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Compiled FOIA Decisions (Received July-December 1995)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1995. OIP is preparing additional compilations of decisions received during previous months and years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).

Appeals Courts

Beard v. Espy, No. 94-16748, 1995 U.S. App. LEXIS 38269 (9th Cir. Dec. 11, 1995) (unpublished memorandum), 76 F.3d 384 (9th Cir. 1995) (table cite) (Exemption 6: protects information regarding loans made by FmHA to 2 companies; each company has only 2 stockholders, and disclosure of this financial information would clearly affect the privacy interests of the individuals involved) (Exemption 7 (threshold) and 7(C): protect the complaint letter and notes taken during an investigation of plaintiff).

Bellitti v. Huff, No. 95-1349 (Fed. Cir. Aug. 18, 1995) (appeal dismissed for failure to prosecute; plaintiff apparently appealed this action to the Court of Appeals for the Federal Circuit after the District Court for the District of Columbia denied his request for a fee waiver under the FOIA).

Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995) (attorney fees: although the issue of the Smithsonian's "agency" status under the FOIA is precluded by the doctrine of direct estoppel, the court will address the correctness of the Smithsonian's position on this issue in the context of an attorney fees examination; the district court applied the public benefit prong of the 4-part balancing test too broadly; a public benefit does not exist "by sole virtue of the potential release" of information due to "precedential value" of a district court holding that Smithsonian is an agency; no evidence exists in this case that the release of the 2 documents for use in plaintiff's employment discrimination suit will contribute to the public's ability to make vital political choices; the Smithsonian's position regarding its agency status was reasonable; the award of attorney fees to plaintiff is reversed).

Crumpton v. Stone, 59 F.3d 1400 (D.C. Cir. 1995) (in this case where plaintiff sued the Department of the Army under the Federal Tort Claims Act (FTCA) for releasing records about her husband in response to a FOIA request, finds that no federal statute proscribes the release of this information in response to a FOIA request and that "the discretion exercised by the Army in evaluating the FOIA request is of the 'nature and quality that Congress intended to shield from tort liability'"; the discretionary function exemption to the FTCA precluded jurisdiction in this case).

Davin v. Dep't of Justice, 60 F.3d 1043 (3d Cir. 1995) (Vaughn Index: in this FOIA case where plaintiff requested approximately 10,000 pages of up-to-60-year-old information concerning the Workers Alliance of America (WAA), finds that the FBI's coded Vaughn Index offered insufficient generic explanations of the "justification categories" used to encode the Index; while the use of the coded method does not per se render a Vaughn Index inadequate, an agency using a coded Vaughn must also include specific factual information concerning the documents and correlate the claimed exemptions to the withheld documents; while courts have upheld the use of the sample Vaughn used in this case, any decision as to the sample documents is applicable to all of the documents at issue) ("reasonably segregable": agency needs to provide more than an unsupported conclusion to justify the withholding of an entire document so that plaintiff can evaluate the decisions to withhold; on remand, the court should reexamine the material in the sample, and any rulings it makes regarding the segregability of those materials must be applied by the FBI to the entire body of the requested information) (Exemption 7 (threshold): the FBI's blanket references to the statutes that criminalize treason, misprision of treason, and recruiting for service against the United States do not adequately inform plaintiff of the claimed law enforcement purposes of the FBI investigation; the declaration contained only a general description of the files and did not describe the nexus between each document and a particular investigation) (Exemption 7(C): the district court must perform the balancing between private and public interests and determine whether the disclosure of the identities of private individuals is warranted; Reporters Committee notwithstanding, the government must conduct a document-by-document, fact-specific balancing; it is within the discretion of the district court to require the agency to determine whether individuals for whom the privacy exemption is claimed are still alive) (Exemption 7(D): there is no proof that the sources cited by the FBI received express grants of confidentiality; on remand, the FBI must produce evidence of its "alleged" policy of giving all symbol-numbered informants or code-name sources express assurances of confidentiality, evidence that the policy was in effect for the 40 years spanned by the documents at issue, and evidence that the policy was applied to each investigation; the FBI has not described circumstances that would provide a basis for inferring confidentiality for informants within the WAA; on remand, the FBI must provide a further detailed factual recitation that provides a basis for inferring confidentiality) (Exemption 7(E): on remand, the FBI must provide additional facts to support its assertion that disclosure of the methods by which internal informants were identified, recruited, cultivated, and handled in the 1930s would risk circumvention of the law) (Exemption 2 "low": while the exemption does protect informant codes, on remand the FBI must give further descriptive information as to the content of the withheld documents or portions of documents).

Gilmore v. NSA, No. 94-16165, 1995 WL 792079 (9th Cir. Dec. 11, 1995) (unpublished memorandum), 76 F.3d 386 (9th Cir. 1995) (table cite) (district court did not abuse its discretion when it denied injunctive relief to plaintiff on his pattern and practice claim regarding NSA's delays in processing its FOIA requests).

Hamlet v. United States, 63 F.3d 1097 (Fed. Cir. 1995) (subsection (a)(2)(C): in this case where plaintiff seeks judicial review of an adverse personnel action, finds that the agency is not required to publish personnel manuals and handbooks, because they are "related solely to the internal personnel rules and practices of an agency").

Hamrick v. Dep't of the Navy, No. 92-5376 (D.C. Cir. Aug. 4, 1995) (grants plaintiff's motion to dismiss appeal in this FOIA case where the district court ruled that the deliberative process privilege protected opinions and recommendations).

Harper v. DOD, No. 93-35876, 1995 WL 392032 (9th Cir. July 3, 1995) (unpublished memorandum), 60 F.3d 833 (9th Cir. 1995) (table cite) (Vaughn Index: the question is not whether an Index is required, but whether the affidavits adequately served the purpose of such an Index) (Exemptions 1 and 3: agency's affidavits demonstrate that the release of the Hoffman Report and the "Intelligence" section of the Harper Damage Assessment would expose military technology and intelligence sources and methods; reverses and remands the district court's findings with respect to the three groups of documents reviewed by the Strategic Defense Command and the entire Fletcher Report; agency's affidavits do not justify the withholding of this information; the district court permitted the withholding of the entire Fletcher Report without making the necessary findings regarding segregability) (fee waiver (Reform Act): prisoner's conclusory statement that the requested documents contain exculpatory information is insufficient to support a waiver of fees).

Katz v. NARA, 68 F.3d 1438 (D.C. Cir. 1995) (agency records: photographs and x-rays taken during the 1963 autopsy of President John F. Kennedy were personal presidential materials when they were first created and at no time were agency records under the FOIA; prior to the passage of the Presidential Records Act of 1978, each President considered his presidential papers to be his personal property; the autopsy and photographs may satisfy the literal definition of "agency records" under the Records Disposal Act, but the strong tradition of presidential ownership of their personal papers and the nature and treatment of these records demonstrate that the materials were personal presidential papers and not agency records).

Nation Magazine v. United States Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (adequacy of search: where plaintiff requested information about offers from then-Presidential candidate H. Ross Perot to aid the Customs Service in its drug-interdiction efforts, finds that the agency must interpret plaintiff's request more broadly to include subject-matter files on topics of interest, as well as files indexed under Perot's name or personal identifier; on remand, Customs must provide additional information on whether it maintains topical or "subject matter" files and whether its search of these files was sufficient; a search through 23 years of unindexed, chronological reading files would be unduly burdensome; defendant must search these reading files for the 1981 memo plaintiff requested) (Exemption 7(C): in a narrow ruling clarifying SafeCard Services, finds the "Glomar" response cannot be categorically issued in all situations where a third-party requester seeks information from law enforcement files which mention another individual by name; plaintiffs have identified a cognizable public interest in knowing how a government agency responded to a private citizen's offer to help or "privatize" the agency's interdiction efforts; Perot's public disclosures about his offers to the Customs Service effectively waive his right to redaction of his name from documents on events that he has publicly discussed; orders the court on remand to engage in ad hoc balancing of the competing private and public interests at stake here; Customs may articulate a revised categorical rule regarding disclosure of law enforcement records).

Ortiz v. HHS, 70 F.3d 729 (2d Cir. 1995) (Exemption 7 (threshold): unsigned, unsolicited letter received by the Office of Inspector General was compiled for law enforcement purposes; letter was used to launch a criminal investigation of plaintiff, even though the investigation was closed without charging plaintiff with a crime) (Exemption 7(D): applying Landano, after in camera inspection finds that the particular circumstances surrounding the communication of the information supplied by the author of the letter supports a finding of an implied assurance of confidentiality; "serious and damaging allegations of misconduct that could initiate criminal investigations or lead to other serious sanctions can reflect an implied assurance of confidentiality"; the author had a demonstrably close relationship to plaintiff; the possibility of harassment or retaliation is reasonable and genuine; because of its unique syntax, grammar, and language, disclosure of the letter would reveal the source's identity).

Premysler v. Lehman, 71 F.3d 387 (Fed. Cir. 1995) (publication: prohibition against unqualified persons practicing before Patent and Trademark Office is an interpretive rule that does not trigger the notice requirement of 5 U.S.C. § 552(a)(1)).

Sheet Metal Workers Int'l Ass'n, Local No. 9 v. United States Air Force, 63 F.3d 994 (10th Cir. 1995) (Exemptions 6 and 7(C): prohibit the release to a union of the names of employees who work for companies performing government contracts; workers have a substantial privacy interest in the disclosure of their names contained in payroll records and apprentice-registration forms, linking their names to personal financial information about them; where the Union argues that the requested information is needed to monitor agency compliance with the Davis-Bacon Act, finds that any connection between this information and the FOIA's purpose of shedding light on the activities of the federal government is far too attenuated to warrant such an invasion of privacy).

Spurlock v. FBI, 69 F.3d 1010 (9th Cir. 1995) (jurisdiction: in this FOIA case where the district court ordered the FBI "to meet and communicate with plaintiff's counsel" concerning the veracity of information received from certain confidential sources and to disclose all information that conflicts with prior testimony or statements, finds that once the district court determined that all agency records at issue were exempt from disclosure under the FOIA, it lacked statutory authority to order further disclosure) (equitable discretion: where a statute, such as the FOIA, provides specific remedies to make good the wrong done, those remedies are "explicitly exclusive").

Steadman v. Rocky Mountain News, No. 95-1102, 1995 U.S. App. LEXIS 34986 (10th Cir. Dec. 11, 1995) (unpublished order), 72 F.3d 138 (10th Cir. 1995) (table cite) (agency: defendant is not a governmental entity under the FOIA).

Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995) ("not an agency" defense: the Executive Residence is not an "agency" for purposes of the FOIA).

Urban v. United States, 72 F.3d 94 (8th Cir. 1995) (adequacy of search: Justice Department has not demonstrated that it conducted an adequate search for documents relating to plaintiff's January 1994 polygraph when the evidence suggests that one or more of these documents exist) (mootness: district court incorrectly dismissed this case as moot; a FOIA case is moot only when the documents have been produced).

Washington v. Wishard Mem'l Hosp., No. 95-5266, 1995 WL 613629 (6th Cir. Oct. 18, 1995) (unpublished order), 70 F.3d 116 (6th Cir. 1995) (table cite) (agency: the Wishard Memorial Hospital and its Custodian of Records are not "agencies" under the FOIA).

Williams v. FBI, 69 F.3d 1155 (D.C. Cir. 1995) (per curiam) (Exemption 7(D): applying Landano, finds that the FBI properly withheld information from sources who were given express promises of confidentiality, and that for the remaining information implied confidentiality may be inferred due to the Afro Set's willingness to use violence against its enemies and the sources' proximity to the Afro Set; summary affirmance granted).

Wray v. Dep't of Justice, No. 95-5045 (D.C. Cir. Dec. 7, 1995) (summary affirmance granted; plaintiff has not exhausted his administrative remedies with respect to his FOIA request to the Executive Office for United States Attorneys; DEA demonstrated that it had no records responsive to plaintiff's FOIA request).

District Courts

Abernethy v. IRS, 909 F. Supp. 1562 (N.D. Ga. 1995) (Exemption 3 [26 U.S.C. § 6103(a)]: protects the identity of a third-party taxpayer) (attorney fees: the fact that records were released after this lawsuit was filed is insufficient to establish eligibility; this lawsuit was not necessary because plaintiff readily received the same records through discovery in unrelated civil actions; plaintiff is not eligible for fees; plaintiff pursued this lawsuit to obtain documents relevant to his removal as an IRS manager; defendant had a reasonable basis in law for withholding the documents; attorney fees denied).

Ahmed v. Reno, No. 94-2438 (D.D.C. Nov. 15, 1995) (FOIA action dismissed due to plaintiff's failure to prosecute).

Allnutt v. United States, No. 94-3491 (D. Md. Nov. 9, 1995) (grants IRS's motion for summary judgment; IRS has properly withheld 35 pages as to which it has claimed the applicability of (unspecified in the opinion) FOIA exemptions).

Armstrong v. Executive Office of the President, No. 89-0142 (D.D.C. July 28, 1995) (in camera inspection: government's subsequent release of information previously withheld does not constitute bad faith; on plaintiff's motion for in camera review of 17 documents in which the text of various e-mail messages and memoranda has been redacted, finds that in camera review of 4 documents is necessary because the government's explanation for withholding national security information is insufficient; in camera inspection of the remaining 13 documents is not warranted because defendant has provided sufficient justification for redacting foreign intelligence information, foreign government information, intelligence sources and methods, and foreign policy information that has not officially been disclosed and cannot be further segregated and released) ("reasonably segregable": defendant must demonstrate that country and region headings cannot reasonably be segregated from 88 White House Intelligence Summaries; defendant must file another Vaughn Index with respect to these documents by August 11, 1995) (Exemption 6: disclosure of the identities of FBI agents who attended White House meetings would constitute an "unwarranted invasion" of personal privacy; disclosure would not further the public interest) (Exemption 3 [50 U.S.C. App. § 2411(c)]: Export Administration Act is an Exemption 3 statute; Export Administration Act has lapsed many times over the years, and each time its provisions were extended by Executive Order; protects information from an export-license application).

Armstrong v. Executive Office of the President, No. 89-0142 (D.D.C. Aug. 11, 1995) (on consideration of defendant's supplemental declaration and after in camera review, finds that the 4 documents in question were properly withheld under Exemption 1; disclosure would damage relations with foreign countries or reveal the vulnerabilities of a government installation).

Armstrong v. Executive Office of the President, 897 F. Supp. 10 (D.D.C. 1995) (in camera inspection: denies plaintiff's request for partial reconsideration of court's decision not to review 13 documents in camera; applying Military Audit Project, court "will not lose faith in a FOIA exemption determination based on the Government's concession that it had earlier misclassified related materials") (Vaughn Index: court is satisfied that the supplemented Vaughn Indices and supporting affidavits sufficiently and accurately demonstrate that a limited number of country captions and source citations that defendant continues to withhold from 88 White House Intelligence Summaries cannot be segregated from the body of the summaries and released).

Assassination Archives & Research Ctr. v. CIA, 903 F. Supp. 131 (D.D.C. 1995) (Exemption 1 [E.O. 12,356]: court cannot rule on this exemption based on FBI's Vaughn Index; rather than ordering the government to supplement its Index, surprisingly orders plaintiff to review the record, document by document, and explain where it cannot understand the government's stated reasons for the use of this exemption) (Exemption 7 (threshold): background investigations of 1964 Senate subcommittee hearings on the use of wiretapping in closed and pending criminal investigations meet the threshold requirement) (Exemption 7(C): protects the identities of third parties, despite the fact that the records are 30-40 years old).

Assassination Archives & Research Ctr. v. CIA, No. 94-0655 (D.D.C. Nov. 27, 1995) (denies plaintiff's motion for reconsideration in this Exemption 1 case where the court previously ordered plaintiff to review the record, rather than asking the government to supplement its affidavit).

Badalementi v. Dep't of State, 899 F. Supp. 542 (D. Kan. 1995) (Exemption 1 [E.O. 12,356]: agency's affidavit demonstrates that the exemption protects 11 documents, in whole or in part, that contain information concerning the State Department's efforts to obtain plaintiff's extradition from Spain following his arrest there for drug smuggling, because they involve "foreign government information" or "foreign activities of the U.S.") (Exemption 2: INTERPOL must release case and file numbers withheld from one document, because it failed to show that they related to an agency rule or practice; protects G-DEP codes and NADDIS numbers contained in 4 DEA documents; DEA must release information generically classified as "internal markings" because it has provided no information as to the type of information this includes) (Exemption 3 [8 U.S.C. § 1202(f)]: protects marginal notes pertaining to the granting or refusing of a visa to plaintiff) (Exemption 5: attorney work-product privilege protects 6 Justice Department letters in their entirety and portions of various DEA cable messages that pertain to developments and requests for assistance in plaintiff's pending extradition proceedings) (Exemption 7(C): protects the identities of law enforcement personnel, a military officer, third parties, subjects of investigative interest, special agents, federal employees, and a witness contained in law enforcement records) (Exemption 7(D): INTERPOL's affidavit demonstrates that the informant supplied information with the explicit understanding of confidentiality; DEA's affidavit demonstrates that information provided to it by Italian law enforcement officials concerned anti-drug collaborative efforts, "an arena where confidentiality is implicitly understood") (Exemption 7(F): DEA properly withheld the identities of law enforcement personnel because disclosure would subject them to harassment or other reprisal, including physical harm).

Bangor Hydro-Elec. Co. v. Dep't of the Interior, 903 F. Supp. 169 (D. Me. 1995) (attorney fees: any public benefit derived from this action "will at most indirectly impact a small subset of the public, namely Plaintiff's customers"; the most significant benefit to accrue from this action will be commercial in nature and will accrue to plaintiff; if plaintiff should pass this benefit on to its ratepayers, plaintiff will be serving its clientele, in whom it has a commercial interest; plaintiff sought documents to assist it in a battle over license terms, and not to vindicate a significant public interest; although defendant did not prevail in court, defendant did not lack a reasonable basis in law for initially withholding documents; attorney fees denied).

Bennett v. IRS, No. 95-73-B (D.N.H. Nov. 8, 1995) (grants IRS's motion for summary judgment; requested documents refer to information exchanged pursuant to a tax treaty; disclosure would seriously impair federal tax administration).

Cecola v. FBI, No. 94-C-4866, 1995 U.S. Dist. LEXIS 13253 (N.D. Ill. Sept. 7, 1995) (jurisdiction: court retains jurisdiction when an agency fails to comply with FOIA's timing requirements, regardless of whether "exceptional circumstances" exist and whether the agency is exercising "due diligence") ("exceptional circumstances"/"due diligence": FBI headquarters has shown that "exceptional circumstances" exist and that it is exercising "due diligence"; FBI has 230 employees faced with, on average, 15,170 FOIA requests per year; requests for additional personnel have been unsuccessful; a backlog of 12,079 requests existed as of October 1994; plaintiff's request will be processed in 1999) (Exemption 7(A): Las Vegas field office's generic affidavit is insufficient to justify the withholding of records under this exemption; some of the categories identified are too vague for the court to assess the legitimacy of the justification and the affidavit fails to link each category to the danger posed by release of material from that category) (court is willing to consider this issue again if the government submits a supplemental affidavit).

Cecola v. FBI, No. 94 C 4866, 1995 WL 645620 (N.D. Ill. Nov. 1, 1995) (FBI policy that directs field offices to postpone processing certain FOIA requests until FBI Headquarters begins processing its records in Washington is consistent with the FOIA's law enforcement exemptions; it serves to protect the FBI's legitimate interests in protecting ongoing investigations; court has already ruled that the length of delay is justified by "exceptional circumstances") (venue: grants plaintiff's request to transfer this case to the District of Nevada, the district of the FBI field office and records at issue).

Christy v. Dep't of Justice, No. 94-2632 (D.D.C. July 31, 1995) (summary judgment granted to defendant; plaintiff has failed to demonstrate a genuine issue of fact as to whether his records were wrongfully withheld under Exemptions 7(C), 7(D), and 7(F)).

Clarry v. United States, 891 F. Supp. 105 (E.D.N.Y. 1995) (publication: failure to publish notice of an indefinite ban on reemployment of striking air traffic controllers did not violate the FOIA's notice requirement because this was not an agency action; the ban was the application of a statute enacted by Congress and authorized by the President).

Crooker v. IRS, No. 94-0755 (D.D.C. Sept. 6, 1995) (relying on defendant's uncontroverted declarations, finds that information was properly withheld under Exemption 3 [26 U.S.C. § 6103(a) and Rule 6(e)]).

Crooker v. Tax Div. of the Dep't of Justice, No. 94-30129, 1995 WL 783236 (D. Mass. Nov. 17, 1995) (mootness: plaintiff's case is not moot simply because Department of Justice components ultimately responded to his FOIA requests; plaintiff's complaint remains alive to test the adequacy of the disclosures) (Exemption 3 [26 U.S.C. § 6103(a) and (b)(2)]: protects third-party tax return information, including the identities and Social Security numbers of individuals under investigation for tax crimes; [Rule 6(e)]: protects grand jury information that would disclose the identities of targets of tax investigation and the scope and direction of the grand jury's investigation) (Exemption 5: the attorney work-product privilege protects a prosecution memorandum in its entirety) (Exemption 7(C): categorically protects the identities of witnesses and informants who have provided information to the IRS concerning illegal tax protest movements and the identities of IRS employees who worked on this project, despite the fact that the plaintiff may be aware of some of these identities) (Exemption 7(D): applying Providence Journal Co., finds that the exemption protects the identity of and information supplied by a confidential source since the information was provided under circumstances in which an express promise of confidentiality could reasonably be expected) (attorney fees: plaintiff has substantially prevailed because his lawsuit resulted in the disclosure of documents; there is no public benefit in plaintiff's request for documents about himself; there is no commercial benefit to the plaintiff; the other entitlement factors have not been addressed by the plaintiff; costs denied to plaintiff).

D'Angelica v. IRS, No. 94-1998 (E.D. Cal. Oct. 26, 1995) (Exemption 7(E): disclosure of IRS's DIF scores would result in circumvention of tax laws) (Exemption 3 [26 U.S.C. § 6103(a)]: protects third-party tax return information) (Exemption 7(C): protects the names of lower-level IRS employees).

DeHarder Inv. Corp. v. Ind. Hous. Fin. Auth., 909 F. Supp. 606 (S.D. Ind. 1995) (agency: the Indiana Housing Finance Authority is not an agency for purposes of the FOIA; federal control over its functions is limited to oversight of federal funds).

DeLorme Publ'g Co. v. NOAA, 907 F. Supp. 10 (D. Me. 1995) (agency records: applying Tax Analysts, finds that "nothing in the FOIA excuses an agency from disclosing a particular record because it has disclosed the content elsewhere in a different format"; NOAA must respond to a FOIA request for both navigational charts and their underlying "digitized data" form as well).

Del Viscovo v. FBI, 903 F. Supp. 1 (D.D.C. 1995) (Exemption 2 "high": release of DEA and FBI code numbers, identification numbers, and other internal information could severely hamper enforcement and investigatory activity and allow suspects to evade apprehension) (Exemption 3 [Rule 6 (e)]: protects the identities of grand jury witnesses, the substance of their testimony, the strategy or direction of the grand jury investigation, and the deliberations of the jurors; [18 U.S.C. § 2510]: protects information relating to the lawful interception of communications by the FBI) (Exemption 7(A): protects a criminal investigative file concerning an ongoing investigation of organized crime activity) (Exemption 7(C): protects the identities of FBI agents, FBI support personnel, and other federal and nonfederal law enforcement officers) (Exemption 7(D): applying Landano, finds that the exemption protects the identities of confidential sources in a major racketeering investigation) (Exemption 7(E): protects the contents of FBI Form FD-515, the techniques assistance ratings form for investigations).

Direct Response Consulting Serv. v. IRS, No. 94-1156, 1995 WL 623282 (D.D.C. Aug. 21, 1995) (Exemption 5: the attorney work-product privilege protects 6 documents created when an IRS District Counsel requested legal assistance from the National Office of the Chief Counsel with respect to certain legal issues which had arisen in the course of an examination into the tax liabilities of plaintiff's predecessor company; although the documents were not prepared in anticipation of pending litigation, the documents were prepared in response to an "articulable claim" by a potential plaintiff; the attorney-client privilege protects 4 documents that were created when the IRS District Counsel sought legal advice from the Assistant Chief Counsel who then sought advice from other divisions of Chief Counsel; the confidentiality of these documents was not waived or compromised at any time; 3 additional documents are not protected by this privilege because the defendant failed to claim that they were ever communicated to the client).

Dollinger v. United States Postal Serv., No. 95-6174T (W.D.N.Y. Aug. 24, 1995) (fee waiver (Reform Act): the term "government" as used in the FOIA's fee waiver provision refers to the federal government; disclosure of mailing statements submitted for mailings by the New York State Senate would not contribute significantly to the public's understanding of the operations of the federal government; Postal Service is not bound by its previous decision granting plaintiff a fee waiver for a similar request).

Dow Jones & Co. v. Dep't of Justice, 907 F. Supp. 79 (S.D.N.Y. 1995) (where the district court enjoined the Justice Department from withholding photocopies of Vince Foster's suicide note under the FOIA, finds that plaintiff's voluntary act of receiving the note independently from a nonexecutive branch agency source rendered appeals of the court's judgment moot; because the Justice Department and Lisa Foster have involuntarily been deprived of their opportunity to appeal, vacates portions of January 5, 1995 and March 6, 1995 rulings requiring the Justice Department to release a photocopy of the note to the public).

Eagle Horse v. FBI, No. 92-2357 (D.D.C. July 28, 1995) (duty to search: where plaintiff submitted his FOIA request to FBI Headquarters only, finds that the FBI is not "obliged by a FOIA request to embark on a quest for responsive documents wherever they might be found within a vast bureaucratic organization spread across the country"; even though other responsive documents may be in FBI's Minneapolis Field Office, FBI's search of its headquarters files was sufficiently thorough) (Exemption 7(C): protects the identities of 4 individuals who underwent polygraph examinations in the course of the FBI's investigation of a murder to which plaintiff pled guilty, even though these identities are presumably known to plaintiff from court records) (Exemption 7(D): applying Landano, finds that there is no evidence that these individuals would have submitted to polygraph examinations in the course of the FBI's murder investigation without assurances of confidentiality) (Exemption 7(E): polygraph examinations protected in full, since disclosure of the structure, pattern, and sequence of questions could reasonably enable circumvention of the test) ("reasonably segregable": after in camera inspection, finds that it is not feasible to segregate even arguably releasable portions of the polygraph examinations without reducing the resulting product to "unintelligible gibberish").

Envtl. Crimes Project v. EPA, 928 F. Supp. 1 (D.D.C. 1995) (venue: although interests of justice clearly favor transfer of FOIA case to District of Nevada where plaintiff was representing the plaintiffs in 2 other cases in which there were related discovery disputes, case will not be transferred absent precise information concerning location of records sought; proceedings in instant action stayed pending resolution of discovery disputes in District of Nevada).

Exner v. Dep't of Justice, 902 F. Supp. 240 (D.D.C. 1995) (Exemption 7 (threshold): applying Pratt, finds that the threshold requirement is met by records reflecting an FBI-observed break-in of plaintiff's apartment that were compiled as part of an investigation of an individual under the federal anti-racketeering statutes) (Exemption 7(C): protects the names of a deceased former FBI Special Agent and his 2 sons, and personal information about one of the sons, whom the FBI observed "in criminally suspect behavior" in the course of a separate investigation; disclosure of deceased Special Agent's name would reveal identity of individual described as his son in previously disclosed records; disclosure of this information would not shed light on the agency's performance of its statutory responsibilities).

Friends of the Coast Fork v. Dep't of the Interior, No. 94-6140 (D. Or. Aug. 18, 1995) (subsection (a)(2): it was not improper for the Fish & Wildlife Service to consider existing public access through its Portland, Oregon reading room when evaluating fee waiver requests of plaintiffs who live approximately 110 miles away in Eugene, Oregon) (fee waiver (Reform Act): plaintiffs, 2 similar environmental groups who requested records concerning the denial of a petition to list the western pond turtle pursuant to the Endangered Species Act, are not entitled to a complete waiver of all fees for copies of the administrative record prepared in a process that incorporated public involvement and comments; plaintiffs not entitled to fee waiver for "reference materials" already disclosed by others and in the public domain; plaintiff is not entitled to a full fee waiver due to the limited focus of its organization; disclosure of this information may result in a limited public understanding for those interested in the Coast Fork of the Willamette River; grants a 10% fee waiver reduction to the first plaintiff and a 25% reduction for the second).

Griffith v. IRS, No. 95-20526, 1995 WL 853038 (N.D. Cal. Dec. 14, 1995) (court lacks jurisdiction in this FOIA case since requested records have been produced).

Hatcher v. Dep't of Justice, 910 F. Supp. 1 (D.D.C. 1995) (Exemption 7(C): protects the identities of third parties, FBI Special Agents, government employees, and local law enforcement personnel who participated in the investigation and prosecution of plaintiff for narcotics-related offenses).

Iriscan, Inc. v. DOE, No. 93-5721 (D.N.J. July 27, 1995) (exhaustion: plaintiff has not exhausted his administrative remedies; since DOE had partially responded to its FOIA request, plaintiff was required to file an administrative appeal before filing suit).

Jacoby v. HUD, No. 94-2130 (D.D.C. June 28, 1995) (duty to search: defendant has conducted searches reasonably calculated to produce the requested information).

Jacoby v. HUD, No. 95-0893 (D.D.C. July 28, 1995) (duty to search: defendant has conducted searches reasonably calculated to produce the requested information).

Johnson v. FBI, No. 94-1741 (D.D.C. Aug. 29, 1995) ("exceptional circumstances"/"due diligence": Open America stay granted for 6 months until February 1996; defendant has shown "due diligence": FBI processes documents on a "first-in, first-out" basis, it has been deluged with FOIA requests, document processing is a "painstaking" process, plaintiff's request was handled with good faith, and there is a lack of budgetary funds) (expedited treatment: denies expedited treatment to plaintiff who alleges he needs the documents to aid in the appeal of his criminal conviction).

Johnson v. VA, No. 95-C-4909, 1995 WL 745955 (N.D. Ill. Dec. 12, 1995) (jurisdiction: court lacks jurisdiction in this case; while the VA has responded to plaintiff's FOIA request for his medical records, conflicting claims as to the existence of documents is a form of improper withholding in the Seventh Circuit).

J. Roderick MacArthur Found. v. FBI, No. 90-2906 (D.D.C. Sept. 6, 1995) (after in camera review, grants defendant's motion for summary judgment, finding that the documents were compiled for legitimate law enforcement purposes and that the investigations were of third parties with whom plaintiff came into incidental contact).

Katzman v. CIA, 903 F. Supp. 434 (E.D.N.Y. 1995) (adequacy of search: in this FOIA case where defendant's initial response letter to the plaintiff incorrectly identified the subject of the plaintiff's request, finds that the CIA has failed to meet its burden of establishing the thoroughness of its search procedures; the affiant did not elaborate on the extent of his involvement with the search request; following Carney v. Dep't of Justice, finds that an affidavit from the employee responsible for supervising the search in each agency component involved at issue should be obtained).

Keenen v. IRS, No. 94-7622 (C.D. Cal. Aug. 18, 1995) (Exemption 3 [26 U.S.C. § 6103(a)]: protects third-party tax return information) (scope of request: IRS properly redacted information that was outside the scope of plaintiff's FOIA request) (waiver of exemption: plaintiff failed to demonstrate that the information in question is part of the public record).

Kennecott Ut. Copper Corp. v. EPA, No. 94-162 (D.D.C. Sept. 11, 1995) (Exemption 5: deliberative process privilege protects 20 EPA documents containing preliminary determinations and initial analyses of data concerning Hazard Ranking Scores, which are used to determine whether sites will be placed on the National Priority List (NPL)) (attorney fees: even if plaintiff were eligible for attorney fees, it is not entitled to them; plaintiff is a large, for-profit corporation seeking documents to enable it to preempt the listing of one of its sites on the NPL; any public interest in this litigation is minimal; release of preliminary analyses may "confuse the public as to the quality of the final EPA determinations"; plaintiff has not demonstrated that it released any of the materials obtained from EPA to the public; during the pendency of this lawsuit, EPA released more documents following the announcement by the President and Attorney General of a new FOIA policy; "defendant not only had a colorable claim to withhold the documents, but was legally entitled to withhold almost all of them").

Kitchen v. DEA, No. 93-2035 (D.D.C. Oct. 11, 1995) (duty to search: even though defendant's affidavits do not support its contention that an adequate search was conducted, plaintiff has not produced evidence of undisclosed documents) (Exemption 2 "high": disclosure of NADDIS numbers, G-DEP codes, and informant-identifier codes would impair DEA investigations) (Exemption 7(A): agency's generic affidavit demonstrates that the disclosure of records compiled during 3 active investigations could reasonably be expected to interfere with enforcement proceedings) (Exemption 7(C): protects information that would identify informants, third parties, subjects of investigative interest, and agency employees) (Exemption 7(D): applying Landano, finds that an assurance of confidentiality can be inferred from the circumstances under which informants provided information to DEA) (Exemption 7(F): protects the identities of DEA Special Agents, Supervisory Special Agents, other law enforcement officers, and several local police officers).

Klinge v. IRS, 906 F. Supp. 434 (W.D. Mich. 1995) ("no records" defense: IRS does not maintain the documents requested by plaintiff; plaintiff was advised where he could obtain a copy of the Internal Revenue Code).

LeGrand v. FBI, No. 94-0300 (S.D.N.Y. July 10, 1995) (magistrate's recommendation) (adequacy of search: agency's sworn affidavit demonstrates the thoroughness of its search; untimeliness alone is not enough to impugn the credibility of the affidavit) (Exemption 7(C): protects the identities of the coordinator and a clerical employee of the FBI's National Center for the Analysis of Violent Crime) (Exemption 7(D): applying Landano, finds that the exemption protects an unsolved murder investigation report submitted to the FBI by the New York State Police seeking technical assistance with the expectation of confidentiality) (in camera inspection: plaintiff's request for in camera review denied because it is clear that information was properly withheld), adopted, 1995 WL 702333 (S.D.N.Y. Nov. 29, 1995).

Lesar v. CIA, No. 93-2598 (D.D.C. Oct. 12, 1995) (adequacy of search: defendant's affidavit does not adequately describe the search it performed in response to plaintiff's FOIA request; CIA inappropriately limited the scope of plaintiff's FOIA request to apply only to records pertaining to Manuel Noreiga generated by or made available to former President Bush in his capacities as Director of the CIA and Vice President, and omitted members of his staff; before filing a renewed motion for summary judgment, the CIA shall search its records in accordance with plaintiff's request and submit an affidavit describing the initial search and the subsequent search in sufficient detail to allow the court and plaintiff to evaluate their adequacy) (Exemption 1 [E.O. 12,356]: CIA's affidavit fails to describe adequately the information withheld and "utterly fails to link the specific information deleted with the specific harms(s) disclosure would cause"; with its renewed motion for summary judgment the government shall include a more specific Vaughn Index, with in camera submissions if necessary, describing the specific deletions made and the justification) (Exemption 3 [50 U.S.C. § 403(d)(3), § 403g]: agency's broad categorical claims that documents or portions of documents fall within this exemption are insufficient to enable the court to determine whether the redacted information was properly withheld; with its renewed motion for summary judgment the government shall include a more specific Vaughn Index, with in camera submissions if necessary, detailing the basis for withholding information under this exemption) (Exemption 5: CIA's affidavit does not demonstrate that the deliberative process privilege protects a document concerning an issue with national security ramifications that was prepared by a subordinate at the behest of the Director; CIA must review the document again to determine whether it contains any segregable material; CIA must submit a more detailed explanation of the document and its role in the deliberative process).

Letscher v. IRS, No. 95-0077, 1995 WL 555476 (D.D.C. July 5, 1995) (adequacy of search: defendant's affidavit demonstrates that its search for plaintiff's tax records was "reasonably calculated to uncover all relevant documents").

Levy v. CIA, No. 95-1276 (D.D.C. Nov. 16, 1995) (Exemption 3 [50 U.S.C. § 403(d)(3)]: agency's affidavits demonstrate that confirming or denying the existence of records concerning a foreign national who died 25 years ago "can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods"; CIA need not confirm information that plaintiff has obtained from other government agencies).

Leytman v. N.Y. Stock Exch., No. 95-902, 1995 WL 761843 (E.D.N.Y. Dec. 6, 1995) (agency: the New York Stock Exchange (NYSE) is subject to significant government regulation, but it is not an agency of the federal government for purposes of the FOIA) (agency record: the NYSE's trading records are neither created by the SEC nor within its control).

Lindow v. FBI, No. 94-156 (E.D. Ky. May 8, 1995) (magistrate's recommendation) ("exceptional circumstances"/"due diligence": DEA exercised "due diligence" in responding to plaintiff's FOIA requests in the order in which they were received) (grants summary judgment to the FBI, DEA, and the Department of Justice; affidavits demonstrate that information was properly withheld under Exemptions 2, 7(C), 7(D), and 7(F)), adopted (E.D. Ky. Aug. 14, 1995).

Linn v. Dep't of Justice, No. 92-1406, 1995 WL 631847 (D.D.C. Aug. 22, 1995) (adequacy of search: Bureau of Prisons (BOP) demonstrated that it searched the Central Inmate Monitoring (CIM) file as plaintiff originally requested; it has not demonstrated that it conducted a reasonable search of the "exempt" portion of its Central Files as plaintiff clarified in his amended request; affiant at BOP in Washington, D.C. has no personal knowledge of searches conducted for plaintiff's medical records that were located in a federal facility in Fort Worth, Texas) (exhaustion: a genuine issue of material fact exists as to whether plaintiff has exhausted his administrative remedies with respect to 2 FOIA requests; even though BOP has no record of plaintiff's appeals, plaintiff has copies of his appeal letters and an affidavit asserting that the letters were sent to the appropriate office) (referral of FOIA request: BOP may not discharge its FOIA obligations by referring plaintiff to the source from which the documents originated) (fee waiver (Reform Act): BOP has not demonstrated that its denial of a fee waiver request was proper; the "incarcerated public" to whom plaintiff intends to disseminate this information is not a "narrow segment" of the public) (Exemption 2 "high": BOP has not demonstrated that the disclosure of 3 pages "concerning internal administrative matters" would risk circumvention of agency regulations) (Exemption 5: BOP has not demonstrated that "intra-agency notations" from an unspecified number of responsive documents concerning plaintiff's CIM status and transfer and 4 pages from plaintiff's CIM file concerning plaintiff's separation status are protected by the deliberative process privilege; the deliberative process privilege protects IRS and Justice Department Tax Division documents that reflect employees' preliminary opinions, recommendations, or analyses of issues considered in the course of litigation with the plaintiff; however, in one document where only the deliberative process privilege is claimed, the IRS has not demonstrated conclusively that it would be impossible to segregate nondeliberative, factual matter from the protected portions; the attorney work-product privilege protects in their entirety documents withheld by the IRS and Tax Division that were authored by attorneys and contain analyses and recommendations concerning various phases of civil litigation or of the criminal investigation; the attorney-client privilege protects letters and memoranda written by government attorneys to advise attorneys in other government agencies concerning the Justice Department's role in the grand jury investigation of plaintiff) (Exemption 7: BOP has not demonstrated that the release of information concerning plaintiff's separation status and 2 pages of CIM information concerning his participation in community affairs were compiled for "law enforcement purposes"; BOP has shown that documents about one federal employee were compiled for "law enforcement purposes"; the court does not have sufficient evidence to determine whether documents concerning a second federal employee were compiled by BOP for "law enforcement purposes"; FBI has demonstrated that its information was compiled pursuant to an investigation into potential wrongdoing; information provided to parole hearing examiners to aid their parole decisions meets the threshold requirement) (Exemption 7(C): BOP may not use this exemption to withhold 5 entire pages of documents whose primary focus is the plaintiff himself; BOP must demonstrate that the redactions made under this exemption contain no segregable information; BOP has not provided the court with sufficient information to weigh the private and public interests involved in the disclosure of information about 2 federal employees accused of wrongdoing; FBI, IRS, and the Tax Division properly withheld information that would identify federal employees, informants, grand jurors, subjects of investigative interest, and third parties; protects a 2-page handwritten note of a telephone conversation between a parole hearing examiner and an Assistant U.S. Attorney; the public interest has been largely satisfied by the disclosure of the subject of the conversation, and the possible interference with the author's privacy interests outweighs the public interest) (Exemption 7(F): BOP has not established "even a minimal nexus" between the specific material withheld and the harm to persons discussed in plaintiff's file or the authors) (Exemption 6: BOP failed to demonstrate why the disclosure of notations pertaining to plaintiff's transfer and statements concerning third parties would be a "clearly unwarranted" invasion of personal privacy; there is clearly no privacy interest that would be harmed by revealing information about plaintiff himself; BOP must provide an explanation of how the information in those notations could interfere with the privacy interests of third parties, including federal employees; some of the information about the discipline of public employees may already have been disclosed) (Exemption 1 [E.O. 12,356]: FBI's affidavit, with coded designations of exemptions applied, demonstrates that the 7 documents withheld in whole or in part pertain to intelligence activities that are a "current threat to our national security," investigative techniques in current use, or involve information gathered from foreign governments with whom we have an understanding that shared information will remain secret) (Exemption 3 [Rule 6(e)]: IRS properly withheld records created during the grand jury process exclusively for investigatory purposes; [31 U.S.C. § 5319]: protects a Currency Transaction Report prepared pursuant to Treasury Department requirements) (Exemption 7(D): applying Landano, finds that the IRS and the Tax Division demonstrated that the exemption protects a portion of one document reflecting information received from an informant; during the course of the prosecution of plaintiff, persons associated with the investigation were subject to threats of harm when their cooperation was divulged) (defendants BOP, Tax Division, and the IRS have until October 25, 1995 to submit supplemental motions for summary judgment with more detailed affidavits).

Madden v. Runyon, 899 F. Supp. 217 (E.D. Pa. 1995) (exhaustion: plaintiff has made no showing that he exhausted his administrative remedies prior to filing this action) (statute of limitations: the 6-year statute of limitations expired 4 years prior to commencement of the present action).

Mamarella v. County of Westchester, 898 F. Supp. 236 (S.D.N.Y. 1995) (agency: the FOIA does not apply to state agencies) (proper party defendant: FOIA does not provide a cause of action against individuals).

Maricopa Audubon Soc'y v. United States Forest Serv., 923 F. Supp. 1436 (D.N.M. 1995) (Exemption 2: management territory maps used to protect the Mexican spotted owl on Forest Service lands are not "predominantly internal" and do not sufficiently relate to the agency's rules and practices to allow "high 2" protection, even though it is conceded that disclosure could reasonably be expected to lead to a species of harm).

McGann v. Dep't of Justice, No. 95-1088, 1995 WL 444341 (S.D.N.Y. July 27, 1995) (duty to search: defendant has conducted searches reasonably calculated to produce the requested information) (Exemption 7(C): defendant properly refused to disclose whether any documents concerning the prosecution of a third party existed).

McLeod v. United States Coast Guard, No. 94-1924 (D.D.C. July 25, 1995) (in camera inspection: agency's Vaughn Index is too conclusory for the court to determine whether memoranda and witness statements were properly withheld under Exemption 5 (deliberative process privilege) and Exemption 7(C) and to make a determination on segregability; orders in camera inspection of memoranda and witness statements) (Exemption 6: protects Officer Evaluation Reports (OERs); commissioned officers have a strong privacy interest in maintaining the confidentiality of their OERs; there is no public interest in disclosure of plaintiff's commander's OERs).

Messino v. DEA, No. 94 C 6804, 1995 WL 645704 (N.D. Ill. Nov. 1, 1995) (exhaustion: in this FOIA case where the defendant agency located no records responsive to plaintiff's FOIA request, finds that plaintiff has not exhausted his administrative remedies because DEA did not inform him of his right to challenge the adequacy of the agency's search on administrative appeal; defendant's motion to dismiss plaintiff's amended complaint is granted without prejudice).

Messino v. IRS, No. 95-15 (D.D.C. Sept. 15, 1995) (FOIA action is dismissed due to plaintiff's failure to prosecute).

Mills v. United States, No. 95-0663 (D. Ariz. Sept. 7, 1995) (case dismissed due to plaintiff's failure to properly serve defendants).

Nadler v. FDIC, 899 F. Supp. 158 (S.D.N.Y. 1995) (Exemption 4: Critical Mass does not apply in this FOIA case because the joint venture agreement plaintiff seeks was not provided to FDIC voluntarily; FDIC gained access to the agreement when it became the receiver of a failed bank; applying National Parks, finds that disclosure of the agreement would not impair FDIC's ability to obtain such information in the future; "program effectiveness" prong: the peril to FDIC's "program effectiveness" as a receiver is sufficiently compelling to warrant the protection of the exemption on this exceptional basis; disclosure "would interfere significantly with the FDIC's receivership program"; the joint venture would suffer substantial competitive harm if the redacted passages of the agreement were released).

Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995) (agency records: the inventory of the human remains disinterred from the Mokapu Peninsula is an agency record under the FOIA; the Department of the Navy contracted for, obtained, and controls the inventory) (Exemption 3 [25 U.S.C. § 3001]: when Congress passed the Native American Graves Protection and Repatriation Act in 1990, it did not make it an Exemption 3 statute; the Act does not satisfy either subsection of the exemption) (Exemption 6: in this case where the plaintiffs seek to prevent the disclosure of the inventory, finds that this exemption does not apply because it is intended to protect information regarding particular living persons; here the information pertains to a large group of human remains and the identification of an individual is unlikely; this exemption "does not apply to an invasion of privacy produced as a secondary effect of the release") (equitable discretion: there are no extreme or exceptional circumstances that would justify this court in preventing the disclosure of the inventory information in compliance with the FOIA).

Narducci v. FBI, No. 93-0327 (D.D.C. Sept. 22, 1995) (Exemption 7(A): on in camera inspection of every fortieth document withheld under Exemption 7(A), finds that the release of these records could interfere with enforcement proceedings).

Nat'l Pizza Co. v. INS, No. 94-2972 (W.D. Tenn. Aug. 29, 1995) (attorney fees: plaintiff has substantially prevailed in this FOIA case where plaintiff's litigation caused defendant to conduct the more thorough search for records that it should have conducted when it originally processed the request, even though the second search did not result in the disclosure of any records because all of the records located were conceded by the requester to be exempt from disclosure; plaintiff sought these records for use in defending civil litigation instituted by a former employee; court awards attorney fees to this commercial plaintiff, but limited to 20% of the actual, reasonable fees incurred).

Nation Magazine v. Dep't of State, No. 92-2303 (D.D.C. Aug. 18, 1995) (duty to search: in response to plaintiff's FOIA request for records concerning H. Ross Perot, the State Department properly searched its Central Files and the Office of the Secretariat and properly excluded foreign embassy records; however, it must now search any other offices within the State Department as plaintiff requested; this search must be completed by October 6, 1995; DEA reasonably concluded that any documents responsive to plaintiff's FOIA request would be located in its Dallas, Texas field office) (Exemptions 6 and 7(C): FBI and Defense Intelligence Service properly refused to confirm or deny the existence of records about H. Ross Perot; applying Reporters Committee, finds that the public interest in a legitimate presidential candidate and his dealings with the government is not the type of public interest recognized by the FOIA; however, by October 6, 1995, FBI must search its noninvestigative files (i.e., apply a new bifurcated approach to its "Glomarization") or submit a further affidavit explaining that such files do not exist) (sanctions: applying Rule 11, denies plaintiff's request for sanctions against the State Department and its Chief FOIA Officer concerning the expedited treatment of news media requests for documents in the passport files of then-Governor Bill Clinton) (CIA must advise the court by September 8, 1995 on the status of the FOIA requests submitted to it by plaintiff).

Netzman v. IRS, No. 3-95-248, 1995 U.S. Dist. LEXIS 20137 (D. Minn. Nov. 21, 1995) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: protects third-party tax return information).

Nguyen v. United States, No. 95-519A (E.D. Va. July 28, 1995) (court lacks jurisdiction because agency's affidavit demonstrates that it has no records responsive to plaintiff's FOIA request).

Noll v. IRS, No. 94-521 (D. Idaho Sept. 6, 1995) (adequacy of request: plaintiff is barred from bringing suit under the FOIA because he did not ask for specific documents or follow instructions as to properly identifying himself).

O'Harvey v. Office of Workers' Comp. Programs, No. 95-0187 (E.D. Wash. Dec. 7, 1995) (Exemption 6: disclosure of third-party case files from certain medical providers who rendered second opinions for claimants prior to the termination of plaintiff's disability benefits would be an "unwarranted invasion of personal privacy"; disclosure would not contribute significantly to the public understanding of the operation of the federal government) (FOIA as a discovery tool: discovery in aid of private litigants is not a proper use of the FOIA) ("no records" defense: records not within an agency's possession are not subject to disclosure under the FOIA).

Payne v. Dep't of Justice, No. 95-2968, 1995 WL 601112 (E.D. La. Oct. 11, 1995) (Vaughn Index: denies plaintiff's motion for a Vaughn Index in this FOIA case where the FBI claims it can find no records pertaining to the "BRILAB" investigation).

Peake v. Free, No. 94-189C (W.D.N.Y. Nov. 28, 1995) (referred documents: in this FOIA case where the FBI referred one record that originated with the Department of Education to that agency and it was withheld under Exemption 7(A), finds that plaintiff must now correspond with the Department of Education to obtain that document) (jurisdiction: court lacks jurisdiction when no records responsive to plaintiff's FOIA request can be located) (Exemption 7(C): protects the identities of FBI employees, nonfederal law enforcement officers, and an informant) (Exemption 2: protects agency identification codes because they relate solely to internal agency practices).

Perrone v. FBI, 908 F. Supp. 24 (D.D.C. 1995) (Exemption 7(C): protects the identities of informants, third parties, and subjects of investigative interest contained in records compiled in criminal law enforcement files) (Exemption 7(D): applying Landano, finds that the identities of and information provided by sources are protected because the crimes at issue here (drug trafficking, extortion, and illegal possession of firearms) are of such a serious and potentially violent nature that a cooperating source could reasonably be expected to be treated as confidential) (Exemption 7(E): disclosure of polygraph questions and a polygraph examination worksheet, the type of polygraph test and machines used by the FBI in criminal and national security cases, and a form which reports the statistical results of investigations would risk circumvention of law) (Exemption 7(F): protects the identities of individuals who have provided information to the FBI in this case where the crimes at issue are potentially violent).

Pons v. Dep't of Treasury, No. 93-2529 (D.D.C. Sept. 5, 1995) (following federal and local rules that permit the court to treat unopposed motions as conceded, grants defendant's motion to remove certain documents from consideration because they are related to another of plaintiff's FOIA actions).

Pray v. Dep't of Justice, 902 F. Supp. 1 (D.D.C. 1995) (scope of request: this lawsuit is properly limited to the records maintained at FBI headquarters; the request for records at the Newark Field Office was made only during litigation) (Exemption 2 "high": protects permanent source symbol numbers and file numbers of confidential sources) (Exemption 7(C): protects information that would identify FBI and DEA Special Agents, federal and state employees, subjects of investigative interest, informants, and third parties) (Exemption 7(D): agency's affidavit demonstrates that sources provided information under express promises of confidentiality or under circumstances in which an assurance can be inferred) (Exemption 7(E): protects information that "could assist a potential criminal in correlating the use of a particular investigative technique with its corresponding accomplishment in the investigation") (Exemption 7(F): protects the identities of law enforcement personnel where plaintiff, who was involved in drug trafficking and organized crime, has a documented history of violence and retaliation).

Pray v. FBI, No. 95-0380, 1995 WL 764149 (S.D.N.Y. Dec. 28, 1995) ("exceptional circumstances"/"due diligence": given the FBI's substantial FOIA backlog which it is processing in approximate order, grants FBI's request for an Open America stay until December 31, 1996 to process plaintiff's FOIA request; defendant must submit quarterly progress reports to the court) (proper party defendant: grants defendant's motion to substitute the Department of Justice in the place of defendants FBI and an individual officer).

Pub. Educ. Ctr. v. DOD, 905 F. Supp. 19 (D.D.C. 1995) (Exemption 1 [E.O. 12,356]: on review of an in camera affidavit, finds that disclosure of videotapes and portions of videotapes made during a battle involving U.S. armed forces in Somalia could be expected to cause damage to the national security; the withheld information concerns "military plans, weapons, or operations" and "vulnerabilities of capabilities of systems, installations, projects or plans"; if the court were to address plaintiff's arguments, it would risk revealing the classified rationales for withholding the tapes).

Ray v. Dep't of Justice, No. 92-0031 (S.D. Fla. Aug. 9, 1995) (attorney fees: pro se litigant who is also an attorney is not eligible for costs or attorney fees for his own services under the FOIA; plaintiff's attorney is not eligible for attorney fees because plaintiff has not substantially prevailed where disclosure of the information was the result of a ruling in a separate action).

Ray v. Reno, No. 94-1384 (D.D.C. Oct. 25, 1995) (proper party defendant: FOIA cases must be brought against agencies of the federal government, not individual employees) (preliminary injunction: plaintiff's request for injunctive relief denied because the court is unable to determine whether plaintiff's FOIA claim is likely to succeed on its merits) (plaintiff has until November 17 to amend his complaint), dismissed for failure to prosecute (D.D.C. Nov. 30, 1995).

Resendez v. Runyon, No. 94-434F (W.D. Tex. Aug. 11, 1995) (proper party defendant: individual agency employees are not proper party defendants under the FOIA) (Exemption 6: the names of applicants for promotion or assignment are "similar files" within the meaning of the exemption; protects the names of government employees who applied for supervisory training; public interest in knowing the names of applicants who have not yet been accepted or rejected is slight).

Richardson v. IRS, No. 95-6120 (D. Or. Nov. 3, 1995) (grants defendant's motion to dismiss; plaintiff failed to serve the summons and complaint as directed by the court).

Robinson v. IRS, No. 94-10051, 1995 U.S. Dist. LEXIS 11017 (E.D. Mich. Mar. 23, 1995) (magistrate's recommendation) (grants summary judgment to defendant; after conducting a reasonable search, the agency provided plaintiff with the document in its possession), adopted, 1995 U.S. Dist. LEXIS 10451 (E.D. Mich. July 5, 1995) (at the time of his FOIA request, plaintiff's Alternative Minimum Tax form for 1993 was not yet in defendant's possession; government now has this form and must provide plaintiff with a copy of it).

Rogers v. United States Reconnaissance Office, No. 94-B-2934 (N.D. Ala. Sept. 13, 1995) ("not an agency" defense: Rockwell International and its subsidiary, Collins International Service Company, are not agencies under the FOIA; they do not perform government functions nor do they have any official affiliation with the federal government; they are private organizations that contracted with the government to construct an office building facility that apparently involved significant government oversight), further opinion (N.D. Ala. Sept. 13, 1995) (exhaustion: case dismissed against the Air Force; the Defense Department (DOD) was not obligated to refer plaintiff's FOIA request to the Air Force, when it believed that the National Reconnaissance Office (NRO) was the only component in possession of responsive documents) (mootness: all claims against DOD are dismissed as moot; responsive documents have either been released or referred to the originating agency for direct response) ("exceptional circumstances"/"due diligence": the 226,000 documents identified by NRO in response to plaintiff's FOIA request constitute "exceptional circumstances"; NRO has made "extra efforts" to handle plaintiff's request expeditiously; CIA has demonstrated "exceptional circumstances" based on the backlog created by the volume of FOIA requests it has received in recent years, placing "unanticipated demands" on its FOIA system; CIA has made numerous efforts to improve its efficiency in responding to FOIA requests; CIA and NRO are granted an "indefinite stay," not to exceed 3 years, with instructions to provide interim releases of information) (expedited treatment: plaintiff's need for these records in civil litigation does not qualify him for preferential treatment).

Ruggiero v. FAA, No. 95-20008, 1995 WL 566022 (N.D. Cal. Sept. 21, 1995) (proper party defendant: individuals are not proper party defendants under the FOIA).

Saiyed v. United States Marshals Serv., No. 95-137-A (E.D Va. July 10, 1995) (court lacks jurisdiction because the agency's affidavit demonstrates that an adequate search uncovered no records responsive to plaintiff's FOIA request).

Sheet Metal Workers' Int'l Ass'n Local Union No. 19 v. VA, 940 F. Supp. 712 (E.D. Pa. 1995) (Exemption 6: distinguishing this case from Reporters Committee and DOD v. FLRA, discloses names, home addresses, and wage information from certified payroll records; the "not insubstantial" privacy interests of employees are outweighed by the "strong" public interest that disclosure would serve in ensuring that the government is properly enforcing the Davis-Bacon Act) (attorney fees: plaintiff has substantially prevailed and is entitled to attorney fees).

Snap-Drape, Inc. v. United States, No. 3:94-2036 (N.D. Tex. Aug. 24, 1995) (Exemption 5: the deliberative process privilege protects from disclosure 259 pages in full and 2 pages in part because they are predecisional and deliberative) (Exemption 3 [26 U.S.C. § 6103(a)]: protects tax return information).

Steinberg v. Dep't of Justice, No. 93-2409 (D.D.C. Oct. 31, 1995) (adequacy of agency affidavit: affiant may be the agency employee responsible for supervising the search, rather than the employee who conducted the actual search for records; FBI's search of its Charlotte and New York field offices was inadequate because it did not search their Terrorist Photograph Albums (TPA), as requested by plaintiff; defendant must submit a supplemental affidavit that permits the court to make a determination as to whether these searches were reasonably calculated to uncover all TPA information; with respect to the FBI's search of its Richmond Field Office, the court orders the FBI to locate an agent in Alexandria whom plaintiff alleges has knowledge of an FBI code name for Dan Bar Farm) (discovery in FOIA litigation: defendant has demonstrated that the files plaintiff requested were destroyed in accordance with the FBI's Records Retention Plan and Disposition Schedule) (Exemption 1 [E.O. 12,356]: FBI's affidavit demonstrates that disclosure of foreign government information and information concerning foreign relations or activities would cause serious damage to the national security) (Exemption 2: protects permanent source symbol numbers assigned to confidential sources) (Exemption 7 (threshold): threshold requirement met by records concerning a group of individuals suspected of domestic terrorism) (Exemption 7(A): disclosure of a document relating to an ongoing law enforcement investigation involving domestic security would interfere with or jeopardize the ongoing investigation; the information has not been officially acknowledged or publicly disclosed) (Exemption 7(C): protects the identities of FBI Special Agents and personnel, third parties, subjects of investigative interest, and informants) (Exemption 7(D): applying Landano, finds that the FBI has demonstrated that in its investigation of domestic terrorism, its informants provided information under circumstances which lead to an inference of confidentiality).

Steinberg v. Dep't of the Treasury, No. 93-2348 (D.D.C. Sept. 18, 1995) (adequacy of search: defendant in its affidavit has not demonstrated that the Treasury Enforcement Communication System is the only search system likely to locate the investigative records requested by plaintiff; defendant's motion to dismiss denied).

Tanoue v. IRS, 904 F. Supp. 1161 (D. Haw. 1995) (exhaustion: plaintiff has exhausted his administrative remedies because defendant failed to respond to his FOIA request before this action was filed; IRS "ignore[d] the request" after it concluded that the information sought was third-party "return information" and unreleasable without written consent) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: protects third-party "return information" which includes plaintiff's own statements, because the focus is on the individual to whom the information pertains, not the plaintiff who gave the information; the contents of plaintiff's interview are not a matter of public record, only the fact that plaintiff gave certain information to the IRS is publicly available).

Thompson v. FBI, No. 94-836 (D.D.C. Oct. 30, 1995) (grants defendant's unopposed motion for summary judgment in this FOIA case).

Tidewater Contractors, Inc. v. USDA, No. 95-541, 1995 WL 604112 (D. Or. Oct. 4, 1995) (Exemption 2 "high": does not protect the daily diaries kept by an inspector for the U.S. Forest Service documenting construction work performed by the plaintiff; the diaries do not contain internal instructions to government officials, but rather information that is factual and relates to a particular construction project; release of this information would not reveal defendant's measurements of plaintiff's job performance; diaries must be released).

Tidewater Contractors, Inc. v. USDA, No. 95-541, 1995 U.S. Dist. LEXIS 17487 (D. Or. Nov. 20, 1995) (grants plaintiff's unopposed motion for $7704.81 in attorney fees).

Viacom Int'l, Inc. v. EPA, No. 95-2243, 1995 WL 695098 (E.D. Pa. Nov. 17, 1995) (Exemption 6: where plaintiff seeks names and addresses of occupants of private residences inhabited by pregnant women or children under 6 years of age where EPA conducted a voluntary, interim removal action under Superfund of various carcinogens, wrongly finds that information falls under the category of "similar files" if the personal nature of the information is as highly personal or intimate in nature as that at stake in "personnel or medical" records; erroneously finds that the requested information concerns environmental information about property and not information about people; despite the fact that the EPA has demonstrated that cooperating individuals previously identified have been harassed and threatened, finds that disclosure of a person's address is not as serious an invasion of privacy as would be the disclosure of more personal information; knowing the locations where EPA collected its samples is the only way plaintiff, a potentially responsible party, can know the extent of its liability and the only way that the public knows that the agency is carrying out its administrative responsibilities) (Exemption 7(C): there is not a substantial privacy interest in withholding the requested addresses; disclosure will further the FOIA's purpose of informing citizen's about the operations of its government).

Viotti v. United States Air Force, 902 F. Supp. 1331 (D. Colo. 1995) (FOIA/PA interface: because the records plaintiff seeks are accessible under the Privacy Act, the exemptions from disclosure in the FOIA are irrelevant).

Wiener v. FBI, No. 83-1720 (C.D. Cal. Dec. 6, 1995) (Exemptions 6 and 7(C): discusses exemptions and finds them inapplicable in context of discovery request; orders disclosure of the names and addresses of FBI Special Agents involved in the investigation of John Lennon; information will assist plaintiff in determining whether the investigation was politically motivated, which serves a public interest by providing information about the operation of the FBI in 1972).

Williams v. FBI, No. 95-860 (W.D. Okla. Nov. 6, 1995) ("exceptional circumstances"/"due diligence": in this FOIA case where the plaintiff has waited 2 years for records, finds that the FBI has exercised "due diligence" because of the excessive backlog of FOIA cases, the time-consuming nature of diligently processing such requests and insufficient resources to handle the volume of requests; because the FBI seeks an Open America stay of at least 36 months, dismisses plaintiff's complaint without prejudice) (proper party defendant: the Director of the FBI is not a proper party defendant under the FOIA).

Wright v. IRS, No. 95-0483, 1995 U.S. Dist. LEXIS 16118 (E.D. Cal. Oct. 12, 1995) (grants defendant's motion for summary judgment; after a reasonable search, the IRS has provided plaintiff with all the information it has in response to his FOIA request).

Zuckerman v. FBI, No. 94-6315 (D.N.J. Dec. 5, 1995) (proper party defendant: the FBI is properly named as a party to this suit) ("exceptional circumstances"/"due diligence": the FBI is burdened with FOIA requests beyond any reasonable congressional expectation; the FBI has taken steps to increase FOIA funding, streamline and modernize its procedures, and expedite review; Open America stay granted; FBI must submit a progress report to the court every 180 days).   (posted 11/22/02)

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