FOIA Advisor

Court opinions issued Sept. 30, 2015

Court Opinions (2015-16)Allan BlutsteinComment

Kaplan v. Ebert (M.D. Pa.) -- dismissing lawsuit because plaintiff failed to file administrative appeals before filing Complaint. 

Hertz Schram PC v. Fed. Bureau of Investigation (E.D. Mich.) -- accepting magistrate's recommendation to deny plaintiff an award of attorney's fees.  The court concluded that plaintiff was neither eligible nor entitled to fees because the agency has begun processing the request before the lawsuit was filed, the agency acted reasonably in withholding certain records, and plaintiff had a commercial interest in pursuing the lawsuit.   

Canning v. U.S. Dep't of State (D.D.C.) -- upholding agency's Exemption 1 withholdings except for: (a) certain unclassified portions of two partially redacted documents, which the court ordered to be released, and (b) documents classified after submission of FOIA request, for which the court sought additional information. The court further upheld agency's withholdings under Exemptions 5 (deliberative process privilege) and 6. 

Francis v. Fed. Hous. Fin. Agency (D.D.C.) -- determining that FHFA conducted a reasonable search of its files and that it was not obligated to search Fannie Mae's files even though FHFA is Fannie Mae's conservator.    

Stein v. U.S. Dep't of Justice (D.D.C.) -- ruling that: (1) FBI's case evaluation forms were properly withheld under Exemption 2 because they are maintained in administrative personnel files "'for purposes of tracking and evaluating the performance of employees who process FOIA and Privacy Act requests'"; (2) FBI properly withheld its "Automated Case Support Basic Reference Guide" pursuant to Exemption 7(E); (3) the Civil Division properly withheld several monographs pursuant to Exemption 5 (attorney work-product privilege); (4) Executive Office for United States Attorneys "applied an unnecessarily hypertechnical reading" of plaintiff's request for records "in the USABook Desktop Library maintained by the DOJ Office of Legal Education indexed under the topic 'Freedom of Information;'" (5) FBI did not justify its reliance on Exemption 7(D) for 28 of 29 pages concerning Christopher Hitchens; and (6) FBI properly denied plaintiff's request for a fee waiver with respect to approximately 10,000 pages concerning Gwen Todd.      

Ctr. for Auto Safety v. U.S. Dep't of Treasury (D.D.C.) -- holding that agency and intervenor failed to provide adequate Vaughn indices with respect to Exemption 4 withholdings pertaining to 2009 bankruptcies of General Motors and Chrysler.   

Argus Leader Media v. U.S. Dep't of Agric. (D.S.D.) -- finding that the Food and Nutrition Service had not justified its use of Exemptions 4 and 6 to withhold certain food stamp program information derived from retail stores.  In analyzing the prospect of competitive harm, the court took into consideration that only 323 of 321,988 potential retailers responded to the agency's submitter notice.   

N.Y. Times v. U.S. Dep't of Justice (S.D.N.Y.) -- holding that: (1) FBI's witness statements were protected by attorney work-product privilege because they revealed an attorney's strategic impressions and mental processes; (2) all memoranda at issue were covered by the attorney work-product privilege, the doctrine of "express incorporation" applies to and waives that privilege, and one of four memoranda -- a declination to prosecute -- had been expressly incorporated, at least in part, in agency's final decision.    

Freedom Watch, Inc. v. Nat'l Sec. Agency (D.D.C.) -- dismissing NSA from multi-defendant lawsuit concerning records of shoot-down of a military helicopter in Afghanistan because plaintiff failed to appeal NSA's determinations; rejecting plaintiff's argument that appealing would have been futile or that a "futility" exception to appeal requirement even exists. 

Aguiar v, Drug Enforcement Admin. (D.D.C.) -- ruling that DEA performed an adequate search for certain administrative subpoenas and that third party's GPS mapping software utilized by the DEA is not an "agency record."  The court also found from an in camera review that DEA's uncontested withholdings were proper.   

Am. Civil Liberties Union of S. Cal. v. U.S. Citizenship & Immigration Servs. (D.D.C.) -- deciding that: (1) national security concerns underlying agency's Controlled Application Review and Resolution Program was sufficient to meet Exemption 7's law enforcement threshold; (2) USCIS properly withheld certain records pursuant to Exemption 7(E), but that it failed to adequately explain that exemption's applicability to other records; (3) USCIS performed an adequate search for responsive records; (4) USCIS improperly determined that certain records were outside the scope of request; and (5) USCIS reasonably segregated and released all non-exempt information.  

Rocky Mountain Wild v. U.S. Forest Serv. (D. Colo.) -- concluding that the Forest Service unreasonably limited its search and that agency justified its withholdings under Exemption 5 for only certain records. 

Summaries of all cases since April 2015 are available here.