Court Decisions

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April 27, 2017

Sikes v. Dep't of Navy, No. 316-074, 2017 WL 1536449 (S.D. Ga. Apr. 27, 2017) (Bowen, J.)

Re: Request for certain records concerning deceased former Chief of Naval Operations

 

Disposition: Granting defendant's motion to dismiss

  • Litigation Considerations, In Camera Inspection: "[The] Court does not have jurisdiction over Plaintiff's claim respecting [the instant] FOIA [r]equest . . . in that Plaintiff has failed to allege that the Navy has improperly withheld an agency record." "Instead, [plaintiff] agrees that the Navy has already produced responsive documents." "Plaintiff though asks the Court to conduct an in camera review of the Navy's response to [the instant] FOIA [r]equest . . . to determine whether the Navy made any substitutions or omissions in its response to [a previous] FOIA [r]equest[], which "[p]laintiff admits . . . is the same" as [the current request.]" "This request for relief, however, is beyond the scope of the FOIA." "The FOIA grants [the] Court jurisdiction (1) 'to enjoin the agency from withholding agency records' or (2) 'to order the production of any agency records improperly withheld.'" "The FOIA permits in camera review of agency records 'to determine whether such records or any part thereof shall be withheld under any of the exemptions . . .'" "The FOIA does not provide for [the] Court's jurisdiction to conduct an inquiry into the adequacy of a past production of documents in another case, particularly where the complainant cannot allege that the documents have been improperly withheld." The court similarly rejects plaintiff's attempt to have "[the] Court to perform an in camera review, [in order to] compar[e] the . . . suicide note [withheld] to the contents of Plaintiff's 'Putative Copy' of the note." The court finds that "[t]he FOIA does not provide a basis for this type of inquiry."
     
  • Waiver: The court rejects plaintiff's waiver argument. The court relates that, "in response to [one request], the Navy produced a photograph of [the deceased former Chief of Naval Operations'] desk that depicts an unclear image of his final note to his wife." "Consequently, Plaintiff contends that the Navy has already produced the note and cannot now withhold the actual note." The court finds that "[p]laintiff's premise, however, is faulty." "The note has not been released." "In fact, it was redacted based upon the FOIA privacy exemption[.]" "The fact that the note is unclear or blurred in the released photograph is not inconsistent with the Navy's intent to withhold the contents of the note." "In short, the Navy has not somehow waived the privacy exemption by producing a photograph that incidentally contains a blurry, illegible depiction of the suicide note."
April 26, 2017

Reynolds v. DOJ, No. 16-1428, 2017 WL 1495932 (D.D.C. Apr. 26, 2017) (Boasberg, J.)

Re: Requests for records concerning search of plaintiff's home and plaintiff's arrest

 

Disposition: Granting defendant's motion for summary judgment

  • Procedural Requirements, Proper FOIA Requests: The court relates that "DOJ has offered comprehensive sworn testimony that it never received Plaintiff's FOIA requests." "[Plaintiff] rejoins by attaching copies of his two letters and swearing he mailed them, but this evidence does not show that they were ever received by Justice." The court explains that, "[i]n other words, Plaintiff does not offer proof via, e.g., a certified-mail receipt or any other form of mailing that his missives reached their intended target." The court finds that "[a]s DOJ did not receive [plaintiff's] correspondence, it had no obligation to search for or produce records." "Absent receipt of the request, the agency 'has no obligation to respond to it.'" Also, responding to "[p]laintiff['s] argu[ment] that DOJ should now look for his documents since it cannot dispute that it is currently aware of his request[,]" the court finds that "[w]ere the Court to acquiesce, such a procedure would unwisely bypass the administrative process."

 

April 25, 2017

Canning v. DOJ, No. 11-1295, 2017 U.S. Dist. LEXIS 62529 (D.D.C. Apr. 25, 2017) (Kessler, J.)

Re: Denying plaintiff's third motion for discovery and for stay of case while discovery is conducted, motion to submit supplement to reply in support of partial summary judgment, and motion for limited in camera review

 

Disposition: Denying plaintiff's third motion for discovery and for stay of case while discovery is conducted, motion to submit supplement to his reply in support of partial summary judgment, and motion for limited in camera review

  • Litigation Considerations, Discovery: The court holds that "[p]laintiff's Third Motion for Additional Discovery shall be denied." The court explains that "[it] has already concluded that additional discovery would not be appropriate in this case in view of the pending cross-motions for summary judgment." "Because the subjects of Plaintiff's most recent discovery motion have been extensively briefed by the Parties, much of the discovery sought may well be rendered moot after the Court resolves the pending Motions for Summary Judgment." "Not only is it clear that at least some of the information that Plaintiff seeks is irrelevant or protected by various FOIA exemptions, but Plaintiff has not offered an explanation as to why circumstances have changed since the Court's previous denials so that discovery at this late stage in the case is now warranted."
     
  • Litigation Considerations, Summary Judgment: "[T]he Court shall deny Plaintiff's Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment." The court finds that "[p]laintiff has not alleged that Defendant raised new arguments or issues for the first time in his Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Partial Summary Judgment." "On the contrary, Plaintiff explains that he merely encountered information 'on a re-reading of [defendant's] Fourth Declaration' that he wished 'to bring . . . to the Court's attention[.]'"
     
  • Litigation Considerations, In Camera Inspection: "[T]he Court will resolve the pending summary judgment motions and deny Plaintiff's Motion for Limited In Camera Review." The court finds that "[d]efendant has filed numerous affidavits in support of its Motion for Summary Judgment that justify, in extensive detail, the applicability of the asserted FOIA exemptions." "In reviewing the pleadings and accompanying affidavits, the Court has found no evidence or allegations of agency bad faith." Lastly, "[p]laintiff does not raise any novel issues."
April 21, 2017

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 16-5138, 2017 WL 1422487 (D.C. Cir. Apr. 21, 2017) (Wilkins, J.)

Re: Request for records concerning investigation of former congressman

 

Disposition: Reversing and remanding district court's grant of government's motion for summary judgment

  • Litigation Considerations, Waiver of Exemptions in Litigation: The Court of Appeals for the District of Columbia Circuit holds that "[a]s the Government's invocation of Exemption 5 was untimely and the Government has not provided a sufficient basis for declining to apply the . . . timeliness rule, Exemption 5 cannot shield any of the information sought by [the requester] in this appeal." The court relates that "the District Court noted that the Government's 'briefing contains no claim of changed factual or legal circumstances, no mea culpa or acknowledgment [of] mistake, and indeed no explanation at all as to its failure to assert Exemption 5 in regards to the FBI's records in the original proceedings.'" The court finds that "[i]f Exemption 5 had been invoked at the outset, [the court] could have resolved the merits of its application in the prior appeal." "A robust timeliness rule encourages the Government to present all its arguments the first time around." "Weakening that rule lessens the incentive." "In addition, requiring a FOIA requester to brief and argue the merits of newly asserted defenses – rather than simply adverting to the timeliness rule – imposes additional costs on that party." "These considerations suggest that a robust timeliness rule well serves FOIA's goal of a prompt and efficient process." "Of course, there will be 'unusual situations, largely beyond the government’s control,'. . . in which other considerations override those motivating the timeliness rule . . . but the Government has not made any claim that this is such a case."

    The court additionally relates that "[t]he Government continues to argue . . . that the fact that the Criminal Division cited Exemption 5 in the original proceedings precludes any inference of gamesmanship or sandbagging with respect to the FBI's initial failure to make a similar assertion." The court finds that "[t]hat contention is belied by the fact that DOJ utilized a decentralized process, in which the Criminal Division and the FBI independently decided whether or not to release responsive records that originated in their respective components." "The decision of the Criminal Division to invoke Exemption 5 therefore tells [the court] nothing about why the FBI chose not to cite it."
     
  • Exemptions 6 & 7(C): "[The Court of Appeals for the District of Columbia Circuit] reverse[s] the grant of summary judgment and remand[s] to the District Court." The court relates that the district court allowed for a categorical withholding of the names of "individuals who have already been publicly identified – either through agency press releases or testimony in open court – as having been charged, convicted or otherwise implicated in connection with the public corruption investigation [at issue]." The court finds that "[t]he privacy interests of individuals who have not been convicted in connection with this investigation – and even more so those who have not been publicly linked with the investigation whatsoever – differ greatly from those of individuals who were convicted or pled guilty for their roles." "Connecting the names of individuals to information contained in the documents at issue could add much, or not at all, to the public's understanding of how the Government carried out its investigation and decision not to prosecute [the former congressman]." "There is little [the court] can conclude in the abstract." "This area is simply not well-suited to categorical determinations." The court directs that, "[w]ith respect to those individuals with diminished privacy interests, the withholding of information pursuant to Exemptions 6 and 7(C) must be subjected to a particularized weighing of the public and privacy interests that would be implicated by the disclosure sought by [plaintiff]."

April 20, 2017

Coffey v. Bureau of Land Mgmt., No. 16-508, 2017 WL 1411465 (D.D.C. Apr. 20, 2017) (Boasberg, J.)

Re: Request for communications between officials and private-citizen participants in Wild Horse and Burro Program

 

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Fees and Fee Waivers, Fees: The court finds that, "[a]lthough [plaintiff's] concerns about the length of time that BLM retained her processing fees [(a year and a half)] are understandable, . . . the Court concludes that the no-interest rule forecloses her argument [that defendant "'fail[ed] to return [her] processing fees with interest'"] here." "[The court] consequently holds that [plaintiff], having been repaid in full by Defendant, cannot recover additional reimbursement in the form of $6.81 in interest." The court explains that "[d]efendant correctly points out that FOIA does not expressly waive the government's sovereign immunity with respect to interest."
     
  • Procedural Requirements, Searching for Responsive Records: "[T]he Court cannot conclude that a search using neither names nor email addresses, and instead using the facilities' locations and contracting-related terms, is adequate to pass muster under FOIA's standard of reasonableness." The court finds that, "as Plaintiff points out, the words and phrases BLM searched for are largely related to contracting." "But [plaintiff] did not limit the scope of her request solely to the Bureau's contracting activities; rather, she sought [two BLM employees'] communications with certain individuals at each facility." "In addition, [the court finds that ]the alternative approach Plaintiff proffers – that is, using search terms based on the names and email addresses of the contractors and 'managers/key personnel' at each facility, as well as the names of the facilities – seems eminently reasonable." The court points out that defendant does not "explain[] why the location format it used would be likely to turn up responsive records[]" and, "[i]n addition, it seems unlikely that location keywords, even if differently formatted, would be well-suited to finding records here." "Put another way, it is doubtful that the individuals at each facility would continually refer to their own locations while exchanging routine correspondence." "[A]lthough the Court is hesitant to 'second guess' BLM's selection of search terms, . . . it cannot agree that the Bureau's choice here was reasonable." "The Court, accordingly, holds that Defendant must choose a different set of keywords – e.g., the names and email addresses of individuals affiliated with each holding facility – and conduct its search again."

    Responding to plaintiff's other objections regarding the search, however, the court finds that "[defendant's] Declarations identify the entity that conducted the search . . ., as well as what terms and timeframes were used to search which files." "Had Defendant used adequate search terms, this would have been more than sufficient for it to meet its summary-judgment burden here[.]" "The Court [also] concludes that any 'failure [by BLM] to identify' the database and software involved in its search, . . . does not preclude summary judgment in its favor." Last, the court finds that "[n]othing prevents Plaintiff from seeking [the two BLM employees'] phone records in a subsequent FOIA request, but she plainly cannot stake a claim to those records based on her [instant] request – at least, not at this late juncture[]" when "[plaintiff's] FOIA request never mentioned phone records."
April 20, 2017

Shapiro v. DOJ, No. 13-0729, 2017 WL 1411549 (D.D.C. Apr. 20, 2017) (Friedman, J.)

Re: Request for records concerning deceased computer programmer, activist, and doctoral candidate at MIT

 

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 7(E): "The Court . . . concludes that the government has adequately justified the withholding of the two reports in full, consisting of seven pages, under FOIA Exemption 7(E)." First, the court finds that "[t]he government has established, and [plaintiff] does not dispute, that the FBI is a law enforcement agency, and that the records were compiled for the law enforcement purpose of 'investigating a computer intrusion of the public access system of the federal courts of the United States.'" Second the court rejects defendant's first argument and finds that "[t]he D.C. Circuit does not agree [with defendant]." "It has noted that it 'has applied the "risk circumvention of the law" requirement both to records containing guidelines and records containing technique and procedures.'" However, the court agrees with defendant's "withhold[ing of] seven full pages . . . containing 'comprehensive reports[.]'" Regarding, defendant's contentions that the information "'plays an essential role in decisions concerning the location and identity of suspects, factors essential for determinations to investigate fraud, uncover assets, and multiple other applicable law enforcement related uses[;]'" that "if this information were released, criminals would gain 'insight into the available tools and resources the FBI uses to conduct criminal investigations[;]'" and that "it would 'enable criminals to employ countermeasures to avoid detection, thus jeopardizing the FBI's investigative mission[,]'" the court finds that "[t]hese statements logically demonstrate how the release of the requested information might create a risk of circumvention of the law and meet the relatively low bar required in this Circuit." The court also rejects plaintiff's argument "that the government's release of the name of the database undermines – and is fatal to – its justification for withholding these seven documents" because "this does not diminish [defendant's] interest in withholding specific reports generated by that database."

 

April 19, 2017

U.S. v. Reynolds, No. 10-87, 2017 WL 1410772 (D.D.C. Apr. 19, 2017) (Kessler, J.)

Re: Request for records concerning defendant's incarceration

 

Disposition: Dismissing defendant's claim

  • Litigation Considerations, Jurisdiction: The court holds that "[i]t is apparent from the exhibits [defendant] attached to his Petition that this issue is presently before another member of this Court." "Accordingly, this Court lacks jurisdiction to hear this claim and it shall be dismissed without prejudice."
April 19, 2017

Stevens v. DHS, No. 14-3305, 2017 WL 1397549 (N.D. Ill. Apr. 19, 2017) (Leinenweber, J.)

Re: Reverse FOIA case brought under the Administrative Procedures Act regarding request for records concerning Detainee Volunteer Wages

 

Disposition: Granting defendant's cross-motion for summary judgment; denying intervenor's motion for summary judgment

  • Reverse FOIA & Exemption 4: "[T]he Court finds that the ICE's decision to disclose the [intervenor's] bid and contract for the . . . facility is not arbitrary and capricious." The court holds that "[the intervenor] wholly failed with any specificity to allege how its competitive position would be harmed by disclosure of various provisions of the bid and contract from which ICE had already agreed to redact pricing and intellectual property information." The court explains that "[h]ow [the intervenor] promises to perform the specific services could well be confidential if [the intervenor] proposes to use certain intellectual property in order to carry out its obligations." "However the Court understands that ICE has already agreed to redact such information." "There is no evidence of any possible competitive injury to [the intervenor] that the Court can find in the record that could result from the disclosure." Responding to the invervenor's arguments, the court also finds that "[the intervenor] appears to be asking ICE to show how disclosure would not cause competitive harm to [it]." "This is not a basis for overruling the agency decision."

    "In regard to [the intervenor's] argument that its contract is not among the documents requested by the Plaintiff, [the court holds that] suffice to say that is not a defense to disclosure." "It is either privileged or it is not." "It is up to ICE and the requester to decide whether the information sought is relevant to what was requested."
April 19, 2017

Nat'l Day Laborer Org. Network v. ICE, No. 16-387, 2017 WL 1494513 (S.D.N.Y. Apr. 19, 2017) (Forrest, J.)

Re: Request for records concerning Priority Enforcement Program ("PEP")

 

Disposition: Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

  • Litigation Considerations, Adequacy of Search: "[T]he Court concludes that defendants' searches were reasonable and thus grants summary judgment to defendants FBI and EOIR on this issue[.]" First, "the Court finds that defendant FBI adequately provided a description of the searches that it performed." The court relates that "[defendant's] declarations explain that searches were conducted of the FBI's email systems and certain record repositories[.]" Additionally, "the Court finds that the FBI's search terms were reasonably tailored to discover documents responsive to plaintiffs' FOIA request[]" and that "[d]efendant FBI sufficiently explained why the terms suggested by plaintiffs were not used." Also, the court finds that "the FBI did not fail to search essential agency components reasonably expected to contain responsive records[,]" and that "[p]laintiffs have not rebutted the presumably reasonable decision made by FBI to search only limited individuals." Second, "[a]s with defendant FBI, the Court finds that defendant EOIR adequately provided a description of the searches that it performed." The court relates that "[defendant] describes the searches and search terms used by [the] individuals [conducting the searches]." Also, "the Court finds that the search terms used by EOIR were reasonable[,]" and that plaintiff has not "'identified any flaws that would reveal that [EOIR's] search was not "reasonable."'" Additionally, the court finds that "plaintiffs have not shown that EOIR failed to search essential agency components reasonably expected to contain responsive records."
     
  • Procedural Requirements, Proper FOIA Requests: The court holds that "EOIR and USCIS are not required to obtain A-numbers from ICE in order to thereafter search their own databases." The court relates that "[p]laintiffs do not dispute that defendants EOIR and USCIS cannot electronically search their current databases, solely with the data they currently possess, for the information in . . . plaintiffs’ . . . [r]equest." "Rather, plaintiffs maintain that EOIR and UCSIS are obligated to 'obtain from ICE a list of the A-numbers for individuals apprehend through PEP and use those A-numbers to extract the data on these individuals from the EOIR and USCIS databases.'" The court finds that "[t]he list of A-numbers is neither created, obtained, nor under the control of EOIR and USCIS – the list is an agency record of ICE." "USCIS cannot simply access a 'tool to aid in identifying responsive records.'" "Rather, in order to search for records responsive to [part] of plaintiffs' . . . request, defendants EOIR and USCIS would need to obtain agency records from ICE." "As already discussed, this is not required by FOIA."
     
  • Procedural Requirements, Searching for Responsive Records: "Based on the . . . information contained in the declarations submitted by ICE in support of their motion, the Court finds that ICE has adequately demonstrated that searching for and producing ["105 different data fields that [plaintiffs] seek regarding any individual affected by PEP" in defined ways] that is contained within the [Enforcement Integrated Database ("EID")] would be unreasonably burdensome." The court relates that "[defendant's] declaration explains that it would take over 600 hours to successfully query the EID database for the 18 data fields contained in that database." "Once the data was located, it would take hundreds of hours to format the data." "[Defendant] further states that were ICE to run the necessary queries against the EID, the resulting data would run into the millions of pages." "ICE would then need to review this data and redact information that is exempt from disclosure." Additionally, "the Court rejects plaintiffs' attempt to unilaterally narrow their request now" because "plaintiffs failed to narrow their request during the administrative stage." However, the court also finds that, "with regards to data that ICE does not maintain in its databases, plaintiffs did timely narrow their request and indicated that they would accept a representative sample." The court rejects defendant's argument regarding this narrowed request because "[defendant's] explanation is conclusory and lacks the required specificity."
     
  • Procedural Requirements: "[T]he Court finds that ICE has adequately demonstrated that searching for and producing the data requested in [another part of the request] would be unreasonably burdensome." The court relates that this category "'seeks communications related to PEP.'" The court finds that "[b]ased on a preliminary search and review conducted by six of the . . . field offices [likely to have responsive records], [defendant] estimates that a search for those field offices alone will identify a total of at least 215,850 pages of documents." "Furthermore, ICE FOIA estimates that it would take a minimum of 216 weeks to review those records for redactions." "Applying these estimates to the total number of custodians in all 13 . . . field offices [likely to have responsive records], the total volume of pages could range from about 436,000 to 1.3 million pages of records." "Based on the usual processing rate provided by ICE FOIA, review of that many records would take between 436 and 1,300 weeks."
April 17, 2017

Am. Ctr. for Law & Justice v. Dep't of State, No. 16-2516, 2017 WL 1377909 (D.D.C. Apr. 17, 2017) (Boasberg, J.)

 

Re: Request for records concerning funding of organization that opposed Israeli Prime Minister Benjamin Netanyahu during that country's 2015 elections

 

Disposition: Granting defendant's partial motion to dismiss

  • Litigation Considerations, Pleadings: The court holds that "[w]hile [plaintiff] has shown that State is indeed slow, Plaintiff has not plausibly alleged that the government subscribes to some policy or practice of slow-walking its requests for information." First, the court finds that "[t]he aspects of Plaintiff's Complaint premised on delay alone are . . . fatally flawed." The court explains that, "while tardiness would violate FOIA, it only becomes actionable when 'some policy or practice' also undergirds it." "This aligns with the rule that the sole 'penalty' for mere procrastination is that 'the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.'" Second, the court finds that "unless [plaintiff] can show that sending out receipt letters that comply with FOIA is somehow tantamount to violating the Act – whether it be by causing delay or something else – its attack on this aspect of the agency-disclosure process falls flat." The court explains that "State's acknowledgment letters do what the Act mandates." "Each letter informs the requestor of its case number, the agency's date of receipt, and contact information for any inquiries." "[Plaintiff] does not assert that these letters were somehow shams and that State is instead buying time." "Nor does it contend that something in these missives gives individuals a false hope that the agency will be timely, leaving them in a lurch while it dilly-dallies." Third, the court finds that "this Complaint does not sufficiently identify a policy or practice of compelling lawsuits." The court explains that "[e]ven if some dash of State's lawsuit-inducing behavior is present, the dish that [plaintiff] assembles does not pass the taste test." "Although individuals may choose to sue following agency inaction, . . . once again, Plaintiff does not express in its Complaint that State's policy or practice is to force lawsuits." Finally, the court finds that "[e]ven if [plaintiff] were to succeed on this specific cause of action, that would not necessarily earn the organization the broad declaratory and injunctive relief that it seeks." "The D.C. Circuit has recently held that, in a FOIA case, the Court likely has no power to enjoin the government from engaging in a policy or practice of delayed disclosure writ large, but can only order the agency to cease any actions vis-à -vis the plaintiffs in the lawsuit."

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