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Summaries of New Decisions -- January 2008

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of January 2008.


Courts of Appeal

1. Campaign for Responsible Transplantation v. FDA, No. 06-5333, 2007 WL 4553056 (D.C. Cir. Dec. 28, 2007)

Re: Records concerning clinical trials of xenotransplantation (i.e. transplantation of animal organs)

• Standard of review: The district court decision is reviewed de novo "inasmuch as it 'rests on an interpretation of the statutory terms that define eligibility for an award of attorney fees.'"

• Attorney fees: A ruling by the district court that FDA's initial Vaughn index was insufficient did not make plaintiff a "prevailing party." "Vaughn indices are not properly understood as relief on the merits for a FOIA plaintiff." However, the district court's order to FDA to release records that are similar in kind to those released by the agency in connection with its sample Vaughn index was sufficient to make plaintiff a prevailing party. This order "resulted in a changed legal relationship between the parties." Because the district court ruled that plaintiff was ineligible for attorney fees, it did not reach the question of whether plaintiff is entitled to them. Therefore, the case is remanded to the district court for a ruling on that question.

District Courts

1. Reynolds v. United States, No. 06-00843, 2007 WL 4562928 (S.D.N.Y. Dec. 26, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Declarations: Defendants' declarations are accorded a presumption of good faith. Plaintiff's "bare allegation" that he contacted one of the agencies is not enough to overcome that agency's declaration that it has no record of such contact.

• Adequacy of search: All defendant agencies conducted adequate searches. Plaintiff has not produced evidence to challenge the agencies' actions beyond his "purely speculative allegation that the agencies transferred his files to a 'controlling authority.'"


District Courts

1. United States v. Gibbs, No. 03-00609, 2008 U.S. Dist. LEXIS 681 (D.S.C. Jan. 4, 2008)

Re: Records related to judicial authority over requester

• Proper party defendant: Federal courts are specifically exempted from the FOIA's definition of "agency," and as such are not subject to its requirements.

2. Blanck v. FBI, No. 07-0276, 2007 WL 4561102 (E.D. Wis. Dec. 21, 2007)

Re: First-party request

• Proper party defendant: The FOIA provides for a cause of action against federal agencies, not individual agency employees. Thus, plaintiff's complaint is dismissed as to the individual agency employees he named as defendants.

• Jurisdiction: Plaintiff's complaint, as currently constituted, is "factually frivolous." In such circumstances, the court lacks subject matter jurisdiction and must dismiss the complaint.

3. Jessie v. Comm'r of SSA, No. 07-900, 2007 WL 4577372 (D. Or. Dec. 19, 2007) (magistrate's recommendation adopted, as modified)

Re: Records concerning job evaluation procedures

• Exhaustion: Because plaintiff's administrative appeal of the agency's initial determination is still pending, he has not exhausted his administrative remedies. This precludes judicial review because his claim is not yet ripe.

4. Estate of Robert C. Fortunato v. IRS, No. 06-6011 (D.N.J. Nov. 30, 2007) (unpublished disposition)

Re: Records related to IRS examination of plaintiff

• Exemption 4: The District Court held that defendants "cannot satisfy their burden . . . where, as here, [they] have made a conclusory assertion, without further explanation," that disclosure of the fees paid to an outside contractor would cause substantial competitive harm.

• Exemption 7(A): For many of the withheld documents, the court finds that defendant has not described the documents and the basis for withholding them with sufficient specificity to allow the court to determine whether "'some articulable harm' to the ongoing investigation could be caused by . . . disclosure." Other withheld documents appear to already be in plaintiff's possession. Those documents that appear to be the work product of IRS attorneys, "to the extent that they may reveal the direction of a pending investigation, arguably fit within the parameters of Exemption 7(A)."

• Exemption 7(C): Defendant properly withheld a document that contains information on how a third party planned to assist the agency's investigation as well as the third party's reasons for providing the information. If this information were disclosed it might enable plaintiff to learn this individual's identity.

• Scope of request: Because plaintiff has submitted a new power of attorney, documents initially withheld by the agency because they were outside the scope of the initial power of attorney executed by plaintiff must now be disclosed.


Courts of Appeal

1. Nat'l Inst. of Military Justice v. DOD, No. 06-5242, 2008 WL 108734 (D.C. Cir. Jan. 11, 2008)

Re: Records concerning regulations for establishment of terrorist trial commissions

• Exemption 5: A panel majority affirms the district court ruling that recommendations solicited by and provided to DOD by outside legal experts were properly withheld by the agency under the deliberative process privilege. There is nothing in prior circuit precedent to support plaintiff's arguments that the "consultant corollary" to the Exemption 5 threshold does not apply to consultants who are "ordinary" private citizens who are providing their expertise on a volunteer basis (though in response to direct solicitation of their opinions from the agency). The court has long recognized that in some situations it will be "'preferable that [agencies] enlist the help of outside experts.'" Here, "DOD sought these individuals out and solicited their counsel based on their undisputed experience and qualifications. . . . Their contributions to DOD's deliberation in promulgating regulations were no less valuable or confidential for the lack of compensation or formal contract." Furthermore, "the expectation that communications will remain confidential is crucial to eliciting candid and honest advice from outside consultants." There was "no dispute that the individuals DOD consulted were not pursuing interest of their own so as to run afoul of Klamath's concern."

District Courts

1. McLaughlin v. DOJ, No. 06-2048, 2008 WL 130773 (D.D.C. Jan. 15, 2008)

Re: First-party request and request for records concerning manufacture of methamphetamine

• Litigation considerations: Plaintiff's motion to join his claim against DEA with a claim arising from a request to EOUSA is denied. Because this second claim stems from an unrelated FOIA request, joinder is unwarranted.

• Adequacy of search: The court is "without sufficient evidence to determine whether the filing systems that were searched encompass records housed at the Tampa Field Office," and so defendant has "not refuted" plaintiff's "suggestion that it failed to search an obvious location." Thus, DEA needs to provide "a more detailed description of the filing systems searched."

2. Nat'l Sec. Archive v. DOD, No. 86-3454, 2008 WL 130767 (D.D.C. Jan. 15, 2008)

Re: Fee category status of plaintiff

• Attorney fees: Prior cases "specifically reject any notion that a news organization is ipso facto entitled to attorney fees whenever it wins a FOIA case." Plaintiff "had a powerful commercial and private motive to win the [fee category] lawsuit . . . in order to make [plaintiff's] retrieval of FOIA documents as cheap as possible." Plaintiff's publication costs have been reduced as a result of the ruling in the underlying suit, which relieved plaintiff from paying search fees. If this "reduction is greater than the attorneys' fees it seeks, NSA has already achieved an economic benefit from this lawsuit." Additionally, plaintiff made no effort to segregate out the resources it expended on a claim (that it is an educational institution) that it lost, a "failure [that] is most likely in itself fatal to its claim." Compensating it for time spent on the losing claim "would be an abuse of discretion." Furthermore, defendant has been able to show that its arguments in the underlying suit were reasonable. Indeed, "the government prevailed in both courts on one of its legal arguments and prevailed on both arguments in [the district] court." Though plaintiff claims that defendant has been "obdurate" and "recalcitrant," the court finds that "it cannot possibly equate the government's behavior in this case with the behavior condemned in other cases," as it would be "unfair and unreasonable" to do so. Thus, a consideration of all relevant factors, including "the obvious reasonableness of the government's legal arguments," weighs against an award of fees to plaintiff.

3. Pena v. BOP, No. 06-2480, 2008 U.S. Dist. LEXIS 2686 (E.D.N.Y. Jan. 14, 2008)

Re: First-party request

• Misc.: Defendant "properly redacted information and withheld documents based on FOIA Exemptions 6, 7(C), and 7(F)."

4. Rios v. New York Executive Dep't Div. of Parole, No. 07-3598, 2007 U.S. Dist. LEXIS 95744 (E.D.N.Y. Jan. 14, 2008)

Re: Concerns with parole conditions

• Exhaustion: "[P]laintiff has not alleged that he filed a FOIA request with a federal agency, that such request was initially denied, or that he has exhausted his administrative remedies." Thus, the court lacks jurisdiction over plaintiff's claim.

5. Smith v. FBI, No. 07-0507, 2008 WL 115350 (E.D. Cal. Jan. 10, 2008)

Re: Information concerning plaintiff’s incarceration

• Exhaustion: Plaintiff's complaint fails to allege that he has made a FOIA request to the FBI, or that the FBI maintains the records he seeks. The court lacks jurisdiction over plaintiff's claim, "in [the] absence of exhaustion of FOIA requests."

6. Stonehill v. IRS, No. 06-0599, 2008 WL 101712 (D.D.C. Jan. 10, 2008)

Re: Records pertaining to IRS raid

• Litigation considerations: IRS was collaterally estopped from claiming the attorney work product and attorney client privileges to withhold documents previously ordered released in discovery in another proceeding. Though the prior proceeding was not a FOIA case, it still afforded a full opportunity to consider the agency's privilege claims, thus they cannot be re-litigated now. The discovery ruling in the prior case "did not rely on considerations of relevance or need, but instead made a decision on the privilege claims employing the same criteria for review that are applied under Exemption 5." The IRS is not precluded from asserting the attorney work product privilege for documents for which it previously only asserted the attorney client privilege, as this privilege claim was not previously litigated as to those documents.

• Waiver: The IRS did not waive its right to claim FOIA exemptions that it did not assert in the earlier proceeding, which was not a FOIA suit. Prior cases establish that in a FOIA proceeding an agency must raise all of its exemption claims "at once or risk losing them," but this principle has never been extended to cover the situation here, where the initial proceeding is "wholly independent of FOIA." The "Court is aware of no authority supporting the somewhat illogical position that the government has waived FOIA exemption claims because it failed to raise them in earlier non-FOIA proceedings."

• Exemptions 6 & 7(C): The court finds that defendant has offered "little more than bare conclusory assessments" that the revenue agent whose name it withheld has a substantial privacy interest at stake. The fact that names of other agents involved in the underlying IRS investigation have been released on thousands of documents "forms a powerful rebuttal to the IRS's privacy assertion." The IRS has not provided any explanation as to why release "of this particular agent's name would cause embarrassment [or] undue harassment." Furthermore, there is a "'strong public interest in disclosing the names of employees and agents who worked on [a criminal] case since they may be able to provide valuable information in the context of a related civil suit,'" a "benefit [that] runs to the public at large and falls squarely within . . . the animating principles behind FOIA."

7. San Diego Navy Broadway Complex Coal. v. U.S. Dep't of the Navy, No. 07-909, 2008 WL 110900 (S.D. Cal. Jan. 9, 2008)

Re: Request for ground lease

• Exemption 4: The Navy's declarations establish that it properly redacted from the lease time periods related to deadlines that would trigger "special obligations and liquidated damages" to the contractor. Release of this information would cause the contractor substantial competitive harm "because its competitors and potential subcontractors could use the information in negotiations related to the project." Redaction of the contractor's financial figures for certain costs involved in the contract was also appropriate, but Exemption 4 does not cover fees that "are simply prices charged to the government for specific services." "Information on prices awarded in government contracts . . . is generally considered to be public." Further briefing on this issue is invited. The Navy has not provided sufficient evidence for the court to determine whether its redactions of certain entire sections of the lease were appropriate. Additional declarations should be filed.

• Proper party defendant: The FOIA creates a cause of action against agencies, not individual agency employees, so plaintiff's suit is dismissed as to the individual agency employee named as a defendant.

8. Pinnacle Armor, Inc. v. United States, No. 07-1655, 2008 WL 108969 (E.D. Cal. Jan. 7, 2008)

Re: Records related to Notice of Compliance with government standards

• Litigation considerations: Plaintiff's motion for an injunction requiring the Justice Department's compliance with its FOIA request is denied. "Plaintiff has not provided any authority for the proposition that the claim for the Freedom of Information Act documents supports a claim for an injunction." Furthermore, defendant's brief indicates that plaintiff has now paid the fees associated with its request and the documents are now being provided to plaintiff.


District Courts

1. United Am. Fin., Inc. v. Potter, No. 06-1023, 2008 WL 174316 (D.D.C. Jan. 22, 2008)

Re: Documents related to identity theft allegations

• In camera inspection: In camera inspection should not be used "as a substitute for requiring an agency's explanation of its claimed exemptions."

• Exemption 2: Defendant's declaration does not allow the court to determine "which portions of the [withheld] e-mails were considered 'trivial' administrative information under Exemption 2." If USPS wishes to continue to rely on this exemption, it must "identify more specifically which information that exemption covers."

• Exemption 5: USPS appropriately withheld documents reflecting "thoughts and opinions of agency personnel" on the "potential identity theft situation." These comments were antecedent to publication of an article on the topic. Defendant also properly withheld e-mails containing a draft of the article as well as discussion on how to further respond to plaintiff's activities. However, in the court's view defendant's declaration was insufficient to show that there were no segregable factual portions of these documents that were releaseable.

• Exemption 6: Defendant properly invoked this exemption to withhold the names of agency employees who had expressed interest in plaintiff's services. "[R]elease of names of government employees pertaining to their financial choices has been recognized as not shedding light on the government's performance of its duties." Plaintiff's assertion that release of these names might identify government employees who allegedly acted in a discriminatory manner towards plaintiff "amounts to little more than assertion of plaintiff's subjective interest in [release of the names] . . . which is not relevant to the public interest inquiry." The privacy interests at stake here are "significant," while "the public interest is at best minuscule." A portion of one document for which defendant did not claim an exemption (because it had been released elsewhere) must be released. Defendant has not provided sufficient justification for its withholding of the names of employees who participated in the investigation of plaintiff. "[A]n agency must at least explain the ground for concluding that there is some factual basis for concerns about 'harassment, intimidation, or physical harm.'" Furthermore, the public interest in knowing the names of agency employees who participated in an investigation is greater, because "'they may be able to provide valuable information in the context of a related civil suit.'"

• Exemption 7 (threshold): In the court's view, defendant's declaration was not sufficient to establish that records containing the names of employees who made allegations against plaintiff were compiled for law enforcement purposes. USPS must provide additional justification if it wishes to continue to rely on Exemption 7(C) for these records.

• Exemption 7(A): In the court's view, defendant's declarations were "far too conclusory" to sustain its burden of proof under this exemption. The declarations did not explain "'how the release . . . would interfere with enforcement proceedings.'" Defendant will be given a chance to submit more detailed declarations in order to cure this defect. "The government may undertake this justification document-by-document or by identifying generic 'categories of documents' that were withheld based on generic determinations applicable to those categories." The court will also defer judgment on defendant's use of other exemptions in these documents, but "it would be prudent for defendant to reexamine whether its declarations in support of those other exemptions contain the requisite reasonable specificity."

• Segregability: In addressing this issue, defendant's declarations are similar to ones that in prior cases have been found insufficient and conclusory by the court.

2. Natural Res. Def. Council v. Leavitt, No. 04-01295, 2008 U.S. Dist. LEXIS 3912 (D.D.C. Jan. 22, 2008)

Re: Documents concerning stockpiles of pesticide methyl bromide

• Exemption 5: Upon in camera review, the court determines that the reviewed documents "fall squarely within the deliberative process privilege," and that there were no segregable, releaseable portions.

3. Wang v. Executive Office of the President, No. 07-0891, 2008 U.S. Dist. LEXIS 3662 (D.D.C. Jan. 18, 2008)

Re: Third-party request

• Proper party defendant: The White House Press Office is not an "agency" under the FOIA because it "lacks independent regulatory authority or governmental function[s]. Its role is to help the President communicate effectively with the media (or not) and to advise him on questions of public relations." Because the Press Office is not an "agency" within the meaning of the FOIA, the court lacks subject matter jurisdiction over plaintiff's complaint.

4. Wheeler v. EOUSA, No. 05-1133, 2008 U.S. Dist. LEXIS 3445 (D.D.C. Jan. 17, 2008)

Re: First-party request

• Adequacy of search: The court finds that it was "unreasonable" for EOUSA to not have searched for responsive records in the files of plaintiff's co-defendant from his criminal trial. Prior filings in this case had specifically identified deficiencies in defendant's search, including not searching in plaintiff's co-defendant's files. Furthermore, since defendant requested records pertaining to his case (and not just those with his own name) and identified his case number, it should not have been difficult for EOUSA to identify his co-defendant and to locate the files in question.

• Costs and Attorney Fees: This issue is not yet ripe for review and should be briefed at a later date.


Courts of Appeal

1. Canadian Commercial Corp. v. Dep't of the Air Force, No. 06-5310, 2008 WL 220638 (D.C. Cir. Jan. 29, 2008) (concurring opinion by Judge Tatel)

Re: Line-item prices (reverse FOIA suit)

• Exemption 4: The Court held that "[t]he Air Force has given us no reason to deviate from our established precedent that line-item pricing information is subject to Exemption 4 of the FOIA." The Court further found that the Air Force "provided no empirical support for its historical assertions" about the disclosability of contract prices and that requiring it to provide such evidence "impose[d] only the burden of production upon the Air Force as the party in possession of the evidence about its own practices. . . . The burden of persuasion properly remained with the plaintiff." Defendant's argument with regard to option-year prices, that release of those prices would not cause substantial competitive harm to the submitter because defendant would be unlikely to switch to a new contractor given the "high transaction costs," is "unconvincing." The Court found that "the Air Force is the party best positioned to provide evidence of its own practice with respect to exercising or not exercising options and, once again, the burden of production properly falls upon the party with access to the information to be produced." Finally, the Air Force's claim that the Federal Acquisition Regulation requires release of line-item prices is "illogical," in light of a provision that specifically excludes from release information protected by the FOIA. The concurring opinion found "the result [of the decision] troubling and inconsistent with FOIA's fundamental objective"; noting that "it seems quite unlikely that Congress intended to prevent the public from learning how much the government pays for goods and services."

District Courts

1. Pub. Employees for Envtl. Responsibility v. Bloch, No. 04-2021, 2008 WL 239430 (D.D.C. Jan. 29, 2008)

Re: Documents prepared by outside consultants to the Office of Special Counsel (OSC)

• Exemption 5: The Court found that defendant appropriately withheld documents and portions of documents that reflected predecisional, advisory communications, as well as draft "position descriptions" that were created antecedent to final agency decisions. For many of the withheld documents, defendant released documents containing final agency positions on the matters in question once those final positions were reached.

2. Barnard v. DHS, No. 06-1393, 2008 WL 224085 (D.D.C. Jan. 29, 2008)

Re: First-party request

• Litigation considerations: Plaintiff's claim that defendant's declarant does not meet the "personal knowledge" standard fails. Declarants in FOIA cases are not required to personally participate in the search for records. Rather, the declarant satisfies the personal knowledge requirement if he "'attests to his personal knowledge of the procedures used in handling [the] request and his familiarity with the documents in question.'" Because of this, "hearsay in FOIA declarations is often permissible." There is no requirement that a declarant "independently verify the information contained in each responsive record."

• Segregability: Although "[d]efendant's declaration fails to provide sufficient detail concerning the non-exempt information to allow meaningful review concerning segregability," having undertaken in camera review of the documents, defendant's claims regarding segregability are found to be correct.

3. Stephens v. IRS, No. 07-1628, 2008 U.S. Dist. LEXIS 5976 (D.D.C. Jan. 29, 2008)

Re: Records concerning IRS employees

• Litigation considerations: Plaintiff's challenge, which is based solely on the amount of time defendant took to respond, is unfounded. Once an agency responds to a request, "'federal courts have no further statutory function to perform.'"

• Costs: Plaintiff is not eligible to recover his costs because he did not substantially prevail.

4. Trupei v. Bureau of Customs and Border Prot., No. 07-0475, 2008 U.S. Dist. LEXIS 5801 (D.D.C. Jan. 29, 2008)

Re: Third-party request

• Procedural requirements: Though plaintiff claims to have sent a request for records to defendant, defendant attests that it did not receive one. Plaintiff has not provided a basis for disputing defendant's claim, or evidence that defendant lost or misplaced it, and defendant's declaration that its tracking system was searched and did not locate the request in question is entitled to a presumption of good faith. An agency's obligations under the FOIA are only triggered by the receipt of a request. Absent any showing that the agency has improperly withheld agency records, the court lacks jurisdiction over plaintiff's complaint.

5. Bonaparte v. DOJ, No. 07-0749, 2008 WL 201495 (D.D.C. Jan. 25, 2008)

Re: Records pertaining to two assistant United States Attorneys (AUSAs)

• Litigation considerations (joinder): While defendant raised plaintiff's failure to join the National Personnel Records Center to which it referred plaintiff as a party-defendant as grounds for dismissal, it provided no legal basis for such an action.

• Exhaustion: Plaintiff asserts in a declaration that he "submitted his [administrative] appeal to prison authorities to
mail. . . . Although plaintiff has provided no documentation of that submission or of the actual mailing, the Court cannot
conclude . . . that plaintiff cannot produce supporting documentation." Thus, "a genuine issue of material fact exists as to whether plaintiff constructively exhausted his administrative remedies."

• Adequacy of search: The court determines that it lacks sufficient basis to rule on the adequacy of defendant's search. Defendant's declaration "only surmises that searches occurred at the United States Attorney's Office for the Middle District of Florida. . . . [The declaration] does not describe the filing systems searched, the search methods employed and the search terms utilized, nor has [the declarant] averred that all files likely to contain responsive records were searched."

6. Thomas v. DOJ, No. 06-1994, 2008 WL 219604 (D.D.C. Jan. 24, 2008)

Re: First-party request

• Adequacy of search: "Having reviewed the EOUSA's supporting declaration and Plaintiff's challenges to the search, the Court concludes that the agency's search was adequate and employed methods reasonably expected to produce the information requested." Plaintiff's complaint that EOUSA did not find a particular document is not by itself sufficient to challenge the adequacy of the search.

Vaughn index: Though plaintiff asserts that defendant's Vaughn index is "vague," the court "concludes that it adequately sets forth the agency's reasons for withholding all or portions of each document."

• Misc.: Though defendant's response to plaintiff's request was "delay[ed]," there is no evidence to suggest this delay was "purposeful." Release of records will not be ordered solely on the basis of defendant's response time.

• Exemption 7 (threshold): The responsive records, which "pertain to the investigation and prosecution of [plaintiff]" on various criminal charges qualify as law enforcement records.

• Exemption 7(C): EOUSA withheld identifying information pertaining to third parties who provided information to law enforcement officials and those who were "merely mentioned" in plaintiff's file. EOUSA also withheld identifying information concerning local law enforcement personnel who participated in plaintiff's prosecution. Plaintiff alleged that the withheld records contained exculpatory information. However, courts have consistently held that this is not a qualifying "public interest" that requires release under the FOIA. Plaintiff's argument that the records should be released because he knows the identities of the third parties in question is similarly unavailing. "Third parties' privacy interests are not lost because a requester knows or can determine from a redacted record their identities." Similarly, third parties do not "lose their privacy interests because their names already have been disclosed." Instead, "Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. . . . Similarly, Exemption 7(C) protects the privacy interests of law enforcement personnel whose names are contained in law enforcement records."

• Exemption 7(D): EOUSA's use of implied assurances of confidentiality was acceptable to protect statements given by eyewitnesses to an armed robbery committed by plaintiff. Many of these witnesses "'indicated continuing fear of [plaintiff].'" Similarly, in withholding information provided by a local law enforcement agency, a statement by the agency that "[t]his report is the property of the Metropolitan Police Department [and] [n]either it nor its contents may be disseminated to unauthorized personnel" was sufficient to create an "understanding" of implied confidentiality. "Nothing prevents a police department from being a confidential source for purposes of Exemption 7(D)."

7. Dixon v. Admin. Appeal Dep't, Office of Info. and Privacy, No. 06-6069, 2008 WL 216304 (S.D.N.Y. Jan. 22, 2008) (adoption of magistrate's recommendation)

Re: First-party request

• Mootness: The Court found that it is undisputed that defendant released to plaintiff the documents he sought in his FOIA request. Even though this release was made subsequent to the filing of plaintiff's suit, the release moots plaintiff's claim. The other forms of relief sought by plaintiff, including a declaration of innocence, the appointment of a forensic expert to assist plaintiff, and appointment of counsel, are not available under the FOIA. (posted 2/25/2008)

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