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

Summaries of New Decisions -- May 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 May 2009.

WEEK OF MAY 4

1. Anderson v. DOJ, No. 07-2284, 2009 WL 1209472 (2d Cir. May 4, 2009) (per curiam)

Re: First-party request

• Adequacy of search: Defendant has established that its "search was reasonable and adequate." Defendant has also "explained the operation of the internal database that was used to conduct the searches." Additionally "[plaintiff] failed to rebut the presumption that [DOJ's] affidavits were executed in good faith."

1. Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.)

Re: First-party request

• Adequacy of search: Plaintiff's claim that BOP's search was not adequate as to one of his requests because its affidavit does not identify by name the individual who conducted the search is "frivolous." Even "if the information were recorded, it would itself be exempt from disclosure under exemption (b)(6) of the FOIA." Plaintiff's other "objections to the adequacy of the search are rebutted by [BOP's declaration] itself." As to another of plaintiff's requests, BOP's interpretation of the request, though "understandable in context," was mistaken. "BOP will be permitted to file a renewed motion after it has completed a search" based on a broader reading of plaintiff's request. As to two of plaintiff's other requests, BOP's declaration fails to "contain any description of the searches undertaken."

• Litigation considerations: As to another of plaintiff's requests, BOP has failed to provide sufficient justification for its use of exemptions. BOP will be permitted to file a renewed motion on this issue. The court declines plaintiff's request for in camera review of the withheld documents.

• Procedural: BOP was not required to create a transcript of a phone call of plaintiff's that it monitored. "It is established . . . that an agency is not required to create documents in response to a FOIA request." As to another of plaintiff's requests, BOP has demonstrated that it fully responded to the request by providing the requested information.

• Exemption 2: As plaintiff's only challenge to BOP's use of this exemption in one of his requests is based on a factually incorrect assertion, "it is not necessary to address his legal argument." As to another of his requests, BOP properly withheld computer user identification numbers.

• Exemptions 6 & 7(C): Plaintiff's challenges to BOP's use of these exemptions "reflect a misunderstanding of the law, and his notion that the third person personal privacy exemptions apply only to government employees is incorrect. The personal privacy exemptions . . . require the agency to protect the privacy of any third person identified in the records, and the statute does not except spouses." Plaintiff has failed to identify any interest in release of this information beyond his own personal interest. Similarly, he has failed to make a showing of governmental wrongdoing sufficient to satisfy the Favish standard.

• Exemption 7(E): Plaintiff's only challenge to BOP's use of this exemption is to allege that the documents in question were not compiled for law enforcement purposes. However, the records in question are "records that might easily qualify as ones compiled for law enforcement purposes. In the face of a sworn statement by an agency, . . . the plaintiff's non-specific challenge is insufficient to 'set out specific facts showing a genuine issue for trial.'"

2. Moore v. FBI, No. 06-697, 2009 U.S. Dist. LEXIS 37484 (W.D. Wis. May 1, 2009) (Crabb, J.)

Re: Records pertaining to behavioral modification techniques program

• Litigation considerations: Plaintiff's motion to compel discovery is denied, both because it concerns records that "are at issue in this [litigation]," and because "[e]ven if they were, plaintiff would not be allowed to circumvent the Freedom of Information Act's exemptions simply by filing a lawsuit under the Act and obtaining exempted materials through discovery."

3. Information Network For Responsible Mining (INFORM) v. Bureau of Land Mgmt., No. 06-02269, 2009 WL 1162551 (D. Colo. Apr. 28, 2009) (Kane, J.)

Re: Records related to Uranium Leasing Program environmental assessment

• Procedural: The court "find[s] the [agency] violated FOIA by failing to comply with [the twenty-day] statutory deadline and that this failure resulted in an improper withholding under FOIA."

• Adequacy of search: "[BLM's] declaration does not meet the agency's burden of demonstrating a search reasonably calculated to locate all responsive documents. It merely asserts, in conclusory terms and without any accompanying detail or explanation, that all documents created or obtained by the BLM [that would be responsive] were located in the single file it searched." The court also finds that "there is other evidence that calls into question the adequacy of the . . . search," specifically evidence that responsive records are likely to be found in other locations. BLM is ordered to search further.

• Attorney fees/costs: Plaintiff may submit a separate request for fees and costs after BLM has complied with the court's orders on further searches and a revised Vaughn index.

• Exemption 5 (deliberative process privilege): Plaintiff has provided "no basis" for its claim that BLM's regulation, 40 C.F.R. § 1506.6(f) (2008), which provides that environmental impact statements may not be withheld under Exemption 5, also applies to environmental assessments. However, although BLM has demonstrated that the withheld documents are predecisional, BLM has not provided "sufficiently specific" information for the court to determine if all of the material it withheld is deliberative. In particular, BLM has not shown whether the factual information it withheld would, if disclosed, "reveal the deliberative process" or is "too intertwined with deliberative materials to be segregable." BLM is ordered to submit a more detailed Vaughn index (both as to this information as well as to any additional records it locates as part of the further search it has been ordered to conduct).

4. Browder v. Fairchild, No. 08-P15, 2009 WL 1158669 (W.D. Ky. Apr. 28, 2009) (Heyburn, J.)

Re: First-party request

• Litigation considerations: Plaintiff has been provided with all of the documents he sought in his original complaint. As to additional documents that plaintiff now seeks, "[t]he Court will not enlarge this action to encompass documents that were not properly part of Plaintiff's original complaint."

• Costs: Plaintiff is ordered to file a brief with the court setting out his costs and an argument for why the court should order reimbursement of these costs. Defendant will then be ordered to file a response, either agreeing to reimbursement or detailing its reasons for objecting.

WEEK OF MAY 11

1. Town of Winthrop v. FAA, No. 08-1703, 2009 WL 1260410 (1st Cir. May 8, 2009) (Howard, J.)

Re: Records pertaining to proposed expansion of Logan Airport

• Litigation considerations: The record from the district court proceedings indicates that plaintiff agreed to the district court's procedures for expediting treatment of this case, including in camera review of contested documents. Plaintiff failed to timely object to the district court's rulings, and thus cannot now complain of the procedures employed or the rulings made by the district court. A future requester of these same documents would not, however, be bound by the procedures used or the rulings on withholdings made in this case.

2. Larson v. Dep't of State, No. 06-5112, 2009 WL 1258276 (D.C. Cir. May 8, 2009) (Sentelle, C.J.)

Re: Records pertaining to violent attacks in Guatemala in the 1970s and 1980s

• Procedural: One of the plaintiffs made a prior FOIA request to defendant Department of State in 1995 and referenced that request in the 2002 request which was the subject of her complaint. The 2002 request "does not reasonably suggest to the DOS that it should search for and disclose internal documents arising out of the agency's decisions concerning her 1995 request." Moreover, this plaintiff cannot now ask for judicial review of State's response to her 1995 request, as this issue was not raised in her complaint.

• In camera review: 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."

• Exemptions 1 & 3/Glomar: Defendant CIA properly invoked Exemption 1 to withhold "four intelligence cables that report detailed descriptions of information obtained from a particular CIA source and provide general information about the source." These documents were properly classified by the CIA, as their release "would seriously undermine the CIA's ability to retain its current intelligence sources and attract future intelligence sources." Additionally, "disclosing the cables could lead to the unauthorized disclosure of intelligence methods. . . ." Courts properly "'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights in what adverse affects [sic] might occur as a result of [disclosure of] a particular classified record.'" Defendant "CIA sufficiently detailed the classified information in the withheld cables, why that information was classified, and why it logically must remain classified in the interest of national security." Furthermore, the CIA has explained that the passage of time does not lessen the agency's need to protect its sources. Similarly, the court "easily conclude[s]" that the CIA properly utilized Exemption 3 as well for the withheld material, by means of the National Security Act, 50 U.S.C. § 403-1(i)(1) (2006), which allows for the withholding of material relating to intelligence sources and methods. Defendant NSA also properly invoked Exemptions 1 and 3, providing sufficient details to justify nondisclosure, i.e., "the necessity to foreign intelligence gathering of keeping targets and foreign communications vulnerabilities secret." NSA's affidavit provides sufficient information for the court to rule on its withholdings, given "the substantial weight owed agency explanations in the context of national security." NSA has also demonstrated that the withheld information was properly classified. Plaintiffs' demand for further details from both the CIA and NSA "is not required by-indeed is even contrary to-[the court's] precedent." NSA has also shown that the withheld information is covered by section 6 of the National Security Act, 50 U.S.C. § 402 (2006), which protects from disclosure "the organization or any function of the National Security Agency"; 18 U.S.C. § 798(a)(3)-(4) (2006), which "prohibits the unauthorized disclosure of classified information 'concerning the communication intelligence activities of the United States'"; and 50 U.S.C. § 403-1(i), "which . . . instructs the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure." Finally, defendant NSA properly refused to confirm or deny the existence of records responsive to one plaintiff' s request, concluding that acknowledgment of the existence of such information "could reasonably be expected to cause serious damage to the national security."

1. Short v. U.S. Army Corps of Eng'rs, No. 07-2260, 2009 WL 1315984 (D.D.C. May 13, 2009) (Collyer, J.)

Re: Records concerning wetlands designation of plaintiff's property

• Attorney fees: Regardless of whether the OPEN Government Act (OGA) amendments to the FOIA apply retroactively, plaintiff is not eligible for an award of attorney fees. Prior to the filing of his suit, defendant had indicated that it would grant plaintiff's request. "Thus, because the Corps had already decided to release the requested records prior to [plaintiff's] filing of this lawsuit, the suit was not the cause of the disclosure." Plaintiff's suit cannot be said to have caused defendant to "'change its position,'" as required by the OGA. Furthermore, "[plaintiff's] request . . . was for his own commercial benefit," thus "[e]ven if [plaintiff] were deemed to have substantially prevailed in this action, his request for fees and costs would be denied because the equitable factors weigh against such an award."

2. County of Santa Cruz v. Ctrs. for Medicare and Medicaid Servs., No. 07-2889, 2009 WL 1313219 (N.D. Cal. May 12, 2009) (Chesney, J.)

Re: Records related to defendant's physician fee schedule system

• Litigation considerations: Defendant's motion for a stay of discovery is granted. In FOIA cases, it is routine for discovery to be delayed until after motions for summary judgment. Though the court has previously denied part of defendant's initial motion for summary judgment, that ruling gave defendant the opportunity to file a renewed motion. "Under such circumstances, the Court's denial of [Centers for Medicare and Medicaid Services'] prior motion, without more, is insufficient to justify discovery at this time."

3. Lawyers Comm. for Civil Rights v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 1299821 (N.D. Cal. May 11, 2009) (Hamilton, J.)

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

• Procedural: The follow-up questionnaires that Treasury sends to those who contact the agency seeking "delisting" from the SDN constitute responses by the agency, and therefore should have been considered as covered by plaintiff's request. Similarly, any follow-up responses by delisting applicants should have been considered responsive to plaintiff's request. "Notwithstanding [the requester's] inartfully crafted FOIA requests, the court has already liberally construed the requests. . . ." Treasury is ordered to release the questionnaires and any responses to them.

• Exemption 7(A): "Treasury has failed to clarify whether it seeks to apply the exemption categorically or simply on a petition-by-petition basis. . . . [and] Treasury's [Vaughn] index confirms that 7(A) applies to only a few petitions." Furthermore, "Treasury has again failed to make any showing, let alone a particularized one, that 7(A) should apply categorically. It has not defined a functional category of documents; nor has it provided any details regarding the proceedings with which release of the information will interfere." As to eight of the nine petitions for which defendant claimed this exemption, it has failed to show the presence of an ongoing or pending investigation. "[Defendant] will not be permitted to redact or withhold any further information or petitions under 7(A). . . ."

• Exemption 7(F): "Treasury has adequately explained why the redaction of identifying information in the [delisting petitions from individuals tied to narcotics trafficking or who provided sensitive information to the federal government] is appropriate under 7(F)." Its declaration explains the potential danger to individuals in these categories. Thus, its categorical use of 7(F) to protect identities of petitioners fitting this description was appropriate.

4. Kensington Research & Recovery v. HUD, No. 08-1250, 2009 U.S. Dist. LEXIS 39797 (N.D. Ill. May 8, 2009) (Gottschall, J.)

Re: Request for Premium Refund form (HUD-27050-B)

• Agency records: "Although HUD did not save the data in the precise format that was transmitted . . ., the de minimis outlay of time, energy, and resources required to recreate a HUD-27050-B form that previously existed does not constitute creation of a new record." Thus, "HUD's argument that the HUD-27050-B form is not an 'agency record' [because HUD did not maintain a copy after it sent it to the homeowner] is rejected."

• Procedural: "If the HUD-27050-B form is accessible under the FOIA as [plaintiff] argues, then any person may obtain a copy upon request, whether or not they have [sic] a power of attorney from the homeowner." Because of this, "the existence of a power of attorney is irrelevant to the merits of [plaintiff's] FOIA request. . . ."

• Exemption 2 ("high 2"): Plaintiff's argument that Exemption 2 does not apply to the documents in question "rest[s] upon an overly narrow interpretation of the scope of Exemption 2." The court rejects plaintiff's claim that Exemption 2 only covers "'rules and practices.'" Instead, the exemption also covers documents "'related . . . to . . . rules and practices.'" The withheld document "is related to the rules and practices of HUD in that it is a mechanism by which HUD fulfils its statutory mandate to refund . . . monies to eligible homeowners," and it is internal "in that it 'does not purport to regulate activities among members of the public.'" HUD claims that "the . . . form functions like a coupon or application form intended solely for use by the eligible homeowner," and that "release under the FOIA would make it available to any person who requested it which would increase the likelihood of fraudulent claims. . . ." HUD has provided past examples of fraudulent use of these forms and plaintiff fails to rebut HUD's evidence.

5. Thomas v. CUSIP Serv. Bureau, No. 09-0852, 2009 U.S. Dist. LEXIS 39377 (D.D.C. Apr. 28, 2009) (Bates, J.)

• Proper party defendant: Defendant, a private company, is not an "agency" subject to the FOIA.

6. Wright v. FBI, No. 02-915, 2009 WL 1287423 (D.D.C. May 6, 2009) (Kessler, J.)

Re: Book manuscript

• Litigation considerations: The government cannot rely on FOIA exemptions to justify its attempt to censor the private publishing of its employees, regardless of whether the material in question falls within the confines of a FOIA exemption.

7. Pac. Fisheries, Inc. v. IRS, No. 04-2436, 2009 WL 1249296 (W.D. Wash. May 6, 2009) (Robart, J.)

Re: Tax return

• Exemption 3: The IRS has explained in a declaration why it believes that release of the tax return in question would interfere with federal tax administration, as per the requirements of 26 U.S.C. § 6105 (2006). In this case, release of the return "'would chill future cooperation by Russia' which 'would make it less likely the Russian government would provide exchange-of-information assistance under the treaty for U.S. tax cases. . . .'" Ultimately "[t]he court determines that [the IRS's] declaration is well-grounded in experience rather than speculation and . . . provides specific, legitimate reasoning behind the ultimate conclusion that federal tax administration would be impaired. The court further determines that [the IRS's declarant's] conclusions are entitled to some deference as the court is not in a position to independently determine what actions on the part of the United States government would or would not impair treaty relations with another nation." As to information provided by the United States to Russia, the court finds that the information is encompassed by the term "tax convention information" as defined in 26 U.S.C. § 6105(c)(1)(E) and is therefore exempt from disclosure. "[Plaintiff's] bare assertion, without citation to authority, that the definition of 'tax convention information' does not include documents relating to and reflecting on information received from a treaty partner, is not enough to overcome the plain meaning found in the definition of 'tax convention information' in the statute." As such "[t]he court determines that documents withheld on this basis are properly withheld under 26 U.S.C. § 6105(a) and 5 U.S.C. § 552(b)(3) [(2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524]."

8. Blunt-Bey v. DOJ, No. 08-1029, 2009 WL 1227896 (D.D.C. May 6, 2009) (Urbina, J.)

Re: First-party request

• Adequacy of search: "[T]he court determines that the defendant conducted a search reasonably calculated to locate all responsive records." Plaintiff's "unauthenticated 'evidence' does not call into question the defendant's evidence of a good-faith search. . . ." Furthermore, "'the fact that a particular document was not found does not [in itself] demonstrate the inadequacy of a search.'"

9. Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1298123 (N.D. Cal. May 5, 2009) (Patel, J.)

Re: Records concerning development of fuel economy standards for light trucks

• In camera review: 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.

• Exemption 4: OMB's explanation for its use of this exemption "provides no information revealing any sort of business competition-related disadvantage, let alone specific evidence revealing either actual or a likelihood of substantial competitive injury." Moreover, OMB's declaration does not establish that the withheld information "is either (1) privileged and confidential or (2) would result in competitive disadvantage." OMB claims that it cannot release the information in question because it has been unable to contact the submitter, but if this is true, it calls into question the basis for OMB's claim that the submitter would in fact object to the release of the information.

• Exemption 5 (deliberative process, attorney-client, and presidential communications privileges): The court finds that the document descriptions in OMB's Vaughn index are "insufficiently detailed" to support its withholdings. They are "'overly simplistic and conclusory . . . [and] coupled with boilerplate explanations. . . .'" Furthermore, as to OMB's use of the presidential communications privilege, the court finds that "[t]o extend the privilege to intra-OMB discussions relating to 'draft background paper and memorandum used to prepare a presentation for the President,' without a more detailed description, would run contrary to the law on this FOIA exemption." OMB's Vaughn entries concerning its use of the attorney-client privilege do not indicate "how a lawyer is involved," or "how the document contains legal advice."

10. Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.)

Re: Records concerning development of fuel economy standards for light trucks

• Procedural: OMB is not required to release documents it has found to be not responsive to plaintiff's request.

• Waiver: Plaintiff's assertion that OMB waived exemptions on withheld documents by releasing related documents is mistaken. "If [plaintiff's] argument were accepted, it would create the untenable result of discouraging the government from ever re-reviewing previously withheld documents."

• Litigation considerations: OMB's allegedly arbitrary and capricious decisions about which documents to release and which to withhold do not give plaintiff a right to relief under the APA. "[T]he APA only applies if an adequate remedy is not available elsewhere. FOIA provides an adequate remedy for the complaint [plaintiff] alleges here." A ruling that these decisions by OMB constitute an APA violation "would discourage OMB from ever reexamining previously-withheld documents." Finally, though the fuel standards established by OMB have been held to be arbitrary and capricious, OMB's actions do not constitute serious enough misconduct to apply the governmental misconduct exception as a bar to any withholding of documents by OMB.

• In camera review: The parties are ordered to prepare a list of documents still in dispute; these documents will be reviewed in camera by a magistrate judge.

• Exemption 5 (deliberative process, attorney-client, and presidential communications privileges): Plaintiff's assertion that draft question and answer sheets and draft press releases are not eligible for protection as deliberative documents is incorrect and is not supported by prior case law. The court finds that OMB correctly withheld certain draft documents and other documents pertaining to those drafts. However, the court further finds that OMB's Vaughn index has not sufficiently described certain other documents withheld pursuant to the deliberative process privilege. As to the documents whose Vaughn descriptions were found to be adequate, OMB also provided sufficient explanation of its efforts to segregate. These documents contained properly withheld factual information. "The editorial selection of the facts on which the agency or agency members are providing opinions is precisely the sort of intertwined factual information that is protected by the deliberative process privilege." In this case, the majority of documents are e-mail chains, "which are likely short rejoinders to comments made by the previous author." OMB has not provided sufficient information for the court to rule on its use of the presidential communications privilege. OMB must distinguish between documents actually prepared for the President or his senior advisers (or drafts of these documents) and documents that reflect internal OMB discussions concerning "'draft background papers'" and the development of another agency's rulemaking. OMB has provided enough information to show that its use of the attorney-client privilege was proper. OMB did not waive the privilege by including personnel from other agencies in some of these communications, as the privilege extends "to multiple parties who share a common interest in a legal matter." Finally, OMB "correctly asserted . . . that there is no need to perform a segregability analysis on documents protected under the attorney-client privilege."

WEEK OF MAY 18

1. Citizens for Responsibility & Ethics in Washington v. Office of Admin., No. 08-5188, 2009 WL 1373612 (D.C. Cir. May 19, 2009) (Griffith, J.)

Re: Records pertaining to alleged loss of e-mail records

• Proper party defendant: The court finds that the Office of Administration (OA) is not an agency subject to the FOIA, "because it . . . lacks substantial independent authority." Instead, "everything the Office of Administration does is directly related to the operation and administrative support of the work of the President and his EOP staff." The fact that OA previously considered itself subject to the FOIA "is of no moment because [the court] ha[s] been clear that past views have no bearing on the legal issue whether a unit is, in fact, an agency subject to FOIA."

• Litigation considerations: Though plaintiff is correct that the district court erred in ruling that it lacked subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), this error does not warrant reversal, as the district court had proper grounds for dismissal for failure to state a claim under Rule 12(b)(6). The district court's discovery rulings were proper. "The . . . court appropriately refused [plaintiff's] discovery requests that did not speak to the question whether OA is an agency," and "provided [plaintiff] ample opportunity to obtain materials exploring whether OA is an agency under FOIA."

1. Boeing Co. v. U.S. Dep't of the Air Force, No. 05-365, 2009 WL 1373813 (D.D.C. May 18, 2009) (Kessler, J.)

Re: Request for documents pertaining to contract to build GPS satellites

• Exemption 4 (reverse FOIA): Plaintiff has not shown that release of the requested information (pricing information consisting of wrap-around rates) would likely result in substantial competitive harm to it. For the vast majority of the requested data, plaintiff has provided no support for its contention that disclosure would make it possible for a competitor to accurately gauge plaintiff's future labor costs. Secondly, plaintiff has not refuted defendant's claim that labor prices do not fluctuate in a linear fashion, thus making it more difficult to predict future wages from information on past wages. Furthermore, plaintiff's claim that wages increase in a constant fashion is undercut by its willingness to release wage information for some years, but not others. If plaintiff were correct, even the release of less recent wage information could be used to predict future labor costs. The Air Force withheld data for the period 2005-2012 because "release . . . would have provided competitors with an exact future rate," which would have permitted underbidding. By contrast, "releasing past data from 1996 to 2004 . . . would only harm Boeing to the extent that it could be used to extrapolate future data." The Air Force did not act arbitrarily and capriciously when "[it] concluded that this past data could not be used to reliably predict future data."

2. S. Shrimp Alliance v. United States, No. 08-00394, 2009 WL 1373367 (Ct. Int'l Trade May 15, 2009) (per curiam)

Re: Reconsideration of Continued Dumping and Subsidy Offset Act (CDSOA), 19 U.S.C. § 1675c (repealed as of Feb. 8, 2006)

• Publication of regulations: Section (a)(1) of the FOIA requires agencies to publish their existing rules of procedure in the Federal Register, but "does not place an independent obligation on [the agency] to formulate and then publish such rules." As plaintiff has only asserted that Customs has not published rules of procedure pertinent to its reconsideration of CDSOA, but does not allege that any "such rules actually exist," plaintiff has no claim under 5 U.S.C. § 552(a)(1).

3. Moore v. FBI, No. 06-697, 2009 WL 1351404 (W.D. Wis. May 13, 2009) (Crabb, J.)

Re: Records pertaining to behavioral modification techniques program

• Adequacy of search: As to the two of plaintiff's requests that are legitimately before the court, the court finds that the FBI's searches were adequate. Plaintiff provides no support for his claim that the FBI was required to provide him with a sworn affidavit attesting to the results of the search, aside from the fact that defendant's affidavit for this case would fulfill such a requirement if it did exist.

• Litigation considerations/Exhaustion: The court will not consider the FBI's actions with regard to plaintiff's other requests. As to one of these requests, plaintiff did not raise the issue in his complaint, so it is not properly before the court. As to another, the request was not even made until after plaintiff had filed the instant suit, thus, it is also not properly before the court. Moreover, plaintiff has not exhausted his administrative remedies as to this request.

4. Bloche v. DOD, No. 07-2050, 2009 WL 1330388 (D.D.C. May 13, 2009) (Facciola, Mag. J.)

Re: Records pertaining to participation of health care professionals in interrogation of terrorism suspects

• Litigation considerations: Plaintiffs move to amend their complaint under Federal Rule of Civil Procedure 15(a)(2) to account for FOIA requests they resubmitted to the CIA after this litigation was underway. However, their motion is more properly considered under Rule 15(d). The court finds that granting plaintiffs' motion would cause undue delay. "[A]lthough supplementation of the complaint would not create any undue surprise for defendants . . ., the parties are close to final resolution of the case. . . ." Thus, "[i]t is hard to understand what possible purpose would be served by permitting plaintiffs to supplement their complaint" to include additional FOIA requests. "[T]he only practical consequence of the denial of this motion to supplement would be to save plaintiffs the filing fee of the new suit. That is hardly enough reason to preclude this case from coming to its prompt conclusion . . . ."

WEEK OF MAY 25

1. N.Y.C. Apparel F.Z.E. v. U.S. Customs & Border Prot. Bureau, No. 04-2105, 2009 WL 1464962 (D.D.C. May 27, 2009) (Walton, J.)

Re: Records concerning search of plaintiff's property

• Attorney Fees: The court reaffirms its prior ruling denying plaintiff's motion for attorney fees and holding that the new standard for fee awards established by the OPEN Government Act does not apply retroactively. The court is not persuaded by two rulings to the contrary, including one from this District. "[T]here is no equity in compelling the defendant to suffer the unforeseeable penalty of attorney's fees based on its voluntary decision to reinitiate its search for documents responsive to the plaintiff's original request." In order for the attorney fees provision to apply retroactively, "there must be 'clear congressional intent'" that it be read this way in light of the general rule that statutory provisions that operate as waivers of sovereign immunity must be read narrowly.

2. Thornton-Bey v. Admin. Office of U.S. Courts, No. 09-0958, 2009 WL 1451571 (D.D.C. May 21, 2009) (Collyer, J.)

• Proper party defendant: The Administrative Office of the U.S. Courts is part of the judicial branch and thus not an agency for purposes of the FOIA.

3. Rush v. FBI, No. 09-0955, 2009 WL 1438241 (D.D.C. May 21, 2009) (Collyer, J.)

• Exhaustion: Because plaintiff filed his complaint before defendant's deadline to respond to his request lapsed, plaintiff failed to exhaust his administrative remedies.

4. Chesterfield Assocs., Inc. v. U.S. Coast Guard, No. 08-4674, 2009 WL 1406994 (E.D.N.Y. May 19, 2009) (Block, J.)

Re: Records pertaining to contract bidding process

• Exemption 3: 10 U.S.C. § 2305(g) (2006) prevents disclosure of any "'proposal in the possession or control of an agency [within the Department of Defense].'" Though there is an exception to this provision for proposals that are "'set forth or incorporated by reference in a contract entered into between [DOD] and the contractor that submitted the proposal,'" the pages withheld by the Coast Guard were not set forth or referenced in the contract it entered into.

• Exemption 6: Defendant properly withheld the names of its own employees and the contractor's employees who were involved in the bidding process. "[T]he Court perceives no principled basis for concluding that government employees involved in the bidding process for public contracts do not have the same privacy interest [as employees who conduct internal investigations] arising out of the same possibility of harassment or embarrassment." Moreover, "[plaintiff] has offered no evidence to support its assertion that the bidding process was somehow tainted. There is, therefore, no public interest warranting disclosure." (posted 6/08/2009)

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