Compiled FOIA Decisions (Received January-June 1989)

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 July 1989. OIP is preparing one additional compilation of available summaries for pre-1989 FOIA decisions as well. See FOIA Post, "Compilations of FOIA Decisions Now Cover Past Fifteen Years" (posted 12/31/03).

Supreme Court

Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Exemption 7(C): disclosure of the existence of an FBI "rap sheet" to a third party "could reasonably be expected to constitute an unwarranted invasion of personal privacy"; there is a strong privacy interest in the nondisclosure of compiled, computerized information located in a single clearinghouse of information; individual's interest in the nondisclosure of his "rap sheet" is the sort of "personal privacy" interest that Congress intended the exemption to protect; the FOIA's "central purpose" of exposing to public scrutiny official information which sheds light on the agency's performance of statutory duties is not fostered by the disclosure of information about private citizens that has accumulated in various governmental files; disclosure of personal information, which does not increase public understanding concerning agency's operations and activities, to a journalist for a news story is not the kind of "public interest" for which Congress enacted the FOIA; where the subject of a "rap sheet" is a private citizen and the information in the government's control is a compilation, rather than a record of "what the government is up to," the privacy interest in maintaining the rap sheet's "practical obscurity" is always at its apex while the FOIA-based public interest is at its nadir, and the "rap sheets" may be categorically exempt from disclosure).

Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989) (in an 8-1 decision, affirms the D.C. Circuit Court of Appeal's decision requiring the Justice Department to make available copies of district court opinions it receives in the course of litigating tax cases; Justice Blackmun dissents, finding that the result the Court reaches cannot be one that was within the intent of Congress when the FOIA was enacted and is a "gross misuse" of the FOIA) (agency records: district court opinions in the Justice Department's possession are "agency records" because the relevant issue is whether the agency covered by the FOIA has "obtained" or "created" the materials, not whether the organization from which the documents originated is itself covered by the FOIA and because the Justice Department clearly "controls" the district court opinions) (improper withholding: when the Justice Department refused to provide requester with copies of publicly available district court opinions, they "withheld" the decisions for purposes of the FOIA; district court opinions were "improperly" withheld despite their public availability at the original source because they did not fall within any of the enumerated exemptions and reliance on FOIA subsections (a)(1) and (a)(2) is improper because these subsections are limited to situations where the information has been published or made available by the agency itself; the decision in GTE Sylvania, Inc. v. Consumer Product Safety Commission that agency records enjoined from disclosure by a district court were not "improperly withheld" even though they did not fall within any of the enumerated exemptions was not meant to be an invitation to courts in every case to engage in balancing based on public availability and other factors).

FLRA v. USDA, 488 U.S. 1025 (1989) (in a case concerning the disclosure of employees' names and home addresses to a union, certiorari granted, judgment vacated, and case remanded for consideration in light of the "routine uses" published in the Federal Register).

John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989) (Circuit Justice Marshall granted the government a stay pending the disposition of its petition for certiorari in the Exemption 7 (threshold) case that held that audit documents were not "compiled" for law enforcement purposes where they were generated by the agency in the course of its routine monitoring of contracts and only later became part of an investigatory file; Justice Marshall noted that certiorari was likely to be granted and that a there is a "fair prospect" that a majority of the Court will conclude that the decision below was erroneous).

Appeals Courts

Am. Friends Serv. Comm. v. DOD, 869 F.2d 587 (3d Cir. 1989) (affirms lower court's decision upholding classification of abstracts and holding that the defendant agency is not required, either manually or through development or redesign of a computer software program, to delete portions of technical bulletins and reformulate the information in such a way as to create new and different documents; the very fact that material would have to be extensively reformulated establishes that the nonexempt material is inextricably intertwined with the exempt material).

Aronson v. HUD, 866 F.2d 1 (1^st Cir. 1989) (attorney fees: there is a strong public interest where the disclosure of information would lead to disbursement of funds the government owes its citizens; the potential for commercial gain does not negate the public interest served by the lawsuit; a pro se plaintiff who is an attorney may not recover attorney fees for time spent on a FOIA case).

Aronson v. HUD, 869 F.2d 646 (1^st Cir. 1989) (preclusion: development of new agency procedures to locate "lost" pages constitutes new facts thereby permitting HUD to reargue privacy/public interest balance) (preliminary injunction: in an Exemption 6 case where disclosure of name-and-address information to a "skip tracer" could lead to the payment of funds that the government owes its citizens, the district court's preliminary injunction was reversed because disclosing mortgagor names permanently injures the privacy interests the defendant agency seeks to protect and denying the injunction harms the plaintiff only by potentially delaying his obtaining the information he seeks).

Aronson v. HUD, No. 88-1524 (1^st Cir. Apr. 6, 1989) (denies petition for rehearing filed in light of Reporters Committee; the failure of HUD to comply reasonably with its reimbursement duty is official information that sheds light on HUD's performance of its statutory duties and thus falls squarely within the statutory purpose of the FOIA).

Cooper v. Meese, No. 88-5705 (6^th Cir. Feb. 27, 1989) (unpublished memorandum), 872 F.2d 1024 (6^th Cir. 1989) (table cite) (an award of damages is not authorized for violations of the FOIA).

Fed. Elec. Corp. v. Carlucci, 866 F.2d 1530 (D.C. Cir. 1989) ("Reverse" FOIA/Exemption: release of cost data from monthly reports would not harm company in competing for a new government contract).

Halloran v. VA, 874 F.2d 315 (5^th Cir. 1989) (Exemption 7(C): withholds names of 3 unindicted suspects and third-party names from transcripts of conversations secretly taped during an investigation into government contractor fraud; citing the broad definition of "privacy" in Reporters Committee, rejects the district court's declaration that there was no privacy interest implicated by the transcripts because the participants discussed only "business activities"; rejects the district court's decision to release first names of individuals from investigative transcripts, holding that the concern is not with identifying information per se, but rather with the connection between such information and some other detail which the individual would not wish to be publicly disclosed; rejects the district court's conclusion that because a nongovernmental entity had participated in the investigation, no invasion of privacy could occur because the information was already "known to the public"; following Reporters Committee, holds that the district court was incorrect to conclude categorically that the individuals identified in the transcripts lost all privacy interests in the information merely because some other individual may have knowledge of the conversation; although the public does have an interest in information concerning the government's interaction with federal contractors, that interest has been substantially served by the release of the redacted transcripts -- this interest would be little served by the disclosure of the identifying information in the transcripts).

Hopkinson v. Shillinger, 866 F.2d 1185 (10^th Cir. 1989) (Exemption 7 (threshold): the file, which contains requests for and the results from FBI laboratory and fingerprint examinations of evidence from a state law enforcement investigation, meets the threshold requirement) (Exemption 7(D): confidentiality was "inherently implicit" when a state law enforcement agency sent materials to the FBI laboratory for testing).

Knight v. CIA, 872 F.2d 660 (5^th Cir. 1989) (Exemption 3 [50 U.S.C. § 403(d)(3)]: pursuant to a FOIA request for classified material relating to the sinking of a Greenpeace vessel by the French government in 1985, the appeals court, following the Supreme Court's broad holding in CIA v. Sims, concluded that when the Director of Central Intelligence makes a judgment that the release of documents could reveal intelligence sources and methods the courts may not, in the absence of evidence of bad faith, go behind that judgment and order the production of those records).

Nat'l Sec. Archive v. CIA, No. 88-5298 (D.C. Cir. Feb. 6, 1989) (summary affirmance granted to defendant agencies in a case where, following Dismukes v. Dep't of the Interior, lower court held that an agency has no obligation under the FOIA to accommodate a requester's preference concerning the format of the response, the agency had provided the information in a reasonably accessible form).

N.Y. Times Co. v. NASA, No. 87-5244 (D.C. Cir. Feb. 16, 1989) (orders sua sponte that all further proceedings (i.e., the en banc argument previously set for March 8, 1989) are stayed pending further notice, in this case where the Court had held that the audio tape of the voices of the Space Shuttle Challenger crew did not meet the threshold requirement of Exemption 6).

Occidental Petroleum Corp. v. SEC, 873 F.2d 325 (D.C. Cir. 1989) (jurisdiction: denies plaintiff's motion to dismiss the appeal for lack of appellate jurisdiction on the grounds that the district court's order was interlocutory and not immediately appealable under 28 U.S.C. § 1291; an order remanding a case for further proceedings before an administrative agency may be appealed immediately where, as in this "reverse" FOIA case, the agency to which the case was remanded seeks to appeal and it would have no opportunity to appeal after the proceedings on appeal) ("Reverse" FOIA/Exemption 4: district court properly held that the administrative record was inadequate to permit meaningful review and remanded for supplementation of the record; the district court was justified in holding that the administrative record was inadequate for judicial review of whether competitively sensitive information was publicly available; the district court correctly placed upon the agency the burden of proving that information contained in contested documents was publicly available; the district court properly held that the agency's failure to give a document-by-document explanation for the determination to release records made a remand necessary).

Quarles v. Dep't of the Navy, No. 88-5328 (D.C. Cir. Mar. 7, 1989) (denies government's motion for summary affirmance in this Exemption 5 case where the lower court held that the deliberative process privilege protects portions of a report which reflect the evaluation team's opinions as to a specific plan which will almost certainly never be adopted).

Strang v. Arms Control & Disarmament Agency, 864 F.2d 859 (D.C. Cir. 1989) (affirming lower court's grant of summary judgment to agency with respect to its denial of plaintiff/employee's request for access to source-identifying information contained in a file compiled for the purpose of an internal "law enforcement" investigation into an alleged violation of national security regulations by plaintiff; court held that Exemptions (k)(2) and (k)(5) of the Privacy Act permitted the withholding because the agency had granted the source the requisite express promise of confidentiality, and that FOIA Exemption 7(D) also protected the information).

Tearney v. NTSB, 868 F.2d 1451 (5^th Cir. 1989) (Federal Register publication: FAA did not need to publish rule against taxiing of airplane while passengers were standing, because it was an expression of a specific application of a general safety regulation rather than a statement of general policy).

USDA v. FLRA, 876 F.2d 50 (8^th Cir. 1989) (Exemption 6: case dismissed as moot, because the defendant agency has promulgated a regulation to the effect that bargaining unit representatives' access to the names and addresses of bargaining unit employees is necessary to the union representation of those employees and the agency will disclose such information upon request).

Vietnam Veterans of Am. v. Dep't of the Navy, 876 F.2d 164 (D.C. Cir. 1989) (subsections (a)(1) and (a)(2): legal opinions prepared by the Office of the JAG which are summarized and indexed for the use of attorneys within the office do not contain statements of policy or interpretations adopted by the Department of the Army or the Department of the Navy and, therefore, do not fall within 5 U.S.C. § 552(a)(1) or (a)(2)).

Wash. Post Co. v. HHS, 865 F.2d 320 (D.C. Cir. 1989) (Exemption 4: remands case to enable both sides to address the issue of impairment, that is, whether disclosure of financial information in Form HHS-474 would be likely to impair the government's ability to gather this information in the future, and, if this risk is outweighed by the public interest in disclosure) (summary judgment: the need to assess the credibility of the witnesses is what places this dispute outside the proper realm of summary judgment) (waiver: a party cannot raise anew on remand an issue that it failed to pursue in a prior appeal).

District Courts

Access Reports v. Dep't of Justice, No. 88-1433 (D.D.C. Mar. 9, 1989) (discovery in FOIA litigation: court allows discovery to proceed and dissolves the protective order in this case where the plaintiff has called the defendant agency's submissions into question concerning the applicability of the deliberative process privilege and where the court could not determine to which "decision" the document at issue is "predecisional").

Allen v. DOD, 713 F. Supp. 7 (D.D.C. 1989) (attorney fees: an award of interim fees is fully consonant with the public policy behind the FOIA; an award of interim fees is available only for work leading toward the threshold release of nonexempt documents, especially in cases where the documents are of public interest; any claim for fees resulting from a dispute over the applicability of a particular exemption to specific documents would be cognizable only at the end of the litigation in question; grants plaintiff's motion for interim attorney fees for work performed at the threshold phase of litigation).

Anderson v. Dep't of Labor, No. 87-1846 (D. Ariz. Mar. 7, 1989) (waiver of exemption: agency must release written statements that were made by company employees in the presence of other employees or counsel; agency must release written statements and all other documents that have been provided to the investigated company) (all other documents may be withheld under Exemptions 7(A), 7(C), and 7(D)).

Antonelli v. HHS, No. 88-2075 (D.D.C. June 12, 1989) (case dismissed due to plaintiff's failure to prosecute).

Archer v. HHS, 710 F. Supp. 909 (S.D.N.Y. 1989) (Exemption 2: production of major portions of audit instructions with redactions of only criteria amounts will prevent circumvention of Medicare guidelines while enabling claimants to determine whether the agency is violating its reimbursement policies) (Exemption 5: the deliberative process privilege protects redacted portion of a memorandum written in response to a prior memorandum concerning the applicability of Medicare's comparability provision and Health Care Finance Administration's current position on comparability) (attorney fees: plaintiff has substantially prevailed, because defendant did not provide plaintiff with any of the requested documents until serving its Answer in this action).

Armed Forces Relief & Benefit Ass'n v. DOD, No. 89-0689 (D.D.C. May 11, 1989) (grants defendant agency's motion to stay proceedings pending disposition by the court of appeals on the Exemption 2 issue in Schwaner v. Department of the Air Force).

Ass'n of Cmty. Orgs. for Reform Now v. Barclay, No. 3-89-0409-T (N.D. Tex. June 9, 1989) (exhaustion: absent a showing of "exceptional circumstance" which prevented agency compliance with the statutory 10-day time limit, plaintiff has exhausted his administrative remedies and his claim is ripe for adjudication) (not an "agency" defense: the Federal Home Loan Banks are so extensively controlled by the Federal Home Loan Bank Board (FHLBB) that they are merely an extension of the FHLBB and, therefore, are agencies for purposes of the FOIA).

Benavides v. DEA, No. 88-0427 (D.D.C. Feb. 9, 1989) (Exemption 2: agency properly withheld internal symbols, access codes, routing symbolism, administrative markings, transmittal letters, and letters describing administrative procedures because they are purely internal and of no public interest and disclosure would endanger law enforcement efforts) (Exemption 5: the attorney-client privilege protects documents generated as a result of a lawsuit filed by plaintiff against several United States Marshals in their individual capacities) (Exemption 7(C): defendant agency properly withheld information or investigative leads regarding people who were of investigative interest to the Marshals Service, but who were not charged with any crime, information that would identify informants, the names and addresses of government personnel and investigators, the business card of a third party interviewed during the investigation, a rap sheet, and a letter requesting information about a third party) (Exemption 7(D): defendant agency properly withheld information concerning confidential sources and information that would reveal the identities of third-party witnesses or confidential sources, including information provided by or that would identify a nonfederal law enforcement agency).

Benny v. Dep't of Justice, No. 86-1172 (D.D.C. Mar. 21, 1989) (complaint dismissed for failure to prosecute).

Benson v. Langer, No. 89-0197 (D.D.C. Mar. 28, 1989) (upon the defendant agency's motion for a more definite statement, court finds that plaintiff's Complaint fails to state his claim with sufficient precision to allow the defendants to respond).

Burge v. Eastburn, No. 88-41-B (M.D. La. May 22, 1989) (magistrate's recommendation) (Exemption 7(C): following Reporters Committee, holds that the exemption protects informants' statements taken by the FBI, or by state law enforcement officials and later transmitted to the FBI, even though 2 of the informants testified at plaintiff's trial), adopted (M.D. La June 30, 1989).

Campbell v. Frank, No. 88-4820 (E.D. Pa. Mar. 30, 1989) (grants defendant's motion for summary judgment since all documents requested under the FOIA have been released; portions withheld are validly exempted).

Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068 (D.D.C. Apr. 12, 1989) (Vaughn Index ordered).

Chetwynd v. FBI, No. 88-2666 (D.D.C. Apr. 24, 1989) (grants defendant's unopposed motion for summary judgment).

Choe v. Smith, No. C87-1764 (W.D. Wash. Apr. 20, 1989) (Exemption 7(A): defendant agency did not present affidavits to support its claim that disclosure of the requested material during the pendency of deportation proceedings would impair the administration of federal immigration laws; the exemption does not apply because the defendant agency revealed much of the confidential information during the deportation hearings; the exemption allows the agency to withhold specific information, it should not be used as a justification for failure to process a FOIA request) (FOIA as a discovery tool: plaintiff's motivation for making a FOIA request -- as the means to try to obtain discovery -- is no reason to deny such a request) ("exceptional circumstances"/"due diligence": in a confusing discussion, where the agency released the entire file 6 months after the receipt of the FOIA request, court denies the agency's Open America argument, because the agency did not exercise "due diligence" in the processing of the FOIA request).

Choe v. Smith, No. C85-1764 (W.D. Wash. June 6, 1989) (on motion for reconsideration reaffirms that INS's untimely delay in processing plaintiff's FOIA request was not justified under Open America) ("due diligence": plaintiff's motivation for making his FOIA request -- the hope of obtaining information to present at his deportation hearing -- does not justify the agency's untimely response to his FOIA request).

Colton v. IRS, No. R-85-635 (D. Nev. Apr. 4, 1989) (proper party defendant: agency officials are improper defendants under the FOIA) (exhaustion: plaintiff failed to show whether he perfected his FOIA request, whether his alleged request was ever denied, or whether he appealed the outcome).

Cont'l Airlines v. Nat'l Mediation Bd., No. H-88-3181 (S.D. Tex. May 17, 1989) (Exemption 4: disclosure of check-off lists, seniority lists, and union authorization cards supplied by union on a confidential basis would cause competitive harm) (Exemption 5: the deliberative process privilege protects the proposed actions and recommendations noted on voting forms by Board members) (Exemption 6: Board's files containing employee correspondence meet the exemption's threshold test and are exempt from disclosure) (adequacy of request: after thoroughly reviewing plaintiff's FOIA request, defendant agency was unable to identify the "case studies" and "policies" requested).

Courier-Journal & Louisville Times Co. v. Dep't of Justice, No. C86-0007-L(A) (W.D. Ky. June 12, 1989) (Exemption 3 [Rule 6(e)]: withholds information that would reveal matters occurring before a grand jury, consisting of documents summarizing witness testimony, extracts of grand jury testimony, documents recording prosecutor's investigative instructions, documents recording the services of subpoenas and the receipt of documents, and documents recording interviews with witnesses) (Exemption 7(C): protects information concerning political figures and private individuals who were at one time targets of law enforcement investigations but who were not indicted, or who were indicted and acquitted, or who were indicted, convicted and subsequently had their conviction reversed; protects names of FBI Special Agents and clerical personnel, state and local law enforcement employees, and informants) (Exemption 5: the deliberative process privilege protects letters recommending that certain people be prosecuted and portions of an internal Justice Department memorandum contained in an FBI prosecution recommendation report).

C.P. Chem. Co. v. Stevenson, 732 F. Supp. 119 (D.D.C. 1989) ("Reverse" FOIA: chemical company was not entitled to a preliminary injunction prohibiting the Consumer Product Safety Commission from disclosing documents related to the company).

Crowell & Moring v. DOD, 703 F. Supp. 1004 (D.D.C. 1989) (Exemption 7 (threshold): a factual determination as to the circumstances surrounding the creation of records is not material to a resolution of whether the defendant agency has properly asserted Exemption 7; such a ruling could erode the exemption's underlying purpose of "prevent[ing] harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigative files than he would otherwise have") (Exemption 7(A): disclosure of the withheld documents would reveal the identities of potential key witnesses, and their possible testimony, and would impair the grand jury's ability to obtain their continued cooperation) (Exemption 7(D): the defendant agency compiled the records to assist in its investigation of suspected criminal misconduct by a particular corporation; release of the documents would reveal the identities of small corporations that furnished the agency with information; using the Brant Construction Co. v. EPA test, holds that even though the defendant agency's affidavits failed to link an express promise of confidentiality to particular documents, it is reasonable to infer that small corporations would not be likely to report possible criminal misconduct if they had not received an implied assurance of confidentiality).

de Franco v. INS, No. 85-2994 (D. Mass. Jan. 30, 1989) (attorney fees: court inferred a causal relationship between plaintiff's institution of a suit and defendant agency's disclosure when no documents were released before the suit was filed, at least 3 documents were released in direct compliance with a court order and additional documents were released after the court directed the defendant to renew its search and justify claimed exemptions; the primary purpose of plaintiff's FOIA request was to disseminate information obtained from the government through a weekly news magazine; plaintiff's primary purpose was journalistic, not commercial; the information sought was relevant to matters of public concern; there was no reasonable basis for defendant's failure to make a timely response and no justification for the withholding of documents eventually released; based on a hourly rate of $125, awards plaintiff $8450 in attorney fees and $211.67 in costs).

Dow Jones & Co. v. GSA, 714 F. Supp. 35 (D.D.C. 1989) (personal records: list of business partners of the former Administrator of GSA, prepared by his personal accountant at his own expense and maintained at the agency in his locked safe, is a personal record and not an agency record under the FOIA).

Ely v. FBI, No. 83-876-T-15 (M.D. Fla. Feb. 15, 1989) (Exemptions 6 and 7(C): relying on an in camera submission and the defendant agency's affidavit, grants summary judgment to defendant because plaintiff had come forward with no public value or benefit from the disclosure of third-party information, and the government has shown that disclosure could have a significant and detrimental effect on the subject's right to privacy and on the FBI's law enforcement practices).

Employers Nat'l Ins. Co. v. Olimpio, No. 88-5513 (E.D. La. Apr. 5, 1989) (Exemption 5: upon in camera inspection, holds that 3 documents are exempt from disclosure under Exemption 5, without specification of privilege).

Erinle v. Meese, No. 88-1084 (D.D.C. Jan. 19, 1989) (attorney fees: when plaintiff filed suit less than one month after the initial FOIA request was made, the court held that the release of the documents was the result of routine processing procedures, and therefore not caused by the lawsuit).

Faris v. Dep't of Justice, No. 88-2329 (D.D.C. June 16, 1989) (Exemption 2: FBI informant codes are within the ambit of the exemption) (Exemption 7 (threshold): the requirement is met because the information was compiled during the FBI's investigation of plaintiff for possible infringement of several federal statutes) (Exemption 7(C): withholds names of FBI Special Agents and support personnel, identities and identifying information pertaining to third parties, names of subjects of investigative interest, and identities and identifying information provided by a nonfederal law enforcement officer) (Exemption 7(D): all information withheld was gathered under either an implied or an express assurance of confidentiality).

Ferrentino v. Dep't of Justice, No. 86-0784 (D.D.C. Feb. 13, 1989) (case dismissed for failure to exhaust administrative remedies).

Fidell v. Commandant of the United States Coast Guard, No. 88-2922 (D.D.C. May 31, 1989) (Exemption 6: the broad definition of "similar files" in Washington Post Co. v. Department of State is satisfied by the "status indicator" and "termination date" entries from the Coast Guard's Register of Officers; following Reporters Committee, holds that plaintiff has failed to demonstrate a sufficient public interest in the release of the "status indicator" and "termination date" (that reflect that some officers have been repeatedly nonselected for promotion and are being forced out of the service) to override the privacy concerns of Coast Guard officers).

Fitzgibbon v. CIA, No. 79-0956 (D.D.C. May 23, 1989) (Exemption 3: [50 U.S.C. § 403(d)(3)]: following CIA v. Sims, the court reverses its prior conclusions and upholds nondisclosure of most information pertaining to the regime of Rafael Trujillo in the Dominican Republic, noting that the sweeping language of Sims confers broad authority on the CIA to withhold information on intelligence sources or methods under Exemption 3, and that the courts' role is limited to determining whether that information was needed to fulfill the agency's statutory obligations with respect to foreign intelligence; withholds 25-year-old material even where the sources are dead, where confidentiality was not needed at the time the information was gathered from the source, and where the information was "innocuous" or "outdated"; withholds information concerning 7 individuals who were only "potential" or "unwitting" sources; withholds information concerning CIA investigations, methods, and cover; orders disclosure of information concerning the CIA's contact with domestic officials, such as when the CIA acted as an intermediary between the New York City Police Department and a Basque expatriate organization; permits withholding of information on relationships with foreign intelligence services where it found that the information assertedly obtained from such services could readily have come from a newspaper or periodical; orders release of information concerning the location of a CIA station in Santo Domingo because the information at issue has become known through a duly authorized committee of the United States Senate; because the Director of Central Intelligence has determined that the release of information in 2 telegrams would reveal an intelligence source, the court may not substitute its judgment for that of the agency and order them released).

Frankenberry v. Dep't of Justice, No. 87-3284 (D.D.C. Feb. 3, 1989) (fee waiver: plaintiff's request for a waiver of duplicating fees was denied for failure to exhaust administrative appeals process).

Frezzo v. FBI, No. 88-5354 (E.D. Pa. June 22, 1989) (summary judgment: based on defendant agency's affidavits, holds that all of the documents withheld are validly exempted from disclosure under the FOIA).

Gard v. Chairman, Nat'l Credit Union Admin., No. 85-B-2163 (D. Colo. May 1, 1989) (mootness: plaintiff's FOIA claims are moot, because the defendant agency's nondisclosure was inadvertent and plaintiff eventually obtained the requested documents).

Gonzalez v. Dep't of Justice, No. 88-1493 (D.D.C. Jan. 11, 1989) (adequacy of search: based on the record thus far developed, the court is unable to determine whether a complete search of available sources has been conducted in response to plaintiff's FOIA request).

Gottesdiener v. United States Secret Serv., No. 86-0576 (D.D.C. Feb. 21, 1989) (Exemption 1 [E.O. 12,356]: after conducting in camera inspection and according substantial weight to government's in camera affidavits, grants defendant agency's motion for summary judgment on a matter of national security; procedural steps taken in classifying information concerning FEMA's emergency preparedness programs meet the requirements of E.O. 12,356; disclosure of information concerning emergency preparedness programs would "cause irreparable damage to the national security"; even though some of the information in the documents may already be in the public domain, the court must defer to the defendant agency's judgment concerning the classification of its documents; follows Afshar v. Department of State, "in many cases the very fact that a known datum appears in a certain context or with a certain frequency may itself be information that the government is entitled to withhold").

Guzman v. Langer, No. 88-1526 (D.D.C. Apr. 24, 1989) (grants defendant's unopposed motion for summary judgment, without mention of exemptions claimed, in this FOIA action where plaintiff had sought information concerning the cooperation on vehicle surveillance between the State of Louisiana and the DEA).

Hall v. Dep't of Justice, No. 87-0474, 1989 WL 24542 (D.D.C. Mar. 8, 1989) (magistrate's recommendation) (Exemption 2: agency may withhold teletype routing symbols, access codes, and data entry codes, as the public does not have a legitimate interest in the deleted markings; also, disclosure of the markings at issue could facilitate unauthorized access to law enforcement communications systems and jeopardize the security of federal prisoners) (Exemption 5: upholds application of the deliberative process privilege to a portion of a daily log and opinions, hypotheses, and considered strategies made in connection with defendant agency's fugitive investigation of plaintiff; the attorney work-product privilege protects, in its entirety, a prosecutive report of investigation prepared by a nonattorney for the use of an Assistant United States Attorney, even though it is not clear what role the attorney had in the development of the memorandum at issue) (Exemption 7(C): held applicable to names, initials, addresses, telephone numbers, and other data that would identify law enforcement officials and agencies, and third-party individuals, including subjects of investigative interest) (Exemption 7(D): applies to all information provided by private individuals, nonfederal agencies, and private institutions during the course of defendant agency's fugitive investigation; a promise of confidentiality may be inferred in connection with defendant agency's fugitive investigation because of the sensitivity of the information provided; agency properly withheld and adequately described the information contained in 2104 pages of material provided pursuant to court order by private companies and institutions during the course of defendant agency's fugitive investigation) (Exemption 7(E): providing a more detailed description of the procedures that the defendant agency used in a fugitive investigation would reveal the information sought to be withheld; even though some of the procedures may be known to the public, what is not known and what must be protected is that they were employed in conjunction with other investigative techniques) (court records: defendants properly withheld 57 pages of court records filed under seal).

Hall v. Dep't of Justice, No. 88-3071 (D.D.C. Mar. 31, 1989) (fees: because plaintiff did not indicate a willingness to prepay fees for document production nor request a fee waiver, he is not entitled to the release of the requested documents) (Vaughn Index: plaintiff's request for a Vaughn Index is inappropriate because there was no factual dispute as to whether the requested documents were releasable).

Hill Tower, Inc. v. Dep't of the Navy, 718 F. Supp. 568 (N.D. Tex. 1989) (attorney's fees: plaintiff prevailed on its motion for summary judgment, which required the defendant agency to release the JAG manual for an airplane crash; plaintiff substantially prevailed in its request for investigation reports because the defendant agency did not respond to this request until 9 days after the lawsuit was filed; the "public benefit" factor does not weigh in plaintiff's favor because the information was for the private benefit of plaintiff and is of only general interest to the public; the "personal interest" factor weighs against plaintiff because the "public should not be expected to finance the investigation of a FOIA plaintiff who makes his request with an eye toward prosecuting some litigation for his own benefit"; the defendant agency's claim of Exemption 5 for the JAG manual was reasonable; the record does not reflect that the agency acted in bad faith, when the defendant agency inadvertently failed to timely forward plaintiff's request to the proper office and also had some difficulty locating some of the requested documents; plaintiff is eligible for but not entitled to the requested fees).

Hooper v. Bowen, No. 88-01030 (C.D. Cal. May 24, 1989) (Exemption 5: the inter- or intra-agency requirement is satisfied when the authors and recipients of internal documents were employees of Health Care Finance Administration (HCFA), or Blue Cross, or Aetna, because these insurance companies are fiscal intermediaries that assist HCFA in operating the Medicare program; the deliberative process privilege protects the recommendations and opinions in drafts and internal documents concerned with the policies and practices for reimbursing health care providers under the Medicare program, and specifically with the effect of "captive" insurance company costs or "fronting arrangements" on such reimbursements; documents generated subsequent to a specific letter may not be predecisional as to the precise decision embodied in that letter, but they are predecisional and deliberative to other decisions under consideration by the agency; the attorney work-product privilege protects documents prepared in anticipation of litigation).

Housley v. Dep't of Justice, No. 88-2112 (D.D.C. Jan. 11, 1989) (grants defendant agency's unopposed motion for summary judgment in this FOIA case where the agency had withheld documents under Exemptions 3, 6, 7(C), and 7(D)).

Housley v. Dep't of the Treasury, No. 88-2110 (D.D.C. Jan. 11, 1989) (the court does not dismiss plaintiff's FOIA suit, because the agency had not filed a proper motion requesting such action but simply had sought dismissal through its Answer).

ISC Group, Inc. v. DOD, No. 88-0631, 1989 WL 168858 (D.D.C. May 22, 1989) (Exemption 4: investigative report prepared by a private company for the DOD concerning alleged overcharging on government contracts is "commercial" or "financial" because it contains operations statements, financial summaries and forecasts, inventory and labor data, and other financial analyses; disclosure of investigative report would impair the government's ability to obtain necessary information in the future because disclosure was not a mandatory condition of doing business with the DOD and there was an express promise of confidentiality) (Exemption 7 (threshold): investigative report prepared by a private company meets the threshold requirement because it was prepared and submitted in accordance with DOD efforts to enforce laws prohibiting fraud (in this case, cost charging violations) in government contracts; even though investigative report was prepared by a private entity, it is sufficiently connected to DOD's law enforcement efforts to warrant protection under Exemption 7) (Exemption 7(A): law enforcement proceeding is prospective because the Department of Defense and the Department of Justice are currently investigating the private company to determine the nature of alleged contractual violations and whether criminal prosecution is warranted; release of investigative report at this time could allow potential targets to interfere with witnesses or destroy evidence; no segregable portions of report must be released after agency made a generalized showing of harm).

Jackson v. First Fed. Sav., 709 F. Supp. 887 (E.D. Ark. 1989) (FOIA as a discovery tool: in a securities fraud case, it was not improper for plaintiff to approach the Federal Home Loan Bank Board (FHLBB) via the FOIA) (Exemption 8: the FOIA does not compel the release of requested bank examination reports which are the property of the FHLBB and were furnished to the examined savings and loan institution for its confidential use).

Johnson v. HHS, No. 88-243 (E.D.N.C. Feb. 7, 1989) (magistrate's recommendation) (Exemption 5: the deliberative process privilege does not apply or, if applicable, has been waived by the defendant agency's grievance-procedure regulations that specifically require disclosure to employees of their grievance files; defendant agency waived any protection of Exemption 5 through its grievance regulations and procedures and the promise of the agency official that there would be full disclosure of the grievance file).

Johnson v. HHS, No. 88-243 (E.D.N.C. Apr. 21, 1989) (magistrate's recommendation) (attorney fees: denies pro se plaintiff attorney fees for the services of an attorney who was not the attorney of record but who provided rules and strategy guidance for the filing of a motion for summary judgment; pro se litigant who is not an attorney may not recover attorney fees under the FOIA; awards litigation costs to a pro se plaintiff who has substantially prevailed and has met the four entitlement factors).

Jowett, Inc. v. Dep't of the Navy, No. 89-0091 (D.D.C. May 31, 1989) (in camera inspection: orders in camera inspection of audit reports to determine whether any redacted factual information which the defendant agency seeks to protect under the deliberative process privilege may be segregated and released).

Kassel v. VA, 709 F. Supp. 1194 (D.N.H. 1989) (Exemption 6: release of VA's Board of Inquiry Report, in a Privacy Act wrongful disclosure context, concerning an outspoken psychologist employed by the VA, was not a "clearly unwarranted invasion" of employee's privacy; release of VA's proposed removal letter was an invasion of employee's privacy, because the public may have had an interest in knowing that the outspoken psychologist was to be discharged, but the public had no interest in seeing the letter of termination that contained detailed allegations of specific shortfalls in job performance).

Kemenash & Assocs. v. United States, No. 88-2835 (D.N.J. Mar. 6, 1989) (Exemption 5: the deliberative process privilege does not protect postdecisional information or factual statements) (Exemption 6: release of telephone numbers would be an unwarranted invasion of personal privacy), reconsideration denied (D.N.J. May 12, 1989).

Kirk v. Dep't of Justice, 704 F. Supp. 288 (D.D.C. 1989) (Exemption 7(C): plaintiff did not establish a significant "public interest" in the disclosure of names of the FBI Special Agents; plaintiff did not establish a significant "public interest" in the disclosure of names of FBI administrative and clerical personnel, furthermore, the FBI need not separate these groups of employees for purposes of explaining why disclosure of their identities was opposed; withholds names of third parties who were subjects of investigative interest, third parties whose names are mentioned in FBI documents, industry personnel, and other persons interviewed by the FBI; privacy interests are not waived because some of the names have already been revealed or would have been revealed had the investigation resulted in a trial; a witness does not lose his right to privacy the moment he agrees to testify at a criminal trial that may never take place) (adequacy of affidavit: when invoking Exemption 7(C), an agency need not match the category of person with the deletion in the records where it would serve little purpose other than to help significantly in identifying the person whose identity is being protected) (Exemption 7(D): a limited disclosure of names, either in documents or by testifying at trial, does not overcome the strong presumption under Exemption 7(D) in favor of withholding further information to preserve the confidentiality of sources) (attorney fees: defendant agency's clerical error which resulted in its failure to release documents that are clearly releasable may be more deserving of the assessment of attorney fees than defendant agency's failure to release documents because of an incorrect legal impression that they were protected from release).

Knox v. United States, No. 89-0548 (D.D.C. Apr. 21, 1989) (exhaustion: plaintiff's FOIA claim is barred because plaintiff has never submitted an administrative request).

KTVY-TV v. United States, No. 87-1432 (W.D. Okla. May 4, 1989) (Exemption 7(C): even after the completion of a criminal investigation, invasions of privacy which the exemption is designed to prevent could still occur; following Reporters Committee, states that exemption's balancing test is not influenced by the identity of the requesting party, but rather it turns on the purpose for which information is sought; protects identities of witnesses in a closed investigation because disclosure would be a "significant intrusion" on their privacy; protects names of third parties mentioned by interviewees in connection with a closed criminal investigation; to protect survivor privacy, protects crime scene photographs, medical examiner reports, and a ballistics report, data which will reveal little or nothing about defendant agency's conduct in a criminal investigation) (Exemption 7(D): protects names and information provided by interviewees in a closed criminal investigation who expressly requested confidentiality; names and information provided by interviewees in a closed criminal investigation to whom an express promise of confidentiality was not made are entitled to a presumption of confidentiality; criminal law enforcement authorities would be hindered in their work if assurances of confidentiality were retracted simply because the confidential sources are unlikely to again be sources of information) (Exemption 2: protects computer index of evidence gathered during a closed criminal investigation as it is solely internal and disclosure would serve no legitimate public interest).

Lam Lek Chong v. DEA, No. 85-3726 (D.D.C. Apr. 19, 1989) (denies plaintiff's motion to amend March 14 order because plaintiff did not demonstrate a manifest error or present newly discovered evidence; plaintiff sought review of court's determination with respect to agency's search procedures and the adequacy of the Vaughn Index).

Leeds v. Quigg, 720 F. Supp. 193 (D.D.C. 1989) (Exemption 3 [35 U.S.C. § 122]: pending patent applications are exempt from release under the FOIA) (waiver: the fact that documents requested by means of a FOIA request might be available by other means does not preclude exemption under the FOIA).

Lucas v. Dep't of Justice, No. 88-1701 (D.D.C. Apr. 12, 1989) (grants defendant agency's motion for summary judgment which was unopposed by pro se prisoner requestor).

Mangold v. CIA, No. 88-1826 (D.D.C. May 3, 1989) ("exceptional circumstances"/"due diligence": grants defendant agency's motion for an Open America stay; the defendant agency has demonstrated the "due diligence" requirement because of the NSC's expanding FOIA caseload and the sensitive nature of much of the information under its jurisdiction; a publication contract deadline is not a valid basis for expedited processing).

Marchesani v. Dep't of Justice, No. 86-2561 (D.D.C. Feb. 28, 1989) (summary judgment: because pro se plaintiff did not respond to the defendant agency's motion for summary judgment by court-ordered deadline, the motion is treated as conceded; and, as defendant's filings indicate that the bulk of the documents have been withheld or released and redacted under the FOIA exemptions, the case is dismissed as moot).

Martin v. Dep't of Educ., No. 88-1788 (D.D.C. May 31, 1989) (Exemption 5: the deliberative process privilege protects drafts of analytical documents generated in response to plaintiff's 1985 rights complaint against Delaware Law School) (Exemption 7 (threshold): in a mixed-function agency, the threshold requirement is satisfied because the letter was compiled in the course of the defendant agency's investigation of plaintiff's rights complaint) (Exemption 7(C): withholds third-party name from a letter maintained in a law enforcement file because disclosure could have a "stigmatizing connotation").

Mayock v. INS, 714 F. Supp. 1558 (N.D. Cal. 1989) ("exceptional circumstances"/"due diligence": in a "pattern and practice" case where the delay in the FOIA-request processing could result in an alien's deportation before the request could be processed, the court held that the "normal" agency backlog cannot constitute "exceptional circumstances" under the Act and that the INS had not shown statutory "due diligence" when it has failed to accord weight to the alien's need for the information; Open America stay denied; subsection (a)(6)(C) may not be invoked as a general exemption from the time requirements of the FOIA; agency must issue appropriate notices of extensions of time required under subsection (a)(6)(B)) (adequacy of search: request for "all records" must necessarily include a search of relevant electronic database) (Vaughn Index: when invoking FOIA exemptions at the administrative level, agency need not prepare a Vaughn Index, but it must indicate what types of records are being withheld and the exemptions relied upon).

Miller v. Dep't of Justice, No. 87-0533, 1989 WL 10598 (D.D.C. Jan. 31, 1989) (Exemption 2: portions of BOP Custodial Manual concerning internal procedures for security of prison control centers meet both prongs of the Crooker v. ATF test).

Morgan v. Dep't of Justice, No. 89-0196 (D.D.C. June 16, 1989) (Exemption 5: the deliberative process privilege protects documents generated before a defendant agency made a formal decision to pursue legislative amendments of the sentencing Reform Act and that contain opinions and evaluations; the deliberative process privilege protects a draft document that post-dates the formal agency decision and contains handwritten notations and changes; in camera review ordered of the 4 documents which government asserts reflect the give and take between Department of Justice and congressman and his staffers on legislation after Department of Justice proposed it but before enactment of the statute).

Moss v. Office of Special Counsel, MSPB, No. C-3-89-067 (S.D. Ohio Apr. 10, 1989) (magistrate's recommendation) (adequacy of request: the FOIA does not require an agency to answer interrogatories) (mootness: defendant agency has provided all of the documents not claimed to be exempt and plaintiff does not assert that the claim of exemption was improper; although defendant agency was late in responding to the FOIA request, it did eventually produce the documents).

Oglesby v. Dep't of the Army, No. 87-3349 (D.D.C. May 22, 1989) (adequacy of search: the Army's search, which utilized a computerized index and covered the full scope of plaintiff's FOIA request, satisfies the Weisberg v. Department of Justice standard; State Department records prior to 1954 have been transferred to the National Archives and Records Administration (NARA) and therefore are under NARA's control; searches were adequate, although no responsive documents were found) (Exemption 1 [E.O. 12,356]: defendant agency properly withheld foreign government information and intelligence activities, sources or methods; in light of the deference owed to the Army's classification judgment, holds that the exemption was properly applied to records that are 30 years old) (Exemption 1 [E.O. 12,356] and Exemption 3 [50 U.S.C. § 403(d)(3), § 403g]: the CIA properly withheld documents the release of which would reveal intelligence sources and methods used by the agency to gather information and documents prepared by the FBI but which contain CIA information classified as "Secret") (Exemption 7 (threshold): following Keys v. Department of Justice, holds that the FBI's determination that withheld records were compiled for law enforcement purposes warrants substantial deference) (Exemption 7(D): release of information would reveal the identities of confidential sources and would have a chilling effect on future sources) (Exemption 7(C): the exemption has been routinely invoked to preclude the disclosure of names of FBI agents and subjects of investigative interest) (fee waiver (Reform Act): plaintiff has constructively exhausted his administrative remedies because the CIA did not make a determination on his fee waiver request within 10 days; fee waiver denied because although the information sought is likely to contribute significantly to the public understanding of government operations, plaintiff has not demonstrated his qualifications and ability to disseminate the requested information) (no improper withholding: NARA has satisfied the requirements of the FOIA because the requested documents are available in its public reading rooms).

Ohr v. United States, No. S87-0674 (S.D. Miss. Jan. 25, 1989) (summary judgment: plaintiff's motion for summary judgment was denied for failure to establish the absence of material factual issues under the prevailing standard; grants defendant agencies a protective order to prevent discovery until after defendants have moved for summary judgment) (Exemption 4: for plaintiff to prevail on her motion for summary judgment, she has to show that the information withheld contains trade secrets that are ascertainable by inspection of the breathing apparatus; even though a device may be patentable, there may still be aspects of its production process that are secret and commercially valuable and, therefore, fall within the ambit of "trade secrets"; plaintiff failed to show that the withheld information was not "privileged or confidential") (waiver: defendant agencies are not prohibited from advocating a particular exemption in litigation simply because that exemption was not implicated in response to the FOIA request at the administrative level).

Ostrer v. FBI, No. 83-0328 (D.D.C. Mar. 28, 1989) (Exemption 7(C): in light of Reporters Committee, denies plaintiff access to third-party "rap sheets").

Parker v. Dep't of Justice, No. 88-0760 (D.D.C. June 20, 1989) (Exemption 7(D): a confidential informant does not lose his status as such upon testifying as a witness, to hold otherwise would defeat the purpose of the exemption and would drastically impair the FBI's ability to obtain information vital to its continued functioning).

Patterson v. FBI, 705 F. Supp. 1033 (D.N.J. 1989) (Exemption 1 [E.O. 12,356]: affidavit sufficiently establishes that the agency adhered to the procedural requirements of E.O. 12,356; in camera inspection conducted because agency's cursory description of the withheld material does not comport with a meaningful de novo review; withheld material falls within the purview of E.O. 12,356, as release of the material could compromise certain intelligence methods and sources) (Exemption 7(C): release of names of FBI Special Agents and employees who worked on a particular investigation would result in a negligible public benefit, particularly because the agency engaged in no illegal conduct in regard to the investigation).

Powell v. Dep't of the Treasury, No. 87-3287 (D.D.C. Apr. 4, 1989) (grants summary judgment to the defendant agency on the basis of the magistrate's findings and recommendations, holding that the defendant agency's good faith affidavit supports its search procedures and the FOIA exemptions invoked) (discovery in FOIA litigation: discovery is extremely limited in FOIA actions and, in this case, when the court is satisfied with the good faith affidavit of the defendant agency, the type of discovery plaintiff seeks would be "anathema" to the FOIA).

Proffitt v. Davis, 707 F. Supp. 182 (E.D. Pa. 1989) (agency: because it is a state agency, Pennsylvania's Dep't of Environmental Resources is not subject to the disclosure provisions of the FOIA, nor to the open meeting requirements of the Government in the Sunshine Act).

Project on Military Procurement v. Dep't of the Navy, 710 F. Supp. 362 (D.D.C. 1989) (fee waiver (Reform Act): release of the boilerplate language in standardized forms may substantially enrich the public understanding of a procurement problem and, therefore, justify a fee waiver; despite prior media attention and the issuance of an Inspector General report, documents released pursuant to a FOIA request will contribute to the public understanding of a procurement problem because certain aspects of the affair remain unresolved; defendant agency may not rely on contemplated redactions or withholdings to defeat plaintiff's request for a fee waiver; nonprofit organization investigating fraud and waste in the defense budget is entitled to a fee waiver).

Prows v. Dep't of Justice, No. 87-1657, 1989 WL 39288 (D.D.C. Apr. 13, 1989) (fee waiver (Reform Act): denies waiver of reproduction fees, because the release of records already in a court's public files would not "contribute significantly to the public understanding of the operations or activities of the government"; denies waiver of search fee, because indigent prisoner has not demonstrated that "he has the capacity -- as opposed to the desire -- to disseminate this information widely," nor has he identified the public interest to be served by disclosure) (Exemption 7(C): withholds information concerning plaintiff's co-defendant; the protection of this exemption is not waived by the act of testifying at trial) (Exemption 7(D): release of report of laboratory analysis of handwriting and typewriting exemplars would, by the very nature of the exemplars, reveal the source; withholds information which, when considered in context with released information, would enable a reader to deduce the identity of a confidential source; information that was obtained in confidentiality during a criminal warrant investigation does not lose that confidential status even if the fact of cooperation becomes public at a later date) (Exemption 7(E): agency withheld only investigative techniques that are not commonly known to the public) ("no records" defense: agencies' searches revealed no responsive documents and plaintiff has not presented a reasonable challenge to the search procedures) (in camera inspection: in camera inspection is unnecessary because the defendant agency's affidavits demonstrate the propriety of each withholding in sufficient detail) (adequacy of request: plaintiff has not identified the information he seeks with sufficient specificity to enable defendant agency to locate the relevant records "with reasonable effort") (attorney fees: plaintiff's motion for interim fees was treated as a motion for attorney fees at the conclusion of the case; plaintiff's suit was causally responsible for much of defendant agency's disclosures, both in terms of importance and volume; however, attorney fees are denied because plaintiff had adequate personal incentive to seek judicial relief, and because defendant agency had a reasonable basis in law for all of its exemptions, and given the scope and the vagueness of some of plaintiff's requests, any delays in searching for or disclosing information were reasonable).

Rankin v. United States Probation Dep't, No. 89-1070 (E.D. Pa. Feb. 21, 1989) (agency: because the United States Probation Office is an office of the court, it is not an agency under the FOIA).

Ray v. Dep't of Justice, 725 F. Supp. 502 (S.D. Fla. 1989) ("no records" defense: defendant agency's affidavits demonstrate that there was a proper and adequate search) (Exemption 6: orders disclosure of names and addresses of Haitians who have been returned to Haiti, because the public has a legitimate interest in our country's immigration policy and the safe relocation of returned Haitians, and the invasion of privacy would be de minimis) (denies government's motion to alter or amend court's March 2 order to release names and addresses of repatriated Haitians) (waiver of exemption: entitlement to new exemptions has been waived when the government, rather than complying with the court's order to release unredacted records, raised new exemptions which are wholly unfounded).

Raytheon Co. v. Dep't of the Navy, 731 F. Supp. 1097 (D.D.C. 1989) (Exemption 7 (threshold): at the time the audit reports were generated, the defendant agency had departed from a routine monitoring and had focused special attentin on specific aspects of plaintiff's proposals and activities; even though the documents were not compiled for a law enforcement purpose originally, by the time of the FOIA request they had been compiled for purposes of a pending law enforcement investigation) (Exemption 7(A): release of the documents would reveal the general direction and scope of the government's investigation and its calculations with respect to the financial impact of various defective pricing issues).

San Jose Mercury News v. Dep't of Justice, No. S88-20504 (N.D. Cal. Apr. 7, 1989) (discovery in FOIA litigation: denies defendant agency's motion for reconsideration of portion of magistrate's order compelling defendant agency to answer interrogatories related to specific aspects of exemption claims and adequacy of search issues which were not addressed in its Vaughn Index).

Siam Cuisine Rest. v. Meese, No. 88-1125 (D.D.C. Apr. 12, 1989) (proper party defendant: the Attorney General and INS officials are not proper party defendants under the FOIA) (Exemption 7(A): "an investigation that has yet to flower into a judicial proceeding can be a sufficient basis for applying this exemption"; release of a worksheet which contains information regarding an ongoing investigation into alleged employment violations would compromise the government's enforcement efforts by alerting plaintiff to the strategy and scope of the investigation) (Exemption 7(D): disclosure of name and telephone number of a confidential source would violate government's promise of confidentiality and discourage this and other sources from future cooperation).

SMS Data Prods. Group v. Dep't of the Air Force, No. 88-0481, 1989 WL 201031 (D.D.C. Mar. 31, 1989) (Exemption 5: documents related to a disappointed bidder's technical scoring in a government contract award are predecisional because they were prepared by a body that does not have final decision-making authority; the determination of a bidder's technical score is not a "final decision," it is a means of assisting a contracting agency to make a final decision; the deliberative process privilege protects advisory board's subjective evaluations of various proposals expressed in quantitative terms because those evaluations are opinions rather than facts) ("no records" defense: plaintiff has provided no evidence that documents containing technical ratings exist) (Exemption 4: release of portions of a winning proposal about currently unannounced and future products, proprietary technical information, pricing strategy, and subcontractor information would cause competitive injury; release of corporate and management structures, financial and production capabilities, corporate history and employees that defendant asserted was proprietary information would not cause competitive injury because this is a publicly held corporation and most of this information would be included in the corporation's annual report or other public filings with the SEC) (discovery in FOIA litigation: in the absence of substantial questions concerning the content of defendant's affidavits, further discovery is inappropriate).

Southam News v. INS, No. 85-2721 (D.D.C. May 18, 1989) (summary judgment: defendant agency's motion granted because it is supported by detailed and proper affidavits) (adequacy of search: the CIA demonstrated by nonconclusive affidavits that its search was reasonably calculated to discover all responsive documents; INS's search was inadequate because it simply fails to account for some documents that were referred to field offices) (Exemption 1 [E.O. 12,356]: the unilateral declassification and release of 20-year-old documents provided by Canada would greatly diminish the value of our promise of confidentiality; orders INS to submit a more detailed description of documents withheld and the propriety of their classification or to release the information withheld under Exemption 1) (Exemption 2: because agency control numbers are genuinely trivial administrative details, "the exemption would be automatic under the statute"; INS must supplement its affidavits with regard to the Exemption 2 claims for memoranda, letters, reports, "administrative pages" of reports of investigation, a description of codes used in the "lookout book," and worksheets used to post information) (Exemption 5: to withhold information under the deliberative process privilege, the affidavits must show how the documents were involved in the deliberative or decisionmaking process of the agency; letters do not meet the inter- or intra-agency requirement) (Exemption 6: because an individual signed an affidavit waiving his privacy interest in any information concerning him held by the United States Government, information concerning him must be released; letter from a publisher to an INS District Director thanking him for his letter must be released) (Exemption 7(A): because enforcement proceedings are no longer anticipated, documents must be released) (Exemption 7(C): withholds information that would identify Canadians whom the INS has determined to be inadmissible to the United States; an individual's privacy rights do not diminish once he is past the age of retirement) (Exemption 7(D): affidavits demonstrate that portions of document were withheld to protect the identity of a confidential source; agency must supplement its affidavits to demonstrate that 2 documents were properly withheld in their entirety under Exemption 7(D)) (adequacy of affidavit: because INS's affidavits are so inadequate, the court considered ordering the immediate release of all the documents; however, because there may be legitimate foreign policy or privacy interests implicated, INS will have 30 days to supplement its affidavits).

Stanger v. Dep't of Justice, No. 87-1407 (D.D.C. Jan. 11, 1989) (Exemption 7(D): the existence of a confidentiality agreement between prosecutors and witnesses is demonstrated by the declarations and affidavits; the fact that plaintiff has ascertained the identities of the confidential sources does not diminish the protection accorded the information provided by these sources) (Exemption 5: documents prepared during the pendency of plaintiff's first indictment would reveal the inner workings of the prosecutorial efforts; exemption protects drafts of letters).

Stimac v. Executive Office for United States Attorneys, No. 88-2342 (D.D.C. Jan. 11, 1989) (summary judgment was granted to the defendant agency that, after conducting an adequate search, found no new records concerning plaintiff's conviction; all releasable records had previously been provided to him).

Stimac v. United States Parole Comm'n, No. 88-2340 (D.D.C. Jan. 3, 1989) (Exemption 7(C): protects third-party information contained in a "co-defendant worksheet" and information from an Initial Hearing Summary that would reveal an informant's identity).

Stone v. FBI, No. 87-1346 (D.D.C. Jan. 11, 1989) (discovery in FOIA litigation: denies plaintiffs' motion to lift the protective order staying discovery; plaintiff has no significant basis for questioning the reliability of the government's affidavits) (Exemption 7(C): although FBI Special Agents and clerical employees and local law enforcement personnel, by virtue of their official status, enjoy a lesser expectation of privacy than that enjoyed by private citizens, they could conceivably be subjected to annoyance and harassment were their names to be disclosed in the context of an investigation in which they were participants, a risk which does not necessarily diminish with the passage of time; the historical significance of the case should be emphasized not in examining the privacy interests at stake, but instead when evaluating the public interest in disclosure).

Strang v. Collyer, 710 F. Supp. 9 (D.D.C. 1989) (Exemption 5: drafts of an amicus brief are exempt from disclosure because they reflect the agency's decisionmaking process and their disclosure would injure the quality of agency decisions; the deliberative process privilege protects intra-agency memoranda that contain analyses and recommendations regarding the position to be taken by agency in a petition for certiorari; notes taken during meetings are similarly protected because they "reflect the agency's group thinking in the process of working out its policy"; the attorney work-product privilege protects notes taken during meetings, intra-office memoranda and documents containing legal research which show the shaping of defendant's legal theories and were developed in response to the Supreme Court's request or in contemplation of litigation).

Summers v. Dep't of Justice, No. 88-2771 (D.D.C. June 2, 1989) (following Open America, grants defendant's motion for a stay to complete the necessary administrative processes for making a fee waiver determination with respect to plaintiff's "numerous, all-inclusive and undifferentiated" FOIA requests).

Taylor v. United States, No. 88-C-8989 (N.D. Ill. Jan. 30, 1989) (grants defendant's motion to dismiss for improper venue in the Northern District of Illinois, where a pro se prisoner sought access to his presentence investigative report maintained at the Memphis, Tennessee institution where he resides).

Taylor Woodrow Int'l, Ltd. v. United States, No. C88-429R, 1989 WL 1095561 (W.D. Wash. Apr. 5, 1989) (Exemption 5: commercial privilege protects cost-estimate summary sheets used by the government to evaluate contractor bids, because the release of this information to the contractor after the contract has been awarded but before the completion of the project would create a serious commercial disadvantage for the government during change-order negotiations with the contractor).

Teichgraeber v. Bd. of Governors, Fed. Reserve Sys., No. 87-2505 (D. Kan. Mar. 20, 1989) (Exemption 8: withholds bank examination information, noting that the exemption provides "absolute protection" to such information "regardless of the circumstances underlying the regulatory agency's receipt or preparation" of it).

Tex. Health Care Ass'n v. Bowen, 710 F. Supp. 1109 (W.D. Tex. 1989) (Federal Register publication: "draft criteria" created by the state (with an effective date) pursuant to Medicaid law revisions concerning the placement of mentally ill and mentally retarded persons in nursing homes are "rules" as defined by the APA and, therefore, were required to be published and offered for comment).

Trans-Union Fastener Corp. v. United States Customs Serv., No. 86-1184-C (W.D.N.Y. Mar. 31, 1989) (without specification, finds that defendant agency properly withheld names of informants and information received from them, identifying case or control numbers, the names of government agents, and predecisional internal correspondence and memoranda).

Uribe v. Executive Office for United States Attorneys, No. 87-1836, 1989 U.S. Dist. LEXIS 5691 (D.D.C. May 23, 1989) (Exemption 3 [Rule 6(e)]: protects 7 pages of grand jury transcripts) (Exemption 5: the attorney work-product privilege protects a prosecution memorandum, a plea agreement memorandum, a prosecution declination memorandum, handwritten attorney case notes, and notes of discussions with case agents; handwritten attorney notes of an interview with plaintiff are not protected because the actual statements made by plaintiff during this interrogation do not constitute attorney work product) (Exemption 7 (threshold): a criminal case intake worksheet clearly satisfies the Pratt v. Webster threshold test) (Exemption 7(C): release of the names of FBI Special Agents would constitute an unwarranted invasion of personal privacy).

Williston Basin Pipeline Co. v. FERC, No. 88-0592, 1989 WL 44655 (D.D.C. Apr. 17, 1989) (Exemption 5: agency auditor's recommendations used by supervisors to determine whether auditee should be pursued in an enforcement proceeding are protected by the deliberate process privilege) (Exemptions 2 and 7(E): identity of auditors, the "purpose, source and conclusion" portions of audit reports, and sections summaries composed of personal opinions of auditors and their discussions of investigative techniques may be withheld because disclosure would expose investigative techniques and risk circumvention of law).

Wilson v. Dep't of Justice, No. 87-2415 (D.D.C. May 2, 1989) (grants plaintiff's motion for partial summary judgment relating to the waiver of agency search and reproduction fees).

Yarbrouqh v. FBI, No. 88-3072 (D.D.C. May 26, 1989) (grants defendant agency's unopposed motion for summary judgment).   (posted 12/31/03)

Go to: Main FOIA Post Page // DOJ FOIA Page // DOJ Home Page