Brief Description of Recent FOIA Litigation

Exemption 1

Wiener v. FBI, No. 83-1720 (C.D. Cal. Sept. 27, 2004), motion for reconsideration denied (C.D. Cal. Aug. 26, 2005) (appeal pending) -- E.O. 12,958, as unamended; "foreign government information"; ruling, based on FBI's 1998 declaration, that even though the foreign government that provided the information in confidence has stated it would "no longer trust the United States in future dealings" if the information were disclosed, the FBI failed "to address how disclosure of the specific contents in the foreign government information would result in harm to the national security"; reconsideration denied on the basis that "reclassification of the information in question was not crucial to national security as the government chose not to reclassify [it] prior to this court's September 27, 2005 decision."

The Nat'l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211 (D.D.C. 2005) -- E.O. 12,958, as amended -- where plaintiff requested the 2004 National Intelligence Estimate on Iraq, finding that the CIA's declaration provided sufficient detail for the court to determine that the document was properly withheld in its entirety; this document "presents the perfect occasion to heed" the appeals court's warning that judges lack the necessary expertise to "second-guess" agency opinions in the typical national security FOIA case.

Exemption 2

Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) -- "high 2"; protecting "no fly lists"; "[r]equiring the government to reveal whether a particular person is on the watch lists would enable criminal organizations to circumvent the purpose of the watch lists by determining in advance which of the members may be questioned."

Carlson v. USPS, No. 02-05471, 2005 WL 756573 (N.D. Cal. Mar. 31, 2005) -- "high 2"; ordering disclosure of Postal Service's collection box database; finding the agency's argument that disclosure could result in a terrorist introducing "a highly contagious or poisonous agent near the end or beginning of a collection route," thereby making the carrier and delivery vehicle the "delivery vector of the dangerous agent," to be "debunk[ed]" quite "convincingly" because the routes cannot be determined from the database.

Exemption 3

City of Chicago v. United States Dep't of Treasury, 423 F.3d 777 (7th Cir. Sept. 2005) -- ruling that an Appropriations Act prohibition on the use of federal funds "to disclose to the public" certain ATF database records "prevents the agency . . . from acting on a request for disclosure" and that the Act's provision making such data "immune from legal process" prevents a court from utilizing a plaintiff-compensated special master to process such data.

Exemption 4

Kennedy v. DHS, No. 03-6076, 2004 WL 2295058 (W.D.N.Y. Oct. 8, 2004) -- impairment prong, in alternative to Critical Mass; protecting "ink names and coding" voluntarily submitted to the Secret Service by ink companies on the understanding that they would not be publicly disclosed.

McDonnell Douglas Corp. v. United States Dep't of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004), reh'g en banc denied, No. 02-5342 (D.C. Cir. Dec. 16, 2004) -- "reverse" FOIA; in 2-1 decision, ruling that disclosure of option year prices and Vendor Pricing Contract Line-items would be likely to cause substantial competitive harm to submitter because release of option year prices would enable competitors to underbid submitter in the event that agency rebids the contract and that price is the only readily quantified criterion among the 6 criteria for awarding government contracts; the Air Force has not sufficiently demonstrated that the markets in which prime contractors purchase vendor goods and services are not "effectively competitive."

Exemption 5

Judicial Watch, Inc. v. DOE, No. 412 F.3d 125 (D.C. Cir. 2005) -- threshold requirement; applying Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), to find that a document need not be created by an agency or remain in the possession of an agency in order to qualify as "intra-agency"; on remand, the district court should determine whether disclosure of documents from the presidentially created National Energy Policy Development Group, chaired by the Vice President, will expose the deliberative processes of the executive branch.

Nat'l Inst. of Military Justice v. DOD, 404 F. Supp. 2d 325 (D.D.C. 2005) -- threshold requirement; deliberative process privilege; requirements met by opinions, requested by DOD, from nonagency attorneys concerning the promulgation of the regulations establishing military commissions; disclosure of the personal opinions of nonagency attorneys would stifle the frank and honest views of others who in the future may be asked to provide advice and guidance to DOD.

Nat'l Council of La Raza v. United States Dep't of Justice, 411 F.3d 350 (2d Cir. 2005) -- deliberative process privilege; incorporation by reference/adoption exception; finding deliberative process privilege applicable to Office of Legal Counsel opinion concerning authority of local police to detain civil immigration violators, but ruling that most of the opinion was not exempt because it had been expressly "adopted" in public statements by the Attorney General and other senior officials.

Bronx Defenders v. DHS, No. 04 CV 8576, 2005 WL 3462725 (S.D.N.Y. Dec. 19, 2005) -- deliberative process privilege; incorporation by reference/adoption exception; a 1989 Justice Department memorandum discussing whether the FBI had the authority to enter the names of persons with outstanding immigration warrants into a national database of criminal records lost its privileged status; the Justice Department issued 4 opinions in which it expressly or implicitly adopted the memorandum's analysis and conclusion into agency policy; the Second Circuit in La Raza did not intend to fashion so narrow an incorporation standard that adoption would occur only when an agency holds out a document to the public as the sole legal authority for a decision.

Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366 (D.C. Cir. 2005) -- attorney work-product privilege; segregability is not required when a document is fully protected as work product, due to the fact that the work-product privilege protects all materials prepared in reasonable anticipation of litigation, even if purely factual in nature.

Exemption 6

Forest Guardians v. Fed. Emergency Mgmt. Agency, 410 F.3d 1214 (10th Cir. 2005) -- finding that electronic maps containing the specific geographic location of structures "could be manipulated" to reveal flood insurance policy holders' names, addresses, flood risk, and insurance and financing information; the public interest in their disclosure is "negligible, at best," given that the agency already provided plaintiff with these maps in printed form; the privacy interest, "even if minimal," clearly outweighs the "nonexistent" public interest in disclosure.

Horowitz v. Peace Corps, 428 F.3d 271 (D.C. Cir. 2005) -- even though student revealed his sexual molestation allegation to 2 Peace Corps workers without receiving a promise of confidentiality, he still has a "strong" privacy interest in avoiding the further dissemination of his identity; the public interest in this case is "virtually nonexistent"; "[i]n no way would release of the student's name serve the civic good."

Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246 (D.D.C. 2005) -- protecting names, court case numbers, and geographic locations contained in local police arrest reports, bail bond information, and affidavits by and concerning private citizens; a substantial privacy interest exists, because disclosure would associate private individuals with a criminal law enforcement investigation; even though these documents were given to symposium attendees, they fall within the protection of the "practical obscurity" doctrine of Reporters Committee.

Associated Press v. DOD, 395 F. Supp. 2d 15 (S.D.N.Y. 2005), subsequent decision, 395 F. Supp. 2d 17 (S.D.N.Y. 2005) -- ordering agency to submit a court-drafted questionnaire to each Guantanamo detainee to determine if he "wants" identifying information about him in his military tribunal transcript to be release to plaintiff, and ordering agency to report back to the court concerning the results of that survey; rejecting agency's arguments that the court's determination on the applicability of the exemption should be based on the agency's declarations, that the translation and submission of the questionnaires would compromise "key military functions at Guantanamo," and that such an order "encroaches on the President's authority to wage war as Commander in Chief of the armed forces."

Exemption 7

Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) -- finding requested records to have been "created for a law enforcement purpose[,] namely, maintenance of various watch lists to protect the American flying public from terrorism."

Exemption 7(A)

Judicial Watch, Inc. v. United States Dep't of Commerce, 337 F. Supp. 2d 146 (D.D.C. 2004) -- protecting the "identity of a company subject to export enforcement investigation and specifics of the transaction that would tip [off] the company if released."

Exemption 7(C)

NARA v. Favish, 541 U.S. 157 (2004) -- recognizing that "survivor privacy" interest in close family members of former Deputy White House Counsel Vincent Foster justifies nondisclosure of his death -scene photographs; subject's public figure status did not diminish his family's privacy interest; where "the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred."

CEI Wash. Bureau, Inc. v. United States, 404 F. Supp. 2d 172 (D.D.C. 2005) -- incarcerated and formerly incarcerated criminal aliens' privacy interests in their names and dates of birth "clearly" outweigh the public interest in disclosure; their privacy interests in their A-numbers and FBI numbers outweigh the public interest in disclosure.

Exemption 7(E)

Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) -- despite the public interest in the requested records generally, finds that disclosure of 5 groups of documents concerning the FBI's watch lists and disclosing whether a particular name appears on a watch list would enable potential terrorists to circumvent the purpose of the watch lists.

Exemption 7(F)

ACLU v. DOD, 389 F. Supp. 2d 547 (S.D.N.Y. 2005), further stay granted, No. 04-4151 (S.D.N.Y. Oct. 18, 2005) (appeal pending) -- ordering disclosure of photographs and videotapes depicting abuse of detainees at Abu Ghraib; ruling that application of Exemption 7(F) is subject to a balancing of interests and determining that the risk of violence to United States troops and others as a result of disclosure (as sworn to by the Chairman of the Joint Chiefs of Staff) is outweighed by the "core values of FOIA."

Procedural Issues

Judicial Watch, Inc. v. DOE, 412 F.3d 125 (D.C. Cir. 2005) -- "agency records"; district court erred in ordering the government to search the records of agency employees detailed to the National Energy Policy Development Group (NEPDG), chaired by the Vice President; records created or obtained by detailees are not "agency records" because, "as a practical matter," the detailees were employees of the NEPDG and not of the agency.

Bloomberg, L.P. v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004) -- "agency records"; ruling that former SEC chairman's appointment calendar was a "personal record" because it was created for the chairman's own use, contained business and personal entries, was accessed only by the chairman, his chief of staff, and his deputy chief of staff, and was not circulated to others in the agency, even though it was maintained on the agency's computer system.

Elec. Privacy Info. Ctr. v. DOD, 335 F. Supp. 2d 98 (D.D.C. 2004) -- "expedited processing"; ruling that agency properly denied expedited processing of FOIA request concerning its use of a software program known as "Verity K2 Enterprise," which plaintiff stated is data-mining technology that can detect potential terrorist activity; plaintiff has not demonstrated an "urgency to inform the public" about the specific use of the software program, but instead has shown only a general public interest in the "umbrella" subject of data-mining programs (of which there are a significant number) in general; agency's use of the Verity software has been a matter of public knowledge for at least 2 years and yet major news organizations have not published any articles addressing the software's possible data-mining capabilities.

Judicial Watch, Inc. v. United States Dep't of Transp., No. 02-566, 2005 WL 1606915 (D.D.C. July 7, 2005) -- incorrectly ruling that "[a] fee waiver request should be evaluated based on the fact of the request and the reasons given by the requestor in support of the waiver, 'not on the possibility that the records may ultimately be determined to be exempt from disclosure.'"

Or. Natural Desert Ass'n v. Gutierrez, 409 F. Supp. 2d 1237 (D. Or. 2006) -- referral of records; ruling that agency's referral regulation is reasonable and that it meets the standard articulated in McGehee v. Central Intelligence Agency, 697 F.2d 1095 (D.C. Cir. 1983); the "net effect" of the agency's referral regulation is not to significantly impair the requester's ability to obtain the records or to significantly increase the amount of time he had to wait to obtain them; the requester did not have to make separate requests to the various agencies that were the originators of the records, the originating agencies replied directly to the requester, and the time delays were not the result of the referral regulation.

Friends of Blackwater v. United States Dep't of the Interior, 391 F. Supp. 2d 115 (D.D.C. 2005) -- adequacy of search; referral of records; based on an Interior Department regulation, finding inadequate a search of the Fish and Wildlife Service in response to a FOIA request made directly to that agency; challenging the adequacy of the search, the requester focused on the Interior Secretary's office as a "likely" place to find some of the records that it sought, even though the requester itself had failed to send its request to that distinctly different part of the agency; court broadly declared: "[f]ailure by one DOI office to refer [sic] a FOIA request to another that is 'likely to have' responsive documents is sufficient to render the agency's search inadequate."

Maydak v. United States Dep't of Educ., 150 Fed. Appx. 136 (3d Cir. 2005) -- "fugitive disentitlement doctrine"; upholding dismissal of FOIA suit, ruling that there is a "connection between Maydak's FOIA cases and his status as a fugitive"; finding that disclosure of TSA "no fly list" records could be of assistance to those seeking to evade capture or avoid detection in connection with air travel.

Caton v. Norton, No. 04-CV-439, 2005 WL 3116613 (D.N.H. Nov. 21, 2005) -- sanctions; noting defendant agency's "intransigence" and "carelessness" in processing this FOIA request and its attorney's "mistaken conclusion" that a declaration containing a false statement nevertheless could establish the adequacy of the agency's response; observing that this case leaves "an impression" that the agency "did not take its FOIA obligations seriously"; in the interest of avoiding such an unfortunate waste of resources in the future, agency counsel is directed to forward copies of this order to the Secretary of the Interior, the agency's Division of General Law, and the Chief of the Civil Division for the United States Attorney's Office for the District of New Hampshire; the Secretary "would be well advised to undertake a comprehensive review of all aspects of how the Department responds to FOIA requests."

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