FOIA Post (2008): Summaries of New Decisions -- October 2008

Summaries of New Decisions -- October 2008

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of October 2008.

1. Lawyers’ Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep’t of the Treasury, No. 07-2590, 2008 WL 4482855 (N.D. Cal. Sept. 30, 2008)

Re: Records related to maintenance of Specially Designated Nationals (SDN) List administered by Office of Foreign Assets Control (OFAC)

• Procedural matters: The court refuses to revisit issues it previously resolved in its February 14, 2008 order. Additionally, the court finds that “even though [two of plaintiff’s requests] may have been inartfully written, liberally construed, the requests encompass the delisting petitions.” Lastly, the court clarifies that the only remaining issue is Treasury’s exemptions regarding the delisting positions.


• Vaughn Index: Defendant did not submit a Vaughn index to explain its withholdings, arguing that its affidavit provided sufficient justification that the delisting petitions do not need to be disclosed. Additionally, defendant did not submit a Vaughn index because the claimed exemptions apply categorically to the withheld delisting petitions. Treasury has not shown that the withheld documents are sufficiently similar to allow for categorical application of exemptions. The court finds that “[t]he delisting petitions varied significantly, thus defying any conclusion that categorical withholding of the petitions is appropriate.” Furthermore, Treasury has not shown that categorical application of Exemptions 2, 4, and 6 is appropriate when “[e]xisting authority generally supports categorical application of only the Exemption 7 subsections.”


• Litigation considerations: The court takes judicial notice of the fact that delisting petitions have previously been filed with other district courts in cases before them, though the court makes no judgment on the truth of the statements contained in these petitions.


• Exemptions 2, 3, 4, & 7(D): The court rejects Treasury’s categorical withholding of all the delisting petitions under these exemptions. Treasury’s decision not to submit a Vaughn index makes it impossible for the court to rule on the appropriateness of the agency’s use of these exemptions. The parties are ordered to confer in an attempt to reach an agreement about the types of information that may be redacted under these exemptions. With regard to Exemption 3 specifically, the court for now delays any ruling on the issue of whether 21 U.S.C. §§ 1901-08 (“the Kingpin Act”) should be considered an Exemption 3 statute.


• Exemptions 6 & 7(C): The court finds that Treasury has incorrectly argued that it is the plaintiff’s burden to show “that disclosure of . . . personal information would serve the public interest and would outweigh the privacy interests of the third parties.” The court rejects plaintiff’s assertion that the information contained in the petitions is not private because OFAC has publicly identified certain individuals and entities. “[T]he Ninth Circuit has held that simply because certain documents that would normally be subject to Exemption 7(C) and Exemption 6 have already been publicized does not mean that they must be disclosed by the agency.” Additionally, because Treasury did not submit a Vaughn index, it is impossible for the court to determine if its use of these two exemptions was appropriate. The parties are ordered to confer in an attempt to reach agreement on the types of information to which Treasury may apply under these exemptions.


• Exemption 7 (threshold): The court finds that the delisting petitions are law enforcement documents. OFAC is a law enforcement agency, and there is a “rational nexus” between the petitions and its law enforcement mission. Supreme Court precedent establishes the fact that the petitions were largely compiled by third parties, and were collected and maintained by OFAC, does not change the threshold analysis that the petitions were “compiled” by OFAC.


• Exemption 7(A): The court rejects Treasury’s categorical withholding under 7(A). The court finds that Treasury has failed to make “a sufficient showing that disclosure of the delisting petitions could reasonably interfere with pending enforcement proceedings.” The court specifies that “the declaration does not explain how disclosure of the petitions is likely to jeopardize other pending proceedings. It also fails to describe the harm that would allegedly result from third parties’ possession of the information in the petitions. Significantly, the potential ‘chilling effect’ and related consequences that Treasury asserts might result from disclosure are also speculative and unsupported by an adequate explanation or rationale.” The court notes that there may be a cognizable basis to redact certain portions of some of the petitions, including the identities of sources and witnesses.


• Exemption 7(F): The court rejects Treasury’s categorical withholding of all delisting petitions under 7(F). The court acknowledges that an agency is afforded “a fair degree of deference . . . in its Exemption 7(F) determination, this deference is not without limits.” The court concludes that “Treasury's assertion regarding danger to an applicant upon release of the delisting petitions is nothing more than unsupported speculation.” The court notes that there may be a cognizable basis to redact certain portions of some of the petitions, including the identities of sources and witnesses.


• Segregability: The court finds that Treasury has failed to justify its application of Exemptions 7(A) and 7(F) to the entirety of the withheld documents. Furthermore, even if the court had accepted Treasury's arguments on the categorical application of exemptions, this would not relieve the agency of its segregability obligations.

2. El Badrawi v. DHS, No. 07-372, 2008 WL 4480363 (D. Conn. Sept. 30, 2008)

Re: First-party request

• Adequacy of search: The court finds that the declaration submitted by defendant Customs and Border Protection (CBP) is insufficient because it does not “‘detail files searched and the general scheme of the agency file system.’” As such, it fails to meet the “‘relatively detailed and nonconclusory’ standard adopted by the Second Circuit.” Similarly, defendant Department of State’s (DOS) description of its search is insufficient because it does not address the possibility of the existence of responsive records at the American Embassy in Beirut, despite the fact that “DOS was on notice that the Embassy in Beirut is likely to contain responsive records.” Defendant FBI’s declaration is also insufficient because it does not justify the FBI’s decision to limit its search to its Central Records System, especially in light of the existence of at least one responsive record in a different records system. Defendant Immigration and Customs Enforcement’s (ICE) declaration fails to generally describe the structure of its file system and also does not justify its decision to limit its search to two databases, especially in light of the fact that plaintiff identified an additional database “likely to have [responsive] records.” Defendant Citizenship and Immigration Services (CIS) also did not sufficiently describe its file system structure nor did it justify its decision to limit its search to two databases. Plaintiff is granted limited discovery as to each of these defendants regarding the adequacy of their searches.


• Procedural matters: Defendants are granted summary judgment on the propriety of their referrals to the agencies where some responsive documents originated. “Aside from the unavoidable delay presumably caused by transferring records from one agency to another, there is no indication that referral itself has prejudiced [plaintiff].”


• Exemption 1: The court finds that defendants DOS and FBI did not adequately justify their invocation of Exemption 1. The DOS declaration does not state why release of the withheld information would “hinder the ability [of the government] to obtain such information in the future or why such secrecy is allowed by the terms of the executive order.” Similarly, FBI’s declaration is insufficient to allow the court “to engage in the required de novo review of the propriety of the withholdings.” The court orders in camera review of these withholdings.


• Exemption 2: Defendant CBP’s submissions are not enough to justify its use of “high 2.” The court finds that CBP did not “provide adequate detail for [plaintiff] to contest statements made in the [CBP] declarations in an ‘adversarial fashion,’ nor for this court to ‘engage in an effective de novo review’ of CBP’s redactions.” Similarly, defendant ICE has not sufficiently explained its claim that release of certain material will allow lawbreakers to circumvent agency investigations. Additionally, ICE has not shown that documents “pertaining to collaboration with other law enforcement agencies” meets Exemption 2’s standard of “‘predominant internality.’” As to the one final document withheld under Exemption 2, ICE has not provided sufficient information in its Vaughn index entry for the court to rule on the agency’s withholding. Similarly, the court finds that defendant CIS has not justified its use of Exemption 2.


• Exemptions 2 & 7(E)/Glomar: Plaintiff has created a genuine issue of material fact as to whether defendant FBI has previously acknowledged the existence of records concerning plaintiff in the Violent Gang and Terrorist Organization File database. Thus, FBI’s Motion for Summary Judgment regarding its Glomar response is denied. FBI will submit the responsive documents, if any, for in camera review and will also submit an affidavit defending its use of a Glomar response.


• Exemption 3: The court finds that 8 U.S.C. § 1202(f) (the Immigration and Nationality Act), which prohibits disclosure of records “‘pertaining to the issuance or refusal of visas or permits to enter the United States’” does not apply to records which pertain to the revocation of visas. As such, defendants CBP and DOS’s reliance on this statute to withhold a record which “likely concerns the revocation of [plaintiff’s] visa” was inappropriate.


• Exemption 5 (deliberative process and attorney work-product privileges): The court finds that documents withheld by defendant ICE do not reflect deliberations concerning the formation of agency policy. The court rejects ICE’s assertion of the deliberative process privilege because “ICE does not assert, much less prove, that the record was not adopted as ICE policy.” Furthermore, regarding the work-product privilege, “ICE has not asserted, or proven, that the records withheld under the work product doctrine were not adopted as agency policy.” ICE must submit a supplementary affidavit in camera addressing this issue. The court further finds defendant CIS’s use of Exemption 5 similarly flawed; CIS is required to submit withheld documents for in camera review.


• Exemption 7(D): Defendant ICE has not provided sufficient information for the court to rule on its use of this exemption. The court requires ICE to submit all pertinent documents for in camera review.


• Exemption 7(E): The court finds that defendant CBP has not justified its use of Exemption 7(E). CBP’s submissions “merely restate statutory language and case law, and lack the specificity necessary for the court to engage in de novo review. Specifically, the justifications are devoid of any nonconclusory indication of the nature of the information redacted, or why release of that information could reasonably be expected to risk circumvention of the law.” Similarly, the court finds that defendant ICE has not satisfied its burden in justifying its use of Exemption 7(E). Finally, the court finds that defendant CIS has not justified its use of Exemption 7(E). In camera review of the withheld documents will be undertaken.


• Exemption 7(F): The court finds that defendant ICE has not sufficiently justified its use of Exemption 7(F). The court requires ICE to submit all pertinent documentation for in camera review.


• Segregability: Because the court has ruled that defendants’ affidavits and Vaughn indices have failed to justify their withholdings, it would be premature for the court to rule on the issue of segregability.

3. Jackson v. EOUSA, No. 07-6591, 2008 WL 4444613 (S.D.N.Y. Sept. 25, 2008)

Re: First-party request

• Litigation considerations: Plaintiff’s motion for appointment of counsel is denied without prejudice and plaintiff may renew her application should the case progress and the need for counsel arise. The court finds that plaintiff demonstrated that she is unable to afford counsel. “Plaintiff has satisfied the fairly minimal requirement that she make a ‘threshold showing of merit.’” However, the court finds that appointment of counsel is not necessary in order for plaintiff to pursue her claim, in light of plaintiff’s demonstrated abilities to take on the task herself and the legal and factual issues relating to her FOIA claim do not appear to be “overly complex.” Furthermore, “Plaintiff has not demonstrated that she has made significant efforts to locate counsel on her own.”

1. Willis v. DOJ, No. 04-2053, 2008 WL 4531786 (D.D.C. Oct. 10, 2008)

Re: First-party request

• Litigation considerations: Plaintiff’s attempt to turn his FOIA action into a more general attack on his criminal conviction is inappropriate. Additionally, plaintiff’s complaint that he never received documents from the DEA in response to requests made in 1992 is dismissed. In the first instance, plaintiff has already filed an unsuccessful suit for claims related to his 1992 requests to the DEA. “The doctrine of res judicata bars re-litigation of issues that were, as here, decided in a previous action.” Secondly, given that plaintiff’s claims here relate to his 1992 requests, his claims are barred by the six-year statute of limitations applicable to FOIA claims. The court finds unconvincing plaintiff’s claim that the statute of limitations should be tolled.


• Proper party defendant: The Missouri Police Department is not a federal agency and therefore is not subject to the federal FOIA.


• Exhaustion: Defendant BOP’s affidavit stating that it never received plaintiff’s requests “is entitled to a presumption of good faith.” Plaintiff has provided no contrary evidence other than his “bare assertion” that he sent these requests. Thus, plaintiff’s complaint against BOP is dismissed because “[i]t is axiomatic that an agency has no obligation to respond to a request that it did not receive.” Similarly, plaintiff’s complaint against EOUSA is dismissed as to those requests that EOUSA’s declarant has stated EOUSA never received. Plaintiff’s complaint against EOUSA is dismissed as to those requests for which plaintiff never filed an administrative appeal.


• Adequacy of search: The court finds that EOUSA’s search for 650 pages of public source documents was reasonable, even though the search failed to locate the records. “[T]he Court finds that Defendants’ search was adequate and reasonable. Defendants have set forth, in non-conclusory fashion, two extensive searches that were unquestionably calculated to uncover the requested records, and that reflect the EOUSA’s good faith efforts to locate the records.” A subsequent request for these same records was appropriately treated by EOUSA as a duplicate request. Defendant FBI’s declaration was sufficient to establish the adequacy of its search. Plaintiff’s “[m]ere speculation” that additional records concerning him exist “is insufficient to overcome the presumption of good faith accorded a FOIA affidavit.” Similarly, plaintiff has advanced no argument to support his assertion that the FBI acted inappropriately when it destroyed a possibly responsive file pursuant to its records management schedule. Finally, plaintiff’s claim that wiretap records concerning him exist fails, both because he has previously litigated this claim, and because he has provided no evidence to suggest that he was the target of a wiretap.


• Exemption 2: The FBI appropriately utilized “high 2” to withhold a symbol number assigned to a confidential source. The FBI’s declaration established “that disclosure of this symbol number could compromise the FBI’s use of informants, specifically including their identities and locations.”


• Exemption 3: Defendant FBI’s use of Exemption 3 (Rule 6(e) of the Federal Rules of Criminal Procedure) to withhold records whose disclosure would reveal “matters occurring before a Federal Grand Jury” was appropriate.


• Exemption 7(C): The FBI acted appropriately in categorically withholding the names of third parties not employed by law enforcement agencies. Plaintiff has made no showing to overcome the substantial privacy interests at stake regarding information identifying private citizens mentioned in law enforcement records. Similarly, the FBI also appropriately withheld the identities of both federal and local law enforcement personnel. The FBI’s declarant “has explained in substantial detail the potential dangers associated with disclosure of law enforcement names.” Conversely, “Plaintiff has asserted no public interest for the Court to consider in the balancing of privacy interests and public interests.” This is true, in part, because “it is well established that an individual’s personal interest in challenging his criminal conviction is not a public interest under FOIA because it ‘reveals little or nothing about an agency’s own conduct.’”


• Exemption 7(D): The FBI appropriately withheld information concerning “an individual who received an express assurance of confidentiality and was told that his/her identity would not be disclosed.” Additionally, the FBI appropriately withheld information “associated with a local law enforcement agency” due to an implied assurance of confidentiality because the records in question were marked “‘for law enforcement use only.’”


• Segregability: The FBI met its burden to disclose all reasonably segregable information by providing a thorough segregability analysis and “an explanation for each redaction on the face of every page.”

2. Curuta v. DOJ, No. 08-1772, 2008 WL 4534125 (M.D. Fla. Oct. 7, 2008) (adoption of magistrate’s report and recommendation)

Re: First-party request

• Exhaustion: Plaintiff has not alleged that he filed an administrative appeal of the initial response to his FOIA request, therefore he has not exhausted his administrative remedies. As a result, his complaint is dismissed without prejudice.

1. Bordas v. DOJ, No. 08-0339, 2008 WL 4628401 (D.D.C. Oct. 20, 2008)

Re: First-party request

• Litigation considerations: “It is established . . . that FOIA’s exhaustion requirement is not a jurisdictional prerequisite to bringing a lawsuit but rather is a condition precedent to obtaining judicial review. . . . Hence, defendant’s Rule 12(b)(1) motion to dismiss is denied.”


• Fee Waiver/Exhaustion: “The payment or waiver of assessed fees or an administrative appeal from the denial of a fee waiver request is an element of exhaustion under the FOIA.” Here, “[p]laintiff has not asserted a public benefit resulting from the release of the requested material and his indigence alone is not a proper basis for granting a fee waiver or reduction.” Furthermore, “[i]n the absence of any evidence that DEA has acted improperly under the FOIA, the Court lacks authority to compel it to conduct an additional search for records prior to obtaining plaintiff’s payment of the assessed fee.”

2. Sussman v. DOJ, No. 03-3618, 2008 U.S. Dist. LEXIS 83548 (E.D.N.Y. Oct. 20, 2008)

Re: First-party request

• Litigation considerations: Due to plaintiff’s failure to provide a status report as to one claim or to respond to defendants’ status report on this claim, plaintiff is directed to show cause why the claim should not be dismissed for failure to prosecute.


• Exemptions 2 & 7(E): Upon in camera review, the court finds that defendant Secret Service has shown that its decision to redact the name of an “investigation routinely used” by the agency was proper.


• Exemption 7(C): Upon in camera review, defendant Secret Service established the propriety of its decision to withhold information concerning possible criminal activity engaged in by third parties.

3. Rayyan v. Sharpe, No. 08-324, 2008 WL 4601427 (W.D. Mich. Oct. 15, 2008)

Re: First-party request

• Proper party defendant: The federal FOIA does not apply to state agencies.

1. ACLU v. DOD, No. 08-00437, 2008 WL 4725665 (D.D.C. Oct. 29, 2008)

Re: Records concerning fourteen detainees held at Guantanamo Bay, Cuba Naval Base

• Waiver: “[B]ecause plaintiffs have not shown that the specific contents of the withheld records have been officially disclosed by either defendant agency,” plaintiffs’ waiver argument fails. Much of plaintiffs’ evidence on this issue consists of “press reports or reproductions of documents that do not appear to have been officially disclosed to the public. The law is clear that such publications do not vitiate Exemptions 1 and 3.” Plaintiffs have not met their burden of showing that the official disclosures previously made by defendants match or are identical to the material now being withheld.


• Exemptions 1 & 3: The court finds that the withheld records were “both properly classified under Executive Order 12,958 and exempted from FOIA by other pieces of legislation.” Furthermore, “[t]he Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to second-guess the agency in its area of expertise through in camera review.” The court further concludes that “[t]he detailed nature of the declaration, combined with defendants’ continued good-faith effort to produce as much nonexempt information as possible,” allows the court to conclude that no further segregation is possible. Plaintiffs have not provided any evidence to support their contention that certain materials were classified in order to cover up violations of law by defendants; the “declaration credibly outlines the (proper) motives” for classification. Plaintiff’s claim that release of “‘false or exaggerated’ statements by detainees” would not harm national security because the claims are false is unfounded. “Defendants counterargue that if only true allegations were redacted, detainees could, through a coordinated series of intermingled true and false claims, communicate the true information that defendants rightfully seek to withhold.”

2. Citizens for Responsibility and Ethics in Washington v. NARA, No. 07-48, 2008 WL 4722555 (D.D.C. Oct. 28, 2008)

Re: Records concerning request by NARA that Secret Service maintain copies of White House visitor records; Secret Service records destruction practices; and records pertaining to three pending lawsuits brought by plaintiff.

• Adequacy of search: “[D]efendant has demonstrated ‘beyond material doubt [that] it has conducted a search reasonably calculated to uncover all relevant documents. . . . The defendant has provided declarations from its General Counsel indicating the search methods employed by the agency, locations of specific files searched, descriptions of the search of all files likely to contain responsive documents, and names of agency personnel who conducted the search.”


• Exemption 5 (deliberative process, attorney work-product, and attorney-client privileges): As to one document withheld by defendant, the court finds that “[t]he explanation provided by the defendant for withholding this document pursuant to the deliberative process privilege is deficient because the document is silent on whether it relates to discussions between subordinates and superiors or was prepared in order to assist an agency decision-maker in arriving at his decision, rather than to support a decision already rendered.” A “more detailed explanation” is ordered to be submitted. As to two other documents, NARA properly withheld them pursuant to the attorney work-product privilege. “[D]efendant could reasonably have anticipated litigation over the question of whether [the visitor records] and related records were presidential or federal, considering that FOIA requests for these records had already been submitted. . . . Further, the documents were written by one of the defendant’s attorneys or sent to him as the defendant’s General Counsel in response to specific questions counsel posed related to the legal status of [the visitor] records.” As to several other documents, in camera review is required “because it is not clear from the Vaughn index whether the documents were drafted by NARA in formulating policy or in discharging its statutory duty to act on agency proposals regarding the disposition of its records. . . . In addition, it is not clear from the filings whether the documents were prepared in contemplation of litigation.” NARA properly withheld a powerpoint presentation under the deliberative process privilege. “The presentation contains inter-agency recommendations and policy options regarding the retention of [the visitor records and other access control records].” Pursuant to the attorney work-product privilege, NARA also properly withheld a dozen documents concerning pending litigation over the visitor records. “[T]he challenged documents consist of emails between NARA’s General Counsel and DOJ attorneys that address the legal status of [the visitor] records in light of pending litigation and legal positions taken in prior litigation.” As to several other documents, NARA properly invoked the attorney-client and attorney work-product privileges. These documents reflected legal advice sought on the issues involved in this case. NARA also properly withheld two documents which contained comments “about a legal issue and ‘reflect a fluid and evolving exchange of ideas.’” Finally, pursuant to the deliberative process and attorney work-product privileges, NARA properly withheld documents that “consist of opinions and recommendations of NARA’s staff,” and which discussed issues relevant to pending litigation.

3. Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)

• Proper party defendant: Senators Barack Obama and Diane Feinstein, the Democratic National Committee, and the U.S. Senate Commission on Rules and Administration are not “agencies” as defined by the FOIA.


• Exhaustion: “Plaintiff does not allege that he complied with FEC guidelines regarding FOIA requests. . . . It is entirely unclear from Plaintiff’s Amended Complaint what type of request he actually made to the FEC. This alone warrants dismissal of the claim.” Furthermore, plaintiff has not alleged that he exhausted his administrative remedies. (posted 11/24/2008)

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