WEEK OF JULY 2-6

1.  Raher v. BOP, No. 09-526, 2012 WL 2721613 (D. Or. July 6, 2012) (Stewart, Mag.)

Re:  Requests for five categories of records pertaining to the solicitation, evaluation and award of contracts by BOP to provide, maintain and operate private detention facilities for foreign nationals serving criminal sentences imposed by the federal courts; at issue is plaintiff's motion for discovery

Holding:  Granting plaintiff limited discovery regarding BOP's record retention/destruction policies

• Discovery:  The court grants plaintiff limited discovery as to BOP's "applicable record retention policies" and its compliance with such policies.  "Given that the BOP admits that it has a policy of routinely destroying employee emails immediately upon the employee's departure, [the court concludes that] it is appropriate to ascertain if that policy complies with the [Federal Records Act] and, if it does, whether and when the BOP imposed a litigation hold on potentially responsive documents."  The court observes that such discovery "is relevant to the award of attorney fees" and may also be applicable to other actions "such as a finding of contempt or a referral to the Special Counsel under 5 U.S.C. § 552(a)(4)(F)."  However, the court cautions that plaintiff's "discovery requests may not stray from inquiries that are reasonably calculated to lead to evidence of the lawfulness of BOP's record retention/destruction policies and their application in this case, including the imposition of any litigation hold."  

2. Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2012 U.S. Dist. LEXIS 93977 (E.D. Va. July 6, 2012) (Cacheris, J.)

Re:  Request for investigatory records related to plaintiff's clients

Holding:  Granting defendant's motion for summary judgment on the basis that its searches were adequate and concluding, without detailed discussion, that defendant's withholdings under Exemptions 3, 4, 5, 6, 7(C), 7(D) and 7(F) were proper; determining that in camera review is not necessary; and denying plaintiff's motion for attorney fees

• Adequacy of search:  The court determines that defendant's "search was reasonable, as it was conducted in a manner designed to identify all responsive documents" where its declaration "detailed the searches for this particular FOIA request and included the specific search terms" and "describe[ed] the Army's FOIA program and [U.S. Army Criminal Investigation Command's] FOIA procedures."

• Attorney fees:  The court denies plaintiff's motion for attorney fees, holding that although plaintiff is eligible for attorney fees, he does not satisfy the entitlement factors.  In terms of eligibility, the court finds that plaintiff has demonstrated that he "obtained relief through a court order" where a plaintiff obtained a representative sampling and additional documents as a result of an earlier court order.  The court also finds that "Defendant would not provide the Vaughn index without a Court order, and the additional disclosure of documents resulted from the preparation and then review of the Index."  Additionally, the court notes that plaintiff "likely . . . meets the second statutory option for establishing eligibility" because a portion of records were obtained as a result of a "voluntary or unilateral change in position by the agency."  In terms of the entitlement factors, the court finds that there is "no basis for Plaintiff's allegations that Defendant has engaged in obdurate behavior."  To the contrary, the court observes that "[w]hen Plaintiff filed suit there was an ongoing investigation that provided a legitimate basis for withholding documents pursuant to Exemption 7(A)" "[a]nd, when the investigation was complete, Defendant voluntarily produced over 41,000 pages of documents."  As to the public benefit, the court finds unavailing plaintiff's assertion that the records "'shed public light on Defendant's improper investigation methods'" where plaintiff failed "to identify any specific improper investigation methods."  Moreover, the court finds that beyond plaintiff's statement that his client "is releasing information to those that review the investigations, there is no other evidence Plaintiff plans to disseminate any information to the public."  Further, the court notes that "it not obvious that the public has any general interest about the two investigations" involving plaintiff's clients.  With respect to the commercial benefit to plaintiff and his interest in the records, the court determines that "there is sufficient evidence to say that Plaintiff has a commercial interest in documents related to investigations about its use of government funds."  Lastly, the court finds that "Defendant asserted a reasonable basis for initially withholding the documents:  the existence of an ongoing investigation."  Accordingly, the court concludes that plaintiff is not entitled to attorney fees.

3. Schulze v. FBI, No. 05-180, 2012 WL 2571254 (E.D. Cal. July 2, 2012) (Ishii, J.)

Re:  Requests for records pertaining to two alleged informants

Holding:  Denying without prejudice defendants' motion to dismiss the FBI, DEA and the U.S. Marshals Service as parties to the action

• Litigation considerations/proper party defendant:  The court denies without prejudice defendants' motion to dismiss the FBI, DEA and U.S. Marshals Service (USMS) as parties to this action.  Reviewing the case law from the District of Columbia Circuit cited by defendants, the court finds that "there is no jurisdictional impediment to a suit against FBI, DEA or USMS in their own names under FOIA as they are all 'agencies' subject to FOIA within the meaning of section 551(1)."  Moreover, the court determines that "where [as here, the] Department is a named party, courts may dismiss Department of Justice component entities where there is no object to the dismissal without impairing the rights of either party."  Nevertheless, "[w]hether or not the components are dismissed, the court retains jurisdiction to issue injunctive orders that are binding on the components."  Additionally, the court observes that "where [the] Department is a named defendant along with other named components of [the] Department, there is no clear and ambiguous authority for the proposition that the component entities are entitled to dismissal."  Accordingly, the court observes that it "can see no reason why it would matter much either way."  However, the court grants defendants leave "to amend the motion should new authorities or facts become available." 

4. Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July 3, 2012) (Lamberth, J.)

Re:  Request for investigatory records pertaining to plaintiff

Holding:  Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F)

• Exhaustion of administrative remedies/fees:  In response to defendant's exhaustion argument, the court finds that, under the DOJ's regulations which establish that requesters will not be charged for amounts under $14.00, "plaintiff did not owe defendant any fees at the commencement of this lawsuit" where his fees were under that threshold.  Furthermore, the court determines that plaintiff's "non-payment following defendant's second release years into the litigation did not strip this court of subject matter jurisdiction, because the purposes of exhaustion were met and [the] particular administrative scheme was satisfied at the time plaintiff filed his complaint."  As side issue, the court rejects plaintiff's contention that "he constructively exhausted his [administrative] remedies upon defendant's failure to release information in a timely fashion."  Rather, the court notes that FOIA plaintiffs are required to exhaust administrative remedies where the agency responds to the FOIA request before litigation commences. 

The court then determines that a FOIA plaintiff's failure to pay fees does not present a jurisdictional bar to judicial review.  The court finds that, in this case, "plaintiff's non-payment of past fees does not thwart the purposes of exhaustion" set forth by the Supreme Court in Weinberger v. Salfi by "'preventing premature interferences with agency processes, . . . affording the parties and the courts the benefit of the agency's experience and expertise, [and] compiling a record which is adequate for judicial review.'"  The court finds that "[t]his lawsuit was not a premature interference with agency processes," and "[i]n fact, it prodded the DOJ into making the appropriately extensive searches that it did not conduct prior to this suit being filed."  Additionally, the court determines that here "the parties and the court have been afforded the agency's experience and expertise," noting that "[a]t no time has defendant contended that plaintiff's non-payment has been an impediment to its ability to provide its expertise in this matter."  Lastly, the court finds that "plaintiff's non-payment did not preclude the compilation of an adequate record for the Court's review."  The court notes that "[d]efendant provided responsive documents on two separate occasions without plaintiff's payment and continued to supplement the record regarding the FOIA exemptions it invoked throughout the litigation." 

• Exemption 1:  The court holds that, "[i]n light of defendant's explanation and plaintiff's failure to provide any legal objection," defendant properly withheld pursuant to Exemption 1 "an 'intelligence report regarding the overseas location and activities of a particular fugitive from justice'" which "contains 'specific information provided by a source, and if disclosed, reasonably could be expected to reveal the identity of the contributing source.'"  Segregability: "Seeing no evidence of bad faith, the Court . . . defer[s] to defendant's opinion about segregability and hold[s] that the entire document may be withheld." 

• Exemption 3:  The court concludes that defendant properly asserted Exemption 3 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to withhold in full wiretap records which "pertained to 'the identities of the individuals targeted for interception' and 'the physical location of the electronic microphone surveillance, the participants of some of the intercepted conversations, and the summarized content of some of the intercepted conversations.'" 

• Exemption 5/deliberative process privilege: Noting that plaintiff offered no legal objections, the court concludes that defendant properly withheld draft telegrams concerning plaintiff's extradition under the deliberative process privilege.  The court finds that the record is "predecisional because it was written prior to plaintiff's extradition, . . . and deliberative because it 'makes recommendations or expresses opinions on legal or policy matters,' namely whether and how to extradite plaintiff to the United States." 

• Exemption 7/threshold:  The court finds that defendant's supplemental declaration demonstrates that the records at issue satisfy the threshold of Exemption 7 where the State Department's declaration explains that "the documents were created for the purpose of facilitating plaintiff's extradition, which is a law enforcement proceeding."  Further, the court holds that documents created by the FBI in connection with "a criminal drug investigation" also meet the Exemption 7 threshold.  Additionally, the court holds that "NADDIS numbers," which "are 'part of DEA's internal system of identifying information and individuals in furtherance of DEA's enforcement responsibilities,'" and TECS numbers, which are utilized in another law enforcement database, satisfy the threshold because there is "no purpose in these numbers apart from law enforcement."  

• Exemption 7(C):  The court holds that defendant properly asserted Exemption 7(C) to withhold the names of lower level employees of the State Department, and individuals identified in a telegram, concluding that "[t]he risk of harassment and retaliation, in light of the violent crimes being investigated, constitutes a legitimate privacy interest that is not outweighed by any public interest in disclosure." 

• Exemption 7(D):  Observing that plaintiff made no legal objection, the court finds that the State Department properly invoked Exemption 7(D) to protect a source who had provided information regarding plaintiff's drug trafficking.  "Regardless of whether an express fear of retaliation was documented, the Court . . . uphold[s] its precedent of implying confidentiality to sources who provide information about violent crimes."  Although absent evidence of an express agreement, the court declines to find an express promise of confidentiality with respect to certain FBI investigatory records, the court "infer[s] confidentiality due to the nature of the FBI's relationship to foreign law enforcement authorities."  Segregability: Given the FBI's explanation that "'once the agency receives information from a confidential source during the course of a legitimate criminal investigation . . . all such information obtained from the confidential source receives protection,'" the court finds no portions of the documents withheld by the agency under Exemption 7(D) are segregable.

• Exemption 7(E):  The court determines that DEA properly asserted Exemption 7(E) to withhold NADDIS numbers, which "reflect procedures prescribed by the DEA Agents Manual,'" because their disclosure could identify law enforcement techniques or procedures.  Additionally, the court concludes that DEA properly withheld TECS numbers under Exemption 7(E) on the basis that disclosure "would expose a law enforcement technique, promote circumvention of the law by allowing criminals to conceal their activity, or allow fraudulent access to DEA's databases." 

5.  Augustus v. McHugh, No. 02-2545, 2012 WL 2512930 (D.D.C. July 2, 2012) (Roberts, J.)

Re:  Request for a report of investigation drafted for the purpose of investigating plaintiff's discrimination claims

Holding:  Granting defendant's motion for summary judgment as conceded where plaintiff failed to contest the agency's justifications for withholding certain information; and rejecting plaintiff's challenge to the admissibility of defendant's submissions where she offers no factual basis to establish that the documents are inauthentic

6. Carson v. U.S. Merit Sys. Protect. Bd., No. 11-399, 2012 WL 2562370 (E.D. Tenn. June 29, 2012) (Phillips, J.)

Holding:  Granting defendant's motion to dismiss with prejudice where plaintiff only challenged the tardiness of the agency's response

• Mootness:  The court dismisses as moot plaintiff's complaint where he "challenges only the tardiness of the [Merit Systems Protection Board's (MSPB's)] response to his FOIA request."  The court notes that "[p]laintiff has submitted no evidence to suggest that the MSPB was not acting in good faith regarding the attention given to this request or the time of the response."  The court concludes that "[o]nce MSPB sent [its] initial response to plaintiff's FOIA request, the tardiness issue was resolved, and the case became moot, thereby divesting the court of subject matter jurisdiction."