Summaries of New Decisions -- December 2010

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of December 2010.


Courts of Appeal

1. Ctr. for Biological Diversity v. USDA, No. 09-17233, 626 F.3d 1113 (9th Cir. Dec. 2, 2010) (Rymer, J.)

Re: Request for specific GPS coordinates collected by the Wildlife Services (WS) staff indicating where wolf depredations occurred

• Exemption 3: The Ninth Circuit reverses the district court ruling and finds that Section 8791 of the Food, Conservation, and Energy Act of 2008 (FCEA), which was enacted by Congress after the USDA withheld the records at issue in this case, can be applied retroactively as an Exemption 3 statute. As an initial matter, the Ninth Circuit notes that it "assume[s] without deciding" that "Section 8791 meets the requirements of Exemption 3" since the parties are not in dispute on this point. Second, the Ninth Circuit finds that the GPS coordinates requested by plaintiff "fall within the scope of Section 8791's prohibition on disclosure." Specifically, "Section 8791(b)(2) prohibits disclosure of 'geospatial information' maintained by the USDA about 'agricultural . . . operations' for which 'information [is] provided by an agricultural producer' to the USDA 'concerning the agricultural operation' 'in order to participate in programs of the Department.'" The Ninth Circuit finds that the elements of the statute "are satisfied here" because the GPS coordinates constitute "'geospatial information,'" "the data concerns 'agricultural operations' . . . [about] depredations that limit the ranchers' livestock production," "the 'agricultural producer,' the rancher, provides information to the USDA 'concerning the agricultural operation' when he reports his loss of livestock," and "the rancher reports this information 'in order to participate in programs of the Department,' namely the WS program that captures or removes the wolves."

The Ninth Circuit then applies the two-step analysis set forth by the Supreme Court in Landgraf to "determin[e] the applicability of legislation enacted after the acts that gave rise to the suit." With respect to the first prong which requires courts to "'determine whether Congress has expressly prescribed the statute's proper reach,'" the Ninth Circuit concludes that the text of the "FCEA does not expressly resolve whether or not Section 8791 applies to pending cases." Second, the Ninth Circuit examines the retroactive effect of the statute and determines that "there is no impermissible retroactive effect under Landgraf in applying a new statute to a pending FOIA case through Exemption 3." The Ninth Circuit further notes that, in a separate case, it "already explicitly rejected the theory that there is [such] an impermissible retroactive effect just because '[a FOIA plaintiff] had a right to the information when it filed its suit . . . and it loses that right by application of the new exemption.'" Accordingly, the Ninth Circuit holds that USDA properly withheld the requested GPS coordinates pursuant to Exemption 3 in connection with the FCEA, 7 U.S.C. § 8791.

District Courts

1. Perkins v. VA, No. 10-0840, 2010 WL 4852281 (D.D.C. Nov. 30, 2010) (Huvelle, J.)

Re: Fee waiver in connection with request pertaining to employee training at the VA's Information Technology Center (ITC)

• Fee waiver: The court holds that plaintiff failed to qualify for a waiver of fees in connection with his FOIA request. First, the court concludes that since "[d]efendant does not address whether plaintiff is a commercial requestor, . . . [it] will assume plaintiff is a noncommercial requester, thereby requiring liberal construction of the fee waiver standard and satisfying [the] second prong" of the FOIA's fee waiver provision. With respect to the first prong of the fee waiver provision, i.e., "whether disclosure of information is in the public interest," the court evaluates plaintiff's eligibility in light of the four factors set forth in the VA's FOIA regulations. The court notes that "[d]efendant concedes that plaintiff has satisfied the first factor" – "[w]hether the subject of the requested records concerns the operations and activities of the government." However, the court finds that plaintiff fails to meet the remaining fee waiver factors.

With respect to the second factor which concerns the "informative value of the information to be disclosed," the court concludes that plaintiff has not demonstrated how his request will allow him to fulfill his stated purpose of "evaluating whether there are any 'significant racial training and travel disparities' within the ITC" when "it undisputed that the records that plaintiff requested do not reveal the racial makeup of the ITC's employees." The court finds that "plaintiff's assertion that he can determine the racial composition of the ITC's employees is a statement unsupported by the facts, which is 'insufficient to meet the burden placed on fee-waiver requesters.'" Moreover, the court finds that the "'intrinsic informational content'" of the records at issue "do not, 'in any readily apparent way,' contribute to an understanding of government operations or activities."

Plaintiff also fails to satisfy the third factor which concerns his ability to disseminate the requested information. Despite plaintiff's assertion that "his background as an IT specialist and prior experience analyzing racial data . . . demonstrate his ability to understand and process technical and voluminous data," the court finds that he "does not explain how his background in information technology requires him to perform statistical analysis, which is an entirely different subject matter." Additionally, plaintiff offers no evidence to support his claim that "he has experience analyzing racial data." More importantly, the court finds that plaintiff "has not described in reasonably specific and non-conclusory terms his ability to disseminate the requested information." The court comments that "[m]erely stating one's intention to disseminate information[, as the plaintiff does here,] does not satisfy this factor; instead, there must be some showing of one's ability to actually disseminate information." The court finds that, despite plaintiff's assertions to the contrary, he has not demonstrated that he has the ability to disseminate the information to the media, labor and civil rights organizations, or congressional committees, and further notes that "this is not a case where plaintiff operates his own means of information dissemination such as a newsletter or a website." Lastly, because plaintiff is unable to show that disclosure would increase public understanding under the second and third factors enumerated in the VA's regulations, the court concludes that he is likewise unable to satisfy the fourth factor, i.e., "to establish that disclosure will significantly increase such understanding."

2. Treece v. United States, No. 10-380, 2010 WL 4780807 (Fed. Cl. Nov. 23, 2010) (Hewitt, J.)

• Jurisdiction: The court dismisses plaintiff's FOIA claims "because the federal district courts have exclusive jurisdiction over such matters."

3. Burgess v. FBI, No. 10-628, 2010 WL 4818391 (D. Nev. Nov. 16, 2010) (McKibben, J.)
• Litigation considerations: The court dismisses plaintiff's "'motion to disclose F.O.I.A.'" with prejudice as frivolous on the grounds that plaintiff failed to reasonably describe the records requested, his "allegations are fantastic, delusional and irrational," and he "has not demonstrated that he exhausted his administrative remedies for a FOIA request prior to seeking judicial review."

4. K-Mar Indus., Inc. v. DOD, No. 10-984, 2010 WL 4829965 (W.D. Okla. Nov. 4, 2010) (Friot, J.)

• Exhaustion of administrative remedies: The court denies defendants' motion to dismiss plaintiff's FOIA claim for failure to exhaust administrative remedies where "many of defendants' arguments concern the merits of their contention that delays [in processing the FOIA request] have been justified rather than the propriety of dismissal for failure to exhaust remedies." The court finds that "[i]n contrast to the cases cited by the defendants, here there are no issues regarding lack of notice to the government of plaintiff's FOIA request, or the sufficiency of plaintiff's FOIA request." Additionally, "[p]laintiff has not taken a scattershot approach to its request and has not failed to appeal a denial despite notification of appeal rights."


Courts of Appeal

1. Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition)

Re: Requests for records pertaining to the IRS's examination of a 2003 estate tax return

• Adequacy of declarant: The Second Circuit rejects plaintiffs' claims that the IRS's "declaration was based on hearsay because [the declarant] did not actually supervise the search." The Second Circuit finds that "[t]his claim is belied by the declaration, which states that [the declarant] maintained supervisory responsibility over the first FOIA request and worked directly with IRS attorneys . . . -- the two individuals identified as potentially having relevant records – to compile and review responsive documents.”

• Adequacy of search: The Second Circuit dismisses plaintiffs' arguments regarding the existence of other responsive records as "speculative" and finds that the allegations "are insufficient to overcome the presumption of good faith accorded the IRS's declarations." The IRS's failure to locate certain records "does not undercut the adequacy of [its] search" because "an agency need not show that its search uncovered every extant responsive document, but only that it 'was reasonably calculated to discover the requested documents.'" Additionally, despite plaintiffs' assertions that other IRS employees may maintain responsive records, the Second Circuit finds that the IRS's search of records in the possession of one of its declarants, who stated that she was the "'sole employee'" with access to the requested documents, "was 'reasonably calculated to discover the requested documents.'"

• Exemption 3: The Second Circuit concludes that the IRS's withholding of third party tax return information pursuant to Exemption 3 in conjunction with 26 U.S.C. § 6103 was proper. The Circuit notes that "the Estate is not entitled to receive the return information of any third-party without appropriate authorization, which was lacking here." Moreover, "[w]hile § 6103 permits plaintiffs to receive return information concerning entities in which the estate possesses a material interest, plaintiffs failed to identify such entities, much less establish the estate's material interest therein."

• Exemption 5 (attorney client and deliberative process privileges): The Second Circuit concludes that the district court properly determined that "documents containing (1) privileged legal communications between [a particular IRS attorney] and attorneys within the IRS and the U.S. Department of Justice, (2) communications among those attorneys, and (3) [an IRS attorney's] memorialization of such privileged communications" were protected by the attorney client privilege. The Second Circuit also rejects plaintiffs' challenge to the IRS's assertion of the deliberative process privilege, finding that "[t]he documents at issue reflect the consultative process underlying IRS decisions concerning the [IRS's examination of the estate's tax return], the FOIA requests, and related litigation, and are therefore entitled to the same protection as other important agency decisions." Additionally, "[t]he fact that the deliberative materials were generated by a low-level official . . . and not circulated or condidered by a final decisionmaker does not alter this conclusion."

• Segregability: The Second Circuit finds that "[p]laintiffs' argument that the IRS failed to release all segregable material [with respect to documents for which the deliberative process was asserted] was not raised below, and is therefore waived." However, the Circuit also notes that the IRS's declaration "shows that to the extent that any purely factual material was withheld under this privilege, it was not segregable from deliberative portions and, further, that the IRS released any deliberative material pertaining to peripheral matters" and that plaintiffs did not assert any evidence of bad faith on the part of the agency.

• Waiver of exemption/Exemption 7(D): The Second Circuit dismisses plaintiffs' claim that the IRS waived its ability to assert "Exemption 7(D) by revealing the confidential source's identity through inconsistent redactions." Rather, the Circuit finds that "[e]ven if the IRS made such inadvertent disclosures, the promised confidentiality could only be waived by the source" and, here, "[p]laintiffs allege no such waiver."

2. Kaminsky v. NASA, No. 10-1016, 2010 WL 4923910 (2d Cir. Dec. 6, 2010) (unpublished disposition)

Re: Documents pertaining to reentry of the International Space Station's Early Ammonia Servicer (EAS) into the Earth's atmosphere

• Litigation considerations: The Second Circuit affirms the district court's holding that NASA conducted an adequate and good faith search for records responsive to plaintiff's request.

District Courts

1. Bory v. U.S. R.R. Ret. Bd., No. 09-1149, 2010 U.S. Dist. LEXIS 130545 (M.D. Fla. Dec. 9, 2010) (Melton, J.)

Re: Requests for records regarding calculations made concerning plaintiffs' pension benefits and regulations relating thereto

• Exhaustion of administrative remedies: The court denies the agency's motion for summary judgment because "a question of fact exists on the record" as to "whether Defendant thoroughly searched its records and fully responded to Plaintiffs' requests" and "whether Plaintiffs should have been notified of their right to appeal Defendant's responses." The court finds that "[t]o support Defendant's position that it need not notify FOIA requesters of their right to appeal whenever it claims to have provided all information and also then to require all requesters to administratively exhaust agency remedies before seeking relief in federal court when they dispute that all information was provided, simply would not be fair, and is not required to fulfill the purposes of the exhaustion requirement, which include giving Defendant an opportunity to correct its mistake or omission."

2. Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401 (D. Colo. Dec. 7, 2010) (Arguello, J.)

Re: Request for documents related to misconduct by SEC employees and contractors who accessed or attempted to access sexually explicit websites using SEC computers

• Declarations: The court denies plaintiff's motion to strike portions of a declaration of a third party intervenor, who moved to intervene against the disclosure of his identity. The court finds that John Doe's "statements are supported either with personal knowledge or specific factual detail provided with his declaration and, thus, are not conclusory as Plaintiff alleges." The court notes that it "will only consider the supporting facts and documents, not his characterizations of or conclusions surrounding them" as well as "Doe's estimation of harm that may result from a disclosure of his identity, though this information is not essential to the Court's holding."

• Exhaustion of administrative remedies: As an initial issue, the court notes that the "view of the Tenth Circuit appears to be that exhaustion is a jurisdictional prerequisite," rather than a prudential consideration, but comments that "[t]his distinction is of little moment in the instant case as the Court finds the failure of Plaintiff to exhaust its remedies bars judicial review under either view." Here, the court determines that plaintiff failed to exhaust its remedies with respect to three categories of information that it did not identify in its initial request and, accordingly, concludes that plaintiff did not provide the SEC with "'an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'"

• Exemption 6: The court finds that the SEC properly withheld pursuant to Exemption 6 the "names of all employees having grade SK-15 or higher who were involved in the misconduct." The court rejects plaintiff's argument that "these employees 'ha[ve] no attendant claim to privacy with respect to [their] conduct' because they knew their conduct was wrong at the time." Citing the Supreme Court's decision in U.S. Department of Air Force v. Rose, the court observes that "individuals involved in disciplinary matters possess a privacy interest in controlling the dissemination of their disciplinary records and identifying information." Further, the court finds that "disclosure in this case is not limited to the reputational embarrassment of having misused government property on official time but rather extends to the embarrassment resulting from public knowledge that the conduct was of a sexual nature." The court recognizes that the privacy interests involved "might weigh less" if the "public disclosure had been a relatively innocuous report that SEC employees had been found spending hours searching the Internet." However, given that the "public was informed that employees were found to have spent hours at work viewing sexually explicit sites" disclosure would "reflect[] on the employee's sexual needs and/or desires" and, as one employee testified, could be the source of "'severe personal and professional harm including embarrassment and disgrace.'" Accordingly, the court concludes that the privacy interests implicated are "overwhelming."

On the other hand, the court characterizes the public interests involved in releasing the employees' identities as "negligible, at best." As a general matter, the court notes that "[t]he SEC has already disclosed information sufficient to inform the public about the SEC's operations and activities related to the misconduct." In assessing the "weight accorded to the public interest in knowing the identity of individual federal employees," the court considers two factors: "(1) the activity for which the employee has been censured, and (2) the level of responsibility held by the employee." The court concludes that the first "factor weighs in favor of withholding the employees' names" because "the misconduct was not directly related to how the employees performed their official responsibilities, but rather, whether and when they performed them." Likewise, the court finds that the second factor weighs against disclosure since the supervisors at issue did not have "significant policy-making authority," supervised relatively few employees, and their conduct did not reflect on the "'attitude' of the SEC toward fulfillment of its duties and responsibilities."

The court also holds that Exemption 6 was properly asserted to withhold employees' job descriptions. Based on the SEC's and the intervenor's declarations, the court determines that "the risk of employees being identified by their job descriptions is not a mere possibility but is a palpable and substantial threat that may be accomplished with a simple Internet search" and, moreover, that "[t]his risk is present upon disclosure of the job description alone." Conversely, given that the "employees had little to no supervisory responsibilities or significant policy-making functions" and that "some of the information about their responsibilities has already been disclosed, the Court finds that the public interest in disclosure of the at-issue job descriptions is outweighed by the privacy interests of the employees." The court notes that "[t]he redacted reports and other information that the SEC has disclosed to date are sufficient to inform the public about the extent and the nature of the employees' misconduct as well as the SEC's response to the same."

3. Williams v. Comm'r of IRS, No. 08-522, 2010 U.S. Dist. LEXIS 128385 (M.D. La. Dec. 3, 2010) (Brady, J.)

Re: Request for certain tax records and plaintiff's complaint regarding misconduct of an IRS employee

• Adequacy of search: The court finds that Office of the Treasury Inspector General for Tax Administration's (TIGTA's) search was adequate where it "identified, compiled and disclosed to Plaintiff – despite being given an incorrect case number by Plaintiff – all of the documents that were responsive to his request, except those subject to exemption."

• Exemption 7(C): The court concludes that TIGTA properly asserted Exemption 7(C) to protect personally identifying information related to an IRS agent and third parties who investigated plaintiff's prior complaint about an IRS employee's misconduct. As a preliminary matter, the court finds that the records were "'compiled for law enforcement purposes'" since TIGTA "oversees the IRS's administration of tax law, including investigating allegations of misconduct by IRS employees, which is 'part and parcel of [its] law enforcement duties.'" The court then finds that the privacy interests of the individuals mentioned in the records outweighs the minimal public interest in disclosure, "as [the requested information] does not pertain only to the workings of the TIGTA."


Courts of Appeal

1. Heide v. LaHood, No. 10-2506, 2010 WL 5122385 (8th Cir. Dec. 16, 2010) (unpublished disposition)

• Litigation considerations: The Eighth Circuit affirms the district court's decision dismissing plaintiff's complaint as moot where the Department of Transportation responded to his FOIA requests "notwithstanding his claim seeking a written finding under 5 U.S.C. § 552(a)(4)(F), and his request for costs." Additionally, the Eighth Circuit finds that "the district court did not abuse its discretion in denying [plaintiff] costs."

2. Hidalgo v. FBI, No. 10-5219, 2010 WL 5110399 (D.C. Cir. Dec. 15, 2010) (per curiam)

• Adequacy of search: The D.C. Circuit grants the FBI's motion for summary affirmance where the "four declarations submitted to the district court by the appellee 'show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents' under the [FOIA]." The D.C. Circuit concludes that "[a]ppellant has failed to submit 'countervailing evidence' to raise a 'substantial doubt' as to the adequacy of the agency's search" or to "rebut[] the presumption of good faith accorded the agency's declarations." Additionally, the D.C. Circuit notes that "[a] reasonably calculated search does not require an agency to search every file where a document could possibly exist, but rather requires that the search be reasonable in light of the totality of the circumstances."

District Courts

1. Creed v. NTSB, No. 10-01630, 2010 WL 5174359 (D.D.C. Dec. 18, 2010) (Kennedy, J.)

Re: "Reverse FOIA" claim brought under the Administrative Procedure Act (APA) alleging that NTSB's decision to publicly post summaries of plaintiff's medical records in connection with its investigation of a multi-vehicle highway collision was an arbitrary and capricious exercise of agency authority and not in accordance with, inter alia, Exemption 6 of the FOIA or the agency's regulations

• Jurisdiction: The district court concludes that it lacks jurisdiction to entertain plaintiff's claims because Section 1153(a) of the Independent Safety Board Act ("chapter 11") vests exclusive jurisdiction over final orders of the NTSB with the D.C. Circuit. The court finds that "despite [plaintiff's] assertions to the contrary, [his] claims challenging the NTSB decisions to disclose his information are direct challenges to the manner in which the NTSB discharges its statutory duties under [chapter 11]" and "[t]he fact that [his] complaint presents causes of action based on the APA and the Privacy Act rather than chapter 11 itself does not alter this conclusion." Accordingly, the court transfers the case to the D.C. Circuit.

2. Davis v. City of Dearborn, No. 09-14892, 2010 WL 5282015 (E.D. Mich. Dec. 17, 2010) (Battani, J.)

Re: Request for records maintained by the City of Dearborn

• Jurisdiction: The court finds that plaintiff's federal FOIA claim "fails as a matter of law" "[b]ecause the federal Freedom of Information Act . . . applies only to federal agencies."

3. Anstine v. United States, No. 10-138C, 2010 WL 5256459 (Fed. Cl. Dec. 16, 2010) (Firestone, J.)

• Jurisdiction: The court dismisses plaintiff's FOIA claims, concluding that "[b]ecause FOIA does not mandate money damages, FOIA claims are not within the subject matter jurisdiction of this court."

4. Guerra v. United States, No. 09-1027, 2010 WL 5211613 (W.D. Wash. Dec. 15, 2010) (Martinez, J.)

• Exemption 3: The court denies defendant's motion for reconsideration with respect to its previous holding that Exemption 3 did not bar disclosure of plaintiff's "J-1 hardship waiver application." Rather, the court finds that the language of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), "specifically includes only [Department of State] records pertaining to the issuance or refusal of visas or permits to enter the United States; it is silent as to requests for hardship waivers."

5. Allen v. U.S. Dep't of Educ., No. 10-1101, 2010 WL 5080019 (D.D.C. Dec. 14, 2010) (Collyer, J.)

Re: Request for records pertaining to plaintiff's student loans

• Mootness: The court dismisses plaintiff's FOIA claim as moot where she "has not alleged that she made a formal FOIA request" and the Department of Education has no record of receiving such a request. Moreover, the court comments that "[e]ven if [plaintiff] had made the necessary FOIA request, any FOIA claim related to the request for documents would have to be dismissed as moot, because the Government provided all relevant documents to [her]."


District Courts

1. McKinley v. FDIC, No. 10-420, 2010 WL 5209337 (D.D.C. Dec. 23, 2010) (Sullivan, J.)

Re: Requests for records regarding FDIC's response to the global financial crisis of 2008

• Mootness: The court finds that plaintiff's claims are not moot where the FDIC responded to his requests but issues regarding the adequacy of the agency's search for responsive documents and the validity of its claims of exemption remained.

• Adequacy of search: The court finds that the FDIC "has not provided a sufficient declaration from which the Court can conclude it conducted an adequate search for all records within its possession and control" because the agency declarant "does not explain the search methods employed by the FDIC to respond to plaintiff's requests, who conducted the searches, whether he is personally aware of the search procedures used, or if such procedures were followed by [a particular office]." The court orders the FDIC to conduct a new search or to provide more detailed declarations.

• Exemption 4: The court determines that the FDIC did not adequately justify its assertion of Exemption 4 to protect "'confidential commercial and financial information obtained from banks'" where the declaration fails to "explain whether the withheld information was voluntarily or involuntarily provided" and contains "vague statements" and "conclusory assertions."

• Exemption 5 (deliberative process privilege): The FDIC failed to demonstrate that certain "memoranda from agency staff to the Board of Directors" qualified for protection under the deliberative process privilege. The court finds that although the fact the memoranda were "dated the same day as the board meetings at which the final decisions were made" does not preclude them from being "predecisional," "'the agency must 'illustrate a chronology' in some way in order to justify predecisional withholding.'"

• Exemption 8: The court finds that the FDIC has not demonstrated that "board meeting minutes and the memoranda from agency staff to the Board" were properly withheld pursuant to Exemption 8 where it failed to explain "whether the material withheld contains or is derived from any part of an examination, operating report or condition report," or to address "what specific information about the financial institutions is contained in these memoranda that would justify its withholding based on Exemption 8."

• Segregability: The court concludes that the FDIC "has not met its burden to show that it has disclosed all reasonably segregable information" because it "provided no explanation as to how it met the segregability requirement."

2. Banks v. DOJ, No. 06-1950, 2010 WL 5313292 (D.D.C. Dec. 23, 2010) (Sullivan, J.)

Re: Requests for records pertaining to plaintiff, third parties and corporate entities; at issue is a report from BOP's Victim Notification System and a letter concerning victim-witness procedures

• Exemption 7(threshold): The court determines that BOP has adequately demonstrated that the three pages that remain at issue qualify as records compiled for a law enforcement purpose under Exemption 7. The court finds that "[a]mong the BOP's duties is to 'provide notice of release of prisoners,' . . . and focusing on the circumstances under which the records were compiled, it is apparent that records compiled in order to effect notice to crime victims of significant events during plaintiff's incarceration were compiled for law enforcement purposes."

• Exemption 7(C): BOP properly asserted Exemption 7(C) to withhold "'personal information relating to the victims' of plaintiff's criminal activities." The court finds that the withheld information is "'categorically exempt' from disclosure under Exemption 7(C) in the absence of an overriding public interest in its disclosure." The court then concludes that BOP's withholdings were appropriate given that "'[t]he D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interest of all persons mentioned in law enforcement records, including investigators, suspects, witnesses and informants,'" and that "[s]uch protection extends to crime victims whose names appear in law enforcement records."

3. Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 5421928 (S.D.N.Y. Dec. 21, 2010) (Preiska, J.)

• Exemptions 1 & 3 (Glomar): The court finds that the CIA properly used Glomar responses to neither confirm nor deny the existence of records pertaining to the agency's approval and use of the "attention grasp" technique in connection with two detainees. The court finds that the CIA’s Glomar responses "are appropriate under exemption 3 'because it would reveal intelligence sources and methods protected by the [National Security Act]'" and notes that responding to the request "'would reveal details regarding the CIA's detention and interrogation program and whether or not the CIA used certain specified methods to interrogate certain individuals.'" The court rejects plaintiff's argument that official disclosures by the CIA regarding the use of enhanced interrogation techniques (EITs) "vitiate" its Glomar responses. Instead, the court determines that the CIA never confirmed the use of specific interrogation techniques in connection with certain individuals and that general official disclosures regarding EITs are not sufficient to show that the "'specific information sought'" is already in the public domain.

Additionally, the court concludes that the CIA properly asserted Glomar in connection with Exemption 1, because "[t]he revelation of these records' existence or non-existence 'could reasonably be expected to cause at least serious damage to the national security'" and that the "information sought . . . is specifically authorized to be kept secret under criteria established by Executive Order No. 12,958 . . . [and] properly classified thereunder." Again, the court rejects plaintiff's contention that the "official disclosures amounts to a waiver of a Glomar response tied to FOIA exemption 1."

• Exemption 5 (attorney work-product privilege): With respect to an email written by an employee of the CIA's Office of Inspector General to another OIG employee summarizing a conversation between the writer and a federal prosecutor about which witnesses to call before a grand jury, the court notes that the parties are in agreement that the document is covered by the attorney work-product privilege because the "[i]t contains the mental impressions of a federal prosecutor about anticipated or ongoing litigation." The court finds that, to the extent that a second email contains identifying information of potential grand jury witnesses, it is also covered by the privilege.

• Segregability: The court concludes that the CIA is not required to segregate any remaining nonexempt information from an email containing attorney work-product, where "'only a few meaningless words or phrases would remain.'" (posted 01/20/2011)



Last Updated: Thursday, January 20, 2011

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