Dean v. DOJ, No. 16-5137, 2016 WL 7438663 (D.C. Cir. Dec. 21, 2016) (per curiam)
Re: Request for records concerning requester
Disposition: Affirming district court's grant of agencies' motion for summary affirmance; affirming district court's denial of requester's motion to appoint counsel
- Procedural Requirements, Searching for Responsive Records: The Court of Appeals for the District of Columbia Circuit holds that "[t]he district court correctly determined that the Drug Enforcement Administration's (DEA) search for responsive records fulfilled its obligations under the Freedom of Information Act[.]" "The DEA's failure 'to turn up one specific document in its search does not alone render [its] search inadequate.'" "Further, the DEA's failure to contact former employees or employees of other agencies did not render the search inadequate."
Behrens v. U.S. Attorney, Dist. of Neb., No. 14-00838, 2016 WL 7388290 (D.D.C. December 21, 2016) (Mehta, J.)
Re: Request for an order allegedly issued in plaintiff's criminal case
Disposition: Granting defendant's second supplemental motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that defendant's search was adequate. The court finds that "[d]efendant has produced declarations stating that it has searched both its civil and criminal case files pertaining to Plaintiff and, despite its best efforts, it did not locate the order sought by Plaintiff." "Those declarations are entitled to a presumption of good faith . . . and Plaintiff has offered nothing but speculation to overcome it." "Speculation alone cannot defeat Defendant's motion for summary judgment."
Davis v. U.S., No. 15-159, 2016 WL 7392229 (S.D. Tex. Dec. 21, 2016) (Olvera, J.)
Re: Request for records concerning Fever Tick Eradication Program
Disposition: Adopting Magistrate Judge's report and recommendation; granting defendant's motion to dismiss
- Litigation Considerations, Pleadings: The court holds that "[p]laintiffs conclusory statements fail to plead a FOIA claim that confers jurisdiction on this Court." The court relates that "[p]laintiffs admit that their FOIA requests have been 'partially' responded to." "They present no evidence that their requests were denied or that agency records have been 'improperly withheld.'"
Am. Civil Liberties Union v. DOJ, 844 F.3d 126 (2d Cir. 2016) (Newman, J.)
Re: Request for certain documents concerning drone program
Disposition: Affirming in part and reversing in part district court's partial grant of government's motion for summary judgment; denying requester's appeal
- Exemption 5, Deliberative Process Privilege: The Court of Appeals for the Second Circuit first holds that "continued withholding of documents challenged on [the requester's] appeal and reversal of the District Court's disclosure rulings challenged on the Government's cross-appeal are warranted either because disclosure would reveal information that should remain secret or because the documents are predecisional drafts protected by FOIA Exemption 5." The court then discusses several documents and additionally finds that "segregation could not be made." Second, the court considers the government's cross-appeal of the district court's order to disclose certain documents and finds that the documents are "predecisional under Exemption 5 and therefore need not be disclosed."
Rosiere v. U.S., No. 16-1313, 2016 WL 7367768 (10th Cir. Dec. 20, 2016) (Hartz, J.)
Re: Requests for certain records concerning requester's incarceration
Disposition: Affirming district court's dismissal of requester's case
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The Court of Appeals for the Tenth Circuit holds that "[t]he district court did not abuse its discretion in finding that [the requester's] litigation activity was malicious." "[The requester's] brief before this court – like his response to the district court's order to show cause – fails to provide any justification for his assault on the courts and the DOJ." "The claim was properly dismissed" because "[the requester] still fails to provide a justification for multiple, repetitious suits."
Cause of Action Inst. v. Eggleston, No. 16-871, 2016 WL 7243518 (D.D.C. Dec. 15, 2016) (Kollar-Kotelly, J.)
Re: Requests for certain work calendars and certain records concerning health insurance exchanges
Disposition: Granting defendant's partial motion to dismiss
- Litigation Considerations: "[T]he Court dismisses Plaintiff's FOIA cause of action to the extent it alleges a 'policy or practice' claim because Plaintiff has not plausibly alleged facts showing that Defendants have followed a policy or practice of violating FOIA, beyond the fact that final determinations of several of Plaintiff's FOIA requests are delayed[.]" "The Court begins by noting that Plaintiff's Complaint is largely reliant on allegations, newspaper articles and emails regarding FOIA requests that are not at issue in this case, many of which appear to have been made by other groups or individuals." "To have standing to challenge an alleged 'policy or practice,' a plaintiff must allege that it was subject to the practice challenged." "[W]ith regard to the FOIA requests submitted by Plaintiff actually at issue in this case[,]" the court finds that "[p]laintiff cannot state a 'policy or practice' claim based on a single incident[,]" "delay alone, even repeated delay, is not the type of illegal policy or practice that is actionable under [a policy or practice claim][,]" and "with regard to Plaintiff’s attempt to plead something more than mere delay, the Court is not required to, and does not, accept Plaintiff's conclusory and unsupported allegation that its requests have been delayed for illicit purposes."
Gahagan v. USCIS, No. 16-30882, 2016 WL 7240202 (5th Cir. Dec. 14, 2016) (per curiam)
Re: Request for receipt confirming requester's client's previous filing of form with USCIS
Disposition: Affirming district court's denial of requester's motion for attorney fees
- Attorney Fees, Entitlement: The Court of Appeals for the Fifth Circuit holds that "[t]he district court thoroughly and properly considered each of the four relevant factors." "It found the first and last factors to favor USCIS and the second and third factors to favor [the requester]." "Having reviewed the parties' arguments and relevant portions of the record, [the court] cannot find that the district court abused its discretion in analyzing or weighting these factors, or in determining that, under the circumstances, [the requester] was not entitled to attorney's fees." The court also rejects the requester's argument "that 2007 amendments to the Open Government Act . . . abrogate this long-standing approach."
Gahagan v. USCIS, No. 16-15438, 2016 WL 7229291 (E.D. La. Dec. 14, 2016) (Feldman, J.)
Re: Request for requester's client's Form I-485 Receipt Notice
Disposition: Granting in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: "[T]he Court orders that another search . . . must be conducted." The court relates that, "[b]ased on this factual predicate, ordinarily the Court could find that USCIS had conducted an adequate search." "However, [plaintiff] in his supplemental papers references a prior case where USCIS submitted a declaration . . . regarding the exact type of record sought here." The court notes that the two declarations conflict and finds that "[t]he facts underlying this sworn declaration in another case regarding a search conducted for the same sort of record requested here calls into question the reasonableness of the search conducted in this case."
Freedom Watch, Inc. v. NSA, No. 12-01088, 2016 WL 7191558 (D.D.C. Dec. 12, 2016) (Cooper, J.)
Re: Request for records concerning news article regarding classified government cyberattacks against Iranian nuclear program
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's request for discovery
- Procedural Requirements, Searching for Responsive Records: The court holds that defendant's search was adequate. Responding to plaintiff's arguments, the court finds that "'FOIA expressly permit[s] automated searches.'" "And keyword searches in response to FOIA requests are routine."
- Exemption 5, Deliberative Process Privilege: "[T]he Court will reject [plaintiff's] conclusory assertion that the redacted documents should be produced in full." "The redacted documents are 'intra-agency e-mail messages that detail discussions between State officials regarding a briefing for an interview, including draft versions of the briefing.'" "Such information logically falls within an exemption meant to protect 'deliberations comprising part of a process by which governmental decisions and policies are formulated.'"
- Litigation Considerations: The court rejects plaintiff's argument "that a '[one-]page briefing paper must be disclosed or at least examined in camera.'" The court explains that "the document to which [plaintiff] refers was identified and withheld pursuant to a search that occurred more than three years ago, in connection with a previous summary judgment motion." The court relates that "[it] deemed that argument forfeited, since it had not been raised below." "Surely, if it was too late for the argument then, it is too late now."
- Litigation Considerations, Discovery: The court "den[ies] [plaintiff's] motion for discovery." The court rejects plaintiff's argument that "the fact that the Department continued to receive and identify potentially relevant documents after performing its initial search" undermines defendant's search. The court finds that "[w]hat this argument overlooks is the fact that most of the documents uncovered in the later stages of this litigation came to light because former employees, including Secretary Clinton, turned over documents to State that were not previously in the Department's possession." "In other words, State could not have reviewed them because State did not have them." "And even if a case could be made that the Executive Secretariat's files should have been searched more thoroughly in the first instance, 'mistakes do not imply bad faith.'" "'In fact, [an] agency's cooperative behavior of notifying the Court and plaintiff that it . . . discovered a mistake, if anything, shows good faith.'"
Tracy v. DOJ, No. 16-5187, 2016 WL 7335664 (D.C. Cir. Dec. 9, 2016) (per curiam)
Re: Request for records concerning plaintiff
Disposition: Granting DOJ's motion for summary affirmance; denying requester's motion for summary reversal
- Procedural Requirements, Searching for Responsive Records: The Court of Appeals for the District of Columbia Circuit holds that "[t]he district court correctly determined that the Federal Bureau of Investigation's . . . search for records responsive to [the requester's] request for information fulfilled its obligations under the Freedom of Information Act[.]"
- Exemption 7(C): The Court of Appeals for the District of Columbia Circuit holds that "the FBI properly withheld identifying information contained in the documents under FOIA Exemption 7(C) . . . as the individuals appearing in the records have a significant privacy interest that [the requester] has not shown is defeated by the public's interest in disclosure."