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The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of January through June 1993. OIP is preparing additional compilations of decisions received during previous years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).
Supreme Court
Dep't of Justice v. Landano, 508 U.S. 165 (1993) (Exemption 7(D): the government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are "confidential" sources; a source is "confidential" if the source furnished information with the understanding that the FBI would not divulge this information except to the extent the FBI thought necessary for law enforcement purposes; a presumption of confidentiality is unwarranted because it does not "comport with common sense and probability"; the government offers no justification for this presumption other than "ease of administration"; neither the language of the statute nor Reporters Committee supports the proposition that the category of all FBI criminal investigative sources is exempt; although it is unreasonable to infer that all FBI criminal investigative sources are confidential, the government can often point to "more narrowly defined circumstances," such as a paid informant or the character of the crime and the source's relation to it, that will support the inference; the availability of this information will also allow the requester to "have a more reasonable opportunity" to rebut the argument that the circumstances support an inference of confidentiality; the government may use in camera affidavits to meet its burden of proving that disclosure would compromise legitimate interests).
Hale v. Dep't of Justice, 509 U.S. 918 (1993) (in this FOIA case where plaintiff seeks information for a collateral attack on his death sentence, cert. granted, case vacated, and remanded for further consideration in light of Landano).
Appeals Courts
Allen v. ATF, No. 92-5312 (D.C. Cir. May 25, 1993) (grants agency's motion for summary affirming, finding that information has been properly withheld under Exemptions 2 and 7(C)).
Andrade v. United States Sentencing Comm'n, 989 F.2d 308 (9th Cir. 1993) (agency: the Sentencing Commission, an independent body within the judicial branch, is not an agency for purposes of the FOIA).
Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir. 1993) (attorney fees: in light of Kay v. Ehrler, reverses this court's previous position and finds that pro se nonattorneys are not eligible for attorney fees under FOIA in cases in which they have substantially prevailed; explicitly reserves the question regarding pro se attorneys) (the district court did not abuse its discretion in refusing to sanction the defendant or issue a contempt citation).
Buckner v. CIA, No. 92-7117 (4th Cir. Apr. 1, 1993) (unpublished memorandum), 991 F.2d 787 (4th Cir. 1993) (table cite) (affirms district court's dismissal of plaintiff's FOIA request for plaintiff's failure to serve defendants with his summons and complaint).
Butler v. Marshall, No. 92-16955 (9th Cir. June 4, 1993) (unpublished memorandum), 995 F.2d 230 (9th Cir. 1993) (table cite) (the FOIA does not apply to state agencies).
Church of Scientology v. IRS, 991 F.2d 560 (9th Cir. 1993) (discovery in FOIA litigation: the district court erred in denying plaintiff the opportunity to conduct Rule 56(f) discovery prior to summary judgment regarding the adequacy of the IRS's search in response to its FOIA request).
Church of Scientology Int'l v. IRS, 995 F.2d 916 (9th Cir. 1993) (Exemption 7 (threshold): the IRS has the "requisite law enforcement mandate" to qualify as a law enforcement agency; the Exempt Organizations division "performs a law enforcement function by enforcing the provisions of the federal tax code that relate to qualification for tax exempt status"; documents remanded to the district court for a determination as to whether they were compiled for law enforcement purposes) (Exemption 7(C): vacates the district court's order to disclose documents containing the handwriting of 7 named agents and remands with instructions that the balancing test be applied to these documents; the district court did not address the public interest in disclosure; relying on Rural Housing Alliance v. Department of Agriculture, notes "that courts have long frowned upon the release of government compiled documents by individual consent"; the agents' alleged waivers of their privacy interests are insufficient to compel disclosure) (because the district court held merely that one page was not exempt under the attorney-client privilege, but never ordered its release, this order is not presently appealable).
City of Va. Beach v. Dep't of Commerce, 995 F.2d 1247 (4th Cir. 1993) (Exemption 5: the deliberative process privilege protects documents concerning the City of Virginia Beach's proposed water supply project prepared by the National Marine Fisheries Service (NMFS); while these documents "look backward" to the past permit proceedings, they also "look forward" to pending Federal Energy Regulatory Commission proceedings to which NMFS is obligated by statute to contribute; reverses and remands to the district court to review certain documents anew for identification and release of any segregable material; the district court may, in its discretion, order the government to perform this task since it is better able to do so; the Collins report and related documents may be withheld in their entireties under the deliberative process privilege because disclosure would reveal the recommendations of agency personnel and the direction of the agency's internal investigation and retrospective assessment.
Daingerfield Island Protective Soc'y v. Babbitt, 15 F.3d 1159 (D.C. Cir. 1993) (table cite) (grants government's motion for summary affirmance in this case where the district court ruled that the approval of the design of a highway interchange need not be published in the Federal Register).
Dickerson v. Dep't of Justice, 992 F.2d 1426 (6th Cir. 1993) (Exemption 7(A): in this FOIA case where plaintiff sought records concerning an FBI investigation conducted into the disappearance of Jimmy Hoffa, the district court did not abuse its discretion in not insisting on a full document-by-document analysis and in limiting its in camera review to the briefing materials; when the question to be resolved by the court is whether actual law enforcement proceedings are still pending, rather than spending time preparing a Vaughn Index, "generic" affidavits by people with direct knowledge ought to suffice; the district court correctly held that production of these records "could reasonably be expected to interfere" with a future prosecution; none of the nonpublic portions of the investigatory files need be segregated and disclosed).
Epps v. Dep't of Justice, No. 92-5360 (D.C. Cir. Apr. 29, 1993) (summary affirmance granted as to the materials withheld by DEA because they fall within the applicable exemptions to the FOIA) (sua sponte denies summary affirmance and remands to the district court with respect to the materials withheld by the FBI because its Vaughn Index is conclusory and does not contain sufficient detail to render the district court's decision capable of meaningful review).
Etemad v. United States, No. 92-55735 (9th Cir. Apr. 14, 1993) (unpublished memorandum), 990 F.2d 1257 (9th Cir. 1993) (table cite) (court lacks jurisdiction to consider plaintiff's FOIA claim because there is no indication in the record that she complied with procedures set forth in EEOC regulations for obtaining records under the FOIA).
FLRA v. DOD, 984 F.2d 370 (10th Cir. 1993) (Exemption 6: the Tenth Circuit joins the majority of the circuits and finds that agencies are not required to release home addresses of federal employees to the unions that are the exclusive representatives of the employees' bargaining units; federal employees possess more than a de minimus interest in their home addresses; applying Reporters Committee, finds that because the disclosure of these addresses has nothing to do with public scrutiny of government activities, there is no public interest to be weighed against the invasion of federal employee privacy).
Ferguson v. FBI, 996 F.2d 302 (2d Cir. May 19, 1993) (affirms district court's ruling that all information at issue is exempt under Exemption 7(D); consideration of plaintiff's claims under Exemption 7(C) is therefore unnecessary).
Kooritzky v. Reich, No. 92-5442 (D.C. Cir. May 25, 1993) (summary affirmance granted in this FOIA case where the district court had held that portions of an option paper were protected by the deliberative process privilege).
Krikorian v.
Dep't of State, 984 F.2d 461 (D.C. Cir. 1993) (Exemption 1 [E.O. 12,356]:
the agency properly withheld 7 documents because they contain information that
was communicated to our government by foreign governments on a confidential
basis, containing frank discussions of foreign relations matters that would
reveal intelligence sources and methods) (Exemption 3 [50 U.S.C.
Manos v. Dep't of the Air Force, No. 93-15672 (9th Cir. Apr. 20, 1993) (denies emergency stay of district court's disclosure order pertaining to 61 redacted applications for the Air Force's LL.M program).
Manos v. Dep't of the Air Force, No. 93-15672 (9th Cir. Apr. 21, 1993) (renewed emergency motion for stay temporarily granted) .
Manos v. Dep't of the Air Force, No. 93-15672 (9th Cir. Apr. 28, 1993) (denies government's renewed emergency motion for a stay of the district court's disclosure orders pending appeal; even though a denial of stay in these circumstances will render the appeal moot, the district court "properly rejected the evidence belatedly presented for the first time in appellant's motion for reconsideration" and thus the government has failed to demonstrate "any possibility of success on the merits"; the district court acted properly in ordering the disclosure of 61 redacted applications for the Air Force's LL.M program; grants the government a temporary stay for 3 days to allow the Supreme Court to consider a stay application; in 14 days, the government shall either dismiss this appeal voluntarily or show cause why it should not be dismissed as moot).
Maynard v. CIA,
986 F.2d 547 (1st Cir. 1993) (Exemption 3 [50 U.S.C.
McKone v. NSA, No. 92-5344 (D.C. Cir. Mar. 25, 1993) (motion for summary reversal denied; case remanded to the district court on the court's own motion to consider whether the National Security Council (NSC) has satisfied its obligation under the FOIA to conduct a reasonable search of its files, given the vagueness of the agency's search affidavit; the differences between the NSC's representations in the district court and the final affidavit excuse Mr. McKone's failure to challenge the adequacy of the search earlier in the proceedings).
Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) (agency: on interlocutory appeal, remands the case to the district court, having found that President Reagan's Task Force on Regulatory Relief is not an "agency" for purposes of the FOIA; the Task Force was not a body with "substantial independent authority" to give directions to executive branch officials; there is no indication that the various cabinet members of the Task Force exercised substantial independent authority when acting as the Task Force; the Task Force seemed to function as a committee which convened periodically to "advise and assist" the President concerning intra-agency disputes which only the President can resolve).
Mitchell v. Kemp, No. 92-6301 (2d Cir. June 11, 1993) (court lacks jurisdiction when no records have been withheld from the plaintiff).
Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993) (Exemption 6: the privacy of air traffic controllers reinstated after the 1981 strike will be protected by redacting from the requested material only those items which "by themselves" would identify the individuals, which includes names, present and pre-removal locations, and Social Security (and other similarly identifying) numbers) (Exemption 5: the attorney work-product privilege protects, in their entireties, case summaries, each of which contains a litigative assessment of the factual defenses presented by the controller, even if the information is not factual; the deliberative process privilege protects officials' analyses, recommendations, and proposals in individual cases prior to actual decisions to settle, except for factual portions of such documents).
Oliva v. Dep't of Justice, 996 F.2d 1475 (2d Cir. 1993) (Exemption 7(D): in light of Landano, remands case for a determination of whether documents relating to laboratory tests done by the FBI at the request of a local police department are exempt from disclosure under the FOIA).
PHE, Inc. v. Dep't of Justice, 983 F.2d 248 (D.C. Cir. 1993) (Exemption 2: the release of approximately one page of a chapter entitled "Interstate Transportation of Obscene Matter" from the FBI's Manual of Investigative Operations and Guidelines which concerns the sources of information available to FBI agents would create a risk of circumvention of agency law) (Exemption 7(E): the FBI properly withheld information relating to an investigative technique used in matters involving the sexual exploitation of children because its release would inhibit investigatory efforts) (Vaughn Index: the affidavit submitted by the Justice Department's National Obscenity Enforcement Unit of the Criminal Division did not adequately specify why it withheld vast sections of its Obscenity Prosecution Manual and A Manual for Child Sexual Exploitation and Pornography Prosecution; citing Schiller v. NLRB, notes that a district court clearly errs when it fails to make an express finding on segregability; on remand the district court may determine either that the agency should be required to submit a more detailed affidavit or to review the information in camera).
Providence Journal Co. v. Dep't of the Army, No. 92-1166 (1st Cir. Feb. 10, 1993) (government's petition for rehearing denied in this FOIA case where the court ordered the disclosure of the statements of 3 nonconfidential sources, in their entireties, relating to substantiated and unsubstantiated allegations against 2 senior officials in the Rhode Island National Guard).
Pub. Citizen v. FAA, 988 F.2d 186 (D.C. Cir. 1993) (displacement of FOIA: the Aviation Security Improvement Act of 1990 supersedes the publication requirements of the FOIA).
Ruppert v. Bell, No. 92-6294 (2d Cir. June 11, 1993) (proper party defendant: the FOIA authorizes suit against federal agencies, not individuals) (jurisdiction: the district court lacked jurisdiction because no documents were improperly withheld) (waiver: plaintiff cannot use a waiver argument now because he failed to raise it at the district court level) (Exemption 5: the deliberative process privilege protects the documents at issue).
Ruppert v. Messick, No. 93-7251 (2d Cir. June 11, 1993) (proper party defendant: the FOIA authorizes suit against federal agencies, not individuals) (waiver: plaintiff cannot make a waiver argument now because he failed to raise it at the district court level) (exhaustion: plaintiff has not exhausted his administrative remedies, because he failed to pay his overdue fees and did not request a fee waiver at the time records were requested) (Exemption 5: the deliberative process privilege protects the documents at issue).
Smith v. NTSB, 981 F.2d 1326 (D.C. Cir. 1993) ((a)(2)(C): agency is required to make publicly available and to index a manual setting out the sanctions policy by which the agency will be governed in deciding cases of terminal control area violations, because the new policy "affects" the public within the meaning of the Administrative Procedure Act).
Stimac v. Dep't of Justice, No. 91-1755 (7th Cir. Apr. 22, 1993) (unpublished order), 991 F.2d 800 (7th Cir. 1993) (table cite) (the FOIA is not "a private discovery tool" and agencies are not required to create records that do not exist; the plaintiff has not rebutted the agency's evidence of the reasonableness of its search by showing it was not conducted in good faith).
Sullivan v. CIA,
992 F. Supp. 1249 (1st Cir. 1993) (displacement of FOIA: plaintiff's
FOIA request for information on the disappearance of her father does not overcome
the stringent standard for the release of such information in the CIA Information
Act (50 U.S.C.
Thompson v. Walbran, 990 F.2d 403 (8th Cir. 1993) (plaintiff's FOIA request must fail because he did not seek the production of records and he sued an individual, rather than a federal agency).
Trenerry v. Dep't of the Treasury, No. 92-5053, 1993 WL 26813 (10th Cir. Feb. 5, 1993) (unpublished order), 986 F.2d 1430 (10th Cir. 1993) (table cite) (adequacy of request: IRS's obligation was to read plaintiff's request as it was drafted, not as plaintiff might have wished it to be drafted; agency is not required "to answer questions disguised as a FOIA request") (adequacy of affidavit: IRS's declarations as to plaintiff's request for numerical and subject indices and for tax assessment records are conclusory and not detailed enough to allow the court to grant summary judgment as to the adequacy of the searches or whether the IRS produced all relevant documents) (summary judgment: summary judgment is reversed as to 2 items that neither the IRS nor the district court addressed) (attorney fees: plaintiff is not barred from receiving attorney fees because the IRS released the documents without receiving a court order directing it to do so; the district court did not address the issue of entitlement to attorney fees).
United States v. F/V Alice Amanda, 987 F.2d 1078 (4th Cir. 1993) (Federal Register publication: the agency's failure to publish in the Federal Register the enforcement memorandum setting out the sampling procedures to be used for frozen sea scallops is not in itself dispositive because the vice president of the shipping company received a copy of the memorandum prior to the sampling in question).
United States v. Miramontez, 995 F.2d 56 (5th Cir. 1993) (agency: a federal court is not an agency for purposes of the FOIA) (Exemption 3 [Rule 6(e)]: protects the grand jury transcripts related to plaintiff's criminal case).
United States v. Sobkowicz, No. 92-15648 (9th Cir. May 10, 1993) (unpublished memorandum), 993 F.2d 886 (9th Cir. 1993) (table cite) (publication: the court declines to reach the question whether interest rates for loans under the National Service Scholarship Program have to be published in the Federal Register; plaintiff has failed to make an initial showing that she was adversely affected by the lack of publication).
Voinche v. Dep't of the Air Force, 983 F.2d 667 (5th Cir. 1993) (fee waiver (Reform Act): plaintiff has not exhausted his administrative remedies with respect to his request for a fee waiver) (mootness: plaintiff's requests that defendant answer interrogatories and for a Vaughn Index are moot because he has not appealed the summary judgment ruling in favor of the defendant).
Williams v. Barr, No. 92-5149 (D.C. Cir. Jan. 29, 1993) (summary affirmance granted in this FOIA case where the district court had held that federal courts are not agencies for purposes of the FOIA).
Williams v. FBI, No. 92-5176, 1993 WL 157679 (D.C. Cir. May 7, 1993) (defendant has shown that portions of one document were properly withheld under Exemptions 7(C) and 7(D) and that all segregable portions of that document have been released) (referral records: the FBI had referred a second document to DEA for direct response to plaintiff, but had not included a defense of the withholding of that document in this lawsuit; the case is remanded to the district court, where the FBI will be required to defend the withholding of this second document).
District Courts
Africa Fund v.
Mosbacher, No. 92-289, 1993 WL 183736 (S.D.N.Y. May 26, 1993) (Exemption
7(A): in this case where plaintiff seeks information about illegal shipments
of military equipment to South Africa, finds that the original purpose for which
records were collected is irrelevant to this exemption; protects documents that
would interfere with a lengthy or delayed law enforcement investigation; disclosure
risks alerting targets to the existence and nature of the criminal investigation)
(Exemption 3 [13 U.S.C.
AGS Computers v. Dep't of the Treasury, No. 92-2714 (D.N.J. Jan. 12, 1993) (Vaughn Index: within 30 days, the IRS must provide an Index and accompanying affidavit explaining why 265 documents filed with the IRS in 1988 concerning an integrated software system for electronic tax filing are protected under Exemption 4; the defendant must also explain why 56 pages were withheld in full and 15 pages in part under the deliberative process privilege).
A. Michael's
Piano, Inc. v. FTC, No. 2:92-603 (D. Conn. Jan. 29, 1993) (Exemption 3
[15 U.S.C.
Anderson v. Bates, No. 92-2896 (D.D.C. June 8, 1993) (jurisdiction: since no documents responsive to plaintiff's FOIA request exist, plaintiff has failed to state a claim under the FOIA) (proper party defendant: FOIA provides for a cause of action against federal agencies only, not individual officers).
Animal Legal Def. Fund v. Sec'y of Agric., 813 F. Supp. 882 (D.D.C. 1993) (agency records: the FOIA is not violated by agency regulation allowing organizations to store their plans for "dog exercise and nonhuman primate enrichment" on-site where the plans would not be subject to FOIA requests by members of the public; "the FOIA does not obligate agencies to 'exercise their regulatory authority in a manner that will maximize the amount of information available to the public'").
Antonelli v. Bureau of Prisons, No. 91-C-5776 (N.D. Ill. Mar. 31, 1993) (exhaustion: plaintiff has not exhausted his administrative remedies with regard to his FOIA request because the agency has not yet responded to the administrative appeal plaintiff filed in an attempt to obtain information that was redacted).
Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993) (finding that the electronic recordkeeping systems operated and controlled by the defendants must be preserved pursuant to the Federal Records Act, orders defendants to process the pending FOIA claim administratively, "with all deliberate speed," and to advise the court when this phase of the case will be ripe for judicial review).
Assassination Archives & Research Ctr. v. Dep't of Justice, No. 92-2193, 1993 U.S. Dist. LEXIS 5569 (D.D.C. Apr. 29, 1993) (duty to search: defendant agency's affidavit demonstrates that the search conducted by the FBI in response to plaintiff's FOIA request was adequate and reasonable) (Exemption 7 (threshold): records mentioning the names of Marita Lorenz as well as the assassination of President Kennedy were compiled in the course of FBI investigatory activities) (Exemption 7(C): absent any evidence of agency misconduct, this exemption protects the identities of individuals interviewed in the course of an FBI investigation) (Exemption 7(D): protects information that was obtained from sources in the course of a criminal investigation where there is a presumption of confidentiality) ("reasonably segregable": all reasonably segregable, nonexempt information has been disclosed) (the JFK Assassination Records Act does not alter the exemptions contained in the FOIA and does not create an independent cause of action within in the context of this case).
Assembly of Cal. v. Dep't of Commerce, No. S91-990 (E.D. Cal. May 27, 1993) (attorney fees: defendant does not dispute that plaintiffs have "substantially prevailed" in this FOIA case where plaintiffs sought adjusted census data for the State of California; plaintiffs have provided sufficient evidence that this data has been used in various contexts to the public benefit; this case also established a rule delineating under what circumstances the defendant cannot employ Exemption 5; plaintiffs did not personally benefit from the release of this information, but acted as public servants in initiating this action; a presumption that a public entity seeks information under the FOIA for the public benefit would not be contrary to FOIA's legislative history; defendant's "behavior from its initial denial of this information to its ultimate release of the data reveals a politically motivated spirit" that "it cannot musk with the sweet smell of 'reasonableness'"; plaintiffs' record provides ample documentation for establishing that the hours claimed were spent litigating this matter from the preparation and filing of the lawsuit to the obtaining of the requested information; this case was not unreasonably overstaffed; the hours claimed at successive stages, including cite checking, are also reasonable; despite plaintiffs' claim that they charged below-market hourly rates, the court, using "the Kerr 12-part test," finds that an upward adjustment of the lodestar figure is not appropriate here; a request for fees for fee application preparation time is proper under the FOIA; grants attorney fees of $346,204.98; "plaintiffs' fees reached this sum because of defendant's unyielding opposition at each and every stage of this case").
Atkin v. EEOC, No. 92-3275 (D.N.J. June 24, 1993) (exhaustion: plaintiff has not exhausted his administrative remedies in this FOIA case because he has not paid the fees previously assessed against him in another FOIA case) (jurisdiction: even though the plaintiff has now paid these fees, the court lacks jurisdiction because the fees were not paid at the time this complaint was filed).
Atkin v. EEOC, No. 91-2508 (D.N.J. June 24, 1993) (plaintiff's motion for reconsideration denied because it fails to show more than a disagreement with this court's Dec. 4, 1992 order; even though plaintiff has now paid the assessed fees, court lacks jurisdiction because the fees were not paid at the time this complaint was filed and the action was properly dismissed; plaintiff must resubmit his complaint and go through the administrative appeal process provided under the FOIA).
Bay Area Lawyers
Alliance for Nuclear Arms Control v. Dep't of State, No. C89-1843 (N.D.
Cal. June 4, 1993) (Exemption 1 [E.O. 12,356]: the Department of State's, CIA's,
Department of Energy's, and Arms Control & Disarmament Agency's (ACDA) affidavits
are sufficient to support the withholding of documents concerning nuclear test
explosions and the United States compliance with its treaty obligations in this
area; one ACDA document (a 2-page telegram) must be submitted for in camera
review within 30 days along with an affidavit sufficient to justify its withholding)
(Exemption 3 [50 U.S.C.
Beauman v. FBI, No. 92-7603 (C.D. Cal. Apr. 28, 1993) (adequacy of search: even though the defendant found no documents in response to plaintiff's FOIA request, the FBI's affidavit demonstrates in sufficient detail that its search was reasonably calculated to recover all documents requested by the plaintiff) (after in camera inspection, the court concludes that if a (c)(1) exclusion was employed by defendant, it was "amply justified").
Becker v. IRS, Nos. 91-C-1203, 91-C-1204, 91-C-1205, 1993 WL 114612 (N.D. Ill. Apr. 12, 1993) (plaintiffs' motion to amend denied in this FOIA case where plaintiffs sought records concerning an IRS investigation of them, because plaintiffs have not met the burden of showing either a manifest error of law or fact and have not presented newly submitted evidence).
Beckette v. United States Postal Serv., No. 90-1246, 1993 WL 730711 (E.D. Va. Mar. 11, 1993) (Exemption 2: the computer program by which the Postal Service tracks personnel grievances is of purely "internal" significance and its release would risk circumvention of agency law).
Brittany Dyeing & Printing Corp. v. EPA, No. 91-2711 (D.D.C. Mar. 12, 1993) (Exemption 7(C): protects the names, employment status, and other personal information concerning witnesses who assisted in the preparation of a draft enforcement summary report and final site report for a Superfund site; the remainder of the report must be released after being redacted; similarly, EPA may withhold identifying information from notes taken during witness interviews, but the witness interview notes must be redacted and released) (Exemption 5: the attorney work-product privilege does not protect witness affidavits because the investigators who took the affidavits merely did so at the behest of EPA attorneys and they do not contain revelations of EPA's litigation strategy) (Exemption 4: the release of reports prepared by Dun and Bradstreet containing its exclusive analysis of plaintiff's corporate financial situation would not cause substantial competitive harm to Dun and Bradstreet).
Cal-Almond, Inc. v. USDA, No. F-89-574 (E.D. Cal. Mar. 17, 1993) ("no records" defense: orders USDA to reacquire a list of names and addresses of almond growers associated with Blue Diamond; USDA sent this list back to Blue Diamond 4 days after it denied plaintiff's FOIA appeal).
Canning v. Dep't
of the Treasury, No. 91-2324 (D.D.C. Apr. 28, 1993) (duty to search: the
agency's detailed affidavits demonstrate that reasonable searches were conducted;
the FOIA does not require the agency to perform the "sweeping search" requested
by the plaintiff, where plaintiff was unable to specify the divisions to be
searched) (Exemption 3 [26 U.S.C.
Carney v. Dep't of Justice, No. 92-6204T (W.D.N.Y. Apr. 26, 1993) (adequacy of affidavit: the format of defendants' affidavits, declarations of supervisory employees signed under penalty of perjury, based in part on information provided to them by their subordinates, is sufficient for purposes of the FOIA) (summary judgment: plaintiff's request for summary judgment is denied because it is grounded in speculation, without any proof of defendants' bad faith) (fee waiver (Reform Act): plaintiff, a doctoral student and author, has not demonstrated that the release of information concerning judicial appointments would contribute significantly to the public understanding of the operations of the federal government; his occasional journalistic activities do not make him a "representative of the news media," even though Congress intended that phrase to be construed broadly).
Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 809 F. Supp. 148 (D.D.C. 1993) (Exemption 6: protects the names and addresses of individuals who have complained to the National Highway Traffic Safety Administration (NHTSA) about auto safety problems they may have experienced; the release of the mailing list of complainants concerned with auto safety is "clearly and foreseeably intrusive," and it is not outweighed by the public interest in disclosure; even though the Center for Auto Safety serves as a significant consumer rights advocate, this role does not imply that it deserves to take over the functions of the NHTSA; "The type of analysis required by the District Court in this area is somewhat unrealistic and calls for judgment trial judges are not particularly qualified to make.").
Ctr. for Nat'l Sec. Studies v. Office of Indep. Counsel, No. 91-1691 (D.D.C. Mar. 2, 1993) (discovery in FOIA litigation: in this FOIA case involving national security matters, plaintiff has not demonstrated that discovery is appropriate under the FOIA or that it is necessary in order to respond to defendant's motion for summary judgment).
Centracchio v. FBI, No. 92-0357 (D.D.C. Mar. 16, 1993) (exhaustion: plaintiff has not exhausted his administrative remedies with respect to his FOIA requests to the FBI, because he has failed to pay a 25% deposit for estimated duplication costs of $1120 and he has not requested a fee waiver) (grants the U.S. Marshals Service's, the Criminal Division's, and the Executive Office for the U.S. Attorneys's motions to dismiss; relatively few redactions were made and the court approves the legal and factual bases for each claimed exemption; the Parole Commission's motion to dismiss was granted because it made full disclosure in response to plaintiff's FOIA request) (duty to search: after reasonable searches, no records responsive to plaintiff's FOIA requests were found in INTERPOL, the Office of the Attorney General, or the Justice Department) (Exemptions 6 and 7(C): protect the Social Security numbers, dates of birth, and motor vehicle identification numbers pertaining to third parties) (Exemption 5: the attorney work-product privilege protects 172 pages in their entirety).
Church of Scientology
v. IRS, 816 F. Supp. 1138 (W.D. Tex. 1993) (Vaughn Index: the
IRS's index permits the court to "effectively and efficiently" evaluate the
contents of each record) (scope of request: documents generated subsequent to
the date specified in the request are outside the scope of the request and need
not be disclosed) (Exemption 2: forms affecting travel advances for lower-level
employees are viewed by the court as information concerning the allocation of
IRS resources; disclosure would not risk circumvention of agency law and this
information is of genuine public interest; protects information on a routing
slip including identities of lower-level employees and employee handwriting)
(Exemption 3 [26 U.S.C.
In re Church
of Scientology Flag Serv. Org. v. IRS FOIA Litigation, No. 91-423-T-10
(M.D. Fla. May 18, 1993) (Exemptions 3 [26 U.S.C.
Citizens Comm'n on Human Rights v. FDA, No. 92-5313, 1993 WL 1610471 (C.D. Cal. May 10, 1993) (adequacy of search: defendant's affidavits demonstrate that it has conducted reasonable searches in response to plaintiff's FOIA request for information concerning the drug Prozac) (Exemption 4: a New Drug Application "by definition contains trade secret information because it contains significant information about how a pioneer drug product is formulated, chemically composed, manufactured, and quality controlled"; disclosure of raw research data on the drug's safety and effectiveness, information concerning unapproved supplements to the application to market the drug in different dosages or for different purposes, and the manufacturer's sales and distribution data would cause substantial competitive harm to the submitter) (Exemption 5: the deliberative process privilege protects 17 memoranda prepared by the FDA when reviewing unapproved drug supplements because they contain advice, recommendations and opinions; no portion of these documents is segregable; if this information were available to the public prior to the completion of the drug approval process, it would confuse the public about the FDA's policy or procedures) (Exemption 6: protects the names of patients and medical personnel from these files).
Cohen v. FBI, 831 F. Supp. 850 (S.D. Fla. 1993) ("exceptional circumstances"/"due diligence": grants the FBI an Open America stay until May 30, 1993; "exceptional circumstances" exist where, as here, the agency is overwhelmed with FOIA requests which far exceed what was envisioned by Congress and where existing resources are insufficient to respond to the requests; the agency processes these requests on a "first-in, first-out" basis; expedited processing is denied in this case where the plaintiff seeks records pertaining to an investigation conducted from 1982 to 1984 concerning an apparent leak of agency information to Mitsubishi for use in litigation with Mitsubishi) (denies as premature plaintiff's request for a Vaughn Index because at this time no documents have been withheld on the grounds that they are exempt from disclosure).
Computer Prof'ls for Soc. Responsibility v. Dep't of Commerce, No. 91-2317 (D.D.C. Mar. 29, 1993) (no improper withholding: after conducting an adequate search, agency can locate no records pertaining to the United States policy on the export of computer technology used by foreign governments for recordkeeping purposes).
Constangy, Brooks & Smith v. NLRB, No. 3:86-0560 (M.D. Tenn. May 14, 1993) (attorney fees: defendant in this case was "particularly bureaucratically obdurate" and it was necessary that suit be filed to force the Board to comply with the FOIA; although the hourly rates were somewhat high for 1987, the ensuing delay and the interest that would have accrued more than make up for the difference; awards plaintiff $16,340 in attorney fees and $740.50 in costs).
Daingerfield Island Protective Soc'y v. Babbitt, 823 F. Supp. 950 (D.D.C. 1993) (publication: approval of design of highway interchange by the National Park Service need not be published in the Federal Register; it is not a substantive rule of general applicability, a statement of general policy, or an interpretation of general applicability).
Davis v. Office of Investigations, No. 92-2571 (D. Md. Feb. 19, 1993) (magistrate's recommendation) (exhaustion: to invoke his right to judicial review, plaintiff must first appeal the agency's denial of a FOIA request to the appropriate agency official), adopted (D. Md. Mar. 23, 1993).
Dayton Newspapers,
Inc. v. FBI, No. C-3-85-815 (S.D. Ohio Feb. 9, 1993) (Exemption 2: the
FBI's analysis of problems encountered in the planning and execution of its
operation to prevent a bank robbery must be disclosed; this information is of
genuine public interest; disclosure will not risk circumvention of agency law)
(Exemption 3 [28 U.S.C.
Ellis v. Bureau of Prisons, No. 92-2359 (D.D.C. June 3, 1993) (case dismissed with respect to 21 pages of requested information; however, defendant must designate a physician to assist plaintiff in obtaining these records administratively) (on or before June 30, 1993, the defendant must file a written report to the court addressing whether any documents responsive to plaintiff's FOIA request remain outstanding).
Engelking v. DEA, No. 91-0165 (D.D.C. Feb. 23, 1993) (Exemption 5: the attorney work-product privilege protects trial preparation notes and information concerning the investigation and prosecution of a criminal offense prepared by an Assistant United States Attorney) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects information that would identify third parties) (Exemption 7(D): protects information provided by a state or local law enforcement agency in the course of a criminal investigation; promises of confidentiality are inherently implicit in communications between law enforcement agencies).
Envtl. Tech., Inc. v. EPA, 822 F. Supp. 1226 (E.D. Va. 1993) ("Reverse" FOIA/Exemption 4: following Critical Mass, permanently enjoins EPA from disclosing pursuant to the FOIA unit prices from a contract awarded to the plaintiff by EPA for environmental clean-up services; the court concluded (without analysis) that the information was "voluntarily" submitted in response to EPA's request for bids, as well as being the sort of information that the company would not ordinarily share with its competitors or with the general public).
Envtl. Tech., Inc. v. EPA, No. 3:92-363 (E.D. Va. Mar. 19, 1993) (denies defendant's motion for reconsideration; the Federal Acquisition Regulations prohibit rather than mandate the disclosure of unit prices).
Ethyl Corp. v. EPA, No. 92-1185 (E.D. Va. Apr. 19, 1993) (adequacy of search: plaintiff has failed to contradict EPA's factual assertions regarding the adequacy of its document search) (Exemption 5: the deliberative process privilege protects each of 146 documents listed in the Vaughn Index concerning a fuel additive waiver because disclosure would discourage open, frank discussions within the agency; factual material is not "reasonably segregable" from the deliberative content of the documents; further disclosure would harm the public interest).
Farese v. Dep't of Justice, No. 83-0938 (D.D.C. Jan. 5, 1993) (Exemption 3 [Rule 6(e)]: protects 79 pages withheld by the FBI in their entireties because disclosure would identify the focus and direction of the grand jury investigation and the names of grand jury witnesses) (Exemption 7(C): protects the identities of third persons, federal employees, and the names and initials of FBI agents) (attorney fees: plaintiff has not substantially prevailed because he filed this action before the agencies had completed the administrative process; there is no public benefit in this information which the plaintiff sought to address his criminal case; withholding this information was reasonable; plaintiff has also failed to file the necessary accounting to demonstrate that he is entitled to costs; costs denied).
Feinberg v. Hibernia Corp., No. 90-4245 (E.D. La. Jan. 7, 1993) (Exemption 8: protects supervisory correspondence between a bank and the Office of the Comptroller of the Currency and the Federal Reserve Bank that was prepared as a direct result of or in connection with the bank examination process).
Fine v. DOE, 823 F. Supp. 888 (D.N.M. 1993) (Exemption 6: after in camera inspection, orders the disclosure of documents and portions of documents concerning a contract procurement process, an investigation of plaintiff, and various personnel actions involving plaintiff, a former DOE employee; defendants have not shown that plaintiff might be inclined to harass or intimidate agency or contractor employees, plaintiff is no longer employed by defendant, and the documents shed light on defendant's performance of its contract procurement duties; defendants must release handwritten and typed versions of a 6-page diary and 30 pages of notes describing conversations with plaintiff and other individuals; however, the identities of third parties, cooperating witnesses, and agency employees not provided by plaintiff may be withheld; defendants must also release names of agency employees interviewed as part of the internal investigation, the initials and names of agency employees who processed personnel documents, and the names of Inspector General personnel and contractor employees from a memorandum concerning contract manipulation, transmittal notes, and letters concerning plaintiff's grievance and allegations, with deletions to protect the identity of the authors; 5 sworn statements prepared during the grievance examiner's investigation must be released because they are part of plaintiff's grievance file to which he has independent access; defendant must release the names of contractor personnel from an agency memorandum discussing plaintiff's allegations; defendant may withhold the names of agency and contractor employees who cooperated with internal investigations, but must otherwise release their statements) (Exemption 5: the attorney work-product privilege protects typed notes prepared in anticipation of litigation; however, even though this privilege protects 25 pages of handwritten notes, the agency must submit a detailed justification regarding segregability of this information; the deliberative process privilege protects a proposal that was never adopted, a memorandum concerning plaintiff's charges against the contractor, portions of a memorandum memorializing a conversation with the plaintiff in which the author expresses opinions, portions of handwritten notes concerning performance appraisals, a memorandum discussing plaintiff's activities, and drafts of documents that were never made final; however, factual portions concerning plaintiff's allegations must be released; court rejects the use of this privilege to protect information that does not reflect opinion or opinions that defendant has not shown to be part of a deliberative process) (Exemption 7 (threshold): the threshold requirement was met by DOE, an agency with both administrative and law enforcement functions, because it compiled these documents as part of its investigation of 2 specific allegations of contract procurement violations) (Exemption 7(C): protects the identities of witness-employees, third parties, a contractor employee, and FBI Special Agents; because plaintiff knows the identities of some third parties, their privacy interest is outweighed by even a low public interest and their identities must be released; in other instances, the privacy rights of third parties are outweighed by the strong public interest in this material; factual, nonidentifying information withheld under this exemption must be released).
Freeman v. Dep't of Justice, 822 F. Supp. 1064 (S.D.N.Y. 1993) ("exceptional circumstances"/"due diligence": grants defendant's request for an Open America stay in this FOIA request where plaintiff seeks information about the "October Surprise"; because documents releasable under the FOIA may not be withheld as exempt under the Privacy Act, it is proper for the defendant not to distinguish between FOIA and Privacy Act requests when assigning a number which establishes the order of processing; plaintiff's intention to submit this information to Congress does not create an exceptional need, because Congress has alternative means of obtaining this information; "due diligence" was shown by defendant in releasing 1300 pages of information as soon as it had processed them, rather than waiting for the remainder of the information to be processed; defendant has demonstrated "exceptional circumstances" by the fact that it had received 7500 FOIA requests by March 31 of this year and has a backlog of 10,000 requests; due to an administrative error, plaintiff's FOIA request was assigned a processing number 3 months after receipt; the FBI must reconstruct events to ensure that plaintiff receives her rightful place in line).
Freeman v. Dep't of Justice, No. 92-0557, 1993 WL 260694 (D.D.C. June 28, 1993) (Exemption 7(C): despite plaintiff's need of this information for use in his criminal defense, this exemption protects the identities of and information about individuals "merely mentioned" in FBI files, individuals who are of investigative interest to the FBI, FBI employees, and federal state and local government employees; information about informants is properly withheld under Exemption 7(D), not Exemption 7(C)) (Exemption 7(D): in accordance with Landano, both parties may submit further affidavits on the withholding of the identities of and information provided by nonfederal law enforcement agencies and individuals acting under express or implied assurances of confidentiality; however, confidentiality has not been waived by state and local law enforcement agencies and 5 local, state, or federal law enforcement officers; plaintiff's evidence fails to demonstrate that they have shown a "complete disregard for confidentiality" as required by Dow Jones & Co. v. Department of Justice, nor has plaintiff shown that information available to the public duplicates that being withheld) (Exemption 7(F): protects information that would identify FBI undercover law enforcement officers) (in camera inspection: in camera inspection is denied as to 4 withheld documents because the FBI's affidavits are adequately specific to establish that they were properly withheld) (duty to search: plaintiff's request for an expedited search of the FBI's confidential indices or search warrant files is denied; if plaintiff wishes to pursue the 2 remaining searches he identified, he should so inform the court and indicate his willingness to pay the costs that would accrue).
Georgacarakos v. United States Sentencing Comm'n, No. 93-0657 (D.D.C. Apr. 30, 1993) (the U.S. Sentencing Commission is not a federal agency subject to the FOIA).
Gilmore v. NSA,
No. C92-3646, 1993 U.S. Dist. LEXIS 7694 (N.D. Cal. Apr. 30, 1993) (Exemption
1 [E.O. 12,356]: in describing the threat to national security posed by the
disclosure of Part III of Military Cryptanalytics, defendant's affidavit
provides "as much information as possible without thwarting the [claimed] exemption's
purpose"; the affidavit adequately proves that the release of this information
would vitiate our cryptanalytic capabilities) (Exemption 3 [P.L. No. 86-36]:
cryptographic information is protected because its disclosure would expose NSA's
lawful intelligence collection mission; [18 U.S.C.
Goldstein v. HHS, No. 92-2013 (S.D. Fla. May 21, 1993) (magistrate's recommendation) (Exemption 4: the agency's affidavits demonstrate that the release of documents concerning the participation of a drug testing laboratory in the National Laboratory Certification Program would bring substantial competitive harm to that laboratory because the inspection results are "very susceptible" to misinterpretation by people unfamiliar with this kind of program), adopted (S.D. Fla. July 20, 1993).
Gov't Accountability Project v. NRC, Nos. 86-1976, 86-3201, 1993 WL 13033518 (D.D.C. June 30, 1993) (Exemption 5: the deliberative process privilege protects information concerning the status of the NRC's investigation; neither the deliberative process or attorney-work product privilege protect one document which merely interprets the NRC's existing policy on the obligation of nuclear licensees to report allegations of wrongdoing to the NRC) (Exemptions 5 and 7(C): the deliberative process privilege and Exemption 7(C) protect 4 documents concerning this obligation to report) (Exemption 7(C): protects information that would identify informants contained in investigatory reports compiled by the NRC) (Exemption 7(D): applying Landano, finds that the exemption protects the names of individuals who provided information to NRC investigators about potentially criminal matters involving co-workers) (Exemption 4: applying the "spirit" of Critical Mass, finds that the exemption protects documents produced by the licensee in connection with an alleged wrongdoing and obtained by the NRC through a confidential source; "stingy application of Exemption 4 in this case will discourage candor") (attorney fees: plaintiff did "substantially prevail" as to one document, all others were released through standard administrative channels; "organized 'watchdog' groups dedicated to scrutinizing the policies of [the] NRC and other agencies" are not the "sort of average person" meant to benefit from the FOIA's fee provision; attorney fees denied).
Harrison v. United States Nat'l Archives, No. 93-0448 (D.D.C. May 21, 1993) (fee waiver (Reform Act): denies plaintiff's request for a fee waiver for the remaining voluminous records relating to the assassination of President Kennedy; these records have already been released to the public under the FOIA and have been made available by the National Archives) (defendants have provided a large number of documents in response to plaintiff's FOIA request; plaintiff's remaining claims are frivolous; complaint dismissed sua sponte).
Hill v. Blevins,
No. 92-0859 (M.D. Pa. Apr. 12, 1993) (proper party defendant: FOIA does not
authorize a cause of action against individual federal agency employees) (Exemption
3 [5 U.S.C.
Int'l Diatomite
Producers Ass'n v. Soc. Sec. Admin., No. C-92-1634, 1993 WL 137286 (N.D.
Cal. Apr. 28, 1993) ("unreasonable" burden: it is not an unreasonable burden
for the agency to search 4 computerized listings to determine whether 258 individuals
are dead or alive) (agency records: in order to respond to this FOIA request,
the agency can either create a new list or produce and redact the existing lists)
(Exemption 3 [42 U.S.C.
Koff v. Comm'r, No. S93-125 (E.D. Cal. June 30, 1993) (court lacks jurisdiction because, after a diligent search, the agency could find no records responsive to plaintiff's FOIA request).
Kuchta v. Harris, No. 92-1121, 1993 WL 87705 (D. Md. Mar. 25, 1993) (exhaustion: plaintiff has not exhausted his administrative remedies; administrative exhaustion does not occur in the FOIA context until the required fees are paid in full; plaintiff has paid only $2370.64 of the $6103.50 fees; he has neither expressed his willingness to pay the balance nor has he sought a waiver of these fees; even though defendant's response letter was insufficient (it failed to inform plaintiff of his right to appeal), the administrative time limits proscribed in the Act begin only after the agency has received the fees associated with the FOIA request).
Lacefield v. United States, No. 92-N-1680, 1993 WL 268392 (D. Colo. Mar. 10, 1993) (Exemption 5: the attorney-client privilege protects 2 memoranda written by IRS District Counsel attorneys in response to requests from other IRS divisions concerning the tax exempt status of disability pensions; it also protects a request from the District Counsel's office for advice from the National Office of the IRS and a response concerning the taxability issue; the deliberative process privilege protects 2 preliminary drafts explaining the IRS position on the taxability of pensions and an employee's memorandum to his supervisor containing his opinion on the tax status of the police and firefighter pensions; this privilege also protects 3 documents sent by a District Counsel attorney to a Chief Counsel attorney containing opinions on the taxability issue and asking for advice; the deliberative process privilege has been waived with respect to a letter from a City of Denver attorney to the Colorado Department of Safety regarding pensions because the letter was circulated to the IRS; the attorney work-product privilege protects a memorandum between District Counsel attorneys and notes made by a District Counsel attorney during deliberations on this issue, because while there is no pending litigation, there is an "articulable claim") (adequacy of search: agency need not engage in a nationwide search for documents when a FOIA request is filed with one district office).
LaRouche v. Dep't
of Justice, No. 90-2753, 1993 WL 388601 (D.D.C. June 24, 1993) (Vaughn
Index: although defendants' Vaughn Indexes are generally sufficient,
given the underlying presumption in FOIA litigation favoring disclosure, the
court gives plaintiff the benefit of the doubt wherever descriptions are inadequate)
(Exemption 2: protects internal routing slips) (Exemption 3 [Rule 6(e)]: the
release of a letter written by an Assistant United States Attorney asking for
the assistance and participation of the IRS in the investigation of Lyndon LaRouche
would not reveal the inner workings of the grand jury; this exemption protects
a second letter by the same author which discusses the grand jury's reaction
to certain evidence presented to it; defendant must review one requested file
and disclose those portions which were revealed at trial; the fact that some
aspects of the grand jury proceedings were leaked to the press has no bearing
on this FOIA litigation; [26 U.S.C.
Manchester v.
DEA, 823 F. Supp. 1259 (E.D. Pa. 1993) (adequacy of affidavits: in this
FOIA case where plaintiff seeks exculpatory information, finds that agencies'
affidavits are detailed and nonconclusory) (duty to search: agencies' searches
were reasonably calculated to uncover all relevant documents) (Exemption 3 [18
U.S.C.
Manna v. Dep't
of Justice, 815 F. Supp. 798 (D.N.J. 1993) (Exemption 7(A): agency's generic
affidavit demonstrates that disclosure of 14 documents concerning La Cosa Nostra
figure Louis A. Manna would interfere with ongoing criminal investigations;
these documents include FBI witness reports, Labor reports, surveillance records,
privileged records, and Bureau of Prisons materials; the disclosure of FBI reports
could result in a chilling effect on potential witnesses in organized crime
investigations) (Exemption 7(C): the disclosure of several FBI reports, litigation
worksheets, and miscellaneous records would jeopardize the privacy interests
of witnesses, informants, victims, and law enforcement personnel; because La
Cosa Nostra is so violent and retaliatory, these identities must be safeguarded,
and plaintiff has not asserted any public interest in disclosure) (Exemption
7(F): the release of several FBI reports and miscellaneous records would endanger
the life or physical safety of witnesses) (Exemption 3 [18 U.S.C.
Manna v. Dep't of Justice, No. 92-1840 (D.N.J. Apr. 21, 1993) (letter opinion) (plaintiff's request for reconsideration of court's March 3, 1993 ruling in this FOIA case is denied because it "merely states arguments that either were presented or could have been presented in his original papers").
Manos v. Dep't of the Air Force, No. C-92-3986, 1993 U.S. Dist. LEXIS 1501 (N.D. Cal. Feb. 10, 1993) (exhaustion: the plaintiff constructively exhausted her administrative remedies because the agency did not respond to her FOIA request within the statutory time limits; applying Oglesby v. Department of the Army, finds that the Air Force's notice that it needed more time to process the plaintiff's request is legally ineffective because it was not actually received by the plaintiff until after she had filed this action) (Exemption 6: the Air Force's showing is "wholly inadequate" to sustain its burden of demonstrating that disclosure of application packages pertaining to the Air Force's post-graduate legal program with only names and addresses redacted would be a "clearly unwarranted invasion of personal privacy"; by March 8, 1993, the Air Force will submit the application packages with names and addresses redacted for in camera inspection in order for the court to determine whether such redactions will adequately protect the privacy interests of the applicants; the public has a substantial interest in disclosure of matters related to the publicly financed education of military officers) (disciplinary proceedings: while misguided, the Air Force's actions in response to plaintiff's request were not so excessive as to be "arbitrary and capricious") (sanctions: denies plaintiff's request that the court sanction the Air Force and its attorney for making comments irrelevant to the FOIA issues before the court) (attorney fees: plaintiff's request for fees is premature because the court cannot yet determine whether she has substantially prevailed).
Manos v. Dep't of the Air Force, No. C-92-3986 (N.D. Cal. Mar. 24, 1993) (Exemption 6: after in camera inspection, orders the disclosure of 61 applications for the Air Force's 1993-94 LL.M program, which were redacted in accordance with a prior court order to remove only names and addresses; "the court cannot discern how there is anything more than a 'mere possibility' that Manos or others will be able to discern" the identities of the applicants; one application may be withheld because Manos' familiarity with this individual would indicate that there is more than a "mere possibility" that she would be able to identify his application; within 12 days, the Air Force shall release the redacted application packets to the plaintiff) (attorneys fees: plaintiff has substantially prevailed in this action; the parties must brief the court on the issue of attorney fees under the FOIA for pro se plaintiffs).
Manos v. Dep't of the Air Force, No. C-92-3986 (N.D. Cal. Apr. 9, 1993) (defendant's motion for reconsideration denied; this motion is "based on previously unsubmitted, but obviously available, evidence" that Manos will be able to discern the identities of 61 officers whose redacted LL.M applications are the subject of her FOIA request; "The court is not inclined to allow such a piecemeal approach to litigation"; the government may not have an additional 14 days to comply with this court's disclosure order).
Md. Coalition for Integrated Educ. v. Dep't of Educ., No. 92-2198 (D.D.C. June 30, 1993) (Exemption 5: the documents plaintiff seeks in this case relate to precisely the same compliance monitoring effort as the documents in Maryland Coalition for Integrated Eduation., Inc. v. Department of Justice; there, the court found that routine review of a state's compliance with the Education of the Handicapped Act does not constitute agency decisionmaking for purposes of Exemption 5; the documents must be released within 10 days).
Nat'l Broad. Co. v. SBA, 836 F. Supp. 121 (S.D.N.Y. 1993) (Exemption 4: 4 letters and one cash-flow projection and estimate may be withheld in whole or in part because they contain confidential financial information the disclosure of which would both impair SBA's ability to obtain similar information in the future and would cause harm to Apex Energy Corporation's competitive position; another letter from an Exploration Manager to the president of Apex does not contain any such information and must be produced within 10 days, unless SBA expressly claims that it is protected under Exemption 9) (Exemption 9: protects the geographic or geological information contained in a letter and in an evaluation memorandum) (Exemption 5: the attorney-client privilege protects a request for a legal opinion from agency counsel and the preliminary legal opinion issued in response to that request; the deliberative process privilege protects a memorandum and handwritten notes used in the preparation of that memorandum containing a staff member's recommendations as to the liquidation of a small business investment company).
Nat'l Sec. Archive v. FBI, No. 88-1507, 1993 WL 128499 (D.D.C. Apr. 14, 1993) (Exemption 1 [E.O. 12,356]: agency's supplemental declaration demonstrates that the exemption protects information about the FBI's Library Awareness program contained in 3 documents, including "information regarding the dissemination of the source information," "channelization/dissemination instructions," and standard language from most intelligence investigations) (Exemption 3 [Rule 6(e)]: any Exemption 3 materials that remain at issue are protected to the extent that they implicate grand jury proceedings) (Exemption 5: the agency's affidavit does not adequately demonstrate that the deliberative process privilege protects a briefing book which was prepared for the use of an agency official testifying before Congress which contains 48 questions and answers) (Exemption 7(C): protects the identities of third parties merely mentioned in FBI investigative reports; given the scope of this FOIA request, any attempt to separate those reports that are stigmatizing from those that are innocuous would be "unduly burdensome") (Exemption 7(E): protects 2 specific techniques used "to develop information," which are "lawful and not generally known to the public") (on or before April 30, 1993 the parties must identify to the court any outstanding documents withheld pursuant to Exemption 7(A) for which Exemption 7(D) or Exemption 7(E) is not also claimed and explain the reason for their withholding).
Outlaw v. Dep't of the Army, 815 F. Supp. 505 (D.D.C. 1993) (Exemptions 6 and 7(C): agency must release five 25-year-old photographs of the body of a man who plaintiff was convicted of murdering, which are marked with plaintiff's name and Army serial number; there has not been any showing that there are any surviving relatives of the deceased, or if there are, that they would be offended by the disclosure; there is an obvious public interest in the disclosure as a check on the administration of justice by the United States Army).
Papich v. United States Parole Comm'n, No. 92-0790 (D.D.C. June 23, 1993) (attorney fees: attorney fees denied to plaintiff; plaintiff has not established that the prosecution of this lawsuit was "reasonably necessary" to obtain the requested records; there has been no showing of a causal nexus between this litigation and the release of the requested information).
Pub. Citizen v. RTC, No. 92-0010, 1993 WL 1617868 (D.D.C. Mar. 18, 1993) (Exemption 6: applying Reporters Committee, finds that the exemption protects the identities and income levels of specific buyers and potential buyers from records concerning RTC's compliance with the Affordable Housing Disposition Program; an individual has a substantial privacy interest in information about his/her financial status; there is no substantial public interest in this material because plaintiff has all the information it needs to evaluate agency compliance with the statutory directives) (discovery in FOIA litigation: because the agency's affidavit demonstrates that the search was adequate, discovery is not necessary) ("no records" defense: the agency is not required to create documents to answer plaintiff's questions about the records produced or the length of time it took the agency to respond) (mootness: even if the manner in which the RTC implemented its "first-in, first-out" policy were in dispute, the disclosure of all responsive records negates the need for discovery on this issue).
Pub. Citizen v. RTC, No. 92-0010 (D.D.C. Apr. 30, 1993) (denies plaintiff's motion for reconsideration in this FOIA case where the court had held that Exemption 6 protects information that would reveal the incomes of purchasers of RTC properties).
Rallis v. Stone, 821 F. Supp. 466 (E.D. Mich. 1993) (defendant is entitled to summary judgment on plaintiff's FOIA claim; although defendant did not comply with the 10-day statutory time limit, plaintiff was sent an interim letter and the delay in satisfying plaintiff's FOIA request was brief).
Roberts v. Dep't of Justice, No. 92-1707, 1993 WL 356320 (D.D.C. Jan. 29, 1993) (adequacy of search: defendant's affidavits demonstrate that although it was unable to locate the list of potential witness profiles requested by plaintiff, its search was reasonably adequate; the agency "obviously cannot be expected to search every nook and cranny of its vast offices in an attempt to locate diskettes which may not even exist").
Rodriguez-Estrada v. United States, No. 92-2360 (D.D.C. Apr. 16, 1993) (fee waiver (Reform Act): indigence alone, without a showing of public benefit, is insufficient to warrant a fee waiver under the FOIA).
Ruppert v. Messick, No. 91-2105 (E.D.N.Y. Feb. 19, 1993) (Exemption 5: after in camera inspection, finds that the deliberative process privilege protects documents relating to a regulation promulgated by the Department of Health and Human Services and Medicaid/Medicare standards).
Rush Franklin Publ'g, Inc. v. NASA, No. 90-2855 (E.D.N.Y. Apr. 13, 1993) ("not an agency record": a mailing list created and maintained by a contractor is not an agency record for purposes of the FOIA; despite the fact that certain ministerial tasks associated with the list are performed by NASA personnel and that NASA will obtain custody of the list upon termination of the contract, only contractor employees have access to the mailing list).
Russell v. Barr, No. 92-2546 (D.D.C. Mar. 5, 1993) ("exceptional circumstances"/"due diligence": despite the fact that plaintiff's civil proceeding is scheduled to begin on April 5, 1993, grants the FBI an Open America stay until September 5, 1993; defendant is inundated with more than 15,000 access requests per year, faces a tremendous backlog, and is processing these requests on a "first-in, first-out" basis; to ensure that progress is being made, the FBI must file a written progress report with the court every 6 months).
Savage v. FBI, No. C-2-90-797 (S.D. Ohio June 7, 1993) (Exemption 1 [E.O. 12,356]: FBI's affidavit demonstrates that it followed all procedural requirements of the executive order, and contains sufficiently specific statements linking the disclosure of the redacted items to a risk to national security, such as information concerning intelligence targets or intelligence activities; FBI's second declaration using a coded system is not sufficient because it does not provide the court with enough information to review the exemption claim, information about the context in which any redaction might be evaluated, or information that accounts for potentially significant differences in the type of material being withheld; FBI must submit an additional declaration within 90 days) (Exemption 7(D): within 90 days, FBI must review its withholdings under this exemption and submit a new declaration in light of Landano) (denies as moot plaintiff's motion for expedited processing; plaintiff's request for discovery denied because it would be unproductive at this time).
Senate of P.R. v. Dep't of Justice, No. 84-1829 (D.D.C. Mar. 26, 1993) (grants in part and denies in part defendants' motion to amend this court's order of July 21, 1992; denies defendants' request to file in camera a list of 90 grand jury exhibits that the defendants claim have already been turned over to the plaintiff or are no longer in defendants' possession; with respect to those grand jury exhibits (18) for which the court has already granted summary judgment, defendants need only list the exhibit and indicate that it is covered by the court's April 15, 1991 grant of partial summary judgment).
Shafmaster Fishing Co. v. United States, 814 F. Supp. 182 (D.N.H. 1993) (Exemption 7(D): the agency has met its burden of showing that promises of confidentiality were given to 2 state, local or foreign agencies and one individual; the sources need not be secret to justify withholding).
Sierra Club Legal Def. Fund v. Bibles, No. C92-1413 (W.D. Wash. Feb. 17, 1993) (fee waiver (Reform Act): distinguishing Fitzgibbon v. CIA, denies plaintiff's request for a waiver of copying fees for documents which are available for free public inspection in various offices and reading rooms; furnishing "free copies of documents already made available in this manner would not result in a significant contribution to public understanding").
Slade v. Armistead, No. 2:93-41 (E.D. Va. Mar. 1, 1993) ("not an agency": the courts of the United States are exempt from the requirements of the FOIA), subsequent order (E.D. Va. Mar. 17, 1993).
Sloman v. Dep't of Justice, 832 F. Supp. 63 (S.D.N.Y. 1993) (exhaustion: plaintiff's FOIA request to the Executive Office for the United States Attorney is dismissed for failure to exhaust administrative remedies; the defendant provided plaintiff with an Open America response within 10 days, later granted his fee waiver and expedited treatment requests, and partially released information within 6 months) (fee waiver (Reform Act): the FBI properly denied the fee waiver request of plaintiff, an author under contract with Doubleday to write a book about Abbie Hoffman; plaintiff has not demonstrated how this information would contribute significantly to the public understanding of the operations of the government; this information has previously been released to Hoffman himself and to a syndicated columnist and is currently available in the FBI Headquarters reading room).
Sonneborn v. Assistant Sec'y of Health, No. 92-1223 (D.D.C. June 15, 1993) (Exemption 5: work papers concerning clinical practice guidelines for cataract surgery submitted by outside consultants to the Department of Health and Human Services are predecisional and meet Exemption 5's "inter- or intra-agency" requirement; the documents are deliberative because they were compiled to assist the agency in establishing the final cataract guideline; disclosure of factual material in some of the documents would expose the deliberative process) ("no records" defense: defendants need not compel from these outside consultants any documents responsive to plaintiff's FOIA request not already in the agency's possession).
Stone v. Def. Investigative Serv., 816 F. Supp. 782 (D.D.C. 1993) (jurisdiction: this court's jurisdiction is limited to enjoining agency compliance with the FOIA; plaintiff may not assert a FOIA claim against individual federal officials) (duty to search: agency's affidavits demonstrate that its search was adequate; plaintiff's unsupported belief that additional records exist does not raise a material question of fact) (Exemption 2: the disclosure of a code used to evaluate informants would undermine the effectiveness of investigations) (Exemption 7 (threshold): threshold requirement met by records generated in the course of a third-party foreign counterintelligence investigation and an investigation into a third-party's possible violation of the Interstate Transportation of Stolen Property Act) (Exemption 7(C): protects information that would identify FBI and Treasury Department Special Agents, an FBI clerical employee, and the name of a private citizen mentioned in connection with an investigation) (Exemption 7(D): protects the identity of and information provided by a private citizen under an implied promise of confidentiality in the course of a legitimate criminal investigation; the information was "so singular that to release it would likely identify the individual, particularly to a knowledgeable party").
In re Subpoenas Issued to Shackelford & Miller, Misc. No. 93-25 (D.D.C. Feb. 19, 1993) (orders that the deposition subpoenas of retired FBI Special Agents Shackelford and Miller concerning the 20-year-old FBI investigation of John Lennon come together to be quashed because they are beyond the scope of allowable FOIA discovery in Wiener v. FBI).
Taylor v. Office of Special Counsel, No. 91-N-734 (D. Colo. Mar. 22, 1993) (Exemption 7 (threshold): the threshold requirement is met by documents compiled by the Office of Special Counsel (OSC) in its investigation of allegations of an adverse personnel action against the plaintiff in retaliation for his whistleblowing activities) (Exemption 7(C): applying Reporters Committee, finds that the exemption protects interview reports and summaries prepared by OSC interviewers, correspondence from the interviewees, a copy of an interviewee's calendar, recordings of several interviews, handwritten notes of the OSC investigators, and a one-page memoranda describing telephone conversations conducted by OSC personnel with witnesses which contain the mental impressions of the interviewers) (Exemption 5: the deliberative process privilege protects documents prepared for the OSC General Counsel to assist her in making a final decision in this case, including an internal memorandum discussing the strengths and weaknesses of plaintiff's case and making recommendations, a report of the OSC investigation, and internal memoranda generated by the Investigation Division addressed to the Prosecuting Division assessing the evidence gathered in this case; the attorney work-product privilege protects an OSC complaints examiner's memorandum containing the mental impressions of the examiner about a telephone conversation with plaintiff conducted at the request of an attorney in order to prepare for possible litigation; however, this privilege does not protect the one-page memoranda of telephone conversations with witnesses withheld under Exemption 7(C)).
TPS, Inc. v. DOD, No. C-92-4106 (N.D. Cal. Mar. 2, 1993) ("no records" defense: the court cannot order relief under the FOIA where the requested records do not exist; plaintiff has not provided specific evidence based upon personal knowledge that the defendant has ever possessed the record layout for all files used to create 2 electronic bulletin board systems).
Triplett v. Attorney
Gen., No. C-2-92-211, 1993 WL 135774 (S.D. Ohio Feb. 2, 1993) (Vaughn
Index: the Justice Department's Tax Division's affidavit does not adequately
demonstrate that information was properly withheld under Exemption 3 (26 U.S.C.
Waldron v. Soc. Sec. Admin., No. 92-334 (E.D. Wash. June 1, 1993) (FOIA/PA interface: because defendant has not improperly withheld first-party medical records under the Privacy Act, plaintiff does not have a cause of action under the FOIA; an individual must comply with the procedures implemented under the Privacy Act in order to gain access to his or her medical records).
Waugaman v. Sullivan, No. 1:91-0393 (N.D. Ohio Jan. 21, 1993) (magistrate's recommendation) (Exemption 5: the deliberative process privilege protects the views and opinions of individual employees made during the deliberative stages of the adjudicatory process) (Exemption 2: protects a summary of a medical record since it is predominantly internal).
Williams v. FBI, 822 F. Supp. 808 (D.D.C. 1993) (adequacy of search: the agency's affidavit demonstrates that it conducted a reasonable search for documents responsive to plaintiff's FOIA request) (Exemption 7(C): protects the identities of federal employees, including FBI Special Agents and clerical personnel, nonfederal law enforcement officials, informants, third parties, subjects of investigative interest, and witnesses) (Exemption 7(D): protects the identities of and information provided to the FBI by confidential sources in the course of a law enforcement investigation, including source symbol numbers, nonfederal law enforcement agencies, and private institutions; plaintiff has failed to overcome the presumption of confidentiality; public testimony by confidential sources does not waive the privilege) (plaintiff's request for in camera inspection is denied because no ground currently exists to doubt the good faith of defendant).
Wilson v. Dep't of Justice, No. 87-2415 (D.D.C. June 30, 1993) (Exemption 1 [E.O. 12,356]: the release of information about the Egyptian American Transport Company that was provided by foreign government sources would damage the national security; however, the government must submit a supplemental in camera affidavit to justify the withholding of criminal law enforcement information under this exemption) (Exemption 3 [Rule 6(e)]: protects subpoenaed documents relating to the government's criminal investigation of the company, including those documents which were actually presented to the grand jury or would reveal its inner workings or the identities of jurors or witnesses).
Wrenn v. Vanderbilt
Univ. Hosp., No. 3:91-1005 (M.D. Tenn. June 10, 1993) (Exemption 5: the
deliberative process privilege protects an EEOC investigator's memorandum, which
contains information used by the EEOC in making a determination concerning plaintiff's
claim of job discrimination) (Exemptions 3 [42 U.S.C.
Yorkshire v.
IRS, 829 F. Supp. 1198 (C.D. Cal. 1993) (Exemption 3 [26 U.S.C.
Young v. United States, No. 92-1179 (D.D.C. Feb. 11, 1993) (grants defendant's unopposed motion to dismiss this FOIA case; defendant has not improperly withheld any records). (posted 5/9/03)
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