FOIA Post (2009): Summaries of New Decisions -- August 2009

Summaries of New Decisions -- December 2009

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 December 2009.

WEEK OF DECEMBER 1

1. Wolfson v. United States, No. 09-0304, 2009 WL 4186045 (D.D.C. Nov. 30, 2009) (Huvelle, J.)

Re: First-party request

• Adequacy of search: "Having reviewed defendant's declarations, the Court concludes that the DOJ's searches were 'reasonably calculated to uncover all relevant documents.' . . . The fact that the DOJ did not locate all of the records sought by plaintiff is not dispositive. An agency's search is not presumed unreasonable because it fails to find all the requested information. . . . Furthermore, a requester's challenge requires that he present evidence rebutting the agency's initial showing of a good faith search. . . . Plaintiff fails to meet this evidentiary burden."

• Exemption 3 (18 U.S.C. §§ 2510-2521): "The Court concludes that the information described in the DOJ's supporting declaration as the contents of communications intercepted by means of a Title III wiretap has properly been is [sic] withheld under Exemption 3."

• Exemption 5 (deliberative process and attorney work-product privileges): Defendant properly invoked Exemption 5 and these two privileges to withhold information whose disclosure "would reveal the attorneys' thought processes and litigation strategy and would reveal the agency's deliberations prior to the decision to seek authorization for continued monitoring of oral communications."

• Exemption 7 (threshold): The records, which "'were compiled in connection with a criminal investigation into violations of [inter alia] federal law involving racketeering activity, wire fraud, [and] money laundering,'" are law enforcement records.

• Exemption 7(C): The DOJ appropriately withheld identifying information of individuals who were subjects of investigations, targets of intercepts, or were otherwise connected to the criminal investigation of the plaintiff. "Plaintiff fails to articulate a public interest of such significance that it outweighs the privacy interests of these third parties." Though plaintiff asserts that DOJ's investigation invaded his own privacy, "[h]e is under the mistaken impression that the privacy interest at issue in the Exemption 7(C) analysis is his own."

• Exemption 7(D): Prior cases involving crimes of the sort for which plaintiff was investigated (including racketeering, extortion, and loan sharking) have held that these crimes are sufficiently serious that an assurance of confidentiality to sources could be inferred. Plaintiff's claim to be innocent of the crimes for which he was convicted, or his claim that he knows the identity of the source and the government has disclosed that identity, does "nothing . . . to undermine the presumption of veracity afforded to an agency's supporting declaration."

WEEK OF DECEMBER 7

1. Roman v. NSA, No. 09-0623, 2009 WL 4350179 (2d Cir. Dec. 3, 2009) (unpublished disposition) (summary order)

Re: Satellite time logs focused on New York and New Jersey

• Summary affirmance: The district court's ruling granting summary judgment to NSA is affirmed.

1. Casillas v. DOJ, No. 07-1621, 2009 WL 4546677 (D.D.C. Dec. 7, 2009) (Roberts, J.)

Re: Criminal bond information

• Adequacy of search: "It is undisputed that EOUSA conducted a search of [plaintiff's] criminal case file for information relating to bonds, and that it found no responsive records. DOJ's submissions establish that the search was reasonable, and the plaintiff has not offered any evidence to challenge the reasonableness of the search."

• Procedural: 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 criminal 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."

• Vaughn Index: Plaintiff is not entitled to a Vaughn index. "[T]here is no need for a Vaughn index where there are no responsive records to describe."

• Litigation considerations: Plaintiff is not entitled to answers to his interrogatories, since defendant's declaration provides sufficient details concerning its processing of plaintiff's request.

2. Manfredonia v. SEC, No. 08-1678, 2009 WL 4505510 (E.D.N.Y. Dec. 3, 2009) (Townes, J.)

Re: First-party request

• Exhaustion: Plaintiff has failed to make valid FOIA requests that "compl[y] with the applicable regulations." Moreover, he does not allege that he filed administrative appeals of these requests. Though the "Court declines to hold that Plaintiff's failure to exhaust administrative remedies on his FOIA claims deprived the Court of subject matter jurisdiction," it will dismiss plaintiff's complaint for failure to state a claim.

• Litigation considerations: Plaintiff's claims arising from requests made prior to 2002 are dismissed for failure to meet the six-year general statute of limitations requirement set out in 28 U.S.C. § 2401(a).

3. Cherry v. FCC, No. 09-680, 2009 U.S. Dist. LEXIS 112276 (M.D. Fla. Dec. 3, 2009) (Covington, J.) (adoption of magistrate's Report and Recommendation)

Re: Records pertaining to complaint filed with FCC

• Litigation considerations: The court finds that plaintiff lacks standing to bring this complaint, because it stems from a FOIA request filed by another individual. Though plaintiff claims that this individual was acting as plaintiff's counsel and made the FOIA request on plaintiff's behalf, courts ruling in similar cases "have uniformly concluded that an undisclosed client lacks standing to sue to enforce a FOIA request filed by his or her attorney."

4. Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 4441262 (D. Me. Dec. 2, 2009) (Woodcock, C.J.)

Re: Records pertaining to approval of ground lease sought by Nulankeyutmonen Nkihtaqmikon (NN)

• Adequacy of search: "The Court concludes that the BIA failed to demonstrate that it compiled with the Maynard standards by failing to show that it has 'conducted a search reasonably calculated to uncover all relevant documents.' . . . The Court observes that unlike the BIA's earlier response to NN's challenge of the reasonableness of its search, the BIA did not present the Court with Maynard affidavits. . . . In fact, the BIA elected not to respond at all. Further, although the BIA is a large agency with multiple regional offices, to take not days, weeks, or months, but years to identify and disclose responsive documents on its face violates FOIA's twenty day response provision." The court finds that "[w]hat this case has laid bare is that the BIA's internal procedure for the first step in this process - identifying responsive documents - is significantly flawed." BIA is ordered to either file a renewed Vaughn index or an updated declaration "confirming that all files that could contain responsive documents have been searched and that no additional documents exist."

• Litigation considerations: "Assuming the Court is authorized to issue a declaratory judgment condemning the BIA's pattern or practice of FOIA non-compliance, the evidence here does not warrant such a conclusion. The BIA's delays in the disclosure of FOIA-susceptible documents in response to NN's multiple requests reflect an unsettling haphazardness about the BIA's pattern and practices in other cases. But, to draw general conclusions about the BIA's agency-wide patterns and practices from its handling of one case is a step too far. Furthermore, as the record contains no evidence about the BIA's FOIA handbooks, guidance documents, policies or procedures, the Court will not order the BIA to amend documents it has never reviewed."

• Attorney fees: The court grants NN's request for authorization to file a claim for attorney fees, but only for time spent on its efforts to force BIA "to unearth undisclosed documents buried within the agency." If BIA wishes to seek attorney fees with regard to other claims, it will need to "demonstrat[e] that it prevailed in this case on those additional legal services."

5. Sheppard v. Stewart, No. 09-2529, 2009 WL 4432575 (D.S.C. Nov. 24, 2009) (Currie, J.)

Re: Request for lab report from state crime lab

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

6. Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.)

Re: Records pertaining to IRS investigation of plaintiffs' mother's estate

• Adequacy of search: "The Court finds both that the [IRS's declarations] are sufficiently specific and that the searches they describe were reasonably calculated to return all the documents responsive to Plaintiffs' FOIA request." By contrast, "Plaintiffs misrepresent the applicable law for determining the adequacy of the Government's search." Plaintiffs incorrectly assert that an agency is required to submit affidavits from those individuals "who actually supervised and conducted the search in question. . . ." Furthermore, plaintiffs are also incorrect in asserting that defendant's search was less thorough than earlier searches it performed in response to requests by plaintiffs, searches that were held adequate by this court. Defendant was not required to "specify the standard of 'responsiveness' [it] used in its searches." It was also acceptable for defendant to not perform a particular computer search, since it already knew what results this particular search would produce. Plaintiffs claim that there are additional documents which were not found, but this claim, by itself, is not sufficient. "[E]ven if the Government failed to produce every single responsive document, Plaintiffs would still not have raised a genuine issue of material fact regarding the adequacy of the Government's search." Other objections to defendant's searches raised by plaintiffs are incorrect on their facts or constitute "unfounded speculation."

• Procedural: Plaintiffs have offered no support for their claim that documents defendant determined to be nonresponsive to plaintiffs' request should be disclosed.

• Exemption 2: Plaintiff does not challenge defendant's use of Exemption 2 to withhold the office phone number of an IRS employee as well as the Westlaw ID number of an agency employee.

• Exemption 3 (26 U.S.C. § 6103): "According to the [IRS] Declaration, all documents withheld under Exemption 3 contain information about other taxpayers including their names, social security numbers, taxpayer identification numbers, addresses, contact information, and filing information. . . . [T]he Government properly withheld these documents under Exemption 3 and § 6103." The IRS was not obligated to disclose to plaintiffs information about themselves in their individual capacities, since their request was made in their capacities as executors of their mother's estate. Finally, though § 6103(e) would allow plaintiffs to obtain information "regarding both entities in which the Estate is a shareholder and trusts in which [plaintiffs' mother] was a grantor and, for a time, trustee," plaintiffs did not follow proper procedures set out in IRS regulations to receive this information.

• Exemption 5 (deliberative process, attorney work-product, and attorney-client privileges): The court finds that the IRS properly invoked the deliberative process privilege. It did so to protect documents that "temporally precede and relate to specific agency decisions" and "reflect the consultative process underlying the IRS's decisions." Plaintiffs' assertion that the withheld documents "constitute the execution of previously formed policies" is incorrect. The IRS also appropriately invoked the attorney-client privilege to protect several different types of documents. In all cases, the court finds that the documents reflected communications between an attorney and a client (or, in one case, the client's notes memorializing such communications), which were undertaken for the purpose of providing legal advice, and in which there was an expectation of confidentiality. Plaintiffs' objections to the use of this privilege "rang[e] from the frivolous to the outright misleading." Finally, defendants properly utilized the attorney work-product privilege to withhold documents prepared by an agency attorney "in connection with . . . ongoing litigation[]." All of the withheld documents "contain discussions of the 'ramifications of facts, strategy, mental impressions or personal beliefs. . . .'"

• Exemption 6: The IRS properly withheld the direct phone number of one of its employees as well as "the personal phone number of a third party who is unrelated to this action. . . . Because disclosure of this private information will tell the public nothing about 'what their government is up to,' . . . the public has no relevant interest in disclosure of these documents. The privacy interests at stake certainly prevail in this situation." Plaintiff has not opposed these withholdings.

• Exemption 7(C): The IRS properly withheld third-party information including names, social security numbers, taxpayer identification numbers, addresses, and the direct phone number of an IRS employee. "Plaintiffs do not show how disclosure of that information would open agency action to the light of public scrutiny' so as to outweigh the individual privacy interests at stake."

• Exemption 7(D): Defendant appropriately applied this exemption to protect the identity of a source who provided information to the government after being given verbal assurance by the IRS "that his or her identity would be kept confidential." Plaintiffs, contrary to their claims, have not established that defendant has revealed the source's identity, but even if the agency had done so, "'[t]he privilege belongs to the beneficiary of the promise of confidentiality and continues until he or she waives it.'"

7. Prepetit v. Gov't of D.C., No. 09-2183, 2009 WL 4405756 (D.D.C. Nov. 19, 2009) (Friedman, J.)

Re: Request for visitor log books from District of Columbia Department of Corrections

• Proper party defendant: The federal FOIA does not apply to actions of the District of Columbia or its agencies.

WEEK OF DECEMBER 14

1. Alley v. HHS, No. 08-16914, 2009 WL 4877935 (11th Cir. Dec. 18, 2009) (Carnes, J.)

Re: Request for Medicare claims paid in 2002 for procedures performed in Florida, Georgia, Mississippi and Tennessee

• Litigation considerations: The court concludes HHS did not improperly withhold records under the FOIA where an injunction in a 1979 district court decision bars disclosure of the records requested by plaintiff. The plaintiff cannot collaterally attack the injunction issued by the Middle District of Florida by bringing a FOIA suit in the Northern District of Alabama. Rather, plaintiff must petition the "issuing court [to] modify or vacate the injunction barring disclosure." Additionally, the court observed that "[n]o argument has been, or could be, made that the court that issued the [1979] injunction lacked personal or subject matter jurisdiction or that the decision to issue the injunction was frivolous." With respect to the scope of the injunction, the court rejects the lower court's narrow interpretation. "HHS certainly could not claim to be surprised that the injunction covers the data Alley requested - could not contend that the injunction failed to give fair warning - because HHS asserted the injunction as a reason for not disclosing that data to her." Focusing on the "fair meaning" of the text of the injunction, the court finds that "[e]ven though Alley has requested data on procedures for which Medicare reimbursed physicians, while the [1979] injunction bars disclosure of reimbursement amounts, disclosing the former is tantamount to disclosing the later." The court finds that the plain text of the injunction belies plaintiff assertions that the injunction does not cover the requested records and that plaintiff's arguments challenging the rationale behind the injunction represent impermissible collateral attacks.

2. Pavlenko v. Department of Treasury, No. 09-12223, 2009 WL 4691784 (11th Cir. Dec. 10, 2009) (unpublished disposition) (per curiam)

Re: Request for all electronically stored information regarding plaintiff's grandmother's refund check

• Litigation considerations: The court finds that the district court did not err in dismissing complaint for lack of subject matter jurisdiction where the IRS's declaration showed that it "conducted a search reasonably calculated to uncover the requested documents" and plaintiff's "unsubstantiated and speculative arguments" failed to prove that the agency improperly withheld records.

1. Hussain v. DHS, No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.)

Re: Request to U.S. Citizenship and Immigration Services (USCIS) regarding plaintiff's detention

• Adequacy of search: The court determines that USCIS's search for records in its Alien File/Central Index System ("A-File") was adequate. Plaintiff's argument that USCIS's failure to uncover certain records rendered the search inadequate is unpersuasive. The court reasons that the types of documents identified by plaintiff would likely be maintained by other agencies or another DHS component, not by USCIS. Likewise, the court rejects plaintiff's contention that the search was insufficient because USCIS did not identify the search terms. "There can be no question that the search terms used to locate plaintiff's A-file were adequate, because USCIS succeeded in locating the A-file; no other responsive documents are in the possession of USCIS."

• Exemption 2: With respect to DHS's invocation of "low 2," the court finds that some of the withholdings were "amply supported by the case law." However, DHS did not meet its burden to show that certain "third-party records" were "necessarily so trivial as to be of no public interest." Furthermore, certain generalized explanations in the Vaughn index "are simply insufficient for the Court to determine what type of information was redacted, much less whether the information is claimed to be exempt under the low 2 or high 2 exemption." Similarly, USCIS's justifications for withholding information under "high 2" were often deficient. "Even if the Court were to conclude that the titles of the documents are adequate to show that the documents are primarily internal, the government must still prove that disclosure may risk circumvention of agency regulation."

• Exemption 5 (attorney client, attorney work-product, and deliberative process privileges): The court finds that "DHS does not provide explanations for its withholdings under Exemption 5 that are tailored to the content of the individual documents." With respect to documents withheld pursuant to the deliberative process privilege, "DHS's failure to include the dates of the documents or their authors or recipients makes it even more difficult for the Court to determine whether Exemption 5 was appropriately applied. . . ."

• Exemption 7(E): DHS did not adequately justify its withholdings pursuant to Exemption 7(E) because its affidavit "provide[d] almost no description of the material withheld." In an instance where it summoned some support for its redaction, DHS did not demonstrate "why the disclosure of the name of [a certain computer] system would 'reasonably be expected to risk circumvention of the law.'"

• Segregability: DHS's explanation that "'USCIS has now released all reasonably segregable portions of the document to plaintiff'" is insufficient to meet its "burden with regard to segregability because it does not show with reasonable specificity why the documents cannot be further segregated and additional portions disclosed."

• Attorney fees: "In light of the Court's conclusion that, at this stage, final judgment is not appropriate for either party, and because plaintiff has not articulated any need for an interim award of fees, the Court concludes that plaintiff's attorneys' fee motion is premature."

2. Taylor v. Babbitt, No. 03-0173, 2009 WL 4795837 (D.D.C. Dec. 15, 2009) (Urbina, J.)

Re: Request for design specifications of an antique aircraft

• Discovery: The court denies without prejudice plaintiff's motion for discovery. "Postponing discovery until after the government has submitted its dispositive motion and supporting documents allows the court to obtain information necessary to appropriately limit the scope of discovery or forgo it entirely." Plaintiff may file a renewed motion once the government has submitted its motion for summary judgment because "[a]t that point, the court will have had the opportunity to review the merits of the defendants' exemption claim and will be better suited to make a discovery ruling."

3. Potomac Navigation, Inc. v. U.S. Maritime Administration, No. 09-217, 2009 U.S. Dist. LEXIS 116673 (D. Md. Dec. 15, 2009) (Nickerson, J.)

Re: Records related to the preparation and towing of a ship from the James River Reserve Fleet to Greece

• Summary judgment: The court denies agencies' motions for summary judgment. The affidavit submitted by the U.S. Maritime Administration failed to address plaintiff's concerns regarding deficiencies in the document production. Similarly, EPA's declaration inadequately addressed questions raised by plaintiff and instead provided "generic recitation of the legal standard and the repeated bald assertions that 'EPA had conducted a reasonable search for records responsive to plaintiff's FOIA requests'. . . ."

• Discovery: Due to deficiencies in the agency affidavits, the court allows plaintiff to take depositions of certain "knowledgeable" individuals in order to inquire into the reasons for the lack of records related to aspects of its request.

• Attorneys fees: The issue of plaintiff's request for attorneys fees "is not ripe and will be addressed at a later stage in these proceedings."

4. Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.)

Re: Request for records related to legal ethics complaints and requests for advisory opinions made by requester that pertain to a third party

• Litigation consideration: The court concludes that in camera inspection of certain withheld pages questioned by plaintiff is not warranted. In camera review of those pages would not serve judicial economy "as they are adequately described in the [agency's] affidavit." Moreover, plaintiff "has failed to allege any bad faith on part of Defendant." Lastly, in camera inspection of the documents would not serve to promote the public interest.

• Exemption 2: The court finds that Exemption 2 was properly invoked to protect government e-mail addresses and that plaintiff waived his request for this type of personally identifying information in an earlier court filing.

• Exemptions 6 & 7(C): The Air Force properly withheld "personal information including signatures, personal phone numbers, personal e-mail addresses, and government e-mail addresses" on certain documents, because plaintiff waived his request for such information. The court also notes that notwithstanding plaintiff's waiver "such information was properly redacted under (b)(6) to avoid an unwarranted intrusion of personal privacy."

• Exemption 5 (deliberative process privilege): The court determines that the Air Force properly asserted the deliberative process privilege of Exemption 5 to protect pre-decisional and deliberative material. The Air Force's redaction of an "action" block on a summary sheet was appropriate "[b]ecause the redacted information is merely a suggestion or recommendation - not the agency's final decision. . . ." Likewise, portions of an intra-agency memorandum containing "analysis, findings and recommendations" related to the disposition of plaintiff's ethics complaint, were properly redacted under Exemption 5. The court reasons that the memorandum "was not a final agency decision, it was merely an investigative report" provided to the Judge Advocate General who ultimately made the decision to dismiss plaintiff's ethics complaint. Additionally, "[d]isclosure of this information would discourage candid discussion by Committee members and undermine the agency's ability to perform its duties." The court also finds that a two-page memo from the Judge Advocate General to the Air Force Office of Professional Responsibility pertaining to the ethics complaints was properly withheld. The memo, which contained preliminary opinions, analysis and recommendations, is covered by the deliberative process privilege because it was "not a final action by the agency and disclosure of such opinions and recommendations could have a chilling effect on the agency's discussions of such matters."

5. Ray v. BOP, No. 06-1673, 2009 WL 4643485 (D.D.C. Dec. 8, 2009) (Roberts, J.)

Re: Request for various records related to a specific lab test, contracts between BOP and laboratory, and records pertaining to certain disciplinary proceedings

• Responsiveness/Adequacy of search: The court finds on the basis of BOP's affidavit "it is impossible to definitively conclude that the documents that the defendant determined to be non-responsive were, in fact, non-responsive." Additionally, BOP's conclusory statement asserting that it "searched all files and areas likely to contain responsive records/documents/materials" is inadequate. The court holds that "BOP must provide a more transparent and explanatory description of its search before summary judgment may be granted."

• Administrative Procedure Act claim: BOP has failed to address plaintiff's APA claim "that it systematically delays processing FOIA requests from prisoners in violation of the FOIA." The court notes that BOP "will be required to [address this claim] in any future motion for summary judgment."

WEEK OF DECEMBER 21

1. Yonemoto v. VA, No. 06-0378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009) (Kurren, Mag.)

Re: Request for copies of e-mails sent or received by certain VA employees in which the requester is the subject

• Mootness: The court denies as moot plaintiff's claim with respect to certain e-mails which VA had offered to produce in an unredacted form in his capacity as a VA employee and where plaintiff declined that offer. Since VA offered to provide plaintiff with the exact records that he seeks, "the controversy regarding these emails 'disappears and becomes moot.'"

• Exemption 2: VA properly invoked Exemption 2 "low" to withhold various e-mail messages containing discussions involving management and personnel changes in the VA office in Hawaii. The court concludes that "[t]he public could 'not reasonably be expected to have an interest' in rumors among agency employees, the tone of an employee's unsupportive email, whether an employee prefers to work for one person over another, and whether an employee is interested in another position." Additionally, plaintiff "fails to even address these specific emails in any of his moving papers."

• Exemption 5 (deliberative process privilege): Based on its in camera review, the court determines that the deliberative process privilege applies to two e-mails in which "the Interim Director of the VA in Hawaii candidly discusses how to proceed with funding relocating employees and with future letters from the Department of Labor." The court notes that "[t]hese communications appear to have assisted the Interim Director in arriving at a decision on how to address the issues" and finds that "exposing the discussions could discourage candid dialogues in the future." Plaintiff "fails to address" these e-mails as well.

• Exemption 6: VA's use of Exemption 6 to withhold certain e-mail communications between employees was appropriate. As an initial matter, the court concludes that the employee e-mails qualify as medical or "similar files" for the purposes of Exemption 6. Second, the court rejects plaintiff's argument that "the authors of the emails have no privacy interest in the communications because they used government computers when drafting them." The court reasons that "even if the authors have no expectation of privacy for Fourth Amendment purposes, they 'do have a personal privacy interest in the thoughts and beliefs contained in their communications.'" The court is unable to identify a corresponding public interest sufficient to outweigh the privacy concerns reflected in the records. Plaintiff's stated public interests, i.e., "that the public has an interest in knowing whether VA officials misuse government property or violate VA policies when they 'disparage employees such as himself' through the use of email," were not borne out by the court's in camera inspection of the records.

• Discretionary disclosures: The court dismisses plaintiff's contention that disclosure of the requested records is required by President's Memorandum on the FOIA as well as by the FOIA guidelines issued by the Attorney General and Office of Information Policy. First, the court notes that the President's memorandum "does not create any right or benefit . . . by any party against the United States." Second, the court observes that VA specifically states that it considered the FOIA guidelines when making its disclosure determinations.

2. Trevino-Garcia v. Univ. of Tex. Health Sci. Ctr. School of Medicine, No. 09-0572, 2009 WL 5195962 (W.D. Tex. Dec. 21, 2009) (Rodriguez, J.)

• Litigation considerations: Plaintiff's FOIA claim against a state agency is dismissed. The court rejects the argument "that Defendant is required to comply with the FOIA because it is a federal contractor and/or receives federal funds" and, instead, finds that defendant is not a federal agency subject to the FOIA.

3. Washington v. Geren, No. 08-1502, 2009 WL 4911707 (D.D.C. Dec. 18, 2009) (Robertson, J.)

Re: Request for medical and employment records

• Litigation consideration: The court dismisses plaintiff's FOIA claims on the basis that he failed to exhaust his administrative remedies prior to filing suit.

4. Hart v. HHS, No. 09-076, 2009 WL 5128872 (D. Ariz. Dec. 18, 2009) (Jorgenson, J.) (adoption of magistrate's recommendation)

Re: Request for records pertaining to certain attorneys against whom the Centers for Medicaid and Medicare Services (CMS) has taken action to recover conditional payments that were paid out under one of its programs

• Mootness: The court adopts the magistrate's Report and Recommendation which found that plaintiffs' action is moot because defendant has discharged its duties under the FOIA by producing all requested documents. Plaintiffs provided insufficient support for their allegation that CMS has engaged in a pattern or practice of delaying responses to FOIA requests. The court agrees with the magistrate that "Defendants 'first in, first out' practice [to handle FOIA requests] does not amount to a factual showing that Defendant continually violates the FOIA requirements." Additionally, although plaintiffs pointed out that CMS's backlog of requests has grown, the court notes that the number of FOIA requests received has also increased and that "most significantly, the data also indicates that CMS increased the number of responses processed." Lastly, the court observes that plaintiffs "d[id] not claim or show an exceptional need " which would have entitled their request to expedited processing.

• Attorney fees: The court agrees with the magistrate's finding that plaintiffs are not eligible for attorney fees under the FOIA. The court concludes that CMS's "untimely response to Plaintiffs' request [was] due to administrative delay rather than in response to pending litigation" and that "Plaintiffs have failed to show that their lawsuit had a substantial causative effect on the production of the material."

5. Brodzki v. FBI, No. 09-2108, 2009 WL 4906877 (N.D. Tex. Dec. 18, 2009) (Boyle, J.) (adoption of magistrate's recommendation)

Re: Request to the FBI

• Litigation considerations: Liberally construing plaintiff's complaint, the court dismisses his FOIA action for failure to state a claim upon which relief can be granted. First, the court is unable to ascertain what records plaintiff is seeking from the FBI. Second, the court lacks jurisdiction where plaintiff provided "no facts to suggest or indicate that the FBI improperly withheld any records." Third, plaintiff failed to demonstrate that he exhausted administrative remedies with respect to his FOIA request.

6. Capers v. Wayne County Probate Court, No. 08-11616, 2009 WL 4950547 (E.D. Mich. Dec. 16, 2009) (Battani, J.) (Order)

Re: Request for information from Ford Motor Company

• Litigation considerations: The court denies plaintiff's motion to reconsider his FOIA claim against Ford Motor Company. "Petitioner is not asking for information from a federal agency; the statute is not applicable."

7. Karantsalis v. DOJ, No. 09-22910 (S.D. Fla. Dec. 14, 2009) (Huck, J.) (slip op.)

Re: Request for mug shot photos of a third party who pleaded guilty to securities fraud

• Adequacy of search: The court finds that the search conducted by the U.S. Marshals Service (USMS) "is nonconclusory, sufficiently detailed, and submitted in good faith so as to satisfy [its] burden of proving that the search was reasonable." The court bases its finding on the agency's affidavit which explained the nature of electronic database searched, why that database was the proper location to search, how that system can be searched, and the particulars and results of the search. The court also notes that plaintiff did not provide any evidence to rebut the reasonableness of USMS's search.

• Exemption 7 (threshold): As an initial matter, the court finds that the two responsive mug shot photos meet the threshold of Exemption 7. "[I]t is clear the booking photographs were compiled for a law enforcement purposes because the Marshals Service is a law enforcement agency tasked with the 'receipt, processing and transportation of prisoners held in the custody of a marshal or transported by the U.S. Marshals Service.'"

• Exemption 7(C): The court concludes that USMS properly invoked Exemption 7(C) to withhold two booking photographs. The privacy interests involved in a booking photo are significant because such a photo "is a vivid symbol of criminal accusation, which when released in the public, intimates, and is often equated with guilt." Moreover, such photos capture "the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties." The court further notes that "booking photos taken by the Marshals Service are generally not available for public dissemination." The court finds no support for plaintiff's claim that the photos were published intentionally by USMS through Interpol while the subject was a fugitive. The court also rejects plaintiff's argument that the subject's "privacy interest is moot because [he] appeared in open court and pled guilty." Furthermore, the court notes that the fact that USMS released photos of other prisoners in FOIA cases originating under the Sixth Circuit's jurisdiction "has no bearing on this case." The court explains that USMS released those other photos in response to FOIA requests made within the jurisdiction of the Sixth Circuit, which "has held that, in some circumstances, booking photographs must be disclosed to the media even if doing so does not serve a law enforcement purpose." With respect to the public interest, the court finds unavailing plaintiff's argument that the subject's facial expressions in the photos will reveal "'whether he received preferential treatment by the Defendants.'" The court concludes that there is no public interest that would be served by release of the photos. As a result, USMS properly withheld the mug shot photos. (posted 01/20/2010)

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