Brief Description of Recent FOIA Litigation

Am. Civil Liberties Union v. United States Dep't of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) -- E.O. 12,958, § 1.5(c) (pre-2003 amendment); disclosure of aggregate, statistical information on number of times that Justice Department has used surveillance and investigatory tools authorized by USA PATRIOT Act would reveal intelligence activities, sources, or methods and could be expected to damage national security.

Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d 1 (D.D.C. 2001), aff'd on other grounds, 334 F.3d 55 (D.C. Cir. 2003) -- E.O. 12,958 (pre-2003 amendment); intelligence sources and methods; protecting five-volume compendium of "Cuban Personalities" compiled in 1962, because disclosure would "reveal the intelligence that the U.S. keeps on individuals, the type of information that the U.S. considers important, the extent of the U.S. intelligence and its priorities, and, potentially confidential sources"; finding no reasonably segregable, nonexempt information because "[t]he necessary redaction would require the agency to commit significant time and resources to a task that would yield a product with little, if any, informational value."

Edmonds v. FBI, 272 F. Supp. 2d 35 (D.D.C. 2003) -- "low 2"; protecting FBI's internal rules for language services because they constitute "trivial administrative matters of no genuine public interest"; "high 2" protecting secure facsimile numbers used only by FBI Special Agents and staff in conducting classified or sensitive investigations, because disclosure would give "those with the intent of breaking the law the ability to monitor or block the FBI's secure facsimile lines."

Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) -- "high 2"; finding that "inundation" maps, under the 10^th Circuit's unique test, "neither provide instructions nor contain rules or practices for [Bureau of Reclamation] personnel."

Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal. 2003), reconsideration denied, No. 02-3838, 2003 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9^th Cir. Aug. 26, 2003) -- "high 2"; protecting number of Customs examinations at Los Angeles/Long Beach seaport for each of five recent years "because terrorists and others could use the information to discover the rate of inspection and then direct their containers to vulnerable ports."

Sw. Ctr. for Biological Diversity v. USDA, 314 F.3d 1060 (9^th Cir. 2002) -- giving retroactive effect to Exemption 3 statute enacted during pendency of FOIA litigation; ruling that district court properly applied 16 U.S.C. § 5937 to protect from disclosure all information tending to identify the location of northern goshawk nest sites.

McDonnell Douglas Corp. v. United States Dep't of the Air Force, 215 F. Supp. 2d 200 (D.D.C. 2002) (appeal pending; oral argument held Oct. 23, 2003) -- "reverse FOIA"; permitting disclosure of option-year unit prices, mark-ups on vendor prices, and "over and above" prices; ruling that requested prices are required submissions; ruling that agency "is in the best position to determine whether an action will impair its information gathering in the future"; ruling no substantial competitive harm from disclosure because agency looks at price as only one of several factors; each of the three pricing categories consisted of "too many variables" for disclosure to cause substantial competitive harm.

FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607 (5^th Cir. 2003) -- program impairment; protecting Bureau of Labor Statistics statistical information concerning salaries and wages submitted pursuant to a "pledge of confidentiality" by surveyed businesses in Wichita Falls and Oklahoma City; finding that disclosure "would impair BLS's ability to collect such data in the future."

Nw. Coalition for Alternatives to Pesticides v. EPA, 254 F. Supp. 2d 125 (D.D.C. 2003) -- remanding case back to agency "for an appropriate explanation of whether the agency has determined that all of the information redacted by" the submitter was exempt where the requester was provided a redacted version of the document only by the submitter.

N.Y. Pub. Interest Research Group v. EPA, 249 F. Supp. 2d 327 (S.D. N.Y. 2003) -- ordering disclosure of GE's submissions of its scientific views and analysis of remedies other than dredging to clean Hudson River "Superfund" site of PCBs; ruling that submission was not "commercial," even though GE "had a financial stake in the outcome," because its disclosure would not "jeopardize GE's commercial interests or reveal information about [its] factories"; finding in dicta that National Parks impairment test is not satisfied because GE had "significant external incentives" to make its submission; in further dicta refusing to apply Critical Mass "voluntary" test because the Second Circuit has not adopted it and its standard "would result in too liberal a test for confidentiality"; in further dicta observing that even under Critical Mass neither agency nor submitter has shown that GE customarily holds such information in confidence.

Ctr. for Int'l Envtl. Law v. Office of the United States Trade Representative, 237 F. Supp. 2d 17 (D.D.C. 2002) -- threshold requirement; incorrectly applying Klamath Water Users Protective Ass'n v. Department of the Interior to find that Exemption 5 does not protect any document or document portion submitted by or to Chile relating to the United States-Chile Free Trade Agreement, on the basis that Chile was an adversary of, rather than a consultant to, the USTR in the context of the trade negotiations; inexplicably declaring that "the critical factor" in considering the applicability of Exemption 5 to an outside party "is the degree of self-interest pursued by that party"; even though the United States promised confidentiality to Chile at the outset and disclosure "may complicate international negotiations on free trade . . . such policy concerns cannot trump the plain language" of the FOIA.

Evans v. OPM, 276 F. Supp. 2d 34 (D.D.C. 2003) -- deliberative process privilege; finding that the deliberative process privilege does not protect a memorandum issued by OPM's Office of the General Counsel, in response to an inquiry from a program office, that is a "clear statement" of OPM's legal position on the adoption of a governmentwide policy on filling interdisciplinary positions; observing that a "strong theme" of this Circuit's deliberative process opinions is that an agency cannot be allowed to develop a body of "secret law" that it uses in the discharge of its regulatory duties.

Tigue v. United States Dep't of Justice, 312 F.3d 70 (2d Cir. 2002), cert. denied, 123 S. Ct. 2214 (2003) -- deliberative process privilege; protecting memorandum prepared by an Assistant United States Attorney for use of the Webster Commission that was created by the IRS to assist it in developing policy regarding the conduct of criminal tax investigations; because the Commission was acting as a consultant to the IRS, the memorandum is an "inter-agency document"; memorandum is predecisional because it was prepared for use by the Commission in advising the IRS on its future policy with respect to criminal tax investigations.

Casad v. HHS, 301 F.3d 1247 (10^th Cir. 2002) -- deliberative process privilege; holding that grant application's "summary statement" is a predecisional, deliberative communication in NIH's funding process; fact that no other document in grant process "explain[s] the reasons" for funding decision does not deprive summary statement of its protected status.

Hertzberg v. Veneman, 273 F. Supp. 2d 67 (D.D.C. 2003) -- attorney work-product privilege; holding that witness statements from Forest Service employees and contract employees relating to their suppression efforts during the wildfire in the Bitterroot National Forest were protected because they were taken as part of a "litigation investigation" where the agency reasonably anticipated litigation in connection with the firing operation.

Office of the Capital Collateral Counsel v. Dep't of Justice, 331 F.3d 799 (11^th Cir. 2003) -- protecting two documents containing names of third parties and personal thoughts and feelings of Justice Department attorney accused of professional misconduct; fact that attorney was a public official "does not render her interest in preserving her personal privacy without weight"; public interest in knowing how agency responded to her misconduct has been satisfied by substantial information already available to the public.

Doe v. Veneman, 230 F. Supp. 2d 739 (W.D. Tex. 2002) -- "reverse" FOIA; permanently enjoins disclosure of identities of farmers and ranchers who have entered into cooperative agreements with federal government regarding use of anti-wolf livestock-protection collar; because signatory to cooperative agreement is not required to state whether it is business entity or private individual, agency was making "overly technical distinction" between individual and business; disclosure of information will not shed light on agency's performance of its statutory duties.

City of Chicago v. United States Dep't of Treasury, 287 F.3d 628 (7^th Cir.), amended upon denial of reh'g en banc, 297 F.3d 672 (7^th Cir. 2002), vacated & remanded to determine effect of Consolidated Appropriations Resolution sub nom. United States Dep't of Justice v. City of Chicago, 123 S. Ct. 1352 (2003) -- finding that agency had submitted only "speculative," not "concrete," examples of how disclosure could interfere with enforcement proceedings in this FOIA case where plaintiff sought information in ATF gun-trafficking databases; deference to agency expertise limited to those instances where the agency "has demonstrated with specificity a logical connection between the information withheld and identified investigations, and where the agency has submitted uncontroverted affidavits."

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472) -- 2-1 decision upholding nondisclosure of the identities and other information pertaining to all immigration detainees taken into custody in the government's post-9/11 terrorist investigation, including the identities of their attorneys; extending the courts' "long-recognized deference to the executive on national security issues" to Exemption 7(A) "in appropriate cases, such as this one"; concluding that disclosure "would give terrorist organizations a composite picture of the government investigation" and thus enable them to impede it through witness intimidation, evidence tampering, evasion, and the formulation of "counter-efforts."

Favish v. Office of Indep. Counsel, No. 97-1479, 2001 WL 770410 (C.D. Cal. Jan. 12, 2001), aff'd in part & rev'd in part, No. 01-55487 (9^th Cir. June 6, 2002), reh'g en banc denied (9^th Cir. Aug. 16, 2002), petition for cert. filed by requester, 71 U.S.L.W. 3191 (U.S. Sept. 11, 2002) (No. 02-409), petition for cert. filed by family of decedent sub nom. Anthony v. Favish, 71 U.S.L.W. 3319 (U.S. Oct. 16, 2002) (No. 02-599), agency's petition for cert. granted, 123 S. Ct. 1928 (2003) (oral argument scheduled Dec. 3, 2003) -- after in camera inspection, ordering disclosure of several color death-scene photographs of former Deputy White House Counsel Vincent Foster where court found them not to be "graphic, explicit, and extremely upsetting" to surviving family in the "zone of privacy protection."

Perlman v. United States Dep't of Justice, 312 F.3d 100 (2d Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3578 (U.S. Feb. 24, 2003) (No. 02-1270) -- ordering disclosure, with limited exceptions, of details of IG investigative report concerning allegations of misconduct by INS General Counsel; finds that the public interest in disclosure substantially outweighs the official's privacy interests based on his rank, the degree of wrongdoing, the strength of the evidence, the availability of the information, the degree that the information sheds light on government activity, and whether the information is personal or job related.

Rugiero v. United States Dep't of Justice, 234 F. Supp. 2d 697 (E.D. Mich. 2003) -- protecting "coded informants" and "cooperating individuals" found to have received express promises of confidentiality based on DEA Agents Manual provision requiring such a promises to be given to all such sources; finding implied promises of confidentiality based on circumstances of the criminal activity where requester was head of a "large scale narcotic trafficking organization" who was indicted for "intimidating a witness and using a firearm during a violent crime."

Exemption 7(E)

Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal. 2003), reconsideration denied, No. 02-3838, 2003 WL 21507775 (C.D. Cal. June 13, 2003) -- protecting number of Customs examinations at Los Angeles/Long Beach seaport under Exemption 7(E) as well as under Exemption 2.

Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) -- finding that "inundation" maps that were compiled as law enforcement records technically do not constitute techniques, procedures, or guidelines protectible under Exemption 7(E).

Exemption 7(F)

Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) -- protecting "inundation" maps that were compiled as law enforcement records because their disclosure could "aid in carrying out a terrorist attack" on Hoover Dam or Glen Canyon Dam, resulting in death to persons in potential flood zones.

Procedural Issues

August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) -- distinguishing case from prior "litigation waiver" decision in Maydak v. Department of Justice, and harmonizing it with Senate of Puerto Rico v. United States Department of Justice, largely on the grounds that the government seeks to withhold only "sensitive, personal information" the disclosure of which would jeopardize the safety and privacy of third parties involved in the FBI's investigation and that there is nothing to suggest that the government's initial invocation of Exemption 7(A) only was "an effort to gain a tactical advantage" in the case; plaintiff has a history of violent behavior and would pose a risk to these persons' safety; the government's failure to invoke all applicable FOIA exemptions at the district court level was "a reasonable mistake," at most, and "[t]he law does not require that third parties pay for the Government's mistakes"; the government has taken affirmative steps to guard against recurrence of this problem.

Tripp v. DOD, 193 F. Supp. 2d 229 (D.D.C. 2002) -- expedited processing denied because requester is not "primarily engaged in the activity of disseminating information," even though "she has been the object of media attention, and has at times provided information to the media"; requester's "job application to the Marshall Center and the resulting alleged Privacy Act violations by DOD are not the subject of any breaking news story."

LaCedra v. Executive Office for United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003) -- interpretation of request; in view of government's obligation "to construe a FOIA request liberally," its narrow reading of plaintiff's FOIA request -- for "all documents pertaining to my case . . . [and] specifically" for rewards and fingerprints -- to include only those specific items was "simply implausible" and "also wrong"; because agency's interpretation of the request was "at least colorable," declines plaintiff's invitation that it apply Maydak v. Department of Justice to rule that on remand the government should not be allowed to apply any of the exemptions.

Blackman v. United States Dep't of Justice, No. 00-3004 (D.D.C. July 5, 2001), summary judgment granted (D.D.C. Oct. 9, 2001), dismissed for failure to prosecute, No. 01-5431 (D.C. Cir. Jan. 2, 2003) -- adequacy of search; ruling that agency's search for deposition transcripts of one expert witness by using "pay records" index was adequate; manual search that would involve 3000 aviation cases and as many as 37 million pages would be "overly burdensome."

TPS, Inc. v. DOD, 330 F.3d 1191 (9^th Cir. 2003) -- format of disclosure; reversing and remanding district court's ruling that the Department of Defense's Defense Logistics Information Service need not provide information in a particular electronic format (a "zipped" file), because material issues of fact exist about whether it is "business as usual" -- under the agency's own FOIA regulations -- for the agency to generate documents in a zipped file; "business as usual" inquiry for Department of Defense is not restricted to whether the agency regularly produces documents in a particular format in response to FOIA requests, but rather should look at whether a particular format is "readily reproducible" in general.

FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607 (5^th Cir. 2003) -- redaction process; ruling that an agency is not required to "insert new information in place of the redacted information[, because that would require] the creation of new agency records, a task the FOIA does not require the government to perform."

VoteHemp, Inc. v. DEA, 237 F. Supp. 2d 55 (D.D.C. 2002) -- fee waiver; although requester has shown an intention to distribute information to the public through its Web site and press releases, it has not demonstrated why disclosure would contribute significantly to the public's understanding of DEA's operations or activities, because DEA "has unambiguously and thoroughly articulated the reason" underlying its designation of THC products as Schedule I controlled substances; although requester is a nonprofit entity, its advocacy for a free market in hemp and its association with businesses with an interest in hemp products support DEA's finding that it has a commercial interest in the information.

Elec. Privacy Info. Ctr. v. DOD, 241 F. Supp. 2d 5 (D.D.C. 2003) -- fee category; requester, a publisher of a biweekly electronic newsletter that has compiled and published seven books relating to privacy and civil rights, held to be a "representative of the news media"; a "representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience"; merely maintaining a Web site, by itself, is insufficient to qualify a FOIA requester as a representative of the news media.

Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) --fee waiver; observing that "Congress amended FOIA to ensure that it is 'liberally construed in favor of waivers for noncommercial requesters'"; in context of an unrebutted fee waiver request finding that request for records about a conflict-of-interest waiver for the IRS Commissioner concerns agency operations and activities, that there is "as much [public] interest in knowing that key IRS decisions are free from the taint of conflict of interest as they have in discovering that they are not," that the requester has stated nine different ways of disseminating records, and nothing suggests that no more than one of the requested records have been disclosed to anyone other than one magazine.

Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) -- exhaustion of administrative remedies; requester improperly submitted an administrative appeal before the FBI acted on his request and ignored the Justice Department's directive to appeal again after the FBI completed its action; the "FBI never had a fair opportunity to resolve [the issue] prior to being ushered into litigation."

United We Stand Am. v. IRS, 219 F. Supp. 2d 14 (D.D.C. 2002) (appeal pending; oral argument held Sept. 18, 2003) -- "agency records"; records created by the IRS in order to respond to a request of the Joint Committee on Taxation made in its oversight capacity held "congressional records," not "agency records."

Allen v. Fed. Bureau of Prisons, No. 00-342 (D.D.C. Aug. 26, 2002) -- creation of records; holding that agency has no obligation under the FOIA to transcribe requested oral tape recordings; sanctions; finding it "inexcusable" that agency "took no steps to preserve any [tapes of] telephone calls, despite Plaintiff's request for 'telephone records or transcripts'" where such tapes were "overwritten" every 180 days; imposing sanctions on agency in the form of "reimbursement of Plaintiff of his filing fee and all postage a copying costs that he has occurred [sic]" and prohibiting agency from charging fees for those few tapes that still do exist.

Pub. Citizen v. Dep't of State, 276 F.3d 634 (D.C. Cir. 2002) -- "cut-off" date; holding that agency's "date-of-receipt cut-off policy . . . is unreasonable both generally and as applied to [this] request."

Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003) -- finding EPA in contempt of court's January 19, 2001 preliminary injunction prohibiting EPA from destroying, removing, or tampering with FOIA-requested records, because EPA did not heed the injunction and nevertheless reformatted hard drives and erased e-mail tapes that contained potentially responsive material; because "the destruction of these records goes to the heart of" plaintiff's FOIA request, the "appropriate sanction, given the length and breadth of EPA's disobedience," is to order EPA to pay a sanction of the attorney fees and costs "caused by EPA's contumacious conduct."

Schwarz v. FBI, No. 00-2758 (D.D.C. Sept. 24, 2002), summary affirmance granted, No. 02-5321 (D.C. Cir. Jan. 28, 2003) (per curiam) -- abusive FOIA requester; dismissing as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) plaintiff's FOIA action against 70 federal defendants; the FOIA's "admirable purpose is abused when misguided individuals are allowed (in this case, repeatedly) to submit FOIA requests to every agency and subdivision of the government, seeking information about an imaginary conspiracy."

Johnson v. Executive Office for United States Attorneys, 310 F.3d 771 (D.C. Cir. 2002) -- personal liability; ruling that there is no Bivens liability for FOIA Officer who was alleged to have mishandled plaintiff's FOIA request, because the FOIA "provides a 'comprehensive system to administer public rights.'"

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