Court opinions issued Sept. 22, 2016

Sept. 22, 2016

Wadelton v. Dep't of State (D.D.C.) -- granting government's renewed motion for summary judgment after concluding that the agency's supplemental searches were adequate and that its withholdings were proper under Exemption 5 (attorney work product and deliberative process privilege). 

The James Madison Proj. v. DOJ (D.D.C.) -- granting summary judgment to government on all but one count concerning requests for records about the book No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden.  Of note, the court held that plaintiff's fax confirmation page was insufficient evidence to counter the U.S Navy's sworn declaration that it had never received plaintiff's request.  

Ford v. DOJ (D.D.C.) -- determining that the FBI and the Executive Office for United States Attorneys conducted reasonable searches for records concerning plaintiff's bank robbery conviction, and that the agencies properly withheld certain information under Exemptions 3, 7(C), 7(D), and 7(E).

Scholl v. Various Agencies of the Fed. Gov't (D.D.C.) -- dismissing suit because plaintiff had waived his right to obtain the requested records as a condition of two plea agreements. 

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 21, 2016

Gabrion v. U.S. Dep't of Justice (S.D. Ind.) -- holding that the Federal Bureau of Prisons properly relied on Exemptions 6, 7(C), 7(E), and 7(F) to withhold certain records concerning plaintiff, a death row inmate who sought records concerning his prison custody. 

Isiwele v. U.S. Dep't of Health & Human Servs. (D.D.C.) -- ruling that: (1) the Centers for Medicare & Medicaid Services conducted an adequate search for records concerning certain Medicare claims and that the agency properly withheld certain records pursuant to Exemption 6 & 7(C); and (2) the Executive Office for United States Attorneys performed a reasonable search for personnel records of certain employees and that the agency properly withheld those records pursuant to Exemption 6.

Lewis v. Dep't of the Army (S.D. Ga.) -- dismissing claim for injunctive relief because plaintiff received all requested documents; dismissing claim for $1 million damages because FOIA does not permit monetary awards; and dismissing request for the appointment of Special Counsel because none of the statutory requirements were met (5 U.S.C. § 552(a)(4)(F)(i)).

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 20, 2016

Sea Shepherd Conservation Soc'y v. IRS (D.D.C.) -- finding that all but one of the agency's searches for records concerning plaintiff was adequate; that the agency's Glomar response concerning whistleblower records was improper because the agency had already acknowledged existence of records; and that the agency properly invoked Exemption 3 (26 U.S.C. § 6103) and Exemption 7(D).

Pike v. DOJ (D.D.C.) -- ruling that the government properly withheld an audio recording of plaintiffs in its entirety under Exemption 7(A), but that waived its right to withhold the portion of the transcript that it had placed into the public domain.

Blank Rome v. Dep't of the Air Force (D.D.C.) -- determining that the Air Force conducted an adequate search for records concerning the termination of a contract and that all but two of its redactions from three disputed documents were proper under Exemption 5.

Johnson v. FBI (E.D. Pa.) -- granting government's motion for reconsideration after determining that FBI's supplemental declarations established the propriety of the agency's withholdings under Exemptions 3, 5, 6, 7(C), 7(D), and 7(E).

Citizens for a Strong New Hampshire v. IRS (D.N.H.) -- denying plaintiff's motion for attorney's fees after concluding that plaintiff's lawsuit was not the proximate cause of agency's release of records and that plaintiff did not substantially prevail by virtue of agency's supplemental search that yield no additional records. 

Summaries of all opinions issued since April 2015 available here.  

Court opinion issued Sept. 16, 2016

Eil v. DEA (D.R.I.) -- ordering the agency to release all the exhibits introduced by the federal government in the criminal trial of Dr. Paul H. Volkman, except for: (1) certain "highly personal" third-party information "of no consequence to the trial or conviction of Dr. Volkman," (2) identifying information of criminal investigators and DEA numbers; and (3) trial exhibit numbers.

Summaries of all opinions issued since April 2015 available here.  

Court opinion issued Sept. 15, 2016

Manna v. U.S. Dep't of Justice (D.D.C.) -- determining that the FBI properly invoked Exemptions 6 and 7(C) to withhold or to refuse to confirm or deny the existence of records about a government informant who was plaintiff's associate in the Genovese Crime Family.   

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 13, 2016

Elec. Privacy Info. Ctr. v. DEA (D.D.C.) -- finding that DEA conducted a reasonable initial search for agency privacy assessments, but that its supplemental effort to locate four missing assessments based on a "clear and certain lead" was insufficient.  

Inclusive Cmtys. Project v. HUD (N.D. Tex.) -- rejecting agency's reliance on Exemption 6 to withhold requested data on House Choice Vouchers.  Although the court accepted HUD's argument that an invasion of privacy may theoretically occur through a chain of events following disclosure ("derivative-use theory"), the court found that the agency failed to demonstrate the likelihood of such harm in this case.  Even if the agency had made the necessary causal connection, however, the court concluded that the public interest in disclosure outweighed the privacy interests at stake.   

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 9, 2016

Am. Farm Bureau Fed'n v. EPA (8th Cir.) -- reversing district court's decision that plaintiffs lacked standing to bring a "reverse" FOIA suit to prevent disclosure of certain information about their concentrated animal feeding operations, and that the information at issue was not exempt from mandatory disclosure under Exemption 6.  In analyzing the applicability of Exemption 6, the Eighth Circuit rejected the EPA's argument that the information's availability through various other public sources diminished the plaintiffs' privacy interests. 

Although a requester might be able to find the information he seeks on a website or in a State's publicly available files, the agency's comprehensive listing . . . substantially increases the public visibility and accessibility of that information. The agency's release of the complete set of data on a silver platter, so to speak, eliminates the need for requesters and others to scour different websites and to pursue public records requests to create a comprehensive database of their own.  If the information were so easily accessible, then it is passing strange that the parties would engage in protracted and expensive litigation to secure it through the Freedom of Information Act.  See Reporters Comm., 489 U.S. at 764.

The Eighth Circuit remanded the case for the district court to determine whether EPA is prohibited by any independent source of authority from making a discretionary release of the information at issue.

Brozzo v. U.S. Dep't of Educ. (N.D.N.Y.) -- ruling that the agency did not show that student loan records possessed by another entity were not "agency records" in light of agency regulation that authorized agency to copy and inspect them. 

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 6, 2016

Hiken v. Dep't of Def. (9th Cir.) -- vacating the district court's fee award after finding that the court failed to consider plaintiff's submission of evidence concerning the prevailing hourly attorney's rates from 2006 to 2008.  A dissenting panelist opined that the plaintiff's notice of appeal failed to actually dispute the fee award and that the district court acted within its discretion in calculating the amount.  

Marino v. Dep't of Justice (D.D.C.) -- determining that multiple DOJ components conducted adequate searches in response to pro se prisoner's requests and that the government properly withheld certain records pursuant to Exemption 5, 6, 7(C), 7(D), and 7(F). 

Nat'l Sec. Counselors v. Cent. Intelligence Agency (D.D.C.) -- granting summary judgment to six intelligence agencies   on three claims that remained from dozens of claims brought by plaintiff in connection with its numerous FOIA requests.

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 2, 2016

Fund v. U.S. Food & Drug Admin. (9th Cir.) (en banc) -- adopting a de novo standard of review for summary judgment decisions in FOIA cases and remanding the case for resolution of merits.  

• See related article from Courthouse News Service.   

Davidson v. U.S. Dep't of State (D.D.C.) -- determining that (1) agency failed to demonstrate the adequacy of its search for documents; (2) agency's Vaughn Index failed to account for all withholdings; and (3) agency properly withheld records pursuant to Exemptions 5 and 6. 

Summaries of all opinions issued since April 2015 available here.  

Court opinion issued Sept. 1, 2016

McClanahan v. U.S. Dep't of Justice (D.D.C.) -- determining that: (1) the FBI performed an adequate search in response to plaintiffs' requests for records concerning themselves, and  (2) the agency properly withheld records pursuant to Exemption 1, Exemption 3 (in conjunction with the National Security Act of 1947), Exemption 5 (attorney work product privilege), and Exemption 7(E).  

Lorber v. U.S. Dep't of the Treasury (E.D.N.Y.) -- adopting in full the Magistrate's recommendation to grant agency's summary judgment motion after finding that: (1) Treasury did not waive its right to collect applicable fees in light of "unusual" and "exceptional" circumstances; (2) Plaintiff's requests for third-party emails fell outside of the Privacy Act; (3) Plaintiff, a pro se litigant, was not entitled to attorney's fees; and (4) Treasury did not acted arbitrarily or capriciously in withholding records.     

Summaries of all opinions issued since April 2015 available here.