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Judicial Watch, Inv. v. DOJ, No. 12-01350, 2014 WL 794220 (D.D.C. Feb. 28, 2014) (Howell, J.)
February 28, 2014 Posted by

Re: Request for records concerning the Deferred Action for Childhood Arrivals (DACA) program

Disposition: Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court finds that defendant “has sufficiently demonstrated that the two challenged documents were predecisional and part of the deliberative process, and therefore properly withheld from disclosure under Exemption 5.”  The court first holds that defendant “adequately shows that the records were predecisional and ‘part of a clear ‘process’ leading to a final decision on the issue.’”  The court finds that “[t]he fact that the challenged documents were dated a day before the DHS Secretary publicly announced the DACA program . . . does not automatically render them post-decisional” and, moreover, a review of some of defendant’s internal e-mails indicates that “DACA policy was evolving up until the very date of the announcement.”  Second, the court finds that the “‘flow of the documents [ ] from subordinate to superior,’ is strong evidence that these documents were part of a deliberative process and were considered by those who had the authority to make a final decision.”  Third, the court finds that “the challenged documents contain legal advice, which is typically considered part of a deliberative process.”  Finally, the court finds that “defendants have shown that the challenged documents were created in response to the Secretary’s request for legal advice regarding her DACA decision.”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  The court “finds that DHS has satisfied its burden” regarding its segregability requirement.  The court relates that “defendants have shown that they ‘conducted a document-by-document review, inspecting each document for any non-exempt ‘reasonably segregable’ information’ and that DHS ‘released any such reasonabl[y] segregable information’ and withheld certain documents entirely if ‘DHS determined that any factual information contained in those records was not reasonably segregable because the selection of the facts was an integral part of the legal advice and analysis.’”  Additionally, the court notes that “plaintiff does not address segregability in its briefs and, thus, fails to present ‘some ‘quantum of evidence” to suggest that the defendants did not comply with their obligation.”
Judicial Watch, Inc. v. HUD, No. 12-1785, 2014 WL 788353 (D.D.C. Feb. 28, 2014) (Huvelle, J.)
February 28, 2014 Posted by

Re: Request for records concerning communications with city about its petition for certiorari

Disposition: Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court “concludes that defendant’s search for responsive documents was adequate.”  The court explains that “the government is afforded a presumption of good faith when it provides a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.’”  The court concludes that defendant has done so here and that “plaintiff has failed to present sufficient evidence to overcome this presumption.”
  • Litigation Considerations, Vaughn Index:  The court is “satisfied that the narrative justifications in the Vaughn index are sufficient to justify redacting and withholding documents under FOIA Exemption 5.”  The court finds that “plaintiff fails to direct this Court to any legal authority that defendant is required to identify the relevant privilege, by name, in order to withhold or redact a document pursuant to Exemption 5.”  The court also finds that “[a] defendant is not required, as plaintiff argues, to identify a specific case to which a document relates in order to invoke the work product privilege.”  The court additionally finds that defendant “provides a sufficient basis for plaintiff and the Court to assess whether an attorney-client relationship existed and whether the content of the communications was confidential” by “specifically identify[ing] the author and recipient(s) of each communication,” specifically identifying “the contents of the document,” and “explicitly identify[ing] which communications were specifically ‘among attorneys’ and which were not.”  Finally, the court finds that, when invoking the deliberative process privilege, “‘[t]he agency need not identify a specific final agency decision.’”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  The court rejects plaintiff’s argument that defendant’s statement concerning segregability is “insufficient because ‘it does not indicate which records were subject to such analysis’” and finds that defendant’s statement “clearly refers to ‘all reasonably segregable‘ material and absent evidence to the contrary, the Court must accept this government representative at her word.”
Espinoza v. DOJ, No. 12-1950, 2014 WL 772656 (D.D.C. Feb. 27, 2014) (Kollar-Kotelly, J.)
February 27, 2014 Posted by

Re: Request for records concerning evidence withheld from requester during requester’s trial

Disposition: Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

  • Fees and Fee Waivers, Fee Waivers:  The court “finds that plaintiff has not shown that he is entitled to a fee waiver.”  The court first notes that “[i]t is reasonably safe to conclude that plaintiff has not requested the records for a commercial interest” and, therefore, “the only question is whether he has demonstrated the requisite public interest in disclosing the requested information.”  The court then rejects plaintiff’s contention that “‘a fee waiver is warranted[ ] because the production of the requested information could serve the substantial public interest in setting free an innocent man.’”  Moreover, the court finds that “plaintiff does not state his ‘ability and intention’ to disseminate the requested information to the public, which ‘alone [provides] a sufficient basis for denying the fee waiver request.’”
  • Fees and Fee Waivers, Fees:  The court finds that the unusual or exceptional circumstances referred to in 5 U.S.C. § 552(a)(4)(A)(viii) exist and, therefore, that there is “no hindrance to EOUSA’s ability to assess search fees.”
  • Procedural Requirements, Proper FOIA Requests:  The court finds that “[t]he FOIA places no obligation on an agency ‘to answer questions disguised as a FOIA request … or to create documents or opinions in response to an individual’s request for information.’”  Therefore, the court holds that “to the extent that plaintiff faults EOUSA for failing to address ‘whether the government had memorialized [third-party's] drug usage in her [pre-sentence report] when Plaintiff’s trial attorney sought its disclosure,’ . . . this question is wholly irrelevant to the FOIA analysis.”
  • Exemption 6:  The court “finds that defendants properly invoked exemption 6 to withhold [a third-party's] [pre-sentence report] since it is a document that is retrievable by her name.”
  • Exemption 7(C):  The court finds that “[p]laintiff’s conclusory allegations surrounding his prosecution, ‘has not come close to meeting the demanding Favish standard for challenging [EOUSA's] invocation of FOIA Exemption 7(C).’”  The court notes that “the identification of an individual ‘in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.’”  The court then explains that “plaintiff’s personal stake in obtaining documents in order to attack his conviction simply ‘does not count in the calculation of the public interest.’”
  • Expedited Processing:  The court finds plaintiff’s request for expedited processing moot because “EOUSA rendered a final decision on plaintiff’s request for [the third-party's] records before plaintiff had even requested expedited processing, and ‘[a] district court … shall not have jurisdiction to review an agency denial of expedited processing … after the agency has provided a complete response to the request.’”
Hertz Schram PC v. FBI, No. 12-14234, 2014 WL 764682 (E.D. Mich. Feb. 25, 2014) (Goldsmith, J.)
February 25, 2014 Posted by

Re: Request for certain records contained in National Gang Intelligence Center’s “2011 National Gang Threat Assessment Emerging Trends” report

Disposition: Granting in part and denying in part defendant’s motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court first “concludes that Plaintiff’s argument that the discrepancy between the documents released in response to [a third-party] request and the documents released in response to Plaintiff’s request creates a genuine issue of material fact lacks merit.”  The court explains that “‘[t]he factual question is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.’”  The court next “concludes that although [defendant's] declaration adequately describes the FBI’s search of the [Central Record System], the declaration does not describe the [National Gang Intelligence Center's (NGIC)] search for records in sufficient detail.”  The court explains that defendant’s “declaration [] states that ‘NGIC reviewed its files and located the material it relied upon in preparing the [2011 report][,]‘” but “[t]he declaration does not describe how the NGIC organized or searched its files, nor does the declaration provide information regarding ‘the procedures [the NGIC] used to process [the] request and to ensure that it appropriately responded to the request.’”  The declaration also “does not ‘explain in reasonable detail the scope and method of [the NGIC's] search,’ . . . nor does it ‘identify[ ] the terms searched or explain[ ] how the search was conducted’ by the NCIG.”  The court also “concludes that the FBI misinterpreted Plaintiff’s FOIA request and, therefore, conducted a search that was not responsive to Plaintiff’s request.”  The court explains that “[t]he plain language of the request,” “all documents ‘regarding the investigation and determination to include the identification of the ‘Juggalos’ as a ‘gang’ in the [2011 report],’. . .encompasses a range of documents beyond those on which the NGIC relied in deciding to classify the Juggalos as a gang in the 2011 report.”  The court also “agrees that documents responsive to Plaintiff’s request are not limited to documents created prior to the authoring of the 2011 report.”
  • Exemption 5, Deliberative Process Privilege:  The court “concludes that the FBI properly withheld documents under Exemption 5.”  The court explains that “[t]he documents withheld are intra-agency or inter-agency memos; the handwritten notes of the FBI analyst are an intra-agency memo, . . . and the outside law enforcement agencies that submitted records were acting as consultants to the FBI for the purpose of collecting and providing gang-related information.”  Additionally, the court finds that “all the intra-agency and inter-agency memos were prepared and submitted prior to the FBI’s issuance of its decision in the 2011 report” and that “the memos were ‘the result of a consultative process,’ or deliberative.”
  • Exemptions 6 and 7(C):  The court “concludes that the individuals whose identifying information was redacted from the above-mentioned documents have a substantial privacy interest in avoiding disclosure of their identity.”  The court explains that “the FBI agents and staff, as well as law enforcement personnel, have an interest in avoiding publicity that could expose them to harassing or hostile actions” and  “third parties of investigative interest or whose names were mentioned in law enforcement reports have an interest in avoiding being publicly linked to a law enforcement investigation.”  The court “further concludes that there is no substantial public interest in disclosure of this identifying information; the identities of these individuals do not reveal anything about the workings of the government, and they are not probative of any agency’s behavior or performance.”
  • Exemption 7(D):  The court finds that communications “marked ‘confidential’ or ‘for law enforcement dissemination only,’. . .are protected from disclosure under Exemption 7(D).”  The court “concludes that these markings indicate that the law enforcement agency submitted such communications to the FBI with the understanding that the communications would remain confidential.”  The court also “concludes that the FBI has met its burden of showing that the intelligence bulletin, police report, and gang member identification forms contained implied assurances of confidentiality.”  The court agrees with defendant’s reasoning that ‘”we can infer that these law enforcement agencies [providing the documents] did not intend or expect that this cooperative exchange of detailed and singular law enforcement information and intelligence, which was provided to the FBI solely for purposes of furthering NGIC’s research, would be publicly disclosed by the FBI.’”
  • Exemption 7(E):  The court “concludes that the FBI has met its burden of demonstrating that the records were properly withheld under Exemption 7(E), including an explanation of why further details regarding the internal law enforcement techniques may not be exposed in this litigation.”  The document at issue “is ‘a centralized repository for counterterrorism and investigative data that allows authorized users to query the information using advanced software tools.’”
  • Litigation Considerations, Vaughn Index/Declaration:  The Court “concludes that the index sufficiently describes each document that was withheld or released in part and explains the exemptions applicable to each document or portion of a document.”  The court states that “[t]he index contains a reasonably detailed description of each document, including information such as the type of document, the date of the document, and a brief description of its substance.”
DaSilva v. USCIS, No. 13-13, 2014 WL 775606 (E.D. La. Feb. 24, 2014) (Africk, J.)
February 24, 2014 Posted by

Re: Plaintiff’s motion for attorney’s fees and costs resulting from action relating to request for records concerning plaintiff

Disposition: Granting in part and denying in part plaintiff’s motion for attorney’s fees and costs; dismissing without prejudice motion in all other respects

  • Attorney Fees, Eligibility:  The court “finds that plaintiff is not eligible for attorney’s fees relative to the disclosure of ‘plaintiff’s A-file’” because “‘the government did not engage in the sort of dilatory litigation tactics that [the attorney's fees] provision was aimed to prevent.’”  The court “notes that plaintiff’s complaint was filed very quickly after his initial FOIA request, weakening any inference that the filing of the complaint was the catalyst for the agency’s disclosure.”  However, regarding plaintiff’s request for certain e-mails, the court finds that “plaintiff has demonstrated eligibility for attorney’s fees.”  The court notes that defendant “neglect[ed] to mention the ongoing searches until the issue was raised [by] plaintiff[]” and “defendant has not explained why it ‘initiated a second, third, and fourth search for documents [ ] after it had [ostensibly] completed processing and production of all records.’”
  • Attorney Fees, Entitlement:  The court finds that “while plaintiff’s interest is not commercial, which weighs in favor of an award of attorney’s fees, the personal nature of that interest and the lack of a public benefit weigh against an award of attorney’s fees.”  First, the court finds that “[t]he potential public value of the information sought . . . is minimal.”  Second, as for the nature of the plaintiffs interest, the court finds that “[i]nsofar as plaintiff’s discovery-related justifications relate to the emails disclosed by defendant, these justifications do not weigh in favor of an award of attorney’s fees.”  Additionally, the court finds that “[w]hile plaintiff may characterize an ‘overarching goal’ of modifying defendant’s policies, there is no indication of how plaintiff’s request relative to his ‘personal dispute with [defendant] provides a public benefit.’”  Finally, the court states that “as previously noted, plaintiff is not eligible for attorney’s fees relative to the disclosure of his A-file.”

    As to the fourth factor, the court finds that “[d]efendant’s initial withholding of the emails did not have ‘even a colorable basis in law’—it was the result of an oversight.”  Moreover, the court states that it “need not determine whether a mere oversight, however significant, is the type of ‘obdurate’ conduct warranting attorney’s fees” because “[d]efendant’s sworn declarations and pleadings, which reiterated that plaintiff sought email communications, and then asserted that ‘all communications’ would be in his A-file, are plainly misleading.”

  • Attorney Fees, Calculation:  The court first notes that “[e]ven if plaintiff’s counsel had focused his time sheet solely on the two FOIA requests at issue, the Court would be unable to ascertain the percentage of plaintiff’s hours associated with the second set of documents disclosed by FOIA, for which additional briefing will be required.”  The court also notes that some of plaintiff’s “activities appear wholly unrelated to either of plaintiff’s FOIA claims, much less his successful one.”  The court then finds that “[p]laintiff’s counsel has submitted a declaration to the effect that $295.00 hourly is his customary billing rate, . . .[b]ut this does not demonstrate that $295.00 is the rate ‘actually billed and paid in similar lawsuits,’ . . .  given that counsel’s primary practice appears to be immigration law, rather than FOIA.”  The court finds that “[a]fter reviewing recent caselaw from the Eastern District of Louisiana . . . the Court concludes that an hourly rate of $200.00 is appropriate given counsel’s seven years of experience in immigration law and the absence of any evidence specifying his experience in representing clients with FOIA claims.”
Crumble v. Shalala, No. 13-2426, 2014 WL 721920 (E.D. Mo. Feb. 24, 2014) (Fleissig, J.)
February 24, 2014 Posted by

Re: Request for certain records maintained by the Social Security Administration

Disposition: Dismissing action without prejudice

  • Litigation Considerations, Pleadings:  The court holds that “[b]ecause none of the individuals named as a defendant in the instant action is an ‘agency’ under [the FOIA's] definition, the amended complaint will be dismissed for failure to state a claim upon which relief can be granted.”
U.S. v. Lasley, No. 07-20067-02, 2014 WL 695392 (D. Kan. Feb. 24, 2014) (Murguia, J.)
February 24, 2014 Posted by

Re: Request for a number of records including oaths of office

Disposition: Denying plaintiff’s FOIA claims without prejudice

  • Procedural Requirements, Entities Subject to the FOIA:  The court notes that while “[n]one of [the] documents included any explicit request under the FOIA, and the court did not construe them as such, ‘to the extent that any FOIA request was made to the court—it is denied because the United States District Courts are specifically excluded from the provisions of the Act.’”
  • Litigation Considerations:  The court finds that “[d]efendant’s criminal case is not the appropriate avenue for defendant to seek relief for any alleged FOIA violation.”
Martin v. EEOC, No. 12-1281, 2014 WL 689708 (D.D.C. Feb. 24, 2014) (Jackson, J.)
February 24, 2014 Posted by

Re: Records concerning handling of plaintiff’s EEOC case

Disposition: Granting defendant’s motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court finds that “the EEOC has carried its burden of showing that the memorandum in question was both predecisional and deliberative.”  The court explains that the “memorandum represents an individual case officer’s recommendation to her director about the disposition of that charge, that such recommendation does not bind the director, and that it is not incorporated in any way into the final disposition of the charge.”  The court also “concludes that the . . . memorandum was not the ‘working law’ of the EEOC.”
Andela v. Admin. Office of U.S. Courts, No. 13-0865, 2014 WL 695209 (E.D. Pa. Feb. 21, 2014) (Joyner, J.)
February 21, 2014 Posted by

Re: Request for copy of EEOC substantial weight review of plaintiff’s Title VII complaint

Disposition: Granting defendant’s motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court “finds, based on the declaration and materials submitted by Defendant EEOC, that the substantial weight review reflects the deliberative and decision-making processes of the EEOC.”  The court explains that “[i]t contains communications to the decisionmaker responsible for the ultimate outcome of the Dismissal and Notice of Rights letter given to [plaintiff]” and, “[a]s such, it was properly withheld from disclosure under 5 U .S.C. § 552(b)(5).”
  • Litigation Considerations, In Camera Inspection:  The court “finds such a review unnecessary, however, given that the arguments put forth by the EEOC regarding exemption five remain uncontested by [plaintiff].”
Widi v. McNeil, No. 12-00188, 2014 WL 690171 (D. Me. Feb. 20, 2014) (Woodcock, Jr., C.J.)
February 20, 2014 Posted by

Re: Request for records of statements made by five individuals concerning plaintiff in his criminal case

Disposition: Dismissing without prejudice defendant’s motion to stay; denying plaintiff’s motion to strike; dismissing without prejudice plaintiffs renewed motion for Vaughn Index

  • Litigation Considerations, “Open America” Stays of Proceedings:  The court “dismisses without prejudice the motion for stay” “[b]ecause until now the Court has been unable to address this motion due to the press of other matters, [and therefore] ATF and EOUSA have essentially received a two month stay.”  ATF and EOUSA “moved to stay this case . . . to allow them time to produce the records they now acknowledge [plaintiff] is entitled to receive and to allow them time to file a ‘forthcoming motion’ for judgment on the pleadings or for summary judgment.”
  • Litigation Considerations, Pleadings:  The court finds that “[plaintiff] is incorrect that ATF and EOUSA have violated 5 U.S.C. § 552(a)(4)(C),” which “requires a governmental entity to ‘serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made.’”  The court explains that “[w]ith one exception, each extension has been expressly authorized by the Rules or expressly ordered by the Court for good cause.”  “The sole exception is the failure of ATF and EOUSA to file their Answer by December 1, 2013, instead filing on December 2, 2013.”  The court “views that one day lapse as de minimis and will not strike the Answer for that one-day lapse.”
  • Litigation Considerations, Vaughn Index / Declaration:  The court finds that “to order a Vaughan [sic] index right now would be premature.”  The court explains that “[t]he ATF and EOUSA are still in the process of providing records responsive to [plaintiff's] FOIA and Privacy Act requests.”
 
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