds for nondisclosure of any and all BSA records." "Though it appears likely defendant may ultimately prevail on that ground, it has cited no authority for the proposition that it was under no obligation to search the BSA records in response to plaintiff's FOIA request, and the court has found no such authority." The court finds that "[i]t is certainly true that under the BSA, CTRs and other 'financial institution reports and records of reports of transactions involving the payment, receipt or transfer of United States coins and currency' are exempt from FOIA disclosure." "Here, however, defendant has not identified which, if any, documents were withheld in response to plaintiff's FOIA request for the CTR he identified." The court finds that in previous "cases it appears that although the agency was found to have properly withheld the documents in question (including CTRs), that determination was based upon the agency's search of the records followed by a reasonably detailed description of the documents being withheld as well as facts sufficient to establish the applicability of the claimed exemption."
- Litigation Considerations, In Camera Inspection: The court holds that "plaintiff's request for a protective order, construed as a request for in camera review, will be denied without prejudice." The court finds that "the remaining issue – plaintiff's FOIA request for a particular CTR – does not involve a lack of specificity in the declarations submitted by defendant." "Rather, that issue remains unresolved because defendant initially took the position that it need not search its BSA records and therefore did not submit a declaration addressing what, if anything, was discovered and withheld pursuant to an exemption." "It would seem that this deficiency can be cured and that in camera review of any document or documents should not be necessary."
Aqualliance v. U.S. Army Corps of Eng’rs, No. 16-0717, 2017 WL 1082216 (D.D.C. Mar. 22, 2017) (Chutkan, J.)
Re: Request for records concerning application for California Water Fix project
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court relates that "[p]laintiff conceded that the search was reasonable[.]" "Because Plaintiff has conceded this claim and issue, Defendant's motion for summary judgment is granted as to [this] Count[.]"
- Exemption 6: "[T]he court concludes that the Army Corps did not properly apply Exemption 6 to the names and addresses on [a] requested [public notice distribution list … of individuals who own property along the route of the project]." The court finds that "the Army Corps has not met its burden of establishing that there is a significant privacy interest in protecting from disclosure the individuals' names and addresses on the distribution list" because "[i]t appears that the only information revealed about the individuals on the list is that their properties are adjacent to the proposed project, which is information any individual could discern from simply looking at property records or a map of the area." The court also finds that "[t]he withheld information reflects on the actions taken by the government in conducting its official business and reveals at least some information about what the government is up to . . . and given the lack of a significant privacy interest, the court further finds that this public interest weighs in favor of disclosure."
Hardy v. ATF, No. 15-1649, 2017 WL 1102649 (D.D.C. Mar. 22, 2017) (Howell, C.J.)
Re: Request for records concerning policies on registered handguns and documents given to OIG in connection with OIG report on National Firearms Registration and Transfer Record ("NFRTR")
Disposition: Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgement
- Exemption 5, Deliberative Process Privilege: The court finds that OIG properly withheld "the first category of documents, 'records of interviews and notes of telephone interviews[.]'" The court finds that, "[f]irst, to the extent information in the documents includes 'recommendations' or 'opinions on legal or policy matters,' they are clearly 'deliberative' in nature and non-disclosure is permissible under Exemption 5." "Second, even if the documents contain 'purely factual material,' that information is still covered by Exemption 5 because it would reveal the agency's deliberative process." "The 'Records of Interviews' and 'Telephone Interview Notes' in this case are factual summaries 'culled by [OIG] from [a] much larger universe of facts presented to it' and therefore 'reflect an "exercise of judgment as to what issues are most relevant to the pre-decisional findings and recommendations."'" The court does reject one of defendant's arguments and finds that "[g]iven the significant number of interviewees, and the availability of redacting identifying information from the documents, the possibility of linking any individual to a particular document is not a colorable risk that would warrant withholding." "Thus, this rationale does not support the application of Exemption 5." The court also holds that OIG properly withheld a draft document because "disclosure of the 'Survey Draft' would divulge information regarding 'decisions to insert or delete material or to change [the] draft’s focus or emphasis' and thus 'would stifle the creative thinking and candid exchange of ideas necessary to produce good . . . work[.]'" Additionally, the court holds that "[an] 'Interview Workpaper' falls under Exemption 5." "Even if the document contains purely factual material derived from interview notes, this document was prepared by 'culling' information 'from [a] much larger universe of facts,' namely the interviews, and thus 'reflect[s] an exercise of judgment.'" "Indeed, the document is a 'spreadsheet' that analyzes the very interview responses this Court has already held to be deliberative."
However, the court also finds that, "[g]iven that OIG has already produced in [a] [National Firearms Registration and Transfer Record ("NFRTR")] Report [certain] survey questions in their entirety, and [certain] results and data in part, to withhold the remaining survey results and data, OIG must explain how the withheld information is 'different from those released in any relevant respect.'" "Otherwise, '[w]hatever chilling effect may be caused by release of the survey results [and data] . . . is already present.'" "Thus, with respect to the 'Survey Results' and 'Final Survey Data,' OIG's motion for summary judgment is denied and the plaintiff's cross-motion is granted."
The court also holds that, "given the insufficient information about the nature of the documents, there is a genuine dispute as to the material fact of whether the 'Survey Question Analysis' and 'Final Survey Data Analysis' documents include deliberative information." "Thus, the parties' cross-motions are denied, without prejudice, with respect to these documents." The court finds that "OIG has failed to provide a particularized account of the 'Final Survey Data Analysis' and a specific rationale for its nondisclosure." "Indeed, with respect to both the four 'Survey Question Analysis' documents and the single 'Final Survey Data Analysis' document, OIG has not provided 'precisely tailored' descriptions of 'what deliberative process [was] involved' in drafting the documents or 'the role played by the documents . . . in the course of that process.'" "Merely including the word 'analysis' in a document's description is insufficient." Similarly, the court also holds that, "[w]ith respect to [a] 'Workpaper Index and Assignments Worksheet,' [along with several other similar documents,] OIG has not met its burden of demonstrating that this document is subject to nondisclosure under Exemption 5." "As there is a high likelihood that some of the information in the 'Workpaper Index and Assignments Worksheet' has already been disclosed in the NFRTR Report, and thus is 'completely harmless,' this 'suggests that other information in the [document] also might be released without threatening [OIG's] deliberative process.'" Also, "OIG has not met its burden of showing that 'no reasonably segregable information exists within the document[.]'"
Pinson v. DOJ, No. 12-1872, 2017 WL 1080907 (D.D.C. Mar. 22, 2017) (Contreras, J.)
Re: Request for correspondence generated after January 21, 2009 between the Attorney General, or staff within Attorney General's office, and Director of Federal Bureau of Prisons
Disposition: Granting defendants' motion for summary judgment
- Exemption 7, Threshold: "[The] Court has previously considered the issue at length and determined that the [Special Administrative Measures ("SAMs")] memoranda meet this threshold requirement because they reflect BOP's efforts to deal with potential security risks to the public, inmates, and staff and are rationally related to BOP's law enforcement duties."
- Exemption 7(E): "Given Exemption 7(E)'s 'relatively low bar,' . . . the Court agrees that the law enforcement techniques withheld here are covered under Exemption 7(E)." "The DOJ has provided specific details as to the types of techniques and procedures that would pose a risk of circumvention of the law and that surpass the 'conclusory and generalized allegations of exemptions,' . . . that this Court previously declined to accept." The court relates that "DOJ applied Exemption 7(E) to withhold a 'detailed description of the underlying offense conduct related to . . . terrorism charges . . . because '[i]nterspersed throughout the discussion . . . [i]s discussion of how law enforcement learned of the offense conduct and steps they took to further investigate the alleged illegal activity.'"
- Exemption 7(C): "The Court . . . grants the BOP summary judgment as to its use of Exemption 7(C)." First, "[the] Court has previously held that the DOJ properly applied Exemption 7(C) to withhold the names of the [third party] individuals subject to the SAMs . . . and reaffirms that conclusion here." Second, the court finds that, "[b]ecause [plaintiff] does not allege illegal activity by the BOP, much less present compelling evidence of the same, the names of the co-defendants and third-parties are categorically exempt from disclosure." Also, "[g]iven that the individual's [sic] names are withheld, other information relating to those individuals implicates a privacy interest to the extent that it could be used to identify the individuals." Responding to plaintiff's counter-argument, the court finds that "'individuals are not precluded from retaining a privacy interest merely on the basis of their public prosecutions.'"
- Litigation Considerations, "Reasonably Segregable" Requirements: "The Court . . . finds that the DOJ has met its burden of releasing all reasonably segregable portions." The court finds that "DOJ has provided [plaintiff] with a comprehensive declaration, describing each withholding and the exemption justifying that withholding." "[Defendant's declarant] attests to having personally reviewed the official files and released all non-exempt information that could be segregated." "The detailed declaration of [defendant's declarant] is sufficient to fulfill the agency's obligation to show with 'reasonable specificity' why a document cannot be further segregated."
Am. Civil Liberties Union v. DHS, No. 15-9020, 2017 WL 1091595 (S.D.N.Y. Mar. 22, 2017) (Sweet, J.)
Re: Request for records concerning Juvenile Referral Program
Disposition: Granting in part and denying in part defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's motion to compel release of certain documents and to compel defendant to respond to certain requests
- Exemption 7(E): The court holds that, "[b]ecause the CBP has not established that [questions asked of Juvenile Referral Program candidates] employed a specialized, calculated technique, Exemption 7(E) does not apply." The court finds that "CBP has not established that there is anything technical about the questions asked, that any special method or skills are being used, or that children who were subjected to questioning would not thereby learn the 'technique' that CBP wishes to keep secret." "It offered nothing more than the fact that these records would reveal that CBP asks questions about these topics and may ask follow-up questions." "Courts require the government to offer more than 'generic assertions' and 'boilerplate' to justify Exemption 7(E) withholding, . . . and the Government has not met its burden here."
- Litigation Considerations: The court notes that "[plaintiff] has conceded the applicability of Exemptions 6, 7(C) and 7(F)[,]" "the parties will meet and confer with respect to the applicability of the privacy exemptions[,]" and "[a]ny issues remaining after these events have been concluded can be the subject of renewed motions."
Cohens v. FBI, No. 16-03665, 2017 U.S. Dist. LEXIS 40733 (N.D. Cal. Mar. 21, 2017) (Donato, J.)
Re: Request for certain records concerning plaintiff
Disposition: Granting defendant's motion to dismiss; allowing plaintiff time to amend complaint
Litigation Considerations, Exhaustion of Administrative Remedies: The court finds that plaintiff's request "amounts to an initial request for information rather than a plausible claim that the FBI improperly denied a valid request." "The Court will give [plaintiff] one opportunity to amend to state a plausible FOIA claim mainly because he said in his opposition brief that the FBI denied his FOIA appeal[.]"