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The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of July through September 2003. OIP encourages all agencies to make use of telefax transmission -- to (202) 514-1009 -- in forwarding recent FOIA decisions for timely compilation in FOIA Post.
Appeals Courts
Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55 (D.C. Cir. 2003) (Exemption
3 [50 U.S.C.
Bloom v. Soc. Sec. Admin., 72 F. App'x 733 (10th Cir. 2003) (mootness: affirms district court ruling that this FOIA case is moot because the agency has provided all requested documents to the requester).
Chilingirian v. United States Attorney Executive Office, 71 F. App'x 571 (6th Cir. 2003) (duty to search: defendant agency has demonstrated that it conducted a reasonable search for records in response to FOIA request -- in this case by contacting former prosecutors who advised that the requested records, which they would have authored, were never created) (discovery in FOIA litigation: requester is not entitled to discovery because he did not establish bad faith on the part of the agency).
Darby v. DOD, 74 F. App'x 813 (9th Cir. 2003) (without elaboration, finds that Exemption 5 (deliberative process privilege) and Exemption 7(C) protect portions of 2 internal DOD e-mail memos prepared in the predecisional phase of a DOD investigation).
Heily v. United States Dep't of Commerce, 69 F. App'x 171 (4th Cir. 2003) (per curiam) (Vaughn Index: defendant agency's Vaughn Index is reasonably specific) (duty to search: defendant agency has demonstrated that it conducted a reasonable search in response to the FOIA request) (discovery in FOIA litigation: district court properly limited the scope of discovery to factual disputes).
Johnson v. Comm'r, 68 F. App'x 838 (9th Cir. 2003) (affirms the ruling of the district court; where requester in his Complaint alleged violations of the FOIA, rules that the IRS exists and is an "agency" for purposes of the FOIA, and imposes a sanction of $2000 on the requester for filing a frivolous appeal).
Johnson v. Comm'r, 68 F. App'x 839 (9th Cir. 2003) (affirms the ruling of the district court; where requester in her Complaint alleged numerous violations of the FOIA, rules that the IRS exists and is an "agency" for purposes of the FOIA, and imposes a sanction of $2000 on the requester for filing a frivolous appeal).
Kelly v. CIA, No. 02-5384 (D.C. Cir. July 31, 2003) (per curiam) (appeal dismissed for lack of a final, appealable order in this FOIA action where the requester sought records reflecting any covert relationship between the CIA and UCLA; the orders under review do not address the adequacy of defendant agency's search of its operational files, and requester has not had the opportunity to challenge that search).
McSheffrey v. Executive Office for United States Attorneys, No. 02-5239, 2003 U.S. App. LEXIS 1288 (D.C. Cir. Jan. 24, 2003) (per curiam) (summary affirmance granted; Exemption 7(C) protects the identities of third parties contained in 2 pages of criminal background checks for prospective visitors to plaintiff during his confinement in a federal prison; individuals did not waive their privacy interests by filling out Visitor Information Forms).
McSheffrey v. Executive Office for United States Attorneys, No. 02-5401, 2003 WL 21538054 (D.C. Cir. July 2, 2003) (per curiam) (summary affirmance granted; district court properly denied costs to FOIA requester who had not "substantially prevailed"; costs are treated exactly the same as attorney fees under the FOIA; applying Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. and Oil, Chemical & Atomic Workers Int'l Union v. DOE, finds that because the requester had not been awarded some relief by the court, he is not entitled to costs).
Nash v. United States Dep't of Justice, No. 02-56180, 2003 U.S. App. LEXIS 14095 (9th Cir. July 10, 2003) (reverses district court's dismissal of requester's FOIA suit for failure to effect service of process properly; plaintiff provided the court with a certified mail receipt and an affidavit from his attorney, and he was not required to provide a return receipt (which he had not yet received) as additional proof of service; requester did not effect service by sending his summons and Complaint by "regular first class mail" to the United States Attorney, but the district court did not alert him to his error or give him the opportunity to cure his failure).
Parenti v. IRS, 70 F. App'x 470 (9th Cir. 2003) (affirms district court's conclusion that this FOIA action is moot, because after conducting a reasonable search the IRS provided requester with all responsive records).
R&W Flammann GmbH v. United States, 339 F.3d 1320 (Fed. Cir. 2003) (Exemption 4: reverses district court ruling in this action where the Army, after deciding not to exercise the option under plaintiff's service contract -- which was "[a]warded in accordance with the sealed bid procurement process" -- released the plaintiff's unit prices (including pricing information for the unperformed option years) to a company with whom plaintiff was competing under a new solicitation for a substantially similar contract; the unit prices are not confidential because they already were in the public domain as a result of the bid-opening process and they became immediately available to the public as required by the Federal Acquisition Regulation (FAR); trial court's order enjoining the Army from awarding the resolicited contract is reversed because the Army's actions did not create an "appearance of impropriety," and because a "procurement officer's general regulatory duty to ensure fair treatment under [the] FAR" is superseded by the FOIA's mandatory disclosure requirement).
Tonkin v. United States Customs Serv., 75 F. App'x 316 (5th Cir. 2003) (Exemption 6: district court properly found that information about an investigation of specific individuals constitutes "files" within the meaning of the exemption; without elaboration, finds that the substantial privacy interests implicated by disclosure of the documents outweigh the "limited" public interest in disclosure) ("court need not decide whether" Exemption 7(C) applies in this case).
Union of Needlestrades, Indus. & Textile Employees v. INS, 336 F.3d 200 (2d Cir. 2003) (attorney fees: district court properly applied the Supreme Court's Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. and Oil, Chemical & Atomic Workers Int'l Union v. DOE decision rejecting the catalyst theory and denied an award of attorney fees to a FOIA requester whose action caused the release of information, but did not achieve any judicially sanctioned relief such as a judgment on the merits or a court-ordered consent decree; as in Buckhannon, the Court found that "defendant's voluntary change in conduct . . . lacks the . . . judicial imprimatur" necessary to render requester a "prevailing party"; any difference in the "substantially prevailing" language used in the FOIA and the "prevailing party" term used in Buckhannon "is not significant to our analysis").
United States v. Pugh, 69 F. App'x 628 (4th Cir. 2003) (Exemption 5: applying Julian v. Department of Justice, vacates and remands district court finding that the requester is not entitled to a copy of his own presentence report) (venue: on remand, the district court should address the proper venue for requester's claim).
District Courts
Al Najjar v. Ashcroft, No. 00-1472 (D.D.C. July 22, 2003) (duty to search: in this FOIA action where plaintiff, a Palestinian professor who was deported in August 2002, sought his records from the Justice Department, finds that the Civil Rights Division must search its files for documents about a January 8, 2001 meeting, unless it can provide a sufficient explanation as to why such a search would be unreasonably burdensome) (in camera affidavit: before the court decides the merits of the dispositive motions, the 3 Justice Department components that filed substantial portions of their moving papers and Vaughn Indices in camera and ex parte must create a fuller public record of their actions and must more specifically justify the bases for withholding information).
Armstead v. Gray, No. 3-03-CV-1350, 2003 WL 21730737 (N.D. Tex. July 23, 2003) (court lacks jurisdiction under the FOIA because plaintiff has not alleged that agency records were improperly withheld).
Barber v. Office of Info. & Privacy, No. 02-1748 (D.D.C. Sept. 4, 2003) (case or controversy: regardless of how long it took the defendant agency to respond to plaintiff's FOIA request, the "case or controversy evaporates when the documents are released") (adequacy of search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request for records about himself; an agency is not required to answer questions or to conduct research) (Exemption 7 (threshold): requirement met by records concerning plaintiff's prosecution on drug charges) (Exemption 7(C): protects the identities of law enforcement agents) (Exemption 7(D): defendant agency properly withheld records under this exemption; the notations on the face of each document show that the United States Attorney's Office received the records from the Florida Department of Law Enforcement under an express promise of confidentiality; an express and/or implied assurance of confidentiality may be inferred for other documents contained within the confidential transmission that did not bear the notations) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).
Beneville v. United States Dep't of Justice, No. 98-6137 (D. Or. June 11, 2003) (duty to search: FBI's affidavits demonstrate that it conducted a reasonable search in response to plaintiff's FOIA request) (scope of request: FBI properly provided plaintiff with only the applicable portions of released documents) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (Exemption 7 (threshold): requirement met by records compiled in the course of the FBI's investigation of the Unabomber) (Exemption 7(A): where the Unabomber has pled guilty to the charges against him, but subsequently appealed his sentencing, finds that the FBI has shown that disclosure of 47 documents -- comprised of teletypes, memoranda, electronic communications, Form 302s, and source documents/information -- could interfere with law enforcement proceedings; within 30 days, the FBI must show that this exemption protects the Unabomber documents that it claimed were protected by Exemption 7(A) before the guilty plea and must respond to plaintiff's allegation that the FBI has a "policy and practice of blanket denials").
Benston v. United States, No. 02-1752, 2003 U.S. Dist. LEXIS 17355 (D. Ariz. Sept. 11, 2003) (plaintiff's Complaint dismissed for failure to effect service of process properly, because he has not served the United States and its agencies).
Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268 F. Supp. 2d 1101 (D.N.D. 2003) (proper party defendant: individual agency employees are not proper party defendants under the FOIA).
Citizens for Pa's Future v. United States Dep't of the Interior, 218 F.R.D. 441 (M.D. Pa. 2003) (adequacy of affidavit: agency's affidavit is adequate because it is based on either the affiant's own personal knowledge of Pennsylvania's coal mine reclamation bonding program or on information furnished to him in his official capacity) (Exemption 5: the inter- or intra-agency threshold requirement is met by documents communicated, as required by federal statute, between the Interior Department and a state agency, because they are co-defendants in litigation and "share a unity of interest regarding coal mining reclamation"; requirement is "clearly" met by records created by a federal agency employee and shared with other agency employees or employees of another federal agency; the deliberative process privilege protects all withheld records that, if disclosed, would stifle the flow of objective opinion necessary for the development of good agency policy or would mislead the public by revealing opinions that may not have been adopted by the agency) ("reasonably segregable": orders in camera inspection of all withheld records to determine whether there are any reasonably segregable portions that may be disclosed; agency must prepare a supplemental Vaughn Index on the issue of segregability).
Coastal Delivery Corp. v. United States Customs Serv., No. CV 02-3838 (C.D. Cal. June 13, 2003) (plaintiff's motion for reconsideration denied in this FOIA action where the court previously ruled that information concerning the examination of merchandise arriving at the Los Angeles/Long Beach seaport was protected under Exemptions 2 and 7(E)).
Davis v. United States Dep't of Justice, No. 00-2457 (D.D.C. July 31, 2003) (Exemption 7(C): protects information that would identify individuals who provided information to the FBI in the course of its criminal investigation of plaintiff; there is no public interest in disclosure) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).
Davis, Cowell
& Bowe, LLP v. Soc. Sec. Admin., 281 F. Supp. 2d 1154 (N.D. Cal. 2003)
(in this FOIA case where the court previously ruled that Exemption 3 [26 U.S.C.
Edmonds v. FBI, 272 F. Supp. 2d 35 (D.D.C. 2003) (adequacy of agency affidavit: in this FOIA action where whistleblower-plaintiff seeks information related to her employment in the FBI's translator program, court finds that, with limited exceptions noted below, the FBI's public affidavit and coded documents provide sufficient detail to demonstrate that the withheld information falls within the claimed exemptions) (Exemption 1 [E.O. 12,958]: where extensive justification would threaten to reveal the very information for which the exemption is invoked, finds that the FBI's in camera affidavit demonstrates that the disclosure of work-related documents pertaining to plaintiff could reasonably be expected to result in damage to the national security; information can be classified if, in the aggregate, it reveals underlying facts "like a piece of a jigsaw puzzle"; plaintiff has not shown that the identical information is in the public domain; disclosure to a congressional committee does not constitute waiver) (Exemption 2 "low": protects FBI's internal rules for language services because they constitute "trivial administrative matters of no genuine public interest"; "high": protects secure facsimile numbers used only by FBI Special Agents and staff in conducting classified or sensitive investigations because disclosure would give "those with the intent of breaking the law the ability to monitor or block the FBI's secure facsimile lines"; by August 8, the FBI must provide the court with additional information about the withholding of 3 additional pages under this exemption) (Exemption 5: by August 8, the FBI must provide the court with additional information about documents that are being withheld under Exemption 5 that have not been found to be properly withheld under another FOIA exemption) (Exemptions 6 and 7(C): protect information that would identify FBI Special Agents, FBI support personnel, and third parties in documents related to plaintiff's whistleblower allegations, because plaintiff has not shown a public interest in disclosure; prior disclosure of personal information in the media does not vitiate an individual's privacy interest in subsequent disclosure) (Exemption 7 (threshold): finds, without specification, that the requirement is met by records compiled during an internal investigation) (Exemption 7(A): the FBI has shown that the release of evidentiary and investigative information would interfere with the ongoing law enforcement proceeding and might lead to the intimidation of those involved in the investigation) (Exemption 7(D): protects the identity of a source who provided information to the FBI under an express promise of confidentiality) (Exemption 7(E): disclosure of some of the questions asked during plaintiff's polygraph examinations and the numerical ratings assigned to her responses would allow individuals "to employ countermeasures" that could defeat the usefulness of the examination) ("reasonably segregable": all reasonably segregable, nonexempt information has been released) (duty to search: the FBI conducted a reasonable search in response to plaintiff's FOIA request) (discovery in FOIA litigation: discovery is inappropriate in this FOIA action because the FBI's affidavits are adequate and there is no evidence of agency bad faith).
Evans v. OPM, 276 F. Supp. 2d 34 (D.D.C. 2003) (Exemption 5: on in camera inspection, finds that the deliberative process privilege does not protect a memorandum, issued by the Office of the General Counsel (OGC) in response to an inquiry from a program office, that is a "clear statement" of OPM's legal position on the adoption of a governmentwide policy on filling interdisciplinary positions; memorandum cannot be protected "merely because it was issued before a programmatic decision based on that legal position was finalized"; memorandum moved "horizontally" from OGC to the program office; a "strong theme" of this circuit's deliberative process opinions is that an agency cannot be allowed to develop a body of "secret law" that it uses in the discharge of its regulatory duties; OPM must release the memorandum within 14 days).
Forest Conservation Council v. United States Dep't of Labor, No. 01-1259, 2003 WL 21687927 (D.N.M. May 6, 2003) (Exemption 4: disclosure of countywide wage and employment data provided voluntarily by State of New Mexico in highly specific "4-digit standard industrial classification codes" would impair the government's ability to obtain the information in the future).
Gargano v. IRS, No. 01-11408 (D. Mass. July 10, 2003) (court lacks jurisdiction in this FOIA action because plaintiff failed to exhaust his administrative remedies by filing an administrative appeal).
Gonzalez v. United States Dep't of Justice, No. DR-03-CA-058 (W.D. Tex. Sept. 15, 2003) (duty to search: the United States Marshals Service (USMS) has not demonstrated that it conducted an adequate search in response to plaintiff's FOIA request, where no records were found; USMS did not describe in reasonable detail the "scope and method" by which its search was conducted and did not show that its search was reasonably calculated to uncover all documents responsive to plaintiff's request).
Hertzberg v. Veneman, 273 F. Supp. 2d 67 (D.D.C. 2003) (Exemption 5: attorney work-product privilege protects 13 Forest Service employees' and contract employees' witness statements relating to the suppression efforts taken during the wildfire in the Bitterroot National Forest in August 2002; statements of contract employees are "inter-agency or intra-agency" records; privilege applies to materials prepared by any party regardless of whether the representative is acting for an attorney, so long as they were clearly prepared in anticipation of litigation; statements were taken as part of a "litigation investigation" because defendant agency reasonably anticipated litigation in connection with the firing operation; defendant agency has not waived the privilege because it has not disclosed any portion of the withheld materials; court declines to apply doctrine of equitable collateral estoppel in this case) (Exemption 6: protects information that would identify residents and local officials and their decisions as to whether to stay or evacuate in 81 pages of witness statements and 20 pages of evacuation forms, because while the privacy interest is de minimus, disclosure would not shed light on the operations of the federal government; videotapes containing audio and video images of individual residents are "similar files" for purposes of this exemption; orders in camera inspection of 6 videotapes to determine whether they contain information about how the Forest Service responded to the crisis) ("reasonably segregable": all reasonably segregable, nonexempt information has been released, with the exception of 6 records for which defendant agency must submit a supplemental affidavit by August 28 or submit the documents for in camera inspection).
Hodge v. IRS,
No. 03-0269, 2003 U.S. Dist. LEXIS 17083 (D.D.C. Aug. 28, 2003) (Exemption 3
[26 U.S.C.
Jones v. City of Indianapolis, 216 F.R.D. 440 (S.D. Ind. 2003) (agency: the Indianapolis Police Department is not an "agency" for purposes of the FOIA).
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59 (D.D.C. 2003) (summary judgment: in this FOIA action where plaintiff seeks identification of all contemplated rules and regulations for which public notice has not been given, finds that EPA's lack of timeliness or compliance with FOIA deadlines does not preclude a grant of summary judgment; the time at which reasonable search was conducted is irrelevant; continuing release of records shows good faith on the part of EPA in that it continued to search for responsive records; FOIA does not mandate records retention) (adequacy of search: because the FOIA does not require agencies to do research or create documents, EPA did not need to identify and list regulations meeting plaintiff's description; EPA conducted a reasonable search in response to plaintiff's FOIA request; because EPA does not currently possess the requested hard drives and the e-mail back-up tapes, it is not wrongfully withholding them) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003) (finds EPA in contempt of court's January 19, 2001 preliminary injunction prohibiting EPA from destroying, removing, or tampering with FOIA-requested records, because EPA did not heed the injunction and nevertheless reformatted hard drives and erased e-mail tapes that contained potentially responsive material; because "the destruction of these records goes to the heart of" plaintiff's FOIA request, the "appropriate sanction, given the length and breadth of EPA's disobedience," is to order EPA to pay a sanction consisting of the attorney fees and costs "caused by EPA's contumacious conduct").
Ledbetter v. IRS, 290 F. Supp. 2d 1232 (W.D. Okla. 2003) (duty to search: defendant agency has demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request).
Mays v. IRS,
No. 02-1191, 2003 WL 21518343 (D. Minn. May 21, 2003) (Exemption 3 [26 U.S.C.
McNamara v. Nat'l Credit Union Ass'n, 264 F. Supp. 2d 1 (D.D.C. 2002) (grants defendant's unopposed motion for summary judgment in this FOIA action where requester sought documents related to the investigation of himself and another government employee).
McQueen v. United States, No. H-01-3868 (S.D. Tex. July 28, 2003) (on in camera inspection of the supplemental Vaughn Index for records relating to plaintiff's criminal investigation, finds that the FBI properly withheld information under Exemptions 7(C) and 7(D)).
Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126 (M.D. Fla. Aug. 18, 2003) (Exemption 5: in this FOIA case where plaintiff submitted 21 FOIA requests for voluminous audit documents related to a government contract, finds that the deliberative process privilege protects portions of draft audit reports; exemption does not protect factual portions of draft audit reports, specified exhibits, and working papers because the defendant agency has not shown that they were used in making a decision on whether to issue a final audit report or that disclosure would impair the quality of candor of the work that supported the report; post-decisional records are not protected by this privilege; the defendant agency waived the privilege each time it disclosed draft audit information to a contractor during an exit conference; information must be disclosed within 20 days).
Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126 (M.D. Fla. Sept. 4, 2003) (in this FOIA case where the court on August 18, 2003 ordered the defendant agency to release portions of draft audit reports, grants defendant a stay pending appeal; while there are "deficiencies in the merits" of the defendant agency's appellate issues, once the documents are released the claimed exemptions are effectively waived, causing irreparable harm to defendant).
Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126 (M.D. Fla. Sept. 10, 2003) (in this FOIA case where plaintiff submitted 21 FOIA requests for voluminous audit documents related to a government contract, finds that information responsive to one request cannot be protected by Exemption 7(A) or Exemption 5 (attorney-client and attorney work-product privileges); defendant agency must produce information (except for one exhibit) by September 29, 2003), stay granted, No. 03-14823 (11th Cir. Sept. 29, 2003).
Primorac v. CIA, 277 F. Supp. 2d 117 (D.D.C. 2003) (res judicata: the doctrine of res judicata prevents plaintiff from litigating the CIA's "Glomar" denial of his FOIA request, because the automatic declassification requirements of Executive Order 12,958 are not effective until December 31, 2006) (statute of limitations: because the CIA's final denial of plaintiff's FOIA request was issued on August 13, 1992, the 6-year statute of limitations has expired).
Wheeler v. CIA,
271 F. Supp. 2d 132 (D.D.C. 2003) (discovery in FOIA litigation: denies plaintiff's
request for discovery as to the basis for the CIA's position that it cannot
be required to confirm or deny the existence of records about himself and other
individuals) (Exemption 1 [E.O. 12,958]: CIA properly refused to confirm or
deny the existence of records about certain individuals in Cuba in 1969 because
the existence or nonexistence of the records is itself classified) (Exemption
3 [50 U.S.C.
Wilbur v. CIA, 273 F. Supp. 2d 119 (D.D.C. 2003) (duty to search: CIA has demonstrated that it conducted an adequate search for records about plaintiff even though no records were located).
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