The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of January through June 1994. OIP is preparing additional compilations of decisions received during previous months and years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).
DOD v. FLRA, 501 U.S. 487 (1994) (Exemption 6: in a unanimous decision, the court reverses the Fifth Circuit's ruling and finds that the home addresses of agency employees are protected from disclosure to the unions representing the employees; applying Reporters Committee, finds that the disclosure of the addresses would reveal little or nothing about the employing agencies or their activities; the fact that plaintiffs are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis; the negligible public interest in disclosure is "substantially outweighed" by the employees' privacy interest in nondisclosure) (Souter, J., concurring; Ginsburg, J., concurring in the judgment only).
Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994) (Federal Register notice: even though the 8-factor test for scheduling controlled substances was not published until 17 days after the close of evidence in their petition, plaintiff has not shown that it was adversely affected by DEA's use of the 8-factor test to evaluate the evidence presented in its marijuana rescheduling petition).
Allnet Communications Servs. v. FCC, No. 92-5351 (D.C. Cir. May 27, 1994) (while not directly addressing Critical Mass issues, affirms district court's ruling that information submitted to the FCC as part of its rate-setting program for enhanced telecommunication services was properly protected under Exemption 4 as confidential, commercial information; the Vaughn Index adequately established the basis for withholding the information; there were no segregable, nonconfidential materials that could be released).
Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994) (Exemption 3 [15 U.S.C.
Antonelli v. Executive Office for United States Attorneys, No. 92-2416 (7th Cir. June 6, 1994) (unpublished order), 25 F.3d 1053 (7th Cir. 1994) (table cite) (affirms district court's dismissal of this FOIA case; plaintiff has not "reasonably described" the requested records in accordance with the agency's published rules; plaintiff has also failed to plead that he has exhausted his administrative remedies).
Bauer v. United States, No. 90-2771 (D.D.C. July 30, 1993), summary affirmance granted, No. 93-5327 (D.C. Cir. Apr. 15, 1994) (summary affirmance granted to the government in this FOIA case where the district court ruled that information in plaintiff's tax conviction file was properly withheld under Exemptions 3, 5, and 7(C)).
Beckette v. United States Postal Serv., No. 93-1329 (4th Cir. May 18, 1994) (unpublished order), 25 F.3d 1038 (4th Cir. 1994) (table cite) (agency properly withheld computer program under FOIA Exemption 2).
Borden v. FBI, No. 94-1029 (1st Cir. June 28, 1994) (per curiam) (unpublished order), 27 F.3d 554 (1st Cir. 1994) (table cite) (affirms district court order dismissing this case because plaintiff's request for documents was not made in accordance with the agency's published regulations).
Burka v. HHS, No. 94-5003 (D.C. Cir. June 15, 1994) (this FOIA case remanded sua sponte for consideration of plaintiff's request to supplement the record).
Carney v. Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) (discovery in FOIA litigation: the district court did not abuse its discretion in denying plaintiff discovery; plaintiff's allegations that Department of Justice's searches were inadequate, based solely on his interviews with individuals whom he can't identify because they "spoke to him in confidence" are "without factual support" and "grounded in mere speculation") (adequacy of agency affidavit: the affidavits submitted by the Department of Justice were prepared by individuals responsible for supervising FOIA searches) (fee waiver (Reform Act): remanded to the district court for a consideration of whether disclosure of the records to plaintiff, a scholar, professor, and author, will contribute significantly to the public's understanding of the role of the Justice Department in the judicial selection process; it is not proper to deny a fee waiver simply because the records may be determined to be exempt from disclosure; if the request is for records that should be disclosed in the public interest, the agency should not be allowed to charge for searching the records; even though these records have already been released to other requesters, this does not mean that these records are readily available to the public or that their disclosure would not contribute significantly to the public's understanding of the operation of the federal government; plaintiff was properly required to pay for the costs associated with searches for records relating to plaintiff's own FOIA requests concerning the processing of his academic research requests, particularly where it appeared that he was pursuing these solely in preparation for litigation).
Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) (subsection (a)(2): faced with conflicting precedents concerning whether proof of bad faith or willful misconduct is necessary for the imposition of sanctions on auditors, the Commission failed to clearly choose its present position and "astonishingly" relied on unpublished authority; this is unacceptable authority under the APA; case remanded to the Commission).
Creel v. HHS, 28 F.3d 1295 (D.C. Cir. 1994) (summary affirmance granted to defendant in this FOIA case where the district court held that Exemption 6 protects personal identifying information about third parties from certain tax records).
Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994) (publication: FOIA publication requirements do not apply to state agencies).
Dobronski v. FCC, 17 F.3d 275 (9th Cir. 1994) (Exemption 6: federal employee's sick leave records meet the threshold requirement of this exemption; even though plaintiff is involved in selling newsletters, he asserts a public interest in investigating payroll abuse by public officials; unlike in Exemption 7(C) cases, if the plaintiff does not produce credible evidence of wrongdoing, the public interest in disclosure of investigation records is not minimized; government employees have a "nominal" privacy interest in their sick leave records; aberrationally ordering disclosure).
Ethyl Corp. v. EPA, 25 F.3d 1241 (4th Cir. 1994) ("While an efficient and effective democratic government is one that is open to the people and accountable to them, the people's access must be orderly and not so unconstrained as to disrupt the government's daily business.") ("agency record": EPA employees were not thoroughly instructed in the factors that should be considered in determining whether a record is an "agency" or "personal" record; because a sufficient question has been raised about EPA's search methodology, it was error for the district court to have ruled that EPA had met its burden of proof on the search issue) (Exemption 5: applying Petroleum Information Corp., finds that EPA's Vaughn Index does not adequately demonstrate that each of its 146 records was properly withheld under the deliberative process privilege because they did not all involve "policy-oriented judgment"; EPA has also not met its burden of demonstrating that no segregable information exists) (if the district court is satisfied that the EPA cannot describe documents in more detail without breaching a properly asserted confidentiality, it may conduct in camera inspection of the documents).
FLRA v. Dep't of the Navy, No. 90-70511 (9th Cir. Apr. 18, 1994) (rehearing granted and the March 18, 1992 order of this court enjoining the agency from withholding employees' names and home addresses is vacated in light of the Supreme Court decision in DOD v. FLRA).
Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994) ("personal records": letters written by a Board member trying to secure reappointment are "personal records" under the FOIA; even though agency resources were used in their creation, these letters were written with the personal objective of retaining a job and were not used to carry out the business of the agency) (Vaughn Index: cites Delaney, Migdall & Young v. IRS, "the materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege"; in this case, a Vaughn Index is not necessary because the affidavits submitted by the agency were sufficiently detailed to allow the district court to decide the issues).
Gennuso v. Huff, No. 93-0768 (D.D.C. July 19, 1993), summary affirmance denied, No. 93-5258 (D.C. Cir. Feb. 22, 1994) (per curiam) (in their briefs the parties must address the issue of whether the FOIA provides a right of action to compel a federal agency to comply with the Act's indexing requirement; cites to Kissinger v. Reporters Committee for Freedom of the Press, which recognized in section (a)(2) an exception to the general rule that the FOIA does not require an agency to create records).
Georgacarakos v. United States Sentencing Comm'n, No. 93-5165 (D.C. Cir. June 7, 1994) (the U.S. Sentencing Commission is not a federal agency subject to the FOIA).
Gillin v. Dep't of the Army, No. 93-1825 (1st Cir. Mar. 18, 1994) (unpublished order), 21 F.3d 419 (1st Cir. 1994) (table cite) (affirms district court's grant of summary judgment to defendant; plaintiff failed to raise a substantial issue relating to the reasonableness of the Army's search for documents concerning a construction permit; finds no abuse of discretion in the district court's stay of discovery pending the outcome of the summary judgment motion).
Hill v. Blevins,
19 F.3d 643 (3d Cir. 1994) (affirms district court's Exemption 3 [5 U.S.C.
Housley v. DEA, No. 92-16946, 1994 WL 168278 (9th Cir. May 4, 1994) (unpublished memorandum), 24 F.3d 246 (9th Cir. 1994) (table cite) (the district court had an adequate factual basis on which to make its decision; DEA properly invoked Exemptions 7(C), 7(D), and 7(F)).
Kidd v. Dep't of the Interior, No. 93-15925 (9th Cir. Mar. 1, 1994) (unpublished memorandum), 19 F.3d 1440 (9th Cir. 1994) (table cite) (adequacy of affidavits: contrary to plaintiff's unsupported claim, the government's affidavit demonstrates that the document from which the redacted Project Management Evaluation was created was the original, unaltered document) (duty to search: plaintiff's assertions that the government's search was incomplete are speculative) (the district court did not err by denying plaintiff's motion for discovery concerning the adequacy of the search).
Lanter v. Dep't of Justice, No. 93-6308 (10th Cir. Mar. 8, 1994) (unpublished order), 19 F.3d 13 (10th Cir. 1994) (table cite) (affirms district court's order dismissing this case because plaintiff failed to exhaust his administrative remedies).
McDonnell Douglas Corp. v. NASA, No. 92-5342 (D.C. Cir. Feb. 14, 1994) (unpublished order), 18 F.3d 953 (D.C. Cir. 1994) (table cite) ("Reverse" FOIA/Exemption 4: hearing an appeal of a permanent injunction issued based upon an inadequate administrative record, remands the case to the district court for a reexamination of the applicability of Exemption 4 to the contract prices at issue in light of Critical Mass).
Neill v. Dep't of Justice, No. 93-5292 (D.C. Cir. Mar. 9, 1994) (in this FOIA case where plaintiff sought information to use in fighting his murder conviction, finds that the government's affidavit is too conclusory to support a grant of summary judgment on the grounds of Exemptions 2, 5, 7(A), 7(C), 7(D), and 7(E); Exemption 7(D) claim must be reevaluated in light of Landano; remands the case to the district court for further proceedings).
Owens v. Warner, No. 93-2195 (D.D.C. Nov. 24, 1993), summary affirmance granted, No. 93-5415 (D.C. Cir. May 25, 1994) (Congressional records: FOIA requirements do not apply to records maintained by Members of Congress).
Painting Indus. Mkt. Recovery Fund v. Dep't of the Air Force, 26 F.3d 1479 (9th Cir. 1994) (Exemption 6: disclosure of names, home addresses, Social Security numbers, and wage information in federal contractors' certified payroll records would be a "clearly unwarranted invasion of personal privacy"; "An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form."; the "derivative use" public benefit in this case (an inquiry into the government's diligence in enforcing the Davis-Bacon Act), is inextricably intertwined with the invasions of privacy incurred by direct contact with the employees whose records are being sought).
St. Hilaire v. Office of Special Investigations, No. 92-5153 (D.C. Cir. Apr. 28, 1994) (affirms district court's rulings from September 10, 1991 and March 18, 1992; the National Archives has satisfied its responsibilities under the FOIA by making the requested records available in its reading room in Washington, D.C.; information about Kurt Waldheim from the Office of Special Investigations was properly withheld under Exemptions 1, 5, 7(A), and 7(C)).
Spannaus v. DOD, No. 93-5375 (D.C. Cir. May 13, 1994) (summary affirmance granted to the government in this FOIA case where the district court ruled that the agency conducted a reasonable search and information was properly withheld under Exemption 7(C)).Steinberg v. Dep't of Justice, 23 F.3d 548 (D.C. Cir. 1994) (adequacy of search: because the district court did not address the issue of the adequacy of the search conducted by the Boston United States Attorney's Office, this issue is remanded to the district court; FBI's affidavits, by contrast, demonstrate that it conducted a reasonable search) (Exemption 1 [E.O. 12,356]: affirms the district court finding that 3 documents concerning the assassination of Swedish Prime Minister Olaf Palme were properly withheld under this exemption; each document was reviewed in full by the district court and the agency provided a sufficiently detailed affidavit) (Exemption 7(D): accepts the government's invitation to remand the issue of its reliance on this exemption for further consideration in light of Landano).
Stone v. Def. Investigative Serv., No. 93-5170 (D.C. Cir. Mar. 11, 1994) (appeal dismissed because of plaintiff's failure to prosecute), reh'g en banc denied (D.C. Cir. May 12, 1994).
Williams v. FBI, No. 93-5221, 1994 WL 874224 (D.C. Cir. Jan. 27, 1994) (per curiam) (unpublished order), 76 F.3d 1244 (D.C. Cir. 1994) (table cite) (partial summary affirmance granted on the adequacy of FBI's search and its withholding of information under Exemption 7(C), substantially for the reasons stated by the district court) (Exemption 7(D): on the court's own motion, case is remanded for reconsideration of whether the FBI properly withheld information in light of Landano).
Wrenn v. Vanderbilt
Univ. Hosp., No. 93-5994 (6th Cir. Jan. 31, 1994) (unpublished
order), 16 F.3d 1224 (6th Cir. 1994) (table cite) (affirms district
court's ruling that information was properly withheld under Exemptions 3 (42
Aircraft Gear Corp. v. NLRB, No. 92-C-6023 (N.D. Ill. May 14, 1994) (Exemption 5: the intra-agency requirement is not met by affidavits and witness statements that are summaries prepared by agency attorneys and signed by the witnesses; rejects the functional test insofar as it is inconsistent with Thurner Heat Treating Corp. v. NLRB) (Exemption 7 (threshold): the threshold requirement is met by 22 documents prepared by the NLRB in connection with unfair labor practices cases that are now closed) (Exemption 7(C): once the personal information has been redacted from these documents, neither the privacy interests nor the public interest weighs heavily in the balancing process; however, in FOIA cases the court should resolve all doubts in favor of disclosure) (Exemption 7(D): while this exemption is essentially moot because of the court's ruling in Exemption 7(C), it is the opinion of the court that the NLRB's witnesses were not of the type contemplated by Exemption 7(D), because they were given assurances of confidentiality subject to the possibility of having to testify in public).
Aircraft Gear Corp. v. Vander Schaaf, No. 94-C-870 (N.D. Ill. Mar. 16, 1994) ("exceptional circumstances"/"due diligence": adopts the treatment of this FOIA issue in Cohen v. FBI, stating that "almost from the outset the volume and scope of FOIA requests have overwhelmed government agencies to an extent that Congress never anticipated"; sets a status hearing for March 28, 1994; plaintiff's petition for a writ of mandamus is denied).
Am. Petroleum Inst. v. EPA, 846 F. Supp. 83 (D.D.C. 1994) (Exemption 5: the deliberative process privilege protects 14 documents withheld in whole or in part, including 6 undated memoranda, that contain opinions and recommendations on policy or legal matters; however, the agency did not adequately address the segregability of factual material from the 11 documents withheld in their entirety; on remand, the agency must either release this factual material or justify why it is being withheld).
Anderson v. DEA, No. 92-225 (W.D. Pa. May 18, 1994) (magistrate's recommendation) (Exemption 2: protects G-DEP codes, NADDIS numbers, and Cooperating Individual Codes; release of these codes would circumvent law enforcement efforts and there is no genuine public interest) (Exemption 7(C): protects information that would identify DEA employees, third parties, subjects of investigative interest, informants, and case file numbers) (Exemption 7(D): applying Landano, finds that the exemption protects the identities of individuals and law enforcement authorities who cooperated with DEA under assurances of confidentiality and whose lives would be endangered by the release of this information) (Exemption 7(E): protects specific, lawful investigatory techniques, the disclosure of which would undermine the effectiveness of future DEA investigations) (Exemption 7(F): the disclosure of the identities of DEA Agents, Special Agents, and other law enforcement officers would endanger their lives), adopted (W.D. Pa. June 27, 1994).
Anderson v. HHS, No. C84-861 (D. Utah Apr. 28, 1994) (attorney fees: plaintiff substantially prevailed because she "doggedly pursued" her FOIA claim and the disputed documents were disclosed after years of litigation and before the court entered an order compelling disclosure; the release of information about injectable silicone for commercial use will inform the citizenry and affect future decisions by FDA regarding similar medical products; plaintiff's primary motive in this FOIA case was to obtain documents to help her recover damages in her personal injury action in state court; plaintiff's secondary motive was public awareness of the dangers of liquid silicone injections; the government had a reasonable basis for withholding the records; even though plaintiff's controversy was directed largely at Dow Corning Corporation, the government opposed the disclosure of the documents and supported Dow throughout the litigation; a limited award of attorney fees and costs will be awarded for the second stage of litigation when plaintiff's motive for continuing the case was to benefit the public; grants plaintiff 200 hours of attorney time at $100 per hour; to obtain reimbursement for costs, plaintiff must submit an itemized bill to the court within 20 days).
Atkin v. EEOC, No. 92-5522 (D.N.J. Jan. 24, 1994) (exhaustion: plaintiff has not exhausted his administrative remedies because he has not paid a fee of $24.00 previously assessed against him by the EEOC for prior FOIA requests; plaintiff has also not appealed the denial of the 2 FOIA requests that are the subject of this lawsuit).
Atlantis Submarines Haw., Inc. v. United States Coast Guard, No. 93-00986 (D. Haw. Jan. 28, 1994) (preliminary injunction: in this "reverse" FOIA case concerning information about commercial submersibles at a dive site off Waikiki, denies plaintiff's motion for preliminary injunction; the disclosure of the Operations Manual and the Walsh Report (a safety assessment) would not cause Atlantis competitive harm under Exemption 4, nor would it cause irreparable hardship; the disclosure issue in this case involves the public's right to access materials influencing a federal agency's policy decisions regarding public safety) (the Temporary Restraining Order issued by this court on January 4, 1994 will remain in effect until February 2, 1994 to allow plaintiff sufficient opportunity to seek emergency review of this order).
Berg v. Commodity Futures Trading Comm'n, No. 93-C-6741 (N.D. Ill. June 21, 1994) (magistrate's recommendation) (Exemption 2 "low": the exemption does not protect procedures, guidelines, and related information dealing with how this publicly funded agency handles inquiries from and responds to the public; this material is not solely "internal") (Exemptions 2 "high" and 7(E): the disclosure of 2 memoranda could alert potential wrongdoers to the agency's use of customer correspondence and complaints in investigations).
Blazar v. OMB,
No. 92-2719 (D.D.C. Apr. 15, 1994) (Exemption 1 [E.O. 12,356] and Exemption
3 [50 U.S.C.
Bologna v. Dep't
of the Treasury, No. 93-1495, 1994 WL 381975 (D.N.J. Mar. 29, 1994) (Exemptions
3 [26 U.S.C.
Braslavsky v. FBI, No. 92-C-3027 (N.D. Ill. June 2, 1994) (Exemption 1 [E.O. 12,356]: deferring to agency's expertise, finds that the disclosure of information about the plaintiff "might allow hostile entities to discover the current activities and/or methods used by defendant") (Exemption 7(C): protects the names and initials of third parties and low-level FBI Special Agents and support personnel).
Butler v. Dep't
of Justice, No. 86-2255, 1994 WL 55621 (D.D.C. Feb. 3, 1994) (duty to search:
agency's affidavit demonstrates that its second search for records concerning
the plaintiff's drug activity while employed as an informant with the FBI was
"reasonably calculated to uncover all relevant documents") (seal: because the
agency has failed to come forward with any proof that there was a sealing order
issued by Judge Hand in Alabama in 1982 for the first of 2 hearings concerning
the plaintiff, this information must be turned over to the plaintiff) (Exemption
7(A): protects portions of 2 documents which refer to an escaped indictee who
has evaded law enforcement authorities for several years, because the release
of this information could make ultimate apprehension of this individual even
more difficult) (Exemption 7(C): reduced privacy interest of FBI supervisory
personnel who monitored plaintiff's activities at the FBI is outweighed by the
public interest in seeing that the plaintiff's due process rights are protected
in his criminal case; names and information identifying FBI supervisory personnel
must be released) (Exemption 7(D): applying Landano, finds that the
FBI properly withheld the names of confidential sources because these sources
were provided with specific assurances of confidentiality) (Exemption 7(E):
agency properly withheld information about a law enforcement technique that
is not generally known to the public) (Exemption 7(F): protects the names of
DEA agents who worked on the investigation of the undercover drug conspiracy
that led to plaintiff's arrest) (Exemption 2 "high": agency properly used this
exemption to withhold documents which concern the rules and practices governing
agency personnel; however, 2 documents that refer to the planning, execution
and review of specific operations must be released because they contain discussions
of plans devised to respond to a particular set of circumstances) (Exemption
3 [Rule 6(e)]: protects information that would reveal the identities of witnesses
before the grand jury; exemption does not protect descriptions of documents
that were subpoenaed by the grand jury; [18 U.S.C.
Canning v. Dep't of Justice, 848 F. Supp. 1037 (D.D.C. 1994) (Exemption 1 [E.O. 12,356]: deferring to agency expertise, finds that defendant's affidavits demonstrate with reasonable specificity that the FBI has followed the appropriate classification procedures and that the release of information about Jacques Cheminade, a French citizen, would reveal intelligence methods and activities and damage our relationship with a foreign government, despite the passage of 10 years; use of a coding system in a Vaughn Index is not per se improper, and the defendant's use of it in this case is designed to facilitate the court's review of its withholding decisions; defendant's affidavits are also conducive to judicial review, and are "narrowly tailored to reveal as much detail as possible, without disclosing information that must be kept secret"; there is no credible evidence that the FBI has withheld information to prevent embarrassment or to conceal illegal or improper activities) (in camera affidavit: defendant's motion for leave to file an in camera affidavit is denied as unnecessary because its affidavits are sufficiently detailed for an award of summary judgment) (duty to search: defendant's search was reasonably calculated to uncover all documents relevant to plaintiff's FOIA request) (denies plaintiff's request for the reinstatement of Count II of the Complaint because there is no reason to reconsider the reasonableness of the search conducted by the Department of State).
Cappabianca v. Comm'r, United States Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994) (in camera inspection: in camera inspection is not necessary in this FOIA case because the defendant has provided a detailed affidavit with an index describing the 11 documents withheld in part and the 3 documents withheld in their entirety) (Exemption 2 "high": disclosure of Customs' file numbers could reasonably be expected to lead to the circumvention of law) (Exemption 5: summary judgment is denied as to portions of 2 documents the defendant sought to withhold under this exemption because the defendant has not asserted any basis for the application of Exemption 5) (Exemptions 6 and 7(C): the slight public interest in disclosure of internal investigative records in plaintiff's personnel file is outweighed by the strong privacy interests of the informants, investigators, and subjects of investigative interest, some of whose identities are already known to the plaintiff) (Exemption 7 (threshold): threshold requirement is met by records compiled in an internal investigation of plaintiff, because if found guilty of harassment and retaliation he could have been subject to civil and/or criminal sanctions) (Exemption 7(D): applying Landano, finds that this exemption protects the identity of one source in this internal investigation who gave full cooperation only after receiving an express assurance of confidentiality).
Chenkin v. Dep't
of the Army, No. 1:93-494, 1994 U.S. Dist. LEXIS 20907 (M.D. Pa. Jan. 14,
1994) (in camera inspection: in camera inspection is unnecessary here because
there is no evidence of bad faith and the government has provided an adequate
description of the documents) (exhaustion: plaintiff has failed to dispute defendant's
argument that he has failed to exhaust his administrative remedies with respect
to one group of documents) (Exemption 5: the deliberative process privilege
protects a Report of Inquiry prepared as a preliminary opinion by one agency
official to assist Army personnel in deciding whether to further investigate
Martin Marietta) (Exemption 3 [10 U.S.C.
Computer Prof'ls for Soc. Responsibility v. Nat'l Inst. of Standards & Tech., No. 92-0972 (D.D.C. Apr. 8, 1994) (Exemptions 1 and 3: there is no evidence that the National Security Agency improperly classified 14 documents concerning computer security guidelines for the federal government in order to conceal its role in developing these guidelines; records were properly classified) (Exemption 5: the deliberative process privilege protects staff agency opinions; all segregable factual portions have been released).
Curcio v. FBI, No. 89-0941 (D.D.C. Mar. 24, 1994) (Exemption 7(A): grants defendant's motion for reconsideration; finds that the FBI may properly invoke underlying exemptions not previously raised now that Exemption 7(A) no longer applies to the 2200 pages at issue; information pertains to an investigation of 20 members of an organized crime family and much of it the FBI proposes to withhold under Exemptions 7(D) and 7(F); defendant must submit supplemental memoranda with respect to the new proposed exemptions by May 4; parties shall meet and confer by April 25 to determine whether the case can be settled).
Davis v. IRS, No. C93-2172 (N.D. Cal. Jan. 27, 1994) (grants defendant's motion for summary judgment in this FOIA case where the IRS withheld 87 pages in full and 161 redacted pages of plaintiff's administrative case file).
Detroit Free Press, Inc. v. Dep't of Justice, No. 93-74692 (E.D. Mich. Apr. 25, 1994) (bench order) (Exemption 7(C): finding an absence of a privacy interest, rules that the agency must release mug shots of individuals who have been indicted; appearances of these individuals at the time of booking shows how the Marshals Office conducts this part of the judicial process).
Egan v. United States Customs Serv., No. 92-2229 (D.D.C. June 14, 1994) (duty to search: defendant demonstrated that it conducted searches reasonably calculated to uncover all relevant documents in response to plaintiff's FOIA requests).
Elliott v. Triangle H.D.F. Corp., No. 93-2179 (S.D.N.Y. Jan. 18, 1994) (summary judgment granted to HUD in this FOIA case where the affidavits demonstrate that an adequate search was conducted and the responsive documents were given to the plaintiff).
Etemad v. EEOC, No. 93-780 (C.D. Cal. Apr. 8, 1994) (Exemption 5: after in camera inspection, finds that the deliberative process privilege protects 5 documents generated prior to the EEOC's decision to issue plaintiff a Right-to-Sue letter that contain information which reflects EEOC's analysis of the merits of plaintiff's discrimination complaint; there are no "reasonably segregable," nonexempt portions).
Four Corners Action Coalition v. Dep't of the Interior, No. 92-2106 (D. Colo. Jan. 4, 1994) (attorney fees: neither party objects to the magistrate's finding that the plaintiff is eligible for and entitled to attorney fees in this FOIA case; $60 an hour is a reasonable rate for a law clerk and 50 hours is reasonable for the duties performed by him; allows plaintiff $188.44 in costs to cover photocopying, postage, exhibits, typing, transportation, and parking; allows plaintiff 43 hours for the preparation of the fee application and related costs; grants plaintiff a total of $23,984.50 in attorney fees and $361.50 in costs).
Inc. v. FDIC, 157 F.R.D. 485 (C.D. Cal. 1994) (plaintiff is entitled to
expedited consideration of his FOIA request under 28 U.S.C.
Freeman v. Dep't of Justice, No. 92-0557 (D.D.C. Jan. 26, 1994) (adequacy of search: defendant's search of its general indices satisfied plaintiff's FOIA request; the defendant does not maintain "confidential indices" as the plaintiff speculates) (Exemption 7(C): protects only information that would identify FBI informants) (search of an FBI field office may proceed in a nonexpedited manner, as ordered by this court on June 28, 1993) (in light of Landano, defendant released, in full, 2 paragraphs that it was withholding under Exemption 7(D)).
Freeman v. Dep't of Justice, No. 92-0557 (D.D.C. Apr. 12, 1994) (Exemption 7(D): applying Landano, finds that defendant's affidavit explains that nonfederal law enforcement agencies and officers were given express assurances of confidentiality that justify the withholding of documents that plaintiff seeks for use in his criminal defense).
Freeman v. Dep't of Justice, No. 90-2754 (D.D.C. May 31, 1994) (duty to search: affidavits do not establish "beyond a material doubt" that no responsive records were created in Virginia concerning an alleged agreement between 2 United States Attorneys about combined charges against the LaRouche organization; the affidavits also do not demonstrate that a search "reasonably calculated to uncover all relevant documents" was performed in Boston).
Fritz v. IRS,
862 F. Supp. 234 (W.D. Wis. 1994) (Exemption 3 [26 U.S.C.
Frydman v. Dep't of Justice, 852 F. Supp. 1497 (D. Kan. 1994) (attorney fees: while the court questions the quality or substance of the information released, it concludes plaintiff substantially prevailed; there is no significant public benefit in the release of personal information about the plaintiff; plaintiff's interest in this information was strictly personal; while the government's conduct in the course of this "lengthy and difficult" litigation has been "flawed," these mistakes are not indicative of bad faith; attorney fees denied).
Gabel v. Comm'r, No. C94-0587 (N.D. Cal. June 21, 1994) (jurisdiction: court lacks jurisdiction because there were no responsive documents for plaintiff's first 4 document requests and the IRS provided plaintiff with all documents in its possession responsive to the fifth).
Inc. v. IRS, No. C93-20339 (N.D. Cal. Jan. 25, 1994) (mootness: FOIA requests
become moot when defendant releases the requested documents to plaintiff) (Exemption
5: deliberative process privilege protects a memorandum on proposed IRS regulations
under section 461 that was written in 1957 two months before the final regulation
was published and that contains opinions and recommendations concerning the
final regulation) (Exemption 3 [26 U.S.C.
Galedrige Constr., Inc. v. IRS, No. C93-20339 (N.D. Cal. May 6, 1994) (attorney fees: denies plaintiff's request for attorney fees; it was not "reasonably necessary" for plaintiff to file this action in order to receive the pages that had been withheld; filing of this suit only caused plaintiff's appeal to be processed more rapidly that it otherwise would have been; while the information was released after the lawsuit was filed, this was most likely the result of an unavoidable delay accompanied by "due diligence" in the administrative process; there was no urgency involved in this request) (denies plaintiff's request for sanctions).
Gilmore v. NSA, No. C92-3646 (N.D. Cal. Jan. 14, 1994) (grants plaintiff's motion for reconsideration and vacates portion of court's September 13, 1993 order; considerations concerning plaintiff's entitlement to preliminary injunctive relief with respect to his FOIA pattern and practices processing claim against NSA ought not to be considered in evaluating defendant's motion to dismiss or for summary judgment; plaintiff's complaint adequately alleges that NSA has engaged in a pattern and practice of failing to process FOIA requests in accord with the deadlines mandated in the statute and is now reinstated).
Gilmore v. NSA, No. C92-3646 (N.D. Cal. May 4, 1994) ("exceptional circumstances"/"due diligence": court vacates its January 14, 1994 initial reconsideration ruling and reinstates its September 13, 1993 ruling; injunctive relief is available in a FOIA pattern and practice claim "only where a plaintiff can show that a class of plaintiffs would suffer a special type of irreparable harm if forced to resort to individual review suits to spur processing of FOIA requests . . . or that delay results from systematic agency abuse or bad faith"; since the plaintiff has failed to show that a genuine issue regarding either of the above circumstances, the court will not exercise its equitable discretion to award plaintiff the requested injunction, and summary judgment is granted to the defendant on this claim; court also declines to exercise its discretion to award the plaintiff declaratory relief).
Gonzalez v. Huff, No. 93-1956 (D.D.C. June 2, 1994) (denies defendants' motion for a protective order barring all discovery in this FOIA case until the pending dispositive motions are decided; discovery at issue is limited to 2 depositions which would address the adequacy of the defendants' searches).
Hass v. United States Air Force, 848 F. Supp. 926 (D. Kan. 1994) (exhaustion: plaintiff failed to exhaust her administrative remedies with respect to 2 of her FOIA requests, because she did not appeal the administrative denials of these requests) (Exemption 5: deliberative process privilege protects in their entireties 2 memoranda from plaintiff's personnel file because the factual portions cannot be separated from the deliberative elements).
Henderson v. IRS, No. 93-1699 (S.D. Ind. May 31, 1994) ("no records" defense: "Warrant of Distraint" sought by plaintiff under the FOIA does not exist; the statutory requirement for such a document expired nearly 40 years ago).
Hoffman v. United States Postal Serv., No. 93-C-6718 (N.D. Ill. Jan. 7, 1994) (proper party defendant: the FOIA authorizes suit against federal agencies and does not create a cause of action against individual federal employees) (within 10 days, plaintiff by a submission to the court must either acknowledge the mootness of this action because of receipt of the requested documents or he must explain why mootness does not apply; within 10 days, the defendant must by a submission to the court explain why plaintiff has not exhausted his administrative remedies).
Hunsberger v. Dep't of Justice, No. 93-1945 (D.D.C. Mar. 17, 1994) (case is dismissed because duplicative litigation has been filed in the Eastern District of Pennsylvania).
Hunsberger v. Dep't of Justice, No. 94-0168, 1994 U.S. Dist. LEXIS 6060 (D.D.C. May 3, 1994) (case dismissed sua sponte because plaintiff seeks the same information he requested in an earlier, pending FOIA suit).
Hunsberger v. Dep't of Justice, No. 92-2587 (D.D.C. June 7, 1994) ("exceptional circumstances"/"due diligence": grants defendant an Open America stay until November 1, 1995; defendant is exercising "due diligence," but additional time is necessary for the FBI to reach plaintiff's request in its FOIA backlog).
Specialists, Inc. v. IRS, No. 93-2500, 1994 WL 395310 (D.N.J. Mar. 2, 1994)
(Exemptions 3 [26 U.S.C.
Jacob D. Fuchsberg Law Firm v. Dep't of Labor, No. 93-8755 (S.D.N.Y. Feb. 18, 1994) (plaintiff's motion for a preliminary injunction to compel production of documents is denied in this FOIA case; the disadvantages "attendant upon segmented treatment" of the documents outweighs the benefits to the plaintiff; if the Department of Labor does not complete its review of the requested documents by May 1, 1994, plaintiff may renew this motion).
Joya-Martinez v. FBI, No. 91-1433 (D.D.C. Mar. 31, 1994) (Exemption 7(C): FBI's detailed affidavit demonstrates that it properly withheld information about subjects of investigative interest) (Exemption 1 [E.O. 12,356]: plaintiff concedes that the identified documents are specifically authorized by the Executive Order to be kept secret in the interest of the nation's foreign policy; plaintiff's vague allegations that the State Department is withholding information about the situation in El Salvador in order to conceal "violations of law" are insufficient to raise a genuine issue of material fact) (Exemption 6: applying Reporters Committee, finds that the State Department properly withheld from disclosure the personal data and fingerprints of several soldiers of the El Salvadoran Army who are under investigation by their government because plaintiff failed to identify a public interest sufficient to outweigh the soldiers' "extremely strong" privacy interests).
Katz v. NARA, 862 F. Supp. 476 (D.D.C. 1994) ("agency records": photographs and x-rays taken during the 1963 autopsy of President John F. Kennedy are not "agency records" for purposes of the FOIA; these autopsy materials were donated to the Archives by the Kennedy family in 1966 pursuant to a Deed of Gift which generally limits access to the materials to persons whose applications have been approved by a family representative; applying Kissinger v. Reporters Committee for Freedom of the Press, finds that the Archives has possession of the x-rays and photographs, but it does not have "control" of them; the JFK Records Act supports the conclusion that the Deed of Gift, rather than the FOIA, controls access to these autopsy materials) (Exemption 6: in the alternative, finds that allowing access to the Kennedy autopsy photographs and x-rays would constitute an unwarranted invasion of the Kennedy family's privacy; while there is a public interest in the release of these records, the Kennedy family "has been traumatized by the prior publication of the unauthorized records," and the "further release of autopsy materials will cause additional anguish").
Katzman v. Sessions, 156 F.R.D. 35 (E.D.N.Y. 1994) (in the interest of judicial economy, plaintiff may amend his Complaint regarding an earlier FOIA request to include an additional FOIA claim pertaining to a separate FOIA request that he alleges was insufficiently responded to).
Kay v. FCC, No. 94-1105 (D.D.C. June 30, 1994) (in this FOIA case, denies plaintiff's request for a temporary restraining order enjoining the FCC from requiring the plaintiff to comply with an ongoing FCC investigation on the grounds that there was no basis upon which to grant plaintiff's motion).
Kennedy v. DEA, No. 92-2731 (D.D.C. Feb. 28, 1994) (Exemption 2: protects DEA violator codes) (Exemption 7(C): protects the identities of informants, third parties, DEA personnel, law enforcement personnel, subjects of investigative interest, and plaintiff's accomplices and co-defendants contained in plaintiff's DEA file) (Exemption 7(D): applying Landano, finds that because of the nature of this drug smuggling crime and the expectation of confidentiality by the sources, defendant properly relied on this exemption to withhold the identities of and information provided by individuals who cooperated with DEA's investigation) (Exemption 7(E): protects a nonsurveillance law enforcement technique used by DEA that is not generally known to the public) (Exemption 7(F): protects the identities of 2 DEA Special Agents).
Kessler v. United States, No. 94-0402 (D.D.C. May 4, 1994) (denies plaintiff a writ of mandamus to require the defendants to produce certain tax records under the FOIA; plaintiff may seek judicial review of the denial of his FOIA request).
LaRue v. IRS,
No. 3-93-423, 1994 WL 315750 (E.D. Tenn. Jan. 27, 1994) (Exemption 3 [26 U.S.C.
Latshaw v. FBI, No. 93-571 (W.D. Pa. Feb. 21, 1994) (Exemption 7(C): government properly refused to confirm or deny the existence of records regarding Earl McWhirter; plaintiff has failed to articulate a public interest in the disclosure of the requested material), reconsideration denied (W.D. Pa. Mar. 8, 1994), renewed motion for reconsideration denied (W.D. Pa. Apr. 9, 1994).
Liberto v. Dep't of Justice, No. 94-0272 (D.D.C. June 13, 1994) (adequacy of agency affidavit: the Managerial Paralegal Specialist in the FBI's FOIA Unit is competent to testify as to the matters contained in her declaration) (fee waiver (Reform Act): plaintiff has failed to go beyond a general statement concerning public interest and adequately explain why the information he is requesting will benefit the public interest; even if the plaintiff were capable of disseminating information from prison, he is requesting information to aid him with matters that relate to his incarceration and not for distribution to the public), motion to amend denied (D.D.C. June 23, 1994).
Lovett v. DeAngelos, No. C93-1293 (N.D. Cal. Feb. 21, 1994) (proper service of process: plaintiff's motion for summary judgment denied because defendant was not served with a summons and complaint until 5 or 6 months after plaintiff filed this motion with the court) (proper party defendant: defendant's motion to dismiss granted because the only defendant named to this action was an employee of the Social Security Administration and an action under the FOIA must name a federal agency as defendant).
Marr v. Dep't of Justice, No. 92-0795 (S.D. Ala. Mar. 2, 1994) (all remaining claims against the Department of Justice are dismissed).
Matthews v. United States Postal Serv., No. 92-1208 (W.D. Mo. Apr. 15, 1994) (mootness: because the agency has produced all requested documents, except those that it believes are exempt from disclosure, plaintiff's challenges as to the tardiness of the response are now moot) (Exemption 6: disclosure of suggestions submitted to the Employee Suggestion Program and the agency's evaluation of them would be an "unwarranted invasion of personal privacy" because the suggestions are identifiable with the employees who submitted them) (Exemption 5: deliberative process privilege protects these evaluations because they are predecisional and deliberative) (Exemption 4: release of 3 pages of technical drawings relating to a computer system designed by a private company would harm the competitive position of that company) (attorney fees: disclosure of the requested documents would have occurred at the times they did regardless of the pendency of this lawsuit; plaintiff has not substantially prevailed; attorney fees denied).
McDonnell Douglas Corp. v. Widnall, No. 92-2211 (D.D.C. Apr. 11, 1994) (grants defendant's motion to alter or amend court's September 30, 1992 ruling and vacates that order) (in this non-FOIA case concerning the release of an option price from a launch vehicle contract at the time of option exercise, finds that the Air Force's decision to exercise an option is "an action resulting in a contract" and, therefore, it is a "contract action" and thus a "contractual action" within the meaning of the Federal Acquisition Regulation (FAR); because the release of the exercised option price is authorized by the FAR, it is not protected by the Trade Secrets Act and must be disclosed) (to avoid irreparable injury in the launch services industry, judgment is stayed pending appellate review).
McDonnell Douglas Corp. v. Widnall, No. 94-0091 (D.D.C. Apr. 11, 1994) (in this non-FOIA case concerning the release of an option price from a launch vehicle contract at the time of option exercise, finds that the Air Force's decision to exercise an option is "an action resulting in a contract" and, therefore, it is a "contract action" and thus a "contractual action" within the meaning of the Federal Acquisition Regulation (FAR); holds that a disclosure under the FAR is "authorized by law" under the Trade Secrets Act because the FAR qualifies as a substantive agency regulation under Chrysler; because the release of the exercised option price is authorized by the FAR, it is not protected by the Trade Secrets Act and must be disclosed) (to avoid irreparable injury in the launch services industry, this judgment is stayed pending appellate review).
Meeker v. IRS, No. 93-3240 (C.D. Ill. May 4, 1994) (summary judgment granted to defendant in this FOIA case where all responsive, nonexempt documents have been given to plaintiff).
Miller v. Dep't of the Treasury, No. 92-0383 (D.D.C. Mar. 10, 1994) (grants defendant's motion for summary judgment because plaintiff does not claim that the defendant continues to improperly withhold his tax records; denies plaintiff's motion for attorney fees because he has not "substantially prevailed"; defendant does not contest the awarding of costs to plaintiff, but reserves the right to challenge the reasonableness of costs once they are itemized; defendant's failure to realize that a second search was necessary is perhaps negligent, but it does not call for disciplinary proceedings).
Mosser Constr. Co. v. Dep't of Labor, No. 3:93-7525 (N.D. Ohio Mar. 29, 1994) (attorney fees: if plaintiff had not filed this lawsuit, it would never have received the information requested under the FOIA; benefit to the public from the release of certain monthly reports was de minimus; at most, the agency has been encouraged to be less unresponsive to FOIA requests; despite the not-for-profit nature of plaintiff's organization, it was motivated by commercial concerns; while the agency's handling of this matter was neither entirely appropriate or reasonable, it was not so egregious that plaintiff's attorney fees should be assessed against it; attorney fees denied).
O'Harvey v. IRS, No. 93-0384 (E.D. Wash. Apr. 5, 1994) (mootness: plaintiff's claim is moot because the IRS, after having been sued, has provided all of the documents he requested under the FOIA) (attorney fees: pro se attorney is not entitled to attorney fees; applying Carter v. VA, grants costs to plaintiff; should a dispute arise between the parties as to the matter of costs, plaintiff must file a bill of costs with the court).
Okoronkwo v. Office of the United States Attorney, No. 93-2647 (D.D.C. Mar. 31, 1994) (plaintiff's action is dismissed in this FOIA case, where defendant has provided an initial determination on this matter and will process it on a "first-in, first-out" basis).
Oncology Servs. Corp. v. NRC, No. 93-0939 (W.D. Pa. Feb. 7, 1994) (Vaughn Index: in this FOIA case where plaintiff seeks records compiled by the NRC as part of an ongoing law enforcement operation into the death of a patient from overexposure to radiation at a facility owned by plaintiff, the agency may rely on affidavits and generic descriptions of categories of documents withheld under Exemptions 7(A) and 7(C)) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects portions of transcribed interviews with 2 individuals including names, addresses, and other identifying information) (Exemption 7(A): agency may not categorically withhold transcribed interviews with 32 current or former employees of the plaintiff because each of these individuals has consented to the release of his/her interview and each interview was conducted in the presence of the plaintiff's General Counsel; exemption protects the transcribed interviews with the remaining interviewees who have not consented to their release) (plaintiff's motion for sanctions denied), reconsideration denied (W.D. Pa. Mar. 10, 1994) (transcripts of 32 interviews must be released).
Or. Natural Res. Council v. Bureau of Land Mgmt., No. 92-6425 (D. Or. Apr. 22, 1994) (fee waiver (Reform Act): even though the government did not state the reason for its denial of plaintiff's request for a fee waiver, given that the agency has made the requested information publicly available and that plaintiff did not sufficiently specify how its FOIA request would make a significant contribution to the public understanding of the operations of the government, the fee waiver is denied on that basis).
Pederson v. RTC, 847 F. Supp. 851 (D. Colo. 1994) (fee waiver (Reform Act): in this FOIA case where 2 employee-whistleblowers seek information about alleged waste and abuse in connection with the reorganization of the RTC's Professional Liability Section, grants plaintiffs' fee waiver request; plaintiffs demonstrated the ability to disseminate the information and a substantial public interest in possible mismanagement at RTC) (attorney fees: grants plaintiffs attorney fees; plaintiffs have substantially prevailed; the public will benefit from the release of this information; plaintiffs do not have a commercial interest in this information; whether or not the RTC's withholding of the information plaintiffs seek was reasonable, the other 3 factors weigh in favor of awarding plaintiffs reasonable costs and attorney fees) (denies plaintiffs' request for disciplinary action with regard to this matter).
Pontillo v. U.S. Parole Comm'n, No. 93-1445 (D.D.C. Feb. 4, 1994) (exhaustion: rules "incorrectly" that plaintiff has not exhausted his administrative remedies with respect to 4 Department of Justice components because the Office of Information and Privacy rather than the Attorney General's office acted on his appeal of the denial of his FOIA request) (Parole Commission is dismissed as a defendant in this lawsuit on the basis that it properly complied with plaintiff's FOIA requests by either producing the documents requested or referring records to their originating agencies).
Ray v. Dep't of Justice, 852 F. Supp. 1558 (S.D. Fla. 1994) (Exemption 6: in light of Department of State v. Ray, reconsiders the portion of this FOIA case that concerns the names and addresses of Haitian nationals contained in U.S. government interviews and rules that, with one exception, this information is not exempt from disclosure under Exemption 6; the court distinguishes this case from the Supreme Court case because the unredacted interdiction summaries in the instant case are merely lists containing the name, birth date, gender, address, and place of birth of each Haitian national being returned to Haiti, and do not contain "highly personal" information about marital and employment status, children, and living conditions; this case is also distinguished because unredacted copies of these logs were routinely given to Haitian authorities and the interviewees were given no promises of confidentiality; even though the privacy interests here are significant because there is the possibly of third persons making potentially unwanted contact with the returnees in Haiti and the redacted logs provide little information about the government's conduct, the court here applying the "derivative use" theory finds that the follow-up interviews with returned Haitians might shed light on government conduct, even if the names themselves do not; this court is bound to follow the "derivative use" theory because it was adopted by the Eleventh Circuit in Ray and the Supreme Court "declined to reject" the theory "in its entirety"; in this case, the release of the names and addresses is significant "only if the derivative use of the information is a valid factor in determining the public interest"; names and addresses of Haitian interdictees must be released by May 23, 1994; the exemption does protect the redacted portions from the 50 Haitian Asylum Questionnaires from the M/V Rose Mellin interdiction because these individuals face the danger of persecution on their return to Haiti, the records contain "highly personal information," copies were not previously given to the Haitian authorities, and the release of the redacted information would not shed additional light on the government's conduct).
Redkettle v. FBI, No. 93-1317 (D.D.C. Jan. 31, 1994) (jurisdiction: defendant has not improperly withheld records because plaintiff has failed to indicate his willingness to pay the estimated fees).
Richman v. Dep't of Justice, No. 90-C-19 (W.D. Wis. Feb. 2, 1994) (Exemption 5: portions of 6 pages withheld under this exemption must be submitted to the court for in camera review because the agency affidavit does not adequately explain why the deliberative process privilege protects an explanation of a final agency decision or why the attorney work-product privilege protects the government's rationale for declining prosecution against the plaintiff) (Exemption 6: portions of 5 documents withheld under this exemption must also be submitted to the court for in camera review; the agency's affidavit does not adequately explain why "personnel-type" information about an FBI Special Agent who was the subject of a professional-responsibility administrative inquiry and exonerated should be withheld when there is a public interest in "understanding how a powerful law enforcement agency polices itself") (Exemption 7(A): protects one page from a law enforcement file because its release "could reasonably be expected to interfere with enforcement proceedings") (Exemption 7(C): protects the names and initials of FBI Special Agents, a deputy U.S. Marshal, nonfederal law enforcement officers who assisted the FBI, FBI support staff, third parties, informants, and the FBI Special Agent who was the subject of the administrative inquiry and exonerated) (Exemption 7(D): applying Landano, finds that in this case where the informants faced a "strong potential of harassment" from plaintiff (a highly litigious individual), the defendant has provided a basis for inferring that sources spoke under implied assurances of confidentiality; after Landano, a federal agency does not meet its burden under FOIA merely by stating that it had a "tacit mutual understanding of confidentiality" with a local law enforcement agency; defendant must also submit portions of these 4 documents for in camera review).
Richman v. Dep't of Justice, No. 90-C-19 (W.D. Wis. Feb. 25, 1994) (Exemption 5: portions of 2 documents were properly withheld under the deliberative process privilege because they consist of FBI Special Agents' opinions and recommendations to their superiors; it does not protect portions of 4 documents that do not contain predecisional material; the attorney work-product privilege does not protect a phrase in one document because it was not prepared by a lawyer in preparation for litigation; the latter items must be disclosed) (Exemption 6: protects portions of 3 documents that contain routine job information about an FBI Special Agent accused of misconduct by plaintiff; material concerning the FBI's refusal to take further administrative action is not protected because information illustrating how the FBI polices itself is of great public interest; this material must be disclosed) (Exemption 7(D): applying Landano, finds that defendant must also disclose the names of 2 local law enforcement agencies whose files the FBI reviewed; name of another cooperating agency may be withheld because this information was provided under an implied promise of confidentiality).
Russell v. Barr, No. 92-2546 (D.D.C. May 10, 1994) (supplemental Open America stay granted until December 1, 1995, so that the FBI can reach, review, and process records responsive to plaintiff's FOIA request).
Schiffer v. Dep't of Justice, No. C93-0995 (N.D. Cal. Jan. 10, 1994) (trial transcript with accompanying order) (discovery in FOIA litigation: there can be no question of discovery in this case because all the responsive documents are in the hands of the court) (Exemption 7(C): upon in camera inspection, finds that the exemption protects the name of an individual who wrote a letter to the Soviet consulate and the names of FBI agents and police officers contained in documents collected in the course of an investigation of the plaintiff) (Exemption 7(D): witnesses interviewed were not confidential informants; because of plaintiff's personal knowledge of the records' subject matter, disclosure is ordered, with the condition that plaintiff may not make further disclosure of these documents without further court order).
Sheet Metal Workers' Int'l Ass'n Local Union No. 9 v. Dep't of the Air Force, No. 93-M-429 (D. Colo. May 3, 1994) (Exemption 6: applying Reporters Committee, finds that some information from certified payroll records and apprentice registration forms is protected by this exemption because the privacy concerns of the individuals outweigh the public interest in compliance with the Davis-Bacon Act and the Copeland Act; exemption protects the home addresses, Social Security numbers, withholding exemptions, withholding tax, FICA, and net wages of the employees; exemption does not protect each worker's name, work classification, number of hours worked each day, total hours earned during the week, pay rate, and gross wages earned) (attorney fees: Union has substantially prevailed because the Air Force attempted to withhold the payroll records in their entirety; it has 20 days to file an application for attorney fees and costs).
Sherlock v. United
States, No. 93-0650, 1994 WL 10186 (E.D. La. Jan. 12, 1994) (duty to search:
IRS's affidavit demonstrates that a reasonable search was made of the New Orleans
Service Center as requested by plaintiff; IRS's supplemental responses to plaintiff's
request demonstrate that an imperfect search was made, not any evidence of "bad
faith") (Exemption 5: deliberative process privilege protects 7 pages of forms
recommending further collection activity, a 6-page narrative detailing collection
activity, and a 3-page letter from an attorney seeking advise about collection
activities because they reflect recommendations and express opinions; these
same 16 pages are also exempt under the attorney-client privilege as this is
confidential information, exchanged between the Collection Division and the
New Orleans District Counsel, requesting information, legal analysis, and advice)
(Exemption 3 [26 U.S.C.
Southmountain Coal Co. v. Mine Safety & Health Admin., No. 94-0110 (D.D.C. Mar. 10, 1994) (venue: grants defendant's motion to transfer this case to the Western District of Virginia; this move will further judicial economy and the convenience of both parties, because the documents at issue in the FOIA action are critical to a criminal prosecution in that district).
Sprecher v. SEC, No. 92-327 (W.D. Pa. Dec. 16, 1993) (magistrate's recommendation) (exhaustion: plaintiff, who has not filed an administrative appeal of the SEC's partial denial of his FOIA request, has not exhausted his administrative remedies against the SEC) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until February 1, 1994; as of October 24, 1992, the FBI was in the midst of processing 9,000 FOIA requests requiring the review of almost 3.5 million pages), adopted (W.D. Pa. Jan. 6, 1994).
Spurlock v. FBI, No. 91-5602 (C.D. Cal. Jan. 31, 1994) (upon defendant's motion for clarification of court's November 29, 1993 ruling, orders the FBI and plaintiff to meet for the purpose of determining what information in the records at issue in this case may constitute evidence that false statements were made by 3 named informants, either to the FBI or in their sworn testimony or in other proceedings; FBI "has an obligation to make such evidence known to the injured party or parties so that they may seek corrective action").
Steinberg v. Dep't of Justice, No. 93-2409 (D.D.C. Mar. 15, 1994) (plaintiff's request for discovery is premature because defendant plans to file its Vaughn Index and motion for summary judgment within 60 days).
Steinberg v. Dep't of Justice, No. 93-2409 (D.D.C. May 4, 1994) (partially grants defendant's request for an Open America stay; although defendant offers adequate reasons for a 3-year extension, it has failed to cite any case law where the court granted such an extension; enters a partial stay for approximately 6 months).
Steinberg v. Dep't of the Treasury, No. 93-2348 (D.D.C. Feb. 18, 1994) ("exceptional circumstances"/"due diligence": grants defendant's motion for an Open America stay until April 14, 1994 because of "severe constraints on Customs resources") (denies without prejudice plaintiff's request for discovery until the conclusion of the stay).
Strout v. United States Parole Comm'n, 842 F. Supp. 948 (E.D. Mich. 1994) (magistrate's recommendation adopted, with modification) (fees (Reform Act): while agreeing with the Magistrate Judge's conclusion that the agency did not violate the statute's fee provisions, the fees the plaintiff was required to pay the Parole Commission were "accrued processing fees," and not an "advance payment").
Taylor v. Dep't of Educ., No. 90-N-1976 (D. Colo. Feb. 25, 1994) (Exemption 5: on in camera inspections finds that the deliberative process privilege protects 6 documents relating to plaintiff's employment at and subsequent dismissal from the Department of Education because they all reflect the personal views and opinions of the authors on various issues).
Group, Inc. v. Health Care Fin. Admin., No. 92-2431, 1994 WL 116141 (D.D.C.
Mar. 11, 1994) (duty to create a record: in this FOIA request where the Medicare
Secondary Payer information requested by the plaintiff is stored in HCFA's computer
database, but not in a single computer "document" or "file," finds that the
1982 decision in Yeager v. DEA is outdated; an agency is required to
conduct "relatively simple computer searches" limited to retrieval of parts
of existing records, but not to conduct analyses of existing records) (Exemption
3 [26 U.S.C.
Thott v. Dep't of the Interior, No. 93-0177 (D. Me. Apr. 14, 1994) (Exemption 6: applying Reporters Committee, orders the government to release the names and home addresses of individuals who sold land to the Fish and Wildlife Service (FWS) in 1992; privacy interest of the land sellers is outweighed by the strong public interest in knowing how the FWS acquires property throughout the United States).
Trenerry v. IRS,
No. 90-C-444-B (N.D. Okla. Jan. 26, 1994) (grants defendant's motion for clarification
of court's October 28, 1993 order; plaintiff's motion for attorney fees under
the FOIA is denied; however, as the prevailing party, plaintiff is entitled
to costs under 28 U.S.C.
Triplett v. United States Customs Service, No. 93-71976 (E.D. Mich. Apr. 29, 1994) (FOIA case dismissed for lack of prosecution after plaintiff failed to respond to government's answer saying that the records plaintiff requested had been supplied to him).
Urbigkit v. United States, No. 93-0232-J (D. Wyo. May 31, 1994) (Exemption 6: there is a de minimis privacy interest in the names, home addresses, and telephone numbers of 87 citizens who reported wolf sightings in the Greater Yellowstone Ecosystem; disclosure of this information will shed light on the activities of the Fish and Wildlife Service with respect to the duties imposed on it by the Endangered Species Act; names, addresses, and telephone numbers must be released).
Valona v. DEA, No. 93-1256 (D.D.C. May 12, 1994) (plaintiff did not respond to defendant's motion to dismiss on grounds that plaintiff has failed to prosecute this action; case dismissed).
Vice v. Executive Office for United States Attorney, No. 93-73545 (E.D. Mich. Jan. 19, 1994) ((a)(6)(A): agency met the statutory time requirements by responding to the plaintiff within 10 days after receiving his FOIA request in full compliance with regulations and by informing the plaintiff that the letter he requested could not be located) (exhaustion: plaintiff must appeal the agency's denial of his FOIA request and thereby exhaust his administrative remedies before he files suit).
Vice v. Executive Office for United States Attorneys, No. 93-73545 (E.D. Mich. Feb. 15, 1994) (grants defendant's motion for clarification of court's January 19, 1994 order; in the interest of administrative convenience and to avoid unnecessary duplication of effort, the court allows the plaintiff 30 days to appeal EOUSA's response to his FOIA request, even though plaintiff originally filed suit without appealing this determination).
Wickline v. FBI, No. 92-1189 (D.D.C. Mar. 29, 1994) (Vaughn Index: denies plaintiff's third motion for further indexing; defendant's single, detailed explanation adequately describes 24 pages of withheld information).
Williams v. McCausland, Nos. 90-7563, 91-7281, 1994 WL 18510 (S.D.N.Y. Jan. 14, 1994) (exhaustion: plaintiff has not demonstrated that an appeal of the denial of his FOIA request was ever received by the EEOC) (Exemption 5: deliberative process privilege protects the portions of a Defense Hotline Completion Report that contain the opinions and recommendations of the author and also protects the opinions and recommendations of an investigative analyst in the Defense Department's Inspector General's Office concerning that Hotline Completion Report; deliberative process privilege protects a 9-page memorandum prepared by an attorney in the Office of Special Counsel for the Deputy Associate Counsel of that office containing the author's analysis of plaintiff's case and making recommendations for appropriate action; factual recitations in the memorandum are nonsegregable; this memorandum is also protected by the attorney work-product privilege because it was prepared in anticipation of litigation before the MSPB and contains the author's mental impressions, strategy, etc.; 6 memoranda of telephone conversations with witnesses prepared by the attorney conducting the investigation of plaintiff's charges are protected by the attorney work-product privilege because they contain the mental impressions of the author, the author's notes about plaintiff's charges, and her thoughts about the importance of the witnesses to the investigation) (Exemption 2: protects 42 administrative data forms and computer print-outs that contain file numbers and data processing code numbers for internal use) (Exemptions 6 and 7(C): following Reporters Committee, finds that the exemption protects the names of federal employees against whom improper conduct was alleged, the names of investigating officials, analysts, and supervisors from 22 forms and documents used by the Defense Department's Office of the Inspector General in its hotline service) (Exemption 6: protects information concerning a third-party's performance appraisal) (plaintiff's motion for sanctions denied).
Williams v. McCausland, Nos. 90-7563, 91-7281 (S.D.N.Y. Feb. 22, 1994) (denies plaintiff's motions for recusal of the judge presiding over this action, for certification of this court's January 14, 1994 order, and for the deposition of 2 high-ranking officials).
Wilson v. Dep't of Justice, No. 87-2415 (D.D.C. May 16, 1994) (Exemption 3 [Rule 6(e)]: clarifies portion of June 30, 1993 order concerning grand jury information and "documents that would reveal the government's audit trail"; disclosing the subpoenaed documents would reveal a "secret aspect of the grand jury's investigation" regardless of whether the documents were actually used as exhibits or incorporated into the audit; all 34,000 pages of materials collected during the grand jury investigation of the Egyptian American Transport and Service Company (EATSCO) are exempt from disclosure),
Wilson v. Dep't of Justice, No. 87-2415 (D.D.C. June 14, 1994) (Exemption 7(D): in light of Landano, the defendant reevaluated 2153 pages of information it sought to withhold under Exemption 7(D); defendant now applies this exemption to 414 pages of information about EATSCO in instances in which information was provided under an express promise of confidentiality; plaintiff does not oppose this).
Woodman v. Comm'r, No. 93-853 (D. Or. Feb. 11, 1994) (jurisdiction: court lacks jurisdiction because defendant's affidavit demonstrates that the "warrant of distraint" requested by plaintiff does not exist).
Wrenn v. Shalala, No. 93-1698 (N.D. Ala. Apr. 19, 1994) (summary judgment granted to the government where the court found that plaintiff has received all documents he is entitled to in response to his FOIA request; the "presentation by defendant is so inclusive as to obviate the need for a Vaughn Index"). (posted 2/28/03)
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