Summaries of New Decisions

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 cases 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.

WEEK OF JUNE 27 – JULY 1

Courts of Appeal

1.Blackwell v. FBI, No. 10-5072, 2011 WL 2600831 (D.C. Cir. July 1, 2011) (Kavanaugh, J.)

Re:  Request for various records related to the criminal investigation and prosecution of plaintiff for insider trading

Holding:  Affirming the district court's decision that the FBI properly invoked Exemptions 7(C) and 7(E) and conducted an adequate search

• Exemption 7/threshold:  As preliminary matter, the D.C. Circuit finds that "[t]he documents generated in the course of investigating and prosecuting [plaintiff] on insider trading charges are quite obviously related to the FBI's law enforcement duties" and, accordingly, "easily" satisfy the threshold of Exemption 7.   

• Exemption 7(C):  Under the standard set forth by the Supreme Court in Favish, the D.C. Circuit notes that in cases such as this one where plaintiff alleges government misconduct as a public interest, "the requester must at a minimum 'produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'"  Here, the D.C. Circuit finds that plaintiff "has failed to meet the demanding Favish standard," where "[t]he only support [he] offers for his allegation of government misconduct is his own affidavit, which recounts a litany of alleged suspicious circumstances but lacks any substantiation."  As such, the D.C. Circuit affirms the district court's determination that the FBI properly invoked Exemption 7(C).

• Exemption 7(E):  The D.C. Circuit holds that the FBI properly asserted Exemption 7(E) to withhold "'details about procedures used during the forensic examination of a computer'" and "'methods of data collection, organization and presentation contained in ChoicePoint reports.'"  With regard to the forensic procedures, the D.C. Circuit finds that, first, they "are undoubtably 'techniques' or 'procedures' used for 'law enforcement investigations.'"  Second, the  D.C. Circuit concludes that the FBI's explanations that the release of the information "would risk circumvention of the law by individuals who seek to utilize computers in violations of laws" and also risk "'exposing computer forensic vulnerabilities to potential criminals'" "satisfies the Exemption 7(E) standard."  As to the ChoicePoint reports, the D.C. Circuit finds persuasive the FBI's assertion that "'the manner in which the data is searched, organized and reported to the FBI is an internal technique, not known to the public'" as well as it explanation as to "how the data could help criminals circumvent the law," concluding that these descriptions "suffice[ ] here to justify invocation of Exemption 7(E)."  

• Adequacy of search/Exemption 7(C):  The D.C. Circuit rejects plaintiff's contention that "the FBI's search for responsive documents was inadequate because the Bureau did not search its databases using the names of the individuals he had specifically mentioned in his request."  To the contrary, the D.C. Circuit concludes that "[b]ecause a search for records 'pertaining to' specific individuals . . . would have added only information that we have concluded is protected under Exemption 7(C), it follows that the FBI was correct in declining to search for such documents." 

2.Von Grabe v. DHS, No. 10-15002, 2011 WL 2565246 (11th Cir. June 29, 2011) (per curiam)

Re:  Request for notice informing plaintiff that DHS approved his I-130 petition

Holding:  Affirming the district court's decision that plaintiff was not entitled to litigation costs

• Litigation costs:  The Eleventh Circuit affirms the decision of the district court that plaintiff "was not entitled to recover his costs because he had not substantially prevailed in his lawsuit."  The Eleventh Circuit notes that plaintiff "failed to contact the proper FOIA office [as required by the agency's regulations] with his request; [and] moreover, DHS had never refused to proved the requested document." 

3.Roth v. DOJ, 642 F.3d 1161 (D.C. Cir. 2011) (Tatel, J.)

Re:  Requests for records that might corroborate plaintiff's claim that four other men actually committed the quadruple homicide for which he was convicted; at issue are documents reviewed in camera by the district court and the D.C. Circuit for which the FBI claimed Exemption 6, 7(C) and 7(D) and plaintiff's request for information pertaining to three named individuals who he accuses of committing the murders

Holding:  Affirming, in part, the district court's decision that the FBI properly withheld certain information pursuant to Exemptions 7(C) and 7(D); and reversing, in part, the district court's approval of the FBI's Glomar response and certain information withheld pursuant to Exemption 7(D); and remanding for further proceedings

• Standard of review:  The D.C. Circuit reviews de novo the district court's summary judgment decision.

• Exemption 7/threshold:  Due to the nature of plaintiff's request, the D.C. Circuit finds that "the FBI has satisfied its threshold burden of showing that all documents responsive to [plaintiff's] requests, including any that might relate to [the three men that he has accused of committing the murders], were compiled for a law enforcement purpose." 

• Exemption 7(C)/Glomar:  At the outset, the D.C. Circuit rejects plaintiff's arguments that "the privacy interests implicated by his FOIA requests are attenuated for two reasons: (1) more than a quarter century has passed since the 1983 murders, and (2) since [the subjects of the targeted request] have significant criminal records, they would likely suffer less embarrassment or reputational harm from being associated with the FBI's investigation of the murders than would ordinary, law-abiding citizens."  As to plaintiff's first argument, the D.C. Circuit finds that "if, as [it] held in Shrecker v. Department of Justice, . . . the passage of approximately a half century did not 'materially diminish' individuals' privacy interests in not being associated with McCarthy-era investigations, then certainly individuals continue to have a significant interest in not being associated with an investigation into a brutal quadruple homicide committed less than thirty years ago."  In addition, the D.C. Circuit notes that plaintiff's second argument "runs contrary to" the Supreme Court's holding in Reporter's Committee that "even convicted criminals have a substantial privacy interest in their 'rap sheets.'"  Accordingly, the D.C. Circuit recognizes that the subjects of the request maintain "substantial privacy interests protected by Exemption 7(C)."

The D.C. Circuit then examines the two public interests identified by plaintiff, namely, that disclosure will: (1) "advance the public's interest in knowing whether the federal government complied with its Brady obligation to disclose material, exculpatory information to [plaintiff's] trial counsel" in connection with his state criminal trial, and (2) "further the public's interest in knowing whether the FBI is withholding information that could corroborate a death-row inmate's [i.e., plaintiff's] claim of innocence."  At the outset, the D.C. Circuit draws a distinction between these two stated interests, finding that "the public's interest in knowing whether the federal government complied with its Brady obligations at the time of [plaintiff's] trial is narrower than and does not fully encompass the public's more general interest in knowing whether the FBI is withholding information that could corroborate [his] claim of innocence."  Moreover, the D.C. Circuit further notes that it has "no doubt that the second non-Brady-related public interest identified by [plaintiff] is substantial" and finds that "[t]he fact that [he] has been sentenced to the ultimate punishment strengthens the public's interest in knowing whether the FBI's files contain information that could corroborate his claim of innocence."

As to the FBI's invocation of the Glomar response in connection with plaintiff's targeted request for information pertaining to three specific individuals, the D.C. Circuit notes that "[w]here, as here, the asserted public interest is the revealing of government misconduct, the Supreme Court's decision in . . .  Favish requires that the FOIA requester 'establish more than a bare suspicion' of misconduct."  With regard to plaintiff's Brady-related public interest, the D.C. Circuit finds that "given the Fifth Circuit's decision affirming the denial of [plaintiff's] habeas petition," which reviewed and discounted "the very FBI disclosures [plaintiff] contends constituted Brady material," his argument "falters at the Favish threshold."  With regard to the public interest premised on plaintiff's claims of innocence, the D.C. Circuit concludes that plaintiff satisfied the Favish standard by demonstrating that "a reasonable person could believe . . . (1) that the Oklahoma drug dealers [who were the subjects of plaintiff's request] were the real killers, and (2) that the FBI is withholding information that could corroborate that theory."  The D.C. Circuit finds that statements made by two witnesses implicating the drug dealers in the murders "might well cause a reasonable person to doubt [plaintiff's] guilt."  Additionally, the D.C. Circuit finds that the fact that the FBI withheld certain information favorable to plaintiff's claim of innocence in connection with his FOIA request "until 2001, approximately seventeen years after [his] trial, 'would warrant a belief by a reasonable person' that the FBI 'might' have other potentially exculpatory information in its files, possibly including information regarding [the three named subjects of the request]."  Balancing the competing privacy and public interests, the court concludes that "the balance tips decidedly in favor of disclosing whether the FBI's files contain information linking [the three subjects] to the FBI's investigation of the killings."  Accordingly, the D.C. Circuit reverses the district court's decision as to the FBI's assertion of the Glomar response and remands for further proceedings, "emphasiz[ing] that the FBI need not disclose whether it has information about the three men that is unrelated to its investigation into the 1983 murders."  Moreover, the D.C. Circuit comments that the FBI "must either produce any records it has linking [the three individuals] to its investigation into the four murders, or it must follow its normal practice in FOIA cases of identifying records it has withheld and stating its reasons for doing so."   

• Exemption 7(C):  With respect to documents reviewed in camera containing redactions under Exemption 7(C), the D.C. Circuit finds that plaintiff's Brady-related public interest is not compelling.  First, the D.C. Circuit "highly doubts that any of the information withheld under Exemption 7(C) qualifies as Brady material" and, second, the court concludes "the privacy interest of the individuals named in the documents outweigh any public interest in disclosure." "Although the public might well have a significant interest in knowing whether the federal government engaged in blatant Brady violations in a capital case, [the D.C. Circuit] is confident that none of the documents [it has] reviewed in camera reveals any such egregious government misconduct."  Likewise, the D.C. Circuit finds that its "in camera review also revealed no information withheld under Exemption 7(C) that would substantially corroborate [plaintiff's] claim that [the four named individuals] were the true killers."

• Exemption 7(D):  The D.C. Circuit concludes that, for the most part, the FBI properly asserted Exemption 7(D) to protect "local law enforcement agencies; informants who have been assigned confidential source symbol numbers; third parties without source symbol numbers who nonetheless provided information under an express assurance of confidentiality; and third parties who provided information under an implied assurance of confidentiality."  Here, the D.C. Circuit finds that "the FBI has generally struck an appropriate balance, publicly explaining to the extent that it can why it has concluded that certain sources provided information under an express or implied assurance of confidentiality and then relying on in camera judicial review to confirm its conclusions."  However, the D.C. Circuit identifies "two instances in which the FBI's stated explanation for redacting information under Exemption 7(D) fails to correspond to the information actually contained in the documents."  Because the FBI also relied on Exemptions 6 and 7(C) to withhold that same information, the D.C. Circuit orders the district court on remand to "first determine which portions of the two paragraphs fall within Exemptions 6 and 7(C) and then order the FBI to produce all segregable, non-exempt information." 

4.  Cent. Platte Nat. Res. Dist. v. USDA, 643 F.3d 1142 (8th Cir. 2011) (Murphy, J.)

Re:  Request for Geospatial Information System (GIS) data related to farmland in eleven Nebraska counties

Holding:  Affirming the district court's ruling which granted summary judgment to the USDA on the basis that it properly withheld the requested geospatial data pursuant to Exemption 3 and dismissed plaintiff's Administrative Procedure Act claim

• Standard of review:  The Eighth Circuit "review[s] de novo a district court's grant of summary judgment, viewing all facts and making all reasonable inferences in the light most favorable to the nonmoving party." 

• Exemption 3:  The Eighth Circuit concludes that the district court properly determined that "USDA was not required to disclose the requested GIS data."  At the outset, the Eighth Circuit notes that the limited course of de novo review is appropriate "where a withholding statute has given an agency discretion to disclose information that would otherwise be withheld, as opposed to the discretion to withhold data that would otherwise be available."  Here, the Eighth Circuit finds that "[t]he district court first properly determined, after de novo review, that the 2008 Farm Bill[, 7 U.S.C. § 8791(b)(2)(B),] is a withholding statute for the purposes of FOIA exemption 3."  Moreover, "[t]he parties agree that the 2008 Farm Bill is a withholding statute within the meaning of FOIA exemption 3 and that the requested data fell within it."  The Eighth Circuit comments that "[t]he district court's de novo review then properly ended" and finds that its "limited de novo review was appropriate here because there was no dispute that the 2008 Farm Bill qualified for FOIA exemption 3 status or that the GIS data fell within the data."

• Litigation considerations/Administrative Procedure Act (APA) claim:  The Eighth Circuit holds that the district court properly dismissed plaintiff's APA claim "seek[ing] declaratory judgment and a court order requiring the production of documents under both its APA claim and its FOIA claim."  The Eighth Circuit finds that FOIA "provides [plaintiff] with an 'adequate remedy in a court'" and notes that "Congress did not mean for the APA's review process to duplicate existing review mechanisms."  "Such a duplication would result if both [plaintiff's] APA and FOIA claims proceeded simultaneously because the district court would twice determine whether the agency should be required to disclose the same data."

District Courts

1. Marciano v. Shulman, No. 09-1499, 2011 U.S. Dist. LEXIS 71065 (D.D.C. July 1, 2011) (Kennedy, J.)

Re:  Request for tax returns

Holding:  Concluding the plaintiff failed to exhaust his administrative remedies

• Exhaustion of administrative remedies:  At the outset, the court notes that plaintiff contended that "this Court should construe his claim under § 6103 as 'an effective . . . request' under the [FOIA]."  However, the court finds "[i]t is undisputed that [plaintiff] has failed to exhaust his administrative remedies in this case."  Although the IRS's reply to plaintiff's request for his tax returns "reads very much like a denial," the court finds that his "request, if properly made, was effectively denied, and that he was thus required to exhaust his administrative remedies, which he failed to do."  As such, the court lacks jurisdiction to hear plaintiff's FOIA claim. 

2.  Cuban v. SEC, No. 09-996, 2011 U.S. Dist LEXIS 71064 (D.D.C. July 1, 2011) (Walton, J.)

Re:  Request for twenty categories of records pertaining to plaintiff, individuals, businesses and potential SEC investigations

Holding:  Granting, in part, defendant's motion for reconsideration with respect to the adequacy of the SEC’s search for a portion of the request and its assertion of Exemptions 3, 5 and 7(C) to withhold certain information; to the extent defendant's motion is denied, the court requires the SEC to provide additional information regarding searches and the application of exemptions

• Adequacy of search:  The court finds that the SEC's supplemental declarations demonstrate that it has now conducted an adequate search for the portion of the request asking for "information concerning SEC personnel who traded in Copernic, Inc. securities."  The court notes that the SEC's submissions now "provide the Court with the requested description of the [responsive] forms, how the forms are maintained, and why the forms cannot feasibly or reasonably be searched further."  Burdensome search: With respect to multiple responsive forms that could only be retrieved manually, the court finds that "the electronic search of the Form 681s, which report all securities transactions by SEC employees since 2004, adequately assesses the trading history sought by the plaintiff in his FOIA request because agencies are only required to 'conduct a good faith, reasonable search of those systems of records likely to possess the requested information" and "additional searches would 'impose an unreasonable burden on the agency.'"

With regard to the SEC's supplemental affidavit addressing a search for records pertaining to the misconduct of employees during the course of investigations, the court finds that "the SEC has again fail[ed] to provide a 'reasonably detailed affidavit, setting forth the search terms and the type of search to be performed, and averring that all files likely to contain responsive materials . . . were searched.'" 

• Exemption 5 (deliberative process, attorney work product & attorney client privileges): With respect to certain documents withheld pursuant to the deliberative process privilege, the court concludes that the SEC's revised Vaughn Index "does not provide much insight into the predecisional deliberations asserted" and the declarations "speak only generally about the documents and the asserted deliberative process involved, rather than addressing the documents individually and explaining how they furthered deliberation on a particular legal or policy matter by making a recommendation or expressing an opinion."  Further, "the declaration provides no specifics regarding the disciplinary discussions referenced in the documents, and without something more, the Court cannot determine whether the defendant is correct to withhold these documents pursuant to the deliberative process privilege."  However, the court concludes that the SEC has now "met its burden" under Exemption 5 with regard to four documents, consisting of email chains and a draft memorandum, for which the agency provided additional detail as to the deliberative nature of the records.  

The court also concludes that the SEC has justified its assertion of the attorney work product privilege for certain documents because "[t]he Court's previously expressed concern regarding the application of Exemption 5 and the objective reasonableness of the defendant's belief that litigation was a real possibility . . . is now allayed by as it is clear that such concerns were indeed reasonable."  However, the court finds that other submissions by the SEC "do[ ] not provide any more detail supporting the applicability of the work-product privilege" for five other documents.

In terms of the attorney client privilege, the court finds that the SEC's supplemental "declarations 'demonstrate that confidentiality was expected in the handling of these communications and that [the SEC] was reasonably careful to keep this confidential information protected from general disclosure.'"  As such, the court finds that "[t]he SEC has therefore met its burden to justify withholding documents it has identified based on the Attorney-Client privilege."

• Exemption 6:  The court concludes that the SEC "has not presented sufficient new facts to warrant reconsideration of the Court's prior decision that the defendant has not satisfied its burden for withholding the subject documents in their entirety under Exemption 6" where the supplemental declaration is "devoid of any specific reasons why the names in the documents and other identifying information cannot be redacted to adequately protect the  privacy interest about which the defendant is concerned."  Additionally, the court finds that "this new information fails to address the Court's finding that the 'public interest favors disclosure of some parts of the records' or an answer as to why partial redaction is inadequate." 

• Exemption 7(C):  As a preliminary matter, the court "assumes that the plaintiff is not challenging" redactions made pursuant to Exemption 7(C) in three documents because these withholdings are not addressed in plaintiff's opposition.  With respect to the remaining documents that were withheld in full, the court finds that the SEC still fails to provide sufficient information to demonstrate why redaction would be insufficient to protect the identities of individuals named in the records.  The court notes that "[a]lthough in camera review is certainly not the Court's preferred method of handling FOIA cases, [it] remind[s] defendant that such review is available if, as defendant contends, it cannot provide any further explanation without disclosing protected information." 

• Exemption 3:  Although the SEC has invoked Exemption 3 as a basis for non-disclosure for the first time in its motion for reconsideration, the court ultimately concludes that defendant has not waived its ability to assert the exemption at this stage, noting that "[t]he proceedings in this case are not yet complete" and plaintiff "had an opportunity to respond" to this newly raised argument.  The court then holds that the SEC properly withheld two records that "were created by a financial institution and contain either a report or a record of reports" under Exemption 3 in conjunction with the Bank Secrecy Act, 31 U.S.C. § 5319, which "explicitly exempts suspicious activity reports from disclosure under the FOIA." 

3. Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin, Mag.)

Re:  Requests for records regarding plaintiffs' son's prison transfer and the incident that led to his shooting death in federal prison

Holding:  Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F)

• Adequacy of search:  With regard to plaintiffs' request for records concerning the prison riot, the court finds that "BOP's statements fall far short of the legal requirements for establishing the adequacy of its records search" where its "declaration states only that the BOP's regional counsel coordinated a search for responsive records with a Bureau Field Office and that steps were taken to make sure to centralize all relevant Bureau records pertaining to the April 20, 2008 riot."  The court notes that "[t]hese conclusory statements contain no detail and do not establish the scope or method of the search."

• Exemption 2:  In light of the Supreme Court's recent decision in Milner, the court finds that Exemption 2 is inapplicable because the withheld information "[b]y no stretch of the imagination . . . relate[s] to 'personnel rules and practices' as that term is most naturally understood."  The records instead "concern inmate discipline issues, treatment of inmates and post-incident summaries of actions taken during a prison riot, not the workplace rules governing prison employees or the treatment of prison employees." 

• Exemption 5 (attorney work-product and deliberative process privileges):  The court concludes that the attorney work-product privilege is not applicable to the portions of a document containing summaries of the riot and an internal committee's assessment of, and recommendations stemming from, the incident.  Rather, the court finds that "[a]lthough the General Counsel may have requested an investigation into the riot, the record indicates that the withheld portions of [a particular] document [ ] contain the Board of Inquiry committee's summary of the staff members recollections and response to the riot – materials which cannot fall under the umbrella of an attorney's mental impressions, conclusions or opinions, or legal theories concerning litigation."  Rather, the court concludes that "this material is merely a summary of the facts, to which the privilege does not apply."  

However, the court concludes that this material is covered by the deliberative process privilege, finding that "[t]he committee's assessment of the prison atmosphere and resulting findings and recommendations is exactly the process Exemption 5 seeks to protect [from] disclosure."  Here, the court notes that "this portion of the document was prepared before the committee made its final recommendation" and its disclosure "has the potential to chill frank discussions in the BOP's decision making process and to diminish the deliberative process privilege." 

• Exemption 6/threshold:  The court finds that BOP's assertion of Exemption 6 to protect the names and identifying information of staff, inmates, and members of the Board of Inquiry is not appropriate.  Interpreting the threshold narrowly, the court finds that the withheld records and video do not qualify as "'similar files'" within the meaning of Exemption 6.  Moreover, the court comments that "[a]lthough the supporting declaration asserts that some of the information withheld under Exemption 6 is 'clearly personal,' there is nothing beyond this conclusory statement that supports a finding that release of the information could reasonably be expected to constitute an invasion of personal privacy."  However, the court finds that "BOP properly withheld information regarding the names and medical conditions and/or treatment of prisoners involved in the riot" pursuant to Exemption 6.

• Exemption 7/threshold:  Applying the Pratt test set forth by the D.C. Circuit for determining whether documents are compiled for a law enforcement purpose, the court finds that a document "compiled by a criminal investigator during the criminal investigation of [plaintiffs' son's] assault on other inmates" meets the Exemption 7 threshold.  However, the court determines that "BOP has not met its burden" with respect to a prison transfer document, a mortality review of plaintiffs' son, a BOP inquiry into the riot, and surveillance video.  For example, the court finds "[a]lthough the BOP's supporting declaration identifies particular incidents – [plaintiffs' son's] transfer, his behavior issues, and the riot respectively, it does not connect these incidents or any individual involved to a potential violation of law" and instead, appears "largely related to [BOP's] administrative functions."

• Exemption 7(C):  The court notes that "even assuming arguendo that the documents were compiled for law enforcement purposes, [it] cannot find that the privacy interests outweigh the public interest" because "[t]he public has a strong interest in government investigations, especially an investigation like the one at issue here where a prison inmate was shot by a prison employee."  As to the mortality review and the surveillance video related to plaintiffs' son's death, the court comments that "the countervailing privacy interest is that of 'the family of the deceased]'" and that "[t]he privacy interests of public officials, like prison guards or officials are somewhat reduced."

• Exemption 7(E):  As discussed in connection with Exemption 7(C), the court finds that BOP has not established that a video and portions of a document satisfy the threshold of Exemption 7.  However, the court notes that "[e]ven if BOP had established a law enforcement purpose behind the compilation of the BOP review and report on the April 2008 riot and the prison surveillance tape which shows [plaintiffs' son] being shot, it cannot establish that the release of the video or the withheld portions of [the] document [ ] could reasonably be expected to risk circumvention of the law."  Further, the court comments that "the tactical maneuvers used during the riot as well as the events recorded on the video are no secret to prison inmates" and finds that BOP has not supported its assertion that the "utility of the surveillance cameras would be compromised if inmates knew the location of the cameras."  However, noting that plaintiffs do not object to redacting the location of a weapons storage area, the court permits BOP to redact that information.

• Exemption 7(F):  The court concludes that BOP improperly asserted Exemption 7(F) to withhold staff names, finding that "it is hard to see how releasing their names now could jeopardize their safety" given that "all the inmates in the yard during the disturbance saw the BOP staff who responded and the guards' identities would be discoverable in any civil litigation."    

• Administrative Procedure Act claim:  The court "declines to consider the [plaintiffs'] APA claim because FOIA itself provides them an adequate remedy." 

4. Kensington Res. & Recovery v. Dep't of Treasury, No. 10-3538, 2011 U.S. Dist. LEXIS 71041 (N.D. Ill. June 30, 2011) (Kendall, J.)

Re:  Request for records pertaining to individual holders of securities which matured during 2007

Holding:  Granting defendants' motion for summary judgment on the basis that the Bureau of Public Debt (BPD) was not required to create records that are not in existence and, in the alternative, the requested information is protected by Exemption 6

• Procedural/creation of records:  First, the court finds that "BPD does not maintain records that compile by year the matured, unredeemed bonds, with accompanying personal information about the bondholder" and, accordingly, "did not have in its possession 'records' of the kind [plaintiff] sought."  The court notes that "[t]he fact that the BPD had this information in its databases for individual bondholders, just not in the precise form that [plaintiff] wanted, does not make the request any more valid under the FOIA."  The court concludes that the FOIA does not impose a duty on BPD "to create a new search tool, use the results of that to manually find the relevant registration records, and consolidate that information into a chart or other document for [plaintiff]."

• Exemption 6:  In the alternative, the court determines that Exemption 6 also applies to the requested information.  As a threshold matter, the court finds that "[b]ecause the FOIA request encompasses information leading to the identification of individual bondholders, it constitutes a 'similar file' under Exemption 6."  In terms of the privacy interests, the court determines that "[t]he disclosure of specific information on the registration records, such as the name, address, or bond serial number would publicize the financial affairs of the individual bondholders."  Moreover, disclosure "would also expose the bondholders to unsolicited attempts by [plaintiff] and other companies to collect the unredeemed bonds."  Additionally, the court finds that the agency's regulation governing individuals purchasing securities in which "BPD pledged confidentiality and protection under Exemption 6" provided the current and potential bondholders with an expectation that their information would be kept private.  The court rejects the public interests set forth by plaintiff that "disclosure of the requested registration records would serve the public interest by exposing the BPD's outdated record-keeping system and the distribution of the unclaimed monies would lower the national debt."  To the contrary, the court finds that "the release of the registration records of individual bondholders would not elucidate what the BPD 'is up to'; instead, the records would impermissibly expose private citizens' financial information." 

5.Crummey v. SSA, No. 10-1560, 2011 WL 2580291 (D.D.C. June 30, 2011) (Kollar-Kotelly, J.)

Re:  Request for plaintiff's social security records, prior FOIA requests and the agency's responses, and various documents which plaintiff authored and attempted to introduce into the SSA's systems of records

Holding:  Granting SSA's motion for summary judgment based on the adequacy of its search

• Adequacy of search:  The court finds that "the SSA has come forward with sufficient evidence showing that it has produced all responsive records in its possession, custody, or control located after a reasonably diligent search" and that plaintiff's "allegations that some of the records are missing simply do not preclude a finding that the SSA has discharged its statutory obligations in this case."  As such, the court grants SSA's motion for summary judgment.  

• Procedural/quality of documents produced:  The court concludes that plaintiff's "contention that the SSA provided him with 'poor quality photocopies,' . . . does not suffice to preclude summary judgment in the SSA's favor."  For one, the court finds that "the district court is rarely the proper 'forum for an . . . initial assertion of non-compliance on the grounds that [requested] documents are illegible."  Secondly, SSA has asserted that it provided plaintiff with "'true and complete copies'" of the records in its possession and plaintiff "has failed to come forward with anything beyond his own speculation and conclusory allegations that would suggest that the SSA produced anything other than the best available records in its possession, custody or control."  Lastly, the court notes that due to the age of the documents, their poor quality is "entirely unsurprising" and comments that "they are not illegible." 

6.  Mingo v. DOJ, No. 10-1673, 2011 WL 2559221 (D.D.C. June 29, 2011) (Howell, J.)

Re:  Request for records and video footage pertaining to an incident at a federal prison involving plaintiff

• Proper party defendant:  Noting that the issue as to whether components of an agency are proper party defendants for the purposes of the FOIA "is not settled in this Circuit," the court here "grant[s] the motion to dismiss BOP because DOJ is a co-defendant in this action, and Plaintiff has not contested this part of the Defendants' dispositive motion." 

• Exemption 7/threshold:  The court finds that the records at issue satisfy the threshold of Exemption 7 because they "were created in connection with the BOP's responsibility to 'protect[ ] inmates, staff, and the community,' . . . and therefore relate to the enforcement of federal law." 

• Exemption 7(C)/segregability:  As an initial matter, the court notes the plaintiff only contests BOP's decision to withhold video disks in their entirety pursuant to Exemption 7(C), but finds that it nevertheless is obligated to conduct a segregability finding with respect to both the disks and the eighteen pages withheld in full.  The court concludes that BOP properly asserted Exemption 7(C) to withhold "medical records of other inmates and staff who were involved in the altercation, none of whom has consented to the release of such information."  Additionally, the court notes that "Plaintiff does not suggest that an overriding public interest compels the release of those pages."  In terms of the withheld video disks containing "different camera views of the altercation and the images of 'at least 50 different inmates,'" the court finds that BOP properly withheld this material where it does not have the technical capability to redact the disks and "Plaintiff has not proffered contrary evidence or any evidence of agency bad faith" or presented "any claim of an overriding public interest." 

7. Terris, Pravlik & Millian, LLP v. Cntrs. for Medicare & Medicaid Servs., No. 10-951, 2011 WL 2579739 (D.D.C. June 29, 2011) (Facciola, Mag.)

Re:  Request for eight categories of records related to plaintiff's monitoring of a remedial settlement order in connection with the case, Salazar v. District of Columbia

Holding: Denying plaintiff's request for attorney's fees

• Attorney fees/eligibility:  The court denies plaintiff's request for attorney's fees, finding that plaintiff is not eligible for such an award because there is no evidence that defendants' changed their position as a result of plaintiff's lawsuit.  The court finds that "[i]n this case there is positive proof that the filing of the lawsuit did not expedite [the Centers for Medicare and Medicaid Services' (CMS's)] processing of [plaintiff's] 2005 request," but, rather, "[i]t was the [CMS's FOIA Backlog Reduction] Task Force's actions in reducing the backlog that led to the disclosure of the documents to [plaintiff] that had been collected several years before, and that disclosure had literally nothing to do with the filing of this lawsuit."  Entitlement:  The court concludes that "even if [plaintiff] were eligible for fees, it has not established that the court should exercise its discretion and award the fees" based on the entitlement factors for awarding attorney's fees under the FOIA.  The court finds that although "there is genuine public benefit in the prosecution of [the underlying lawsuit for which plaintiff sought the records], there is none in the disclosures made here."  The court observes that "[t]here is nothing about the information that would advance public dialogue about a political, social, or economic issue in which there is likely to be community interest or concern."    

8. Kendrick v. Wayne County, No. 10-1560, 2011 U.S. Dist. LEXIS 70026 (E.D. Mich. June 29, 2011) (Roberts, J.)

Holding:  Dismissing plaintiff's FOIA claim on the basis that the court lacks jurisdiction because the agency conducted a good faith search for the requested documents, no records were identified as a result; therefore the agency did not improperly withhold them.

9. Surgick v. Cirella, No. 09-3807, 2011 WL 2600650 (D.N.J. June 29, 2011) (Hillman, J.)

Re:  Request for records pertaining to plaintiffs' deceased father and his estate, including records related to a private corporation in which their father alleged had ownership, control or an interest

Holding:  Denying IRS's motion to dismiss without prejudice

• Exemption 3/segregability:  The court finds that the IRS properly withheld tax records related to a private corporation pursuant Section 6103(a) of the Internal Revenue Code, "which generally prohibits the dissemination of tax return information by a federal agency."  The court finds that because plaintiffs failed to provide any authorization from the company, "the IRS is prohibited from releasing [the corporation's] tax information."  However, the court also concludes that because "[i]t is unclear whether segregation could be utilized with respect to those documents requested by Plaintiffs," "before the Court may dismiss Plaintiffs' claims entirely, the IRS should at least address the applicability and plausibility of segregation in this matter in a subsequent brief." 

• Motion to dismiss/adequacy of search: Noting that it appears that plaintiffs have exhausted their administrative remedies with respect to their request for records related to their deceased father and his estate and that the adequacy of the IRS's search remains at issue, the court denies the defendant's motion to dismiss and "encourage[s] the IRS to files its motion as one for summary judgment."  The court notes that "[b]y doing so, the Court may properly consider the IRS's search for Plaintiffs' requested information, and may resolve any questions raised by Plaintiffs' accusations concerning improper retention and non-disclosure of documents."

10.  Brown v. FBI, No. 10-1292, 2011 WL 2516420 (D.D.C. June 24, 2011) (Lamberth, J.)

Holding:  Denying as futile plaintiff's motion for leave to amend for all FOIA claims, except one brought against the Tax Division of DOJ; denying plaintiff's motion for summary judgment on the basis that he has not demonstrated that he exhausted his administrative remedies; and denying FBI's motion to dismiss

• Litigation considerations/leave to amend complaint:  The court denies as futile plaintiff's motion for leave to amend his complaint to add new FOIA claims, except for his request to the Tax Division of DOJ.  The court finds that plaintiff "has not placed information into the record showing that [any of the other] agenc[ies] denied his request or that he appealed their denial, and he has therefore failed to allege administrative exhaustion."  However, with respect to his claim against the DOJ's Tax Division, the court notes that plaintiff, in his reply, alleged that he filed an administrative appeal of the agency's denial.  The court finds that plaintiff’s claims "would survive a motion to dismiss" and, accordingly, grants him leave to amend his complaint, but also "urges plaintiff to submit evidence clearly demonstrating exhaustion of his administrative remedies should defendant file for summary judgment." 

• Exhaustion of administrative remedies:  The court dismisses, with leave to amend, plaintiff's FOIA claim against BOP where he failed to allege that he exhausted his administrative remedies and "his complaint merely states that '[t]he agency has refused to provide the records' he requested."  The court finds that "[t]he facts here do not affirmatively preclude relief – the issue is that plaintiff has not alleged enough, not that any undisputed facts prevent him from succeeding on the merits – and [he] would have an actionable claim if he would explicitly allege administrative exhaustion by pointing to specific documents." 

• Motion for summary judgment:  The court denies plaintiff's motion for summary judgment with respect to his FOIA claim against the FBI, because he "has failed to point to any documents or any part of the record to show what the exemptions the FBI claimed were, let alone that those claims were erroneous." 

• Proper party defendant/motion to dismiss:  The court denies the FBI's motion to dismiss based on its assertion that it is not a proper party to a FOIA action.  The court comments that "[n]o court has found that FOIA does not apply to the FBI, . . . and the fact that the FBI 'has litigated numerous FOIA cases in its own name before the Supreme Court, this court, and other circuit courts, with the DOJ as one of its components appearing as counsel,' . . . also suggests that substitution would be an unnecessary distraction."  Accordingly, the court orders the FBI "to produce a Vaughn index" for the documents requested by plaintiff.

WEEK OF JULY 4

District Courts

1.Elec. Priv. Info. Ctr. v. NSA, No. 10-196, 2011 WL 2650206 (D.D.C. July 7, 2011) (Howell, J.)

Re:  Request for information related to the Comprehensive National Cybersecurity Initiative, a multi-agency initiative to ensure the security of the nation's online infrastructure; at issue is the disposition of a record referred by NSA to the National Security Council (NSC)

Holding:  Granting defendants' partial motion to dismiss NSC as defendant and plaintiff's Administrative Procedure Act claim

• Proper party defendant:  The court grants defendants' partial motion to dismiss the NSC from this action, concluding that the D.C. Circuit's holding in Armstrong v. Executive Office of the President, that the "'NSC is not an agency within the meaning of the FOIA,'" "is binding upon this Court."  The court notes that in Armstrong the D.C. Circuit "found that the NSC has a firm structure, making it similar to an agency, but ultimately concluded that because the NSC operates in such close proximity to the President – who chairs it – and does not exercise substantial independent authority, it is 'more like the President's immediate personal staff.'"  Accordingly, "[s]ince the D.C. Circuit squarely held in Armstrong that the NSC is not an agency subject to FOIA, the NSC cannot be compelled to respond to a FOIA request."  The court rejects plaintiff's argument that because "the NSA 'treat[ed] the NSC as if it were an agency subject to the FOIA'" by referring the FOIA request to it, "this Court should find the NSC subject to FOIA in this case."  To the contrary, the court concludes that "[a]n entity that is not subject to FOIA, cannot unilaterally be made subject to the statute by any action of an agency, including referral of a FOIA request," noting that "[i]t would defy logic and well-settled legal norms if an agency could unilaterally expand the scope of FOIA by referring requests to entities beyond FOIA's ambit." 

As to plaintiff's argument that "NSA should be held to its representation 'that the NSC would review the request and provide a direct response,'" the court finds that "[t]his argument essentially rests on an equitable estoppel theory," but, except in certain instances which are not in evidence here, "equitable estoppel is not available against the federal government."  Lastly, the court dismisses plaintiff's contention that the NSC should be found subject to the FOIA "in order to avoid its FOIA request from being 'toss[ed] . . . down a procedural black hole, with neither [the NSA nor the NSC being] required to disclose an agency record that they both possess."  Instead, the court maintains that "[d]ismissing the claim against the NSC . . . does not leave the plaintiff's request stuck in limbo . . . because the plaintiff can still pursue its claim against the NSA for wrongfully withholding an agency record in its possession."  The court further notes that "[w]hile the NSC is not subject to FOIA requests, the NSA's referral of the FOIA request to the NSC does not relieve the NSA of its continuing obligation to respond to the request" and "[i]n considering the plaintiff's claims against the NSA, which the defendants have not moved to dismiss, this Court will have an opportunity to evaluate the propriety of the NSA's handling of all documents responsive to the FOIA request, including the document that originated with the NSC." 

• Administrative Procedure Act (APA) claim:  The court dismisses plaintiff's APA claim, which alleged that NSA violated the FOIA by referring to the documents to NSC and failing "to observe procedures required by law, including the procedures set forth in NSA regulations."  The court concludes that "plaintiff is requesting the same relief for its APA claim that it is requesting for its FOIA claims – a court order requiring production of all responsive agency records and requiring the NSA to file a Vaughn Index describing and justifying all claimed exemptions."  As such, "adequate relief is available to the plaintiff under FOIA."

WEEK OF JULY 11

Courts of Appeal

1. Mattson v. FBI, No. 10-16112, 2011 WL 2678878 (9th Cir. July 11, 2011) (unpublished disposition)

Re:  Appeal of district court's denial of plaintiff's motion for attorney fees

Holding:  Affirming district court's determination that plaintiff was not eligible for attorney fees

• Attorney fees:  The Ninth Circuit holds that the district court properly determined that plaintiff was not eligible for attorney's fees, because he failed to demonstrate that his lawsuit "brought about 'a voluntary or unilateral change in position by the agency.'"  The Ninth Circuit finds that plaintiff "did not establish that the Government changed its position because, for one thing, [he] never proved the Government ever took the position that it was refusing to produce [the responsive] documents" that were located in FBI field offices or as a result of a cross-reference search. 

District Courts

1. Chaplin v. Stewart, No. 11-518, 2011 WL 2727871 (D.D.C. July 14, 2011) (Huvelle, J.)

Re:  Request for records pertaining to plaintiff's sentencing proceedings

Holding:  Granting defendant's motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies by paying assessed fees

• Exhaustion of administrative remedies/fees:  The court grants EOUSA's motion for summary judgment based on plaintiff's failure to pay assessed fees or to modify his request to reduce the costs associated with fulfilling his request.  The court notes that "[i]t is undisputed (1) that defendant complied with DOJ regulations by informing plaintiff about the fee requirements and suggesting ways to reduce his costs, and (2) that plaintiff has neither paid nor committed to paying the assessed fees."  Additionally, the court finds that plaintiff's argument "that he should not be required to pay the fee 'due to defendant's non-compliance and/or violations of the FOIA over the Past 4 1/2 years'" "lacks merit."  The court notes that "[t]he commencement of a civil action pursuant to the FOIA does not relieve a requester of his obligation to pay any assessed fees." 

2. Flaherty v. President of the United States, No. 10-124, 2011 WL 2715082 (D.D.C. July 13, 2011) (Walton, J.)

Re:  Requests for "government assessments" of plaintiff's tax records

Holding:  Granting motion to dismiss claims against all parties except IRS; and granting IRS's motion to dismiss for failure to state a claim upon which relief may be granted

• Proper party defendants:  The court dismisses claims brought against individuals because "they cannot be parties to a suit brought pursuant to the FOIA" and then substitutes the IRS as the sole defendant.

• Exhaustion of administrative remedies:  As an initial matter, the court notes that "when a FOIA defendant disputes that a FOIA plaintiff has fulfilled the exhaustion requirements, 'the matter is properly the subject of a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.'"  The court dismisses plaintiff's claims against the IRS for failure to exhaust his administrative remedies in connection with four different requests.  With respect to two requests, the court finds that "plaintiff failed to approve a projected fee associated with his first request as instructed by the IRS's reply letter and in accordance with the IRS's regulations" and "failed to properly file his second request by omitting proper identification."  Accordingly, the court holds that "[b]ecause the plaintiff's first and second requests did not comply with the IRS's published regulations, the plaintiff's FOIA claims based on these two requests fail the exhaustion requirement."  As to another request made by plaintiff, the court concludes that plaintiff failed to exhaust his administrative remedies where it was undisputed that he failed to timely file an administrative appeal as required by the agency's regulations.  Regarding his remaining request for which the plaintiff claimed constructive exhaustion, the court determines that "because the plaintiff did not file a lawsuit after the expiration of the twenty day statutory time period but before the IRS's response, the constructive exhaustion was cured and an administrative appeal had to be filed to satisfy the exhaustion requirement." 

3.  Judicial Watch, Inc. v. Dep't of Treasury, No. 09-1508, 2011 WL 2678930 (D.D.C. July 11, 2011) (Howell, J.)

Re:  Request for records pertaining to the Treasury's Troubled Asset Relief Program (TARP) and to Treasury's investments, through that program, in a Massachusetts bank

Holding:  Granting Treasury's motion for summary judgment except for three documents that contain reasonably segregable material that should have been released

• Exemption 5 (deliberative process privilege):  As a result of an in camera review and Treasury's submissions, the court concludes that, in large part, the defendants properly withheld internal memos and meeting minutes pursuant to the deliberative process privilege.  The court rejects plaintiff's contention that "the deliberative process privilege is qualified and can be overcome by a showing of need."  Rather, the court holds that "[w]hile the deliberative process privilege is generally a qualified privilege in civil litigation against the government, documents subject to qualified privileges for which a plaintiff must make a showing of need are not documents that would 'routinely be disclosed' in private litigation" and, accordingly, "are shielded from disclosure under Exemption 5."  The court further notes that "[c]ourts in this Circuit have consistently treated Exemption 5 as an unqualified privilege."  Segregability: In response to plaintiff's claim that Treasury failed to segregate factual material from materials for which it asserted the deliberative process privilege, the court finds that Treasury properly withheld three internal memoranda because "all reflect the authors' deliberative process in selecting factual material to be disclosed in the memoranda."  Additionally, the court observes that "Treasury undertook a careful document-by-document analysis to ensure that only exempt material was withheld or redacted from the document production."  Likewise, the court determines that portions of certain meeting minutes were properly withheld "[b]ecause releasing the portions of the minutes that summarize the meeting discussions would reveal the internal deliberative process of the [Office of Financial Stability (OFS)] Investment Committee."  However, upon conducting an in camera inspection, the court determines that "defendants improperly withheld reasonably segregable information in the minutes – namely, the headers at the top of each set of minutes that list the date and time of the meeting, the names of the OFS Investment Committee members present, and the names of observers."  The court finds that "[r]elease of these headers would not create [ ] indecipherable sentences; the headers are at the top of each page and are easily separable from the exempt portions of the minutes."  As such, the court concludes that these portions of the minutes must be disclosed.  

The court also finds that Treasury properly identified the decision-making processes underlying its decision to withhold certain internal emails strings, a memorandum, a recommendation, and an evaluation form.  With respect to emails containing analysis about a bank's application for TARP funding, and the timing for consideration of it, the court find that "[t]he deliberative nature of both of these documents is plain" because "[r]elasing an internal, pre-decisional analysis would defeat the purpose of the deliberative process privilege, which 'rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'"  Additionally, the court notes that "the D.C. Circuit recognized in Wolfe v. Dep't of Heath and Human Services, [that] information about the timing of the deliberative process is properly protected under the deliberative process privilege." 

As to an email string discussing how to handle a press inquiry, the court finds that, although the emails were exchanged after an agency decision as to whether to award TARP funding to the bank, they are covered by the deliberative process because they "reflect[ ] deliberations as to how to respond to a press inquiry regarding the agency's earlier decision to award TARP funding to [a bank]."  Similarly, the court concludes that emails concerning a meeting between Treasury officials and a minority bankers association, which "summarize information the defendant received from the FDIC" regarding the bank's eligibility for TARP funding were properly withheld because "[r]evealing these internal, pre-decisional deliberations would undermine the purpose of the deliberative process privilege."  Additionally, the court finds defendants sufficiently identified the deliberative process implicated by a memoranda containing summary information related to a bank applying for TARP funding.  The court also concludes that "both the FDIC recommendation and the [Office of the Comptroller of the Currency] evaluation represent inter-agency, pre-decisional communications regarding [a bank] and its TARP funding application." 

• Exemption 5 (attorney-client privilege):  The court finds that defendants properly redacted a portion of an email chain containing "'communications between Treasury Staff and Treasury Legal'" "'related to Treasury policy aimed at insuring the [Capital Purchase Program (CPP) (a TARP initiative)] application process is free from political influence'" pursuant to the attorney client privilege, as well as the deliberative process privilege.  The court dismisses plaintiff's arguments that the attorney client privilege is not applicable because some of the information relied on by Treasury was provided by the bank "indicat[ing] that the defendant has failed to show that the information was held in confidence between the parties" and "that information provided by [the bank] would not be 'facts communicated in confidence by a client to an attorney for purposes of legal representation.'"  To the contrary, the court finds that "[t]he request for advice at issue here occurred in response to a press inquiry and took place in the context of an 'internal discussion related to Treasury policy aimed at ensuring the CPP application process is free from political influence.'"  The court further determines that "[s]uch a request for legal advice concerns the agency's own actions and legal interests in connection with its handling of [the bank], and 'when the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselor, [Exemption 5] applies.'"  The court concludes that "[t]he agency staff sought legal advice 'based upon facts provided confidentially by Treasury to its attorney' and the communication 'has been held in confidence.'"  

• Exemption 4:  As a preliminary matter, the court notes that for the purposes of Exemption 4 "[b]anks and other financial institutions are considered 'persons.'"  Moreover, the information at issue was a required submission because "information provided to the government because it is required for participation in a voluntary government program is treated as a mandatory, as opposed to a voluntary, submission of information."  Additionally, because plaintiff failed to address it, the court treats as conceded the defendant's argument that certain financial information provided by the bank satisfies the impairment prong of the National Parks test, because if the information were disclosed "financial institutions would be reluctant to share such information with Treasury in the future, which could compromise the effectiveness of Treasury's TARP-based programs."  Consequently, the court rules that it "does not need to decide whether the defendant satisfied the second [competitive harm] prong of the National Parks test for determining confidentiality, because . . . the plaintiff conceded the defendant's arguments that the withheld materials satisfy the first prong."  

• Exemption 8:  Based on an in camera review and the agency's submissions, the court holds that defendant properly withheld certain "information obtained from [a bank's] federal regulator, the FDIC," pursuant to Exemption 8.  Contrary to plaintiff's assertions, the court finds that "Exemption 8 does not require the defendant to identify a specific report to which the information relates."  The court notes that "defendant's declarations [ ] establish that the FDIC obtained the information it relayed to the defendant through its monitoring of the condition of the financial institutions it regulates" and, as such, "defendant's withholdings were properly made pursuant to Exemption 8 even if no specific report was identified."  Moreover, the court finds that "Exemption 8's secondary purpose – to secure the relationship between banks and their supervising agencies – would also be harmed if the information [the bank at issue] disclosed to its regulator (the FDIC) were disclosed by the Treasury Department." 

4.  Ebling v. DOJ, No. 10-914, 2011 WL 2678935 (D.D.C. July 11, 2011) (Kollar-Kotelly, J.)

Re:  Requests for records pertaining to the criminal investigation and prosecution of plaintiff's nephew, for which the nephew provided his consent for disclosure

Holding:  Holding that the terms of a third party's plea agreement prohibiting the subject of the request from requesting records pertaining to his criminal case is not binding on plaintiff who is not a party to the agreement; ordering defendants to show cause as to why the court should not grant partial summary judgment to plaintiff on this issue; and granting, in part, DOJ's motion for summary judgment based on plaintiff's failure to exhaust administrative remedies with respect to one of her claims

• Third party waiver:  The court concludes that the FBI and EOUSA improperly refused to process plaintiff's requests based on the FOIA/Privacy Act waiver contained in her nephew's plea agreement, which bars her nephew or his representative from making FOIA requests for information pertaining to his criminal case.  For one, the court finds that even assuming that plaintiff is acting on her nephew's behalf "it is, at least for purposes of FOIA, irrelevant."  Rather, the court finds that "[u]nder the statute, [plaintiff's] identity is 'of no significance,' . . . and her rights are no different than those that might be asserted by any other person."  Moreover, she "has a statutory right to make a FOIA request, and that right exists independently of whatever right [her nephew] may have once had to do the same."  Second, the court finds that "[w]ithout some indication that the third party is bound by the terms of the plea agreement," it is "patently impermissible" for defendants to invoke the FOIA/PA waiver in her nephew's plea agreement against plaintiff.  The court notes that "[p]lea agreements are essentially contracts" and, as such, "cannot bind a non-party."  Furthermore, the court observes that "the question of whether [plaintiff] is acting as [her nephew's] 'representative' in pursuing her FOIA requests is, quite simply, irrelevant to this action."  Nevertheless, the court notes that "DOJ is not without a remedy" and finds that "[t]o the extent that it genuinely believes that [plaintiff] is acting as [her nephew's] 'representative,' it may seek to enforce the terms of the plea agreement against [her nephew] in a court of competent jurisdiction."  The court also notes that defendants' have "fallen woefully short of establishing" that plaintiff is acting as her nephew's representative in this matter.  In light of the fact that plaintiff has not yet moved for summary judgment, the court orders defendants to show cause "as to why the Court should not grant partial summary judgment in [plaintiff's] favor."  

• Exhaustion of administrative remedies:  The court holds that plaintiff failed to exhaust her administrative remedies with respect to a request submitted to the FBI.  First, the court finds that DOJ "introduced unrefuted evidence establishing that [it] has no record of ever receiving an appeal from [plaintiff] in connection with this particular request," noting that the agency "is entitled to a 'presumption of good faith.'"  The court dismisses plaintiff's contention that she faxed an administrative appeal to DOJ, finding that despite her submission of a fax confirmation page "there still is no basis for a reasonable fact-finder to conclude that what she sent was, in fact, a letter appealing [that particular request]."  Moreover, the court finds that plaintiff's failure to comply with DOJ's published regulations, which provide for mailing of appeals to a physical address, rather than receipt by fax, also provides a ground for failure to exhaust.

5.  Darui v. Dep't of State, No. 09-2093, 2011 WL 2678715 (D.D.C. July 11, 2011) (Jackson, J.)

Re:  Request for records pertaining to plaintiff; at issue are the three withheld documents which were reviewed by the court in camera

Holding:  Granting defendant's motion for summary judgment

• Exemption 5 (attorney work-product privilege):  The court holds the a series of emails "prepared by attorneys for DOJ and State," which "'were prepared in connection with a law enforcement proceeding'" are protected by the attorney work-product privilege.  The court finds that "[g]iven both the subject matter of the emails and the timing [i.e., two weeks before a criminal court proceeding], and in light of the Court's own review of the material, it is clear to the Court that the government attorneys were 'focusing upon specific events,' and a 'specific party,' thus 'hav[ing] litigation sufficiently "in mind'" for the documents to qualify as attorney-work product."  Additionally, the court notes that "[t]he attorneys from DOJ were representing the United States in the criminal case against the plaintiff, so the emails qualify as being prepared 'by or for another party or its representative (including the other party's attorney . . . )."

• Exemption 1:  The court concludes that the Department of State properly withheld two classified "diplomatic cables between the governments of the United States and Saudi Arabia" pursuant to Exemption 1.  The court finds that the State Department's declaration establishes that all of the terms of the Executive Order 13526 are met.  First, the court finds that declarant "is a proper classifying authority."  Second, the court finds that cables "are 'owned, produced by or for, or under . . . the control of the United States Government.'"  Third, the court concludes that the two documents at issue "meet the requirements of section 1.4 of the Executive Order," which "details seven categories of information that may be considered for classification."  Notably, the court finds that its review of the documents bears out the agency's statement that the documents "'concern U.S. foreign relations, specifically, correspondence with a foreign government on a matter regarded by that government as sensitive, namely, archival inviolability under the Vienna Convention on Diplomatic Relations.'" 

Lastly, the court holds that the agency established that disclosure of the records "'reasonably could be expected to result in damage to the national security.'"  Despite plaintiff's contention that the government "has failed to claim a reasonable degree of specificity" in demonstrating that the information was properly classified, the court finds that "'the text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.'"  Moreover, plaintiff's "'argument for declassification does not overcome the 'substantial weight' the court must accord 'to an agency's affidavit concerning the details of the classified status of the disputed record.'"  In response to plaintiff's contention that a prosecutor's "actions during [his] criminal proceedings undermine any deference to be accorded to the government's decision to withhold the documents," the court finds that a "single offhand remark [by the prosecutor concerning his opinion as to the sensitivity of the documents] is insufficient to overcome the substantial weight due to the [agency's] declaration."  The court also finds that "[t]he fact that plaintiff viewed Documents 2 and 3 during his criminal trial does not undermine the government's position under the circumstances in this case," because "[v]iewing documents under seal as a litigant is different than requesting the same documents as a member of the public under FOIA."  In addition, the court concludes that the fact that the documents were not classified at the time of plaintiff's criminal trial and were only subsequently classified in response to his FOIA request is of no consequence. 

• Waiver:  The court finds that, although plaintiff was able to demonstrate that two documents withheld pursuant to Exemption 1 met two elements of waiver, namely, that the information requested is as specific as that released in his criminal trial, and the information matches the information previously disclosed, he failed to establish that the documents were "'made public through an official and documented disclosure.'"  The court concludes that the records at issue "were placed under seal in [plaintiff's] criminal proceedings, and therefore, there has been no official, documented, public disclosure that could form the predicate for a waiver." 

7.  Nat'l Day Laborer Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.)

Re:  Request for records pertaining to Secure Communities, a federal immigration enforcement program

Holding:  Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney client privileges

• Exemptions 2 & 7(E):  As preliminary matter, the court notes that plaintiffs do not challenge defendants' claim of Exemptions 2 and 7(E) and, accordingly, "have waived any argument that the exemptions were improperly asserted."  As such, the court grants summary judgment to the defendants with respect to "their assertions of Exemption 7(E) throughout the production."  In consideration of the Supreme Court's decision in Milner, the court "also grant[s] summary judgment to defendants on their assertions of Exemption 2, where such reference is to what was formerly known as Low 2."  The court notes that documents for which only High 2 was asserted "will be addressed at a later date."

• Exemption 5 (deliberative process privilege):  With respect to documents which discuss ways of presenting Secure Communities policies to the public, the court finds that "[s]uch 'messaging' is no more than an explanation of an existing policy, which is not protected by the deliberative process privilege."  The court further comments that "[d]eliberations about how to present an already decided policy to the public, or documents designed to explain that policy to – or obscure it from – the public, including in draft form, are at the heart of what should be released under FOIA."  To the extent that the documents are marked as "drafts," the court maintains that "a draft is only privileged if it contains discussions that reflect the policy-making process," and not "if it reflects the personal opinions of a writer with respect to how to explain an existing agency policy or decision."  Noting that "[a] post-decisional document, draft or no, by definition cannot be 'predecisional,'" the court here "base[s] [its] decision [regarding the documents at issue] on the dates that clear and unambiguous statements of agency policy were made."  As such, the court holds that "any discussions of the voluntary nature of the [Secure Communities] program after January 27, 2010, when the agency publicly stated that it was voluntary, and any discussions of the mandatory nature of the program after March 2010, when there is evidence that ICE and the FBI discussed its mandatory nature with Washington, D.C. local law enforcement officials, are postdecisional" and not protected by the deliberative process privilege.  Defendants are granted summary judgment with respect to certain email chains reflecting internal predecisional deliberations. 

• Exemption 5 (attorney-client privilege):  The court finds that plaintiffs have presented credible evidence that some of the information in the documents withheld by defendants pursuant to the attorney client privilege was "shared with individuals outside of the agencies."  Commenting that "[w]hen the content of an attorney-client communication has been disclosed to other parties, that communication is no longer privileged," the court concludes that for the documents for which the attorney client privilege was claimed, defendants "must represent that confidentiality has been maintained." 

• Segregation:  With respect to documents reviewed in camera, the court orders defendants to release the segregable, nonexempt factual portions of certain documents withheld pursuant to the deliberative process privilege, such as "factual recitations and legal justifications for Secure Communities." 

• Waiver:  To the extent that defendants have publicly released certain information, the court rules that defendants have waived their claims of exemption. 

• Exemptions 6 & 7(C):  The court "assume[s] arguendo that the documents, or some portion thereof, could satisfy the threshold test of Exemption 6 or 7(C)."  With respect to agency employees mentioned in the withheld records, the court concludes that "the public interest in disclosure outweighs the privacy interest as regards the names of agency heads or high-level subordinates . . . and the titles and places of work of all federal employees and third parties."  The court finds that "[t]here is a substantial public interest in knowing whether the documents at issue reflect high-level agency policy, helping to inform the public as to 'what their government is up to.'"  Additionally, "[t]he disclosure of the places of work and titles but not the names of subordinate staff will provide plaintiffs with a greater ability to ascertain the degree to which documents reflect the views of the agency versus those of individual agency employees, and will enable plaintiffs to tests defendants' assertions of deliberative process to a greater degree, without exposing lower level federal employees to the risk of harassment or annoyance."  However, the court grants summary judgment to defendants with respect to email addresses and phone numbers because "[p]laintiffs evince no interest in [them]."  

8.  Lake Travis Transitional Med. Ctr. v. HUD, No. 10-950 (W.D. Tex. June 11, 2011) (Sparks, J.)

Re:  Request for records related to HUD's determination that the Lakeway, Texas area is medically underserved and its consequent decision to guarantee the loan of a planned hospital near plaintiff's facility; at issue are twelve documents submitted for in camera review

Holding:  Ordering defendant to produced all documents examined in camera in full, except for certain information protected by Exemption 5

• Exemption 4:  At the outset, the court notes that although HUD does not explicitly cite Exemption 4 as its basis for withholding a particular "methodology used to determine whether an area is 'underserved,' and thus deserving of mortgage guarantee by HUD for a proposed facility," the agency's declaration states that the information "was withheld because the documents contain information which, if disclosed, 'could put the applicant at a competitive disadvantage.'"  Interpreting this statement to be a claim under Exemption 4, the court finds that HUD's "simple assertion of competitive disadvantage falls well short of meeting HUD's burden for withholding documents under Exemption 4 of FOIA." 

With regard to "a presentation to HUD by a third party [that is] the mortgage lender for the proposed hospital," the court concludes Exemption 4 is not applicable.  The court rejects HUD's argument that the information was properly withheld "pursuant to the direction of the party providing the information based on an interpretation of Exemption 4 recognized by the D.C. Circuit" in Critical Mass.  The court notes that "[t]he Fifth Circuit has not addressed the holding in Critical Mass" and "HUD has provided [the] Court with no explanation of why it should ignore the existing binding precedent of the Fifth Circuit and adopt a test used only the D.C. Circuit."  The court concludes that "HUD's simple assertion that [the document] is confidential under Exemption 4, because the third party mortgage lender designated it as confidential, without establishing substantial competitive harm, fails to meet the Fifth Circuit's test."  

• Exemption 5 (deliberative process privilege):  The court concludes that HUD improperly asserted Exemption 5 to protect facts and factual analysis.  The court finds that the majority of the documents withheld pursuant to the deliberative process privilege do not offer an opinion.  However, the court permits HUD to continue to withhold a "prefactory comment [that] offer[s] the personal opinion of the author and a discussion of possible changes in the analysis" as well as an attachment that "identifies questions and issues the author has concerning the analysis" used by HUD to determine whether an area is medically underserved. 

• Procedural:  The court rejects HUD's contention that a document is non-responsive, finding that "HUD does not deny some of the pages of [the document] are responsive and thus subject to disclosure."  As such, the court finds that "[w]ithholding of the entire document as non-responsive smacks of overreaching."  As to the two other documents, the court notes that HUD produced only those portions "it deemed responsive to Plaintiff's FOIA request," instead of processing the entire document.  The court finds that HUD's position that it is required to produce only the responsive paragraphs from these documents "flies in the face of normal document production standards." 

9.  Elec. Priv. Info. Ctr. v. NSA, No. 10-1533, 2011 WL 2710454 (D.D.C. July 8, 2011) (Leon, J.)

Re:  Request for records pertaining to NSA's possible relationship with Google following news of an alleged cyber attack by hackers in China and of a subsequent cooperation agreement between Google and NSA

Holding:  Granting NSA's motion for summary judgment on the basis that it properly refused to confirm or deny the existence of records pursuant to Exemption 3; and denying plaintiff's cross-motion for summary judgment

• Exemption 3:  The court holds the NSA properly refused to confirm or deny whether the agency had a relationship with Google pursuant to Exemption 3 in conjunction with Section 6 of the National Security Agency Act of 1959, which "broadly prohibits the disclosure of information pertaining to the organization, function, or activities of the NSA."  As a threshold matter, the court notes that "it is well established that Section 6 of the NSA Act is a statutory exemption under Exemption 3."  The court then finds that NSA's declaration is sufficient to support its withholding under Exemption 3 because it "provides more than cursory details concerning the relationship between the withheld material and NSA's organization and function."  The court concludes that NSA's declaration "explains the relevance of the Information Assurance mission to national security, the clear tie between the requested information and the Information Assurance mission, and the cognizable harm posed by acknowledging the existence/non-existence of the information." 

10.  Salanitro v. OPM, No. 10-363, 2011 WL 2670076 (M.D. Fla. July 8, 2011) (Corrigan, J.)

Re:  Request for certain sections of the U.S. Code, applicable law and regulations concerning the consumer price index (CPI), and the date that the CPI was changed

Holding:  Granting defendant's motion to dismiss based on plaintiff's failure to submit a proper FOIA request

• Exhaustion of administrative remedies:  The court concludes that plaintiff did not exhaust his administrative remedies prior to filing suit where he "failed to submit a proper FOIA request by not sending the request to the proper OPM office as identified in the OPM's regulations."

• Procedural/proactive disclosure:  Even assuming that "Plaintiff had in fact submitted a proper FOIA request," the court finds that "OPM would not have been required to respond if it had provided an alternative form of access to the requested information."  The court notes that "an agency is not required to make available materials that have already been disclosed pursuant to subsections (a)(1) and (a)(2)" of the FOIA.  In this case, the court finds that because the information requested by plaintiff "had already been disclosed within the meaning of 5 U.S.C. § 552(a)(1)-(2)," "OPM would not have been required to respond to Plaintiff's FOIA request because it provided an alternative form of access to the information requested, such as through the internet." 

11.  Waters v. Jackson, No. 08-2898, 2011 U.S. Dist. LEXIS 72826 (D.S.C. July 6, 2011) (Anderson, J.)

Re:  Request for free copies of plaintiff's case file maintained by the court

Holding:  Denying plaintiff's request for copies

• Jurisdiction:  The court holds that "[f]ederal courts are not subject to the federal Freedom of Information Act." 

WEEK OF JULY 18

District Courts

1.  Driggers v. United States, No. 11-229, 2011 WL 2883283 (N.D. Tex. July 18, 2011) (Ramirez, Mag.)

Re:  Request for various records pertaining to plaintiff's criminal case; at issue are interrogatories that plaintiff served on defendants seeking information about the records withheld and defendants' opinions and conclusions regarding that information

Holding:  Granting defendants' motion for a protective order staying discovery

• Discovery:  The court grants defendants' motion for a protective order staying discovery until such time that it can review defendants' motion for summary judgment and accompanying affidavits.  The court notes "[a]llowing Plaintiff to conduct [ ] discovery before Defendants file a motion for summary judgment would essentially provide the relief he seeks through this lawsuit."  Furthermore, the court finds that "[o]nly after [defendants] file a motion for summary judgment and supporting affidavits will the Court have the information necessary to appropriately limit the scope of discovery or forego it entirely."  To the extent that plaintiff's discovery seeks information regarding the content of the documents and the reasons for their creation, the court notes that such an inquiry "far exceeds the limited scope of discovery usually allowed in a FOIA case."  

2.  Shehadeh v. FBI, No. 10-3306, 2011 WL 2909202 (C.D. Ill. July 18, 2011) (Cudmore, Mag.)

Re:  Request for records pertaining to plaintiff and certain power outages for which plaintiff was a suspect

Holding:  Denying plaintiff's motion for appointment of counsel, his motion for a Vaughn Index, and his motions for subpoenas

• Litigation considerations/motion for appointment of counsel:  In considering whether to grant a request for appointment of counsel in a civil proceeding, the court notes that it must determine "(1) whether the indigent plaintiff has made a reasonable attempt to obtain counsel or has been effectively precluded from doing so; and, (2) whether the plaintiff appears competent to litigate the matter for himself."  Here, the court denies plaintiff's request for counsel, concluding that he "is capable of litigating this case on his own."  The court finds plaintiff "is an experienced pro se litigator" and his "filings in this case are well written, show a firm grasp of the issues, and an ability to communicate effectively in writing." 

• Litigation considerations/Vaughn Motion:  Noting that defendants may satisfy their burden to demonstrate that the records at issue were properly withheld in a number of ways, the court denies plaintiff's motion for a Vaughn Index as premature concluding that "[a]t this juncture, the Court cannot determine whether production or disclosure of a Vaughn index would be appropriate in this case." 

• Litigation considerations/Subpoena motions:  The court denies plaintiff's motions for various subpoenas.  With respect to subpoenas requesting the documents at issue and related records from third parties, the court finds that plaintiff "cannot use subpoenas or other discovery to disclose the substance of the withheld documents before the final decision in the case."  Moreover, the other subpoenas "are overly broad and would impose undue burdens on third parties." 

3.  Justice v. IRS, No. 10-568, 2011 WL 2899189 (D.D.C. July 13, 2011) (Kennedy, J.)

Re:  Request for a letter sent from Commissioner of the IRS to district directors purportedly advising IRS officials that they should issue tax refunds to individuals upon request because the Sixteenth Amendment was not properly ratified

Holding:  Granting the IRS's motion for summary judgment and concluding that the agency conducted an adequate search for responsive records; and denying plaintiff's request for discovery 

• Adequacy of search:  The court concludes that the IRS conducted an adequate search "reasonably expected to produce the requested information" where the agency's "declaration is detailed and specific, allowing the Court to conclude that the relevant files were likely searched."  As to plaintiff's contention that "the declaration is not entitled to a presumption of good faith because the letter was 'ordered destroyed,'" the court finds that the presumption of good faith accorded to the IRS "cannot be rebutted by [such a] 'purely speculative claim[ ].'"  Moreover, the court notes that "[a]n agency's search will not be presumed inadequate simply because the agency did not find the requested documents."

• Discovery:  The court denies plaintiff's request for discovery "[b]ecause discovery in FOIA cases is the exception and not the rule, and because [plaintiff] has failed to adduce any evidence that the IRS has acted in bad faith." 

WEEK OF JULY 25

Court of Appeal

1.  Pickard v. DOJ, No. 08-15504, 2011 WL 3134505 (9th Cir. July 27, 2011) (Silverman, J.)

Re:  Request for records pertaining to an informant in plaintiff's criminal case

Holding:  Reversing district court's grant of summary judgment and concluding that the DEA cannot assert the Glomar response in conjunction with Exemptions 7(C) and 7(D) to deny the subject of the request's status as an informant where the government officially confirmed that status in open court in the course of official proceedings; and remanding the matter for the district court to determine the appropriateness of DEA's exemption claims

• Exemptions 7(C) & 7(D)/Glomar: The Ninth Circuit holds that the DEA cannot invoke a Glomar response in conjunction with Exemptions 7(C) and 7(D) with respect to an informant in plaintiff's criminal case because the government has "officially confirmed" his status as an informant within the meaning of FOIA's (c)(2) exclusion.  The (c)(2) exclusion provides that an "'agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.'"  Quoting the D.C. Circuit in Boyd v. Criminal Division of the U.S. Department of Justice, the Ninth Circuit notes that "'[w]here an informant's status has been officially confirmed, a Glomar response is unavailable, and the agency must acknowledge the existence of any responsive records it holds.'" 

Although DEA's submissions demonstrated that there was "'no official public pronouncement regarding the status of [the subject] as a confidential source,'" the Ninth Circuit determines that "nothing in the statute or legislative history suggests that in the context of the interests protected by the (c)(2) exclusion, 'official confirmation' requires that the government issue a press release publishing the identity of a confidential informant or that the director of a law enforcement agency personally identify the informant." Rather, the Ninth Circuit finds that "the plain language of the term 'official confirmation' in the context of 5 U.S.C. § 552(c)(2) leads to . . . a 'rational common-sense result' when read to mean an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue." 

In this case, the Ninth Circuit finds that "[a]t [plaintiff's] criminal trial, the government, as part of its case-in-chief, intentionally elicited testimony from [the subject] and several DEA agents as to [his] activities as a confidential informant in open court and in the course of official and documented public proceedings."  Accordingly, "the revelation of [the subject's] identity as an informant was not the product of an unofficial leak, nor was it improperly disclosed in an unofficial setting by careless agents."  Having allowed "agents and confidential informants testify at trial in open court about the identity and activities of those confidential informants," the Ninth Circuit concludes that the government "may no longer refuse to confirm or deny" the existence of records concerning that informant.  However, the Ninth Circuit notes that "[t]his is not to say that the DEA is now required to disclose any of the particular information requested by [plaintiff]," and remands the matter to the district court to "determine whether the contents, as distinguished from the existence, of the officially confirmed records may be protected from disclosure under the DEA's claimed exemptions."  

District Courts

1.  Thome v. FDA, No. 11-676, 2011 WL 3206910 (N.D. Cal. July 27, 2011) (Grewal, Mag.)

Re:  Requests to FDA for information related to a company and the company's dietary supplements, which are at issue in a separate class action lawsuit

Holding:  Dismissing plaintiff's claims with prejudice due to his lack of standing to bring this action; but noting that a third party requester may pursue his FOIA claims in a separate lawsuit

• Litigation considerations/proper party plaintiff:  The court dismisses plaintiff's FOIA claims with prejudice based on his lack of standing to bring the instant action.  Here, the court finds that plaintiff "was not identified in any of the FOIA requests" submitted by a third party and that the requester did not indicate in the body of any of the requests "that he made the request on behalf of the class [action lawsuit] plaintiffs or [plaintiff in the instant action] specifically." Accordingly, the court finds that the third party "is the only person who has made a formal FOIA request within the meaning of the FOIA statute."   The court also denies plaintiff leave to amend his complaint to add the third party requester as a plaintiff.  The court concludes that "[n]either [Federal Rule of Civil Procedure] 15, Rule 17, nor Rule 21 provide a mechanism by which [plaintiff] can remedy his lack of standing to file the original complaint or to add [the third party requester to his first amended complaint]."  As such, the court determines that "[p]laintiffs have failed to meet their burden to show that jurisdiction is proper."  The court notes, however, that the third party requester "may pursue his claims under FOIA in a new lawsuit." 

2.  Smith v. Dep't of Labor, No. 10-1253, 2011 WL 3099703 (D.D.C. July 26, 2011) (Boasberg, J.)

Re:  Request for records pertaining to a mining disaster

Holding:  Granting defendant's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 5 and 6 were proper; and denying plaintiff's cross-motion for summary judgment

• Adequacy of Vaughn index:  The court holds that DOL's Vaughn index is adequate where it "describes the rationale for the exemptions invoked and provides the locations in the disclosed documents where redactions are made under those exemptions."  The court notes that "at the actual sites of redaction, the number of the relevant exemption is provided."  Moreover, the court finds that DOL is not required to provide "redundant descriptions of documents from which only small portions are redacted."  Segregability: Contrary to plaintiff's contention, the court finds that DOL was not required to provide a separate segregability analysis in its Vaughn Index because "[t]he Agency's redactions are themselves indicative that DOL conducted a line-by[-]line review and segregation of the material."

• Exemption 5 (deliberative process privilege):  The court concludes that portions of an Office of Inspector General (OIG) report that contained the "thoughts, actions, opinion and ideas" of Mine Safety and Health Administration (MSHA) employees who "debated the application of a particular citation that MSHA ultimately decided not to issue" were properly protected pursuant to the deliberative process privilege. The court finds that "since the redacted portion of the report contains information about a citation that was considered but not issued, the subject matter is necessarily antecedent to the decision not to issue that citation."  The fact that the OIG report was published "after the citations were issued" does not alter the nature of the deliberative nature of the communications "because the question is whether the deliberation, not the publication of the report, preceded the citation" and, here, "[i]t obviously did."  Moreover, based on an in camera review the court is satisfied that "the redacted six lines [that] discuss deliberations over a proposed citation that was not issued" "contain information that is both predecisional and deliberative."  

• Exemption 6:  As a threshold matter, the court determines that based on its in camera review the "names of low-level MSHA employees, identifying information about individuals who were the subject of internal personal discussions, personal opinions of job performance, personal phone numbers, a home address, and a personal e-mail address" all qualify as "similar files" within the meaning of Exemption 6.  The court also comments that "all of the redactions here are either personal or job-performance information."  In terms of the privacy interests, the court notes that "'[a]n employee has at least a minimal privacy interest in his or her employment history and job performance evaluations . . . [and] [t]hat privacy interest arises in part from the presumed embarrassment or stigma wrought by negative disclosures.'"  Here, the court finds that disclosure of the information at issue "would constitute an unwarranted invasion of employees' personal privacy" because "[t]he information redacted directly relates to performance appraisals and contains some negative evaluations." Conversely, the court finds that plaintiff's "unsubstantiated allegations of a government cover-up" in connection with the government's investigation into a mining disaster are not sufficient to demonstrate a public interest in disclosure of the information at stake.  In addition, the court finds that its in camera review "has demonstrated that the redacted material is entirely unrelated to the allegations Plaintiff makes."  Therefore, the court concludes that DOL properly withheld invoked Exemption 6 to protect this information.

3.  Bonilla v. DOJ, No. 10-22168, 2011 WL 3156281 (S.D. Fla. July 25, 2011) (King, J.)

Re:  Request for records pertaining to a prosecutor who worked on plaintiff's criminal case

Holding:  Granting DOJ's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemption 6

• Adequacy of search:  The court concludes that defendant's search was adequate where declarations discuss in detail the electronic and manual searches conducted as well as the search terms employed.  

• Exemption 6:  As an initial matter, the court concludes that the records at issue consisting of a former prosecutor's Notification of Personnel Action and letters of reference discussing his personal characteristics constitute "similar files" under Exemption 6.  The court notes that the prosecutors "status as a former federal employee does not render his privacy interest in the subject records nonexistent or unimportant."  The court then finds that the former prosecutor has a privacy interest in these records because "[t]hey reveal his colleagues' personal opinions of him as a person and as a prosecutor" and notes that "[t]his information would not normally be publicly available."  In terms of the public interest, the court determines that "Plaintiff's allegations of impropriety are pure speculation, and in fact have been found meritless by the presiding court in his criminal action."  Additionally, the court finds that "the purely personal matters contained in the records [at issue] fail to further even the broader purpose of FOIA, to inform citizens about 'what their government is up to.'"  As such, the court holds that DOJ properly invoked Exemption 6 because "[t]he information in the records 'reveals little or nothing about an agency's own conduct,' . . . and would thus 'constitute an invasion of . . . privacy' that is excessively disproportionate to the public interest at stake and is therefore clearly unwarranted." 

4.  Godaire v. DOJ, No. 10-1266, 2011 WL 3047656 (D. Conn. July 25, 2011) (Kravitz, J.)

Re:  Request for records related to any investigation ensuing from plaintiff's complaint to the Office of Inspector General (OIG)

Holding:  Granting defendant's motion for summary judgment

• Adequacy of search:  The court holds that defendant's search "was reasonably calculated to discover documents responsive to [plaintiff's] FOIA request" where its declarant, using plaintiff's name, searched the "sole and exclusive records system for the store of records relating to complaints of misconduct received by OIG and to investigations of those complaints."  The court further notes that plaintiff "has submitted no evidence [that the affiant's] declaration was made in bad faith or that the OIG did not actually conduct a search of the type described in [the affiant's] declaration" and "[n]or is there any evidence that, contrary to [OIG's] declaration, records responsive to [plaintiff's] FOIA request were discovered but withheld from [him]."