Court of Appeals Decisions

Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (Randolph, J.). Holding: Affirming the judgment of the district court that the controversy is moot as to the eleven sets already provided to plaintiff and holding that work-product protection for the remainder of the notes was not waived by disclosure of the eleven sets. The D.C. Circuit rejects plaintiff's request for an in camera review "to determine whether the withheld information (1) could be used for a collateral attack [on its client's] conviction or (2) was material to [his] defense." The D.C. Circuit finds that under the FOIA "[i]t does not matter why the requester seeks the information, what the requester plans to do with it, or what harm the requester might suffer from not getting the information." Moreover, the D.C. Circuit comments that "requiring agencies and courts to explore the requester's circumstances and review documents accordingly would create an administrative nightmare." Furthermore, the court finds that "[i]f [plaintiff] believes that its client should have received the notes during his criminal trial, FOIA is neither a substitute for criminal discovery . . . nor an appropriate means to vindicate discovery abuses."

Hull v. IRS, No. 10-1410, 2011 WL 3835402 (10th Cir. Aug. 31, 2011) (Baldock, J.). Holding: Rejecting the district court's conclusion that it was jurisdictionally barred from deciding plaintiffs' FOIA claim on the merits; but affirming the district court's judgment in favor of the IRS on the grounds that the IRS properly invoked Exemption 3 with respect to all requested records because they pertained to a third party's return information; and concluding that the district court did not abuse its discretion in refusing to conduct an in camera review. The Tenth Circuit holds that the district court did not abuse its discretion by declining to conduct an in camera review of the requested records because "[t]he IRS has demonstrated with reasonable specificity why the requested information falls within FOIA's third exemption and Section 6103," and plaintiffs have not presented evidence to contradict the IRS's withholdings or "asserted any colorable claim of bad faith."

Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court concludes that "an in camera inspection of withheld records is not necessary, where, as here, 'a district court finds that a law enforcement agency's affidavits sufficiently describe the documents and set forth proper reasons for invoking an exemption.'"

Wilner v. Nat'l Sec. Agency, No. 08-4726, 2009 WL 5158035 (2d Cir. Dec. 30, 2009) (Cabranes, J.). The court rejects plaintiffs' request that it "conduct an ex parte and in camera review of any records (assuming they exist) to provide a more 'probing' judicial review." The court holds that in camera inspection is not warranted in this case because NSA's affidavits "sufficiently allege the necessity of Glomar response." Additionally, the court notes that "a 'searching review' of the kind suggested by plaintiffs would not provide plaintiffs with the information they seek – knowledge of whether they were or are being surveilled in their interactions with their detainee clients."

Larson v. Dep't of State, No. 06-5112, 2009 WL 1258276 (D.C. Cir. May 8, 2009) (Sentelle, C.J.). The district court decision to not undertake in camera review was not an abuse of discretion. "The court concluded, and we agree, that the agencies' affidavits standing alone were sufficiently specific to place the challenged documents within the exemption categories, and the plaintiffs did not contest the contents of the withholdings or present any evidence contradicting the affidavits or suggesting bad faith."

District Court Decisions

Ameren Mo. v. EPA, No. 4:11CV02051AGF, 2012 WL 4372518 (E.D. Mo. Sept. 25, 2012) (Fleissig, J.). Holding: Granting defendant's motion for summary judgment and denying plaintiff's request for attorney fees. The court denies plaintiff's request for in camera review. "In camera review is not required where the Court is satisfied that the agency has adequately supported their exemption claims."

Wonders v. McHugh, No. 11-cv-1130, 2012 WL 3962750 (D.D.C. Sept. 11, 2012) (Wilkins, J.). Holding: Granting defendant's motion for summary judgment. The court declines plaintiff's request for in camera review because "ordering an inspection would essentially require that the Army admit or deny whether the requested records exist. This would be inconsistent with [its] finding that the Army properly invoked the Glomar response.

Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. The court declines to conduct an in camera review absent any evidence of agency bad faith. As to plaintiffs' arguments regarding two instances of inadequate segregability on the part of the CIA, the court determines that "[w]hen thousands upon thousands of pages of records are involved, it is inevitable that some unnecessary redactions will be made" and given that they are "minor" and there is no evidence of bad faith, in camera review is not necessary.

ACLU v. U.S. Dep't of State, No. 11-1072, 2012 WL 2989833 (D.D.C. July 23, 2012) (Kollar-Kotelly,J.). Holding: Granting the State Department's motion for summary judgment on the basis that it properly withheld the requested information pursuant to Exemption 1 and released all reasonably segregable information; and denying plaintiff's cross-motion for summary judgment and its request for in camera review. "[B]ecause the State Department's declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera."

Int'l Counsel Bureau v. DOD, No. 08-1063, 2012 WL 1865413 (D.D.C. May 23, 2012) (Bates,J.). Holding: Granting, in part, DOD's motion for summary judgment with respect to one audio recording for which it claimed Exemption 1 and which plaintiff did not dispute, as well as the adequacy of its search for certain videos; denying, in part, defendant's motion for summary judgment as it pertains to videos for which it asserted Exemption 2 as the basis for withholding in full, and directing DOD to produce a representative sample of those videos for in camera review in order to assess its other exemption claims; and denying both parties' motions for summary judgment as to the issue of segregability and the remaining exemption claims. The court orders an in camera review of the withheld videos, noting that it has "already allowed the Department a 'last chance' to supplement its declarations and Vaughn indices," and that "problems remain." The court finds DOD's attempt to comply with the court's previous order to "'subdivide the recordings into manageable parts cross-referenced to the relevant portion of the claimed exemption'" "inconsistent and confusing," and comments that the submissions "provide no illumination as to the actual lengths of the video, when certain segments begin and end, or how long such subdivided segments run." Moreover, the court finds that DOD's submission of "several errata correcting previously-submitted Vaughn indices, along with a number of supplemental declarations" "have resulted in further obfuscation, making it difficult for the Court to consider the validity of the Department's claimed exemptions and hampering [plaintiff's] ability to respond consistently to the Department's arguments." Additionally, the court determines that the agency's declarations and Vaughn indices do not provide sufficient information to allow the court to assess segregability. Although the court notes that agency declarations are accorded "substantial weight and deference" in cases implicating national security concerns, such as this one, the court finds that "[g]iven that the information [plaintiff] requests is the images of the detainees on the videorecordings, and the Department's position that none of the images can be (or should be) released to [plaintiff], the Court finds it necessary to test those assertions by viewing a representative sampling of the videos themselves."

ViroPharma Inc. v. HHS, No. 08-2189, 2012 WL 892926 (D.D.C. Mar. 16, 2012) (Friedman,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4 and 5, as well as made certain redactions under Exemption 6, which plaintiff did not dispute; ordering defendant to provide supplemental declarations or a Vaughn index with respect to certain documents identified by the court; and denying plaintiff's motion for summary judgment and its motion for in camera review. The court denies plaintiff's motion for in camera review and concludes that its allegation of bad faith is unfounded. The court rejects plaintiff's contention that the "FDA's rolling release of documents during the course of this litigation" demonstrates bad faith, noting that this argument "has been 'emphatically reject[ed]' by the D.C. Circuit." Rather, the court notes that "[i]t is established the 'continuing discovery and release of documents . . . shows good faith on the part of the agency that . . . continues to search for responsive documents.'"

Hall & Assocs. v. EPA, No. 10-1940, 2012 WL 718504 (D.D.C. Mar. 7, 2012) (Lamberth,J.). Holding: Granting plaintiff's cross-motion for summary judgment as to the issue of certain fees assessed by EPA; enjoining EPA from charging fees for work that was completed after the administrative appeals stage; ordering EPA to produce certain records withheld pursuant to Exemption 5; granting EPA's motion for summary judgment as to the adequacy of its search, and certain withholdings under Exemption 5; and denying plaintiff's motion for in camera review. The court denies plaintiff's request for an in camera review because it "finds that EPA's Vaughn index and accompanying declaration are sufficiently detailed to permit a meaningful review of the Agency's exemption claims." As to plaintiff's allegations of bad faith on the part of the agency, the court notes that plaintiff "has not provided the Court with any evidence that EPA responded to [its] FOIA request in bad faith" or "any evidence of underlying illegal Agency activity with regard to the documents at issue." The court finds that plaintiff's "mere allegations, without more, are not enough to persuade the Court to conduct in camera review."

Weigel Broad. Co. v. FCC, No. 11-236, 2012 U.S. Dist. LEXIS 131797 (N.D. Ill. Feb. 17, 2012) (Guzman, J.). Holding: Granting, in part, the FCC's motion for summary judgment on the basis that it properly withheld certain material pursuant to Exemption 5; but ordering that the FCC produce for in camera review two documents, for which it did not provide sufficient detail. The court determines that the agency's descriptions "are too vague" for two specific records and orders "an in camera review of these documents in order to ascertain whether they were properly withheld."

ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Based on the insufficiencies that it identified with defendants' public and in camera,classified submissions, the court finds that "limited in camera review is both necessary and appropriate," and orders defendants to "submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits that include 'a relatively detailed analysis [of the withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions. '"

Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.). Holding: Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees. Noting that in camera review is generally only available "'when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims, and when evidence of bad faith is before the court,'" the court concludes that "[n]either circumstance is present here." Rather, the court finds that the State Department's supplemental declaration "adequately describes the segregability analysis undertaken and provides sufficiently detailed justifications for the non-segregability of each document," and, additionally, "there is no bad faith on the part of the Department."

Kowak v. U.S. Forest Serv., No. 11-95, 2011 U.S. Dist. LEXIS 114230 (D. Mont. Oct. 4, 2011) (Molloy, J.). Holding: Denying plaintiff's request for in camera inspection; but ordering defendants to submit a Vaughn Index. The court denies plaintiff's request for in camera inspection, noting that "[w]hile the Court has discretion to order an in camera inspection, it will not do so here, where the agency has not yet filed a Vaughn Index." However, the court orders defendants to produce a Vaughn Index.

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. At the outset, the court notes that "[d]iscovery in a FOIA case is 'rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.'" The court concludes that, in this case, "the Department has proffered detailed declarations describing its search efforts, and [plaintiff] has failed to establish that the search was conducted in bad faith." Similarly, the court finds that "in camera review of the Department's withheld records is unnecessary inasmuch as the Department has submitted detailed declarations explaining its basis for redacting its records."

McKinley v. Fed. Housing Fin. Agency, No. 10-1165, 2011 WL 2198577 (D.D.C. June 7, 2011) (Kennedy, J.). Holding: Concluding that FHFA properly asserted the deliberative process privilege to withhold deliberative portions of two documents; ordering FHFA to produce those documents in camera so that the court may evaluate the applicability of the attorney work-product privilege; and holding in abeyance the parties' motions for summary judgment. The court finds that "the essential question here is whether these records were prepared in anticipation of litigation." Despite plaintiff's argument to the contrary, the court agrees with FHFA that the fact the records at issue serve dual policy and litigation purposes "does not automatically preclude [them] from passing the anticipation-of-litigation test." The court finds that "[w]here a document has a non-litigation component, the key question is whether it 'would have been created in essentially similar form irrespective of the litigation.'" Here, the court concludes that "FHFA's affidavits are insufficient to establish that the documents would have been created in essentially the same form irrespective of the litigation." Therefore, the court "order[s] the FHFA to produce the two documents for in camera inspection."

Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.). Litigation considerations/In camera declaration: The court grants CIA leave to file an in camera Vaughn declaration where it "cannot meaningfully review the defendant's actions based on the current public record . . . and because the court is persuaded that the CIA cannot provide further information on the public record due to the reasonable chance that such information may cause harm to the national security and the CIA's functions."

Raher v. BOP, No. 09-526, 2010 WL 3488975 (D. Or. Sept. 2, 2010) (Stewart, J.). In camera review/protective order: The court declines to conduct an in camera review of the withheld records, noting that "it lacks sufficient knowledge concerning BOP's operations and procurement process to meaningfully interpret the withheld documents under the FOIA." The court also reject plaintiff's request to release the documents to him under a protective order, because "that would place BOP in the untenable position of having to enforce any violation of the protective order and claw back any unwarranted disclosure."

Dickstein Shapiro LLP v. DOD, No. 08-226, 2010 WL 3057140 (D.D.C. Aug. 3, 2010) (Stamp, J.). Following its review of agency's declarations and Vaughn indices, the court concludes that in camera review is necessary in order to evaluate the appropriateness of defendants' exemption claims. The court orders the review of a representative sample of five percent of the responsive records with defendants and plaintiff each selecting half of the documents for review. Additionally, the court notes that "[t]he selected documents shall fairly and equally represent the particular FOIA exemptions at issue."

Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar. 26, 2010) (Waddoups, J.). Exemption 1/In camera review. The CIA properly invoked this exemption to withhold several classified documents related to the Oklahoma City bombing. Defendant's "Vaughn index and . . . affidavits" are sufficient. Though plaintiff asserts that there is no showing that an attorney who made notes on one of the documents had a proper security clearance, "that fact can be inferred from the fact that [the attorney in question] was allowed access to review classified documents." The court disagrees with plaintiff that in camera review is required, especially in light of the fact "that courts are ill-equipped to properly weigh national security interests and accordingly, 'if the agency . . . diligently and conscientiously submits affidavits summarizing the matters withheld wherein it clearly indicates the rationale for the claimed exemption, the trial court need not undertake an in camera inspection of the documents.'"

Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation). Defendant has released all documents except for those the court has found were appropriately withheld. Thus, plaintiff's motion for in camera review is denied as moot.

Physicians for Human Rights v. DOD, No. 08-273, 2009 WL 5125893 (D.D.C. Dec. 30, 2009) (Bennett, J.). The court orders two defendants, the Joint Staff and DIA, to submit certain records that it identified for an in camera review where their declarations did not adequately support their claims of exemption.

James v. DEA, No. 08-0842, 2009 WL 3088802 (D.D.C. Sept. 28, 2009) (Urbina, J.). Given the adequacy of defendant's declaration, as well as the lack of any evidence of bad faith on the agency's part or substantial public interest in further review of the withheld records, the court declines plaintiff's motion for in camera review.

Antonelli v. U.S. Parole Comm’n, No. 07-1932, 2009 WL 1497186 (D.D.C. May 29, 2009) (Kollar-Kotelly, J.). In camera review "is unnecessary when, as here, 'a district court finds that a law enforcement agency's affidavits sufficiently describe the documents and set forth proper reasons for invoking an exemption[.]' . . . Plaintiff has provided no factual basis for questioning the agency's declarations, which are otherwise accorded 'a presumption of good faith[.]'"

Pearson v. DHS, No. 08–1885, 2009 WL 1474837 (N.D. Tex. May 26, 2009) (Boyle, J.) (adoption of magistrate's recommendation). "[N]either party addressed whether their dispute can be resolved short of in camera inspection of the documents requested by Plaintiff." Because of the "burdensome" nature of this remedy, the court instead orders defendants to produce a Vaughn Index detailing the bases for their withholding of documents.

Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1298123 (N.D. Cal. May 5, 2009) (Patel, J.). The court declines plaintiff's request for in camera review, and instead orders OMB to submit a new Vaughn index and declaration which remedy the deficiencies described below.

Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.). The parties are ordered to prepare a list of documents still in dispute; these documents will be reviewed in camera by a magistrate judge.