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Compiled FOIA Decisions (Received January-June 1999)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of January through June 1999. OIP is preparing additional compilations of decisions received during previous months and years.

Appeals Courts

August v. FBI, No. 98-5340 (D.C. Cir. Mar. 2, 1999) (remanded on the court's own motion so that the FBI can supplement the record to justify its Exemption 7(A) claims, particularly with respect to how law enforcement proceedings would be harmed by disclosure of "witnesses' identities or evidentiary material" which may have been disclosed during requester's trial, even if the case must be retried as a result of the appeal of his conviction).

Calon v. Apfel, No. 98-3190, 1999 WL 415340 (10th Cir. Apr. 26, 1999) (unpublished order), 185 F.3d 873 (10th Cir. 1999) (table cite) (exhaustion: district court erred in finding that plaintiff had not exhausted his administrative remedies; liberally construing his pleadings, plaintiff's allegation that he exhausted his administrative remedies is sufficient to withstand summary judgment dismissal).

Chicago Tribune Co. v. HHS, No. 99-2162 (7th Cir. June 9, 1999) (denies agency contractor's emergency motion for a stay of the district court's disclosure order).

Clarkson v. Greenspan, No. 98-5349, 1999 WL 229017 (D.C. Cir. Mar. 2, 1999) (summary affirmance granted in this FOIA action where the district court found that the agency properly withheld information under Exemptions 4, 5, and 8 and "personal" records).

Davin v. Dep't of Justice, No. 98-3342 (3d Cir. Jan. 27, 1999) (unpublished memorandum), 176 F.3d 471 (3d Cir. 1999) (table cite) (Vaughn Index: affidavits submitted by the FBI were sufficiently detailed and provided the district court with an adequate factual basis to reach its decision) (Exemption 7 (threshold): threshold requirement met by FBI's Workers Alliance of America investigation, because at the time there was a "real concern" that the organization had been infiltrated by the Communist Party and was engaging in illegal activities) (Exemption 7(D): FBI affidavits and Manuals of Rules and Regulations establish that during the relevant time period it was the FBI's practice to assign code names or source symbol numbers to sources given express promises of confidentiality; it is reasonable to infer that sources, including financial institutions and local or state bureaus or agencies, were routinely given implied promises of confidentiality because the 1946 FBI Manual provides that the identities of these sources should be protected).

Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) (waiver and Exemption 3 [50 U.S.C. § 403-3(c)(6)]: CIA properly refused to confirm or deny the existence of records relating to plaintiff's claimed employment with the CIA, even though the Office of Personnel Management purportedly had confirmed plaintiff's status as a former employee of the CIA).

Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (personal records: agency's affidavit did not demonstrate that 8 documents were "personal notes" of agency employees rather then "agency records"; vacates the district court's ruling and remands for further development of the record in the form of affidavits by the actual authors of these documents detailing how the notes were used or intended to be used) (Exemption 5: the deliberative process privilege protects an e-mail between HUD employees discussing an investigation into plaintiff's alleged improprieties because it is predecisional, directly related to 3 agency decisions, and had a direct bearing on the exercise of a policy judgment; letter from a New York City Council Member to HUD does not meet the threshold requirement because the New York City Council is not an "agency" for purposes of the FOIA; because the letter as a whole, as well as the redacted portions, reports matters that were aired at a public hearing, it is not protected by the deliberative process privilege; HUD must produce this letter in its entirety) (Exemption 7(C): agency has not demonstrated that the disclosure of portions of 5 documents would reveal the sources of the documents from the information contained in the documents and, therefore, lead to an invasion of privacy) (Exemption 7(D): while agency has demonstrated that sources were given implied promises of confidentiality, agency has not demonstrated that the release of portions of 5 documents would reveal the identities of the documents' sources; remanded for further development of the record) (adequacy of search: agency has conducted a search reasonably calculated to uncover all records responsive to plaintiff's FOIA request, even though some documents were uncovered after a second, more exhaustive search).

Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) (adequacy of request: because plaintiff did not respond to the FBI's request for clarification as to whether he wanted cross-referenced files until after he filed his amended complaint, the cross-referenced files are not properly within the scope of the present litigation; it was reasonable for the FBI to ask plaintiff to clarify the precise scope of his request in light of the burdens this task would have imposed) (Exemption 1 [E.O. 12,356]: an agency's decision to withhold information under the FOIA is reviewed under the executive order upon which the classification decisions were made; the FBI's coded Exemption 1 Vaughn Index is insufficient, conclusory, and lacks reasonable specificity about information withheld from documents concerning the FBI's surveillance of the unionization of the meatpacking industry from 1933 to 1954; on remand, the district court should make itemized findings with a sufficient level of detail as to permit effective de novo review) (Exemption 7 (threshold): all records of investigations compiled by the FBI are for law enforcement purposes) (Exemption 7(C): even though the FBI's Vaughn for Exemption 7(C) data "operate[s] at a level of generality comparable to that of the Exemption 1 Vaughn, it is sufficient because greater detail is unnecessary to understand the nature of the information sought to be protected"; protects information that would identify FBI employees, other government employees, nonfederal law enforcement officers, informants, and subjects of investigative interest) (Exemption 7(D): FBI's affidavit does not demonstrate that sources were given express promises of confidentiality; on remand, the FBI may supplement its affidavit to demonstrate that express promises were given, or it may argue that these sources had implied promises of confidentiality; the FBI's affidavit demonstrates that informants and local and foreign law enforcement agencies were given implied promises of confidentiality because of the conditions that existed in the meatpacking industry at that time).

Hoyos v. United States, No. 98-4178 (11th Cir. Feb. 1, 1999) (per curiam) (unpublished order), 172 F.3d 882 (11th Cir. 1999) (table cite) (Exemption 6: affirms district court ruling; exemption protects the identities of federal employees who had been involuntarily removed or discharged from employment at the VA because disclosure would be a "clearly unwarranted invasion of personal privacy").

Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., No. 98-9604, 1999 WL 464984 (2d Cir. June 22, 1999) (unpublished order), 182 F.3d 900 (2d Cir. 1999) (table cite) (affirms district court's ruling that the defendant had conducted a reasonable search, that an agency official's notes were "personal" and not "agency" records, and that financial information was properly withheld under Exemption 4).

Johnson v. DEA, No. 98-5468 (D.C. Cir. Mar. 2, 1999) (denies government's motion for summary affirmance; DEA's affidavits do not provide a sufficient basis to justify the district court's award of summary judgment as to Exemptions 2, 7, 7(C), 7(D), and 7(F), and the district court did not make a finding as to segregability).

Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999) (Exemption 6: release of the names of living individuals with unclaimed deposits at failed banks will not shed light on the agency's performance of its statutory duties, because release will not show how much money will be recovered by the FDIC on termination of the receiverships or how the agency is preparing for the termination of the receiverships; individuals whom the government seeks to protect have a "significant pecuniary interest" in the release of the requested information; names may be released under the FOIA, with 2 limitations: the list of names of unclaimed depositors may not provide the corresponding unclaimed dollar amount and the district court must determine the dollar amount below which an individual's privacy interest should be deemed to outweigh his or her interest in discovering the money).

McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999) ("Reverse" FOIA/Exemption 4: assuming that National Parks applies, tersely finds that disclosure of satellite launch pricing information for certain contract line items would cause competitive harm because it would permit its customers to "bargain down ('ratchet down') its prices more effectively" and it would help its competitors to underbid it; releasing the information can be seen as "contrary to the Trade Secrets Act, or as arbitrary and capricious for its illogical application of the competitive harm test").

Mendoza v. Sec'y of the Army, No. 98-5454, 1999 WL 515478 (D.C. Cir. June 23, 1999) (unpublished order), 194 F.3d 174 (D.C. Cir. 1999) (table cite) (affirms district court's ruling; agency demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request).

Niagara Mohawk Power Corp. v. DOE, 169 F.3d 16 (D.C. Cir. 1999) (Exemption 4: district court improperly found that DOE's affidavits supported its claim that release of information collected on forms from power- generating facilities would impair its ability to collect such information in the future, because this information is secured under compulsion; even assuming that DOE met its initial burden of showing that these facilities were engaged in competition, plaintiff's response is adequate to raise genuine issues of material fact regarding competitive harm; vacated and remanded for further district court consideration of both exemption issues and whether the disputed information is now substantially in public domain).

O'Kane v. United States Customs Serv., 169 F.3d 1308 (11th Cir. 1999) (Exemption 7(C): affirms district court order protecting from disclosure the home addresses of individuals whose possessions have been seized by the government and are subject to forfeiture proceedings because the individuals' rights to privacy outweigh the public interest in disclosure; fact that other agencies disclose names and addresses of individuals accused of crimes to newspapers is "irrelevant to a FOIA privacy exemption analysis"; the 1996 FOIA Amendments "merely clarified that electronic records are subject to FOIA; they did not narrow FOIA's privacy exclusions or invalidate the private-public interest balancing test"; those who have violated the law have a substantial privacy interest in their criminal histories).

Schleeper v. Dep't of Justice, Nos. 98-5229, 98-5322 (D.C. Cir. Apr. 30, 1999) (grants government's motion for summary affirmance; agency conducted a reasonable search in response to plaintiff's FOIA request).

Schwarz v. CIA, No. 99-4016, 1999 WL 330237 (10th Cir. May 26, 1999) (unpublished order), 182 F.3d 933 (10th Cir. 1999) (table cite) (affirms district court's ruling; an examination of plaintiff's pleadings reveals that "they are purely frivolous and follow a recurring pattern of similarly unsuccessful FOIA actions").

Sinito v. Dep't of Justice, 176 F.3d 512 (D.C. Cir. 1999) (mootness: "the purposes of the FOIA may be advanced" by permitting a FOIA cause of action to survive the death of the original requester; remands to district court to determine whether the deceased requester's son is the proper party for substitution).

Sorrells v. Fed. Mine Safety & Health Admin., No. 98-5549, 1999 WL 282704 (6th Cir. Apr. 26, 1999) (unpublished order), 181 F.3d 103 (6th Cir. 1999) (table cite) (vacates district court order dismissing this case, because the record is insufficient; remands for further proceedings).

Tolotti v. Comm'r, No. 97-16107, 1999 WL 97278 (9th Cir. Feb. 22, 1999) (unpublished memorandum), 172 F.3d 59 (9th Cir. 1999) (table cite) (district court misconstrued the nature of the government's motion when it dismissed this FOIA action for failure to prosecute; vacated and remanded).

Trans-Pac. Policing Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999) (Exemption 4: district court did not make a finding as to whether 10-digit Harmonized Tariff Numbers (very specific official characterizations of a ship's cargo provided under penalty of law) linked to a specific shipment of goods could be segregated by disclosing only 4 or 6 digits of the 10 digits without causing competitive harm to the importers; while plaintiff did not raise the issue of segregability before reaching the appellate court, the district court (and, by extension, the agency) "had an affirmative duty to consider the segregability issue sua sponte"; plaintiff's failure to raise segregability was not a "knowing waiver of that argument"; because the agency has nothing to gain by requiring plaintiff to submit a new FOIA request, and as a matter of judicial economy, court exercises its broad remedial authority and remands this case to the district court for a finding on the issue of segregability).

United States v. Spain, No. 98-2009, 1999 WL 96415 (4th Cir. Feb. 23, 1999) (unpublished order), 172 F.3d 865 (4th Cir. 1999) (table cite) ("not an agency" defense: courts of the United States are not "agencies" for purposes of the FOIA).

Valencia-Lucena v. United States Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (duty to search: agency did not conduct a reasonable search for pages from the logbook of the Coast Guard cutter that seized certain containers of drugs because it did not contact the ship's captain about what might have happened to the logbook (which evidently had been in captain's possession at the requester's criminal trial) and did not search the agency's federal records center in Georgia).

In re Wathey, No. 98-1589, 1999 WL 151417 (D.C. Cir. Feb. 26, 1999) (per curiam) (jurisdiction: a challenge to the handling of plaintiff's FOIA request must be brought in the district court, rather than the court of appeals, in the first instance).

Weatherhead v. United States, No. 96-36260 (9th Cir. Feb. 26, 1999) (petition for rehearing en banc denied in this FOIA case where the appeals court previously ruled under Exemption 1 that disclosure of a letter relating to the extradition and prosecution of two women would not damage relations between the United States and the United Kingdom and, therefore, would not harm national security).

Willis v. FBI, No. 98-5071, 1999 WL 236891 (D.C. Cir. Mar. 19, 1999) (unpublished order), 194 F.3d 175 (D.C. Cir. 1999) (table cite) (Exemption 3 [18 U.S.C. §§ 2510-20]: protects 2 electronic surveillance tapes in their entireties) (on remand, the court must decide whether the criteria set forth in Poindexter v. FBI for appointment of counsel under 42 U.S.C. § 2000e-5(f)(1) are appropriate for FOIA cases).

Willis v. FBI, No. 98-5071 (D.C. Cir. May 19, 1999) (plaintiff's petition for rehearing en banc denied in this FOIA case where this court previously ruled that Exemption 3 [18 U.S.C. §§ 2510-20] protects 2 electronic surveillance tapes in their entireties).

District Courts

Accuracy in Media v. FBI, No. 97-2107 (D.D.C. Mar. 31, 1999) (Exemptions 2 and 7(D): protect informant symbol numbers and "informant information" because if such information were released an informant's identity could be revealed and it "would seriously infringe on the FBI's ability to conduct thorough and effective investigations") (Exemption 7(A): disclosure of information would interfere with the Independent Counsel's ongoing investigation into Vince Foster's death because it would alter a witness's initial reactions to the evidence) (Exemption 7(C): protects the identities of FBI Special Agents and personnel staff, informants, third parties, non-FBI law enforcement officers and employees, and local police department employees) (in camera inspection: in camera inspection is unnecessary because defendant's affidavits are adequate and the plaintiff has not offered any evidence suggesting the need for in camera inspection) (adequacy of search: defendant has conducted a reasonable search in response to plaintiff's FOIA request with 2 minor exceptions--the FBI made no mention of the photographs taken at the scene of Mr. Foster's death and no mention of a fingerprint card, the existence of both of which was referenced elsewhere; case is remanded to the FBI for further search with reference to these 2 items).

Adams v. FBI, No. 97-2861 (D.D.C. Mar. 3, 1999) (Exemption 7 (threshold): requirement met by investigation launched by the FBI in response to threatening letters received from plaintiff) (Exemption 7(C): protects the identities of law enforcement officers and third parties) (Exemption 7(D): protects information provided by and the identities of informants who provided information under either express or implied promises of confidentiality; no segregable portions exist) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request; if plaintiff wanted the FBI to search for records under likely variations of his name, he should have so requested in his initial request letter).

Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d 32 (D.D.C. 1999) (Exemption 6: disclosure of the names and addresses of individuals who voluntarily submitted written comments to defendant's proposed rulemaking regarding grizzly bears would not be a "clearly unwarranted invasion of personal privacy"; the public interest in disclosure outweighs the commenters' privacy interests, if any exist; disclosure "serves a critical public function" by enabling the public to learn about the government's rulemaking process and ensuring government accountability; government's decision to disclose the names and addresses of institutional commenters and to withhold the names and addresses of individual commenters is "unusual" and "arbitrary").

Anderson v. CIA, No. 94-2032 (D.D.C. Mar. 31, 1999) (Exemption 1: agency has demonstrated that further segregation and release of information concerning plaintiff's 7-year captivity in Lebanon would compromise national security; agency adequately described withheld information) (Exemption 5: the deliberative process privilege protects a telegram from the American Embassy in Algiers because disclosure would inhibit candid internal discussions) (Exemption 7(E): orders in camera inspection of 5 documents withheld under this exemption because agency's affidavit "does nothing more than parrot the language of the statute").

Anderson v. Dep't of Justice, No. 95-1880, 1999 U.S. Dist. LEXIS 5048 (D.D.C. Apr. 12, 1999) (Exemption 3 [18 U.S.C. § 3153(c)(1) and Rule 6(e)]: protect a D.C. Metropolitan Police Lineup Record and the names of witnesses and the grand jury transcript; [18 U.S.C. § 4208]: orders disclosure of plaintiff's Presentence Investigation Report with the names of confidential sources, diagnostic opinions, and "possibly harmful information" redacted) (Exemption 5: the attorney work-product and the deliberative process privileges protect AUSA's trial preparation materials, including jury panel sheets containing handwritten comments and notes because they relate to trial preparation and disclosure would reveal predecisional communications among government personnel) (Exemptions 7(D) and 5: Exemption 7(D) and the attorney work-product privilege protect the names of confidential sources and the information they provided that was written by Assistant United States Attorney (AUSA) and is contained in the Police Lineup Record) (in camera inspection: orders in camera inspection of 2 pretrial services reports) (Exemption 7 (threshold): requirement met by records compiled in order to prosecute plaintiff for violations of federal statutes prohibiting armed bank robbery and related criminal conduct) (Exemption 7(C): protects the identities of local law enforcement personnel, the grand jury foreperson, members of the jury pool, potential and actual witnesses, and government employees).

Anderson v. Dep't of Justice, No. 95-1888, 1999 U.S. Dist. LEXIS 4731 (D.D.C. Mar. 31, 1999) (Exemption 7(C): protects the identities of 3 government witnesses who participated in a lineup procedure and the names, addresses, and other identifying information about third parties who were implicated, involved, or associated with plaintiff) (Exemption 7(F): protects the names of government witnesses because plaintiff has a history of "carrying firearms while committing criminal acts" and he is housed in a federal facility that is in close proximity to the witnesses).

Anderson v. Dep't of Treasury, No. 98-1112, 1999 U.S. Dist. LEXIS 20877 (W.D. Tenn. Mar. 24, 1999) (Exemptions 3 [26 U.S.C. § 6103(c)] and 7(A): disclosure of a schedule of checks written by plaintiff would seriously impair tax administration in an ongoing criminal investigation and interfere with law enforcement proceedings, because it would reveal the scope and direction of the IRS investigation and the identities of potential witnesses) (waiver of exemption: the fact that an IRS agent revealed the schedule of checks to plaintiff and her attorney does not constitute waiver of FOIA exemptions).

Animal Legal Def. Fund v. Dep't of the Air Force, 44 F. Supp. 2d 295 (D.D.C. 1999) (Exemption 5: agency has not demonstrated that proposals concerning the divestment of chimpanzees are protected by the deliberative process privilege because it has "utterly failed" to specify the role played by each withheld document in the course of developing the divestment policy and it has not described any of the documents; defendant must submit "reasonably specific" statements concerning the segregability of each document withheld; agency has made only conclusory assertions to justify withholding information under the attorney work-product and attorney-client privileges) (Exemption 4: agency has not shown that the proposals contain "commercial and financial information," that they were submitted voluntarily, or that such information is not customarily released to the public) (in camera inspection: denies plaintiff's request for in camera inspection and orders agency to submit a more detailed affidavit and Vaughn Index).

Arabian Shield Dev. Co. v. CIA, No. 3-98-0624, 1999 U.S. Dist. LEXIS 2379 (N.D. Tex. Feb. 26, 1999) (Exemption 1 [E.O. 12,958]: CIA has properly classified information concerning a petroleum production sharing agreement and has properly refused to confirm or deny the existence of such documents; national security would be harmed by the release of information concerning intelligence activities, intelligence sources and methods, and foreign activities of the United States) (Exemption 3 [50 U.S.C. § 403-3(c)(6)]: protects information concerning agency's intelligence-gathering activities).

Ayers v. NASA, No. 98-1815 (D.D.C. Feb. 22, 1999) (exhaustion: case dismissed because plaintiff did not file an administrative appeal of the initial partial denial of her FOIA request).

Bennett v. DEA, 55 F. Supp. 2d 36 (D.D.C. 1999) (duty to search: DEA has not demonstrated that it conducted a reasonable search for records pertaining to court appearances of a named DEA informant and administrative sanctions imposed on this informant, because simply stating that "any and all records" were searched is insufficient; plaintiff only speculates that records exist concerning the informant's tax evasion) (Exemption 7(C): in this case where plaintiff has uncovered evidence of "extensive government misconduct" in relation to the highest paid informant in DEA history, finds that the informant's privacy interests in his rap sheet and payment records are outweighed by the public interest in shedding light on the activities of DEA, which employed this informant despite his criminal history; by choosing to have "made a career" out of serving as a government informant and by testifying about his activities and earnings in open court, this informant has "chosen to give up his personal privacy interests to this information") (Exemptions 7(C) and 7(F): protect the identities of DEA Special Agents because disclosure would be an "unwarranted invasion of their personal privacy," would disrupt their investigations, and would threaten their lives).

Blackwell v. EEOC, No. 2:98-38, 1999 U.S. Dist. LEXIS 3708 (E.D.N.C. Feb. 12, 1999) (exhaustion: plaintiff has not exhausted his administrative remedies because his request was not clearly a request for information under the FOIA, it was not sent to the regional attorney in the appropriate EEOC district office, and because the agency complied with the applicable time limits once the proper EEOC official received this request; this case is not properly before the court and plaintiff must submit an administrative appeal of the partial denial of his request).

Bricker v. FBI, No. 97-2742 (D.D.C. Mar. 26, 1999) (duty to search: FBI conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request; the FBI has accounted for all the pages originally designated as responsive to plaintiff's request) (Exemption 7(C): categorically protects names, telephone numbers, Social Security numbers, and similar identifying information concerning FBI agents, Assistant United States Attorneys, witnesses, informants, and subjects of investigative interest because the information is not "necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal" activity).

Bricker v. FBI, 54 F. Supp. 2d 1 (D.D.C. 1999) (attorney fees: attorney fees denied; plaintiff has not substantially prevailed; this lawsuit did not cause the release of the requested information, although it may have "hurried" it along; the 2½-year delay in disclosure was the result of "ordinary administrative backlog").

Ctr. to Prevent Handgun Violence v. Dep't of the Treasury, 49 F. Supp. 2d 3 (D.D.C. 1999) (attorney fees: plaintiff has substantially prevailed in this action because the lawsuit caused the information to be released and the fee waiver to be granted; there is a public benefit in the release of information concerning how BATF regulates multiple-handgun sales and how those sales affect public safety; granting this request for attorney fees encourages FOIA suits that benefit the public interest and serves as compensation for the agency's "unreasonable obduracy"; plaintiff's fee request is reasonable; work done before a complaint is filed is compensable; grants attorney fees and costs in the amount of $180,266.63).

Chasse v. Dep't of Justice, Nos. 1:98-207, 1:98-208 (D. Vt. Jan. 14, 1999) (magistrate's recommendation) (Exemption 7(C): in this wrongful disclosure Privacy Act case, finds that disclosure by the IG was required under the FOIA because the exemption does not protect a report on alleged actions by high-level INS officials in deceiving members of a Congressional Task Force during a fact-finding visit; report reflects the core purpose of the FOIA of exposing possible agency wrongdoing and the privacy interests are low because the plaintiffs are high-level public officials), adopted (D. Vt. Feb. 9, 1999).

Chicago Tribune Co. v. HHS, No. 95 C 3917, 1999 WL 299875 (N.D. Ill. May 4, 1999) ("not an agency record" defense: enforces judgment against government contractor who was not a named party in FOIA litigation, ordering the company to produce documents within the scope of this court's March 28, 1997 order, because when the contractor generated the requested documents it was acting under the defendant's control and for its benefit).

Chicago Tribune Co. v. HHS, No. 95 C 3917 (N.D. Ill. May 21, 1999) (denies agency contractor's motion for a stay of this court's March 28, 1997 disclosure order; defendant will not prevail on the merits of its appeal; plaintiff may move to have defendant show cause why agency contractor should not be held in contempt).

Chin v. Dep't of the Air Force, No. 97-2176 (W.D. La. June 24, 1999) (Exemption 6: in a case where plaintiff sought documents concerning all investigated allegations of fraternization in the Air Force, balancing the private and public interests at stake, finds that the agency must release the document redacting only information that would identify the subjects of the requested record; agency may redact all proper names, ranks, job descriptions, dates, places, and identifying numbers; agency must disclose general allegations and the disciplinary actions taken as a result; in a case where plaintiff requested information concerning a specific allegation of fraternization concerning a named individual, the exemption protects the entire document because the personal interests in nondisclosure clearly outweigh the public interest; the fact that some of these events are known to members of the public is insufficient to justify dissemination into the public domain).

Curcio v. FBI, No. 89-0941 (D.D.C. Mar. 8, 1999) (grants government's motion for summary judgment and awards costs to the government).

Dayton Newspapers v. Dep't of the Air Force, 107 F. Supp. 2d 912 (S.D. Ohio 1999) (Exemption 3 [10 U.S.C. § 1102(a)]: protects 2 databases that constitute medical assurance records, regardless of whether the contents originated within or outside of a medical quality assurance program) (Exemption 6: agency must disclose settlement figures for malpractice claims; the mere possibility that factual information might be pieced together by a "diligent researcher" and lead to personal identification does not exempt such information from disclosure) (Exemption 2 "high": does not protect settlement figures for malpractice claims, even if disclosure "would compromise the government's bargaining position," because they are not "related solely to the internal personnel rules and practices" of the agency).

Dayton Newspapers, Inc. v. Dep't of the Navy, 109 F. Supp. 2d 768 (S.D. Ohio 1999) (Exemption 7(C): in this case where the plaintiff sought questionnaires completed by military court-martial members (whom the court has found to be analogous to civilian jurors), the court notes that the First Amendment right of access to public trials requires that voir dire proceedings be open to the public; while the First Amendment has a broader presumption of openness than the FOIA, plaintiff has invoked the FOIA to obtain this information; applying the FOIA, and upon in camera inspection, finds that the information contained in the questionnaires is slightly personal and outweighs the minimal public interest in disclosure; exemption protects personal information such as name, rank, age, marital status, and duty station, and protects answers to questions such as level of education and whether the individual has ever been the victim of a crime).

Eison v. Kallstrom, 75 F. Supp. 2d 113 (S.D.N.Y. 1999) (liberally construing pro se plaintiff's filings, allows plaintiff to file an amended complaint to cover the adequacy of defendant's response to plaintiff's FOIA request).

EEOC v. City of Milwaukee, 54 F. Supp. 2d 885 (E.D. Wis. 1999) (Exemption 3 [42 U.S.C. § 2000e-5(b), § 2000e-8(e)]: in dicta, finds that upon making a FOIA request a charging party would not necessarily gain access to documents in his investigatory file because of the narrow circumstances under which such a party is permitted access under this Exemption 3 statute).

Gilbert v. United States Parole Comm'n, No. 97-2629 (D.D.C. Mar. 23, 1999) (duty to search: agency has sufficiently described the general structure of its recordkeeping system to enable the court to dismiss this case because plaintiff's FOIA request seeking specific information on inmates with a history of drug abuse would require agency to conduct a file-by-file search of over 100,000 files, thus imposing an "unreasonable burden" on the agency).

Goff v. Dillon, No. 98-2042, 1999 WL 163066 (S.D.N.Y. Mar. 24, 1999) (proper party defendant: individuals are not proper party defendants under the FOIA) (complaint dismissed because plaintiff has received all documents to which he is entitled, except those which were properly withheld under Exemption 7(C)).

Grecco v. Dep't of Justice, No. 97-0419 (D.D.C. Apr. 1, 1999) (exhaustion: plaintiff has exhausted his administrative remedies with respect to his first FOIA request; plaintiff has not exhausted his administrative remedies with respect to his second FOIA request because he has not paid the fees accrued nor asked for a fee waiver) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemptions 6 and 7(C): protect the name and telephone number of a lower-level government employee) (Exemption 3 [Rule 6(e)]: protects "specific" grand jury testimony) (Exemption 5: the attorney work-product privilege protects documents prepared by the agency in determining whether to appeal a lower court decision; without specification, finds that the deliberative process privilege protects the documents at issue and that these documents cannot be further segregated).

Heeney v. FDA, No. 97-5461, 1999 U.S. Dist. LEXIS 23365 (C.D. Cal. Mar. 16, 1999) (Vaughn Index: agency's coded index sufficiently describes information withheld under Exemption 4 to enable the court to review its withholdings) (Exemption 4: protects information concerning a heart electrode catheter distributed by the submitter; the name of the original catheter and design and testing information and materials used in the construction of the original and existing catheters are trade secrets; disclosure of the identity of the company that manufactures the existing catheter and the company that manufactured the original catheter would cause competitive harm and might impair the ability of the FDA to obtain similar information in the future; plaintiff has not shown that prior marketing activity has waived the privilege, that these documents had been previously officially disclosed, nor that patented information or information in an FDA application file are in the public domain; the fact that previously released documents contain information that is also reflected in the withheld documents does not waive the privilege; consistent with its regulation, agency must disclose the names of company employees who conducted various tests and studies on the medical device, and it must also disclose the dates on which the company requested extensions of time to provide the FDA with information, and the length of the extensions).

Hoffman v. FBI, No. 98-1733-A (W.D. Okla. Apr. 16, 1999) (Exemption 7(A): prospective criminal enforcement proceeding in state court supports the exemption; the FBI has not presented a sufficient factual basis for its decision to withhold all documents concerning the April 1995 bombing of a federal building in Oklahoma City; the declaration "gives no hint that anyone at the FBI actually reviewed its file with an eye toward possible release or made any effort to categorize the documents"; FBI's motion for summary judgment denied).

Hosp. & Physician Publ'g, Inc. v. DOD, No. 98-4117, 1999 WL 33582100 (S.D. Ill. June 22, 1999) (fee waiver: plaintiff qualifies as a "representative of the news media" when it currently publishes only medical books and manuals, but plans to gather medical information, edit it into a distinctive work, and disseminate it via free news releases; plaintiff represents that it will not use this information for commercial purposes; until the court is presented with evidence that plaintiff is acting other than as it represents, plaintiff is entitled to news media status).

Jefferson v. FCC, No. 99-0018 (D.D.C. June 15, 1999) (duty to search: agency conducted a reasonable search for records in response to plaintiff's FOIA request).

Kempker-Cloyd v. Dep't of Justice, No. 5:97-253, 1999 U.S. Dist. LEXIS 4813 (W.D. Mich. Mar. 12, 1999) (adequacy of search: while agency's initial search efforts were incomplete and untimely, plaintiff has been provided with the documents to which she is entitled) (sanctions: even though agency did not act in good faith, the record does not reflect arbitrary and capricious behavior).

Lissner v. United States Customs Serv., No. 98-7438 (C.D. Cal. June 15, 1999) (proper party defendant: the proper party defendant in FOIA cases is the agency and not individual employees) (Exemption 7(C): protects the details and circumstances of the Customs Service's arrest of 2 local police officers for possession of a controlled substance; neither the 1996 FOIA amendments, the legislative history, nor subsequent case law significantly enlarge the scope of the public interest served by the FOIA beyond the "core purpose" articulated in Reporters Committee of "shedding light on the agency's performance of its statutory duties" and allowing citizens to know "what their government is up to"; the conduct of state and local law enforcement officials is not a recognized public interest under the FOIA; on in camera inspection, finds that there is no evidence that there was wrongdoing on the part of Customs officials; the local police officers have "ample and significant" privacy interests at stake, even though certain information about them is in the public domain).

Loomis v. DOE, No. 96-149, 1999 WL 33541935 (N.D.N.Y. Mar. 9, 1999) (adequacy of search: defendant has not demonstrated that it conducted a search reasonably calculated to uncover certain cash receipts) (Exemption 1 [E.O. 12,958]: agency affidavit demonstrates that containment layout plan for a nuclear site and a manual concerning radiological controls were properly classified; disclosure of unclassified elements of the manual, when taken in the aggregate, may reveal information about the design and operation of nuclear-powered ships).

Mace v. EEOC, 37 F. Supp. 2d 1144 (E.D. Mo. 1999) (jurisdiction: citing the "Department of Justice Guide to the Freedom of Information Act," holds that where agency has produced all documents responsive to plaintiff's FOIA request, except one, plaintiff's claim sufficiently alleges a claim under the FOIA to invoke the court's jurisdiction) (adequacy of search: agency has conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request; plaintiff's conclusory allegation that additional records exist does not raise an issue of fact precluding summary judgment) (in camera inspection: in camera inspection is unnecessary because agency's affidavits are sufficiently detailed) (Exemption 5: the deliberative process protects a one-page inter-office memorandum written by an EEOC investigator assigned to plaintiff's discrimination charge and addressed to the EEOC District Director; memorandum contained recommendations, a factual distillation, the investigator's comments and opinions, and was not incorporated into plaintiff's Dismissal and Notice of Rights).

Malone v. Freeh, No. 97-3043 (D.D.C. Mar. 30, 1999) (duty to search: agency conducted a reasonable search in response to plaintiff's FOIA request) (attorney fees: grants plaintiff $150 in costs because agency did not respond to plaintiff's FOIA request for over a year and not until plaintiff had filed this action).

MAXXAM, Inc. v. FDIC, No. 98-0989, 1999 WL 33912624 (D.D.C. Jan. 21, 1999) (adequacy of request: a party whose name does not appear on a FOIA request for records may not sue in federal district court because it "has not administratively asserted a right to receive them in the first place") (exhaustion: plaintiff's attorney constructively exhausted his administrative remedies because the agency did not respond to his FOIA request within the statutory 10-day period; because plaintiff's attorney is not a party to this lawsuit, defendant's May 7, 1998 response must be viewed as preceding the commencement of a lawsuit by the "requester" and plaintiff must now file an administrative appeal of its FOIA request).

McCall v. United States Marshals Serv., 36 F. Supp. 2d 3 (D.D.C. 1999) (exhaustion: a plaintiff's option to proceed to court without exhausting his administrative remedies terminates when the agency responds before plaintiff goes to court; plaintiff filed his complaint and motion to proceed in forma pauperis on April 17, 1997 and the defendant did not respond until April 23; plaintiff has exhausted his administrative remedies) (Exemption 7 (threshold): escorting federal prisoners within a federal courthouse is a law enforcement activity) (Exemption 7(C): protects the identities of two deputy marshals who transported plaintiff from the third floor to the fourth floor of a federal courthouse, because the public interest in disclosure is "insignificant" and does not outweigh the privacy interests of the marshals).

Melendez-Colon v. United States, 56 F. Supp. 2d 142 (D.P.R. 1999) (waiver: the deliberative process privilege does not prevent discovery of a report in an accident investigation when that report was previously released under the FOIA to a third party).

Mueller v. United States Navy, No. 98-8268 (C.D. Cal. Mar. 24, 1999) (case dismissed; plaintiff's claims with respect to his April 11, 1997 FOIA request are moot; plaintiff has failed to exhaust his administrative remedies with respect to his remaining FOIA requests).

Muir v. United States, No. 95-1791, 1999 U.S. Dist. LEXIS 4269 (D. Ariz. Mar. 9, 1999) (duty to search: agency's affidavit demonstrates that it conducted a reasonable search in response to plaintiff's FOIA request).

Nat'l Veterans Legal Servs. Program v. VA, No. 96-1740 (D.D.C. Oct. 8, 1998) (magistrate's recommendation) (attorney fees: court will not deny or reduce the award of fees for fees litigation where plaintiff pursued this claim after being granted its original fee request; if the fees for fees litigation award were reduced in proportion to plaintiff's success in the fees litigation, with an additional reduction for a claim of reasonable hours expended, the combination would reduce the fees to an amount below what is "reasonable"; reduces plaintiff's claim to 49.25 hours by attorneys and 28 hours by a law clerk; awards attorney fees and costs in the amount of $18,577.02), adopted in large part (D.D.C. Apr. 13, 1999) (attorney fees: court will not deny or reduce the award of fees for fees litigation where plaintiff pursued this claim after being granted its original fee request; reduces plaintiff's claim to 54½ hours by attorneys and 28 hours by a law clerk, awarding lodestar attorney fees in the amount of $18,767.50; court will not reduce this lodestar amount because although plaintiff received only 66.6% of the fees it requested, the amount was reduced because the hours expended on the litigation were not reasonable, not because plaintiff had been only partially successful in the underlying litigation; grants plaintiff $1,463.27 in costs; awards attorney fees and costs in the amount of $20,230.77).

Neely v. FBI, No. 7:97-00786 (W.D. Va. Jan. 12, 1999) (Exemption 7(D): applying Landano, finds that the FBI affidavit is insufficient because it does not specify why particular information is being withheld) (in camera inspection: expressing concern that the "FBI has unofficially adopted a policy of non-disclosure," orders in camera inspection of the withheld records due to the "generality of the FBI's affidavit"; despite defendant's argument that FOIA is an inappropriate discovery tool, orders the FBI to file the documents (comprising 1386 pages) and affidavits with the court by January 22, 1999, because plaintiff may need the information in his new trial in his criminal case; FBI will be held in contempt and face a penalty of $500 a day until production is complete) (discovery in FOIA litigation: because of confusion as to whether plaintiff was representing himself or whether he was represented by counsel, denies plaintiff's discovery requests which were made after the discovery cut-off deadline).

Neely v. FBI, No. 7:97-0786 (W.D. Va. Jan. 25, 1999) (on in camera inspection, because of the "wholesale inappropriate" assertion of Exemptions 7(C) and 7(D), orders that the entire file, unsealed and unredacted, be made available in the Clerk's Office for copying and inspection on January 29, 1999).

OSHA Data/C.I.H., Inc. v. Dep't of Labor, 105 F. Supp. 2d 359 (D.N.J. 1999) (fees: Counts One and Two of the Complaint are dismissed because plaintiff is unable to pay the fees associated with his FOIA request) (mootness: Counts Three and Four are dismissed as moot because plaintiff has received the documents requested and it cannot prove that future information requests will be denied).

Patterson v. Dep't of Justice, No. 96-0095 (D.D.C. Mar. 23, 1999) (exhaustion: case dismissed; plaintiff has not exhausted his administrative remedies because he has not paid the copying fees associated with his FOIA request (even though he did offer to pay on an installment plan over 9 months), nor has he appealed the denial of his request for a fee waiver).

Pentagen Techs. Int'l v. United States, No. 98 CIV. 4831, 1999 WL 378345 (S.D.N.Y. June 9, 1999) (Exemption 5: the attorney work-product privilege protects 3 pages of an attorney's handwritten notes reflecting litigation preparation and the impressions and/or strategy of the attorney).

Peralta v. United States Attorney's Office, 69 F. Supp. 2d 21 (D.D.C. 1999) (not an "agency" defense: denies motion to substitute the Department of Justice as the proper defendant in this case; the FBI is the proper defendant because it has litigated many FOIA cases in its own name and because many of the documents at issue in this case originated with the FBI and have been processed by the FBI; defendant first argued that Department of Justice was the proper defendant at the appeals court level; substituting Department of Justice at this point "would impede the purposes of the FOIA by preventing persons from receiving information in the most direct and efficient manner"; to ensure accountability for plaintiff's FOIA request, the court shall not release the United States Attorney's Office for the Central District of California from this action, because the office did not relinquish its responsibility for this FOIA request when it referred records to the Executive Office for United States Attorneys (EOUSA) and the FBI; because it processed the majority of the documents in this case, EOUSA is a proper defendant and should be formally added as a party) (referral of FOIA request: EOUSA's intra-agency referral of FBI documents to the FBI for processing did constitute a "withholding" because the "net effect" of the referral significantly increased the amount of time plaintiff had to wait to obtain FBI documents; EOUSA's referral was not an "improper withholding" of documents under the FOIA; Department of Justice regulations properly instructed EOUSA to refer these documents and the referral was "prompt and public") (Vaughn Index: declines to rule on FBI's motion to dismiss until the FBI provides plaintiff and the court with a Vaughn Index; Index must be provided within 60 days) (the Department of Justice may file a motion for reconsideration on the "agency" issue) (proper party defendant: substitutes the Justice Department for the United States Attorney's Office as the proper party defendant because this will not result in Justice Department's components "shirking their responsibility for responding to FOIA requests") (Vaughn Index: vacates its order directing the FBI to produce a Vaughn Index, because the FBI's declarations are sufficient and a Vaughn Index is not necessary) (Exemption 2 "high": disclosure of radio channels used by the FBI during physical surveillance and informant codes could thwart the FBI's law enforcement efforts) (Exemption 3 [Rule 6(e)]: protects identities of grand jury witnesses and descriptions of information obtained by federal grand jury subpoenas) (Exemption 6: protects letters of commendation concerning agency employees who worked on plaintiff's criminal investigation) (Exemption 7(C): protects information that would identify FBI agents and support personnel who worked on plaintiff's criminal investigation, informants, and subjects of investigative interest) (Exemption 7(D): protects the identities of and information received from symbol-numbered sources, confidential sources, and cooperating state and local law enforcement agencies because the sources provided information with implied assurances of confidentiality) (Exemption 7(E): protects FBI's Form FD-515 that is used during investigations, radio channels used during physical surveillance, and the transmitter numbers used to monitor conversations).

Petterson v. IRS, No. 98-6020 (W.D. Mo. Apr. 22, 1999) (Exemption 3 [26 U.S.C. § 6103(a)]: agency has not demonstrated that 11 pages were properly withheld as return information and its affidavit does not address the issue of segregability; agency affidavit demonstrates that 5 documents consisting of third-party tax return information were properly withheld in part) (Exemption 7 (threshold): requirement met by records compiled during an IRS investigation of plaintiff) (Exemption 7(C): protects personal information about an informant).

Pfannenstiel v. Dir. of the FBI, No. 98-0386 (D.N.M. Feb. 18, 1999) (Exemptions 7(C) and 7(D): FBI has demonstrated that 2 sources were given express promises of confidentiality; exemptions protect identities of the sources).

Pyne v. Comm'r, No. 98-00253, 1999 U.S. Dist. LEXIS 1059 (D. Haw. Jan. 6, 1999) (proper party defendant: while court is unpersuaded that within the Ninth Circuit the proper party defendant for suits under FOIA is the agency, dismisses the Commissioner of the IRS and the United States as defendants and substitutes the IRS because the IRS does not oppose being named as defendant and under the FOIA the court has jurisdiction over the agency only) (Vaughn Index: plaintiff's motion for a Vaughn Index is premature because agency has not yet submitted an affidavit).

Raulerson v. Reno, No. 96-120 (D.D.C. Feb. 26, 1999) (adequacy of search: defendant's search was inadequate because it did not search all offices likely to contain records responsive to plaintiff's FOIA request; defendant must complete its search of other offices within 60 days).

Rockwell Int'l Corp. v. Dep't of Justice, No. 98-761 (D.D.C. Mar. 24, 1999) (Exemption 5: the deliberative process privilege was not waived when the attachments to a published internal report were "merely" referred to as evidence supporting the report's conclusions, because the attachments were not adopted as the sole basis for the report's conclusions; internal agency documents did not lose the protection of Exemption 5 when provided to a House subcommittee; the attorney-client privilege was not waived with respect to 4 documents by a reference in the published report because the report did not disclose any privileged communication; agency's voluntary disclosure of the report does not waive the deliberative process privilege with respect to the underlying documents; all segregable information has been released from these documents that are largely communications between lawyers and agency decisionmakers; attorney work-product privilege has not been waived with respect to the attachments when the internal report was published) (Exemption 3 [Rule 6(e)]: agency must submit a supplemental affidavit within 20 days addressing with "sufficient particularity" the withholding of grand jury information under this exemption).

Rzeslawski v. Dep't of Justice, No. 97-1156 (D.D.C. Mar. 16, 1999) (duty to search: in the absence of countervailing evidence, finds that the agency conducted a reasonable search in response to plaintiff's FOIA request) (Exemption 3 [Rule 6(e)]: protects transcript of grand jury testimony) (referred records: Department of Justice's Executive Office for United States Attorneys properly referred records to the FBI and United States Customs Service for processing), reconsideration denied (D.D.C. Apr. 30, 1999) (Exemption 3 [Rule 6(e)]: plaintiff (although the opinion erroneously states "Defendant") has not shown how the release of 13 pages of grand jury testimony would not violate a protected aspect of grand jury proceedings).

Sanderson v. IRS, No. 98-2369, 1999 WL 35290 (E.D. La. Jan. 25, 1999) (waiver: deposition testimony of particular matters in a civil case does not act as a complete waiver of all related matters; IRS must disclose that information to which individual testified) (attorney fees: this action was "reasonably necessary" because the IRS did not substantively respond to plaintiff's appeal of the partial denial of his FOIA request for one and a half years; plaintiff's action had a substantial causative effect on the production of documents; because the IRS, in effect, denied this FOIA request by "dragging its feet," grants plaintiff's request for attorney fees and costs).

Scheer v. Dep't of Justice, 35 F. Supp. 2d 9 (D.D.C. 1999) (Exemption 7(A): agency has demonstrated that Office of Professional Responsibility report was prepared for a concrete prospective law enforcement proceeding; finds that while agency claims that the investigation was still open at the time of the FOIA request, because agency released this report to the subject of the investigation 3 days after the FOIA request was denied, it has not met its burden of demonstrating that disclosure would interfere with a law enforcement proceeding; report must be disclosed).

Slater v. Dep't of Treasury, No. 98-0597, 1999 U.S. Dist. LEXIS 3689 (D.D.C. Mar. 22, 1999) (Exemption 2 "high": defendant has not provided the court with enough information to justify the withholding of "computer codes and similar operational information" contained in the Treasury Enforcement Communications System and the National Crime Information Center; within 45 days defendant must either release this information to the plaintiff or file a supplemental pleading) (Exemption 7 (threshold): requirement met by a criminal case report, computerized law enforcement case summary records, a waiver of rights form, a criminal complaint, an arrest warrant, a bond recommendation form, a witness statement, a crime gun information form, and a laboratory report) (Exemption 7(C): protects the names of BATF Special Agents, BATF personnel, local law enforcement officers, and informants).

Slater v. Executive Office for United States Attorneys, No. 98-1663, 1999 U.S. Dist. LEXIS 8399 (D.D.C. May 24, 1999) (jurisdiction: court does not have jurisdiction where plaintiff seeks records that were never in defendant's possession) (referral of records: defendant's referral of records was "prompt and public" and consistent with Justice Department regulations) (Exemption 5: the attorney work-product privilege protects 3 lines from an attorney's letter to the FBI requesting that it perform a specific task) (Exemption 7 (threshold): requirement met by records that pertain to the investigation, prosecution, and conviction of plaintiff) (Exemption 7(C): protects information that would identify federal, state, and local law enforcement officers and employees and informants) (fee waiver: denies plaintiff a fee waiver for the copying fees associated with records concerning his criminal prosecution because plaintiff has not demonstrated how this information satisfies the public interest requirement and has not shown an ability to disseminate this information).

Slater v. FBI, No. 98-2251, 1999 U.S. Dist. LEXIS 5858 (D.D.C. Apr. 19, 1999) (mootness: case is moot because plaintiff received the referred pages in their entireties; FBI was not required to conduct an independent search for records where plaintiff's request was directed to another Department of Justice component and the FBI merely released 4 referred pages).

Smith v. IRS, No. 2:94-989 (D. Utah Mar. 24, 1999) (exhaustion: entity whose name did not appear on a FOIA request has not administratively asserted a right to receive records and, therefore, cannot challenge the denial of those records in district court; plaintiff who submitted a FOIA request with an altered power of attorney has not submitted a valid FOIA request; plaintiff who failed to pay the fees associated with his FOIA request has not exhausted his administrative remedies) (Exemption 3 [26 U.S.C. § 6103(a)]: protects the tax returns of IRS agents).

Stanbury Law Firm v. IRS, No. 98-2598, 1999 U.S. Dist. LEXIS 12170 (D. Minn. June 29, 1999) (Exemption 3 [26 U.S.C. § 6103(a), § 6104(b)]: protect tax return information concerning a public charity).

Stanley v. DOD, No. 98-4116 (S.D. Ill. June 22, 1999) (jurisdiction: court has jurisdiction to review a complaint that agency records were "improperly withheld" when the agency failed to put the records in its reading room) (subsection (a)(2): military hospitals' administrative staff manuals and "public domain" documents need not be placed in hospitals' reading rooms because materials are "akin to 'housekeeping matters'" and do not affect members of the public; administrative material contains only information about the relationship between the government and its employees).

Students Against Genocide (SAGE) v. Dep't of State, 50 F. Supp. 2d 20 (D.D.C. 1999) (magistrate's recommendation) (Exemption 1 [E.O. 12,958]: the sharing of information with a foreign government does not constitute waiver under the FOIA; an agency does not waive a FOIA exemption "unless and until that agency makes an official disclosure of the information sought"; plaintiff has not shown that the precise information sought is already in the public domain; applying Frugone, finds that the Department of State cannot waive the right to invoke an exemption under the FOIA because this information originated with the Department of Defense; agency's affidavits meet the procedural and substantive requirements of the Executive Order).

Swan View Coalition v. USDA, 39 F. Supp. 2d 42 (D.D.C. 1999) (declaratory relief: denies plaintiff's request for declaratory relief; Forest Service did not respond to any FOIA request submitted to it between February and September 1997, although agency subsequently did respond to the 3 FOIA requests submitted by plaintiff during this time period; agency was not acting pursuant to a "policy and practice" to ignore such requests but rather was undergoing a period of downsizing and reorganization caused by budget cuts; this "was indeed an aberration" and defendant's conduct before and after this 7-month period is one of compliance with the provisions of the FOIA).

Tax Analysts v. IRS, 53 F. Supp. 2d 449 (D.D.C. 1999) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: closing agreements entered into by the IRS and organizations exempt from federal income tax constitute "return information" and are not subject to public disclosure; [26 U.S.C. § 6104]: closing agreements are bilateral agreements signed by both the IRS and the taxpayer and, therefore, they are not "issued" by the IRS with respect to a tax-exempt application and subject to public disclosure).

The Times Picayune Pub. Co. v. Dep't of Justice, 37 F. Supp. 2d 472 (E.D. La. 1999) (Exemption 7 (threshold): requirement met by a mug shot because the photograph was taken by the Marshals Service "for the purpose of fulfilling its legal mandate to facilitate the enforcement of federal laws through processing of individuals charged with federal crimes") (Exemption 7(C): finds that a well-known individual has a protectible privacy interest under the FOIA in his mug shot and that disclosure "could reasonably be expected to constitute invasion of his personal privacy"; this case is distinguishable from Detroit Free Press because in that case the subjects of the mug shots were under indictment and awaiting trial and here the subject's guilty plea reflects "his desire to avoid the adverse public exposure, and further damage to his already tarnished public image, that would have accompanied prolonged criminal proceedings and, potentially, a term in prison"; there is no public interest in disclosure).

Torres v. CIA, 39 F. Supp. 2d 960 (N.D. Ill. 1999) (duty to search: agency's affidavit demonstrates that it conducted a search reasonably calculated to uncover all documents responsive to plaintiff's FOIA request) (attorney fees: plaintiff has not substantially prevailed in this case where a few "not really meaningful" documents were released by the CIA after exhaustive searches).

Torres v. CIA, No. 98 C149, 1999 U.S. Dist. LEXIS 6128 (N.D. Ill. Apr. 9, 1999) (attorney fees: on motion for reconsideration, finds that plaintiff has not substantially prevailed in this litigation).

Voinche v. FBI, 46 F. Supp. 2d 26 (D.D.C. 1999) (Exemption 1 [E.O. 12,958]: FBI's affidavit demonstrates that the disclosure of information that was obtained by a specific, unique intelligence activity could be expected to cause damage to national security) (Exemption 2 "high": the disclosure of an informant file number would result in the circumvention of FBI law enforcement procedures; "low": protects the current telephone extension of the Public Corruption Unit of the FBI's Criminal Investigation Division because it is a trivial administrative matter of no genuine public interest) (Exemption 7(A): FBI has not described how the disclosure of the file on its wiretap investigation of some Louisiana politicians would interfere with an ongoing law enforcement proceeding; FBI must submit a supplemental affidavit by April 30, 1999, grouping the documents into relevant categories) (Exemption 7(C): protects names of FBI agents, law enforcement officers, informants and third parties; FBI has not demonstrated that it properly withheld 12 or 14 pages in their entireties or that disclosure of the nonpublic information from the file on its wiretap investigation of some Louisiana politicians would be an unwarranted invasion of personal privacy; by April 30, the FBI must submit this information for in camera review and it may submit an additional declaration at this time) (Exemption 7(D): FBI affidavit, written by an affiant with no personal knowledge, offers only a conclusory statement that a source was given an express promise of confidentiality; court finds that this source was protected under Exemption 7(C)).

Whitmore v. Dir., Executive Office for United States Attorneys, No. 98-1749 (D.D.C. June 11, 1999) (Exemption 7(C): protects information about third parties and informants in plaintiff's criminal file) (duty to search: defendant demonstrated that it conducted a reasonable search for records in response to plaintiff's FOIA request) (Exemption 3 [Rule 6(e)]: protects the identities of grand jury witnesses) (Exemption 6: protects information that would identify grand and petit jury witnesses) ("reasonably segregable": defendant has provided plaintiff all "reasonably segregable" information).

Bankruptcy Courts

In re Olsen, BAP No. UT-98-088, 1999 Bankr. LEXIS 791 (B.A.P. 10th Cir. June 24, 1999) (agency: a Chapter 7 trustee is not an agency for purposes of the FOIA).

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