Files moving from File cabinet to Computer

Compiled FOIA Decisions (Received January-June 1990)

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 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).

Supreme Court

Nat'l Ass'n of Retired Fed. Employees v. Newman, 494 U.S. 1078 (1990) (certiorari denied in this FOIA case where the D.C. Circuit had held that the disclosure of the names and addresses of retired or disabled federal employee annuitants would be a significant invasion of personal privacy, and that it would not shed light on the workings of the federal government).

Appeals Courts

Anderson v. HHS, 907 F.2d 936 (10th Cir. 1990) ("Reverse" FOIA/Exemption 4: adopts the narrow definition of "trade secrets" from Public Citizen Health Research Group v. FDA, because it is more consistent with the policy behind the FOIA; remands the case on this issue because neither the district court's ruling from the bench nor its subsequent written order make clear which documents were exempt as "trade secrets"; the term "privilege" in Exemption 4 does not encompass materials that are the subject of a limited protective order under Utah Rule of Civil Procedure 26(c)(7); although the district court was correct in ruling that there were no material facts in dispute, the case is remanded because it is not clear from the record which documents the district court believed to be "confidential" within the meaning of Exemption 4) (Exemption 3 [18 U.S.C. § 1905]: the Trade Secrets Act is not an Exemption 3 statute, due to its broad, ill-defined wording; because the Medical Devices Act [21 U.S.C. § 360j(c)] is coextensive with Exemption 4 and because the Food, Drug, and Cosmetic Act [21 U.S.C. § 331(j)] is arguably narrower than Exemption 4, neither statute provides an independent justification for withholding in this case; because the district court relied on these statutes as independent grounds for nondisclosure, on remand the court will need to determine whether the documents are exempt under Exemption 4).

Dunkelberger v. Dep't of Justice, 906 F.2d 779 (D.C. Cir. 1990) (Exemption 7(C): following Reporters Committee and Stern v. FBI, affirms lower court's Glomar denial of plaintiff's FOIA request for information relating to the alleged suspension of a named FBI Special Agent for misconduct that occurred in connection with the investigation of a prominent state official and his nephew).

Fitzgibbon v. Dep't of State, No. 89-5212 (D.C. Cir. Mar. 6, 1990) (requester's petitions for rehearing and rehearing en banc denied in this Exemption 3 case where the court, following Sims v. CIA, upheld the withholding of information pertaining to the regime of Rafael Trujillo in the Dominican Republic).

Garside v. Webster, No. 90-3023 (6th Cir. Mar. 5, 1990) (appeal dismissed in this FOIA action where the defendant agency had withheld third-party information).

Lam Lek Chong v. DEA, No. 89-5159 (D.C. Cir. Apr. 5, 1990) (government's motion for summary affirmance denied, with the court expressing particular interest as to whether the Title III wiretap statute qualifies as an Exemption 3 statute).

Leeds v. Quigg, No. 89-5418 (D.C. Cir. June 6, 1990) (grants government's motion for summary judgment as to the Exemption 5 issue) (interaction of (a)(2) & (a)(3): this portion of the case is remanded for further consideration; the fact that issued patent files are "open to inspection by the public" does not fully answer the question of whether the Patent & Trademark Office has satisfied FOIA's disclosure requirements).

Martin v. Dep't of Educ., No. 89-5284 (D.C. Cir. Apr. 3, 1990) (summary affirmance granted in this FOIA case where the lower court had withheld drafts of analytical documents under the deliberative process privilege and third-party names from a letter maintained in a law enforcement file).

Morgan v. Dep't of Justice, No. 89-5477 (D.C. Cir. Apr. 30, 1990) (upon appellee's motion for summary affirmance in this FOIA case concerning the protection of written communications between an agency and Congress under the deliberative process privilege, the court orders that the appeal be held in abeyance pending the outcome of Dow Jones & Co. v. Department of Justice, the appeal of which was argued the same day).

Morgan v. Dep't of Justice, No. 89-5469 (D.C. Cir. May 10, 1990) (appellee's motion for summary affirmance denied in this case where the lower court had ruled that a federal appeals court's order placing a document under seal is not subject to collateral attack under the FOIA).

Pac. Architects & Eng'rs, Inc. v. Dep't of State, 906 F.2d 1345 (9th Cir. 1990) ("Reverse" FOIA/Exemption 4: affirms government decision to release "unit price" rates for each job category from plaintiff's contract to provide maintenance and operations personnel services at a United States Embassy building in Moscow; the release of this information will not cause harm to company's competitive position because the "unit price" rates are aggregate figures made up of a number of fluctuating variables and their release would not enable a competitor to calculate requester's profit margin; because the government's factfinding procedures were adequate, its decision to disclose the information is not reviewable by a trial de novo under the Administrative Procedure Act).

Parker v. Dep't of Justice, No. 90-5070 (D.C. Cir. June 28, 1990) (partially grants government's motion for summary affirmance in this FOIA case where the lower court had held that the coded Vaughn Index was adequate to protect the identities of FBI Special Agents and support personnel, subjects of investigative interest, associates of plaintiff, and potential witnesses and also to protect law enforcement techniques known to the public; denies government's motion for summary affirmance on the protection of the identities of confidential sources or the information provided by confidential sources when that information has become publicly known, either through public testimony or through the news media; schedules Exemption 7(D) issue for regular panel consideration).

Patterson v. FBI, 893 F.2d 595 (3d Cir. 1990) (in camera inspection: in a case in which the government sought to withhold information under Exemptions 1 and 7(C), the district court was justified in examining the documents in camera, because the public record was as complete as possible) (Exemption 1 [E.O. 12,365]: upholds the district court's decision that FBI information was properly withheld from disclosure under the executive order) (Exemption 7(C): protects the names of FBI personnel because the FBI had not participated in any illegal conduct).

Payne v. Dep't of Justice, No. 89-2023 (3d Cir. May 22, 1990) (unpublished memorandum), 904 F.2d 695 (3d Cir. 1990) (table cite) (Exemption 7(D): police officers testifying at a criminal trial concerning evidence submitted to the FBI for testing did not waive the protection as to all information provided to the FBI by these sources under a guarantee of confidentiality; because the government adequately supported its claim of confidentiality, and that confidentiality was not waived, all of the information is protected from disclosure).

Prows v. Dep't of Justice, No. 89-5185 (D.C. Cir. Feb. 26, 1990) (grants government's motion for summary affirmance in this FOIA/PA action where the requester sought the disclosure and correction of records referring to his investigation, arrest, and conviction for federal drug violations) (pro se plaintiff: appointment of counsel denied in this civil action where the requester has not demonstrated any likelihood of success on the merits).

Quarles v. Dep't of the Navy, 893 F.2d 390 (D.C. Cir. 1990) (Exemption 5: the deliberative process privilege protects construction cost estimates -- "elastic" facts -- contained in a report prepared by the Navy in the course of selecting "homeports" for certain ships).

Schmerler v. FBI, 900 F.2d 333 (D.C. Cir. 1990) (Exemption 7(D): protects the identities of confidential sources without regard to the FBI's interest in continued maintenance of confidentiality, requires no balancing of the interest in maintaining confidentiality against the interests of disclosure, and contains no "sunset provision" on the promise of confidentiality; the evidence of circumstances surrounding the FBI's interviews in the course of a murder investigation meets the Shaw v. FBI test, as amplified in Keys v. Department of Justice, because it raises the presumption of confidentiality, and the substance of the information collected does not determine the applicability of the exemption; the knowledge that the informant might have to testify to some portion of information provided during a criminal investigation is not sufficient to rebut the presumption of confidentiality; reverses lower court's ruling and withholds the names of informants from the FBI's records of a murder investigation conducted 60 years ago).

Schwaner v. Dep't of the Air Force, 898 F.2d 793 (D.C. Cir. 1990) (Exemption 2: exemption does not protect a roster containing the names and military addresses of the 5 lowest ranks of personnel located at Bolling Air Force Base because the list is not sufficiently related to any personnel rule or practice of the Air Force as those terms are used in the exemption) (Judge Revercomb dissenting).

Sec'y of Labor, Mine Safety & Health Admin. v. W. Fuels-Utah, Inc., 900 F.2d 318 (D.C. Cir. 1990) (Federal Register publication: because the plain meaning of "supervisory personnel" in the training regulation is ambiguous and because the unpublished policy memoranda clarify the regulation, the publication requirements of subsection (a)(1) do not bar consideration of the memoranda in this case).

Sheppard v. Sullivan, 906 F.2d 756 (D.C. Cir. 1990) (Federal Register publication: requester has not even suggested how he might have suffered an injury from Social Security Administration's failure to publish its method for adjusting certain retroactive disability benefits).

Stephens v. HHS, 901 F.2d 1571 (11th Cir. 1990) (affirms district court's ruling that the agency had properly withheld some of the information in plaintiff's promotion file under Exemptions 5 and 6).

Strang v. DeSio, No. 89-7108 (D.C. Cir. Jan. 23, 1990) (unpublished memorandum), 899 F.2d 1268 (D.C. Cir. 1990) (table cite) (Exemption 5: the litigation advice/amicus brief-preparation information requested falls squarely within the attorney work-product and deliberative process privileges) (Vaughn Index: affidavit was precise and unambiguous, and was prepared by an affiant with the requisite "personal knowledge").

Summers v. Dep't of Justice, No. 90-5082 (D.C. Cir. Apr. 25, 1990) (denies requester's motion for expedited appellate consideration of the district court's refusal to order expedited processing in this FOIA case where the requester needs the information in order to meet a publication deadline).

Truitt v. Dep't of State, 897 F.2d 540 (D.C. Cir. 1990) (adequacy of search: when, after competing a good-faith search, defendant learned that responsive items had been at some point removed from the file, defendant came under a duty to conduct a reasonable search for the removed items; despite the CIA's Glomar denial, it has declared that all repositories of responsive records have been disclosed) (de novo review: the appellate function is frustrated when, as here, the district court's opinion is conclusory and insufficiently detailed to establish that careful de novo review has taken place).

Wash. Post Co. v. Dep't of State, 898 F.2d 793 (D.C. Cir. 1990) (upon the government's petition for panel rehearing and rehearing en banc, panel vacates its decision of Feb. 5, 1988 concerning the extent of harm consequent upon the release of United States citizenship status of a former Iranian official, and remands the case for new district court consideration in the light of Reporters Committee).

Wilson v. Dep't of Justice, No. 89-5206 (D.C. Cir. Mar. 9, 1990) (appeal dismissed; only final judgments are appealable under 28 U.S.C. § 1291).

District Courts

Anderson v. Dep't of Labor, No. 87-1846 (D. Ariz. Apr. 5, 1990) (attorney fees: in a case where plaintiffs were refused production of documents and yet their requests could be construed as a discovery ploy for a pending state action, the judge greatly reduced the award sought and granted $3358.25 in attorney fees and $420.60 in costs).

Atkins v. Dep't of Justice, No. 88-0842 (D.D.C. Feb. 26, 1990) (in camera inspection: because agency's Vaughn Index and affidavits are sufficiently detailed, in camera review is unnecessary) (Exemption 2: informant and violator identifiers and internal routing codes and designators may be withheld because they are matters of administration, and also because disclosure would jeopardize the effectiveness of law enforcement systems) (Exemption 7 (threshold): threshold requirement satisfied when DEA compiled records pursuant to its investigation of a third party) (Exemption 7(C): protects names, addresses, phone numbers, and other personal data concerning third parties, including "innocents," investigative subjects, associates of plaintiff, and law enforcement personnel from state, local, and DEA offices) (Exemption 7(D): even if a person is assumed to be an informant, public testimony does not create a waiver of confidentiality under this exemption) (Exemption 7(E): protects longstanding, successful law enforcement techniques and procedures not commonly known to the public) (Exemption 7(F): protects names and identities of DEA Special Agents, Supervisory Special Agents, and other law enforcement personnel who associate with violators in covert capacities and in potentially threatening circumstances).

Barber v. INS, No. C90-0067C (W.D. Wash. May 15, 1990) (Exemption 5: the attorney work-product privilege protects documents prepared by an attorney in anticipation of plaintiff's deportation hearing) (Exemption 7(A): release of some documents would interfere with plaintiff's deportation hearing, but agency's affidavits do not demonstrate that the release of a notification of incarceration, a warrant for arrest, a fingerprint card, and an immigration detainer form could reasonably be expected to interfere with a law enforcement proceeding) (FOIA/PA interface: in a first-party request, documents may not be withheld unless they fall within an exemption under each Act) (preliminary injunction: plaintiff who needs documents for his deportation hearing is denied an emergency motion for a temporary restraining order and a preliminary injunction).

Benavides v. United States Marshals Serv., No. 88-0427 (D.D.C. Jan. 12, 1990) (attorney fees denied); reconsideration denied (D.D.C. Mar. 20, 1990) (the mere production of documents after the filing of a FOIA request is not sufficient to show that plaintiff substantially prevailed in the matter).

Benjamin v. Dep't of Justice, No. 88-1361 (D.D.C. May 4, 1990) (Exemption 7(C): protects information concerning subjects of investigative interest, the identities of FBI agents and other government personnel who participated in the investigation, and the identities of informants from FBI investigatory records concerning the theft of computer tapes or slides at the Bureau of Census by employees; following Reporters Committee, holds that "in the typical FOIA case . . . in which one citizen seeks information about another," the information plaintiff seeks does not relate to the basic purposes of the FOIA) (Exemption 7(D): following Keys v. Department of Justice and Schmerler v. FBI, holds that the exemption was properly invoked because the records were clearly compiled in the course of a criminal investigation conducted by the FBI and because the agency's affidavit establishes the presumption of confidentiality; withholds the identities of and the material obtained from third-party interviewees, derivative source information, and the identity of a foreign law enforcement agency).

Blackwell v. Klincar, No. 84 C 8705 (N.D. Ill. June 26, 1990) (agency: because the FOIA applies to federal not state agencies, the Illinois Prisoner Review Board is not subject to the FOIA).

Bonner v. Dep't of State, No. 86-0769 (D.D.C. Mar. 2, 1990) (discovery in FOIA litigation: having previously stipulated to a representative or random sample of documents which was ruled on by the court on November 2, 1989, plaintiff may not now serve interrogatories on the State Department concerning its rationale for releasing some documents and the recategorization of those withheld) (in camera inspection: a voluminous FOIA case may be fully adjudicated on the basis of a representative or random sample of documents described in the Vaughn Index) (jurisdiction: once information has been released, a court has no role to play).

Bowers v. Dep't of Justice, No. C-C-86-336-M (W.D.N.C. Mar. 9, 1990) (Exemption 1: after in camera inspection of documents, withholds one FBI law enforcement file that contains some technological information and releases 2 other law enforcement files in their entireties).

Bretti v. Dep't of Justice, No. 88-328 (N.D.N.Y. June 18, 1990) (waiver of exemption: exemption may be raised for the first time at the pleading stage) (Exemption 7 (threshold): tapes and transcripts that were compiled for use in a criminal investigation and used at a grand jury hearing and at a criminal trial meet the threshold requirement) (Exemption 7(C): because disclosure would be "minimally . . . intrusive," exemption does not protect the names of FBI Special Agents whose names appeared on the covers of the transcripts or the names of informants, all of whom testified at public trial about their roles in the investigation and about the information contained on the tapes and in the transcripts) (Exemption 7(D): informant has waived any claim to confidentiality to the extent that he testified at a public trial concerning the conversations found in the requested transcripts and tapes; he has not waived the privilege as to those conversations not publicly disclosed at trial).

Buehl v. FBI, No. 88-3724 (D.D.C. Apr. 30, 1990) (Exemption 7(C): the FBI may redact the nickname of an unidentified third party that is similar to the name of a deceased victim) (Exemption 7(D): protects documents received from a police department under an implicit understanding of confidentiality; public testimony does not waive this exemption, because the information was originally received in confidence).

Chaves County Home Health Servs. v. Sullivan, 732 F. Supp. 188 (D.D.C. 1990) (Federal Register publication: HHS's ruling explaining the use of the statistical sampling method to calculate amounts of overpayment is merely an interpretive rule and is not subject to formal rulemaking requirements).

Chesapeake Bay Found. v. USDA, No. 89-1943 (D.D.C. Mar. 26, 1990) (in this FOIA case where plaintiff requested agency records containing survey response forms submitted to the USDA by public agencies in the State of Maryland, court orders that the State of Maryland or any public agency that supplied the requested records be given 60 days to assert any objections to the release of the records).

Clarkson v. IRS, No. 8:88-3036, 1990 U.S. Dist. LEXIS 6887 (D.S.C. May 10, 1990) ("reasonably described" records: plaintiff's request for all records in defendant agency's files under every name and number, as well as documents on him, lacks the specificity required under the FOIA) (Exemption 3 [26 U.S.C. § 6103(b)(2): protects names and information about third-party taxpayers, as well as information regarding possible IRS investigations of them) (Exemption 7(C): applying Reporters Committee, holds that even though some of the information may be available somewhere in the public record, the exemption protects informant names, the names and initials of FBI and IRS employees, and the information that would identify individuals who may have been of investigative interest to the FBI or IRS) (Exemption 7(D): protects information provided by a confidential source) (Exemption 7(A): release of documents pertaining to pending criminal proceedings would impair those proceedings by disclosing the evidence developed and the scope and direction of the proceedings) (Exemption 7(F): withholds documents concerning undercover operations of the IRS, some of which involved violent taxpayer groups).

Colonial Trading Corp. v. Dep't of the Navy, 735 F. Supp. 429 (D.D.C. 1990) (Exemption 3 [10 U.S.C. § 130]: 10 U.S.C. § 130 and DOD's implementing directives prohibit the disclosure of unclassified drawings of the MK-46 torpedo because this data could not be exported outside the United States without official approval).

Courier-Journal & Louisville Times Co. v. Dep't of Justice, No. C86-0007 (W.D. Ky. Jan. 8, 1990) (Exemption 7(C): granting defendant's motion to amend court's June 12, 1989 order in light of Reporters Committee, withholds materials pertaining to the investigation and related guilty plea of a convicted individual).

Covington & Burling v. Food & Nutrition Serv. of the USDA, 744 F. Supp. 314 (D.D.C. 1990) (adequacy of affidavit: affidavit, which divides the information withheld from 108 documents into 4 general categories, for the most part fulfills the requirements of the FOIA; agency is directed to provide more detailed information in order to withhold information from 11 remaining documents) (Exemption 5: while the agency did not describe specific agency decisions in each individualized description of each document, it did pinpoint the agency policy or final decisions in which the documents played a role in the categorized section of its affidavit; by supplying plaintiff with a hierarchy of decisionmaking analyses, the agency provided a framework for understanding how the documents reflect the "give-and-take of the consultative process"; in 8 instances where the agency did not adequately describe how the document or document portion fit into the predecisional process, the agency must release the information; the deliberative process privilege protects documents prepared by the government while in the process of determining state's eligibility for a good-cause waiver in a matter concerning its food stamp program; 2 issue papers do not fall under this privilege to the extent that they were expressly adopted by the agency; the agency did not waive the deliberative process privilege by releasing substantially similar documents; the attorney-client privilege was not waived by disclosure of the documents to 4 high-level officials without decisionmaking authority) (adequacy of search: agency's search was adequate even though all applicable documents were not discovered).

Critical Mass Energy Project v. NRC, 731 F. Supp. 554 (D.D.C. 1990) (Exemption 4: release of safety reports furnished voluntarily to the NRC by a nonprofit consortium would diminish NRC's efficiency and effectiveness; applying the "balancing" test, finds that while the release of the reports would serve no particularized need of the public, it would damage NRC's relationship with an unofficial, industry-friendly organization and result in a loss of valuable regulatory intelligence).

Curcio v. FBI, No. 89-0941 (D.D.C. Mar. 6, 1990) (discovery in FOIA litigation: while the method of discovery utilized by plaintiff is appropriate in a FOIA action, plaintiff's Second Request for Admissions must be denied because it requires the release of the very material properly withheld under Exemptions 7(C) and 7(D)).

Denney v. Hodel, No. 88-1194 (D.D.C. Jan. 12, 1990) (grant's defendant agency's renewed motion for summary judgment, finding that it had conducted "complete and thorough" searches, even though they did not yield the quantity of documents anticipated by plaintiff).

Dortch v. Fed. Bureau of Prisons, No. 3:89-0436 (M.D. Tenn. Feb. 26, 1990) (magistrate's recommendation) (fee waiver (Reform Act): indigence is irrelevant to an entitlement to a fee waiver; the disclosure of plaintiff's Bureau of Prisons institutional files would not make a significant contribution to the public's understanding of government operations, but court nevertheless requires government to justify withholding of remaining records even lacking plaintiff's promise to pay for those that are disclosable).

Dortch v. Fed. Bureau of Prisons, No. 3:89-0439 (M.D. Tenn. May 16, 1990) (magistrate's recommendation) (recommends granting defendant agency's motion for summary judgment in this FOIA case where plaintiff sought a fee waiver for 281 pages of information concerning her incarceration).

Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 734 F. Supp. 27 (D.D.C. 1990) (agency: the Defense Nuclear Facilities Safety Board is not an agency for purposes of the FOIA or Government in the Sunshine Act; although the Board's powers are more expansive than those of a common advisory board, these powers are only incident to its oversight function).

Fazzini v. Dep't of Justice, No. 88-1023 (D.D.C. Mar. 6, 1990) (agency records: the absence of responsive records is an appropriate reason for denial of a FOIA request) (Exemption 7(C): release of the names of United States Marshals who escorted plaintiff would not constitute an unwarranted invasion of personal privacy).

Ferguson v. FBI, 729 F. Supp. 1009 (S.D.N.Y. 1990) (while declining to order an in camera inspection at this time, orders defendant to produce a detailed Vaughn Index of the 1963-1970 portion (1411 pages) of plaintiff's April 1989 FOIA request within 86 days).

Fernandez v. Dep't of Justice, No. 88-1539 (D.D.C. Feb. 5, 1990) (adequacy of search: plaintiff has offered no evidence to support his contentions that the defendant agency's search was inadequate or was conducted in bad faith) ("reasonably segregable": in order to protect the identities of confidential sources, the withholding of entire pages was reasonable) (Vaughn Index: the defendant agency has more than adequately met the requirements of the Vaughn Index, further explanation of deleted materials would reveal the very nature of the information sought to be withheld) (Exemption 2: release of informant-identifier and violator codes would subject the information to potential decoding by suspects, enabling evasion of detection by DEA agents and the thwarting of DEA investigative and enforcement efforts) (Exemption 7 (threshold): threshold requirement met where documents were compiled pursuant to DEA's investigation of plaintiff's activities with illegal drugs, which ultimately led to his arrest) (Exemption 7(C): from records compiled pursuant to a DEA investigation, the exemption protects identities and information regarding persons who were implicated, involved, or associated with plaintiff, information regarding persons in whom DEA had an investigative interest, and information and identities of persons providing information to DEA) (Exemption 7(D): the exemption protects identities and information provided by private individuals, as well as local and foreign law enforcement personnel; entire pages of documents were properly withheld where the information, "even if not directly disclosing confidential material, was likely to provide context sufficient to reveal identities or information relating to confidential sources") (Exemption 7(E): DEA may withhold details surrounding the circumstances, purposes, results, and methods of 3 proven law enforcement techniques and procedures) (Exemption 7(F): DEA may withhold the names and identities of DEA Special Agents, Supervisory Special Agents, and other United States and foreign law enforcement officers who engage in covert, undercover contacts with persons known to have violent tendencies).

Frets v. Dep't of Transp., No. 88-0404-W-9 (W.D. Mo. Feb. 7, 1990) (Exemption 6: denies plaintiff's motion for reconsideration of court's Dec. 14, 1989 order which withheld information that would reveal identities of confidential sources from records of an FAA investigation of alleged drug use by air traffic controllers during off-duty hours).

Frets v. Dep't of Transp., No. 88-0404-W-9 (W.D. Mo. June 7, 1990) (attorney fees: plaintiffs have substantially prevailed because they have received significant portions of the materials they sought and these records would not have been disclosed absent a lawsuit; a successful FOIA plaintiff always acts in some degree for the benefit of the public; plaintiff who sought records of an FAA investigation of alleged drug use by air traffic controllers during off-duty hours served the public interest by impressing upon defendant agency the need, when conducting investigations, to carefully balance individual rights against the public's interest in the safest possible transportation system; although plaintiff's demands failed to consider the legitimate interests of the defendant agency in protecting the traveling public, the withholding of records did not have a reasonable basis in law; plaintiffs are entitled to one-half of the attorney fees and expenses incurred by them -- $6203.75 in fees and $456.93 in costs).

Frydman v. Dep't of Justice, No. 78-4257, 1990 WL 1483 (D. Kan. Jan. 3, 1990) (discovery in FOIA litigation: discovery cannot be used in place of a proper dispositive motion to determine whether information in documents should be disclosed).

Green v. Dep't of State, No. 85-0504 (D.D.C. Apr. 17, 1990) (Exemption 1 [E.O. 12,356]: defendant agency may reclassify documents pursuant to executive orders issued subsequent to its initial classification decision; the State Department properly withheld 69 documents or portions thereof concerning Israeli espionage because disclosure would be contrary to customary diplomatic practices, would compromise diplomatic and intelligence sources, would undermine the confidence of other nations in the United States's ability to preserve the confidentiality of diplomatic exchanges, would reveal the United States's negotiating tactics and strategy, or would reveal that the United States considered taking various actions against foreign diplomats "who might engage in espionage"; in evaluating an Exemption 1 claim, the court is required to accord substantial weight to the agency's declarations; finding that the FBI has satisfied the 2-part Arieff v. Department of the Navy test, takes into account the FBI's in camera affidavits in conjunction with its Vaughn Index and concludes that the agency properly classified intelligence source and method information) (adequacy of agency affidavit: the defendant agency's affidavits meet the burden of proving that disclosure of the withheld documents could reasonably be expected to pose a threat to the national security) (Vaughn Index: although the FBI's coded Vaughn Index provides the court with an inadequate basis for de novo review in an Exemption 1 case, public disclosure of more information may well have the effect of making public the very information the defendant is endeavoring to protect) (Exemption 5: the deliberative process privilege protects a cover letter and attachments reflecting an exchange of views between officials at the Departments of State and Justice concerning whether a request for judicial assistance should be made to Israel) (Exemption 2: symbol numbers and letters used by the FBI to identify confidential sources fall within the ambit of the exemption) (Exemption 7(C): protects information that would identify FBI Special Agents and clerical employees, subjects of investigative interest, and FBI informants involved in an espionage investigation that took place more than 25 years ago) (Exemption 7(D): following Keys v. Department of Justice and Schmerler v. FBI, holds that by demonstrating that the information was solicited during the course of an espionage investigation the FBI raises the presumption of confidentiality; because the exemption contains no sunset provision, once the government has demonstrated that sources are confidential, the statute does not require the government to justify continued withholding against claims that confidentiality is no longer warranted; because defendant has made no showing that information about the source is of such a "singular nature" so that its disclosure would identify the source, the court gives the agency 10 days to demonstrate to the court's satisfaction that information should be withheld).

Green v. Dep't of State, No. 85-0504 (D.D.C. June 20, 1990) (Exemption 7(D): information previously identified by the FBI as "derivative source information" upon reexamination has been found to be "direct source information"; exemption protects "direct source information," because by demonstrating that the information was solicited in the course of a law enforcement investigation, the FBI raises the presumption that assurances of confidentiality were given, a presumption which plaintiff has not rebutted).

Greenpeace U.S.A., Inc. v. EPA, 735 F. Supp. 13 (D.D.C. 1990) (Exemption 6: exemption does not apply to request for which agency gave a Glomar denial, because the records would not reflect personal information, but rather "official" information that would indicate whether an EPA employee's participation in a public meeting held by a chemical company was approved by the EPA, and if not, whether EPA was investigating or had punished this misconduct) (Exemption 7 (threshold): the threshold requirement is not met when the records concern an agency's general internal monitoring of its own employees to ensure compliance with agency regulations).

Hahn v. Comm'r, No. CA3-89-3254 (N.D. Tex. Apr. 12, 1990) (proper party defendant: Complaint dismissed because under the FOIA only the agency involved and not individuals are proper defendants; it is improper to name as defendant the head of an agency, either by name or generic title).

Hunsberger v. CIA, No. 89-0539 (D.D.C. May 30, 1990) (action dismissed for lack of prosecution by either party).

Inter-Hemispheric Educ. Res. Ctr. v. Nat'l Endowment for Democracy, No. 89-3275 (D.D.C. June 1, 1990) (fee waiver (Reform Act): approves agency's refusal to grant no more than a 50% reduction of normal copying fees incurred by a nonprofit research institution because of the minimal showing of public interest, the vagueness of plaintiff's publication plans, the burdensome nature of the requests, and the fact that some of the material already was in the public domain).

Int'l Bhd. of Teamsters v. Burnley, No. 89-0124 (D.D.C. Jan. 24, 1990) (mootness: because the FOIA requester received the specific information he requested, the case is dismissed as moot; if the requester would like further information, he must submit another FOIA request).

Jefferson v. Zelez, No. 88-3199 (D. Kan. Mar. 19, 1990) (jurisdiction: the court is without jurisdiction to review this case on the merits because plaintiff has not exhausted his administrative remedies) (proper party defendant: only federal agencies and departments are proper party defendants under the FOIA and Privacy Act) (pro se plaintiff: a pro se plaintiff is entitled to a liberal construction of his pleadings).

Johnson v. Dep't of Justice, No. 89-2842 (D.D.C. May 2, 1990) (fee waiver (Reform Act): a prisoner on death row who seeks previously unreleased and possibly exculpatory information is entitled to a partial fee waiver because a potential miscarriage of justice is a matter of great public interest and because of the general liberal standard that attaches in these circumstances; plaintiff must pay copying charges for the bulk of the information in which no one, not even plaintiff himself, could possibly have a serious interest) (mootness: although the recent release of partially redacted FBI records has largely mooted the fee waiver issue, the court has put forth its views to guide the handling of any further disputed documents).

Journal-Gazette Co. v. Dep't of the Army, No. F89-147 (N.D. Ind. Jan. 8, 1990) (Exemption 6: plaintiff's request for the medical records (including autopsy reports) of an Army pilot who was killed during an aborted night training exercise fits squarely within the "core purpose" of the FOIA, because the public has a right to know how the defendant agency determines whether a pilot is capable of flying expensive government equipment in public airspace).

Katz v. Webster, No. 82-1092 (S.D.N.Y. Feb. 1, 1990) (attorney fees: the fact that the government released a substantial volume of documents subsequent to the filing of this action warrants an award of attorney fees for all the work performed by plaintiff's counsel during the course of this present action; plaintiff's claim of 34.4 hours spent on fee application preparation was reasonable, because the government had made it clear from the outset that the request for fees would be "sharply contested" and because the quality of plaintiff's submissions are commensurate with the time expended; finds that the hourly rate chosen by the magistrate was reasonable (but does not specify the dollar amount); awards plaintiff $11,657.50 in attorney fees and $392 in costs).

Klayman & Gurley v. Dep't of Commerce, No. 88-0783, 1990 WL 446704 (D.D.C. Apr. 17, 1990) (Exemption 4: release of proprietary business information submitted by a domestic manufacturer in response to a Federal Register notice would impair the government's ability to obtain necessary information in the future; the information submitted is "necessary" under the National Parks test because in order to evaluate a "short-supply" of steel the government needs not only inventory information, but also market evidence provided voluntarily by manufacturers) ("reasonably segregable": all reasonably segregable, nonexempt information has been released).

Knight v. FBI, No. 3-88-517 (D. Minn. Jan. 8, 1990) (magistrate's recommendation) (pro se litigant: because plaintiff is acting pro se, the court has construed his pleading liberally; nevertheless, plaintiff must meet the same standard as litigants represented by counsel to survive a motion for summary judgment) (exhaustion: because agencies did not comply with the statutory time limits for responding to plaintiff's FOIA request, plaintiff is deemed to have exhausted his administrative remedies) ("exceptional circumstances"/"due diligence": defendant agency has demonstrated that it is processing plaintiff's FOIA request in accordance with its established "first-in, first-out" policy) (Exemption 7(C): protects the name of a third-party inmate who was scheduled for a parole-violation hearing) (Exemption 7(D): protects Detroit Police Department reports relating to plaintiff's arrests) (summary judgment: summary judgment granted to defendant agency because plaintiff failed to demonstrate that it had improperly withheld agency records), adopted (D. Minn. Jan. 30, 1990).

Korkala v. CIA, No. 87-1035 (D.D.C. Mar. 15, 1990) (status of plaintiff: plaintiff's status as a former defendant in a criminal proceeding before a different court is irrelevant to this FOIA action) (in camera inspection: given the CIA's claim that release of the information would cause harm to the national security, denies plaintiff's request to participate in in camera proceedings; denies plaintiff's request for in camera inspection because the overall adequacy of the agency's response serves to undermine the persuasiveness of plaintiff's charges of bad faith) (duty to search: given the magnitude of the records involved, the court will not conclude that the agency's search was inadequate simply because it is unable to account for one or 2 documents that plaintiff assumes it possesses).

Landes v. Yost, No. 89-6338 (E.D. Pa. Apr. 12, 1990) (proper party defendant: FOIA and Privacy Act suits must be brought against the agency, not an individual officer) (adequacy of request: plaintiff's request is reasonably descriptive because he refers to an identification system in use when the requested documents were created) (duty to search: the agency has not demonstrated that it has conducted an adequate search for a file that it claims does not exist).

Lawyers Comm. for Human Rights v. INS, No. 87-1115 (S.D.N.Y. May 23, 1990) (waiver: "off-the-record" exchanges of classified information with members of the press constitute waiver of Exemption 1).

Lawyers Comm. for Human Rights v. INS, No. 87-1115 (S.D.N.Y. June 7, 1990) (on in camera inspection, the court is satisfied that all of the documents that the agencies sought to withhold fall within Exemptions 1, 3, 5, 7(D), or 7(E); no further segregation and release is required).

Leavitt v. DOD, No. 88-1371 (S.D. Cal. Feb. 13, 1990) (Exemption 7 (threshold): the threshold requirement is met by records compiled by the Defense Criminal Investigative Service (DCIS) and by the FBI in their investigations of plaintiff for sending threatening letters to federal employees) (Exemption 7(C): withholds names of DCIS agents from investigatory records) (Exemption 7(A): the release of FBI records would "reveal the scope and direction of the investigation, thereby allowing the plaintiff critical insight into the investigative efforts of law enforcement" and also "could thoroughly inhibit witnesses/confidential sources from continuing to provide accurate information without fear of discovery or reprisal") (summary judgment: summary judgment granted to defendant agencies because they provided plaintiff with all the documents he requested that were not properly exempt under the FOIA).

Leeds v. Quigg, No. 89-1925 (D.D.C. Mar. 26, 1990) (jurisdiction: a court has jurisdiction to review an agency's compliance with the FOIA indexing requirements) (subsection (a)(2): the Patent & Trademark Office is not required to index decisions in pending or abandoned applications).

Linder v. FBI, No. 89-345 (D. Or. Jan. 18, 1990) (attorney fees: the timing of defendant agency's supplemental release, almost one year after the agency's denial of plaintiffs' administrative appeal and one week before the government filed its motion for summary judgment, gives rise to an inference that the filing of this action had a substantial causative effect on the disclosure; there is a substantial public interest in the murder of Ben Linder by Contra forces in Nicaragua in April 1987; there was no reasonable basis for denying access to, or the delay in releasing, materials such as a 2-page brochure for the September 1987 "Conference in the Spirit of Ben Linder"; 34 hours for one attorney and 5 hours for another is a reasonable amount of time to spend on this matter; $100-125 per hour is a reasonable hourly fee; grants $4750 in attorney fees and $284.36 in costs).

Lynott v. Fed. Bureau of Prisons, No. 89-2232 (D.D.C. Apr. 30, 1990) (mootness: plaintiff's complaint is moot because he has received the information he requested) (jurisdiction: neither the FOIA nor the Privacy Act can confer jurisdiction over plaintiff's Complaint because plaintiff has never filed a FOIA or Privacy Act request).

Md. Dep't of Human Res. v. Sullivan, 738 F. Supp. 555 (D.D.C. 1990) (attorney fees: causality exists when the defendant agency failed to provide even preliminary notification under § 552(a)(6)(A)(i) to state agency's FOIA request for records concerning an amendment to the Social Security Act created to reimburse states for child foster care maintenance; the type of information sought will benefit citizens in making political choices and other states concerned with reimbursement eligibility; however, because the state sought the information to prepare for litigation on the amendment's legislative or interpretative status, it is not entitled to attorney fees).

May v. Thornburgh, No. 90-0460 (D.D.C. May 3, 1990) ("exceptional circumstances"/"due diligence": following Open America, holds that an agency may delay responding to FOIA requests).

Mayock v. INS, 736 F. Supp. 1561 (N.D. Cal. 1990) (attorney fees: attorney who became the sole named plaintiff after the individual FOIA requests of his client were resolved is not entitled to attorney fees for his work because under the FOIA these fees must be "incurred"; a law firm that appeared as counsel for attorney-plaintiff is entitled to fees; although plaintiff did not prevail on 3 of his claims, he has substantially prevailed because he prevailed on his central claim and request for relief; the public benefitted from this lawsuit because the denial of information was having a substantial adverse impact on requesters involved in immigration litigation; plaintiff's continued litigation (to show that INS had a pattern and practice of not complying with the FOIA) after his client's case had been concluded was more of a public benefit than a commercial interest; in spite of the reasonableness of some of INS's positions, plaintiff is not disqualified from an award of fees -- instead the government's arguments are matters to be weighed in setting the amount of the award; the law firm's record adequately demonstrate hours of time expended by appropriate personnel at reasonable hourly rates and has been reduced by the time that was spent in seeking relief for which plaintiff did not prevail; denies an enhancement of the lodestar amount because plaintiff's success was not total and because of the reasonableness of some of INS's positions; awards law firm $158,372 in attorney fees and $9598.03 in costs).

Meyerhoff v. EPA, 728 F. Supp. 613 (N.D. Cal. 1990) (Exemption 3 [5 U.S.C. App. 4 § 207(a)]: the Ethics in Government Act of 1978 qualifies as a withholding statute under this exemption; withholds information concerning advisory committee members' financial ties to the petrochemical and pesticide industries).

Nadler v. Dep't of Justice, No. 88-1454 (S.D. Fla. Mar. 30, 1990) (Exemption 7(C): withholds names of FBI Special Agents and Supervisory Special Agents from documents related to the department's investigation of a Dade County Circuit Judge for alleged violation of the Hobbs Act; this exemption may not be used to protect names of all persons involved in agency investigations) (Exemption 7(D): with the exception of one name, defendant agency's allegations of confidentiality are insufficient to invoke the confidential source exemption; exemption does not protect information and names that were discussed at length and in detail in the newspapers).

Nat'l Sec. Archive v. CIA, No. 88-0501 (D.D.C. Jan. 30, 1990) (fees (Reform Act): following National Security Archive v. DOD, holds that while the Archive is not an educational institution, it is a "representative of the news media" by virtue of its publication activities, and is not a "commercial requester," so it therefore is entitled to preferred fee status under the FOIA).

Nat'l Sec. Archive v. FBI, No. 88-1507 (D.D.C. June 7, 1990) (discovery in FOIA litigation: discovery will be allowed to proceed in this FOIA case only if the resolution of defendant agency's motion for summary judgment, now pending, reveals that disputed issues of fact exist that could be resolved by discovery).

Olson v. Dep't of the Treasury, No. 84-1315 (D.D.C. May 1, 1990) (upon defendant's motion for summary judgment, the court, without an opinion, orders defendant to disclose all of the information and documents previously withheld and listed in their Vaughn Indices).

Ostheimer v. Lindquist, No. 89-57-M (D. Mont. Feb. 13, 1990) (jurisdiction: court lacks jurisdiction, because plaintiff has not exhausted his administrative remedies by filing a FOIA request for specific information in accordance with published procedures).

Painting Indus. Mkt. Recovery Fund v. Dep't of the Air Force, 751 F. Supp. 1410 (D. Haw. 1990) (declaratory judgment: in a case where plaintiff seeks the certified payroll records of a painting contractor on a military housing maintenance project, the court goes so far as to say that it has jurisdiction to prospectively enjoin defendant agency from refusing to disclose payroll records in future FOIA requests) (Exemption 4: summary judgment is denied to both parties on this issue because the question of what the data contained in the requested payroll records would mean to a competitor painting contractor is a genuine issue of material fact) (Exemption 6: Reporters Committee is cautiously applied to this exemption because Exemption 7(C)'s privacy language is broader than the language of Exemption 6; employees' modest privacy interest in preventing the disclosure of their names, home addresses, and other less personal information contained in the requested payroll records is outweighed by the public interest in monitoring compliance with the Davis-Bacon Act; the disclosure of social security numbers from payroll records would be a "clearly unwarranted invasion of personal privacy") (Exemption 7(C): the release of these payroll records, expunged of employees' social security numbers, would not "reasonably be expected to constitute an unwarranted invasion of personal privacy").

Parker v. Dep't of Justice, No. 88-0760 (D.D.C. Feb. 28, 1990) (Vaughn Index: the coded Vaughn Index is adequate to determine the appropriateness of the claimed exemptions) (Exemption 7 (threshold): the threshold requirement is satisfied by records compiled by the FBI during its investigation and prosecution of plaintiff for the crimes of kidnaping, rape, and murder) (Exemption 7(C): following Reporters Committee, protects identities of FBI Special Agents and support personnel, subjects of investigative interest, associates of plaintiff, and potential witnesses or sources of information) (Exemption 7(D): even where the crime is publicly known, the information relevant to the crime, collected under implied promises of confidentiality from individuals and a commercial institution, does not automatically become public; even though Georgia State statutes may have required disclosure of documents which were also exchanged with the Justice Department, the Georgia officials could still reasonably expect that the "information they provided [to the Department of Justice would] be kept in the strictest confidence"; public testimony by one assumed to be a confidential informant does not obviate the protections accorded to information provided by a source to a law enforcement authority; the Justice Department need not confirm or deny that persons who testify at trial are also confidential informants) (Exemption 7(E): protects law enforcement techniques known to the public, the "valuations" assigned to them, and the circumstances of their use in a particular case).

Perry v. Dep't of Justice, No. 89-3451 (D.D.C. June 11, 1990) (case dismissed where defendant agency requested an Open America stay to process -- and charge plaintiff reproduction costs for -- an additional 50,000 pages of documents responsive to plaintiff's FOIA request and where plaintiff thereupon moved to withdraw his Complaint).

Pfeffer v. Dir., Bureau of Prisons, No. 89-0899 (D.D.C. Apr. 18, 1990) (Exemption 7(C): protects identities of law enforcement personnel named in documents relating to the government's investigation of plaintiff's 2 attempted prison escapes) (Exemption 7(D): documents which contain detailed information about plaintiff's escape plans may be withheld because all the information was obtained from a confidential source) (Exemption 7(F): because portions of documents relate to the smuggling of weapons, their release could reasonably be expected to endanger the physical safety of some individual).

Prado v. Ferro, No. 89-0060T (W.D.N.Y. May 17, 1990) (jurisdiction: court lacks jurisdiction because INS officials have no records concerning how plaintiff's passport came into their custody).

Priest v. IRS, No. C88-20785 (N.D. Cal. Jan. 11, 1990) (duty to create a record: the IRS is not required to produce or create explanatory material in response to a FOIA request) (Exemption 7(C): protects the identity of a person who cooperated with the IRS in the course of its investigation of plaintiff).

Radiation Sterilizers, Inc. v. DOE, No. 90-0880 (D.D.C. June 11, 1990) (in effect, the court grants an unrequested Open America stay when the case is ordered dismissed while the defendant is in the process of reviewing the documents that plaintiff has requested under the FOIA).

Reed v. NLRB, No. 89-3254 (D.D.C. May 15, 1990) (Exemption 6: an Excelsior list (names and addresses of employees eligible to vote in forthcoming union representation elections) is a similar file; following Reporters Committee, holds that although an Excelsior list may have been disclosed to labor organizations, there is still a privacy interest in the nondisclosure of this information; withholds mailing list because its disclosure would not reveal anything about the NLRB's operations).

Retired Officers Ass'n v. Dep't of the Navy, 744 F. Supp. 1 (D.D.C. 1990) (Exemption 6: in light of National Association of Retired Federal Employees v. Horner and Reporters Committee, holds that in evaluating the public interest in disclosure the identity of the requesting party is an impermissible consideration; rather it is necessary to examine the nature of the requested document and its relation to the basic purpose of the FOIA; upon reconsideration, withholds names and home addresses of retired military officers).

Roley v. Assistant Attorney Gen., No. 89-2774 (D.D.C. Mar. 9, 1990) (magistrate's recommendation) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: protects third-party tax returns which the IRS forwarded to the Justice Department during plaintiff's criminal prosecution; although the IRS may have quoted portions of these tax returns in prosecutive memoranda, this does not rise to the level of the "composite product" discussed in Church of Scientology v. IRS; [Rule 6(e)]: the provision that allows for the disclosure of grand jury materials for use in a parallel civil proceeding does not include the very proceeding instituted for the purposes of obtaining disclosure) (Exemption 5: the attorney work-product privilege protects an IRS prosecutive recommendation to the Department of Justice, a review note, and a prosecutive memorandum) (Exemption 7(C): protects the names of witnesses who discussed plaintiff's assets with IRS investigators but did not testify at his trial) (jurisdiction: court lacks jurisdiction because the agency did not improperly withhold agency records).

Salman v. IRS, No. N-89-465 (D. Nev. Apr. 13, 1990) (Exemption 5: defendant agency's affidavits and Vaughn Indices demonstrate that 3 internal memoranda and portions of 2 others concerning the ownership, sale, and seizure of real estate were exempt from disclosure under the deliberative process, attorney work-product, and attorney-client privileges).

San Jose Mercury News v. Dep't of Justice, No. C88-20504 (N.D. Cal. Apr. 17, 1990) (Exemption 2: the agency's conclusory affidavit does not demonstrate that the exemption applies to DEA Form 106 used by drug registrants to report the loss or theft of controlled substances; there is a lack of "internality") (Exemption 4: neither the defendant agency's affidavit nor brief explains how disclosure of the theft/loss information would affect the drug registrant's commercial interests) (Exemption 6: Form 106 does not contain any personnel-type information) (Exemption 7 (threshold): the threshold requirement is met because the information was gathered to aid in criminal investigations) (Exemption 7(A): exemption does not apply because the government cannot identify any specific investigation that would be hampered by the disclosure of the information) (Exemption 7(C): while the public should be aware of the amount of controlled substances' theft and loss, the need to reveal the identities of drug registrants is less strong; several items, including some for which 7(C) was not invoked, approved for withholding on this basis) (Exemption 7(D): because drug registrants are required by law to fill out Form 106, there is no implied promise of confidentiality) (Exemption 7(F): exemption does not apply because there are no undercover agents whose identities will be revealed by form).

Schmanke v. United States Postal Serv., No. 89-1551 (D.D.C. Jan. 4, 1990) (fee waiver (Reform Act): the mere fact that information relates to a government activity is insufficient to demonstrate "public benefit"; an advance payment of fees is appropriate because plaintiff has previously failed to pay fees in a timely fashion and the fee is likely to exceed $250; plaintiff, who sought records primarily related to his criminal activities and those of his co-conspirators, is not entitled to a fee waiver).

Schoettle v. Kemp, 733 F. Supp. 1395 (D. Haw. 1990) (Exemption 6: distinguishing Aronson v. HUD as pre-Reporters Committee precedent, protects 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).

Senate of P.R. v. Dep't of Justice, No. 84-1829 (D.D.C. Jan. 9, 1990) (adequacy of search: finding that the Justice Department had violated the spirit, if not the letter, of the court's August 1988 order, now orders that the defendant agency search and prepare a detailed Vaughn Index of the files of all Justice Department subdivisions for documents dealing with the "Cerro Maravilla" incident) (Exemption 3 [Rule 6(e)]: because defendant agency has not met the burden set out in the Court of Appeals opinion for claiming Exemption 3, court now orders it to release the grand jury exhibits to the plaintiffs (even though they contain unmistakable grand jury markings); court says that it is adequate for agency to redact portions that would reveal the inner workings of the grand jury, such as witness names, signatures, dates, and other markings).

Senate of P.R. v. Dep't of Justice, No. 84-1829 (D.D.C. Apr. 23, 1990) (in camera inspection: orders in camera inspection of the grand jury exhibits which the government claims are protected under Exemption 3).

Sherwood Van Lines, Inc. v. Dep't of the Navy, 732 F. Supp. 240 (D.D.C. 1990) (proper party defendant: the FOIA authorizes suit against federal agencies and does not create a cause of action against individual employees, even when plaintiff alleges that individual employees have conspired to block its access to records).

Silverberg v. HHS, No. 89-2743, 1990 WL 599452 (D.D.C. June 26, 1990) (discovery in FOIA litigation: grants plaintiff limited discovery pertinent to government's claim that the results of performance tests of laboratories that have been certified to perform drug testing of federal employees are properly withheld under Exemption 4 and that the privilege has not been waived).

Siminoski v. FBI, No. 83-6499 (C.D. Cal. Jan. 16, 1990) (adequacy of search: the statute does not give the court discretion to order an agency to extend a search beyond the offices or groups described with reasonable specificity in plaintiff's FOIA request; FBI's search for files pertaining to the 13 specified groups was adequate) (fee waiver (Reform Act): plaintiff is entitled to a fee waiver because release of the information he seeks would contribute significantly to the public's understanding of the FBI's surveillance of gay and lesbian groups; even though plaintiff may write a book and profit from this information, this in no way makes his interest "primarily commercial"; plaintiff is not entitled to a fee waiver for records that had been previously produced by the FBI to other organizations) (Exemption 1 [E.O. 12,356]: after in camera review, holds that 12 of the documents were properly redacted pursuant to the exemption; the release of the identities of foreign liaisons and intelligence sources from the remaining 4 documents would harm the national security, despite the passage of 44 years) (Exemption 2: applying the "mosaic" theory to Exemption 2, holds that while the disclosure of a specific surveillance or investigative method "may not individually threaten to disclose FBI procedure, there is a real threat that a broad collection of information would sufficiently adumbrate FBI activities to make them less efficacious"; withholds source symbols for investigative techniques) (Exemption 7 (threshold): the FBI has met its burden of showing that the compilation of the documents was reasonably related to a law enforcement purpose) (Exemptions 6 and 7(C): following Reporters Committee, protects the identities of people suspected of homosexual or subversive activities, despite the passage of 40 years) (Exemption 7(D): source names, identification codes, and information provided by a confidential source are properly withheld under the exemption) (Exemption 7(E): redaction is proper to protect the integrity of internal procedures).

Stebbins v. Sullivan, No. 90-0559 (D.D.C. June 5, 1990) (Exemption 3 [26 U.S.C. § 6103(b)(2)]: plaintiff's request for the address of a third party is denied because the defendant agency's only source of this address would be from tax returns, and section 6103 expressly prohibits the disclosure of a taxpayer's address).

Stone v. FBI, 727 F. Supp. 662 (D.D.C. 1990) (Exemption 7(C): despite the passage of more than 20 years, withholds the names of FBI clerical employees, nonsupervisory FBI Special Agents, and Los Angeles Police Department law enforcement officers from the FBI's investigatory file on the assassination of Robert F. Kennedy; the FOIA's 1986 law enforcement amendment "represents a considered congressional effort to 'ease considerably a Federal law enforcement agency's burden in invoking [Exemption 7]'").

Summers v. Dep't of Justice, 733 F. Supp. 443 (D.D.C. 1990) ("exceptional circumstances"/"due diligence": grants defendant's motion for an Open America stay; a publication contract deadline is not a valid basis for expedited processing) (discovery in FOIA litigation: denies plaintiff's request to depose various people within the FBI in order to challenge the Open America request).

Sylvester v. Huff, No. 87-2543 (D.D.C. Feb. 12, 1990) (proper party defendant: the agency of the federal government alleged to be improperly withholding records is the proper party defendant in a FOIA action; case dismissed because the only named defendants are agency officials).

Teich v. FDA, 732 F. Supp. 17 (D.D.C. 1990) (discovery in FOIA litigation: in a case concerning the applicability of Exemption 4 to Dow Corning Corporation's animal studies concerning the safety of silicone breast implants, the court grants plaintiff's motion to strike from the record the declarations of Dow Corning's vice president because plaintiff's expert witnesses are restrained from offering testimony due to Dow Corning's refusal to waive protective orders from an unrelated case).

Texas v. ICC, No. A-87-016 (W.D. Tex. May 14, 1990) (attorney fees: a governmental entity does not qualify for an award of attorney fees under the FOIA; the attorney fees provision was intended to encourage private citizens, not governmental entities, to bring unlawful withholdings of information to the attention of the court; the state has also failed to satisfy the 4-part criteria for determining entitlement to fees), motion for reconsideration denied (W.D. Tex. June 15, 1990).

Thomas v. United States, No. 89-3654 (E.D. Pa. Jan. 4, 1990) (appointment of counsel: after the defendant agency turned over the requested records to the court for in camera inspection, concludes that the pro se plaintiff has presented his case adequately and is not in need of court-appointed counsel).

Thomas v. United States, No. 89-3654 (E.D. Pa. June 4, 1990) (Exemption 7 (threshold): the threshold requirement is satisfied by FBI laboratory and fingerprint tests of evidence collected by a local law enforcement agency) (Exemption 7(D): protects FBI laboratory and fingerprint tests of evidence collected by a local law enforcement agency and submitted to the FBI under an implicit understanding of confidentiality).

Tripati v. Dep't of Justice, No. 87-3301 (D.D.C. May 23, 1990) (mootness: plaintiff's claims against several Justice Department components dismissed as moot because records have been released) (Exemption 8: protects documents relating to an insolvency proceeding, including bank examination reports and related memoranda, discussing plaintiff's involvement with the bank) (waiver of exemption: plaintiff has provided no evidence that documents were disclosed at a criminal trial; disclosure of the documents to plaintiff in the course of criminal discovery is irrelevant for FOIA purposes) (no improper withholding: affidavits submitted by defendant agency demonstrate that copies of plaintiff's inmate central file were made available to plaintiff and would have been provided but for plaintiff's expressed lack of interest in them).

Trombetta v. United States, No. 90-1438 (E.D. Pa. May 23, 1990) (res judicata: even though the individual defendants are not precisely the same, the doctrine of res judicata precludes the relitigation of issues).

Tyree v. Dep't of Justice, No. 89-1229 (D.D.C. Apr. 18, 1990) (Federal Register publication: under the FOIA, the Justice Department need not publish rules concerning the minimum qualifications for persons appointed as Assistant United States Attorneys).

United States v. McCall, 727 F. Supp. 1252 (N.D. Ind. 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).

Van Aire Skyport Corp. v. FAA, 733 F. Supp. 316 (D. Colo. 1990) (Exemption 5: the deliberative process protects, in whole or in part, documents dealing with the construction of a new airport).

Weisker v. Dep't of Justice, No. S89-543 (E.D. Cal. Mar. 8, 1990) (jurisdiction: court lacks jurisdiction because plaintiff's FOIA request for NRC records was addressed to the United States Attorney and was therefore not made in accordance with the NRC's published administrative procedures) (adequacy of request: agency is not required to produce documents outside the scope of plaintiff's FOIA request) (agency records: although the Justice Department had a right of access to the referenced documents, they were never obtained during the course of the Justice Department investigation and thus cannot be considered "agency records" under the FOIA) (adequacy of search: agency's affidavits provide a reasonable basis for inferring that the search was adequate) (attorney fees: lawsuit was not necessary because documents could have been obtained through third-party discovery under California law; the agencies did not voluntarily release the requested records until a ruling on the motion for a preliminary injunction was imminent; there is minimal public interest in the disclosure of documents that plaintiff sought for use in his state tort action in which he alleges that he was injured by the employment of nuclear technology at a local power plant; plaintiff, who is suing the state for damages caused by the release of radioactive effluent, has a substantial private and pecuniary incentive to pursue his claims; after the completion of the investigation and enforcement proceedings, the agency processed this FOIA request with "glacial slowness"; attorney fees denied) (Exclusion (c)(1) and Exemption 7(A) are applicable only during the period in which there is reason to believe that the subject of the investigation is not aware of its pendency and it could be expected that disclosure would interfere with enforcement proceedings).

Williams v. FBI, No. 89-1644 (D.D.C. Apr. 5, 1990) (adequacy of search: the FBI's response to plaintiff's request for documents satisfies the search requirements of the FOIA) (adequacy of request: the FOIA does not require an agency to identify the records pertaining to an individual where the requester fails to provide the agency with sufficient information to do so).

Wilson v. Dep't of Justice, No. 87-2415 (D.D.C. May 11, 1990) (in his second interim application for attorney fees plaintiff is entitled to the same 50% enhancement that he was granted in the first award; reduces plaintiff's compensation claim by 4.5 hours because of time spent on unsuccessful or unnecessary motions; grants $2450 in attorney fees).  (posted 11/3/03)

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