Brief Description of Recent FOIA Litigation

Pub. Citizen Inc. v. Dep't of State, 276 F.3d 634 (D.C. Cir. 2002) -- E.O. 12,958, § 1.8(d); protecting "intelligence activities, sources or methods"; requester failed to identify "specific information in the public domain that might duplicate that being withheld" and thus failed to carry its burden of demonstrating "prior disclosure."

Students Against Genocide v. Dep't of State, 257 F.3d 828 (D.C. Cir. 2001) -- E.O. 12,958; CIA demonstrated that release of withheld reconnaissance imagery in combination with other known information would risk intelligence sources and methods; exemptions were not waived when withheld photographs were displayed (but not distributed) by then-U.N. Ambassador Madeleine Albright during presentation to United Nations Security Council.

James Madison Project v. NARA, No. 98-2737 (D.D.C. Mar. 5, 2002) (appeal pending) -- protecting eighty-five-year-old records pertaining to the "composition and detection of 'secret inks' including German secret ink that may have been used during World War I"; giving deference to CIA classification authority's determination that some of the intelligence "methods described . . . are still used by the CIA, . . . that third parties inimical to the interest of the United States may not know which of the formulas are still considered reliable by the CIA and approved for use by its agents," and that "some of the formulas included in these documents serve as building blocks of future covert communications methods."

Robert v. Dep't of Justice, No. 99-CV-3649 (E.D.N.Y. Mar. 22, 2001), aff'd, 26 Fed. Appx. 87 (2d Cir. 2002) -- "high 2"; holding that nondisclosure of internal case numbers is necessary to "protect against unauthorized access to [agency] computer system."

Sw. Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931 (D. Ariz. 2000) (appeal pending; oral argument held July 8, 2002) -- holding that 16 U.S.C. § 5937 is an Exemption 3 statute protecting nesting sites of northern goshawk and that disclosure would endanger that species; giving retroactive effect to Exemption 3 statute enacted during pendency of FOIA litigation.

Ctr. for Pub. Integrity v. Dep't of Energy, 191 F. Supp. 2d 187 (D.D.C. 2002) -- implying that 41 U.S.C. § 423(m)(1) qualifies as an Exemption 3 statute, but holding that it does not protect names and bids of unsuccessful bidders where agency is seeking to sell, rather than procure, goods and services.

Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144 (D.C. Cir. 2001) -- submissions responsive to agency's "Information Request" merely describing "physical or performance characteristics of air bags" held not to be "trade secrets" because they are not "secret, commercially valuable plans, formulas, processes, or devices used in making preparing, compounding or processing air bags" in that they do not relate to the "production process"; submissions held voluntary under Critical Mass because agency failed to comply with Paperwork Reduction Act; "actual legal authority, rather than parties' beliefs or intentions, governs judicial assessments of the [voluntary or required] character of submissions"; determination of whether information is "customarily disclosed" is based on whether information is "of a kind" that is disclosed, not whether it is "identical."

Pub. Citizen Health Research Group v. NIH, No. 00-1847, 2002 WL 1286089 (D.D.C. Mar. 12, 2002) -- protecting amounts and percentages of royalties paid to NIH by private companies in connection with cooperative research agreements; even though royalty rate is arrived at through negotiation, "the licensee is the ultimate source of the information," inasmuch as the company "must provide the information in the first instance"; even though royalty rate is only a small portion of licensee's total costs, due to the pharmaceutical industry's cost structure, disclosure could cause competitive harm; disclosure would impair NIH's ability to effectively implement its statutory licensing program.

Utah v. Dep't of the Interior, 256 F.3d 967 (10^th Cir. 2001) -- Critical Mass presumed to apply in Tenth Circuit; where submission was required, finds that the exemption protects provisions of a lease between a private company and an Indian Tribe because both parties to the lease face actual competition and would suffer harm if the information were released; declining to rule on whether a "public interest" balancing test exists under Exemption 4 because in this case, while the public interest in disclosure of information about the storage and disposal of spent nuclear fuel is "high," the competitive disadvantages to the parties to the lease are "overwhelming."

MCI Worldcom, Inc. v. GSA, 163 F. Supp. 2d 28 (D.D.C. 2001) -- "reverse FOIA"; protecting computer-based matrices used to calculate telecommunications services in FTS 2001 contract; finding that agency's proposed disclosure was arbitrary and capricious because matrices were not "unit prices" and, in any event, that their disclosure would cause competitive harm due to competitors underbidding and customers "ratcheting down" their prices; FAR debriefing provision cannot afford independent Trade Secret Act disclosure authority because FAR provisions themselves protect "confidential" information and to do otherwise would be prohibited by Federal Acquisition Act.

Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) -- threshold requirement; holding that records submitted by Indian Tribes in course of consultations involving water-management project do not meet threshold requirement; pragmatic "outside consultant" test implicitly accepted when applied to records from a nonagency consultant who "does not represent an interest of its own, or the interest of any other client, when it advises the agency"; threshold requirement not satisfied by "communications to or from an interested party seeking a Government benefit at the expense of other applicants."

Maine v. Dep't of the Interior, 298 F.3d 60 (1^st Cir. 2002) -- attorney-client privilege; ordering disclosure of documents concerning proposal to list certain Atlantic salmon populations as endangered, because agency had not demonstrated that they contain client-communicated confidential facts exchanged between client and attorney; attorney work-product privilege; adopting "the primary factor" test rather than the "because of litigation" standard because the latter, regardless of its soundness in civil discovery, "hinders the openness that Congress envisioned in enacting FOIA"; ordering disclosure because the agency failed to identify the litigation for which each document was prepared.

Judicial Watch, Inc. v. Reno, No. 00-0723 (D.D.C. Mar. 30, 2001) -- deliberative process privilege; protecting communications regarding "continuing and follow-up issues" resulting from decision to repatriate Elian Gonzalez.

Sherman v. Dep't of the Army, 244 F.3d 357 (5^th Cir. 2001) -- protecting Social Security numbers in post-1968 award orders; disclosure of name and Social Security number increases risk of identity theft and other forms of fraud; because large review fees resulting from the redaction of Social Security Numbers, requester improperly attempted to categorize disclosure of all information in awards, rather than of merely Social Security numbers, as promoting the public interest; though Army in past released some Social Security numbers of service members, such disclosures do not waive privacy interests because only individuals can waive their privacy interests.

In Def. of Animals v. HHS, No. 99-3024 (D.D.C. Sept. 28, 2001) -- protecting names of members of research oversight committee of animal research foundation; privacy interest in being free from fear of "threatening mail and threatening phone calls" and picketing of their homes by animal rights activists such as have been experienced by the foundation's president outweighs public interest in providing information that could be used to evaluate "the Committee's compliance with statutorily provided membership criteria."

Horowitz v. Peace Corps, No. 00-0848 (D.D.C. Oct. 12, 2001) -- inexplicably ruling that there is only a "de minimus privacy interest" in the identity of the person who made "allegations concerning plaintiff's sexual conduct" (leading to his resignation as Peace Corps volunteer) and that it is outweighed by "a minimal public interest" in disclosure of the accuser's identity, which court found would permit "investigation of the defendant's treatment of plaintiff."

Jefferson v. Dep't of Justice, 284 F.3d 172 (D.C. Cir. 2002) -- 2-1 decision ruling that the Office of Professional Responsibility was not entitled to use Exemption 7(C) "Glomar" denial in response to request for records concerning a named AUSA where agency had not established that all records "were compiled for law enforcement purposes because some might have been for breaches of internal Department guidelines that may lead to disciplinary proceedings"; dissenting judge would have found that all of OPR's misconduct investigations have been compiled for law enforcement purposes -- whether for "violations of law[,] . . . violations of regulations, [or] standards of conduct."

Maydak v. United States Dep't of Justice, 218 F.3d 760 (D.C. Cir. 2000), reh'g en banc denied, No. 98-5492 (D.C. Cir. Oct. 30, 2000), cert. denied, 533 U.S. 950 (2001) -- refusing to allow agency to rely on exemptions not previously "substantiated" after it withdrew reliance on Exemption 7(A) due to change in underlying circumstances; waiver in litigation; ordering disclosure of grand jury records, attorney work product, and law enforcement records without redaction.

Goodman v. United States Dep't of Labor, No. CV-01-515-ST (D. Or. Dec. 12, 2001) (magistrate's recommendation), adopted (D. Or. Jan. 14, 2002) -- protecting records of special investigation by Mine Safety and Health Administration into alleged violations resulting in on-the-job injury; "[t]he determination as to whether a release of records could reasonably be expected to interfere with enforcement proceedings is to be made as of the time the agency decided to withhold the documents."

City of Chicago v. United States Dep't of Treasury, 287 F.3d 628 (7^th Cir. 2002), amended upon denial of reh'g en banc, 297 F.3d 672 (7^th Cir. 2002), cert. granted, 71 U.S.L.W. 3337 (U.S. Nov. 12, 2002) (No. 02-322) -- finding that agency has submitted only "speculative," not "concrete," examples of how disclosure could interfere with enforcement proceedings in this FOIA case where the 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."

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) -- after in camera inspection, ordering disclosure of several color death-scene photographs of Deputy White House Counsel Vincent Foster where court found them not to be "graphic, explicit, and extremely upsetting" to those persons in the "zone of privacy protection."

Lissner v. United States Customs Serv., 241 F.3d 1220 (9^th Cir. 2001) -- ordering disclosure of details about smuggling of steroids by two local police officers, including reason for agency mitigation of fine and physical characteristics of officers; finding that withheld information is not intimate and that disclosure would not subject officers to "danger, harassment, or embarrassment"; even though no agency misconduct was shown, finding public interest in "determining whether Customs afforded [officers] preferential treatment because of their status as law enforcement officers."

City of Chicago v. United States Dep't of Treasury, 287 F.3d 628 (7^th Cir. 2002), petition for reh'g en banc filed, No. 01-2167 (7^th Cir. June 10, 2002), cert. granted, 71 U.S.L.W. 3337 (U.S. Nov. 12, 2002) (No. 02-322) -- ordering disclosure of names and addresses of purchasers and possessors of firearms; finding that disclosure "does not raise any legitimate privacy concerns because the purchase of a firearm is not a private transaction," noting that "every purchaser of a firearm is on notice that their [sic] name and address must be reported to state and local authorities"; "[i]nherent in the City's request for the records is the public's interest in ATF's performance of its statutory duties of tracking, investigating and prosecuting illegal gun trafficking, as well as determining whether stricter regulation of firearms is necessary."

Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539 (5^th Cir. 2002) -- ordering disclosure of OSHA witness statements; declining to protect information which would "link" witnesses to their statements because witnesses had previously been identified in other litigation and there was no indication that the employer would retaliate in this case; finding that any privacy interests are outweighed by the public interest in disclosure because the statements would give "fresher accounts of the explosion and fire, more specifics on [the witness's] impressions and emotional reactions, and better descriptions of what [they] did to put out the fire" even though the statements do not contradict the content of the public depositions.

Oguaju v. United States, 288 F.3d 448 (D.C. Cir. 2002) -- affirming United States Marshals Service's refusal to confirm or deny whether it maintained records concerning an escapee who had testified at the requester's criminal trial; ruling that requester has not presented "compelling evidence" that the "Department of Justice has mishandled his Brady request, and . . . a bald accusation to that effect does not persuade"; even if the records "would reveal wrongdoing in [this] case, exposing a single garden-variety act of misconduct would not serve the FOIA's purpose of showing 'what the Government is up to.'"

Mays v. DEA, 234 F.3d 1324 (D.C. Cir. 2000) -- implied assurance of confidentiality found for source who provided information concerning requester's drug-trafficking activities; promise of confidentiality inferred because of "violence and risk of retaliation that attend this type of crime"; "an informant is at risk to the extent that the criminal enterprise he exposes is of a type inclined toward violent retaliation."

Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539 (5^th Cir. 2002) -- ordering disclosure of OSHA witness statements; finding no express promises of confidentiality despite declarant's statement that agency manual requires express promises to given, although she did not know that they had in fact been given; implicitly and aberrationally ruling that circumstances giving rise to an implied promise of confidentiality can occur in a criminal investigation only.

Exemption 7(E)

Allnutt v. United States Dep't of Justice, No. Y-98-901, 2000 WL 852455 (D. Md. Oct. 23, 2000), aff'd per curiam sub nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4^th Cir. 2001) -- protecting "computer command codes used to access federal databases to obtain information" in connection with tax-evasion prosecution where "release of such information could reasonably be expected to risk circumvention of the law through access of unauthorized people to the databases."

Shores v. FBI, 185 F. Supp. 2d 77 (D.D.C. 2002) -- protecting "numerical ratings which assessed the effectiveness of investigative techniques in the FBI's investigation of [the requester]," polygraph questions, "equipment[,] and ratings used in connection with a polygraph examination," and telephone "surveillance operations at a prison"; disclosure would "circumvent the effectiveness of law enforcement operations."

Procedural Issues

OSHA DATA/C.I.H., Inc. v. United States Dep't of Labor, 220 F.3d 153 (3d Cir. 2000) -- fees; $1.7 million cost of "presdisclosure notification and evaluation" ruled part of "initial examination," thus properly categorized as "review costs"; agency "acted appropriately in concluding that it had 'reason to believe that disclosure of the information could reasonably be expected to cause competitive harm.'"

Judicial Watch, Inc. v. Rossotti, No. 01-1612, 2002 WL 535803 (D.D.C. Mar. 18, 2002) -- fee category/fee waiver; requester held not to be a representative of the news media, even though it is a self-styled "ethical and legal 'watchdog,'" because it does not "publish or broadcast news to the public itself"; requester has not established its right to a fee waiver merely by asserting that it "uncover[s] information and documents concerning government corruption," by stating that it is an nonprofit entity, and by making "general and formulaic assertions" about the public interest in disclosure of information concerning a conflict-of-interest waiver for the IRS commissioner.

Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452 (D.C. Cir. 2002) -- "substantially prevail"; 2-to-1 decision applying Supreme Court attorney fees decision in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 528 U.S. 598 (2001), to FOIA practice; "in order for plaintiffs in FOIA actions to become eligible for an award of attorney's fee, they must have 'been awarded some relief by [a] court' either in a judgment of the merits or in a court-ordered consent decree."

Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001) -- expedited processing denied because there is no evidence that events connected to the deaths of Princess Diana and Dodi Al-Fayed are matters of "current exigency" to the American public.

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."

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

Hamilton Sec. Group, Inc. v. HUD, 106 F. Supp. 2d 23 (D.D.C. 2000), aff'd, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001) (per curiam) -- holding that requester failed to exhaust its administrative remedies when it filed its administrative appeal one day after the 30-day regulatory time period running from the date of the denial letter.

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), summary affirmance denied, No. 01-5431 (D.C. Cir. Mar. 29, 2002) (per curiam) (appeal pending; oral argument scheduled Feb. 20, 2003) -- ruling that agency's search for deposition transcripts of one expert witness by using "pay records" index was adequate; manual search that would involve 3,000 aviation cases and as many as 37 million pages would be "overly burdensome."

Burns v. United States Dep't of Justice, No. 99-3173 (D.D.C. Feb. 6, 2001) -- not requiring agency to search through reel-to-reel audio tapes containing requested recorded conversations, because "the equipment on which these reels could be played has broken and [has been] replaced with other, incompatible equipment" and the agency is "not required to obtain new equipment to process Plaintiff's FOIA request"; "given . . . the absence of any index," a manual search -- which "would take between 25 and 50 years for one person working full time to listen to all the tapes for the limited period of time sought by Plaintiff" -- would be "unduly burdensome and is not required by the FOIA."

Students Against Genocide v. Dep't of State, 257 F.3d 828 (D.C. Cir. 2001) -- agency not required to produce new photographs at a different resolution in order to mask the capabilities of the reconnaissance systems that produced them.

Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598 (D.C. Cir. 2001) -- no waiver of Exemption 5 protection for attorney work-product documents through disclosure to congressional subcommittee under conditions of confidentiality or by citing or quoting them in a public final report.

Brady-Lunny v. Massey, 185 F. Supp. 2d 928 (C.D. Ill. 2002) -- preemption doctrine; protecting identities of federal inmates being house in county jail; concluding that federal disclosure law preempts state disclosure law.

Go to: Table of Contents // DOJ FOIA Page // Justice Department Home Page