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New FOIA Decisions, April-June 2004

The following Freedom of Information Act decisions were received by the Office of Information and Privacy during the months of April through June 2004. 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.

Supreme Court

NARA v. Favish, 541 U.S. 157 (2004) (Exemption 7(C): in a unanimous 9-0 decision, Justice Kennedy writing for the Court reverses and remands the ruling of the Ninth Circuit Court of Appeals that ordered disclosure of 4 color photographs taken by the United States Park Police of the death scene of Deputy White House Counsel Vincent Foster; finds that the exemption extends to the decedent's family when release of photographs shows the condition of the body at the scene of death, because of the "interests decent people have . . . in honoring and mourning their dead," because of the "well-established cultural tradition acknowledging a family's control over the body and death images of the deceased," and because the family needs "to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility"; FOIA privacy protection is broad enough to encompass "survivor privacy" -- surviving family members' rights to personal privacy with respect to their close relatives' death scene images, in order to protect their interests in "peace of mind"; plaintiff's contention that Exemption 7(C)'s personal privacy right is confined to the right to control information about oneself is too narrow an interpretation of Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989); Congress's use of the modifier "personal" before "privacy" in the FOIA's privacy exemptions does not support the view that the family has no privacy interest in the decedent's pictures; it is "proper to conclude from Congress's use of the term 'personal privacy' that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law in our cultural traditions"; this "holding ensures that the privacy interests of surviving family members would allow the Government to deny these gruesome [FOIA] requests in appropriate cases"; the Ninth Circuit Court of Appeals below not uncharacteristically incorrectly required no particular showing that the family's privacy interest was outweighed by the public interest in disclosure, and in so doing left Exemption 7(C) "with little force or content"; "where there is a privacy interest protected by Exemption 7(C) and 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 produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred"; although plaintiff is convinced that the government investigations were "grossly incomplete and untrustworthy," he has produced no evidence sufficient to warrant a belief by a reasonable person of alleged government impropriety in the 5 different investigations of Vincent Foster's death).

Appeals Courts

Caraveo v. EEOC, 96 F. App'x 738 (2d Cir. 2004) (district court properly dismissed plaintiff's Complaint because he did not allege that he complied with EEOC guidelines regarding FOIA requests and had not exhausted his administrative remedies).

Carter v. McKain, 94 F. App'x 844 (D.C. Cir. 2004) (per curiam) (affirms district court order dismissing plaintiff's claim under the FOIA; plaintiff has not alleged that he submitted a request for records to a federal agency or specified what records he is seeking).

Cooper v. United States Dep't of Justice, No. 03-5172, 2004 U.S. App. LEXIS 8135 (D.C. Cir. Apr. 23, 2004) (per curiam) (case remanded on search issue; defendant agency failed to produce copies of certain cashier's checks about which a DEA Special Agent testified at plaintiff's trial when plaintiff requested all records pertaining to his conviction for drug offenses).

Enviro Tech Int'l, Inc. v. EPA, 371 F.3d 370 (7th Cir. 2004) (Exemption 5: reviewing the district court's ruling for clear error, affirms that the deliberative process privilege protects 37 records prepared to assist defendant agency in recommending a workplace exposure limit to n-propyl bromide (nPB); documents are predecisional because they predate the public release of EPA's proposed rulemaking and they reflect internal discussions; "a recommended workplace exposure limit for nPB is not so patently beyond the scope of the EPA's authority as to preclude the agency from having internal discussions about it or to invoke the deliberative process privilege").

Gilliland v. Fed. Bureau of Prisons, No. 03-5251, 2004 U.S. App. LEXIS 8185 (D.C. Cir. Apr. 23, 2004) (per curiam) (district court properly found that the defendant agency conducted a reasonable search in response to plaintiff's FOIA request for records about himself).

Grine v. Coombs, 98 F. App'x 178 (3d Cir. 2004) (district court properly dismissed this FOIA action for lack of prosecution).

Hanson v. Agency for Int'l Dev., 372 F.3d 286 (4th Cir. 2004) (Exemption 5: the attorney work-product privilege protects a document containing legal analysis, opinions, and recommendations that was prepared by an attorney hired by a private project engineer who is currently embroiled in a dispute concerning an AID-funded project in Egypt; "the government has as much right to undisclosed legal advice in anticipation of litigation as any private party"; AID properly had an attorney-client relationship with the engineer's attorney, because AID is a real party in interest in the dispute; privileges were not waived when the engineer's attorney gave the document to the attorney for a party in the dispute, because AID did not authorize this disclosure).

Judicial Watch, Inc. v. United States Dep't of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (Exemption 5: in this FOIA action where plaintiff seeks records concerning pardon applications considered or granted by former President Clinton, panel in 2-1 decision reverses and remands the district court's ruling, and applying In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (a non-FOIA case), finds that the presidential communications privilege (which protects documents in their entireties) should be construed narrowly and applies only to pardon documents "solicited and received" by the President or his immediate advisers in the Office of the President who have "broad and significant responsibility for investigating and formulating the advice to be given the President," and that the deliberative process privilege (which generally does not protect facts) applies to internal agency documents that never make their way to the Office of the President; records that the Justice Department submits directly to the Office of the President and any direct communications between the Justice Department and White House Counsel or other immediate presidential advisers will remain protected by the presidential communications privilege, based upon that narrow view of that privilege (yet an impliedly pragmatic view of Exemption 5's threshold as regards agency communications to the White House); other Justice Department records produced in relation to pardon recommendations are not close enough to the President to be revelatory of his deliberations and may be protected under the deliberative process privilege; declines to define the presidential communications privilege functionally by saying that all work done at intermediate levels in the Justice Department was done for the purpose of advising the President, because to do so would "pose a significant risk of expanding [it] to a large swath of the executive branch" and there is no reason to fear a chilling of candor or that the quality of the pardon recommendations would be sacrificed) (Exemption 6: affirms district court's ruling that the exemption protects documents consisting primarily of individual petitions for pardon, including personal information about third parties; disclosure of personal, largely nonpublic information about the applicants, the crimes they committed, and their lives before and after their convictions would be "an unwarranted invasion of personal privacy" and is not likely to shed light on the operations and activities of the government) (fee waiver: defendant agency properly denied plaintiff a fee waiver for released records that already were in the public domain and thus were not likely to contribute significantly to the public's understanding of the pardon process; plaintiff has made no showing that records it received were not publicly available; defendant agency will grant plaintiff a fee waiver for unreleased documents if they so qualify).

Lopez v. United States Dep't of Justice, No. 03-5192, 2004 WL 626726 (D.C. Cir. Mar. 29, 2004) (per curiam) (Exemption 7(C): district court properly found that third-party information is protected by this exemption; plaintiff failed to demonstrate compelling evidence of misconduct on the part of a government agency) (waiver: plaintiff failed to demonstrate that specific information is in the public domain) (duty to search: plaintiff's challenge to the adequacy of the search fails because he did not question the sufficiency of the government's affidavits at the district court level) (appoints an amicus curiae to assist plaintiff in his request for disclosure of the dates contained in grand jury documents).

Piccolo v. Executive Office for United States Attorneys, No. 03-5004 (D.C. Cir. Apr. 5, 2004) (per curiam) (remands this case to the extent that the district court granted summary judgment to one Justice Department component whose declaration did not "squarely assert that its overall search was adequate" and was "unclear" as to whether certain Assistant United States Attorneys had been asked to search their files for responsive records; searches conducted by 2 Justice Department components were adequate).

United States v. Choate, 102 F. App'x 634 (10th Cir. 2004) ("not an agency" defense: a federal district court is not an agency for purposes of the FOIA).

District Courts

Aldridge v. HHS, No. 7:01-CV-252, 2003 WL 23473930 (N.D. Tex. July 17, 2003) (plaintiff's "tardiness" claim is moot because he has received the records he seeks; plaintiff has not exhausted his administrative remedies with respect to his claim that HHS provided an insufficient response to his FOIA request).

Allen v. IRS, No. 03-CV-1698, 2004 U.S. Dist. LEXIS 13107 (D. Ariz. June 14, 2004) (duty to search: the IRS has conducted a reasonable search in response to plaintiff's FOIA request) (exhaustion: plaintiff has not exhausted his administrative remedies because he did not file an administrative appeal after the IRS responded late to his FOIA request and before he filed suit).

Am. Civil Liberties Union v. United States Dep't of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004) (expedited processing: defendant agency improperly denied plaintiff expedited processing of its FOIA request for all records relating to section 215 of the USA PATRIOT Act, which concerns the production of "any tangible things" as part of authorized investigations to protect against international terrorism; judicial review of agency's denial of an expedited processing request is appropriate where plaintiff did not administratively appeal the denial to the agency, even though the Justice Department FOIA regulations state that such an administrative appeal is "generally" required; plaintiff has demonstrated a "compelling need" for this information, because section 215 "unquestionably implicates important individual liberties and privacy concerns which are of immediate public interest in view of the ongoing debate regarding the renewal and/or amendment of" the PATRIOT Act; the manner and frequency of the government's use of section 215 are matters of "widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence") (res judicata: while plaintiff's request for the number of times "FBI field office section 215 applications" were sought has not been litigated previously, the Attorney General's decision to declassify the number of times section 215 applications were granted, a new fact that the plaintiff should be able to argue, undermines the Justice Department's justification for withholding the information) (Exemption 1 [E.O. 12,958]: the fact that the Attorney General declassified certain statistics relating to the number of section 215 Department of Justice-approved applications does not estop the Justice Department from refusing to disclose "different, but arguably analogous" information relating the number of times Field Offices have sought such approval; disclosure of the number of FBI field requests submitted under section 215 would reveal intelligence activities, sources, or methods and could be expected to damage national security; disclosure of a piece of the "mosaic" would likely reveal a great deal about the FBI's surveillance efforts under the PATRIOT Act).

Appleton v. FDA, 310 F. Supp. 2d 194 (D.D.C. 2004) (in this FOIA case where plaintiff requested information about the drug levothyroxine sodium, grants the motions to intervene submitted by 5 manufacturers of the drug; finds that manufacturers' motions to intervene as a matter of right were timely, they each have an interest in the subject of the action, disclosures under the FOIA could impair their abilities to protect their trade secrets, and they have shown that existing parties do not adequately represent their interests).

AutoAlliance Int'l, Inc. v. United States Customs Serv., No. 02-72369 (E.D. Mich. July 31, 2003) (fees: agency may assess fees for searching for and reviewing documents at the initial review level; defendant agency improperly assessed a fee of $2,239.36 against plaintiff for review costs that appear to have been incurred at the administrative appeals level), subsequent opinion (E.D. Mich. Oct. 9, 2003) (summary judgment granted with respect to the exemptions issues; after in camera review, defendant agency has produced 3 documents to plaintiff), attorney fees awarded (E.D. Mich. Jan. 29, 2004), subsequent opinion (E.D. Mich. Mar. 23, 2004) (attorney fees: plaintiff may not recover fees associated with exhausting its administrative remedies that it completed after filing suit, fees associated with paralegal work, and time spent on attorney admissions; grants fees for time spent preparing the request for attorney fees in the amount of 3% of the award; reducing the fees requested by plaintiff by 25%, grants $61,575.00 in fees and $4,676.90 in costs).

Basham v. United States Dep't of Justice, No. 03-940 (W.D. Okla. Mar. 24, 2004) (magistrate's recommendation) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request for records related to his conviction for drug offenses and located no records generated by the Tulsa Police Department in its files; because records created and controlled by the Tulsa Police Department are not considered "agency records" under the FOIA, defendant agency had no duty to search them in the files of the Tulsa Police Department, even though during litigation the federal prosecutor had access to them), adopted (W.D. Okla. Apr. 26, 2004).

Bassiouni v. CIA, No. 02 C 4049, 2004 U.S. Dist. LEXIS 5290 (N.D. Ill. Mar. 31, 2004) (Exemption 1 [E.O. 12,958] and Exemption 3 [50 U.S.C. § 403-3(c)(7)]: the CIA has demonstrated that the disclosure of information regarding plaintiff would expose sensitive and classified methods, would reveal the extent of the United States intelligence collection efforts, analysis, and reporting directed at particular targets, and could damage foreign relations or lead to an "unacceptable risk of compromising the Agency's intelligence-gathering process") (waiver of exemption: in response to plaintiff's FOIA request for records about himself, the CIA ordinarily would give only a "Glomar" response, but it did not in this instance because the CIA acknowledged that it possessed such records in response to plaintiff's 1983 Privacy Act request; the CIA referred 54 documents to the State Department for processing and now declines to confirm or deny the existence of any other records; the CIA has not waived the right to withhold any records about plaintiff and may use its so-called "no number, no list" response in order to protect classified and otherwise exempt information in the interests of national security; plaintiff has not shown the specific information he requests is in the public domain; plaintiff incorrectly relies on the CIA's 1985 acknowledgment to argue waiver 14 years later; "In the realm of intelligence, a lot can occur in a short period of time and certainly more can occur in a decade."; the fact that the "exact wording" of a "Glomar" response or a "no number, no list" response is not found in E.O. 12,958 or the CIA FOIA regulations "is of no consequence," because these responses are based on the statutory exemptions that protect certain federal records from public disclosure).

BDX Inc. v. United States Dep't of Justice, No. 3:02-0826 (N.D. Ind. June 2, 2004) (duty to search: defendant agency has demonstrated the reasonableness of its search in 2 areas where records are maintained concerning regional Chapter 13 bankruptcy filings; defendant agency may not refuse to confirm or deny the existence of records in one database that shows specifically which Chapter 13 bankruptcy cases were referred for criminal prosecution, because this would not reveal information about any particular individual and the agency has not even claimed that any FOIA exemption applies to any withheld information, or that any particular exemption justifies its attempted "Glomarization" position; agency must search its criminal database and, if possible, extract and disclose the responsive data; agency must file a more detailed affidavit about the search terms it used to extract information from one database) (not an "agency record": the standing trustee is a private person "put to a task by a governmental agency" and, therefore, his records are not "agency records" for purposes of the FOIA).

Black & Decker Corp. v. United States, No. 02-2070, 2004 WL 500847 (D. Md. Feb. 19, 2004) (Exemption 7 (threshold): the requirement is not met by an IRS Field Service Advisory (FSA) that contains a discussion of the tax treatment of contingent liability transactions) (Exemption 7(A): defendant agency has offered only "bald assertions" as to why the release of an FSA that was disclosed inadvertently to plaintiff could have any bearing on its ongoing investigation; plaintiff must return the FSA to the IRS, whereupon the IRS may redact only the taxpayer identification number and then must return the FSA to plaintiff).

Chang v. United States Navy, 314 F. Supp. 2d 35 (D.D.C. 2004) (Exemption 6 and FOIA/PA interface: in this Privacy Act case, applying OMB's Privacy Act Guidelines and Navy FOIA regulations -- which broadly permit disclosures in response to requests from the news media that do not satisfy the procedural requirements of the FOIA when such disclosures would have been made pursuant to a proper FOIA request -- finds that the Navy did not violate the Privacy Act when it disclosed information releasable under the FOIA; information about the collision of a Saudi merchant vessel with the ship of which plaintiff was the commanding officer is of the kind that the Navy considers to be releasable under the FOIA because the collision was a significant newsworthy event and the release of information concerning the disciplinary actions taken against plaintiff was "very much in the public interest"; the public interest in disclosure outweighs any privacy interest; the Navy properly withheld the names of lower-level officers and the punishments imposed on them).

Cooper v. United States Dep't of Justice, No. 99-2513 (D.D.C. May 28, 2003) (grants summary judgment to defendant agency, finding that it has conducted a reasonable search in response to plaintiff's FOIA request for records about himself and has provided him with all nonexempt information).

Decato v. Executive Office for United States Attorneys, No. 00-3053 (D.D.C. Jan. 2, 2003) (fee waiver: defendant agency properly denied indigent FOIA requester a fee waiver because he did not demonstrate any public interest in the release of information about himself and alleged abuses in the government's war on drugs; disclosure of these records is not likely to make a significant contribution to the public's understanding of the activities of the federal government).

Defenders of Wildlife v. USDA, 311 F. Supp. 2d 44 (D.D.C. 2004) (duty to search: defendant agency failed to demonstrate that it conducted an adequate search of the files of USDA's Deputy Under Secretary for the Office of Natural Resources and Environment because he merely stated that "he had no responsive documents" without indicating how, or even whether, he performed a search; Office must be searched again; defendant agency's decision not to search other USDA offices was reasonable because it is an "almost universally consistent generality" that records concerning a particular program are maintained by the office that carries out that program) (Exemption 5: defendant agency's categorical Vaughn Indices do not sufficiently describe information it seeks to withhold under the deliberative process and attorney work-product privileges; defendant agency must submit new Vaughn Indices with properly detailed document descriptions and reasons for withholding that illuminate the contents of the documents) (disciplinary actions: court will not order a disciplinary investigation because while a portion of the search was inadequate, the court has not determined that defendant is withholding nonexempt records).

Defenders of Wildlife v. United States Dep't of the Interior, 314 F. Supp. 2d 1 (D.D.C. 2004) (duty to search: the Office of Government Ethics (OGE) has conducted a reasonable search for records in response to plaintiff's FOIA request for information about a high-level Interior Department official's compliance with the Ethics in Government Act of 1978; the Department of the Interior (DOI) has not conducted a reasonable search as required by its new FOIA regulations, because the office that received the request did not forward it to other DOI offices involved in the ethics questions concerning the high-level official; DOI must refer plaintiff's FOIA request to those DOI offices immediately; DOI has 45 days to explain to the court why 6 DOI documents provided to plaintiff by OGE were not previously produced by DOI; although defendant agency found only drafts of the official's severance agreements with his former lobbying firms, it is normal for an agency to review only drafts of such agreements and it is "mere speculation" that it received the final version; it would be "illogical and wasteful to require" agencies to produce multiple copies of the "exact same document") (Exemption 4: on in camera inspection, finds that the exemption protects 3 draft severance agreements between the high-level official and his former lobbying firms that were financial, that were submitted to DOI voluntarily, and that are the kind of information that is not customarily released to the public; draft severance agreements were submitted to DOI voluntarily because the Ethics in Government Act of 1978 does not provide agencies with the legal authority to compel production of this information; the Act requires only that officials provide descriptions of their severance agreements and agencies then may request a "more detailed description" of the agreement's terms, but they do not have "actual legal authority" to require the submission of the draft agreements themselves; severance agreements were obtained from a "person" and are "financial" because they include financial information surrounding the official's separations from his former companies; all "reasonably segregable," nonexempt information has been released) (Exemption 5: on in camera inspection, finds that the deliberative process privilege protects 2 DOI e-mails and a series of inter-agency letters generated after OGE asked DOI to look into possible ethics violations by the high-level official, because they are both predecisional and deliberative; DOI played a critical role in investigating and analyzing facts, but under the Ethics Act its conclusions are not final until OGE makes its determination whether an agency official has complied with the relevant ethics requirements; the mention of and quoting from several withheld documents does not vitiate the exemption as to those records because they were not expressly or informally adopted; finds that one preliminary OGE letter that was referred to in the OGE final report, where it is "unclear" whether the letter's reasoning was adopted by the agency, is "precisely the type of preliminary document that must be exempt" in order to "protect against confusing the issues and misleading the public"; one document that has been publicly released must be provided to plaintiff; all "reasonably segregable," nonexempt information has been released).

Elec. Privacy Info. Ctr. v. United States Dep't of Justice, No. 02-0063 (D.D.C. Mar. 11, 2004) (Exemptions 6 and 7(C): protect factual information that would identify third-party individuals in a report of investigation concerning a public employee's improper disclosure of private information from a database; the individuals' strong privacy interests outweigh the public interest in disclosure) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Fabiano v. United States Dep't of Justice, No. 03-420 (D.N.J. Apr. 5, 2004) (Exemption 7(C): from records compiled by the FBI concerning plaintiff's son, who was convicted of violating child pornography laws, the exemption protects the identities of an FBI Special Agent and other FBI employees, a federal employee, the telephone extension of an FBI employee, child pornography photographs, and the names associated with those photographs; the privacy interests of these individuals are not outweighed by the public interest in disclosure).

Gilliland v. Fed. Bureau of Prisons, No. 02-0717 (D.D.C. Aug. 25, 2003) (duty to search: defendant agency has demonstrated that it conducted a reasonable search in response to plaintiff's FOIA request, even though it did not find all the records that plaintiff expected).

Gordon v. FBI, No. C 03-01779, 2004 U.S. Dist. LEXIS 10935 (N.D. Cal. June 15, 2004) (Exemption 3 [49 U.S.C. § 114(s); § 40119(b)]: defendant agency has not shown that information concerning the transportation screening process falls within the regulations it has adopted pursuant to these statutes) (Exemption 7 (threshold): defendant agency has not shown that the threshold requirement was met by a newspaper reporter's e-mail concerning complaints by peace activists who claimed to be on the Transportation Security Administration's "No Fly List") (Exemption 7(C): defendant agency improperly redacted entire documents or large portions of documents, improperly withheld information derived from public sources, and improperly withheld the names of government employees) (Exemption 6: defendant agency has improperly withheld the names of individuals who hold high-ranking government positions whose names are a matter of public record) (these findings were made after the court's preliminary review of voluminous information responsive to plaintiff's FOIA request; defendant agency must review all withheld information (except for the withheld classified information, which is properly withheld), reconsider whether it is exempt from disclosure, and then may file a further motion for summary judgment).

Guerra v. United State Dep't of Justice, No. 03-1176 (D.D.C. Apr. 27, 2004) (despite attesting in its declaration that it had never received plaintiff's FOIA request, defendant agency must process it; "Plaintiff has no control over mail service within the Federal Bureau of Prisons or the receipt and distribution of mail within the Justice Department; he should not be penalized for the apparent loss of his FOIA request.").

Hecht v. United States Agency for Int'l Dev., No. 95-263, 1996 WL 33502232 (D. Del. Dec. 18, 1996) (Vaughn Index: an additional Vaughn Index is not necessary because defendant agency's detailed declarations sufficiently describe contracting records concerning energy conservation work in the former Soviet republics) (duty to search: defendant agency must conduct a proper search for records that were presumably lost when the office moved in 1994 and for other relevant records; given the "piecemeal approach" the agency has taken towards plaintiff's FOIA requests, the court is not satisfied that all relevant documents have been located) (Exemption 4: the release of biographical data sheets about contractors' employees will not harm contractors' competitive positions; disclosure of indirect cost rates and structures is likely to cause substantial competitive harm to the contractors; exemption protects technical, operational, and managerial approaches because "[s]uch information is very close . . . to the traditional definition of 'trade secrets'" that Exemption 4 protects) (Exemption 5: the deliberative process privilege protects 2 evaluative reports of defendant agency's Technical Evaluation Panels because they are both predecisional and deliberative) (Exemption 6: orders disclosure of contractors' employees biographical data sheets with names, addresses, and other identifying information redacted).

Horowitz v. Peace Corps, No. 00-0848 (D.D.C. Jan. 6, 2004) (the redacted (public) version of this opinion was issued after review of the parties' legal filings and the draft personnel document concerning plaintiff's resignation from the Peace Corps, and after an evidentiary hearing; the nonredacted version of this decision contains information obtained from the personnel document submitted to the court in camera and under seal and is available only to the court) (Exemption 5: the deliberative process privilege protects the draft personnel document involving plaintiff's 1999 resignation from the Peace Corps because it is predecisional; the Peace Corps had not yet made a final decision to administratively separate plaintiff from government service at the time it drafted this document) (Exemption 6: lifts the stay of disclosure and orders the release of the identity of a third party who made an allegation of sexual misconduct against plaintiff, because the complainant's name is "reasonably segregable").

Jennings v. FBI, No. 03-1651 (D.D.C. May 6, 2004) (duty to search: defendant agency conducted reasonable searches in response to plaintiff's FOIA request for records about himself) (exhaustion: plaintiff has exhausted his administrative remedies because he has produced a copy of his letter to the Justice Department that explicitly states that he is appealing the denial of his FOIA request) (Exemption 3 [18 U.S.C. § 2511(1)(e)]: protects 346 pages of information obtained from an authorized wiretap while plaintiff was incarcerated; [18 U.S.C. § 3123(d)]: protects 28 pages of "pen register" and conversation log sheets; [Rule 6(e)]: protects federal grand jury subpoenas, grand jury testimony, attorney notes about the grand jury, and portions of a prosecution memorandum; with respect to 25 pages of documents sealed under a court order, defendant agency has 30 days to demonstrate that the court issued the seal with the intent to prohibit the agency from disclosing the records) (Exemption 5: documents related to strategies and assessments made in anticipation of a criminal trial are protected by the attorney work-product privilege, or are confidential communications encompassed by the attorney-client privilege) (Exemption 7(C): protects the names of third parties contained in plaintiff's Inmate Central File, including victims, prospective witnesses, co-defendants, federal agents, other government employees, and local law enforcement personnel) (Exemption 7(D): it may be inferred that sources who provided information regarding the details of an armed bank robbery have implied promises of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Judicial Watch, Inc. v. DOE, 310 F. Supp. 2d 271 (D.D.C. 2004) (fee waiver: plaintiff has constructively exhausted its administrative remedies with respect to its Treasury Department fee waiver request because Treasury's reply letter made no substantive response to the fee waiver request; because plaintiff's request is not for "patently exempt documents," the Department of the Interior improperly denied plaintiff's fee waiver request on the basis that the release of only the nonexempt portions of records would not make a significant contribute to the public understanding; the Department of the Interior, the Department of the Treasury, and FEMA improperly denied plaintiff a fee waiver because plaintiff enumerated the 9 ways in which it communicates information to the public and demonstrated that disclosure of information concerning the President's National Energy Policy Development Group (NEPDG) would contribute significantly to the public's understanding of the development of the national energy policy) (not an "agency record" defense: in this case where records were created by agency employees detailed to the Office of the Vice President and located elsewhere, court goes so far as to find that a record is an "agency record" so long as the record was created or obtained by an agency employee "in the course of its official duties") (duty to search: DOE must search the files of DOE employees who were detailed to the Office of the Vice President and whose records were located in the Office of the Vice President as of the date of the FOIA request; Interior must search the files of an Interior employee who represented his department on an inter-agency task force housed at DOE because these records are under Interior's control; because Interior used a "cut-off" date for one request without notifying plaintiff and improperly limited another request to "opinion" documents, both searches must be done again; an agency's failure to locate specific records does not render the search inadequate) (adequacy of request: plaintiff has an obligation to "reasonably describe" the records it seeks) (Exemption 4: the Department of Commerce has demonstrated that it properly withheld 6 documents, in whole or in part, because they were voluntarily submitted to the federal government and they are not customarily disclosed to the public) (Vaughn Index: it is sufficient for an agency to use a categorical Index describing categories of documents and then applying those categories to the documents withheld) (Exemption 5: USDA has shown that an internal e-mail containing legal advice was properly withheld under the attorney-client privilege; applying Dow Jones & Co. v. Department of Justice, concludes that documents "created or obtained" by agency personnel to assist and advise a nonagency are not protected by this exemption, unless the agency's own deliberations had not ceased when the record was conveyed to NEPDG or the agency can demonstrate that the given communication contributed to the agency's own deliberative process; court rejects purported "governmentally conferred capacity" argument; communications received by an agency from NEPDG must be released unless the agencies can show that each communication fits within this privilege; the Vaughn Indices are "largely deficient" on this point; DOE, EPA, USDA, the Department of Transportation, the Department of Commerce, and the Department of the Interior must re-examine documents created before and after the issuance of the NEPDG final report that they withheld under this exemption, release any advice, final conclusions, recommendations, or suggestions given to NEPDG to aid in its deliberative process and clearly explain the withholding of the remaining records in a supplemental declaration; consistently conflating control over the employee and control over a record, finds that all agencies have "overextended the scope of the deliberative process privilege" and must now release all "reasonably segregable" information and provide a supplemental Vaughn Index).

Judicial Watch, Inc. v. DOE, 319 F. Supp. 2d 32 (D.D.C. 2004) (denies defendant agency's motion for reconsideration of court's March 31, 2004 order, finding that defendant agency's brief merely repeats the arguments that the court already has found unpersuasive; mistakenly believing that the agency was attempting to raise a new privilege -- the presidential communications privilege -- rather than using new appellate decision construing it to demonstrate court's Exemption 5 threshold error, court misconstrues and thus fails to recognize correctness of agency's motion; there are no extraordinary circumstances that would cause the court to address the presidential communications privilege for the first time on a motion for reconsideration) (the requirements of the March 31 order are stayed pending appeal, with the exception of agency obligations to conduct additional searches and to re-examine certain records).

Judicial Watch, Inc. v. United States Dep't of Justice, No. 02-348 (D.D.C. Mar. 31, 2004) (Exemption 5: after in camera inspection, finds that 9 e-mails were properly withheld under the attorney work-product and deliberative process privileges; however, also mistakenly concludes that the defendant agency has not made a good-faith effort to provide plaintiff with "reasonably segregable" portions of each document, so the agency is ordered to do so by April 12), stay granted pending resolution of agency's pending motion for reconsideration (D.D.C. Apr. 8, 2004).

Judicial Watch, Inc. v. USPS, No. 03-655 (D.D.C. Apr. 6, 2004) (Exemption 6: in this FOIA case where plaintiff seeks a videotape of a December 2001 community meeting held to discuss the proposed anthrax decontamination of the Brentwood Postal Facility, finds that the exemption does not protect audio portions of the meeting videotape in which private citizens identified themselves by name; the public interest in knowing whether the Postal Service was "genuinely seeking independent community input" regarding the contamination problem "far outweighs" the community members' "minimal privacy interest" in the nondisclosure of their names; Postal Service must give plaintiff an unredacted copy of the meeting videotape).

Lopez v. United States Dep't of Justice, No. 99-1722 (D.D.C. Jan. 21, 2003) (Exemption 7(C): in this FOIA action where plaintiff seeks information relating to his former defense counsel who he claims was under criminal investigation at the time at which he represented plaintiff, finds that defendant agency properly withheld 15 reports of investigation; none of the reports refers to plaintiff and none of the reports suggests that his defense counsel or others in the United States Attorney's Office knew his defense counsel was under investigation at the time he represented plaintiff; third-party privacy interests outweigh any public interest in disclosure; there are no segregable portions) (duty to search: defendant agency conducted a reasonable search in response to plaintiff's FOIA request).

Lora v. United States Dep't of Justice, No. 00-3072 (D.D.C. Apr. 9, 2004) (Exemption 7(C): protects a third party's presentence report because the individual has substantial privacy rights and there is no "compelling evidence" of government misconduct; plaintiff's interest in information to attack his conviction for drug offenses is not a sufficient public interest) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Maguire v. Mawn, No. 02Civ.2164, 2004 WL 1124673 (S.D.N.Y. May 19, 2004) (Exemption 7(E): protects the amount of "bait money" taken by plaintiff when he robbed a bank, because disclosure "could reasonably make the Bank more susceptible to robberies in the future"; while the use of "bait money" is widely known, the public does not know whether and how a specific bank employs "bait money"; "information is particularly worthy of protection when the method employed is meant to operate clandestinely, unlike guards or bullet-proof glass barriers that serve their crime-prevention purpose by operating in the open").

Mount of Olives' Paralegals v. Bush, No. 04-CV-0044, 2004 U.S. Dist. LEXIS 8504 (S.D. Ill. Jan. 23, 2004) ("not an agency" defense: plaintiff cannot bring a FOIA action against the Disciplinary Commission of the Illinois Supreme Court, as the FOIA applies to only federal agencies) (exhaustion: plaintiff has not exhausted his administrative remedies because it has not submitted a FOIA request; court suggests that for assistance on how to file a proper FOIA request, plaintiff should consult the guidance provided by the Justice Department in the online version of its FOIA Reference Guide).

Mount of Olives Paralegals v. Bush, No. 04 C 620, 2004 U.S. Dist. LEXIS 8085 (N.D. Ill. May 6, 2004) (res judicata: plaintiff is precluded from pursuing this litigation because he filed an identical Complaint in the District Court for the Southern District of Illinois) ("not an agency" defense: the FOIA does not apply to the Illinois Disciplinary Commission or to state agencies) (exhaustion: plaintiff has not exhausted his administrative remedies because it has not submitted a FOIA request).

Omolo v. Dep't of Justice, No. 3:04-CV-0066, 2004 WL 1253379 (N.D. Tex. June 7, 2004) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until March 31, 2005; the FBI is operating under exceptional circumstances, it is making reasonable progress in reducing its backlog of pending FOIA requests, and plaintiff has not reasonably narrowed the scope of her request).

Piccolo v. Executive Office for United States Attorneys, No. 01-2330 (D.D.C. Dec. 12, 2002) (duty to search: 3 Justice Department components have conducted adequate searches in response to plaintiff's request for records about himself; the fact the certain recordings or transcripts of recordings of telephone conversations were not found does not render the searches inadequate).

Piper v. United States Dep't of Justice, 312 F. Supp. 2d 17 (D.D.C. 2004) (government's motion for reconsideration denied in this FOIA action where the court previously had ordered the FBI to locate and release in full 23 documents that it did not "justify" withholding in its Vaughn Index and release some information withheld under Exemption 7(C); government has failed to show "clear error" or persuade the court that its disclosure order would result in "manifest injustice").

Pipko v. CIA, 312 F. Supp. 2d 669 (D.N.J. 2004) (Exemption 1 [E.O. 12,958] and Exemption 3 [50 U.S.C. § 403-3(c)(7), § 403g]: the CIA properly refused to confirm or deny the existence of records about plaintiff because the confirmation of the "very existence" of records would reveal whether the CIA had gathered information on or from a particular individual or reveal the CIA's specific intelligence interests or activities; the CIA's affiant was qualified to make these representations) (duty to search: in response to plaintiff's argument that the CIA did not conduct a proper search, the court finds that the CIA gave sufficiently detailed and persuasive reasons for its "Glomar" response) (Vaughn Index: when an agency issues a "Glomar" response to a FOIA request, it need not prepare a Vaughn Index because to do so would acknowledge the existence of the documents) (in camera inspection: there are no relevant documents for the court to examine other than those that explain the CIA's "Glomar" response).

Roberts v. Knight, No. 04-C-139, 2004 WL 725150 (W.D. Wis. Mar. 29, 2004) (proper party defendant: the FOIA authorizes suit against only agencies, and not individual officers and federal employees) (proper service of process: by July 7, plaintiff must effect proper service by mailing a copy of his Complaint and a completed summons form to the Attorney General and the United States Attorney for the Western District of Wisconsin).

Rodgers v. Texas, No. 3:03-2015, 2004 U.S. Dist. LEXIS 5967 (N.D. Tex. Apr. 7, 2004) (agency: FOIA does not apply to state agencies).

Stuler v. United States Dep't of Justice, No. 03-1525, 2004 WL 1304040 (W.D. Pa. June 7, 2004) (magistrate's recommendation) (adequacy of request: an agency is not required to answer questions or to conduct research in response to a FOIA request; a FOIA request is not an opportunity for plaintiff to relitigate his criminal case).

Summers v. United States Dep't of Justice, No. 98-1837 (D.D.C. Mar. 10, 2003) (duty to search: in this FOIA action where plaintiff requested information pertaining to Charles Gregory "Bebe" Rebozo, finds that the FBI conducted a search that was reasonably calculated to uncover all responsive records; the fact that the FBI subsequently located and redacted information from an additional file does not render its search inadequate) (Vaughn Index: the FBI's coded Vaughn Index is sufficient) (Exemption 1 [E.O. 12,958]: the FBI has demonstrated that information that is over 25 years old must remain classified in the interests of national security in order to protect intelligence sources and methods and in order not to impair relations with foreign governments) (Exemption 2 "low": protects informant symbol numbers, informant file numbers, and an internal administrative marking because they are "internal") (Exemption 7(C): protects the identities of FBI Special Agents, low-level supervisors, and other individuals, including certain business people because their privacy interests outweigh any public interest in nondisclosure; the FBI made a reasonable effort to determine the life/death status of individuals by presuming that anyone over the age of 100 is deceased, by consulting its book of famous individuals, by consulting the Social Security Death Index, and by relying on institutional knowledge; the passage of time does not diminish their privacy interests) (Exemption 7(D): the FBI properly withheld the identities of and the information provided by individuals who were given express promises of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Summers v. United States Dep't of Justice, No. 98-1837 (D.D.C. Apr. 13, 2004) (waiver: exemption protection was not waived when the FBI during the briefing stage, on determining that Exemption 6 and not Exemption 7(C) applied to withheld information, promptly notified the court and subsequently filed an appropriate motion with the court) (Exemption 6: protects the identities of FBI Special Agents and employees, an FBI lower-level supervisory official, interviewees, and a third party because "in the context of this high profile criminal investigation these individuals clearly have more than a minimal privacy interest in not having their identities exposed"; disclosure will not shed light on the FBI's conduct of its investigation of Bebe Rebozo) (Exemption 7(C): protects the identities of FBI Special Agents, other law enforcement personnel, interviewees, third parties, and subjects of investigative interest, because the individuals' privacy interests are "very strong" and disclosure will not shed light on the FBI's conduct of its investigation of Bebe Rebozo; exemption was not waived by the FBI's alleged inconsistent redaction of the name of an FBI Special Agent).

Tomscha v. Giorgianni, No. 03 Civ.6755, 2004 WL 1234043 (S.D.N.Y. June 3, 2004) (proper party defendant: the FOIA authorizes suit against only agencies, not individual officers and federal employees) (Exemption 6: the threshold requirement is met by records concerning cash awards given to an individual GSA employee; release of the cash amount of a performance award and the justifications for several other awards would be an invasion of the employee's privacy, because the release of the amount of the performance-based award would be reflective the performance evaluation; GSA and its officials involved in the awards process have an interest in maintaining the confidentiality of their evaluations; these privacy interests outweigh the public interest in knowing the cash amount of the performance award and the justifications for the other awards).

Trentadue v. President's Council on Integrity & Efficiency, No. 2:03-CV-339 (D. Utah Apr. 26, 2004) (Exemption 7(A): exemption applies to records where release of the documents could endanger an open investigation other than the closed investigation for which the records were originally created; on in camera inspection, finds that because of the sensitive nature of the ongoing investigation concerning the death of plaintiff's brother and the relation between the 3 records here at issue and that ongoing investigation, the release of the documents could endanger that investigation) (Exemptions 6 and 7(C): on in camera inspection, orders the release of the names of 2 mid-level government employees from a scheduling notice listing meeting attendees; defendant agency has not shown that the release of the names would cause an unwarranted invasion of their privacy; refuses to accept that there is any rule "that allows for mid- and low-level government employees to completely escape public visibility while higher officials suffer universal scrutiny. Without any better reason than their position on the organizational charts, the Court cannot allow these two people to conduct the affairs of the nation in anonymity, in contravention of FOIA's aims.").

W. Watersheds Project v. Brown, 318 F. Supp. 2d 1036 (D. Idaho 2004) (fee waiver: defendant agency improperly denied plaintiff a fee waiver with respect to its FOIA request for information about grazing rights on public lands managed by the Bureau of Land Management (BLM); disclosure of the information will educate the public about the ecological conditions of the land managed by BLM and how the public grazing management strategies employed by BLM may adversely affect the environment; plaintiff wants to summarize the information into a more reader-friendly format and then deliver the information to the public; plaintiff has demonstrated its ability to disseminate the information to a reasonably broad audience).

Williams v. United States Dep't of Justice, No. 02-2452 (D.D.C. Feb. 4, 2004) (adequacy of search: the FBI conducted a reasonable search in response to plaintiff's FOIA request for investigative records concerning himself) (Exemption 2 "high": disclosure of a source symbol number given to a confidential informant could result in disclosure of the source's identity or the identity, scope, and location of FBI source coverage within a particular area) (Exemption 5: the attorney work-product privilege protects summaries of 3 telephone conversations between FBI officials and an Assistant United States Attorney directly related to strategies and assessments made with respect to the prosecution of a criminal case) (Exemption 7(C): protects the identities of informants, FBI Special Agents, local law enforcement personnel, subjects of investigative interest, and third parties mentioned in investigatory records, including rap sheets and bank account information) (Exemption 7(D): protects the identities of confidential sources with permanent source numbers who provided information to the FBI under express promises of confidentiality) (Exemption 7(E): protects serial numbers on "bait money" taken during a bank robbery or bank fraud investigations because serial numbers and the circumstances of their use are not commonly known to the public) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Wood v. FBI, 312 F. Supp. 2d 328 (D. Conn. 2004) (adequacy of agency affidavit: affiant has demonstrated that he had the personal knowledge necessary to write the affidavit because as an attorney in the Criminal Division, he personally reviewed the memorandum in question, acquired the information in the declaration as part of his official duties, and was able to ascertain the purposes for which it was used) (Exemption 5: the attorney work-product privilege protects a 14-page memorandum written by 2 trial attorneys in the Justice Department's Public Integrity Section that was used in determining whether criminal prosecution was warranted for FBI Special Agents who had been accused of falsification of arrest warrant affidavits; the memo was prepared prior to the final decision to decline prosecution; because the attorney work-product privilege is construed as a "categorical rule," it would make no difference if a portion of it had been incorporated by reference into final agency policy; plaintiff has not demonstrated that there had been waiver of this privilege) (Exemption 7 (threshold): requirement met by records prepared before, but not after, the decision was made not to prosecute) (Exemption 7(C): where the identities of the decision makers and higher-level officials have been released, finds that the exemption protects the names of FBI Special Agents and other FBI and Justice Department employees involved in the investigation of the FBI Special Agents, because there is no further public interest to be served by this disclosure) (Exemption 6: incorrectly ruling that the threshold requirement is not met by the "mere" names of FBI Special Agents and other FBI and Justice Department employees who worked on the personnel determination that is contained in records prepared after the final decision was made not to prosecute on the basis that their names do not constitute "detailed Government records on an individual" because the records "at issue apply to the subjects" of the personnel action; release of information about one of the accused Special Agents would not be "a clearly unwarranted invasion of personal privacy"; there is a strong public interest in the specific findings of wrongdoing and in the adequacy of the discipline imposed, given the Special Agents' supervisory position, the seriousness of the charges, and the fact that much information has been released already, with information identifying him inconsistently redacted).  (posted 7/2/04)

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