Significant New Decisions
The New York Times Co. v. DOD, 499 F. Supp. 2d 501 (S.D.N.Y. 2007) -- Records related to Terrorist Surveillance Program (TSP) run by NSA. Upholding the classification and withholding of the information. The declaration from the former Director of National Intelligence explains why information relating to the TSP program was classified, identifying seven different categories within Executive Order 12,958, as amended, in which information had to be classified in order to protect "the continued successful operation of U.S. intelligence-gathering methods." The various agency declarations all establish that the information withheld pursuant to Exemption 1 falls within one or more of these seven categories, and was therefore properly withheld. Though NSA's declaration was considerably less detailed than the ones submitted by the Defense and Justice Departments, this is acceptable in light of NSA's mission and the constraints it operates under.
Associated Press v. DOD, 498 F. Supp. 2d 707 (S.D.N.Y. 2007) -- Information concerning individuals being held in U.S. detention facility at Guantanamo Bay, Cuba. E.O. 12,958, as amended; The court, relying on a "Top Secret" declaration provided by a high-level DOD official, as well as extensive in camera review, determined that DOD appropriately applied Exemption 1 to a sample of responsive documents. Thus, DOD was granted partial summary judgment as to the redactions on the sample documents and directed to apply similar redactions on similar documents that were not part of the sample. In reviewing Exemption 1 withholdings, courts "'must accord "substantial deference" to agency affidavits that implicate national security.'"
Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007) -- Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq. Plaintiffs have produced no evidence to support their contention that the documents were classified to avoid embarrassment to the government. Defendants have provided a sufficient description of the classified ROEs. Requiring further detail would risk "subvert[ing] the purpose of the exemption." Plaintiffs also claim that certain ROE have been disclosed to the public. However, plaintiffs have failed to produce any evidence that the ROE in question here have been released. Even had they done so, this would not necessarily bar the use of Exemption 1, because "avoiding official confirmation or disclosure of classified information is a valid basis for invoking Exemption 1."
Sussman v. USMS, 494 F.3d 1106 (D.C. Cir. 2007) -- Holding that the district court correctly allowed the USMS to apply Exemption 2 to protect certain internet addresses. However, the district court should not have allowed the use of this exemption to withhold "information reflecting communications between agencies," as this information is not predominantly internal.
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. The SEC appropriately applied this exemption to materials "used to facilitate the administration and management" of its investigations, such as case names and numbers, staff assignment dates, and staff names and phone numbers. Such information "provides no insight on [the] substantive contents of the investigations," and is therefore "purely trivial." Plaintiff's claim that there is a substantial public interest in knowing SEC staff assignment dates is unconvincing.
Ebersole v. United States, No. 06-2219, 2007 WL 2908725 (D. Md. Sept. 24, 2007) -- Records related to DOJ-DOS interagency task force, training of explosives-sniffing dogs, and 2002 visitors' log. Pursuant to "low" 2, ATF properly redacted internal administrative funding codes. This information "satisf[ies] the exemption category of routine or trivial administrative information." Pursuant to "high" 2, ATF properly withheld guidelines for training of explosives sniffing dogs due to the risk that criminals could use this information to prevent detection of their explosives. Plaintiff's argument that this information should be released because it was introduced into evidence at his criminal trial is unpersuasive. Introduction of evidence at a criminal trial is not the same thing as release of information through the FOIA. The former is subject to control by the trial court. Additionally, plaintiff's claim that the information in question has already been published by Auburn University is unconvincing, as the published information appears to differ from that which is responsive to plaintiff's request.
Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007) -- Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq. Plaintiffs argue that release of ROE would not lead to circumvention because the ROE are already known to the enemy through their use in battle. They provide no evidence to support this claim, but even if they had, it would still "fall well short of official disclosure required to waive the exemption." Plaintiffs' claim that the ROE are part of international law and must therefore be released "is circular and based on questionable assumptions." DOD should, however, provide reasonably segregable portions of these documents, even if these would only contain heading titles. DOD has also not shown how the release of the names assigned to particular routes or units which are already in the public domain would risk circumvention of agency policies. DOD did not give a sufficiently detailed description of "certain administrative information" it withheld under "low" 2. Since by its very nature this information must be trivial in order for it to be withheld, there is no risk that providing further detail will undermine the purpose of the exemption.
Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007) -- Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq. DOD properly withheld the names and other information concerning military personnel assigned to an overseas or otherwise sensitive unit pursuant to 10 U.S.C. § 130(b). Plaintiff's contention that this withholding was not properly authorized by the Secretary of Defense is meritless, because the power to authorize this withholding was delegated to an appropriate official.
Finkel v. U.S. Dep't of Labor, No. 05-5525, 2007 U.S. Dist. LEXIS 47307 (D.N.J. June 29, 2007) -- Records related to possible workplace exposure to unsafe levels of beryllium. DOL's assertion that less than 2% of the files included in a database contained "trade secrets" did not justify withholding certain information from all of the files in the database. Furthermore, DOL's affidavit did not describe the withheld information with sufficient specificity for the court to determine if the records claimed to be trade secrets so qualified. Inspection ID numbers, OSHA office ID numbers, and inspection dates also were not trade secrets, notwithstanding DOL's "tenuous" claim that this information could be combined with other, already available information to reveal the identities of the employers who provided the samples. Such information is not sufficiently related to the "productive process" to qualify as a trade secret. Inspection information submitted to OSHA pursuant to its regulatory authority was not voluntarily submitted, notwithstanding DOL's claim that the submissions should be considered voluntary because submitters did not insist on OSHA obtaining search warrants for the information. There was no impairment to the reliability of samples obtained by OSHA or to its efficiency, as the Supreme Court has previously rejected a claim identical to one made by DOL, that release of this information will lead to an increase in warrants sought by inspectees, there being no evidence of refusals to allow the inspections.
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. As to the document produced pursuant to a subpoena (and so considered to be provided "under compulsion"), the SEC filed an affidavit prepared by a submitter which adequately explains the competitive harm the submitter would suffer if its document was released. As to documents which were voluntarily submitted, the SEC has shown that these documents contained commercial information of a type not "ordinarily released . . . to the public" and were thus properly withheld.
Ctr. for Pub. Integrity v. FCC, 505 F. Supp. 2d 106 (D.D.C. 2007) -- Request for documents submitted by telecommunications providers. The parties agreed that information was provided "involuntarily" and so must be analyzed under Nat'l Parks. Though release of "zero/non-zero ranges" for all portions of Parts I-III of the responsive documents would disclose competitively sensitive information, such as "customer mix," connections speeds, and deployment strategy, revealing the existence of comments in Part IV of the documents would run no such risk. The FCC appropriately withheld zip code data from Part V of the responsive documents, as this information could reveal where submitters had acquired or lost customers, information which might well be valuable to competitors.
George v. IRS, No. 05-0955, 2007 WL 1450309 (N.D. Cal. May 14, 2007) -- Deliberative process privilege; ruling that the IRS properly withheld the investigator's interview notes and the case history notes pursuant to the deliberative process privilege. Both sets of notes reflect the agency's deliberations antecedent to final decisions on how to proceed in their investigation of plaintiff. Further holding that the IRS properly utilized the deliberative process privilege to withhold internal correspondence exchanged between agency employees discussing matters that came up during the agency's investigation of plaintiff.
Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 493 F. Supp. 2d 91 (D. Me. 2007) -- Exemption 5 threshold requirement; finding that agency could protect the deliberative process concerning the issue of whether to allow the construction of a natural gas facility on tribal land despite the fact that the agency had consulted with an international commission.
The New York Times Co. v. DOD, 499 F. Supp. 2d 501 (S.D.N.Y. 2007) -- Deliberative process privilege; defendants failed to show that "talking points" created to prepare briefing officials (including the Attorney General) in responding to press inquiries are "contemplative, deliberative, analytical documents." With regard to draft documents, defendants' affidavits did not adequately describe the "function and significance" of these documents in the agencies' decisionmaking processes. For most of the withheld e-mails and notes, defendants' declarations and Vaughn indexes do not provide sufficient detail to determine how these documents were part of the deliberative process. For all documents for which insufficient detail was provided in agency declarations and Vaughn indexes, defendants are directed to submit the documents for in camera review. Presidential communications privilege; one document that reflected the advice of the Office of Legal Counsel in response to a request for assistance from other Department officials was properly withheld. Pursuant to the presidential communications privilege, the Department of Justice properly withheld two documents that originated with a presidential adviser and which sought advice concerning a presidential decision. Attorney work-product privilege; talking points and a draft editorial were not subject to protection under the attorney work-product privilege, because they appear to have been created for public relations purposes, and not in anticipation of litigation. Two documents that provided guidance for criminal litigation were properly withheld under the attorney work-product privilege.
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. The SEC correctly used the attorney-client privilege to withhold documents containing attorney recommendations and legal advice. The agency also appropriately used the attorney-work product privilege to protect a range of documents tied to SEC investigations. In all cases, these documents were prepared by agency attorneys in anticipation of litigation. Finally, defendant withheld documents pursuant to the deliberative process privilege. All of these documents were both predecisional and deliberative, in particular reflecting discussions and recommendations as to the conduct of agency investigations.
People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284 (D.D.C. 2007) -- Records relating to Park Service video. Documents reflecting preliminary discussions regarding the video, proposed footage as well as suggestions on how to edit it, and agency reactions to media coverage of this story were appropriately withheld as predecisional and deliberative. Certain other documents (including one that listed scholars who defendant might have wanted to consult and a description of the development of the original video) did not necessarily reflect agency deliberations and must be released.
Citizens for Responsibility and Ethics in Washington v. DHS, 514 F. Supp. 2d 36 (D.D.C. 2007) -- Records concerning FEMA's preparation for and response to Hurricane Katrina. A FEMA contractor consulted for the purposes of developing a "catastrophic planning initiative" for FEMA qualifies as a consultant for the purposes of the Exemption 5 threshold, as does a former Congressman who communicated with FEMA regarding recommendations relating to FEMA's response to the hurricane. State government officials consulted in an effort to coordinate evacuation plans also qualify as consultants. DHS established that the documents it withheld pursuant to the deliberative process privilege were deliberative and predecisional. Documents relating to personnel decisions and possible responses to fires were deliberative, as they related to decisions on how to respond to the ongoing crisis. Documents that included predictions about possible participants in certain internal discussions were also withheld appropriately, as decisions about including certain individuals in these discussions reflect decisions on how the agency responded to the hurricane. Briefing reports withheld by DHS included reports of ongoing problems with the agency's response to the hurricane and included suggested solutions, and where therefore also withholdable. DHS also properly invoked the attorney-client privilege to withhold a small number of documents. Contrary to plaintiff's assertions, there is no indication that confidentiality was breached with regard to any of these documents, nor is there any indication that the documents in question represent authoritative interpretations of agency law. DHS also appropriately utilized the presidential communications privilege to protect documents that related to presidential decisionmaking and that were authored by, or requested and received by the President's close advisers and their staffs. Plaintiff's claim that DHS must specifically identify the White House advisers involved in these communications to assert the privilege is unfounded. However, this privilege cannot be applied to documents that were not "solicited and received by White House advisers or their staff," or documents which merely "reflect" communications with White House advisers or were "intended" for White House advisors.
People for the Am. Way Found. v. U.S. Dep't of Educ., 516 F. Supp. 2d 28 (D.D.C. 2007) -- Documents concerning federally funded school voucher program in the District of Columbia. Documents exchanged between DOE and the D.C. Mayor's Office are not inter or intra-agency documents. The D.C. Mayor's Office cannot be considered a consultant to DOE because the Mayor's Office and DOE share ultimate decisionmaking responsibilities for the voucher program. Thus, the Mayor's Office is not "convey[ing information] to DOE to unilaterally make ultimate decisions based on the D.C. Mayor's Office's advice." The D.C. Mayor's Office "represents its own constituency." Further, while Klamath holds that entities that seek government benefits at the expense of other parties "certainly" cannot be considered consultants, the Court "does not agree that Klamath stands for the proposition that communications must definitely meet these two criteria to fall outside of Exemption 5's shield from disclosure." Documents exchanged with two private companies that were hired to evaluate the voucher program also do not meet the Exemption 5 threshold test. These companies were not consultants to the government because their goal was to "evaluate" the program, not to "advise" DOE. Furthermore, the two companies "presumably" have an interest in being awarded subsequent contracts, and these contracts are awarded on a competitive basis. To the extent that either contractor offered advice, it was to the Washington Scholarship Fund, and not to DOE directly.
Yonemoto v. VA, No. 06-0378, 2007 WL 1310165 (D. Haw. May 2, 2007) -- Protecting com-ments in e-mail government e-mail traffic of a personal nature and finding that such comments could reasonably expose the write to "annoyance . . . in either their official or private lives."
George v. IRS, No. 05-0955, 2007 WL 1450309 (N.D. Cal. May 14, 2007) -- Holding that the IRS legitimately used these Exemptions 6 and 7(C) to withhold the names and identifying information of IRS employees. IRS employees have a very strong privacy interest in not being the target of harassment as they attempt to carry out their duties. Plaintiff did not show any meaningful public interest that would be served by release of this information.
The News-Press v. DHS, 489 F.3d 1173 (11th Cir. 2007) -- Finding a strong public interest favoring the release of the addresses of disaster aid recipients following 2004 hurricanes in Florida; minimal privacy interest found in such information.
People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284 (D.D.C. 2007) -- Records relating to Park Service video. Defendant withheld the names and contact information (including home addresses and phone numbers) of private individuals who voluntarily submitted comments to defendant regarding the video. As to the former, defendant has not demonstrated why release of these names would "raise the kind of privacy concerns protected by Exemption 6." Furthermore, any such privacy interest is outweighed by the public interest in knowing the names of individuals who "may be exerting influence" on Park Service officials. As to the latter, there is no public interest to be gained from the release of personal phone numbers and home addresses, so these were properly protected.
Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007) -- Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq. DOD withheld the names of American military personnel (as well as one foreign agent) involved in an incident which was investigated. While the public has a strong interest in learning the names of these personnel (especially if they are people with policymaking or policy implementation responsibilities), this interest is outweighed by the even stronger interest these individuals have in their own privacy where disclosure "would risk harm or retaliation."
Sussman v. USMS, 494 F.3d 1106 (D.C. Cir. 2007) -- Ruling that the USMS declarant's statement that release of information would reveal the focus of a grand jury investigation was insufficient. Instead, the USMS needed to explain how release would have this effect. Agency affidavits are required to provide "specific information about the impact of the disclosures." On remand, the district court must determine whether disclosure could be expected to interfere with enforcement proceedings, and such proceedings must be pending as of the time of the district court's decision, "not merely at the time" of the original request.
People for the Ethical Treatment of Animals v. USDA, No. 06-930, 2007 U.S. Dist. LEXIS 46224 (D.D.C. June 27, 2007) -- Finding that USDA properly withheld recording of anonymous telephone call concerning the tiger attack on performer Roy Horn in Las Vegas.
Finkel v. U.S. Dep't of Labor, No. 05-5525, 2007 U.S. Dist. LEXIS 47307 (D.N.J. June 29, 2007) -- Holding that the public interest in release of information that will "increase understanding about beryllium sensitization and OSHA's response thereto" is significant, and outweighs the privacy interest of OSHA employees in their ID numbers. Such privacy interests are "more limited" than the interests of other law enforcement agents in the release of more readily identifying information.
James v. U.S. Secret Serv., No. 06-1951, 2007 WL 2111034 (D.D.C. July 23, 2007) -- Finding that the Secret Service appropriately used Exemption 7(C) to withhold names, signatures, and telephone numbers of Secret Service law enforcement personnel, as well as names and other identifying information of third parties who provided information to the agency as part of a criminal investigation, and names and identifying information of third parties who were charged with or suspected of criminal activity. Withholding of these types of information has been routinely upheld due to the risk of harassment to the various people involved if their identities become known. Plaintiff's interest in pursuing his own "private agenda" is "not a proper basis for disclosure."
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. The SEC's use of this exemption to withhold names, contact information, and account numbers of SEC staff members and private parties was appropriate. Plaintiff has not identified a public interest that would overcome the substantial privacy interest in the release of such private information. SEC did not waive use of this exemption by the submission of declarations of individuals involved in its investigations, nor is SEC's use of the exemption affected by the fact that plaintiff may be able to identify some of the individuals whose names were withheld.
James v. U.S. Secret Serv., No. 06-1951, 2007 WL 2111034 (D.D.C. July 23, 2007) -- ruling that the Secret Service did not indicate whether its claimed source provided information under an express or implied assurance of confidentiality, which is a requirement for use of this exemption. However, the court held that the material was properly withheld pursuant to Exemption 7(C).
George v. IRS, No. 05-0955, 2007 WL 1450309 (N.D. Cal. May 14, 2007) -- finding that the IRS investigator's notes were properly withheld under Exemption 7(E). The agency declarations show a "sufficient nexus" between the agency's investigation of plaintiff and its enforcement duties to make the use of this Exemption allowable. The agency has "broad authority" to withhold records under Exemption 7(E). The agency also appropriately utilized Exemption 7(E) to withhold discriminant function system (DIF) scores. These scores form the primary basis for agency decisions of which tax returns to select for further review. Release of DIF methodology would reveal a special investigative technique, thereby facilitating circumvention of internal revenue laws.
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. Plaintiff's claim that the SEC was required to refer documents originating with state and federal banking regulators to their originators for an initial determination on disclosure is unsupported. Plaintiff's claim that defendant has failed to release "purely factual" information is similarly unavailing. Defendant submitted a declaration explaining the application of the exemption to the entirety of the relevant documents, and compelling release "would 'undermine the spirt of cooperation between banks and regulating agencies that Exemption 8 attempts to foster.'"
Agency Records Issues
Citizens for Responsibility and Ethics in Washington v. DHS, No. 06-1912, 2007 WL 4374023 (D.D.C. Dec. 17, 2007) -- Visitor logs for White House and Vice Presidential residence. The visitor logs for both locations are agency records. "[T]hey are each generated by the Secret Service, and not by Presidential or Vice-Presidential staff." The fact that officials from these two staffs "do at times provide much of the 'information' contained in these records . . . does not, by itself, prove the Secret Service does not create these documents." Under the FOIA, the focus should be on "the process by which the records are created," and not on the information itself. To hold otherwise "would effectively place the information source above the record’s creator. This would insulate records that contain information supplied, perhaps even gleaned, from an external, non-agency source." While the Secret Service evidenced an intent to relinquish control over the records "once a visit is complete," it is also clear that the agency had the ability to use the records as it saw fit, and that in most circumstances it had the capacity to freely dispose of the records. Furthermore, it is clear that Secret Service personnel read and rely upon these records, as they are "integral to the Secret Service’s protective mission." The degree to which the records are integrated into the Secret Service’s records systems "cuts both ways," however, on balance, these factors weigh in favor of a ruling that the responsive records are under the agency’s control. The Secret Service's use of the records "trumps [its] intent." Because the records are both created by the agency and under its control, they qualify as agency records for purposes of the FOIA.
Attorney Fee Issues
Gavin v. SEC, No. 04-4522, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007) -- Requests for records concerning multiple SEC investigations. Even though the Court denied plaintiff's motion for summary judgment, he has substantially prevailed and is therefore eligible for an award of fees "because his vigorous prosecution of the action compelled the SEC either to produce the requested records or apply proper FOIA exemptions." However, plaintiff is not entitled to an award of fees, because the public benefit from his action is "minimal and incidental." Plaintiff was a commercial requestor, seeking the records in question chiefly for his own private gain.
Fee Waiver Issues
Brunsilius v. Dep't of Energy, 514 F. Supp. 2d 30 (D.D.C. 2007) -- Records concerning Rocky Flats nuclear facility. Plaintiff's indigence, by itself, is not a basis upon which to grant a fee waiver. Neither is plaintiff's interest in pursuing private litigation against the government. Plaintiff claims that release of the requested records would be in the public interest. However, DOE properly concluded that plaintiff, as an inmate, lacks the ability to disseminate the information in question. Because the estimated fee for the processing of plaintiff's request was sufficiently high that DOE required advance payment of fees, plaintiff's request would not be considered "received" until the agency received payment.
In Camera Review
Hiken v. DOD, No. 06-02812, 2007 U.S. Dist. LEXIS 73545 (N.D. Cal. Oct. 2, 2007) -- Documents concerning Rules of Engagement (ROE) and other DOD rules applied to military personnel serving in Iraq. In addition to supplementing its previously submitted declarations, DOD must submit certain documents for in camera review. While there has been no finding of bad faith on DOD's part, the public perception of possible bad faith is enough to warrant in camera review in this case.
"Open America" Stays
Elec. Frontier Found. v. DOJ, 517 F. Supp. 2d 111 (D.D.C. 2007) -- Request for records related to tools used by the FBI in electronic surveillance. Significant staffing shortages caused by the transfer of much of the FBI's FOIA processing operations to Frederick County, Virginia constitute "exceptional circumstances" of the sort required for a court to grant an Open America stay. Furthermore, the FBI has demonstrated its due diligence in achieving a significant reduction of its backlog of requests. While rejecting the agency's request for a two-year stay, the court agreed to a one-year stay with the possibility of a further extension. During the interim, the agency will make releases to the requester approximately every four weeks and will file status reports with the court every 90 days concerning its continued progress in processing plaintiff's request.
Judicial Watch, Inc. v. DHS, 514 F. Supp. 2d 7 (D.D.C. 2007) -- Documents related to Mexican national who testified during prosecution of two Border Patrol agents. Plaintiff's motion for a preliminary injunction seeking immediate release of the documents it requested is denied. Even had plaintiff demonstrated a substantial likelihood of success on the merits (which it has not), it has not shown that either it or the public will suffer irreparable harm if the documents are not disclosed immediately, nor would an injunction advance the public interest. Plaintiff's argument that "any delay is an irreparable harm" is unavailing as the D.C. Circuit has not indicated that it "would sanction such a sweeping contention in the context of FOIA litigation." Additionally, granting the injunction would "result in a significant hardship" on defendants, because it would force them to conduct a search for records before the Court has had the opportunity to decide whether a search is even required. This would be "an inappropriate use of [the Court's] equitable powers." Plaintiff has also not demonstrated the public interest requires immediate disclosure of the requested records. "[P]ublic attention [on the subject] does not necessarily establish that the public interest would be served by granting the injunction," particularly when the "events at issue are already several years old."
Waiver of Exemptions
Ctr. for Pub. Integrity v. FCC, 505 F. Supp. 2d 106 (D.D.C. 2007) -- Request for documents submitted by telecommunications providers. Defendant did not waive its right to claim Exemption 6 as the basis for some of its withholdings by not referencing this exemption in its initial responsive pleading (i.e., its summary judgment motion).