Moffat v. DOJ, No. 11-2472, 2013 WL 2679741 (1st Cir. June 14, 2013) (Lipez, J.)

Date: 
Friday, June 14, 2013
Re: Records pertaining to plaintiff Disposition: Affirming district court's granting of summary judgment for defendant and fee award
  • Exemption 7(C):  The First Circuit concludes that plaintiff "has failed to demonstrate that the privacy interests the FBI seeks to protect have waned in strength as a result of the release of a less-redacted version of the FBI 302 report, or that there is a significant public interest in the requested information."  During his criminal proceedings, the plaintiff was provided with a document "that purports to be an FBI 302" and "[a]lthough the document given to [plaintiff] contains substantial redactions, portions of the report reveal the names of the agents and government prosecutors who were present at the interview."  During this FOIA litigation, the FBI provided the plaintiff with a copy of the same 302 report but the "FBI's version of the report contains more redactions than [plaintiff's] version, and blacks out the names of the FBI agents who conducted the investigation, [a third party's] name, as well as most of the factual details."  The First Circuit explains that "prior revelations of exempt information do not destroy an individual's privacy interest" and "[t]he privacy interests the government seeks to uphold remain as strong now as they were before."  Additionally, plaintiff "has not identified a public interest powerful enough to outweigh the substantial privacy interests at stake."  The plaintiff's "only discernible interest in the requested information is to challenge his murder conviction" and "[h]e articulates no reason why the names and identifying information of specific individuals would shed any light on the conduct of the government."  The First Circuit also notes that to the extent that the requester is arguing for a finding of a FOIA public interest based on government misconduct, "the Supreme Court has said that 'where . . . the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure.'"  "Rather, the plaintiff must make a 'meaningful evidentiary showing' that the public interest would be served by disclosure."
  • Exemption 7(D):  The First Circuit determines that "[t]he government . . . retained the right to invoke Exemption 7(D) as to the FBI 302 report, notwithstanding the entry into the public domain of some portions of the report."  "Exemption 7(D)'s shield does not necessarily disappear when some fraction of the information requested has come to light."  The Court notes that even if the exemption could "apply to the specific information that has already been publicly disclosed," "the most [plaintiff] could obtain would be a copy of the FBI 302 report that contains the exact same redactions as the version he already possesses."  The First Circuit notes that it has previously "declined to read a waiver provision into Exemptions 7(D)'s straightforward language."
  • Allegations of Bad Faith:  The First Circuit concludes that plaintiff "has failed to raise a triable issue as to the government's treatment of his FOIA request."  Plaintiff claims that the "FBI's treatment of the report as evidence of its bad faith handling of his FOIA requests generally, and as an indication that the agency continues to hide documents from him."  However, "even if the agency claimed an exemption in error, that fact alone does not establish that the government's response lacked good faith, or that the search was inadequate." 
  • Attorney's Fees:  The First Circuit concludes, "there was no abuse of discretion in the district court's calculation of the fee award."  Plaintiff's counsel "submitted an affidavit stating in cursory fashion that his typical hourly rate was $225, without offering any indication that his years in practice, his credentials, or his experience supported such a figure."  Additionally, "[t]he affidavit also tells us nothing about counsel's experience with FOIA litigation."  Because the plaintiff "fail[ed] to proffer any evidence in support of his hourly rate," the district court did not err in "basing the fee award on the value that [the Committee for Public Counsel Services] had placed on attorneys representing indigent defendants."
Topic: 
Allegations of Bad Faith
Attorney Fees
Court of Appeals
Exemption 7C
Exemption 7D
Updated August 6, 2014