Am. Civil Liberties Union v. CIA, No. 15-5183, 2016 WL 2772304 (D.C. Cir. May 13, 2016) (Edwards, S.C.J.)
Re: Request for report authored by Senate Select Committee on Intelligence regarding CIA detention and interrogation program
Disposition: Affirming district court's grant of defendant's motion for summary judgment
- Procedural Requirements, "Agency Records": The Court of Appeals for the District of Columbia Circuit holds that "[o]n the record before [it], the Senate Committee's intent to retain control of the Full Report is clear." "The Full Report therefore remains a congressional document that is not subject to disclosure under FOIA." The court explains that "the critical evidence in this case is the June 2009 Letter from the Senate Committee Chairman and Vice Chairman to the Director of the CIA." "The Letter, in straightforward terms, makes it plain that the Senate Committee intended to control any and all of its work product, including the Full Report, emanating from its oversight investigation of the CIA." The court finds that "[t]he Letter's command is unequivocal, and it contains no temporal limitations." Responding to one of the requesters' arguments, the court finds that "[i]t does not matter that the Full Report was neither stored on the CIA's segregated network drive nor kept in the CIA's Reading Room." Additionally, the court relates that, "[i]n an effort to avoid the clear terms of the June 2009 Letter, [the requesters] argue that the circumstances surrounding the transmittal of the Full Report to [the CIA] demonstrate that the Senate Committee intended to relinquish its control over the Full Report." "[The court] disagree[s] because the Committee's limited transmittal of the Full Report – especially in contrast with its public release of the Executive Summary – in no way vitiated its existing, clearly expressed intent to control the Full Report." The court reasons that "[the requesters'] argument seems to be premised on an assumption that, when Congress transmits documents to an agency, it must give contemporaneous instructions preserving any previous expressions of intent to control the documents in order to retain control over the documents." "This is not the law." The court also finds that "[w]hen Senator Feinstein [subsequently] transmitted the draft of the Full Report to the Executive Branch on December 14, 2012," which "according to [the requesters], gives proof of Congress' intent to abdicate control over the Full Report," "her transmittal letter made it clear that the Committee would determine if and when to publicly disseminate the Full Report." "Finally, [the requesters] claim that the Chairman's Foreword to the Executive Summary, which encouraged '[t]his and future Administrations [to] use this Study to guide future programs, correct past mistakes, [and] increase oversight of CIA representations to policymakers,' is evidence of the Committee’s intent to relinquish control of the Full Report." "This argument, which relies on a glaring non sequitur, obviously cannot carry the day."
Johnson v. FBI, No. 14-1720, 2016 WL 2755584 (E.D. Pa. May 12, 2016) (Pratter, J.)
Re: Request for records concerning investigation of client of firm where plaintiff works as investigator
Disposition: Granting, with certain limitations, plaintiff's renewed motion for summary judgment; denying defendant's renewed motion for summary judgment
- Exemption 7(A): The court holds that "Exemption 7(A) is applicable to any previously undisclosed information in the FBI's investigative file." In court finds that "[w]hile [plaintiff] might be correct in her assertion that none of the FBI's articulated harms have occurred regarding the witnesses and evidence that have been part of the public domain since [the subject's] trial, such an assertion has no bearing on whether such harms might occur if previously undisclosed witnesses and evidence were to be revealed." "As was the case when the Court decided the parties' initial motions for summary judgment, 'the disclosure of previously undisclosed information could...reasonably lead to interference with enforcement proceedings.'"
- Litigation Considerations, Vaughn Index/Declaration: The court finds that "[u]ltimately, the FBI attempts to classify the documents responsive to [plaintiff's] FOIA request neatly into two categories – (1) documents that were disclosed during [the subject's] trial, which are part of the Discovery File and now in [plaintiff's] possession, or (2) documents that were not disclosed at [the subject's] trial, which are necessarily not part of the public record and are therefore validly withheld under the various claimed exemptions." "The Court, however, foresees a third category of documents – documents that were not disclosed at [the subject's] trial and were not included in the Discovery File, but have lost the 'connective tissue' between the document and the claimed exemptions due to the information that was disclosed through discovery and during [the subject's] trial." "Additionally, [the court finds that] the FBI has failed to provide more than conclusory statements regarding its burden to release all reasonably segregable nonexempt portions of the documents in its possession." "Because the FBI has not satisfied its burden of sustaining its action, the Court will deny the FBI's Renewed Motion for Summary Judgment." "While the Court will grant [plaintiff's] Renewed Motion for Summary Judgment, the Court recognizes that certain documents responsive to [plaintiff's] FOIA request might very well contain previously undisclosed information and may be subject to various exemptions." "Consequently, the Court will limit disclosure of the requested documents to only [plaintiff's] counsel." "After reviewing the documents, counsel may propose a schedule to the Court for the disclosure of documents to others, including [plaintiff]." "The FBI will then have the opportunity to submit specific objections to the proposed release schedule."
Demetriades v. Wytheville SSA, LLC, No. 15-00454, 2016 WL 2689861 (W.D. Va. May 9, 2016) (Conrad, C.D.J.)
Re: Request for records concerning plaintiffs
Disposition: Dismissing plaintiffs' complaint without prejudice
- Procedural Requirements, Entities Subject to the FOIA: "Having reviewed plaintiffs' complaint, the court concludes that their allegations fail to state a plausible claim against defendants under FOIA." "FOIA only applies to agencies and departments of the federal government and is not applicable to private entities." "[I]t is the court's understanding that [defendant] is a private limited liability company that leases the field office property to the SSA and has no involvement in the SSA's operations or plaintiffs' claims regarding [certain] [Supplemental Security Income] benefits." "Moreover, even if the court could find that the individual defendants worked for the SSA, FOIA also does not apply to individual federal employees."
Thompson v. Pretzello, No. 15-1302, 2016 WL 2610112 (D. Md. May 5, 2016) (Bennett, J.)
Re: Request for records concerning OIG report regarding plaintiffs' coworker
Disposition: Granting defendant's motion to dismiss
- Exemption 7(C): The court finds that because "[plaintiffs] show no public interest in disclosing the redacted individuals' names, their request for disclosure of the unredacted report is denied." The court explains that "[the] individuals . . . have a substantial interest in the nondisclosure of their identifying information, as such information could conceivably affect their professional and personal reputations." Also, the court finds that plaintiffs do not explain how disclosure would "promote the 'public understanding of the operations or activities of the government.'" "Rather, it appears that Plaintiffs' sole interest in the disclosure of the redacted individuals' identifying information is to further their claims in [their] present suit." The court finds that, "[g]iven the sensitivity of the privacy interests, the redacted . . . OIG Report is sufficient to inform the public of the allegations of misconduct and subsequent investigation."
Rogers v. IRS, No. 15-3409, 2016 WL 2343169 (6th Cir. May 4, 2016) (Norris, J.)
Re: Request for records concerning criminal investigation of and forfeiture action against requester
Disposition: Affirming district court's grant of summary judgment to agency
- Procedural Requirements: The Court of Appeals for the Sixth Circuit "conclude[s] that the district court correctly rejected [requester's] contentions for the reasons stated by the district court." In the proceedings below the IRS had "moved for summary judgment on the grounds that the parties entered into a settlement agreement which contained a release that affirmatively waived [requester's] right to bring his FOIA action." The Sixth Circuit relates that "[t]he district court held that the release's language was broad enough to encompass [requester's] FOIA action, noting that it 'covers all claims, rights and demands "of every kind" related to the forfeiture actions and discharges the [IRS] from all duties of every kind relating to the actions.'" Additionally, in response to appellant/requester's argument "that he was prejudiced because the IRS allowed litigation to proceed for fifteen months before raising its defense[,]" the court finds that "[w]hile the IRS could have been more diligent in raising its defense, we are unable to say the district court abused its discretion by permitting the IRS to raise the defense in its summary judgment motion."
Circuit Judge Clay writes separately to concur in part and dissent in part. First, Judge Clay "concur[s] in the majority's holding affirming the district court's decision in [one] respect." Judge Clay states that "there is no reason not to . . . hold that [requester] – a sophisticated party represented by two attorneys – is bound by the contract he signed." "Therefore, his FOIA claim is covered and precluded by the broad language of the release." However, Judge Clay also argues that "the IRS was precluded from relying on the release because of its failure to timely assert its rights pursuant to the release." "Contrary to the IRS' argument, the IRS should not have been permitted to raise the defense of release in its summary judgment motion – a motion which was filed more than a year after the lawsuit began." "To be blunt, if this situation – tantamount to neglectful silence – does not amount to waiver, then nothing will."
Judicial Watch v. Dep't of State, No. 13-1363, 2016 U.S. Dist. LEXIS 62283 (D.D.C. May 4, 2016) (Sullivan, J.)
Re: Request for employment records of Hillary Clinton advisor
Disposition: Ordering discovery and explaining in more detail basis for court's February 28, 2016 decision to grant plaintiff's request for discovery
- Litigation Considerations, Discovery: The court holds that "[plaintiff] raises significant questions in its Motion for Discovery about whether the State Department processed documents in good faith in response to [plaintiff's] FOIA request." "[Plaintiff] is therefore entitled to limited discovery." The court specifically points to "[plaintiff's] alleg[ation] that the State Department and Mrs. Clinton sought to 'deliberately thwart FOIA' through the creation and use of clintonemail.com." The court finds that "the circumstances surrounding approval of Mrs. Clinton's use of clintonemail.com for official government business, as well as the manner in which it was operated, are issues that need to be explored in discovery to enable the Court to resolve, as a matter of law, the adequacy of the State Department's search of relevant records in response to [plaintiff's] FOIA request."
Kaplan v. Ebert, No. 15-3578, 2016 WL 2342065 (3rd Cir. May 3, 2016) (per curiam)
Re: Request for records concerning appellant and a third party
Disposition: Affirming district court's grant of summary judgment to agency
- Litigation Considerations, Pleadings: The Court of Appeals for the Third Circuit holds that "[requester's] FOIA claims were not cognizable for two reasons." "First, those claims may not be brought against federal officials/employees." "Second, money damages – the relief that [requester] sought here – are not available under FOIA."
Moon v. BOP, No. 15-3751, 2016 WL 1696821 (8th Cir. Apr. 28, 2016) (per curiam)
Re: Request for records concerning plaintiff
Disposition: Granting appellant's motion for leave to proceed in forma pauperis; reversing and remanding district court's dismissal of appellant's complaint
- Litigation Considerations, Pleadings: The Court of Appeals for the Eighth Circuit "reverse[s] and remand[s] for further proceedings consistent with this opinion." The court finds that "[w]hile [it] agree[s] that a litigant must exhaust administrative remedies before bringing a FOIA action in federal court, . . . [the court] conclude[s] that because FOIA is silent as to whether exhaustion is a pleading requirement or an affirmative defense, . . . the argument of non-exhaustion is an affirmative defense rather than a pleading requirement." "Thus, [appellant] was not required to plead exhaustion in his complaint."
Airaj v. Dep't of State, No. 15-983, 2016 WL 1698260 (D.D.C. Apr. 27, 2016) (Huvelle, J.)
Re: Request for records concerning State Department's decision not to grant Chief of Mission approval for plaintiff to apply for Special Immigrant Visa
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for partial summary judgment
- Procedural Requirements, Time Limits: The court holds that "[w]hile timely access to governmental records is an essential part of FOIA's statutory purpose, the Court is unaware of any legal authority that has enforced FOIA's time requirements by granting summary judgment to a plaintiff" based on the timeliness of defendant's response. The court finds that "defendant here not only acknowledged the request fairly promptly, but also immediately raised the possibility of 'unusual circumstances' delaying the production of responsive documents." "Moreover, defendant actually did produce responsive documents well before plaintiff filed his lawsuit." "In short, the Court finds that [defendant] was reasonably fair and expeditious in responding to plaintiff's FOIA request, and that there is no legal or factual basis for entering judgment in plaintiff's favor."
- Litigation Considerations, Adequacy of Search: "The Court finds that [defendant's] Declaration's description of the offices searched, the breadth of databases and electronic record systems searched, and the terms used by officials familiar with the document storage systems amply demonstrate that defendant conducted a search reasonably calculated to uncover all responsive and relevant documents." Responding to plaintiff's arguments, the court finds that "[f]irst, the adequacy of a search is not determined by the initial results, but rather, by the totality of defendant’s efforts to locate and respond to a FOIA request." "In fact, the D.C. Circuit has held that the performance of additional searches following an agency's initial response to a FOIA request not only does not discredit the original search, but to the contrary, actually indicates good faith and 'suggest[s] a stronger...basis for accepting the integrity of the search.'" "Second, plaintiff's argument is particularly unconvincing given that he made no mention of [a document which would have prompted a search in a specific location] until his administrative appeal in 2015, after defendant had already conducted its first round of searches." The court explains that "[a]lthough plaintiff is correct that an agency has a duty to construe FOIA requests liberally, . . . it is also true that a requester has a duty to reasonably describe the records sought." Third, the court finds that "'[t]he adequacy of a FOIA search,' however, 'is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'"
- Exemption 3: "The Court . . . finds the four Embassy documents to be subject to [the Immigration and Nationality Act] § 222(f), and thus exempt from disclosure under FOIA Exemption 3." The court relates that "the Government contends that the four documents at issue are exempt from disclosure pursuant to the [Immigration and Nationality Act]," 8 U.S.C. § 1202(f), "which encompasses records 'pertaining' to the issuance or refusal of visas." The court finds that, "[i]n the context of the Special Immigrant Visa program created by Congress in the [Afghan Allies Protection Act], it strains credulity to view [Chief of Mission] approval as anything but 'pertain [ing]' to the issuance of a Special Immigrant visa." The court finds that "[Chief of Mission] approval is clearly part of the Special Immigrant Visa application process."
- Exemptions 6 & 7(C): "The Court . . . agrees that defendant has properly withheld the name of the Bureau of Diplomatic Security Special Agent under Exemptions 6 and 7(C)." The court finds that "[p]laintiff has failed to demonstrate how the disclosure of the identity of the diplomatic security official would serve the public interest, whereas the diplomatic security agent has a significant privacy interest at stake." "As defendant notes, the public identification of a diplomatic security agent 'could result in unwanted attention and harassment' of the employee."
- Procedural Requirements, "Reasonably Segregable" Obligation: The court finds that "[d]efendant's in camera submission of the full, unredacted Embassy documents clearly demonstrates that it has only withheld the exempt portions of the documents, and thus defendant has adequately carried its burden to segregate all meaningful information not covered by the FOIA exemptions."
Welby v. HHS, No. 15-195, 2016 WL 1718263 (S.D.N.Y. Apr. 27, 2016) (Román, J.)
Re: Request for records concerning money judgment entered against entity that receives federal funds
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 5, Attorney-Client Privilege: The court finds that defendant's use of Exemption 5 was proper. First, "the Court rejects Plaintiff's challenge that certain withheld documents were not prepared in anticipation of litigation." The court finds that "it does not follow that the Government's concern as to the source of the funds used to satisfy the Judgment was completely assuaged following the district court's vacatur of the restraining orders [on the subject entity's bank accounts]." "There plausibly continues to exist a concern as to the source of the funds to be used to satisfy the Judgment until that time at which the Judgment is satisfied." "Furthermore, the Government's Vaughn index provides reasonably specific detail to allow the Court, and Plaintiff, to discern that the subject communications/documents pertained to the Class Action Litigation." Second, responding to plaintiff's argument, the court rejects "the proposition that the attorney-client privilege is always inapplicable when a communication discusses facts conveyed by a third party." The court does relay that "'material . . . is not rendered privileged simply because it was contained in a memorandum prepared by an attorney.'" Third, regarding plaintiff's argument that "the Government destroyed any claim of privilege by disclosing the communications to third parties," the court first finds that "it does not appear that [the subject entity] operated as a consultant or advisor to the Government" because "it cannot be said that [the subject entity] functioned as an arm of HHS." However, "the Court finds that the extension of the attorney-client privilege to communications between HHS, [the New York Department of State], and [the subject entity] is appropriate under the common interest doctrine." The court relates that "the Government contends that 'HHS, [the New York Department of State], and [the subject entity] share a common legal interest with respect to the class action litigation, namely preventing satisfaction of the Judgment with federal funds.'" The court also notes that "the Government's Vaugh index evidences that communications between HHS, [the New York Department of State], and [the subject entity] concerned a joint litigation strategy with respect to ensuring the Judgment is not satisfied with federal grant funds." Finally, the court finds that "though [the subject entity] may have an additional, financial interest not shared with the Government, '[a] financial interest of a party, no matter how large, does not preclude a court from finding a legal interest shared with another party where the legal aspects materially affect the financial interests.'"
- Procedural Requirements, Searching for Responsive Records: "[T]he Court grants summary judgment in favor of the Government on [the] issue" of "whether the Government properly withheld portions of a document as non-responsive." The court finds that "[t]he Government also has been consistent in its position that the withheld portions of the document were deemed non-responsive because their subject matter is unrelated to the FOIA Request or falls outside the time period delineated in the FOIA Request." "As Plaintiff's bad faith argument fails, there is no reason for this Court to find that the Government improperly redacted non-responsive portions of [the document at issue]."