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Marcusse v. OIP, No. 12-1025, 2014 WL 92508 (D.D.C. Jan. 10, 2014) (Kollar-Kotelly, J.)
January 10th, 2014 Posted by

Re: Request for records concerning plaintiff’s criminal case

Disposition: Granting defendant’s motion for summary judgment

  • Litigation Considerations:  The court “finds no materially disputed fact remaining in this FOIA case and concludes that defendants are entitled to judgment on all claims.”  The court finds that “plaintiff’s arguments focusing on how the released documents relate to her criminal conviction are simply unavailing in this forum.”  Additionally, the court rejects plaintiff’s newly raised challenge of “the IRS’s search for responsive records, its withholding of documents, and its claim that she had not exhausted her administrative remedies.”  The court explains that it “will not consider plaintiff’s arguments advanced for the first time at this late stage of the proceedings that she had every opportunity to present during the scheduled briefing period.”
Eames v. President’s Mgmt. Council, No. 13-cv-143, 2014 U.S. Dist. LEXIS 3407 (D. Utah Jan. 10, 2014) (Waddoups, J.)
January 10th, 2014 Posted by

Re: Request for information about President’s Management Council

Disposition: Granting defendant’s motion to dismiss

  • Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that plaintiff’s action is moot because “a FOIA program analyst responded to [plaintiff's] request by producing the requested documentation.”
  • Attorneys Fees:  The court finds that “[s]uch a dismissal, however, does not negate [plaintiff's] right to seek recovery of reasonable litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E).”  The court advised that “[i]f [plaintiff] intends to pursue recovery of his litigation costs, he must file a motion.”
McKinley v. Fed. Hous. Fin. Agency, No. 12-5267, 2014 WL 92285 (D.C. Cir. Jan 10, 2014) (Garland, C. J.)
January 10th, 2014 Posted by

Re: Request for “‘any and all communications and records concerning … how the FHFA and the Department of the Treasury determined that conservatorship,’ instead of receivership, ‘was the preferred option’ for addressing the unstable condition of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation in early September 2008.”

 Disposition: Affirming the district court’s denial of plaintiff’s motion for attorney’s fees

  • Attorney’s Fees:  The court “finds[s] the plaintiff’s challenge to the district court’s treatment of the first requirement,” eligibility, “perplexing.”  The court explains that “[a]s should be apparent from our recitation of the district court’s opinion, the court could not have incorrectly decided the question of eligibility because it did not decide the issue at all.”  “Rather, it assumed arguendo that [plaintiff] satisfied the eligibility requirement and concluded that he nonetheless failed to satisfy the entitlement requirement.”  As for the question of entitlement, the court holds that “[g]iven that we have found no abuse of discretion in the district court’s assessment of each of the factors of the entitlement inquiry, it should come as no surprise that we likewise find no abuse in the court’s final balancing.”  “With the first and fourth factors ‘strongly’ weighing against fees, and the remaining factors ‘do[ing] little to advance Plaintiff’s position,’ we could hardly find an abuse of discretion in the court’s ultimate determination that, based on a ‘careful balance of the relevant factors … Plaintiff is not entitled to receive an award of fees and costs.’”  Regarding the first factor , the court agrees with the district court which “found that this first factor ‘strongly counsels’ against awarding fees” because “the two documents [plaintiff]  ultimately obtained were so heavily redacted that they contributed only ‘scant’ information to the public record.”  Regarding the fourth factor, the court specifically discusses the fact that “[i]n the court’s view, ‘it was not unreasonable to assert the [deliberative process] privilege as a basis for withholding the information’” and “[a]s we have noted, [plaintiff] does not dispute the point.”
PacifiCorp v. EPA, No. 13-cv-02187, 2014 WL 87509 (D. Colo. Jan. 8, 2014) (Moore, J.)
January 8th, 2014 Posted by

Re: Request for information concerning WildEarth Guardians v. Jackson, which concerns EPA’s duties under Clean Air Act

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

  • Litigation Considerations, Adequacy of Search:  The court finds that “the method by which the EPA conducted its initial search demonstrates it was not reasonably calculated to produce the requested information.”  The court explains that “it is apparent that no search was conducted of hard copies of records” and that “the responsive documents revealed an additional 23 employees may have responsive information but they were not asked to conduct a search.”  However, as to “the last three categories of information requested by [plaintiff] in its first FOIA request,” “the Court finds no violation by the EPA in light of the parties’ miscommunication.”
  • Exemption 6:  The court holds that “[t]he Vaughan index, along with other supporting evidence, substantiates the EPA’s withholding of documents claimed under exemption 6.”  The court relates that “[h]ere, the limited information segregated and withheld through redaction contains personal email addresses, an individual’s health and leave, and the EPA’s conference call and code numbers.”  The court explains that “[s]uch information is not only personal but also non-responsive to the FOIA requests.”
  • Exemption 5, Attorney Work-Product Privilege:  The court “finds that purely factual information which does not disclose such mental impressions and/or are not ‘inextricably intertwined’ with such mental impressions are subject to disclosure.”  The court notes that “EPA argued it was not required to segregate factual information from work-product documents,” but that “its evidence is conflicting as to what actions it took with respect to such documents.”  “As such, the Court finds the Vaughan index, coupled with the record before the Court, fail to show the EPA properly withheld materials claimed under the attorney work-product privilege.”
  • Exemption 5, Attorney-Client Privilege:  The court largely finds that “[u]nder the facts and circumstances of this case, . . . the [Vaughn] index’s repeated references to matters such as advice or counsel concerning strategy, deadlines and extensions for the Consent Decree or the WildEarth Guardian litigation are not vague or conclusory in light of the requests to which the documents are responsive.”  However, with respect to one document, the court finds that “[t]he fact that an attorney was copied on a communication, without more, is insufficient to establish the communication is covered by the attorney-client privilege.”
  • Exemption 5, Deliberative Process Privilege:  The court finds that the deliberative process privilege was appropriately invoked based on defendant’s statement that “the information does not represent an official agency decision or policy, but reflects analysis and recommendations on issues still in development, and release would have a chilling effect on the agency’s ability to have open and frank discussions.”  However, with respect to one document, the court finds that “no deliberative process privilege was claimed” and so “withholding of such information on this basis was improper.”
  • Litigation Considerations, In Camera Inspection:  The court finds that “[i]n light of the Court’s determination that the EPA’s Vaughan index and declarations contain detailed explanations of the information withheld and supporting exemptions, an in camera inspection is unnecessary.”
Elec. Frontier Found. v. DOJ, No. 12-5363, 2014 WL 25916 (D.C. Cir. Jan. 3, 2014) (Edwards, S. C. J.)
January 3rd, 2014 Posted by

Re: Request for legal opinion prepared by Office of Legal Counsel for the FBI

Disposition: Affirming the district court’s grant of summary judgment to defendant

  • Exemption 5:  The court holds that the OLC opinion is “precisely the sort of ‘advisory opinion … comprising part of a process by which governmental decisions and policies are formulated’ that is covered by the deliberative process privilege.”  The D.C. Circuit finds that the OLC opinion “amounts to advice offered by OLC for consideration by officials of the FBI.”  As a result, “[t]he authorities that control the disposition of this case are the decisions holding that the deliberative process privilege does cover legal memoranda that concern the advisability of a particular policy, but do not authoritatively state or determine the agency’s policy.”  The court disagrees with plaintiff’s argument and finds that “the OLC Opinion is not the ‘working law’ of the FBI.”  The D.C. Circuit explains that “OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.” 
  • Waiver/Public Adoption:   The D.C. Circuit holds that “[i]n this case, [plaintiff] cannot point to any evidence supporting its claim that the FBI expressly adopted the OLC Opinion as its reasoning.”  Any “public references originated from the OIG and Congress,” while “the FBI never itself publicly invoked or relied upon the contents of the OLC Opinion.”
  • Procedural Requirements, “Reasonably Segregable” Obligation:  The court holds that “[b]ased on the declarations provided by the Government, the District Court correctly concluded that ‘the unclassified portions of the OLC Opinion could not be released without harming the deliberative processes of the government by chilling the candid and frank communications necessary for effective governmental decision-making.’”
  • Exemption 1:  The court holds that “[b]ecause we find that the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, there is no need for this court to determine whether certain portions of the OLC Opinion were properly withheld as classified under Exemption 1.”
Davis v. FBI, No. 13-1657, 2013 WL 6852351 (D. Del. Dec. 27, 2013) (Sleet, C. J.)
December 27th, 2013 Posted by

Re: Request for information plaintiff submitted to the FBI

Disposition: Dismissing plaintiff’s complaint

  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court “is unable to discern whether [plaintiff] exhausted his administrative remedies prior to filing suit.”  However, the court determines that “[i]t does not appear that [plaintiff] exhausted his administrative remedies,” and “[t]herefore, the court will dismiss the claim for failure to state a claim upon which relief may be granted.”  The court states that “[plaintiff], however, will be given leave to amend the claim.”
Hicks v. Executive Office for U.S. Attorneys, No. 13-0033, 2013 WL 6697935 (D.D.C. December 20, 2013) (Huvelle, J.)
December 20th, 2013 Posted by

Re: Request for all “fact witness vouchers” issued for plaintiff’s criminal case

Disposition: Granting defendant’s motion for summary judgment

  • Exemption 7(C):  The court holds that “[s]ince plaintiff does not dispute defendant’s justification for withholding third-party information under exemption 7(C), the Court will grant summary judgment to defendant on its proper invocation of this exemption.”
  • Procedural Requirements, Searching for Responsive Records:  The court notes that “[p]laintiff has not seriously disputed that the foregoing search was adequate, but he seems to suggest that the declarant overlooked certain information.”  The court holds that “[p]laintiff’s argument is based on a misguided premise about defendant’s disclosure obligations.”  The court explains that “[a]n agency is required to disclose only ‘records ‘written or transcribed [that] perpetuate knowledge or events’ … [the] FOIA neither requires an agency to answer questions disguised as a FOIA request, [n]or to create documents or opinions in response to an individual’s request for information.’”  The court also holds that “the fact that the Marshals Service may have responsive records places no obligation on EOUSA to retrieve them.”  “Plaintiff is free to submit a FOIA request directly to the Marshals Service in accordance with the forgoing regulation.”
Oklahoma v. EPA, No. CIV-13-726, 2013 WL 6714167 (W.D. Okla. December 18, 2013) (Miles-LaGrange, C. J.)
December 18th, 2013 Posted by

Re: Request for certain documents concerning Clean Air Act

Disposition: Granting defendant’s motion to dismiss

  • Procedural Requirements, Proper FOIA Requests:  The court “finds that plaintiffs’ FOIA request does not reasonably describe the records requested such that a professional employee of the EPA who is familiar with the subject area of the request is able to locate the records with a reasonable amount of effort.”  The court explains that “a professional employee making a reasonable effort would have no idea how to locate the records plaintiffs seek as plaintiffs’ definition of ‘Other Organizations’ would require the EPA to search for and determine the organizational mission of any non-governmental organization that may have communicated with the EPA regarding topics under the CAA.”  Additionally, the court explains that “plaintiffs seek ‘any and all documents’ that ‘discuss or in any way relates to’ the three categories in part (a) of the request,” and that, “[b]ased upon this broad, vague language, the Court finds that plaintiffs have not reasonably described the records sought.”  Lastly, the court explains that “[t]he term ‘certain actions’ is not defined or limited in any manner, and a professional EPA employee would be left to guess which of the hundreds of actions that the Administrator has a non-discretionary duty to perform plaintiffs are actually interested in and, thus, which documents are being sought through the FOIA request are not reasonably described.”
POSTED IN: District Court, Procedural  |  PERMALINK
Vazquez v. DOJ, No. 13-5197, 2013 WL 6818207 (D.C. Cir. December 18, 2013) (per curiam)
December 18th, 2013 Posted by

Re: Request for records concerning plaintiff

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

  • Exemption 7(E):  The court finds that the “district court properly granted the government’s renewed motion for summary judgment with respect to information withheld under Freedom of Information Act exemption 7(E) and did not abuse its discretion in denying reconsideration of that judgment.”
  • Glomar:  The court finds that “[t]he government’s supplemental declaration adequately describes the justification for invoking a ‘Glomar’ response . . . with reasonably specific detail . . . and appellant has not overcome the presumption of good faith afforded to the government’s declaration.”
Ctr. for Effective Gov’t v. Dep’t of State, No. 13-0414, 2013 WL 6641262 (D.D.C. December 17, 2013) (Huvelle, J.)
December 17th, 2013 Posted by

Re: Request for the Presidential Policy Directive on Global Development

Disposition: Denying defendant’s motion for summary judgment; granting plaintiff’s cross-motion for summary judgment

  • Exemption 5, Other Privileges:  The court concludes that “the [Presidential Policy Directive on Global Development] is not exempt from disclosure under Exemption 5 of FOIA.”  The court finds that the presidential communications privilege does not apply as “this is not a case involving ‘a quintessential and nondelegable Presidential power’—such as appointment and removal of Executive Branch officials . . . where separation of powers concerns are at their highest.”  Additionally, the court notes “that the forward-looking [Directive] is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”  The court also finds that “the ‘President’s ability to communicate his [final] decisions privately’, is not implicated, since the [Directive] was distributed far beyond the President’s close advisers and its substance was widely discussed by the President in the media.”  Overall, the court finds that “the purposes of the privilege are not furthered by protecting from public disclosure presidential directives distributed beyond the President’s closest advisers for nonadvisory purposes.”
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