Summaries of New Decisions

Summaries of New Decisions – January 2012

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 JANUARY 2

District Courts

1. White v. DOJ, No. 11-279, 2012 WL 19729 (D.D.C. Jan.5, 2012) (Kollar-Kotelly, J.)

Re: Request for records pertaining to a criminal case purportedly prosecuted by the U.S.Attorney's Office (USAO) for the Eastern District in New York in 1998

Holding: Granting defendant's motion for summary judgment on the basis that EOUSA conducted an adequate search for responsive records

• Adequacy of defendant's affidavit: The court concludes that EOUSA's declaration was sufficient because it "explain[ed] what system was searched, the terms used, why it was likely to contain responsive documents, and that no other search method would reveal responsive documents." The court concludes that plaintiff "failed to provide any evidence to overcome the presumption of good faith afforded to Defendant's affidavit.'" For one, the court notes that "[p]laintiff fails to explain what additional information could be provided, or why it would be relevant to determining the adequacy of Defendant's search." Moreover, the court comments that plaintiff does not suggest that other offices or employees might maintain responsive records. Lastly, the court finds that EOUSA was not required "to search every system of records maintained by the USAO as Plaintiff suggests when the reference to the criminal case was limited to the FBI file number, the name of [a possible witness in the case], and the name of the prosecutor."

• Adequacy of search: The court finds that "the USAO was under no obligation to seek out additional information from the FBI in order to process Plaintiff's FOIA request." The court notes that plaintiff's reliance on the D.C. Circuit's decision in Valencia-Lucena v. U.S. Coast Guard is misplaced, as "Valencia-Lucena supports the conclusion that the USAO was under no obligation to seek information from the FBI in order to perform an adequate search in the USAO record system in response to Plaintiff's request." The court also finds that because "the USAO's initial search revealed no responsive documents, [it] therefore did not provide any 'leads' for the agency to follow up on." The court determines that EOUSA is not required "to create a document linking the FBI file number provided in this request with a Court docket number, and then searching for responsive documents using the Court docket number." As to plaintiff's assertion that the search is inadequate because records "must exist," the court finds that "'the fact that responsive documents once existed does not mean that they remain in the [agency's] custody today or that the [agency] had a duty under FOIA to retain the records." Moreover, "Plaintiff's speculation that responsive records must exist does not amount to 'countervailing evidence' sufficient to raise a 'substantial doubt' as to the adequacy of the USAO's search."

WEEK OF JANUARY 9

District Courts

1. Muslim Advocates v. DOJ, No. 09-1754, 2012 WL 84501 (D.D.C. Jan.11, 2012) (Sullivan,J.)

Re: Request for certain chapters of the FBI's Domestic Investigation and Operations Guide (DIOG); remaining at issue is one chapter which was almost entirely redacted

Holding: Granting defendant's motion for summary judgment on the basis that the FBI adequately justified its Exemption 7(E) redactions

• Exemption 7(E): The court concludes that "[h]aving carefully reviewed defendant's ex parte declaration[,] . . . the government has now satisfied its burden of establishing its right to withhold the information contained in Chapter 16 of the DIOG" pursuant to Exemption 7(E). The court finds that "it is both plausible and logical that the disclosure of detailed information regarding the FBI's procedures for investigation of and undisclosed participation in target organizations could risk circumvention of the law and impede the FBI's ability to carry out its mission." "Moreover, the Court finds no evidence in the record that contradicts the government's justifications for withholding the redacted information or demonstrates bad faith."

2. Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-754, 2012 WL 45499 (D.D.C. Jan.10, 2012) (Kessler, J.)

Re: Request for records pertaining to DOJ investigations of U.S. Representative Don Young involving allegations of bribery and other illegal conduct in connection with an earmark for a transportation project

Holding: Denying defendants' motion for summary judgment; granting plaintiff's cross-motion for summary judgment and holding that DOJ cannot assert a categorical denial under Exemptions 6 and 7(C) for information regarding an investigation into activities of a congressman; and ordering DOJ to submit a Vaughn Index so that the court may make individualized decisions with respect to each withheld record

• Exemptions 6 & 7(C): The court holds that the FBI, EOUSA, and the Criminal Division improperly issued a categorical denial for records regarding DOJ's investigations of a U.S. Representative concerning allegations of bribery and other illegal conduct. At the outset, the court notes that although "Government officials may have a somewhat diminished privacy interest 'they do not surrender all rights of personal privacy when they accept public appointment." Additionally, the court observes that "'individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity,'" and comments that "[t]his may be especially true for politicians who rely on the electorate to return them to public office." However, the court finds that, here, although the U.S. Representative maintains a more than de minimis privacy interest in the records at issue, "the Congressman's statement to the press, as well as other statements he made on the floor of the House of Representatives [addressing the investigations into his activities], clearly 'diminish his interest in privacy.'"

In terms of the public interest, the court finds that "the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job." Accordingly, the court concludes that "disclosure of information concerning DoJ's investigation of Rep. Young would unquestionably 'shed light on the agency's performance of its statutory duties.'" Notably, "in this case, Congress passed a specific piece of legislation . . . directing DoJ to conduct an investigation of all 'allegations of impropriety [concerning the particular transportation earmark linked to Rep. Young] . . . to ascertain if a violation of Federal criminal law has occurred.'" The court determines that "[g]iven the fact that Rep. Young was at that time Chair of the House of Representatives Transportation Committee, and given the detailed remarks that he made on the floor of the House of Representatives about this matter, there is a substantial public interest in examining the adequacy of DoJ's enforcement of other types of law governing the activities of federal officials, in addition to the explicit direction given by Congress to DoJ to investigate [the transportation project]." The court also rejects defendant's argument that "Plaintiff has failed to establish a cognizable public interest because 'it is only the conduct of the agency holding the requested document that can implicate cognizable public interest under FOIA'" and "'there is significant public interest only if there is compelling evidence that the agency is engaged in illegal activity.'" To the contrary, the court holds that "it is clear that there is no requirement that a FOIA requester must always allege that the Government is acting illegally in order to establish the existence of a substantial public interest." Based on the foregoing, the court finds that "the balancing of Rep. Young's privacy interest against the public interest in releasing the requested documents tips strongly in favor of the public interest" and orders DOJ to submit a Vaughn Index so that the court may "make a specific individualized decision for each document as to whether it should be redacted or totally withheld pursuant to Exemption6 and Exemption 7(C)."

WEEK OF JANUARY 16

Courts of Appeal

1. Yonemoto v. VA, No. 10-15180, 2012 U.S. App. LEXIS 1108 (9th Cir. Jan.18, 2012) (Berzon,J.) (amended op.)

Re: Request for emails to and from specified individuals; at issue is whether the VA's offer to provide 157 emails to plaintiff in an unredacted form in his capacity as an employee mooted his FOIA claim as to those emails, and whether the VA properly redacted nine other emails pursuant to Exemption 6

Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings

• Litigation consideration/standard of review: The Ninth Circuit "consider[s], de novo, whether the VA's offer of 157 of the disputed emails to [plaintiff] in his capacity as a VA employee mooted his claim to those emails under the FOIA" and "evaluat[es], de novo, whether the district court had an adequate factual basis to undertake the balancing of interests" in connection with information withheld pursuant to Exemption 6.

• Litigation consideration/mootness: The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records. The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide access granted by the FOIA." The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information." Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot." As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them. The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance."

• Litigation considerations/burden of proof: Contrary to the VA's arguments, the Ninth Circuit finds that allowing plaintiff to view the unredacted versions of the emails at issue does not shift the burden to plaintiff "to disprove the propriety of particular redactions."

• Exemption 6: With respect to the nine contested emails reviewed by the district court in camera for which the VA asserted Exemption 6, the Ninth Circuit holds that "[i]nsofar as the district court made a categorical privacy judgment," rather than making such a determination on a record-by-record basis, "it erred." The Ninth Circuit notes that "[s]uch categorical determinations are rarely proper under the FOIA; they are appropriate only in those circumstances in which disclosing a type of record defined by its content, such as an identifiable individual's rap sheet, will invariably result in an invasion of personal privacy." In this case, the Ninth Circuit determines that "an email . . . is defined not by its content but by its mode of transmission" and, as such, would not be the type of record which could be judged on a categorical basis. Based on its in camera review, the Ninth Circuit concludes that the privacy interests implicated by the records outweigh any public interest in disclosure for emails containing information about an employee's illness, conditions for disqualifying an individual from a clinical trial for medication, and an employee's complaints about a coworker. With respect to one email discussing VA's policy regarding relocation expenses, the Ninth Circuit rules that the names of individuals may be redacted, but finds that the public interest controls with respect to the content. Additionally, the Ninth Circuit concludes that VA must release certain reasonably segregable portions of an email that do not relate to any privacy concerns. For the remaining emails, the Ninth Circuit determines that the VA failed to identify the privacy interests involved and remands this matter to the district court for further consideration, noting that the VA should provide a more detailed Vaughn Index to support its assertion of Exemption 6.

District Courts

1. Brancheau v. Sec'y of Labor, No. 11-1416, 2012 WL 140239 (M.D. Fla. Jan.18, 2012) (Presnell, J.)

Re: "Reverse" FOIA suit brought under the Administrative Procedure Act (APA) seeking to enjoin OSHA from releasing video concerning the death of an animal trainer at Sea World

Holding: Dismissing, without prejudice, plaintiffs' claim that OSHA's previous release of a summary of a video depicting the incident violated the APA; and dismissing plaintiffs' remaining APA claims with prejudice

• Administrative Procedure Act (APA) claim/"reverse" FOIA/submitter notice: At the outset, the court concludes that two of plaintiffs' claims, namely, that "[d]efendants' denial of the Plaintiffs' request to block any possible release of the video; and . . . [d]efendants' refusal to declare the Performance Video[, an underwater video of the incident,] as exempt from disclosure under FOIA," "cannot be challenged by way of a reverse FOIA suit." The court finds that "[a] plaintiff seeking to prevent disclosure under FOIA has no remedy until the agency determines that it will release the requested information" and, here, OSHA has made no such determination. As to plaintiffs' claim premised on OSHA's "refusal to provide notice to the Plaintiffs whenever someone makes a future FOIA request for the Performance Video," the court finds that, unlike the notification requirements for "confidential commercial information" set forth in Executive Order12,600, "[n]o party has suggested language in any other statute, regulation or order that would require OSHA to notify the Plaintiffs when a request for the Performance Video is made." As such, the court determines that "Plaintiffs have no standing under the APA to challenge OSHA's refusal to provide notice that the law does not require it to provide, as they are not 'adversely affected or aggrieved . . . within the meaning of the relevant statute.'"

With respect to plaintiffs' claim concerning OSHA's "intention to release the OSHA written summary to anyone making a FOIA request for the Performance Video," the court first finds that "Plaintiffs have not identified any information in OSHA's summary that is not present in the longer, more detailed summary [of the incident] compiled by the [local] Sheriff's Office," which is in the public domain. The court, however, rejects defendants' argument that "given that the Sherriff's Office had released its (more detailed) summary before OSHA released its summary, OSHA was obligated to release its summary, and the decision to do so could not have been arbitrary and capricious." Rather, the court states that it cannot make such a finding where there is no evidence showing that OSHA was aware that the other summary had been publicly disclosed. However, the court finds that plaintiffs have failed to meet their burden to show that OSHA acted arbitrarily and capriciously because they could not point to a "law that required withholding of the information." Furthermore, the court notes that plaintiffs cannot rely on FOIA exemptions for this purpose because "FOIA exemptions allow a government agency to withhold documents, but do not require withholding."

2. Audubon Soc'y of Portland v. U.S. Nat. Res. Conservation Serv., No. 10-1205, 2012 WL 141496 (D.Or. Jan.18, 2012) (Hernandez, J.) (amended op. & order)

Re: Request for records pertaining to federal efforts to conserve or manage northern spotted owls

Holding: Granting plaintiff's cross-motion for summary judgment finding that the withheld material did not fall within the asserted Exemption 3 statute; issuing a declaratory judgment that the U.S. Natural Resources Conservation Service (NRCS) failed to make a timely determination on plaintiff's administrative appeal, a point which was conceded by defendant; dismissing plaintiff's Administrative Procedure Act claim as moot in light of the court's decision on the FOIA claims; and concluding plaintiff is entitled to reasonable attorney's fees and costs

• Exemption 3: As an initial matter, the court "assume[s] that [the Food, Conservation, and Energy Act (FCEA) of 2008, now codified as 7 U.S.C.] § 8791 is a withholding statute [under Exemption 3] without deciding the issue" because both parties are in agreement on this point. The court notes that "[u]nder § 8791(b)(2)(A), the documents must satisfy the following elements to prohibit disclosure: (1) the information is provided by an agricultural producer or owner of agricultural land, (2) the information concerns the agricultural operation, farming or conservation practices, or the land itself, and (3) the information is provided in order to participate in programs of the Department of Agriculture." As to the first element, the court determines that the forest land owners who submitted information to NRCS in connection with the Healthy Forests Restoration Program (HFRP) "are not agricultural producers" within the meaning of the statute because "the ordinary definition of 'crop' does not include wood or timber." With respect to the second element, the court finds that "[i]t is undisputed that the information submitted by land owners for the HFRP concerns the 'conservation practices' or the catch-all category of 'the land itself.'" However, the court notes that the land owners submissions would not qualify as concerning an "agricultural operation" because that provision of the FCEA makes a distinction between 'agriculture' and terms related to forests," and the court finds that "wood, timber, and forest products are not agricultural commodities under the FCEA." The court does find that the third element is satisfied because "[t]he information submitted by land owners was submitted to the NRCS [an agency of the USDA] for participation in the HFRP." In sum, though, the court rules that "the first element [of the Exemption 3 statute] was not met because the forest land owners are not agricultural producers or owners of agricultural land," and, as such, "the information regarding the private forest lands was not properly exempt from disclosure under Exemption 3 and § 8791(b)(2)(A)."

The court also holds that NRCS cannot withhold "geospatial information about the land and operations of various private forest lands" under § 8791(b)(2)(B), "which requires the information to be (1) geospatial information, (2) maintained by the Secretary of Agriculture, and (3) about agricultural land or operations for which information in subparagraph (A) is provided." The court bases its holding on its earlier determination that "agricultural land or operations do not concern wood, timber, or forest products" and therefore the information submitted by the land owners in this case does not qualify under the statute.

• Attorney fees: The court grants plaintiff's request for reasonable attorney's fees and costs because it "prevailed on its claim of unlawful withholding of documents under FOIA."

3. Moffat v. DOJ, No. 09-12067, 2012 WL 113367 (D. Mass. Jan.12, 2012) (Casper, J.)

Re: Requests for records pertaining to plaintiff's criminal case; at issue is plaintiff's petition for attorney's fees against the FBI

Holding: Granting plaintiff's petition for attorney's fees for work completed in connection with the Complaint

• Attorney fees: As an initial matter, the court finds that although it "granted summary judgment to the FBI on [plaintiff's] FOIA claim, [he] has substantially prevailed against the agency for the purposes of §552." The court finds that plaintiff substantially prevailed in this case due to "the FBI's additional searches and release of documents in response to [plaintiff] filing his complaint and not with [plaintiff's] subsequent unavailing litigation with regard to the adequacy of the FBI's searches or the validity of the FBI's redactions within the eventually disclosed documents." The court concludes that the attorney's fee entitlement factors also "cut in [plaintiff's] favor." As to the first factor, i.e., the public benefit derived from the case, the court finds that plaintiff does not have a business interest in the records and notes that "'a successful FOIA plaintiff always acts in some degree for the benefit of the public, both by bringing the government into compliance with the language of the Act and by securing for society the benefits assumed to flow from the disclosure of government information.'" With regard to the second and third factors, the commercial benefit to plaintiff and the nature of his interest in the records sought, the court finds that "although [plaintiff] has an intense personal interest in using the records sought to protest his innocence, 'a prisoner has no conceivable commercial interest in seeking access' to the sort of records pursued by [him], . . . and [plaintiff's] interest here is 'public-interest oriented' and is not 'frivolous or purely commercial.'" The court also notes that "the FBI has not provided a colorable basis in FOIA law for its refusal to perform 'cross-reference' searches in response to [plaintiff's] administrative request until after he filed his lawsuit." As such, the court holds that plaintiff "is thus entitled to an award of attorney's fees." However, the court limits the recoverable amount of attorney's fees to "the time period that 'includes the preparation and filing of the complaint and stops when the FBI released documents to [plaintiff's] counsel.'" The court awards attorney's fees in the amount of $1,600 which reflects the rate of $100 per hour, "the rate at which [plaintiff's] counsel was 'retained' by the Commonwealth," for sixteen hours of work in connection with the Complaint.

4. Voigt v. Muffenbier, No. 11-89, 2012 WL 90486 (D.N.D. Jan.11, 2012) (Viken, J.)

Re: FOIA claim brought against certain individuals

Holding: Dismissing plaintiff's FOIA claim brought against four individuals for failure to state a claim upon which relief may be granted

• Litigation considerations/proper party defendant: The court dismisses plaintiff's FOIA claim for failure to state a claim upon which relief may be granted, noting that the FOIA "does not create a private cause of action against individuals but rather allows suit in federal district court against the agency which failed to comply with the disclosure obligations of the Act."

WEEK OF JANUARY 23

District Courts

1. Judicial Watch, Inc. v. DHS, No. 11-604, 2012 WL 251914 (D.D.C. Jan.27, 2012) (Kollar-Kotelly,J.)

Re: Request for records related to recent changes in federal immigration enforcement priorities and their implementation in Houston, Texas; at issue is DHS's assertion of Exemption 5 to protect certain information contained in spreadsheets, memoranda, and correspondence

Holding: Granting, in part, DHS's motion for summary judgment with respect to information contained in spreadsheets for which it claimed the attorney work-product privilege; denying, in part, DHS's motion for summary judgment with regard to the remaining records; directing DHS to provide additional information to support certain withholdings under the attorney-client, attorney work-product, and deliberative process privileges and to demonstrate that it used the correct segregability standard with respect to factual material withheld under the deliberative process privilege

• Exemption 5 (attorney-client privilege): The court denies DHS's motion for summary judgment insofar as it seeks a ruling that certain documents were properly protected by the attorney-client privilege. For one, the court determines that "DHS's submissions fail to provide any basis . . . to find that the confidentiality of the communications at issue has been maintained." The court notes that "DHS must adduce competent evidence establishing 'confidentiality both at the time of the communication and maintained since.'" Additionally, the court finds that "DHS's Vaughn Index simply parrots selected elements of the attorney-client privilege" and notes that "[e]ven when situating these descriptions within the context of DHS's partial production, 'the descriptions of the documents are so brief and of such a general nature that they fail to give the court any basis for determining whether the privilege was properly invoked.'" The court provides DHS with "a further and final opportunity to establish the applicability of the attorney-client privilege to the information withheld from [plaintiff]."

• Exemption 5 (attorney work-product privilege): With respect to "three spreadsheets relating to immigration cases handled by [Office of Chief Counsel (OCC)] Houston," the court determines that "DHS has proffered a sufficient factual basis . . . to conclude that, in light of the nature of the spreadsheets and the factual situation in this case, the information withheld can 'fairly be said to have been prepared or obtained because of the prospect of litigation'" and therefore is protected by the attorney work-product privilege. As to plaintiff's contention that "the information was not 'prepared in anticipation of litigation'" since "the information in the spreadsheets was gathered to decide whether to terminate litigation," the court determines that this "argument lacks merit" because "[m]aterial may still be said to be prepared 'in anticipation of litigation' even when an attorney is deciding whether or not to pursue a case." Further, the court finds that "DHS has satisfied its burden of showing that the information was prepared in anticipation of the pending and reasonably foreseeable immigration cases handled by OCC Houston." The court also rejects plaintiff's argument that "DHS 'has failed to demonstrate that the information contained in these documents has not been shared with third parties.'" The court notes that, here, "the burden lies with [plaintiff] to establish that DHS has waived the protections of the work product doctrine" "because, in contrast to the attorney-client privilege, the proponent of the work product doctrine does not bear the burden on proving non-waiver." Moreover, the court concludes that plaintiff has failed to show that DHS "disclosed work product to a third party under circumstances 'inconsistent with the maintenance of secrecy from the disclosing party's adversary,'" offering "unadorned speculation" instead.

With regard to information contained in memoranda and other communications for which DHS claimed the attorney work-product privilege, the court concludes that "DHS's evidentiary showing is so generalized and non-specific as to these [materials] that it fails to satisfy the Court that the work product doctrine has been properly invoked as a basis for non-disclosure." Although DHS grouped the documents into categories, the court finds that it "fail[ed] to correlate these categories to specific records identified in its Vaughn Index" and observes that some of the descriptions were too generic. The court grants DHS an additional opportunity to supplement the record in order to support its attorney work-product claims.

• Exemption 5 (deliberative process privilege): The court concludes that DHS failed to establish that the factual material in certain documents was covered by the deliberative process privilege. The court finds that DHS's "empty invocation of the segregability standard, which DHS never couples with a more detailed representation relating to specific records," is not sufficient to establish that it disclosed all reasonably segregable, nonexempt material. The court finds that "[w]here DHS has withheld factual information under the deliberative process privilege, the Court requires a more nuanced explanation as to why the information is inextricable from deliberative material." In addition, "the Court agrees with [plaintiff] that DHS has failed to provide sufficient factual context for much of the information withheld under the deliberative process privilege to allow the Court to conclude that the privilege has been properly invoked" and notes that "[o]ftentimes, the descriptions are so generic and non-specific that, even when considered alongside DHS's partial production, the Court cannot meaningfully assess whether the information withheld is predecisional and deliberative."

In the interest of limiting future areas of dispute, the court responds to three issues raised by plaintiff concerning the application of the deliberative process privilege. With respect to plaintiff's assertion that "'the deliberative process privilege is a qualified privilege and can be overcome by a showing of sufficient need,'" the court finds that "the relevant question in [the FOIA] context is whether the information subject to the [deliberative process] privilege claim would 'normally' or 'routinely' be disclosed in private litigation." Second, the court notes that plaintiff "fails to recognize that even documents dated after a decision has been made may still be eligible for protection under the deliberative process privilege" because "documents dated after one decision has been made 'may still be pre-decisional and deliberative with respect to other, non-final agency policies.'" Lastly, the court declines to "inquire whether the disclosure of specific information would harm the interests animating the deliberative process privilege," noting that "the scope of this Court's inquiry is properly confined to asking whether DHS has satisfied its burden of showing the applicability of the privilege."

2. Degenes v. Mueller, No. 11-916, 2012 WL 260038 (W.D.Pa. Jan.27, 2012) (Conti,J.)

Re: Requests for information sent to state entities and to an FBI special agent in charge of a field office

Holding: Granting defendants' motions to dismiss FOIA claims with prejudice brought against state entities and individual federal employees

• Proper party defendants: The court dismisses with prejudice plaintiff's FOIA claim brought against a local police department and state borough because the FOIA "applies only to federal agencies not state entities." Additionally, the court dismisses with prejudice plaintiff's FOIA claims against the FBI director and an agency employee because "individual defendants are not proper parties in FOIA suits."

3. Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan.26, 2012) (Legg, J.)

Re: Requests for records related to plaintiff's pending Title VII action

Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees

• Litigation considerations/fees: The court grants the Pension Benefit Guaranty Corporation's (PBGC's) motion to withdraw its earlier motion to dismiss, which was based on plaintiff's failure to exhaust administrative remedies for non-payment of properly assessed fees after PBGC received assurance of payment from plaintiff. The court rejects plaintiff's argument that PBGC "should not be permitted to withdraw the Motion because it was frivolous and filed in bad faith" and denies his request for an award for attorney's fees "incurred in responding to the agency's Motion." Rather, the court finds that, "[f]or the purposes of the Motion to Withdraw, [it] need not decide whether PBGC was ultimately justified in putting its search on hold, because there is no evidence of bad faith on its part." Moreover, "[c]onsidering [plaintiff's] prior non-payment and his counsel's request to be consulted when costs neared the $500 mark, PBGC was entitled to suspend work until [plaintiff] provided assurances of reimbursement for the costs of continued production."

• Exemption 6/Privacy Act: The court holds that PBGC properly redacted the names of plaintiff's co-workers from "handwritten Flex Time sign-in sheets on which employees sign in and out of work" pursuant to Exemption 6. The court dismisses plaintiff's argument that the records were likely maintained in a Privacy Act system of records and therefore "should have been disclosed to him in full, without redactions." The court finds persuasive PBGC's assertion that these sheets are not contained in its "Employee Payroll, Leave, and Attendance" system of records "because they do not pertain to a specific employee and would not be retrievable by searching for any given employee's name." Furthermore, the court notes that, even if these sheets were maintained "within a system of records, disclosure of which is mandated by the Privacy Act, this would not compel their disclosure in unredacted form" because "under the terms of the Privacy Act, [plaintiff] is entitled only to that information in the system of records that pertains to him."

• Exemption 5: Based on its review of the records, the court determines that PBGC properly asserted Exemption 5 to withhold portions of emails containing "legal communication between PBGC counsel and PBGC staff as well as other privileged, pre-decision discussions."

• Exemption 4/competitive harm: The court holds that PBGC properly asserted Exemption 4 to redact provisions from its "contracts with law firms and expert witnesses" "relating to forecasted hourly rates that would apply if PBGC were to exercise options allowing it to extend the contracts." Rejecting plaintiff's contention that "the exemption is inapplicable in this case because the contracts in question were not competitively bid," the court finds that regardless of whether the contracts were negotiated or competitively bid "option year pricing would give the competitors of the present contractors leverage with which to persuade PBGC to open the contracts for bidding or renegotiation with others rather than exercise its current option, thus harming the current contractors' competitive position." The court also observes that "while the public has a strong interest in information concerning how much government agencies actually pay for goods and services, that interest is significantly less compelling with regard to hypothetical future prices."

• Adequacy of search: The court concludes that "[i]t appears from the record that PBGC conducted a reasonably thorough search for records responsive to [plaintiff's] requests." With respect to the additional records that plaintiff states should have been located in his personnel file, the court finds that "PBGC not only certifies that these records were not contained in its files but also submits reasonable explanations as to why this should be the case."

• Attorney fees: Although the court notes that "there is a substantial likelihood that [plaintiff's decision to file the instant action] caused PBGC to take his requests more seriously and to devote the time and attention necessary to ensure that they were processed quickly and carefully," the court finds that "[i]n the end . . . it is clear that the overwhelming majority of [plaintiff's] requests were made, not to serve the public interest or inform the public about the action of government agencies, but to substitute for or supplement discovery in [plaintiff's] personal Title VII suit." Ultimately, "[t]he Court declines to award costs and fees because [plaintiff] is using FOIA as a substitute for civil discovery and not to advance the purposes for which FOIA was enacted."

4. Menasha Corp. v. DOJ, No. 11-682, 2012 U.S. Dist. LEXIS 8937 (E.D. Wis. Jan.26, 2012) (Griesbach, J.)

Re: Request for records pertaining to a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enforcement action involving plaintiffs; at issue are communications related to a proposed consent decree lodged with the court in connection with that action between lawyers in two sections of DOJ's Environmental and Natural Resources Division (ENRD) representing different federal agencies

Holding: Denying defendant's motion for summary judgment, and concluding that the attorney work-product, attorney-client, and deliberative process privileges have been waived for certain documents shared between government parties due to their competing interests in the underlying CERCLA enforcement action

• Exemption 5 (attorney work-product, attorney-client & deliberative process privileges)/waiver: By way of background, the court notes that plaintiffs "are defendants in [a CERCLA] enforcement action [brought by the EPA] involving the cleanup of the Fox River." And, additionally, plaintiffs "have asserted counterclaims against the United States in that case, alleging they are entitled to recover response costs and damages from the United States based on the Army Corps of Engineers' (USACE) activities related to the Site and paper recycling activities by federal agencies." The court concludes that ENRD's Environmental Enforcement Section, which is representing the EPA in enforcing the CERLCA claims against plaintiffs, and ENRD's Environmental Defense Section, which is defending the USACE against the CERCLA claims brought by plaintiffs, have "specifically competing interests." The court holds that "communications between the attorneys representing [the adverse parties] therefore cannot be protected by attorney work product, attorney-client, or deliberative process privileges."

5. Baker v. DHS, No. 11-588, 2012 U.S. Dist. LEXIS 8718 (M.D. Pa. Jan.25, 2012) (Caputo, J.)

Re: Request for records concerning plaintiff's employment dispute with the Secret Service regarding his service in the Navy Reserves

Holding: Granting, in part, defendant's motion to dismiss as moot plaintiff's claim to the extent it seeks a response to the request, and denying defendant's motion to dismiss as to the withholdings made and ordering defendant to submit a Vaughn Index; and deferring ruling as to plaintiff's entitlement to attorney's fees

• Mootness: The court concludes that "[p]laintiff's claim, to the extent that it seeks to compel the Secret Service to respond to [his] FOIA request, was rendered moot by the Secret Service's eventual document production." However, as to plaintiff's claim that the agency failed to justify its withholdings, the court finds that the claim is not moot, and "direct[s] the Defendant to submit a Vaughn Index" to enable the court to determine that information at issue was properly withheld. The court finds that the declaration submitted by the Secret Service "offers neither the Court nor the Plaintiff any opportunity to make a meaningful appraisal as to whether the stated exemptions apply, and forces reliance solely on the agency's conclusory determination."

6. Bonilla v. DOJ, No. 11-20450, 2012 WL 204202 (S.D. Fla. Jan.24, 2012) (Cooke, J.)

Re: Request for records concerning plaintiff and DOJ attorneys; at issue is plaintiff's request to the U.S. Secret Service for records pertaining to himself

Holding: Granting defendants' motion to dismiss plaintiff's claim against the Secret Service as it has been mooted by the release of documents

• Mootness: Because "[p]laintiff's Complaint asserts [against the Secret Service] only claims regarding the untimely disclosure of documents requested pursuant to the FOIA" and the Secret Service "has now provided such non-exempt responsive documents to Plaintiff," the court concludes that "[t]here is no longer a live case or controversy before [it] with respect to Plaintiff's claims against the Secret Service." As such, the court grants Secret Service's motion to dismiss on the basis that it lacks subject matter jurisdiction over those claims.

7. Schoenman v. FBI, No. 04-2202, 2012 WL 171576 (D.D.C. Jan.23, 2012) (Kollar-Kotelly,J.)

Re: Request for records pertaining to plaintiff, Lord Bertrand Russell, and six organizations; at issue is the disposition of 120 records referred by the FBI to the CIA

Holding: Denying plaintiff's two motions to late file where he failed to establish "good cause" for the requested extensions and did not demonstrate that his failure to act within the specified times was the product of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1); granting CIA's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 1 and 3 were proper; denying plaintiff's cross-motion for summary judgment; and entering final judgment marking the end of the case

• Exemption 1: The court holds that the CIA properly asserted Exemption 1 to protect: "(a) information that would reveal the identities of human and foreign intelligence service sources; (b) information pertaining to source relationships that the CIA has forged with foreign intelligence services and liaisons; and (c)information pertaining to the CIA's foreign intelligence activities and methods." The court finds that the CIA adequately "explain[ed] why the information withheld in this case is properly classified as 'confidential' or 'secret' under Executive Order13,526" where its declarations discussed "in considerable detail, that the disclosure of such information would cause damage or serious damage to national security." "[A]ccording substantial weight and deference to [the CIA's] declarations, the Court finds that it is both plausible and logical that the disclosure of the information withheld by the CIA 'reasonably could be expected to result in damage to the national security.'" With regard to plaintiff's assertion that the information resides in the public domain, the court finds plaintiff's "generalized argument falls considerably short of meeting [his] burden." The court also dismisses plaintiff's contention that "the classification of the information at issue is calculated to hide past or present government improprieties" as "'speculative, unsupported, and contradicted by all evidence in the record.'"

• Exemption 3: The court finds that the CIA properly invoked Exemption 3 in conjunction with the Central Intelligence Agency Act of 1949, which protects from disclosure "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA]," to withhold "information about its foreign intelligence collection activities, the names of its employees, personal identifiers, official titles, file numbers, and internal organizational data." Additionally, the court concludes that the CIA properly asserted the National Security Act of 1947, which protects from disclosure "intelligence sources and methods," to protect "information about classified intelligence sources and methods, including information pertaining to human and foreign intelligence service sources, covert installations, dissemination-control markings, and technical intelligence collection."

• Segregability: Based on its review of the documents and the CIA's declaration which "describe[s] how the CIA carefully reviewed and released all reasonably segregable information, which included conducting a line-by-line review of each document in an attempt to identify and release non-exempt portions of each document," the court concludes "the CIA has adequately demonstrated, in reasonable and non-conclusory terms, that all non-exempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

8. Hasbrouck v. U.S. Customs & Border Protect., No. 10-3793, 2012 WL 177563 (N.D. Cal. Jan.23, 2012) (Seeborg,J.)

Re: Request for records concerning plaintiff, information about searching for and retrieving data from Customs and Border Patrol's (CBP's) databases, and information about the processing of his Privacy Act request

Holding: Granting CBP's motion for summary judgment to the extent that it is not required to produce information subject to Exemption 7(E); and granting plaintiff's motion for summary judgment to the extent that CBP must engage in further searches and produce any responsive information; and ordering parties to confer as to issues that remain in dispute

• Exemption 7(E): The court concludes that CBP properly withheld pursuant to Exemption 7(E) a "list of 'personal' or 'unique' identifiers by which data can be retrieved" from different CBP records. The court notes that "[w]hile it may be of little consequence to law enforcement efforts to disclose that CBP can retrieve information based on obvious identifiers such as birthdates, passport numbers, or similar data, it manifestly would implicate security concerns to disclose that CBP also tracks one or more non-obvious identifier, or for it to admit that it cannot retrieve information except by obvious identifiers."

• Adequacy of search: The court determines that "CBP has not shown why it would be unreasonable, unduly burdensome, or otherwise inappropriate to require it to conduct electronic searches for responsive information with variant spellings of [plaintiff's] name, as specified in his requests," and directs CBP to do so. The court also notes that, "[t]o the extent CBP intends to rely on exemptions, even in the alternative, it should supplement its Vaughn index." The court orders the parties to engage in further "discussions to clarify, and potentially resolve, any disputes that may remain between them."

9. Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D.Va. Jan.23, 2012) (Ellis,J.)

Re: Request for records concerning a dispute between corporate entities engaged in the provision of housing to members of the military and their family members

Holding: Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera

• Adequacy of declarant: Contrary to plaintiff's contention, the court finds that "it is apparent from [the declarant's] specific averments regarding personal knowledge, his position in the Army, his role in this matter, and the contents of declaration itself, that [the affiant] has personal knowledge of the procedures used in handling [plaintiff's] request and familiarity with the documents at issue." Furthermore, the court notes that even assuming that the declaration "were somehow found to be deficient with respect to personal knowledge, this deficiency has been cured by the Army's submission of several supplemental declarations."

• Adequacy of search: The court concludes that the Army conducted a reasonable search for records responsive to plaintiff's request where its declaration describes in detail the procedures used, the divisions searched, and the results of those efforts. The court finds that plaintiff's "mere speculation" that other documents must exist "is 'insufficient to raise a material question of fact with respect to the adequacy of the agency's search.'"

• Adequacy of Vaughn Index: The court concludes that certain errors in the Vaughn Index, which the Army remedied, "are not sufficient grounds for striking the entire index or questioning the good faith of the Army." Moreover, the court notes that, in this case, "almost a thousand pages of documents [were] gathered by the Army in response to [plaintiff's] request" and observes that "'[p]arties who frame massive and all-inclusive requests for documents should expect some fall-off from perfection when the agency responds."'

• Exemption 5 (attorney-client & deliberative process privileges): The court concludes that the Army properly asserted the attorney-client privilege where it "has provided sufficient factual information for an independent evaluation of the applicability of the exemption and there is no reason to question the Army's good faith" and where it demonstrated that the "documents were not shared outside the Army." With respect to the documents that were withheld solely on the basis of the deliberative process privilege, the court concludes that the Army's submissions are insufficient for it to determine whether the communications are pre-decisional or post-decisional and whether they satisfy other aspects of the privilege. Because there are relatively few documents at issue, the court states that it will conduct an in camera review to determine the applicability of the deliberative process privilege.

• Exemption 5 (common interest doctrine)/threshold: At the outset, the court notes that "for the common interest doctrine to apply, an agency must demonstrate that, at the time of the communication in question, it had decided to support an outside party in a legal matter, and that doing so was in the public interest." Here, the court concludes that "the Army has demonstrated (i) that it shares a common interest with [a corporate business partner] in connection with a Georgia state action and [the company's] legal efforts to replace [plaintiff] as property manager [for military housing], and (ii) that it has determined that replacing [plaintiff] is in the public interest." Contrary to plaintiff's argument, the court finds that the Army is not required to be a party to the Georgia litigation in order for the common interest doctrine to apply. The court concludes that "although the Army is not a named party in the Georgia state action, it a 49% owner of one of the plaintiffs [in that case], and thus clearly can be considered a party in interest with respect to that litigation." The court finds that "even if [the Army's business partner] is motivated by profits, while the Army is motivated by the public interest, they still share a 'common and unitary' interest if they both seek the same result, in this case success in the Georgia state action and removal of [plaintiff] as property manager at Fort Benning and Fort Belvoir."

The court also determines that "it is entirely appropriate for the Army's financial interest to be the basis of the common interest doctrine," but notes that, here, "the entirety of the record reveal[s] other interests as well, such as the importance both to soldiers' lives and the Army's reputation of having well-run family housing programs." The court also concludes plaintiff's reliance on the Supreme Court's decision in Klamath, which "held that Exemption 5 did not extend to self-interested lobbying by outside parties,""is misplaced." Noting that Klamath did not involve the common interest doctrine, the court finds that "once an agency is 'actually persuaded' that a particular legal action advocated by a private entity is in the public interest, then Exemption 5 may apply." Here, "the Army does not seek to apply Exemption 5 to communications prior to its May 14, 2010 decision to agree with [its business partner's] proposed course of action, but only those communications after it was actually persuaded that course of action was in its interest."

• Exemption 5/attorney client privilege: Having determined that the common interest doctrine applies to certain communications exchanged between the Army and its business partner, the court concludes that those documents were properly protected by the attorney-client privilege. The court finds that the Army's submissions describe "the parties to the communication, date, and mode of communication," "provide the subject-matter of the communications and that the subject-matter is confidential," "identif[y] the documents in question with reasonable specificity," and, furthermore, plaintiff "does not object to the sufficiency of the Army's descriptions of the documents."

• Exemption 6: The court finds that "[t]here is no dispute regarding the Army's application of Exemption 6" to protect employees of a realty firm, as well as DOD employees, noting that "there is virtually no public interest in disclosure of the names or contact information in question, and notably, [plaintiff] makes no argument to the contrary." Accordingly, the court concludes that "any minimal public interest in disclosure is outweighed by the individuals' substantial privacy interest."

• Exemption 4/confidential: As a preliminary matter, the court notes that because the documents withheld pursuant to Exemption 4 "satisfy the tests for confidentiality under both the National Parks and Critical Mass standards, it is unnecessary to reach or decide which test is required in the Fourth Circuit," which "has not yet determined whether to adopt the [D.C. Circuit's] Critical Mass modification to the National Parks test." Here, the court concludes that the records, which "include timelines and tables created at the direction of [the submitter's] outside counsel that relate to [plaintiff's] alleged wrongdoing, notes taken during interviews with personnel relating to the allegations of misconduct, and internal reports detailing the alleged wrongdoing and evaluating the project's internal financial controls," as well as "selected emails, invoices, invoice logs, checks, and work orders," "were submitted voluntarily to the Army and thus satisfy this prerequisite to the Critical Mass test." The court determines that the records at issue "clearly satisfy" the standard for voluntary submissions, i.e., they "are considered 'confidential' if they are 'of a kind that would customarily not be released to the public by the person from whom it was obtained.'" The court notes that some of the documents "were created by or at the direction of [the submitter's] outside counsel in anticipation of litigation," while others were specifically selected and included in the binder submitted to the Army, reflecting the "thought processes, theories, and specific preparation [of the submitter's] outside counsel in anticipation of the Georgia state action, thus constituting work product."

Additionally, the court finds that "the application of the National Parks test leads to the same result" because "where, as here, the voluntary submission of information that would not customarily be released to the general public satisfies the Critical Mass test for confidentiality, so also disclosure of that information would impair the government's ability to obtain it in the future." Further, the court notes that, in this case, there are no "'sufficient external incentives'" for the company "to submit information that is not customarily released even though the submitter knows that information could become publicly available." As to plaintiff's argument that disclosure of the records is in the public interest, the court finds that "in this FOIA action, the dispositive public interest with respect to . . . [the] documents [withheld pursuant to Exemption 4] is ensuring that entities like [the submitter] continue to provide high quality, confidential materials to the Army in the future, so that the Army is alerted to potential wrongdoing of its contractors and thus able to reach well-informed decisions regarding the proper course of action in such situations."

• Segregability: The court holds that "[i]n its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard." Moreover, the court finds that "[t]he Army is under no obligation 'to commit significant time and resources to the separation of disjointed words, phrases or even sentences which taken separately or together have minimal or no information content.'"

WEEK OF JANUARY 30

District Courts

1. Stanko v. BOP, No. 10-724, 2012 WL 336173 (D.D.C. Feb.3, 2012) (Boasberg,J.)

Re: Requests related to documents confiscated from plaintiff's prison cell, and records concerning his transfer between federal institutions and separation orders pertaining to him

Holding: Granting BOP's renewed motion for summary judgment on the basis that it conducted an adequate search and properly withheld certain information pursuant to Exemption 7(C); and denying plaintiff leave to amend his complaint

• Adequacy of search: The court concludes that BOP conducted an adequate search for records pertaining to plaintiff's prison transfer and separation orders where the declaration explained "in painstaking detail" how such records were maintained and how the search was conducted. The court notes that "Plaintiff does not in his responses ever challenge the adequacy of the search," but "[t]his concession notwithstanding, the Court independently finds it adequate and, accordingly, summary judgment is appropriate on this issue."

• Exemption 7/threshold: The court determines that certain documents confiscated from plaintiff's prison cell which "were seized as part of a 'criminal investigation into Plaintiff['s] . . . threats of filing liens against [BOP] staff' . . . satisfy the law-enforcement-purpose requirement" of Exemption 7.

• Exemption 7(C): Observing that "Plaintiff has proffered no public interest whatsoever in the release of other inmates' legal material," the court finds that the balancing of the privacy and public interests "clearly tips in favor of BOP" because the "documents belong[] to other inmates and contain[] identifying information and facts about those inmates." Accordingly, the court concludes that BOP properly withheld these records pursuant to Exemption7(C). Likewise, BOP properly asserted Exemption 7(C) to protect "documents that were 'used as civil complaints by Plaintiff . . . against BOP staff and '[l]ien and . . . filing materials . . ., including draft liens against a federal judge and BOP employees.'" The court finds that "[d]isclosure would work an unwarranted invasion of [the employees' and judge's] personal privacy" and further notes that"[t]here is, of course, no public interest whatsoever in Plaintiff's obtaining such information so as to file false liens."

• Litigation considerations/amending the complaint: The court denies plaintiff leave to amend his complaint to add a claim "solely on the Privacy Act and forego any FOIA claim." The court concludes that, in this case, "[a]mendment would be futile because Plaintiff cannot maintain a Privacy Act claim against BOP here, as Defendant is exempt from the provisions of the Act." The court also determines that plaintiff's claim based on the Privacy Act and his First Amendment rights is futile. Additionally, the court notes that plaintiff's delay in raising these claims "a full eighteen months after the filing of his initial Complaint here, over four months after the Court dismissed most of his case" also provide "an independent ground for denial of leave to amend." The court comments that "[t]hese are claims [plaintiff] certainly knew of at the outset of this litigation, and, even if they had a shred of merit, they should have been brought then."

2. Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160 (D.D.C. Feb. 2, 2012) (Kollar-Kotelly,J.)

Re: Request for records pertaining to the finances and operations of plaintiff's competitors in the telecommunications industry

Holding: Granting FCC's motion for summary judgment on the basis that plaintiff conceded the merits of the FCC's withholding decisions; but also concluding that, on the merits, the FCC's withholdings under Exemptions 4 and 6 were appropriate and that it properly released all reasonably segregable information

• Exhaustion of administrative remedies: The court concludes that the doctrine of exhaustion does not preclude plaintiff from raising certain arguments before the court, which the FCC contends were not raised at the administrative appeal stage. The court finds that plaintiff adequately raised arguments as to whether certain materials withheld under Exemption4 constituted "confidential commercial information," and "could not have known it needed to raise issues surrounding Exemption 6 at the time its administrative appeal was due" since that exemption was not cited as a basis for withholding in the FCC's initial determination.

• Litigation considerations: The court holds that plaintiff "has conceded the merits of the FCC's continued withholding decisions" where it failed to challenge these determinations in its opposition. The court notes that plaintiff's "opposition is consistently targeted not to information that is currently being withheld by the FCC, but rather [to] the propriety of the FCC's past withholding decisions – that is, the information the FCC withheld before its supplemental release" of additional documents in the course of this litigation. Furthermore, to the extent that plaintiff's "stray comment" in its opposition that the FCC's motion for summary judgment should be denied can be construed as a "challenge [to] the propriety of the FCC's continued withholding decisions," the court "nonetheless conclude[s] that [plaintiff] has conceded the merits of the FCC's arguments for continued non-disclosure by failing to tender a meaningful opposition." Accordingly, the court grants the FCC's motion for summary judgment on this basis. However, the court also notes that, on the merits, "the result would be the same because the FCC has properly invoked Exemptions 4 and 6 as a basis for continued non-disclosure."

• Exemption 4/commercial or financial: As a threshold matter, the court finds that the "revenue information, checking account information, service pricing, and the like [which are at issue] are at the core of 'commercial or financial information' eligible for protection under Exemption 4."

• Exemption 4/obtained from a person: The court finds that the requirement that the information be "obtained from a person" "is also clearly satisfied in this case because the information that the FCC continues to withhold under Exemption 4 was submitted by third parties," specifically, two companies that were competitors of plaintiff.

• Exemption 4/required and voluntary submissions: The court notes that the certain forms submitted by telecommunications companies constitute required submissions to the FCC. Applying the National Parks test, the court finds that "[r]egardless of whether the disclosure of [the detailed revenue] information [contained on the forms] would impair the FCC's ability to obtain similar information in the future, the FCC has shown that forced disclosure would likely cause substantial competitive harm to the [submitters]" because "the FCC has made a sufficient showing that the public disclosure of this information would, either on its own or in conjunction with other publicly available information provide competitors with specific information about [the submitters'] (1) competitive lines of business, (2) general market segmentation and positioning, and (3) competitive strength."

As to "portions of correspondence between [Universal Service Administrative Company (USAC)] and the [submitters] reflecting revenue information, checking account information, payment history, amounts owed to [the USAC's Universal Service Fund], customer information, and service pricing" withheld by the FCC, the court notes that although "[i]t is not entirely clear whether this information was submitted under compulsion or voluntarily," "the uncertainty is immaterial because the FCC's showing would satisfy either [the Critical Mass or National Parks standard" for nondisclosure. The court finds that "[o]n the one hand, the FCC has made a sufficient showing that the public disclosure of this information would [cause the harms enumerated above as well as] . . . , reveal confidential account numbers, and . . . disclose service pricing and customer identities that could be used by competitors to contact customers and undercut pricing." Conversely, the court finds that "it is plain from the context and the FCC's submissions that information of this kind would not customarily be released to the public." As to plaintiff's claim that "the public interest in the particular information covered by its requests should outweigh the private interest in non-disclosure," the court finds that once Exemption 4 is satisfied, "it is not the district court's role to second-guess that judgment on a case-by-case basis." Additionally, the court rejects plaintiff's assertion that "Exemption 4 'does not extend to documents/information that is [sic] false' or fraudulent," noting that plaintiff "cites to no legal authority supporting its unique interpretation of the exemption – none."

• Exemption 6: The court holds that the FCC properly invoked Exemption 6 to withhold "the names and personal identifying information of officers, employees, and representatives of the [submitters]" because "the private interest in non-disclosure outweighs the public interest in disclosure."

• Segregability: Based on its review of the documents at issue and the FCC submissions that "explain[] how it carefully reviewed and released all reasonably segregable information, a process that included at least three rounds of review," the court concludes that "the FCC has adequately demonstrated, in reasonable and non-conclusory terms, that all non-exempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

3. Memphis Pub. Co. v. FBI, No. 10-1878, 2012 WL 269900 (D.D.C. Jan.31, 2012) (Jackson,J.)

Re: Requests for records concerning Ernest Withers, a deceased noted photographer of the civil rights movement; at issue is the portion of the request seeking an alleged "Withers informant file"

Holding: Denying the parties' motions for summary judgment as moot, without prejudice to the filing of additional motions in the future; concluding that because the subject of the request's informant file has been official confirmed, the FBI must review the file, if it exists, and produce a Vaughn index; and denying plaintiff's motion for in camera review of any responsive documents as premature

• (C)(2) Exclusion: The court notes that "the (c)(2) exclusion allows the government to inform the requester that it has no records responsive to the FOIA request without having to reveal whether or not there is a file or the named individual is actually an informant." The court finds unpersuasive plaintiff's argument that the exclusion should be limited to living individuals, or to certain types of investigations, opining that the statutory language is clear and contains no such limitations. Ultimately, though, the court finds that it need not reach the issue as to the scope and reviewability of the exclusion, because it finds the exclusion inapplicable. The court finds that, here, "Ernest Withers' status as a confidential informant has been officially confirmed" because "[t]he documents that supply that information were not leaked or disclosed by some other agency or a rogue employee [but rather] were transmitted to the plaintiffs [by the FBI] . . . as part of the FBI's own responses to the FOIA request." The court rejects the FBI's position that it has not officially confirmed the status of the alleged informant. With respect to the FBI's arguments that "official confirmation must be intentional and not inadvertent," the court observes that, in accordance with the dictionary definitions, the word "confirmation" "simply means that a fact has been established, not that it was formally or purposefully announced." As to the FBI's assertion that confirmation of Wither's informant status "would have a chilling effect on the activities and cooperation of other sources," the court notes that "[t]his opinion is not meant to and does not establish a general principle that inadvertent disclosure will always constitute official confirmation." Lastly, the court concludes that it "does not hold that the informant file must be produced – only that if the FBI has relied on the (c)(2) exclusion to treat the records as outside the scope of FOIA, that exclusion is no longer available in this case." As such, "the FBI must review the file if it exists and then either produce the responsive documents or produce a Vaughn index indentifying the specific exemptions under which any responsive documents have been withheld."

4. Gasaway v. Williams, No. 11-549, 2012 WL 264611 (N.D.N.Y. Jan.30, 2012) (Suddaby, J.)

Re: Claim that plaintiff's rights under the FOIA were violated when his requests for information sent to two individual special agents went unanswered

Holding: Adopting, with modification, the magistrate's recommendation to dismiss plaintiff's claim for failure to state a claim and to grant him an opportunity to amend his complaint; sua sponte dismissing with prejudice plaintiff's amended complaint for failure to state a claim and frivolousness pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a),(b); and directing plaintiff to show cause as to why this court should not bar him from filing future pro se actions without first obtaining leave of the court

• Litigation considerations: Subjecting the magistrate's report to a clear-error standard of review in light of the plaintiff's failure to challenge his findings, the court adopts the recommendation. The court notes that, in his amended complaint, plaintiff failed to cure the "primary pleading deficiency" identified by the magistrate and continued to name an individual rather than an agency as the defendant in his FOIA action. In connection with its adoption of the magistrate report, the court notes that the recommendation "would survive even a de novo review" and finds that "it would be inappropriate to permit Plaintiff to file a Third Amended Complaint before dismissal." Moreover, "the Court dismisses Plaintiff's Amended Complaint for two independent reasons." First, the court identifies seven deficiencies in plaintiff's FOIA request and, based on these defects, determines that it "cannot conclude that Plaintiff has alleged facts plausibly suggesting that agency records were withheld improperly when he has alleged facts plausibly suggesting that no proper request was made." Second, the court finds that "even if Plaintiff had alleged facts plausibly suggesting that he had properly made his FOIA request, he has alleged facts plausibly suggesting that much, if not all, of the information he is seeking (if it exists) is exempt from disclosure under FOIA."

5. Tarzia v. Clinton, No. 10-5654, 2012 WL 335668 (S.D.N.Y. Jan.30, 2012) (Maas,Mag.) (decision & order)

Re: Request for information concerning a report that the Department of State issued pertaining to hardships faced by asylum seekers from China

Holding: Granting, in part, defendant's motion for summary judgment with respect to withholdings under Exemptions 1 and 5 and certain aspects of its search; and denying, in part, defendant's motion for summary judgment with respect to other aspects of its search, and on the issue of segregability for a document protected by the deliberative process privilege

• Adequacy of search: As to plaintiff's claim that the State Department improperly limited the scope of the search to include only the documents relied on by the drafter of the requested report, the court concludes that "[t]he Department's search . . . was not unduly narrow" and finds that the declaration "describes a comprehensive search of the [Bureau of Democracy, Human Rights, and Labor] files for any document remotely related to the Report." The court concludes that "[i]n light of the breadth of the Department's search, the fact that it actually turned up only a few documents 'is not enough to render its search inadequate, even supposing that any reasonable observer would find this result unexpected.'" However, the court finds that the State Department's declaration lacks "any evidence that the Department undertook the next step in a reasonable investigation [upon learning that the drafter of the report relied on at least one confidential, nonpublic document] – namely, determining what, if any, additional nonpublic documents the drafter may have relied on in preparing the Report." The court therefore orders the State Department to take additional steps to determine whether nonpublic responsive material exists. Additionally, the court concludes the agency "also failed to conduct an adequate search of [its] Central File" where it limited its search terms to the exact subject headings and title of the report, rather than using more general search terms. The court finds that "[t]he Department has failed to demonstrate that conducting a broader search of the Central File would be unduly burdensome, and therefore has failed to show that it has performed an adequate search of that repository."

With respect to plaintiff's request for "'the names and titles of the person or persons who is or was responsible and/or assisted in the research, investigation and publication'" of a specific portion of the requested report, the court finds that, in contrast to another case where the court held that an agency was not required to create a document to respond to a request for a list of individuals following an extensive search that yielded few results, "in this case there is absolutely no evidence that the Department engaged in any search in an effort to locate documents responsive to [plaintiff's] request for identifying information." The court concludes that "[w]hile the Department need not compile a list of contributors to the Report or answer a question regarding the Report's authorship, that does not mean the Department is relieved of its obligation to conduct a search for pre-existing documents in the Department's possession that may provide that information." Lastly, the court rejects plaintiff's claim that documents referenced in the report, but not produced in response to the request, call into question the adequacy of the search. Rather, the court finds that plaintiff's "belief that additional responsive records exist even if correct... does not render the Department's search inadequate."

• Exemption 1: The court holds that the State Department properly invoked Exemption 1 to withhold portions of "a four-page telegram" from the American Embassy in Beijing that "report a candid briefing by a Chinese official on a sensitive, ongoing topic of concern to the U.S. government given in the expectation of privacy," the release of which the agency contends "'would have a damaging effect on future exchanges on this and other sensitive topics between U.S. officials and Chinese officials.'" Contrary to plaintiff's assertion that "the 'vague and conclusory language of the [State Department's] [d]eclaration' is insufficient to demonstrate that the information received from the Chinese official was obtained in confidence," the court finds that the agency's "Supplemental Declaration describes in detail why releasing the information to [plaintiff] would jeopardize a valuable source within the Chinese government, and further shows that the document is properly classified pursuant to Executive Order 13,526, because it contains 'information provided to the United States Government by a foreign government... with the expectation that the information, the source of the information, or both, are to be held in confidence."

• Exemption 5 (deliberative process privilege): With respect to an email exchange for which the Department of State asserted the deliberative process privilege, the court holds that to the extent that it "consists of 'a candid discussion' between or among government officials regarding the 'plausibility and weight to be given' certain factual reports, the information was properly withheld under Exemption 5." The court notes that "[s]uch a discussion is clearly deliberative, and it is predecisional because it was relied upon by the drafter of the Report."

• Segregability: The court finds that "to the extent that the [requested deliberative] emails include purely factual information regarding . . . 'family planning practices' that is severable 'without compromising the private remainder of the documents,' they must be released."

6. Rosenfeld v. DOJ, Nos. 85-1709, 85-2247, 90-3576, 2012 U.S. Dist. LEXIS 11643 (N.D.Cal. Jan.31, 2012) (Laporte, Mag.) (order)

Re: Requests for records regarding various subject matters, including FBI investigations of political activities at the University of California in the 1950s and 1960s

Holding: Denying plaintiff's request to file additional challenges to withheld or redacted records that the FBI produced in August 2010 in connection with a settlement agreement, which allowed for a "reasonable number of challenges," where plaintiff has delayed too long in seeking to raise these claims