Files moving from File cabinet to Computer

Compiled FOIA Decisions (Received July-December 1990)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1990. OIP is preparing additional compilations of decisions received during previous years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).

Appeals Courts

Am. Fed'n of Gov't Employees v. Dep't of Commerce, 907 F.2d 203 (D.C. Cir. 1990) (discovery/FOIA interface: even if promotion-related materials might be discoverable in litigation under Title VII, this does not mean that they are necessarily disclosable in a FOIA case) (Exemption 5: the deliberative process privilege protects various promotion-related materials because they would reveal personnel actions to which the defendant agency was not yet committed) (judicial review: court declines to rule on portion of case given that requester offered to narrow its request on appeal) (exhaustion: court declines to consider the request for a fee waiver because the request was not made during the administrative proceeding before the agency) ("unreasonable" burden: defendant agency need not honor requests that do not "reasonably describe" a class of records and would require an unreasonably burdensome search; the unreasonableness of the attendant burden is more obvious when one realizes that it is largely unnecessary to plaintiff's purpose).

Assassination Archives & Research Ctr., Inc. v. CIA, No. 89-5414 (D.C. Cir. Aug. 13, 1990) (grants government's motion for summary affirmance as to the adequacy of defendant agency's search and as to the applicability of Exemptions 1, 3, and 6 in this FOIA case where the requester sought information that reflected any relationship between President G.H.W. Bush and the CIA prior to his term as Director of the CIA; summary affirmance is denied as to the portion of the district court's order upholding the CIA's reliance on Exemption 5 to withhold a memorandum for the record whereby senior CIA officials were apprised of certain congressional inquiries concerning the Warren Report).

Benavides v. United States Marshals Serv., No. 90-5112 (D.C. Cir. Oct. 19, 1990) (unpublished memorandum), 923 F.2d 200 (D.C. Cir. 1990) (table cite) (summary affirmance granted in this FOIA action where the district court denied plaintiff's motion for attorney fees).

Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571 (D.C. Cir. 1990) (Exemption 5: the deliberative process privilege does not protect a letter sent by the Justice Department to the House Ethics Committee summarizing the results of a Justice Department probe into the possible criminal wrongdoing of a Member of Congress and declining to prosecute; the letter does not meet the "inter-agency" requirement because Congress cannot be regarded as an "agency" under the FOIA and the letter did not contain confidential communications that were part of the Justice Department's deliberative process -- the Justice Department had unquestionably ended its consideration of whether to prosecute the congressman before it sent the letter) (Exemption 7(D): applying Reporters Committee and Schmerler v. FBI, holds that for the sources interviewed in an FBI law enforcement investigation, a very broad (virtually "categorical") "presumption" of confidentiality will govern; the exemption protects those portions of the letter containing information received from any source; informants who described for the FBI matters which presumably occurred in public view are confidential sources, because whether a source is confidential cannot turn on the substance of the information given) (Judge Edwards concurring) (in a 9-3 decision, requester's petition for rehearing en banc denied in this FOIA case where the court held that for the sources interviewed in an FBI law enforcement investigation, a very broad "presumption" of confidentiality will govern) (Judge Edwards, dissenting, laments the perils of courts correcting "what they believe to be congressional oversights by construing ambiguous statutes to the contrary of their plain meaning" termed the "judicial hijacking of the power to legislate").

Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990) (agency: the Defense Nuclear Facilities Safety Board is an "agency" for purposes of the FOIA and the Government in the Sunshine Act, because it is "an entity in the federal government [that] 'investigates, evaluates, and recommends'").

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (Exemption 3 [50 U.S.C. § 403(d)(3)]: applying Sims v. CIA, holds that from the CIA's and FBI's files concerning the disappearance of Basque exile Jesus de Galindez the exemption protects information that was derived from "nonsensitive" contacts and "basic and simple" information related to intelligence methods; disclosure of intelligence methods that may be generally known, when considered in conjunction with other individual pieces of intelligence information, may cause potential harm to national security; the identities of unwitting or potential sources may be withheld; information may be protected despite the passage of time because the CIA "has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service"; in considering the effect of the passage of time, the importation of standards into the Exemption 3 analysis from the Exemption 1 analysis is improper; exemption protects information concerning domestic sources and contacts because although the CIA's mandate is to conduct foreign intelligence, the agency must at times pursue its mandate domestically; the district court misread Afshar v. Department of State when it concluded that a disclosure could operate as a waiver of protection for information relating to a time period prior to the events disclosed) (Exemption 7(C): applying Reporters Committee, holds that despite the passage of 34 years the exemption protects a third-party name that appears in an FBI report and a report about a prominent figure in the investigation but which concerns events that transpired years before the Galindez affair).

Hindman v. FBI, No. 90-5047 (6th Cir. Oct. 4, 1990) (unpublished order), 915 F.2d 1571 (6th Cir. 1990) (table cite) (no improper withholding: because the requested film was destroyed in 1985 and because the FBI did not have the photographs requester sought, the FBI has not improperly withheld government records).

Hoch v. CIA, No. 88-5422 (D.C. Cir. July 20, 1990) (unpublished memorandum), 907 F.2d 1227 (D.C. Cir. 1990) (table cite) (affirms district court's order withholding information that would reveal intelligence sources and methods, the names of CIA employees, individuals of investigative interest, sources, and FBI and Secret Service Agents, and highly personal information concerning third parties) (waiver of exemption: media reports and speculation do not constitute official government acknowledgment; disclosures made by congressional committees did not purport to be official acknowledgments; congressional committees did not waive the exemption by revealing the name of a foreign government source because they in fact had never learned the source's identity).

KTVY-TV v. United States, 919 F.2d 1465 (10th Cir. 1990) (Exemption 7 (threshold): applying John Doe Agency v. John Doe Corp., finds that information regarding an interview conducted before the investigation was started and later recompiled for law enforcement purposes meets the threshold requirement) (Exemption 7(C): following Reporters Committee, holds that despite the general public interest in learning of the government's possible failure to prevent a mass murder/suicide incident, the exemption protects the identities of witnesses and the third parties mentioned in their interviews) (Exemption 7(D): because the exemption does not depend on the content of the requested documents but rather on whether the information was provided to the government by a confidential source, the identities and statements of witnesses are protected in a closed investigation that is not likely to occur again; interviewees had either an express or implied assurance of confidentiality).

Kyle v. United States, No. 90-1020 (1st Cir. Sept. 10, 1990) (unpublished memorandum), 915 F.2d 1556 (1st Cir. 1990) (table cite) (adequacy of search: requester's suppositions that more documents must exist are "insufficient to raise material questions of fact with respect to the adequacy of the search").

Lindsey v. Nat'l Sec. Agency, No. 90-2408 (4th Cir. Oct. 9, 1990) (unpublished memorandum), 915 F. Supp. 1565 (4th Cir. 1990) (table cite) (exhaustion: requester who appealed the defendant agency's partial denial of his FOIA request after 2 years has not met the agency's exhaustion requirement; because the agency did not respond to requester's second FOIA request until about a month after it was made and because the agency never responded to requester's appeal of its partial denial of his first request, as to these requests requester has constructively exhausted his administrative remedies) (Exemption 1 [E.O. 12,356]: the defendant agency's affidavit demonstrates that the documents relating to the Iranian arms-for-hostages deal were properly withheld) (adequacy of search: because the agency's affidavit is insufficient to demonstrate that its search for records relating to the Glomar Explorer was adequate, this portion of the case is vacated and remanded for the presentation of further evidence).

Lonsdale v. United States, 919 F.2d 1440 (10th Cir. 1990) (Federal Register publication: agency orders that internally delegate the authority to impose tax levies from the Secretary of the Treasury to the Commissioner of the IRS need not be published and they do not adversely affect the public).

McGuire v. Dep't of the Treasury, No. 90-3120 (Fed. Cir. Sept. 13, 1990) (unpublished memorandum), 915 F.2d 1583 (Fed. Cir. 1990) (table cite) (jurisdiction: the United States District Courts have exclusive jurisdiction over FOIA matters).

Morgan v. Dep't of Justice, No. 89-5477 (D.C. Cir. Nov. 13, 1990) (unpublished order), 923 F.2d 201 (D.C. Cir. 1990) (table cite) (in light of Dow Jones v. Department of Justice, vacates and remands the court's October 13, 1989 ruling which held that written communications between an agency and Congress are entitled to protection under the deliberative process privilege).

Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990) (agency records: the requested Tower Commission records were at no time in the "custody" or "control" of a government agency and therefore are not agency records under the FOIA) (FOIA/FACA interface: § 10(b) of the Federal Advisory Committee Act renders the disclosure provisions of the FOIA applicable to advisory committees).

N.Y. Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (in a 6-5 en banc decision with Judge D.H. Ginsburg writing for the majority, the court ultimately held that the audiotape of voice communications aboard the Space Shuttle Challenger meets the "similar file" threshold test of Exemption 6 because the information "applies to an individual," i.e., it reveals the voice inflections of the doomed astronauts in the minutes before their deaths; case is remanded for the district court to consider the strength of the private and public interests involved before deciding whether NASA must release the tape) (Judge Edwards, writing for the dissent, finds that the tape does not meet the threshold test because it contains no "personal information" about the Challenger astronauts or any of their family members; opines that holding otherwise renders the threshold test "meaningless").

Oglesby v. Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (exhaustion: an administrative appeal is mandatory if an agency cures its failure to respond within the 10-day statutory time period by responding to the FOIA request before a lawsuit is filed; plaintiff did not exhaust his administrative appeal remedies when he filed suit challenging the defendant agencies' initial denials of his fee waiver requests, denials of his requests for information, and the adequacy of the searches; although in future cases foregoing an administrative appeal will preclude the requester from ever bringing suit on that request, the appellant here will be allowed 60 days to pursue his appeals with 5 of the 6 agencies involved because the precise requirements of FOIA exhaustion had not been sufficiently certain before now; implicitly, the administrative appeal deadlines established in agency regulations can be binding; because the State Department did not advise plaintiff of his appeal rights when it informed him that they had found no records responsive to his request, State Department's response was insufficient under the FOIA to trigger the exhaustion requirement) (adequacy of search: because the State Department's affidavit did not adequately describe the agency's search, summary judgment on the adequacy of the search was improper) (interaction of (a)(2) & (a)(3): the National Archives sufficiently complied with the FOIA by making voluminous records available to plaintiff in its public reading room, even though governmentwide FOIA policy is to the contrary).

Pototsky v. Dep't of the Navy, No. 88-15571 (9th Cir. Aug. 21, 1990) (unpublished memorandum), 912 F.2d 469 (9th Cir. 1990) (table cite) (affirms district court's decision to withhold witness statements under Exemptions 6, 7(A), and 7(C) and to withhold under the deliberative process privilege the opinions and recommendations of military officers concerning allegations of criminal misconduct made against another military officer).

Price v. CIA, No. 90-1507 (4th Cir. Oct. 2, 1990) (unpublished memorandum), 914 F.2d 1492 (4th Cir. 1990) (table cite) (requester, who seeks documents for use in litigation, is denied expedited treatment of her FOIA request).

Purk v. IRS, No. 90-3380 (6th Cir. Aug. 15, 1990) (unpublished order), 911 F.2d 733 (6th Cir. 1990) (table cite) (no improper withholding: because plaintiff never made a FOIA request for agency records, he cannot show that the agency improperly withheld records under its control).

Ray v. Dep't of Justice, 908 F.2d 1549 (11th Cir. 1990) (Exemption 6: Reporters Committee notwithstanding, orders disclosure of the names and addresses of Haitians who have been returned to Haiti, because the public has a legitimate interest in our country's immigration policy and the safe relocation of returned Haitians; a promise of confidentiality is a factor to be considered, but cannot in itself override the Act) (waiver: denies government's motion for consideration of exemptions raised for the first time after denial of motion for summary judgment; in light of the government's failure to raise the exemptions for almost 2 full years, the court finds it difficult to believe that the redacted information implicates compelling national security concerns) (duty to search: defendant agency's affidavit demonstrates that it conducted a diligent search that uncovered a good portion of what the requesters sought, despite the fact that the search did not uncover documentation of approximately 200 interviews out of 582 conducted) (no improper withholding: because plaintiff never made a FOIA request to the Executive Office for Immigration Review, that claim was properly dismissed) (jurisdiction: the FOIA does not expressly provide district courts with jurisdiction to enjoin agency proceedings that may be related to the subject matter of plaintiff's FOIA request).

Ray v. Dep't of Justice, No. 89-5375 (11th Cir. Oct. 12, 1990) (government's petition for rehearing denied in this FOIA case where the court ordered disclosure of the names and addresses of Haitians who have been returned to Haiti, finding that the public has a legitimate interest in our country's immigration policy and the safe relocation of returned Haitians).

Schoettle v. Kemp, No. 90-15692 (9th Cir. Oct. 26, 1990) (requester's motion for voluntary dismissal granted in this FOIA case where the district court had ruled that Exemption 6 protected the names and addresses of persons owed vested, unpaid distributive shares and Mortgage Insurance Premium refunds that are contained in mortgage records more than one year old).

Stone v. FBI, No. 90-5065 (D.C. Cir. Sept. 14, 1990) (government's motion for summary affirmance granted in this FOIA case where, despite the passage of more than 20 years, the agency withheld under Exemption 7(C) the names of FBI clerical employees, nonsupervisory FBI Special Agents, and Los Angeles Police Department law enforcement officers from the FBI's investigatory files on the assassination of Robert F. Kennedy).

Stone v. FBI, No. 90-5065 (D.C. Cir. Dec. 3, 1990) (appellant's petition for panel rehearing and rehearing en banc denied in this FOIA case where, despite the passage of more than 20 years, the agency withheld under Exemption 7(C) the names of FBI clerical employees, nonsupervisory FBI Special Agents, and Los Angeles Police Department law enforcement officials from the FBI's investigatory files on the assassination of Robert F. Kennedy).

Thomas M. Durkin & Sons, Inc. v. Dep't of Transp., No. 90-1397 (3d Cir. Nov. 14, 1990) (unpublished memorandum), 919 F.2d 732 (3d Cir. 1990) (table cite) (Exemption 5: the deliberative process privilege protects undisclosed portions of agency memoranda which relate to the termination of plaintiff's contract for work on a highway project for the State of Pennsylvania).

District Courts

Ahrens v. FBI, No. 90-30003-F (D. Mass. Oct. 23, 1990) (magistrate's order) (in camera inspection: orders in camera inspection of documents in this Exemption 1 case where the defendant agency's affidavits are too generalized to permit plaintiff to argue intelligently for disclosure and where the government argued that any more detailed disclosure would reveal the very information it seeks to withhold; allows the government to submit a brief, explanatory, ex parte affidavit; while disagreeing with the government's contention that this magistrate, as a non-Article III judge, has to obtain a special security clearance before reviewing documents in camera, does not rule on this point because of an October 23, 1990 order issued by the Chief Justice of the district court which explicitly delegates this responsibility to the magistrate).

Allen v. FBI, 749 F. Supp. 21 (D.D.C. 1990) (attorney fees: plaintiff's claim for 29.5 hours spent on administrative appeals is premature because these exemption claims have not yet been litigated; in his first application for an award of interim attorney fees, plaintiff "substantially prevailed" when the court ruled that, although interim fees are available under the FOIA, plaintiff's first interim application was premature; although plaintiff's first and second applications for interim fees are to some degree duplicative of prior work, his claim for 27 hours is reasonable in light of the amount of original material contained in both applications; court will deduct one hour of typing included in plaintiff's original calculation because clerical work is not compensable under the FOIA's attorney fee provisions; hourly rates of $115 per hour for 1981-84 and $125 per hour for 1985-89 reflect prevailing rates charged in the local market at that time; applying the 2-part test of King v. Palmer, grants plaintiff a 100% contingency enhancement of the lodestar interim fee award, minus the fees associated with the interim award applications; grants $43,505 in interim fees and $276.02 in costs).

Am. Soc'y of Pension Actuaries v. IRS, 746 F. Supp. 188 (D.D.C. 1990) (Exemption 7(E): protects IRS's audit criteria used to select returns for examination) (Exemption 5: after in camera inspection, holds that the deliberative process privilege protects 8 documents prepared by the IRS that contain the agency's initial estimates of the potential revenue yield of a proposed shift in audit resources; the deliberative process privilege does not protect the 4 remaining documents which contain the assumptions and calculations that yield the final estimate that became part of the President's budget; by including this estimate in the Treasury Department's published explanation of the budget, the government expressly adopted the computations used to produce the final figure).

Arrow Line, Inc. v. Skinner, No. 90-0020 (D.D.C. July 11, 1990) (summary judgment granted to defendant on the FOIA aspect of this case because plaintiff sought no relief under the FOIA in its Complaint).

Avitia v. DEA, No. 90-0894 (D.D.C. Nov. 8, 1990) ("no records" defense: by executing thorough searches for records responsive to plaintiff's request, and finding none, the defendant agencies have fulfilled their responsibilities under the FOIA) (exhaustion: plaintiff has not exhausted his administrative remedies because he has not made a FOIA request to a Bureau of Prisons official at the place of his incarceration) (summary judgment: agencies are entitled to summary judgment when plaintiff has not objected to the defendants' claims of exemption) ("exceptional circumstances"/"due diligence": grants INS an Open America stay because it faces an unusually burdensome workload of FOIA requests and because it is processing these requests on a "first-in, first-out" basis).

Baker v. IRS, No. S90-1531 (D. Md. Oct. 9, 1990) (mootness: the release of the document requested by plaintiff moots the substantive issue in this case) (attorney fees: pro se plaintiffs who are not attorneys are not entitled to attorney fees).

Barrett v. OSHA, No. C2-90-147 (S.D. Ohio Oct. 18, 1990) (in camera inspection: although the defendant agency never filed a document entitled "Vaughn Index," in camera inspection is not necessary because its submissions provide the court with sufficient a factual basis for review of defendant agency's actions in withholding information under the FOIA) (Exemption 2: administrative steps followed by OSHA prior to the issuance of a citation are of merely internal significance and may be withheld) (Exemption 5: the deliberative process privilege protects materials prepared by Compliance Safety and Health Officers for consideration by the area director and other high-level agency officials responsible for directing the agency's enforcement program) (Exemption 7(C): because plaintiff seeks information for use in litigation, the balance weighs heavily in favor of withholding the identities of employee-witnesses who gave statements to an OSHA investigator regarding an accident in which a line mechanic worker was fatally electrocuted; the names of third parties or nonemployee witnesses identified in the investigation must be released) (Exemption 7(D): exemption protects statements obtained from employee-witnesses under a promise of confidentiality inasmuch as these statements relate to a single incident involving 3 or 4 persons, disclosure of the statements or any portion of them would enable anyone who had knowledge of the incident to readily identify the informants).

Beckette v. United States Postal Serv., No. 90-1246 (E.D. Va. Oct. 10, 1990) (adequacy of request: within 20 days, plaintiff must provide the defendant with more specific information about the records he seeks under the FOIA).

Benavides v. DEA, 769 F. Supp. 380 (D.D.C. 1990) (Exemption 7 (threshold): information gathered by DEA in the investigation and prosecution of plaintiff's drug activities satisfies the threshold requirement) (Exemption 7(C): defendant agency may refuse to confirm or deny the existence of records concerning alleged informants) (Exemption 7(D): there is an implied assurance of confidentiality made to persons who provide a law enforcement agency with information pertinent to a criminal investigation; defendant agency may refuse to either confirm or deny the existence of records concerning an alleged informant on the grounds that to do otherwise, in response to a specifically targeted request, would jeopardize the purposes of the exemption).

Biles v. City of Grand Rapids, No. 1:90-269 (W.D. Mich. Oct. 9, 1990) (agency: the FOIA is not applicable to state agencies).

Bluethunder v. Kunz, No. 77-165 (E.D. Pa. Oct. 2, 1990) (jurisdiction: federal district courts have jurisdiction over FOIA matters; FOIA complaints should not be filed with United States Magistrates) (agency: a court is not an "agency" subject to the FOIA).

Carroll v. IRS, No. C90-270 (N.D. Ohio July 2, 1990) (grants defendant agency's motion for summary judgment; because the IRS has provided the documents requested by the plaintiff under the FOIA, the substance of the controversy has become moot).

Casa Investors v. Gibbs, No. 88-2485, 1990 WL 180703 (D.D.C. Oct. 11, 1990) (Exemption 3 [26 U.S.C. § 6103(b)(2), § 6103(e), § 6103(e)(7)]: the release of IRS's Appeal Supporting Statements to a first-party requester would reveal the government's case prematurely and would impair the agency's ability to enforce revenue laws because these statements summarize the government's strategy and the scope, direction, and strength of its investigation and position; because the Appeal Supporting Statements and the Criminal Reference Letter are "return information," the IRS has no duty to provide redacted versions of them; the Criminal Reference Letter, which concerns IRS's potential prosecution of the general partner, may be withheld from the limited partnership as third-party tax return information; release of the Criminal Reference Letter would "seriously impair tax administration").

Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068, 1990 WL 236133 (D.D.C. Dec. 19, 1990) (Exemption 1 [E.O. 12,356]: the agency's predictions of harm are entirely plausible and sufficiently descriptive to substantiate the withholding under Exemption 1 of a document entitled "The National Program for Combatting Terrorism," which outlines in detail all aspects of the nation's strategy for combatting terrorism domestically and internationally; so long as the agency's determinations are reasonable, the court must defer to the agency's expertise) (Exemption 3 [50 U.S.C. § 403(d)(3), § 403g]: protect information that "would disclose the manner in which the CIA collects, analyzes and utilizes certain information of foreign intelligence interest . . . [and] would disclose the functions of the CIA relating to this intelligence method") (Exemption 5: the deliberative process privilege protects recommendatory documents written by a committee with no decisionmaking power; even though actions taken by INS do mirror these recommendations, there is no showing that INS officers were instructed to follow the procedures in the contested documents) (Exemption 7 (threshold): the documents relate directly to legitimate concerns by INS that federal immigration laws may have been violated) (Exemption 7(E): protects a final contingency plan in the event of an attack on the United States, instructions for consular offices on the use of security checks in the visa determination process, guidelines for response to attacks by terrorists, and contingency plans in the event of immigration emergencies).

Chatigny v. United States, No. 90-0844 (C.D. Cal. Nov. 27, 1990) (exhaustion: plaintiff has failed to present any factual basis for his assertion that he has exhausted his administrative remedies) (jurisdiction: court lacks jurisdiction because defendants have provided plaintiff with copies of the documents in their possession that respond to plaintiff's FOIA requests).

Chesapeake Bay Found. v. USDA, No. 89-1943 (D.D.C. Nov. 26, 1990) (Exemption 3 [7 U.S.C. § 2276]: orders the Park Service to show cause why it should not release the 1985 Wicomico County pesticide survey form to plaintiff).

Church of Scientology Cal. v. IRS, No. 90-3290 (C.D. Cal. Dec. 28, 1990) (IRS's Inspection Division records compiled in connection with allegations of employee misconduct are exempt from disclosure under Exemption 7(C)).

Collett v. DEA, No. 90-1631 (D.D.C. Dec. 28, 1990) (case dismissed for failure to exhaust administrative remedies where plaintiff, who had not filed a valid FOIA request in proper compliance with agency regulations, "appealed" the agency's action).

Concrete Constr. Co. v. Dep't of Labor, 748 F. Supp. 562 (S.D. Ohio 1990) (Exemption 5: the deliberative process privilege does not protect OSHA's FY88 and FY89 Field Operation Program Plan documents, because the agency has failed to demonstrate how disclosure would expose the decisionmaking process in such a way as to discourage discussion within the agency) (Exemption 7(A): orders in camera inspection of the program plans, under seal, along with a detailed explanation as to the sensitivity of disclosure of each document or group of general documents, in order to determine whether disclosure "could reasonably be expected to interfere with enforcement proceedings").

Concrete Constr. Co. v. Dep't of Labor, No. C2-89-649 (S.D. Ohio Oct. 26, 1990) (Exemption 7(A): list of construction sites to be inspected for violations may be withheld until the time when the sites are inspected, then this information must be released to plaintiff; the release of FY88 and FY89 projections for inspections and the areas of concentration for these efforts would be an obvious "detriment to the enforcement objectives of the Department of Labor" because it would disclose investigative trends and areas of emphasis; documents relating to 5 construction companies may be withheld because enforcement actions against these companies are currently pending).

Cowles Publ'g Co. v. United States, No. 90-349 (E.D. Wash. Dec. 20, 1990) (Exemption 6: following Reporters Committee, finds that the exemption protects the names and addresses of doctors and patients from the Department of Energy's files concerning individuals exposed to radiation in the Hanford area, even though some of these people may be dead; disclosure of this information about private citizens would reveal little or nothing about the agency's performance of its statutory duties and would result in unwanted contacts and intrusions of privacy for surviving families).

Crancer v. Dep't of Justice, No. 89-0234 (E.D. Mo. July 27, 1990) (orders defendant agency to serve upon plaintiff within 30 days a complete Vaughn Index of some 30,000 documents concerning Jimmy Hoffa that the agency seeks to withhold under Exemption 7(A) and for which the agency had previously provided a categorical Vaughn Index), motion for reconsideration denied (E.D. Mo. Aug. 16, 1990).

Curcio v. FBI, No. 89-0941, 1990 WL 179605 (D.D.C. Nov. 2, 1990) (Vaughn Index: defendant agency's declaration along with the redacted documents using a coded format meets Vaughn's requirements) (Exemption 2: protects symbols identifying confidential informants, symbol source file numbers, and a description and an accounting of expenses incurred in an FBI criminal investigation) (Exemption 7 (threshold): threshold requirement met because the FBI compiled the information during the investigation and prosecution of the plaintiff for irregularities in a federal prison, gambling, racketeering, and extortion and bribery) (Exemption 7(A): now that the FBI says this exemption is no longer applicable to withhold certain files because of a recent change in the "underlying factual circumstances," it may not raise additional exemption claims at this stage of the district court proceeding and the information must be released) (Exemption 7(C): protects the identities of FBI Special Agents and clerical personnel, informants, and plaintiff's associates, accomplices, and other third parties of investigative interest to the FBI) (Exemption 7(D): a judge whose identity had been disclosed elsewhere is a "confidential source" for purposes of the exemption because at the time the judge communicated information to the FBI, the information was "provided in confidence"; public release of an informant's identity does not waive the protection of this exemption for the information furnished by that source) (Exemption 7(E): disclosure of the material withheld under this exemption would impair the government's investigative techniques and procedures).

Doe v. CIA, No. 89-2388 (D.D.C. Sept. 25, 1990) (Exemption 3 [50 U.S.C. § 403(d)(3)]: after in camera review, finds that the release of 13 documents relating to plaintiff's unsuccessful application for employment with the CIA can reasonably be expected to reveal intelligence sources and methods; one portion of one document in a box titled "Reason for Cancellation" must be released, on a segregation basis).

Ellis v. Dep't of Justice, No. 90-0132 (D.D.C. Sept. 25, 1990) (Exemptions 7(C) and 7(D): protect in their entireties documents containing contemporaneous handwritten notes and typewritten reports from persons interviewed during the course of the FBI's investigation of plaintiff for theft, murder, and conspiracy; protects the names of FBI Special Agents and other law enforcement officials) (Exemption 7(E): protects FBI polygraph material) (Vaughn Index: a coded Vaughn Index is sufficient).

Fazzini v. Dep't of Justice, No. 90-C-3303 (N.D. Ill. Dec. 11, 1990) ("no records" defense: prisoner can produce no evidence that telephone surveillance logs and tapes exist) (adequacy of search: the government's affidavit demonstrates that its search was adequate and the plaintiff has produced no evidence establishing agency bad faith) (summary judgment: government's motion for summary judgment is granted on all counts except Count II because the government never addressed plaintiff's request for FBI records regarding property seizures and documents pertaining to searches conducted by federal law enforcement agents).

Ferguson v. FBI, 752 F. Supp. 634 (S.D.N.Y. 1990) (adequacy of search: defendant agency's affidavits demonstrate the adequacy of its search) (in camera inspection: due to the conclusory nature of defendant agency's affidavits, judicial economy, and the strong public interest in the FBI's noninvestigative techniques involving prominent black nationalist figures of the 1960s, orders in camera inspection of the documents contained in plaintiff's October 16, 1990 submission).

Ferguson v. IRS, No. C89-4048, 1990 U.S. Dist. LEXIS 15293 (N.D. Cal. Oct. 31, 1990) (exhaustion: although plaintiff has exhausted his administrative remedies with respect to one portion of his FOIA request, he is not entitled to judicial relief with respect to any other portion of his request) (Exemptions 3 [26 U.S.C. § 6103(b)(2)] and 7(E): release of portions of an IRS manual would reveal investigatory techniques not previously known to the public, including dollar tolerances and math error codes used to review, process and examine returns) (Vaughn Index: the Vaughn Index was developed to handle a case where the government had withheld a large number of documents; in this instance where only one document is at issue, defendant's affidavit is sufficient).

Fitzgibbon v. United States Secret Serv., 747 F. Supp. 51 (D.D.C. 1990) (adequacy of search: in its search for 20-year-old records, the defendant agency searched the most likely places for responsive files; the fact that a document once existed does not mean that it now exists) (Exemption 1 [E.O. 12,356]: the defendant agency's affidavits demonstrate that, despite the passage of 20 years, the disclosure of 2 FBI memoranda concerning investigations of 2 alleged terrorists hired by Dominican Republican President Rafael Trujillo to assassinate President Kennedy would reveal the existence of a secret working relationship between the United States and a foreign government and would reveal the existence of a particular intelligence activity; the FBI not only provided a coded Vaughn Index, it also supplied a description and justification for each document; exemption protects temporary source symbols) (Exemption 2: applying Schwaner v. Department of the Air Force, finds that the exemption does not protect administrative markings because they do not relate to an agency rule or practice, other than the practice of collecting information) (Exemption 5: the deliberative process privilege protects reports sent by field agents to their supervisors regarding the potential threat posed by the 2 alleged terrorists and containing numerous recommendations and opinions; exemption does not protect a letter from a Secret Service official to a United States Attorney relating to a meeting in which that official informed the United States Attorney about the investigation) (Exemption 7(C): the exemption protects rap sheets, subjects of investigative interest, the names of third parties, and the identities of Secret Service and FBI Special Agents and other federal law enforcement personnel) (Exemption 7(D): the exemption protects the names of employees of credit, commercial, and financial institutions who have provided information to the FBI under implied or express assurances of confidentiality; speculation by the plaintiff as to the identities of sources does not affect a claim to the exemption; the exemption goes beyond the need to protect the identities of the sources at issue here, there is also law enforcement's interest in assuring future sources that their identities will remain confidential) (Exemptions 2 and 7(E): orders in camera inspection of a number of Secret Service forms and other documents to determine whether disclosure would reveal certain Secret Service and FBI investigative techniques).

Frydman v. Dep't of Justice, No. 78-4257 (D. Kan. July 11, 1990) (in camera affidavit/inspection: the use of in camera affidavits and in camera inspection is justified in this Exemption 1 case because a detailed Vaughn Index could not be produced without revealing the scope and conduct of intelligence activities) (Exemption 1 [E.O. 12,356]: according "substantial deference" to agency's affidavits, holds that the release of electronic surveillance records would reveal intelligence activities, sources, and methods; the documents cannot be substantively segregated into disclosable and nondisclosable parts; the passage of time is not an effective point in favor of disclosure because intelligence methodology may not have changed during this period) (Vaughn Index: orders defendant agency to disclose to plaintiff the number of documents at issue, the number of pages in each document, the number of pages where plaintiff is mentioned, and the year each document originated).

Gaensel v. CIA, No. 89-1610 (S.D. Fla. Dec. 27, 1990) (Exemption 3 [50 U.S.C. § 403(d)(3), § 403g]: protects information regarding an offer of citizenship made to the plaintiff by the Carter Administration).

Gale v. United States Gov't, 786 F. Supp. 697 (N.D. Ill. 1990) (plaintiff's FOIA request is dismissed; defendant CIA was never properly served and plaintiff declined to exhaust his administrative remedies with respect to his FBI request).

Gilbey v. Dep't of the Interior, No. 89-0801, 1990 WL 174889 (D.D.C. Oct. 22, 1990) (Exemption 6: release of Park Policeman's job performance evaluations could lead to disruption in the workplace, could cause the officer embarrassment, and could have a chilling effect on supervisor candor; the information plaintiff seeks is available through other means less invasive of the officer's privacy).

Gray, Plant, Mooty, Mooty & Bennett v. IRS, No. 4-90- 377 (D. Minn. Nov. 15, 1990) (magistrate's ruling) (grants IRS's motion for a protective order staying all discovery until after the IRS has filed its motion for summary judgment and supporting affidavits).

Gray, Plant, Mooty, Mooty & Bennett v. IRS, No. 4-90-210, 1990 U.S. Dist. LEXIS 18799 (D. Minn. Dec. 18, 1990) ("reasonably described" records: the defendant agency cannot construe plaintiff's request for the "Brown Report" as a request for an original copy and therefore deny the request, because the agency has no "original" or "authentic" copies of the report) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: the Brown Report, a public report of IRS's audit of the business machine industry, is not "return information" because it does not include data in a form which can be associated either directly or indirectly with a particular taxpayer; the report must be released, but information identifying specific taxpayers should first be redacted).

Grove v. CIA, 752 F. Supp. 28 (D.D.C. 1990) (FOIA/PA interface: although plaintiff has not provided release authorizations required by the Privacy Act, the burden is on the defendant agency to prove that plaintiff's request for information concerning 4 individuals is exempt from disclosure under the FOIA) (exhaustion: plaintiff exhausted his administrative remedies as to those agencies that neither complied with the 10-working-day requirement nor responded before the date when plaintiff filed suit; plaintiff's claims against those agencies that responded to his request before he filed suit must be dismissed for failure to exhaust administrative remedies; quoting Oglesby v. Department of the Army, finds that because "the precise requirements of FOIA exhaustion have heretofore not been sufficiently certain," plaintiff may appeal these latter claims).

Hahn v. IRS, No. 3-89-3254, 1990 U.S. Dist. LEXIS 11594 (N.D. Tex. Aug. 24, 1990) (exhaustion: because the IRS's statutory time limit to respond to FOIA requests does not begin to run until the IRS receives a perfected request, plaintiff has not exhausted his administrative remedies).

Hale Fire Pump Co. v. United States, No. 90-2714, 1990 WL 109948 (E.D. Pa. July 30, 1990) (duty to search: the Air Force is not required to initiate a search at all government installations where documents responsive to plaintiff's FOIA request may be found; the Air Force has provided plaintiff with a list of all the facilities and plaintiff may use this information to make new FOIA requests).

Harvey v. Dep't of Justice, 747 F. Supp. 29 (D.D.C. 1990) (mootness: the Parole Commission did not withhold any information subject to plaintiff's FOIA request that existed at the time of the Commission's initial response to the request) (improper withholding: the case records for which Executive Office for United States Attorneys (EOUSA) did not claim any exemptions but withheld because EOUSA concluded that plaintiff might already have most of the material and that the information was available from the Clerk of the Court must be produced for plaintiff, if he still wants them) (Exemption 7(C): protects the identities and telephone numbers of potential witnesses and third parties; the exemption protects a letter from an Assistant United States Attorney to a District Attorney regarding a potential trial witness) (Exemption 5: the attorney work-product privilege protects 150 pages of trial notes, evidentiary notes, potential witness testimony, and telephone numbers prepared by the United States Attorney's Office (USAO) in anticipation of litigation against plaintiff and a memorandum containing the prison staff's responses to the lawsuit filed by plaintiff against the Bureau of Prisons; the attorney work-product privilege and the deliberative process privilege protect 3 pages of USAO communications and recommendations made in anticipation of litigation) (Exemption 7(D): protects documents provided to the USAO by local law enforcement authorities during a criminal investigation, including internal police department documents, 5 pages of letters to third parties regarding authorization for the interception of wire and/or oral communications, and intelligence reports; disclosure of documents would dissuade persons from providing information in the future for fear that their identities would not remain confidential) (Exemption 3 [Rule 6(e)]: protects grand jury transcripts).

Heun v. IRS, No. 89-1243 (D. Ariz. Nov. 15, 1990) (no record within scope of request: defendant agency's affidavit demonstrates that no documents responsive to plaintiffs' request were in existence at the time of their request) (a letter from an Assistant United States Attorney to an IRS District Director dated subsequent to plaintiffs' request may be withheld under Exemptions 3 [26 U.S.C. § 6103(e)(7)], 5, and 7(A).

Hopkins v. HUD, No. 90-489C (W.D.N.Y. July 31, 1990) (Exemption 5: inspector reports concerning a construction company's work on a low-rent housing project in New York are protected by this exemption because they are intra-agency memoranda containing predecisional opinions) (Exemption 7(C): following Reporters Committee, holds that the release of payroll records containing individualized employee information would be an unwarranted invasion of personal privacy).

Jaindl v. FBI, No. 90-1222 (D.D.C. Oct. 31, 1990) (Exemption 2: FBI Headquarters telephone extensions, room numbers, and computer access codes constitute administrative matters, apparently under "low-2," within the scope of this exemption) (Exemption 7(C): protects the identities of FBI Special Agents and personnel and third parties, including victims of alleged criminal acts and other persons interviewed during the investigations) (Exemption 7(D): promises of confidentiality are implied whenever confidential sources are used in investigations; exemption protects the information furnished by a confidential source as well as the source's identity).

Krikorian v. Dep't of State, No. 88-3419 (D.D.C. Dec. 19, 1990) (Exemption 1 [E.O. 12,356]: documents relating to an article and note published by the Department of State concerning Armenian terrorist activities may be withheld under Exemption 1 because they pertain to foreign government information, foreign relations, and intelligence activities; although the defendant has reversed decisions made during the administrative process, plaintiff has not been able to prove that the defendant acted in bad faith nor to seriously question the veracity of the agency's affidavits) (Exemption 3 [50 U.S.C. § 403(d)(3), § 403g]: protects highly sensitive foreign government information, information concerning sources or methods, and information concerning foreign relations or foreign activities of the United States) (Exemption 5: the deliberative process privilege protects 2 draft letters proposed as options for replies to public inquiries about the article and note because they are proposed recommendations and do not represent the final agency policy; the deliberative process privilege also protects an informal, undated memorandum in which one agency official presents his views to another official about a document prepared by a third official).

Landano v. Dep't of Justice, 751 F. Supp. 502 (D.N.J. 1990) (Exemption 2: protects symbol numbers of confidential informants) (Exemption 7(C): "plaintiff's right to information that establishes his innocence and the public's interest in assuring that the innocent are not wrongfully convicted furthers the policy concerns which engendered the FOIA"; applying the "categorical balancing" concept of Reporters Committee, withholds the names of FBI informants and FBI undercover agents from plaintiff's rap sheet; rejecting defendant's assertion that the names of witnesses and the names and initials of other FBI and law enforcement personnel may be categorically withheld under Reporters Committee, orders this information released) (Exemption 7(D): protects information that could reasonably be expected to disclose the identities of confidential FBI sources or undercover agents; because the defendant did not offer case-specific reasons for withholding information that could identify witnesses and other law enforcement personnel, this information must be released) (in camera inspection: the court has not reviewed the information in camera, because the Vaughn Index and accompanying affidavit should be sufficient to determine whether the circumstances of a particular case warrant the exercise of a FOIA exemption; "no impartial reviewer can examine these files with the same knowledge, intensity, and interest as plaintiff").

Leeds v. Comm'r of Patents & Trademarks, No. 90-1038 (D.D.C. Aug. 31, 1990) (subsection (a)(2): patent examiner's Statement of Reasons for allowing a claim of patent application need not be indexed, because it is not a dispositive order that determines whether a patent will issue, but rather a way to supplement the record).

Leeds v. Quigg, 745 F. Supp. 1 (D.D.C. 1990) (subsection (a)(2)(A): petition decisions rendered during the patent application process for patents that were ultimately issued and that are contained in files that are available to the public do not fall within subsection (a)(2) and therefore need not be indexed; they are not "final opinions" because they do not effect a final disposition of a patent application).

Lisee v. CIA, 741 F. Supp. 988 (D.D.C. 1990) ("exceptional circumstances"/"due diligence": grants Open America stay, because affidavits demonstrate that agencies have a substantial backlog and that they process FOIA requests on a "first-in, first-out" basis; a publication contract deadline is not a valid basis for expedited processing) (Vaughn Index: orders CIA to produce the Vaughn Index that should have been completed in mid-April).

Local 608, United Bhd. of Carpenters & Joiners v. Silverman, No. 89-6604 (S.D.N.Y. Nov. 19, 1990) (attorney fees: there is no public benefit in the release of information that was sought solely to assist plaintiff in a private lawsuit; the government has at least a colorable basis to resist disclosure of a Charging Party's affidavit under the FOIA, because it is still an unsettled issue of law; attorney fees denied).

Maki v. Dep't of Justice, No. 1:89-1041 (W.D. Mich. July 9, 1990) (agency: the FBI is an agency under the FOIA) (exhaustion: plaintiff, who has not "proceeded in the orderly manner prescribed by law," has not exhausted his administrative remedies).

Martens v. Dep't of Commerce, No. 88-3334, 1990 U.S. Dist. LEXIS 10351 (D.D.C. Aug. 6, 1990) (Exemption 1 [E.O. 12,356]: even though he maintains a high security clearance, the plaintiff is not entitled to obtain access to classified information compiled about himself through the Privacy Act).

Martinez v. United States Postal Serv., No. 90-1630 (D.D.C. Nov. 1, 1990) (due to the Marshals Service's significant backlog of FOIA requests that it is currently processing, grants the defendant's Open America motion on the condition that the Marshals Service advise the court every 120 days of its progress in processing plaintiff's FOIA requests).

Maynard v. Dep't of Justice, No. 88-0046-B (D. Me. Nov. 14, 1990) (after in camera inspection, orders production of 3 portions of 3 documents that the agency sought to withhold under Exemption 1), motion for reconsideration granted in part (D. Me. Feb. 1, 1991) (agency need not release one portion of one document).

Mayock v. INS, No. C85-5169 (N.D. Cal. Sept. 20, 1990) (attorney fees: upon plaintiff's motion for reconsideration of court's May 16, 1990 order, awards Mayock & Associates and their outside counsel reasonable attorney fees and costs for work performed before September 30, 1987, when Mayock represented alien plaintiffs in the suit and also for time spent on the motion for reconsideration; denies an award of fees and costs for work performed after September 30, 1987, when Mayock became the lead plaintiff).

Morello v. Dep't of Justice, No. 90-1078 (D.D.C. Oct. 16, 1990) (exhaustion: plaintiff has failed to exhaust his administrative remedies because he neither paid search fees of $543,177.50 nor has agreed to pay them).

Murdock v. United States, No. C90-0071W (D. Utah July 2, 1990) (Federal Register publication: defendant in an IRS criminal action was not adversely affected by the failure of the Secretary of the Treasury to publish orders delegating the Secretary's power to issue administrative summonses).

Nation Co. v. Archivist of the United States, No. 88-1939 (D.D.C. July 24, 1990) (agency: the Tower Commission is not an agency for purposes of the FOIA because it existed solely to advise the President and make recommendations regarding the National Security Council (NSC)) (FOIA/FACA interface: even though the Tower Commission was not an agency within the FOIA, §10(b) of the Federal Advisory Committee Act "subjects" the advisory commission to the FOIA and therefore the Archivist of the United States, the current custodian of the documents, must justify withholding the documents under the FOIA) (Exemption 1 [E.O. 12,356]: reclassification was proper under the current executive order because there is no evidence that defendant was trying to cover up embarrassing information; disclosure of 2 case studies and support documents used by the Commission in evaluating the NSC's role during the TWA-847 and Achille Lauro incidents "could reasonably be expected to cause damage to the national security"; defendant need not provide redacted documents because the release of the context of widely known, publicly available information would provide official acknowledgment of heretofore unacknowledged materials).

Nelson v. Dep't of Justice, No. 1:90-1119 (N.D. Ga. Sept. 12, 1990) (Exemption 1 [E.O. 12,356]: defendant agency's affidavit clearly demonstrates that it may refuse to confirm or deny the existence of any documents that it might possess under the Foreign Intelligence Surveillance Act, because the fact of the existence or nonexistence of the records is itself classified).

Painting Indus. Mkt. Recovery Fund v. Dep't of the Air Force, 756 F. Supp. 452 (D. Haw. 1990) (denies the government's motion for reconsideration of court's May 25, 1990 order which held that employees' modest privacy interest in preventing the disclosure of their names, home addresses, and other less personal information contained in payroll records is outweighed by the public interest in monitoring compliance with the Davis-Bacon Act -- there has not been an intervening change in controlling law, nor is there a need to correct clear error).

Painting Indus. Mkt. Recovery Fund v. Dep't of the Air Force, No. 89-00713 (D. Haw. Dec. 12, 1990) (stay pending appeal: denies government's motion to stay court's consideration of plaintiff's motion for attorney fees pending the outcome of its appeal in this case) (attorney fees: the plaintiff has substantially prevailed where the court granted partial summary judgment in its favor and the government dropped its remaining defense; the disclosure of contractor payroll records served a significant public interest in that it enabled the nonprofit organization to monitor contractor compliance with the Davis-Bacon Act; the Painting Industry Fund has a direct pecuniary interest in the release of the payroll information; the government had a reasonable basis in law for withholding the records, even though it did not prevail on those issues in court; plaintiff is not entitled to attorney fees and costs).

Petroleum Info. Corp. v. Dep't of the Interior, No. 89-3173 (D.D.C. Dec. 20, 1990) (Exemption 5: the Bureau of Land Management's (BLM) Legal Land Description Data File, which contains information about BLM property such as its description, location, surface administrative agency, political unit, and acreage, is a purely factual compilation of raw data, and as such is neither predecisional nor will its disclosure compromise BLM's deliberative process in any way; the government may not avoid disclosure of factual material merely by claiming that the document in question is a "draft").

Pub. Citizen v. Farm Credit Admin., No. 89-2094 (D.D.C. Sept. 6, 1990) (Exemption 8: the National Consumer Cooperative Bank (NCCB) is a "financial institution" for purposes of this exemption; the exemption protects audit reports prepared by the agency for submission to Congress regarding the NCCB).

Ray v. Dep't of Justice, 770 F. Supp. 1544 (S.D. Fla. 1990) (failure to meet time limits: numerous and repeated delays and failures to meet the statutory 10-day time limit in processing FOIA requests is a "pattern and practice" of the Miami INS office) ("exceptional circumstance"/"due diligence": a routine administrative backlog does not constitute "exceptional circumstances"; finding that the facts of this case are indistinguishable from Mayock, holds that the INS has not exercised "due diligence" in this case because it has not given priority treatment to information needed for deportation and exclusion hearings) (while denying plaintiff broader injunctive relief, orders the Miami INS office to comply with the statutory time limits of the FOIA; the Miami INS office may not invoke the 10-day extension more than once per FOIA request; the Miami INS office must give "priority" treatment to FOIA requests where the information is needed for deportation or exclusion hearings).

Reynoldson v. FBI, No. 90-0451 (D.D.C. Nov. 6, 1990) (plaintiff's complaint is dismissed for failure to prosecute because of plaintiff's failure to comply with any of the court's orders and with the local rule requiring parties to notify the court of a change of address).

Rush v. Dep't of State, 748 F. Supp. 1548 (S.D. Fla. 1990) (Exemption 1 [E.O. 12,356]: exemption protects 33 documents exchanged between Soviet officials and a representative of the President of the United States that contain candid analyses concerning the 1971 Quadripartite Negotiations about the status of Berlin; all 41 of the documents may be withheld because they contain foreign relations information, which has been held to include information received informally by the United States from a third government; although plaintiff is an individual with sufficient expert knowledge to overcome an agency decision regarding national security, plaintiff has not rebutted the defendants' affidavit which demonstrates that the unauthorized release of these documents could reasonably be expected to damage national security; unofficial disclosure does not prevent an agency from classifying the same or similar material; while the existence of secret discussions may have been officially released, the substance of those secret discussions has never been officially released with the specificity in the documents sought; because the documents were White House records in origin, the National Security Council had authority to classify them) (Exemption 5: the deliberative process privilege protects documents that contain candid analyses of the Berlin Negotiations, because while the United States may have had specific goals during the negotiations, the documents include recommendations necessary to the formulation of policy and suggested wording ultimately not incorporated in the final agreement; plaintiff, who is the author of some of the documents, may not waive the exemption for himself or for his correspondent).

Savada v. DOD, 751 F. Supp. 240 (D.D.C. 1990) (adequacy of affidavit: orders defendant agencies to supplement their affidavits within 30 days, because on the basis of the present record the court is unable to determine the validity of their claim of the deliberative process and attorney work-product privileges).

Schiller v. NLRB, No. 87-1176 (D.D.C. July 10, 1990) (Exemption 2: instructions to staff regarding internal operating guidelines and the procedures for the litigation of Equal Access to Justice Act (EAJA) cases are "predominantly internal" and their release would significantly risk the NLRB's enforcement effectiveness; the exemption has not been waived by the release of similar documents because this prior disclosure was discretionary and consistent with the case law at the time of release) (discretionary disclosure: discretionary disclosure of a document pertains to that document alone, regardless of whether similar documents exist) (Exemption 5: the deliberative process privilege protects memoranda which discuss facts and recommendations for certain EAJA proceedings; the attorney work-product privilege protects legal theories as to strategies and tactics for litigation of EAJA cases).

Seattle Bldg. & Constr. Trades Council, AFL-CIO v. HUD, No. C89-1346C (W.D. Wash. Oct. 30, 1990) (Exemptions 6 and 7(C): applying Reporters Committee, orders the disclosure of government construction contractor's certified payroll records, because the public interest in the enforcement of the Davis-Bacon Act outweighs the privacy interest in the names and addresses of the workers).

Shields v. HUD, No. 90-0411 (D.D.C. Nov. 1, 1990) (attorney fees: plaintiff has not substantially prevailed in this FOIA case where there was a minor delay in processing records and the defendant never claimed to be withholding any of the information; there is no public benefit when the plaintiff is using the FOIA as a substitute for discovery in private litigation; plaintiff is representing a savings and loan association in a matter involving purely commercial interests; a minor delay in the processing of records does not constitute the withholding of information under the FOIA).

Shilling v. ATF, No. 90-1422 (D.D.C. Dec. 3, 1990) (grants the FBI an Open America stay until July 1991 and the United States Marshals Service a stay until February 1991 because both agencies have a large backlog of FOIA requests that they are handling on a "first-in, first-out" basis; plaintiff who seeks "exculpatory evidence" for various post-conviction proceedings has only made unsupported allegations that his need for the requested information is exceptional or urgent).

Simon v. Dep't of Justice, No. 89-2117 (D.D.C. Sept. 14, 1990) (orders in camera inspection in this case where plaintiff sought a 3-page document and defendant agencies claimed that the entire document is exempt from disclosure under Exemptions 7(C) or 7(D); denies plaintiff's additional request that his attorney be present at the in camera inspection).

Simon v. Dep't of Justice, 752 F. Supp. 14 (D. D.C. 1990) (Exemption 7 (threshold): applying Pratt v. Webster, holds that records compiled by the FBI in the early 1950s in the course of its investigation of plaintiff for possible violations of the Internal Security Act meet the Exemption 7 threshold, even though this investigation did not lead to a criminal prosecution) (Exemption 7(C): the exemption protects the names, initials, and identifying marks of FBI Special Agents and other government employees involved in processing the records, as well as references to third parties, identified directly by name or description or indirectly by file designation numbers; the passage of almost 40 years does not diminish the privacy interests at stake in a controversial case of this kind involving allegations of concealed Communist affiliations) (Exemption 7(D): even if the source had not explicitly requested confidentiality, promises of confidentiality are "inherently implicit" when the FBI solicits information; following Schmerler v. FBI, finds that once the government has demonstrated that sources are confidential, the passage of time is irrelevant; the exemption protects the identity of the confidential source, his place of work, and the information itself) ("reasonably segregable": with very little discussion, finds that small portions of one page may be segregated and must be released).

Spirovski v. DEA, No. 90-1633 (D.D.C. Nov. 8, 1990) ("no records" defense: by executing a thorough search for documents responsive to plaintiff's request, and finding none, the defendant agency has discharged its obligation under the FOIA and is entitled to summary judgment).

Star-Telegram, Inc. v. Dep't of Justice, No. 4-88-74 (N.D. Tex. Sept. 14, 1990) (Exemption 7(C): protects the identities of third parties, informants, FBI Special Agents, and support personnel mentioned in records pertaining to an FBI investigation of the Fort Worth Police Department) (Exemption 7(D): protects the identities of and information provided by individuals who provided information to the FBI on a confidential basis in the course of an investigation; exemption also protects identities of and information provided by nonfederal law enforcement officers).

Stebbins v. Sullivan, No. 90-0559 (D.D.C. Sept. 14, 1990) (motion for reconsideration denied in this FOIA case where the court denied under Exemption 3 plaintiff's request for the address of a third party because the agency's only source of this address would be from tax returns and 26 U.S.C. § 6103(b)(2) expressly prohibits the disclosure of a taxpayer's address).

Steffen v. Dep't of Justice, No. 89-3434 (D.D.C. July 12, 1990) ("exceptional circumstances"/"due diligence": grants the Marshals Service's Open America request; the Service handles all FOIA requests on a "first-in, first-out" basis and the fact that plaintiff is a litigant in another lawsuit does not constitute "exceptional need or urgency") (adequacy of search: the searches conducted by the IRS and the Bureau of Prisons were reasonably calculated to uncover documents responsive to plaintiff's FOIA request).

Teich v. FDA, 751 F. Supp. 243 (D.D.C. 1990) (agency records: FDA's presubmission review regulation, which promises companies that the agency will return documents that cannot be protected under the FOIA, violates the FOIA and is therefore invalid; Dow Corning's complaint summary about its silicone gel breast implants that came to the FDA in the "legitimate conduct of its official duties" is an agency record under the FOIA; although Dow Corning gave the complaint summary to the FDA under a promise of confidentiality, because the FDA was attempting to evade the FOIA for its own purposes and for those of its regulatees, the court retroactively applies the FOIA and orders it released) (Exemption 4: given the fact that the FDA is the agency charged by Congress with safeguarding the public health, rejects FDA's argument that because breast implant manufacturers are under no legal obligation to perform or report the results of safety testing, the agency would be unable to investigate whether or not the silicone gel breast implant is a "killer product" that should be removed from the market; finds it "absurd" that a reputable company would not perform safety tests, would do less testing, or would be less likely to report such testing if the FDA would release it under the FOIA; quoting Critical Mass Energy Project v. NRC and Washington Post Co. v. HHS, finds that even if disclosure of the test results from animal studies could deprive the FDA of "some necessary information," the agency has not shown that "the impairment is significant enough to justify the withholding of the information"; the benefit of disclosing test results that demonstrate that a product poses a danger when used in a certain manner far outweighs the negligible competitive harm to the company involved; studies that were performed over 20 years ago would be of less current significance, given the major advances in technology in recent years; orders disclosure of the test results from animal studies).

Thibault v. United States, No. 89-C-1036A (D. Utah July 19, 1990) (exhaustion: despite numerous communications between plaintiffs and the IRS, plaintiffs have not exhausted their administrative remedies, and therefore the court lacks jurisdiction).

Vaughn v. HHS, No. 90-0452 (D.D.C. July 3, 1990) (exhaustion: because plaintiff never filed a FOIA request, this case is dismissed for failure to exhaust administrative remedies).

Wachtel v. Office of Thrift Supervision, No. 3-90-0833 (M.D. Tenn. Nov. 20, 1990) (Exemption 5: letter addressing the issue of whether the Federal Home Loan Bank Board (FHLBB) has legal authority to approve an application for acquisition between 2 financial institutions and a cover letter and memorandum about capital maintenance obligations are "far too conclusory" to be considered part of the deliberative process; a memorandum that includes a statement of policy cannot be protected under the deliberative process privilege, but 2 sentences concerning a disagreement as to its utility may be redacted; the deliberative process privilege protects the minutes of a meeting of the Supervisory Policy Committee of the Office of Thrift Supervision (OTS), an opinion letter, an unfinished, incomplete, partially handwritten memorandum, and an issues paper that follows up a policy statement of the FHLBB and contains analysis and recommendations; the deliberative process privilege protects portions of an enforcement memorandum that deal with strategy, while other portions of that memorandum that contain agency policy must be released; the deliberative process and the attorney-client privileges do not protect an inter-office cover memorandum about the use of capital maintenance agreements nor 2 other memoranda about the enforceability of these agreements; the attorney-client privilege does not protect a document that was not supplied to attorneys with the "expectation of secrecy" nor a memorandum that was distributed to other individuals) (Exemption 8: protects portions of a document that contain specific information about 2 financial institutions -- the names of the institutions, the names of their officers and agents, any references to their geographic locations, and specific information about their financial conditions) (FOIA as a discovery tool: a FOIA requester's rights are neither enhanced nor diminished by the fact that the requester is seeking documents for use in litigation) (because the good faith of the OTS has become suspect in the eyes of the court, orders that all nonexempt documents should be released now).

War Babes v. Wilson, 770 F. Supp. 1 (D.D.C. 1990) (Exemption 6: in a unique case in which several British citizens seek information from the United States Government by which they hope to locate 34 former United States servicemen they believe to be their natural fathers, the court, applying Reporters Committee, holds that the disclosure of present addresses of World War II servicemen would not necessarily "constitute a clearly unwarranted invasion of personal privacy"; it would not be unduly burdensome to require the government to contact each of the 18 servicemen for whom current addresses are available to determine whether the disclosure of his address would be offensive to him).

Warmack v. Huff, No. 88-H-1191E (N.D. Ala. May 16, 1990) (magistrate's recommendation) (Exemption 7(D): exemption protects the identities of confidential sources who have testified at trial) (Exemption 7(A): release of information about the multi-defendant criminal case in which plaintiff was involved would impair the government's ability to prosecute 4 fugitives in proceedings in the future) (adequacy of search: agencies need not conduct searches below the headquarters level when FOIA requests fail to specify the field offices that are to conduct the search) (fee waiver (Reform Act): plaintiff has not shown how the release of first-party information is in the public interest) ("reasonably described" records: plaintiff's failure to provide the Parole Commission with his previous register number, dates, and places of confinement would require the agency to conduct an exhaustive and costly search) (Exemption 5: the attorney work-product privilege applies to documents obtained from other sources and agencies in preparation for litigation) (jurisdiction: the court's jurisdiction in FOIA matters is to ensure that defendants have not improperly withheld agency records) (summary judgment: recommends that summary judgment be granted to the defendant because it has sustained their burden of proof that it has not wrongfully withheld documents), adopted (N.D. Ala. Aug. 14, 1990), subsequent order (N.D. Ala. Sept. 4, 1990) (grants plaintiff's request for appointment of counsel on appeal because plaintiff is a pauper and this case involves genuine questions of law concerning the scope of FOIA exemptions).

Wash. Post Co. v. Dep't of Justice, No. 84-3581 (D.D.C. Aug. 2, 1990) (partially grants plaintiff's motion for leave to take discovery of Eli Lilly and Company for information relating to the facts upon which Eli Lilly bases its pending motion for summary judgment concerning whether the requested documents fall within Exemption 7(B) -- discovery is appropriate as to the second prong of the test set forth by the court of appeals).

Wash. Post Co. v. Dep't of State, No. 79-2688 (D.D.C. July 3, 1990) (Exemption 6: applying Reporters Committee, opens discovery for 60 days as to the effect that official confirmation or denial of Dr. Ibrahim Yazdi's alleged American citizenship would have on him).

Williams v. Executive Office for United States Attorneys, No. 89-3071 (D.D.C. Dec. 6, 1990) (denies plaintiff's motion for appointment of counsel, because this FOIA case does not raise novel or exceptionally complex issues and because pro se plaintiff has cited no statute requiring appointment of counsel ("and probably cannot in a FOIA action")).

Williams v. Office of Special Counsel, No. 90-0272 (D.D.C. Dec. 7, 1990) (Exemption 5: witness statements and interviews conducted by the Office of Special Counsel in the course of an investigation are protected by the attorney work-product privilege).

Wis. Project on Nuclear Arms Control v. DOE, No. 90-1432 (D.D.C. Dec. 18, 1990) ("exceptional circumstances"/"due diligence": grants defendant agency's motion for an Open America stay; although the defendant agency may have neglected their statutory responsibilities prior to the filing of this suit, it is now diligently responding to plaintiff's requests) (discovery in FOIA litigation: grants defendant agency's motion for a protective order staying discovery because the factual dispute as to whether defendant was exercising due diligence is irrelevant to the current status of the case).

Wrenn v. Bowen, No. 86-916 (N.D.N.Y. Sept. 27, 1990) (plaintiff's submissions in support of his motion for summary judgment do not adequately challenge the defendant agency's determination that from records concerning their investigation of plaintiff a limited withholding of information under Exemptions 7(C) and 7(D) was necessary).

Other Courts

Maple v. Comm'r, T.C. Memo. 1990-567 (Oct. 30, 1990) (jurisdiction: FOIA matters are within the jurisdiction of the United States District Courts, not the Tax Court).  (posted 10/16/03)

Go to: Main FOIA Post Page // DOJ FOIA Page // DOJ Home Page