Court of Appeals Decisions

Negley v. FBI., No. 11-5296, 2012 U.S. App. LEXIS 6324 (D.C. Cir. Mar. 28, 2012) (per curiam).  Affirming the district court's grant of summary judgment to the FBI; concluding that the FBI's use of the date of plaintiff's request as the cut-off for the search was reasonable, its search was adequate, and its withholdings pursuant to Exemption 7(C) were proper; and finding that the district court did not abuse its discretion when it declined to hold the FBI in contempt of a court order.

Dent v. Holder, No. 09-71987, 2010 WL 4455877 (9th Cir. Nov. 9, 2010)(Kleinfeld, J.). The court finds that plaintiff is not required to submit a FOIA request for his A-file where he is presently involved in removal hearing and "asked for help in getting what records the agency had that bore on his case." The court concludes that 8 U.S.C. § 1229, which provides that an "'alien shall have access' to his entry document" and other similar records "'not considered by the Attorney General to be confidential'" in order to "meet his burden of proof in removal proceedings," is a "mandatory access law [that] entitle[s] [plaintiff] to his A-file." The court notes that DHS's regulation requiring that "an individual seeking access to records about himself" submit a FOIA request "is a general regulation governing records requests" and "does not purport to address removal hearings specifically." The court finds that "[i]f [the DHS regulation] applied to removal proceedings, a serious due process problem would arise, because FOIA requests often take a very long time, continuances in removal hearings are discretionary, and aliens in removal hearings might not get responses to their FOIA requests before they were removed." The court construes "the 'shall have access' statute to provide a rule for removal proceedings, and the regulation to apply generally in the absence of such a more specific rule" and, accordingly, requires that defendant produce plaintiff's A-file in the absence of a FOIA request.

DelVecchio v. IRS, No. 09-12400, 2010 WL 104657 (11th Cir. Jan. 8, 2010) (per curiam) (unpublished disposition). Plaintiffs' challenge to the timeliness of defendant's response is "moot because the IRS did in fact provide them documents."

Moore v. Obama, No. 09-5072, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009) (unpublished disposition) (per curiam). Defendant "NSA had no obligation to provide appellant with statements 'pertaining to the existence of brainwave technology.'"

Chambers v. U.S. Dep't of Interior, No. 08-5165, 2009 WL 1658635 (D.C. Cir. June 16, 2009) (Henderson, J.). An agency may not destroy records responsive to a request after receiving the request in order to avoid releasing the documents. In this case, there was a genuine issue of material fact as to whether defendant had engaged in such behavior.

Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). The district court did not err in determining that the inputs to one of defendants' computer programs were outside the scope of plaintiff's request, as that program did not contribute to one of the government's findings concerning the explosion that plaintiff contests.

Pietrangelo v. U.S. Army, No. 07-3124, 2009 WL 1580183 (2d Cir. June 4, 2009) (unpublished disposition) (summary order). The court finds no need to decide whether to recognize a FOIA claim based on "a pattern or practice," given that "the District Court did not err in granting summary judgment for the Army on this claim."

Larson v. Dep't of State, No. 06-5112, 2009 WL 1258276 (D.C. Cir. May 8, 2009) (Sentelle, C.J.). One of the plaintiffs made a prior FOIA request to defendant Department of State in 1995 and referenced that request in the 2002 request which was the subject of her complaint. The 2002 request "does not reasonably suggest to the DOS that it should search for and disclose internal documents arising out of the agency's decisions concerning her 1995 request." Moreover, this plaintiff cannot now ask for judicial review of State's response to her 1995 request, as this issue was not raised in her complaint.

District Court Decisions

Judicial Watch, Inc. v. U.S. Air Force, No. 11-932, 2012 WL 1190297 (D.D.C. Apr. 10, 2012) (Rothstein, J.).  Holding:  Concluding that defendant's production of a record in one format does not moot plaintiff's claim for metadata underlying another document format; deferring ruling on the parties' motions for summary judgment; and ordering supplemental briefings on the issue as to whether metadata constitutes an "agency record" under the FOIA.  Having determined that the release of the requested record in PDF format did not moot plaintiff's claim for metadata in another document format, the court grants Air Force's request to submit a supplemental briefing to support its "position that metadata is not an 'agency record' under FOIA." 

All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, No. 09-2375, 2012 WL 1071708 (D.D.C. Apr. 2, 2012) (Urbina, J.).  olding:  Granting defendants' partial motion to dismiss on the grounds that the "foreign government entity exemption," embodied in 5 U.S.C. § 552(a)(3), prohibits intelligence agencies from granting FOIA requests to non-domestic government entities, their subdivisions and their representatives.  On a matter of first impression, the court holds that, as representatives or subdivisions of a foreign government entity, plaintiffs are barred under 5 U.S.C. § 552(a)(3) from seeking the requested information from defendant agencies, which are all "member[s] of the 'intelligence community.'"  At the outset, the court rejects plaintiffs' argument that "FOIA's foreign government entity exception does not apply" because the "Parliament is not a part of the 'government'" as the term is interpreted under British law.  The court finds that although "the word 'government' may portend a more nuanced meaning within the milieu of the English system of governance," "the court rejects plaintiff's invitation to construe FOIA under English law."  Moreover, as "the primary organ tasked with the expression of sovereign political authority and its enactment into law," the court determines that "Parliament is a foreign 'government entity' for purposes of FOIA."  The court also rejects plaintiffs' contention that one of the plaintiffs cannot be considered to be "a representative of a foreign government simply by virtue of his status as a Member of Parliament," but rather "only represents those individual constituents that he represents as an elected member of the House of Commons."  Instead, the court finds that this Member, "as a feature of his office, wields the power to act with the government's imprimatur" and therefore "is a 'representative' of Parliament for the purposes of FOIA." 

The court also rejects plaintiffs' argument that the All Party Parliamentary Group "is not a subdivision of a foreign 'government entity' [under the meaning of § 552(a)(3)] because it does not have the authority to act or speak on behalf of the U.K. government."  To the contrary, the court concludes that "[b]ecause the group's membership consists exclusively of public officials, . . . [it] is a 'subdivision' of a foreign 'government entity.'"  Additionally, the court declines to "introduce a distinction based on [whether] the requester [acted in the course of that person's] 'official capacity' or 'individual capacity,'" finding that it "is not at liberty . . . to amend the statute by inserting phrases that appear nowhere in the statutory language."  Further, the court comments that "[i]t would be particularly inappropriate for the court to adopt the plaintiffs' suggestion because their proposed exception would, without doubt, swallow the rule."  The court notes that if it "is to give any meaning to the foreign government entity exception, this provision cannot turn on such evanescent factors as the subjective intent of the individual who files the claim."  The court also rejects plaintiffs' argument that the American attorney who represents plaintiffs in the instant action "should nonetheless be allowed to proceed with his FOIA claim because he is a concerned United States citizen who acted independently of his status as the other plaintiffs' attorney."  The court finds that as plaintiffs' "legal representative," the attorney's claim is "similarly barred" under § 552(a)(3).  The court observes that although "plaintiffs could have easily circumvented this legal snarl" by having their attorney make "an identical FOIA request and then forward[ ] the information along to the remaining plaintiffs," the court notes that it "is required to follow the logic of the statute as it is written." 

Thompson v. DOJ, No. 11-272, 2012 WL 1066729 (D.D.C. Mar. 30, 2012) (Walton, J.).  Holding:  Granting FBI's motion for summary judgment on the basis that it conducted an adequate search and properly justified its claims of Exemptions 7(C) and 7(E).  The court further notes that beyond demonstrating an adequate search, "[t]he FBI is under no obligation under the FOIA to respond to questions . . . or to authenticate documents produced in response to a FOIA request."

Parker v. DOJ, No. 10-2068, 2012 WL 1038615 (D.D.C. Mar. 29, 2012) (Jackson, J.).  Holding:  Denying, without prejudice, EOUSA's motion for summary judgment; ordering EOUSA to supplement the record as to the adequacy of its search, and its claims of exemption, and concluding that one of plaintiff's requests is reasonably described and must be processed; and denying plaintiff's cross-motion for summary judgment as moot.  The court concludes that EOUSA failed to respond to one of plaintiff's requests for documents "related to DOJ's policies regarding unauthorized practice of law by Assistant U.S. Attorneys, specifically, any remedial policies."  Although EOUSA asserted that the request was not reasonably described, the court finds that it is "clear enough to constitute a valid FOIA request."  Additionally, the court notes that, under DOJ's regulations EOUSA cannot "deny[ ] a request simply because it is unclear," but rather must give the requester notice and an opportunity to modify the request. 

Labella v. FBI, No. 11-23, 2012 U.S. Dist. LEXIS 37830 (E.D.N.Y. Mar. 19, 2012) (Garaufis, J.).  Holding:  Granting defendants' motion for summary judgment on the basis that the FBI conducted an adequate search, and OJP adequately responded to plaintiff's request.  Noting that because plaintiff did not contest the magistrate's report and recommendation to grant OJP's motion for summary judgment and conceded that OJP "could not reproduce the records in another 'electronic format,'" it "reviews [the magistrate's findings] for clear error" and finds none.  As to plaintiff's argument that " OJP could have 'narrowed down the records on the released disc and sent [him] a sub-set in printed form," the court "finds no clear error in [the magistrate judge's] determination that '[n]either [plaintiff's] FOIA requests to defendant OJP, nor [his] complaint, include any demand for information from the Survey in printed form,' and [notes] that [plaintiff] did not seek production of data on the Survey in printed form until the instant cross-motions were filed."  To the extent that plaintiff requested that OJP "aggregate data," the court concludes that "[a]s [the magistrate judge] correctly noted . . . FOIA did not obligate the OJP to provide [plaintiff] with 'aggregate data,'" which was not in existence. 

Mobley v. DOJ, No. 11-1437, 2012 WL 604153 (D.D.C. Feb. 27, 2012) (Howell, J.).  Holding:  Denying defendant's motion to dismiss, and concluding that plaintiff has proffered allegations sufficient to support his FOIA claim; and finding that an agency is not required to provide a listing of withheld records at the administrative stage of a FOIA request.  As to plaintiff's argument that he is entitled to "'at least a list of records that are withheld in their entirety at the administrative stage,'" the court finds that "there is scant support for the position that agencies are required to provide a list of all withheld documents in response to a FOIA request."  Additionally, the court notes that "the statutory text belies such a conclusion" because it only requires that an agency notify the requester of its "'determination and the reasons therefor,' and, inter alia, 'make a reasonable effort to estimate the volume of any [denied] matter.'"  The court concludes that "[g]iven that the unambiguous text of the statute imposes no procedural requirement on agencies to provide a list of withheld documents at the administrative stage, the court declines to devise one here." 

Families for Freedom v. U.S. Customs & Border Protect.,No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.).  Holding:  Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E).  The court also denies plaintiffs' request for defendants to "code" the names of arresting officers in daily reports commentary to allow for better comprehension of the material, but notes that "plaintiffs' may renew their request if they can identify specific instances where the redactions hinder the public's comprehension of the government's activity."  As to plaintiff's request for the dates of the commentary, after in camera review, the court notes that no dates have been redacted, but considering that these were daily reports, the court opines that "it seems unlikely that so many [of them] were created without identifying dates.  For example, the reports' metadata may have contained the date on which they were created; or perhaps they were archived by date."  The court states that "[d]efendants may not withhold this information if it exists."

Hughley v. United States, No. 11-3805, 2011 WL 6057743 (S.D.N.Y. Dec. 2, 2011) (Keenan, J.).  Holding:  Dismissing action brought by plaintiff, who was proceeding in forma pauperis, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).  At the outset the court notes that "[o]ne seeking to compel a federal agency to comply with FOIA must first make a FOIA request with that agency and receive an unsatisfactory response."  The court denies plaintiff's FOIA claim on the basis that "Petitioner has not indicated that the Postal Service or any of its employees improperly denied him access to the information he has requested" in his Complaint.  Accordingly the court dismisses plaintiff's claim.

Media Research Ctr. v. DOJ, No. 10-2013, 2011 WL 4852224 (D.D.C. Oct. 13, 2011) (Huvelle, J.).  Holding:  Granting DOJ's motion for summary judgment on the basis that it conducted an adequate search for responsive records, it properly determined that certain records were not "agency records" for FOIA purposes, and it properly invoked Exemption 5.  Agency records:  The court holds that the certain e-mails which contain communications "created or received by S.G. Kagan in her capacity as a judicial nominee for the U.S. Supreme Court" do not qualify as agency records for purposes of the FOIA.  At the outset, the court observes that under the Supreme Court's decision in DOJ v. Tax Analysts "'[d]ocuments qualify as 'agency records' subject to FOIA disclosure if they are (1) created or obtained by an agency, and (2) in the agency's control.'"  Furthermore, citing the D.C. Circuit in Bureau of National Affairs v. DOJ, the court notes that "'in cases [such as this one] . . . where documents are created by an agency employee and located within the agency, use of the documents becomes more important in determining the status of the document under FOIA.'"  Here, "S.G. Kagan's correspondence was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective."  The court concludes that "the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not 'agency records.'"

Families for Freedom v. CBP, No. 10 Civ. 2785, 2011 U.S. Dist. LEXIS 113143 (S.D.N.Y. Sept. 30, 2011) (Scheindlin, J.).  Holding:  Withdrawing the court's previous order directing CBP to produce certain records that the court now deems unresponsive, but ordering CBP to produce certain responsive records, asserting any applicable exemptions, by a specific date.  Responsiveness:  Based upon its in camera review and the parameters of plaintiff's initial FOIA request, the court determines that certain records that it previously ordered disclosed are ultimately not responsive.  Accordingly, the court withdraws the portions of its earlier order directing defendants to release those particular records.  However, with respect to certain e-mails where defendants produced the attachments but not the corresponding e-mail chains, the court finds that "defendants have created an artificial distinction between the attachments, which contain the statistics, and the emails, which solicit, provide, define, categorize, and otherwise discuss those same statistics."  The court concludes that the e-mail chains are responsive to the request, because "[c]ontext matters" and "[t]he attachments can only be fully understood and evaluated when read in the context of the emails to which they are attached."  The court also finds that a memorandum discussing "'the scope of potential liability of Border Patrol agents performing searches aboard Amtrak trains'" is responsive to the portion of plaintiff's request for "'[a]ny materials concerning the standards that apply to the conduct of CBP officers at the border as well as in the interior of the United States.'"  As to any records that the court deemed were responsive, the court orders CBP to produce the records and assert any applicable exemptions by a specific date.

Families for Freedom v. CBP, No. 10 Civ. 2785, 2011 U.S. Dist. LEXIS 113143 (S.D.N.Y. Sept. 30, 2011) (Scheindlin, J.).  Holding:  Withdrawing the court's previous order directing CBP to produce certain records that the court now deems unresponsive, but ordering CBP to produce certain responsive records, asserting any applicable exemptions, by a specific date.  Agency records:  The court holds that "'[a] Microsoft Word document containing notes from a meeting that took place between Border Patrol and Amtrak Police personnel'" is an agency record for purposes of the FOIA.  Employing the four-element analysis adopted by the Second Circuit in Grand Central Partnership v. Cuomo, the court first looks to the "'circumstances that led to the creation (or "generation") of the document,'" and "'the purpose for which the document was created.'"  The court finds that these two factors are clear – the notes were taken by a CBP agent during a meeting with Amtrak for the purpose of "memorialize[ing] the discussion and outcomes of the meeting."  In terms of the "'actual use'" of the agent's notes, the court concludes that its "in camera review of the document persuades [it] that this document was likely intended for some official agency use," because "the document is labeled, the date is written out, the full names of the individuals in attendance are listed along with their titles and affiliations, there are section headings, every sentence is complete, and the document is formatted neatly."  Accordingly, "[e]very indication is that this is a document that the author spent some time producing for use by other agency personnel, strongly tipping the balance toward it being an agency record."  With respect to the "maintenance of the document," the court concludes that an unsworn letter written by defendant's counsel which represents that the agent's notes "were 'generated by one employee and maintained by him exclusively'" in his personal files and not incorporated into CBP's records systems, is insufficient to support the agency's burden to show that the notes were not agency records.  Based on a totality of the circumstances, the court concludes that this document is an agency record and also concludes that it is responsive to plaintiffs' FOIA request.

James v. U.S. Secret Serv., No. 10-1675, 2011 WL 4359853 (D.D.C. Sept. 20, 2011) (Howell, J.).  Holding:  Granting defendant's motion to dismiss, or alternatively, for summary judgment.  Destruction of records:  The court notes that plaintiff does not contest the adequacy of the Secret Services' search for responsive records, but rather, contends that "the agency destroyed the recordings not only prior to the expiration of [the] 10-year period required under 18 U.S.C. § 2518(8)(a), but also prior to the completion of criminal proceedings, namely[,] the expiration of the 'one-year time limitation in which to file his 28 U.S.C. § 2255 petition.'"  The court rejects each of these arguments.  First, the court treats as conceded defendants' motion to dismiss with respect to plaintiff's claim citing 18 U.S.C. § 2518(8)(a), because his complaint states no claim under that statute, and also concludes that, in any event, plaintiff's reading of the statute is incorrect.  Second, the court finds that "the Secret Service no longer maintained or controlled the requested recordings at the time that [plaintiff] submitted his second FOIA request in 2009" and notes that "[a]n agency does not control a record which has been destroyed . . . and it is under no obligation to obtain a duplicate of or to re-create a record."  Third, the court finds that "plaintiff is under the mistaken impression that the Secret Service was to have monitored and therefore known of the conclusion of all post-conviction proceedings, in order to release the desired records without plaintiff having to request them."  Rather, the court states that "[t]he FOIA does not require an agency to update or supplement a prior response to a request for records."  In conclusion, the court determines that "[p]laintiff's bald allegations that [certain] recordings were destroyed in bad faith appear to be based upon misinterpretations of the law and unsupported speculation, and are wholly insufficient to rebut the presumption of good faith afforded to agency declarations." 

Ferguson v. U.S. Dep't of Educ., No. 09-10057, 2011 U.S. Dist. LEXIS 103954 (S.D.N.Y. Sept. 13, 2011) (Maas, Mag.).  Holding:  Granting, in part, and denying, in part, the Department's motion for summary judgment; and ordering the Department to conduct a limited search for records created during a specific timeframe, but concluding that, in all other respects, the search was adequate.  Clarification of request:  As an initial matter, the court notes that "[a]n agency clearly may ask a requester to clarify the scope of a FOIA request when it lacks specificity or is overbroad."  Here, the court finds that, although plaintiff claims that he did not agree to modify his FOIA request, evidence shows that he did not object to the agency's suggestion that the search be confined to a particular timeframe.  The court finds that plaintiff "could have declined [the Department's] request and administratively appealed [a Department office's] decision not to search pre-2000 records."  However, "[h]aving failed to take those steps," the court concludes that plaintiff "cannot successfully argue in this forum that his Request remained unrestricted in terms of the applicable starting date."

Tex. Alliance for Home Care Servs. v. Sebelius, No. 10-747, 2011 WL 4005295 (D.D.C. Sept. 9, 2011) (Lamberth, J.).  Holding:  Rejecting plaintiffs' claim premised on Section 552(a)(1) of the FOIA.  Publication requirement:  The court rejects plaintiffs' claim concerning adequate publication of HHS's financial standards.  As an preliminary matter, the court notes that "§ 552(a)(1)'s publication requirement is subject to an express exception for actual notice."  Here, the court finds that HHS's published rules "explained the need for consideration of financial standards, and published particular examples of standards that would be considered," which was "preceded by a substantial public education program, and was followed by development of a website that provided increased detail on the particular financial standards and ratios to be used in the DME Bidding Program."  Commenting that plaintiffs "simply ignore this publicly-available information," the court concludes that they "have failed to allege sufficient facts to support an inference that they lacked actual knowledge of the applicable standards."  Additionally, the court finds that "[t]he second shortcoming with regard to plaintiffs' allegations is the absence of any adverse effect that plaintiffs have suffered as a result of the purported non-publication."  Additionally, the court notes that publication will not alter plaintiffs' ability to satisfy the standards, noting that "[p]laintiffs' members' financial conditions cannot be changed, but remain unalterable facts that either will or will not meet applicable financial standards – regardless of whether the Secretary [of HHS] publishes such standards." 

Reich v. U.S. Dep't of Energy, No. 09-10883, 2011 U.S. Dist. LEXIS 93600 (D. Mass. Aug. 19, 2011) (Gorton, J.).  Holding:  Granting defendant's motion for summary judgment.  The court expands upon its findings contained in its memorandum and order dated March 17, 2011, in which it concluded that that requested report authored by an independent investigative panel was not an agency record for purposes of the FOIA.  In response to plaintiff's opposition, the court reexamines the four factors that federal courts have used in order to assess an agency's control over records.  The court finds that the first factor, i.e., the intent of the creator of the document to retain or relinquish control of it, "weigh[s] in favor of a finding that the Investigative Report, or at least [the] version [which was submitted by the investigative panel to the Department of Energy] is an agency record."  However, the court determines that the second factor concerning the agency's ability to use and dispose of the record weighs against such a finding, because "the Investigation Report at issue here was scanned by one DOE employee only, who claims that she did not use or rely on the report at all."  Moreover, the document contained "an explicit contractual provision" limiting copying or disclosure of the record.  The court disagrees with plaintiff's argument that the third factor – the extent to which the agency personnel read or relied on the document – demonstrates that the report is an agency record.  Rather, the court "concludes that the DOE's use of the Investigation Report was so minimal to be analogous to no use at all because [the DOE employee] merely scanned the document and did not distribute it to other employees."  In terms of the fourth factor, regarding the extent to which the document was integrated into the agency's records system, the court finds unavailing plaintiff's claim that "there is a genuine issue of material fact with respect to the sufficiency of DOE's search for any copies of the Investigation Report in its possession."  Instead, the court notes that "[a]n agency's possession of a copy of a document does not automatically mean that the document is an agency record."  Based on the foregoing factors, the court holds that the report at issue is not an agency record.

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler, J.).  Holding:  Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index.  Reprocessing:  The court notes that the FBI has advised that it will file supplemental submissions for records that it previously withheld under "high" 2, which it will no longer defend, as well as a revised declaration for its withholdings made under Exemption 1, and documents protected by a sealing order.  The court therefore does not address those exemptions now, but rules that it will "not consider new exemptions raised by Defendant [for the re-processed material] at this late point in the litigation." 

Salanitro v. OPM, No. 10-363, 2011 WL 2670076 (M.D. Fla. July 8, 2011) (Corrigan, J.).  Holding:  Granting defendant's motion to dismiss based on plaintiff's failure to submit a proper FOIA request.  Even assuming that "Plaintiff had in fact submitted a proper FOIA request," the court finds that "OPM would not have been required to respond if it had provided an alternative form of access to the requested information."  The court notes that "an agency is not required to make available materials that have already been disclosed pursuant to subsections (a)(1) and (a)(2)" of the FOIA.  In this case, the court finds that because the information requested by plaintiff "had already been disclosed within the meaning of 5 U.S.C. § 552(a)(1)-(2)," "OPM would not have been required to respond to Plaintiff's FOIA request because it provided an alternative form of access to the information requested, such as through the internet." 

Kensington Res. & Recovery v. Dep't of Treasury, No. 10-3538, 2011 U.S. Dist. LEXIS 71041 (N.D. Ill. June 30, 2011) (Kendall, J.).  Holding:  Granting defendants' motion for summary judgment on the basis that the Bureau of Public Debt (BPD) was not required to create records that are not in existence and, in the alternative, the requested information is protected by Exemption 6.  First, the court finds that "BPD does not maintain records that compile by year the matured, unredeemed bonds, with accompanying personal information about the bondholder" and, accordingly, "did not have in its possession 'records' of the kind [plaintiff] sought."  The court notes that "[t]he fact that the BPD had this information in its databases for individual bondholders, just not in the precise form that [plaintiff] wanted, does not make the request any more valid under the FOIA."  The court concludes that the FOIA does not impose a duty on BPD "to create a new search tool, use the results of that to manually find the relevant registration records, and consolidate that information into a chart or other document for [plaintiff]."

Crummey v. SSA, No. 10-1560, 2011 WL 2580291 (D.D.C. June 30, 2011) (Kollar-Kotelly, J.).  Holding:  Granting SSA's motion for summary judgment based on the adequacy of its search.  The court concludes that plaintiff's "contention that the SSA provided him with 'poor quality photocopies,' . . . does not suffice to preclude summary judgment in the SSA's favor."  For one, the court finds that "the district court is rarely the proper 'forum for an . . . initial assertion of non-compliance on the grounds that [requested] documents are illegible."  Secondly, SSA has asserted that it provided plaintiff with "'true and complete copies'" of the records in its possession and plaintiff "has failed to come forward with anything beyond his own speculation and conclusory allegations that would suggest that the SSA produced anything other than the best available records in its possession, custody or control."  Lastly, the court notes that due to the age of the documents, their poor quality is "entirely unsurprising" and comments that "they are not illegible." 

Lake Travis Transitional Med. Ctr. v. HUD, No. 10-950 (W.D. Tex. June 11, 2011) (Sparks, J.).  Holding:  Ordering defendant to produced all documents examined in camera in full, except for certain information protected by Exemption 5.  The court rejects HUD's contention that a document is non-responsive, finding that "HUD does not deny some of the pages of [the document] are responsive and thus subject to disclosure."  As such, the court finds that "[w]ithholding of the entire document as non-responsive smacks of overreaching."  As to the two other documents, the court notes that HUD produced only those portions "it deemed responsive to Plaintiff's FOIA request," instead of processing the entire document.  The court finds that HUD's position that it is required to produce only the responsive paragraphs from these documents "flies in the face of normal document production standards." 

Judicial Watch, Inc. v. Fed. Housing Fin. Agency, No. 09-1537, 2010 WL 3833821 (D.D.C. Sept. 30, 2010) (Friedman, J.). Procedural requirements/agency records: Applying the analysis set forth by the Supreme Court in Tax Analysts, the court concludes that Freddie Mac and Fannie Mae records do not constitute agency records within the meaning of the FOIA. The court finds that the requested records meet the first prong of the test because the Federal Housing Finance Agency (FHFA) "has 'obtained'" them"[i]n its role as conservator" under the Housing and Economic Recovery Act of 2008 (HERA). With respect to whether the FHFA "controls" the records, the court uses a four-factor test employed by the D.C. Circuit. Concluding that the "first factor weighs heavily in favor of plaintiff," the court finds that Freddie Mac and Fannie Mae "knowingly gave up their records to the conservator, . . .[and therefore] they did not intend to retain control of them and in fact intended to relinquish control." The court also determines that "second factor favors the plaintiff" because, under the terms of the HERA, "FHFA is virtually unrestricted in its use of the records" and "[a]s the conservator, the FHFA has the right to copy, distribute, or otherwise use the records." However, the court finds that the third and fourth factors favor the defendant because FHFA "has not read or relied on any of the records in its work" and the records "have not been used, distributed, or incorporated into the FHFA's files in any way." Based on this analysis, the court concludes that "[t]he strength of the third and fourth factors tips the scales in favor of the defendant." Additionally, the court notes that "because the records were created before the FHFA took over as conservator and the agency has not relied on them, they reveal little, if anything, about the structure or operation of the government agency, and their production therefore would not further the purposes of the FOIA."

Taylor Energy Co. v. U.S. Dep't of the Interior, No. 09-1029, 2010 WL 3429470 (D.D.C. Aug. 31, 2010) (Huvelle, J.). MMS improperly relied on a failure of the submitter to comply with the agency's submitter-notice regulations, which were a part of the agency's FOIA regulations to justify disclosure of disbursement request letters when there was no FOIA request at issue. The court concludes that "[t]here is no apparent reason why [a straightforward administrative] challenge [involving the Trade Secrets Act] would be governed by the agency's FOIA regulations." In the absence of a sufficient record, the court "remand[s] the issue to the agency so it can determine whether the letters may be disclosed in the absence of a FOIA request" as well as "determine the proper legal standard for disclosure."

Mass. Mfg. Extension P'ship v. Locke, No. 09-0788, 2010 WL 2679835 (D.D.C. July 7, 2010) (Friedman, J.). The court finds that plaintiffs did not "satisfy all of the elements of a cognizable FOIA claim." Plaintiffs failed "to establish that [they] did not have actual notice of Commerce's interpretation of the ACA or that they suffered adverse effects because Commerce did not publish a notice in the Federal Register announcing that agency did not interpret the ACA to make major changes to the [Manufacturing Extension Partnership] program."

Boyce v. United States, No. 08-535, 2010 WL 2691609 (W.D. N.C. July 6, 2010) (Reidinger, J.). The court finds that the waiver contained in plaintiff's plea agreement, whereby he waived his rights to receive any records related to the investigation and prosecution of his criminal case, precludes his motion for such records.

Tunchez v. DOJ, No. 09-473, 2010 WL 2202506 (D.D.C. June 3, 2010) (Kollar-Kotelly, J.). "An agency cannot improperly withhold records if it did not receive a request for those records." Plaintiff provides no evidence of making a request and so fails to overcome the FBI's sworn statement that it has no record of the request.

Saldana v. BOP, No. 08-1963, 2010 WL 1656862 (D.D.C. Apr. 27, 2010) (Bates, J.). The letters plaintiff sent to the BOP which merely posed questions do not constitute proper FOIA requests, thus BOP was not obligated under the FOIA to respond to them.

Int'l Counsel Bureau v. CIA, No. 09-2269, 2010 WL 1416739 (D.D.C. Apr. 2, 2010) (Bates, J.). The court finds that plaintiff has not submitted a proper FOIA request. Plaintiff claims that it submitted its request to the Office of Administration of the Executive Office of the President (EOP) as a means of submitting a request to the entirety of EOP. However, "[i]t is not up to [plaintiff], as a FOIA requester, to craft the administrative rule for submitting FOIA requests seeking records within the Executive Office of the President. There is no established mechanism by which an individual may submit a FOIA request to the Executive Office of the President as a whole - indeed, the Executive Office as a whole is not a discrete agency for purposes of FOIA. . . . Rather, an individual must submit his request directly to the specific agency within the Executive Office of the President that is the target of the request. . . . By seeking information from the entire Executive Office of the President through the Office of Administration, [plaintiff] has failed to comply with the governing regulations."

Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). IRS regulations specify the date of request as the "cut-off date" for purposes of its search for records. However, the court finds that "[w]ithout a rationale for applying" this date, as opposed to the date upon which the search actually commences, the IRS's policy is unreasonable. The IRS is required to inform the court when it began its search for responsive records.

Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). Procedural matters/marking documents. The court accepts defendant's explanation that it would not be technically feasible to show redactions for sealed cases in the released portions of the requested records. Defendant's "declarations are specific, and explain in detail that defendant cannot indicate redactions for sealed cases because the method required to do so would cause 'system run-time problems'" and the designated "query would not produce a result."

Bailey v. Callahan, No. 09-10, 2010 WL 924251 (E.D. Va. Mar. 11, 2010) (Spencer, C.J.). The first item of plaintiff's request, a request for the number of DHS personnel and contractors working in several named locations on a day named by plaintiff "is not so much a request for records as it is a question seeking an answer for which Defendant has confirmed DHS does not maintain records. Additionally, compiling this data, if possible, would place an undue burden on DHS." Similarly, plaintiff's request for the number of DHS personnel traveling on certain flights on a particular day "places an undue burden on DHS because these records are not in existence and could not be compiled with a reasonable amount of effort." Finally, plaintiff's request for the number of "Judicial Warrants" regarding activities on a given day obtained by DHS "seeks an answer in the form of a record for which DHS does not maintain records."

Thomas v. Comptroller of the Currency, No. 09-794, 2010 WL 532063 (D.D.C. Feb. 16, 2010) (Kennedy, J.). It was reasonable for defendant to not perform a search for responsive records without obtaining from plaintiff additional information concerning his request (chiefly the name of the agency or supervised bank that he believed maintained responsive records) that would have allowed defendant to conduct a search with a "'reasonable expectation of finding responsive documents.'" Furthermore, "it is clear that the information [plaintiff] requested is not the type of information [defendant] maintains." Finally, "[t]o the extent that plaintiff's FOIA requests were questions or requests for explanations of policies or procedures, these are not proper FOIA requests."

Harrison v. BOP, No. 07-1543, 2010 WL 374529 (D.D.C. Feb. 3, 2010) (Friedman, J.). Plaintiff continues to complain that defendant's responses to his FOIA requests did not address questions raised by plaintiff. However, "[a]s he has been informed previously, the FOIA does not require an agency to answer questions or to do research."

United States v. Robertson, No. 85-112, 2010 WL 234854 (E.D. Cal. Jan. 14, 2010) (Wanger, J.). Plaintiff has made no showing that the bond he seeks is a federal agency record "or that he has in any way complied with the administrative requirements of FOIA."

Kelly v. United States, No. 09-260, 2010 WL 128321 (D.N.H. Jan. 13, 2010) (Muirhead, J.) (adoption of Magistrate's Report and Recommendation) (unpublished disposition). Plaintiff does not allege that a federal agency failed to respond to a FOIA request of his. Rather, he asserts that those treating him at his institution should have been required to request his records in order to provide proper treatment. The FOIA, however, "does not require [plaintiff's] current medical providers to request his past medical records."

Casillas v. DOJ, No. 07-1621, 2009 WL 4546677 (D.D.C. Dec. 7, 2009) (Roberts, J.). Plaintiff's "contention that he is entitled to records beyond the scope of his request, which was expressly limited to information related to bonds associated with his crminal case, is contrary to law. The FOIA does not obligate an agency to search for or release records that are not within the scope of the initial request."

Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). Plaintiffs have offered no support for their claim that documents defendant determined to be nonresponsive to plaintiffs' request should be disclosed.

Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). The CIA must search for records on certain third parties or provide an explanation why it did not verify their identities. Though the FOIA does not require agencies to perform searches that its recordkeeping systems are not equipped for, the court will require the CIA to search its database that "tracks 'searches recently conducted for other federal agencies' . . . or explain[] to the Court why it cannot do so." As to documents referred by the CIA to their originating agencies, the substantial delay in processing these records "constitutes improper withholding." The CIA "must take affirmative steps to ensure that its referrals are being processed."

Watkins v. U.S. Bureau of Customs & Border Prot., No. 08-1679, 2009 WL 3633893 (W.D. Wash. Oct. 30, 2009) (Robart, J.). Though DHS regulations allow for its components to adopt their own regulations governing responses to FOIA requests, subject to DHS's approval, CBP's regulations governing calculation of fees were adopted prior to its transfer to DHS, and thus cannot be said to have been approved by DHS. Thus, defendant was correct to apply DHS's regulations in calculating its fee estimate, and not its own.

Nat'l Ass'n of Waterfront Employers v. Solis, No. 07-2250, 2009 WL 3436913 (D.D.C. Oct. 27, 2009) (Collyer, J.). Though the FOIA governs how and whether an agency may redact information from already created documents, it has no application to an agency's decision on how to create a document in the first place. Thus, a requestor has no FOIA claim concerning an agency's decision to change how parties will be listed in documents yet to be created by the agency.

Coven v. OPM, No. 07-1831, 2009 WL 3174423 (D. Ariz. Sept. 29, 2009) (Broomfield, J.). The court finds that OPM is not obligated to continually provide plaintiff with daily, updated versions of the records he requested on an ongoing basis. This would be a departure from the general rule that an agency has no obligation to produce records created after a FOIA request has been made. Plaintiff's claim that the agency should be required to do this has no support in the relevant caselaw. Plaintiff's claim that a ruling against him will cause irreparable harm because of the short time job vacancies remain open is irrelevant, as he is not seeking a preliminary injunction. "Further, the 'short time frame' for federal hiring activities is not an 'unusual circumstance' requiring . . . the 'more extreme remedy' of ordering OPM to provide ongoing, daily copies." Finally, because OPM has indicated its ability to produce the records plaintiff has requested in the (electronic) format he prefers, the parties' motions on this issue are moot.

Negley v. FBI, No. 03-2126, 2009 WL 3068177 (D.D.C. Sept. 24, 2009) (Kessler, J.) . The FBI has inappropriately refused to produce a file requested by plaintiff. FBI's claim that the file does not pertain to plaintiff is irrelevant in light of the fact that plaintiff clearly indicated his interest in the file regardless of whether it concerned him in particular.

James Madison Project v. CIA, No. 08-1323, 2009 WL 2777961 (E.D. Va. Aug. 31, 2009) (Lee, J.). The court finds that plaintiff has not reasonably described the records sought as to several parts of its request. Plaintiff's request for "'all CIA documents pertaining to . . . [t]he indexing and organizational structure of all CIA Systems of Records subject to FOIA'" is both overbroad and would be place an unreasonable burden on the CIA. The request is overbroad because it would require defendant "to search every office for any documents remotely associated with all of its record systems to respond to the request. Such a request is clearly overbroad." Furthermore, "[defendant] would face a massive undertaking if it were required to respond to [this portion] of the request." It would require "the [Information Review Officer] of each directorate . . . to contact every component within its directorate and tailor a search specific to that component's record system configuration." The court finds that “[t]he FOIA was not intended to saddle agencies with this type of burden.” As to another part of plaintiff's request, the court finds that its request for "'all internal CIA documents pertaining to . . . [w]hich CIA components are tasked with FOIA requests'" is “both overbroad and vague.” This portion of plaintiff's request "fails to identify with particularity which documents are being requested." It "is not really as much a request for records as it is an interrogatory or a question about CIA structure. Such a request is not a proper FOIA request for records." Plaintiff's "request" amounts to "a question about agency organization, and is not a records request." As to another part of plaintiff's request, the court again finds that plaintiff has failed to reasonably describe the records sought. Indeed, "[it] appears to contemplate production of all documents pertaining to all search tools and indices used by the CIA." The court finds that [this portion of the request] "is clearly overbroad and would place an unreasonable burden on the CIA."

Kahn v. Fed. Motor Carrier Safety Admin., No. 07-02323, 2009 WL 2632718 (D.D.C. Aug. 26, 2009) (Kennedy, J.). Though FMCSA previously released in full the type of records it has now partially withheld, plaintiff cites to no authority and "the Court likewise finds none" that prevents the agency from "revers[ing] course now." Indeed, "past practice notwithstanding, the Court has no power 'to require disclosure of materials that are exempt under FOIA.'" Additionally, though defendant relies on these decisions as precedent, "the redaction of limited and specific financial information has little bearing on the FMCSA's or the public's ability to consider the precedential effect of prior decisions." Finally, though plaintiff has argued that defendant's redactions are inconsistent with President Obama's goal of increasing governmental transparency, "[t]he Court is not persuaded that the Obama administration's policy pronouncement somehow alters the application of a federal statute."

Wells v. U.S. Dep't of Educ., No. 09-456, 2009 WL 2475434 (M.D. La. Aug. 12, 2009) (Brady, J.) (adopting magistrate's report and recommendation). "[P]laintiffs have failed to 'reasonably describe' the records sought through their alleged FOIA requests."

Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., No. 09-272, 2009 WL 2345097 (S.D.N.Y. July 30, 2009) (Hellerstein, J.). The court finds that defendant's search "was reasonably calculated to identify all responsive documents." In particular, defendant was not required to search for records at the regional branch Federal Reserve Banks (FRBs). "[D]efining all FRB records as [Federal Reserve] Board records goes against the fundamental importance of an FRB's autonomy." According to the Board's regulations, "not all records kept by the FRBs are records of the Board; only those reflecting delegated functions or those held at an FRB for the Board's 'administrative discretion.'" Moreover, "[t]he Board's interpretation of which records belong to the Board and which belong to the FRBs is consistent with the overall Federal Reserve System structure established by statute." Plaintiff's claim that data might have been "left out" of reports is speculative and the board is not required to reconstruct the data feeds. Defendant's failure to use computer experts to attempt to retrieve destroyed records does not render its search inadequate. However, defendant should have searched an attachment to an e-mail received by Board staff. The fact that the attachment had not been opened prior to plaintiff's request does not mean it is not an agency record. "The attachment was both obtained by the agency and within the agency's control 'at the time of the FOIA request.'"

Ruiz v. DOJ, No. 08-1968, 2009 WL 2143826 (D.D.C. July 20, 2009) (Kollar-Kotelly, J.). Plaintiff has made no showing of bad faith on defendant's part. A disagreement between the initial processing unit and an agency's appellate authority is not a sign of bad faith on the agency's part.

Knittel v. IRS, No. 07-1213, 2009 WL 2163619 (W.D. Tenn. July 20, 2009) (Breen, J.). The FOIA does not require agencies to provide requesters with certified copies of agency records.

Lawyers Comm. for Civil Rights v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 1299821 (N.D. Cal. May 11, 2009) (Hamilton, J.). The follow-up questionnaires that Treasury sends to those who contact the agency seeking "delisting" from the SDN constitute responses by the agency, and therefore should have been considered as covered by plaintiff's request. Similarly, any follow-up responses by delisting applicants should have been considered responsive to plaintiff's request. "Notwithstanding [the requester's] inartfully crafted FOIA requests, the court has already liberally construed the requests. . . ." Treasury is ordered to release the questionnaires and any responses to them.

Kensington Research & Recovery v. HUD, No. 08-1250, 2009 U.S. Dist. LEXIS 39797 (N.D. Ill. May 8, 2009) (Gottschall, J.). "If the HUD-27050-B form is accessible under the FOIA as [plaintiff] argues, then any person may obtain a copy upon request, whether or not they have [sic] a power of attorney from the homeowner." Because of this, "the existence of a power of attorney is irrelevant to the merits of [plaintiff's] FOIA request. . . ."

Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.). OMB is not required to release documents it has found to be not responsive to plaintiff's request.

Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). BOP was not required to create a transcript of a phone call of plaintiff's that it monitored. "It is established . . . that an agency is not required to create documents in response to a FOIA request." As to another of plaintiff's requests, BOP has demonstrated that it fully responded to the request by providing the requested information.

Information Network For Responsible Mining (INFORM) v. Bureau of Land Mgmt., No. 06-02269, 2009 WL 1162551 (D. Colo. Apr. 28, 2009) (Kane, J.). The court "find[s] the [agency] violated FOIA by failing to comply with [the twenty-day] statutory deadline and that this failure resulted in an improper withholding under FOIA."