The FOIA blog

NIH FOIA Response Deemed to be Monkey Business by Court

United States District Court Judge for the District of Columbia Colleen Kollar-Kotelly has largely ruled against NIH in a lawsuit for records brought against it by In Defense of Animals for records concerning the Alamogordo Primate Facility and the Chimpanzees maintained therein.

In the detailed 46 page opinion, the Court found against the government on nearly all issues decided.  Initially, Judge Kollar-Kotelly found that the government failed to adequately describe its search for responsive records.  She stated that the defendant's use of the date of the search as the cut off date for the request per government policy was not proper in this situation.  This was because the government failed to address if it was reasonable for there to be an eleven month lag in making the production of records from the time of the search to the time of the release.  The court ordered a new search not earlier than the date of the decision and specifically ordered the government to advise the requester of the date of the search.  The Court also found that the medical records of the chimpanzees were agency records even though they were in possession of the contractor.  The Court said NIH must search these records.

Next, the court found that the agency failed to meet its burden on exemptions 4 and 5 concerning incentive payments for the contractor and NIH Questions in the revised contract proposal.  The government failed to establish that the contractor was the source of the information on the incentive payments and therefore, it wasn't protectible pursuant to exemption 4.  Further, the government failed to meet its burden to show that that this information was protectible under the deliberative process privilege.  Finally, the court found that the government failed to meet its burden under exemption 6.  The government tried to protect various information because the argument that it would violate the personal privacy of animal care workers.  However, the court found the information doesn't reveal information that relates to specific individuals and is therefore not withholdable pursuant to exemption 6.

Finally, the court found that the government must release segregable information on certain documents and that the plaintiff was entitled to a public information fee waiver.

 

FBI Loses Informant Case

The FBI has lost its attempt to protect information about its relationship with a confidential informant.  Judge James Robertson of the District Court for the District of Columbia has ruled that the FBI must release information about the FBI's relationship with informant Manny Sanchez to requester Peter J. Hidalgo.  Hidalgo was found guilty of various crimes, due in part, to information provided by Sanchez.

Hidalgo offered evidence that Sanchez had a shady past--and that the FBI assisted him in escaping his various scrapes with the law.  The FBI released one page in part of a 3000 page file, claiming various exemptions to withhold the rest.  However, Judge Robertson found that certain of the FBI's claims were not valid. 

The FBI was ordered to release the amount of payments to Sanchez by the FBI.  In making this finding the judge said that the declaration of David Hardy was insufficient to allow the material to be withheld pursuant to FOIA exemptions 2 and 7(E).

The FBI was next ordered to release information concerning its relationship with Sanchez.  The information that should be released includes material reflecting any FBI misconduct in its relationship with Sanchez, its knowledge of his criminal record, its knowledge of administrative complaints regarding his work, and the FBI's intervention on Sanchez's behalf in criminal matters, including tax evasion.

Not all was lost for the FBI as its use of exemption 7(A) was affirmed by the Court for information provided by the source on the investigations he assisted on.

USDA Farm Subsidy Program Information Ordered Released

The United States Court of Appeals for the District of Columbia has reversed a lower court decision and ordered the United States Department of Agriculture to release information pertaining to its Farm Subsidy Program that it had previously argued was exempt pursuant to FOIA Exemption 6.

Circuit Judges Griffith and Tatel found that the public interest in the release of the information was greater than the privacy interests in the information demonstrated by the government.  The public interest, in this case, the ability for the information to shed light on the USDA's administration of its subsidy and benefit programs were greater than any privacy interests detailed by the USDA.  The lower court had found the opposite, that the privacy interests were greater than the public interests.

Judge David Sentelle dissented from the opinion because he believed that the privacy interests were, on balance, greater than the public interest.

This is a noteworthy opinion in that it is rare that a Court, especially a Circuit Court, will order the release of records the government is claiming are covered by FOIA's privacy exemptions (6 and 7(C)).  It will be interesting to see how this case is used as precedent in the future.

IRS Loses Collateral Estoppel Argument

The IRS has lost a decision in which the plaintiff argued that a decision in a non-FOIA that certain privileges were not available for documents estopped the IRS from arguing that the same privileges were still applicable in the FOIA context.

The case of Stonehill v. Internal Revenue Service involves records created in the 1960's.  The estate of Stonehill is currently trying to reverse a previous tax judgment against it, and is seeking the documents in numerous forums to assist in this fight. 

The IRS argued that documents it withheld were exempt pursuant to FOIA exemptions 5, 6 and 7(C).  Plaintiff contested these exemptions, and in many cases, the Court agreed with plaintiff.

Judge John D. Bates of the District Court for the District of Columbia has held that collateral estoppel (issue preclusion) denies the IRS from asserting exemption 5 privileges that were previously denied in a non-FOIA Federal Rules of Civil Procedure Rule 60(b) case.  In other words, if the IRS lost its privilege arguments in another court, even if it wasn't a FOIA case, they can't assert those privileges in the FOIA matter.  However, the IRS did not waive other privileges or withholdings on where those privilege/withholding arguments were not previously made.

The IRS also lost its argument to withhold certain information pursuant to FOIA exemption 6/7C (the privacy exemptions).  The IRS was attempting to withhold the names of certain IRS special agents.  The Court found that the government failed to show a privacy interest in one agents name where, in this case, other agents have been previously identified in the matter.  Thus, the Court concluded, the public interest asserted by the plaintiff is greater than the negligible privacy interest identified by the government.

CIA Loses Case at DC Circuit

The CIA has had a lower court ruling reversed at the United States Circuit Court for the District of Columbia.  The CIA had previously won summary judgment on a case where requester Jefferson Morley sought records on George Joannides, a deceased CIA agent.

The Circuit Court however found that the CIA's search wasn't adequate as it hadn't search usually FOIA exempt operational files because in this case there was an exception that made these files non-exempt from the FOIA in their entirety.  The Court remanded the case back to the lower court for the CIA to search its operational files.  Further, the CIA was ordered to search JFK act files that it had transferred to NARA, but had admitted to keeping copies of as well as to sent to NARA but that aren't to be released to the public until 2017.  Finally, the Court found the CIA's description of its search inadequate and remanded the case for a further explanation of the search.

While the Circuit Court found the CIA Vaughn Index adequate, it found the lower court did not make a segregability finding and remanded the case for it to do so.  The Circuit Court also found that the CIA had properly justified its use of Exemptions 1, 3 and 7(E). 

However, the Court found a number of deficiencies with other exemptions and remanded those portion of the case for further agency explanation.  The Court found that as to Exemption 2, the CIA did not meet its burden in establishing its use of low-2 to withhold certain material and remanded for further explanation.  Likewise, the Court found that the CIA's defense of it's glomar response was also inadequate and remanded that portion of the case for further explanation.  Next, the Court found that the CIA's justification of Exemption 5 was inadequate, thus on remand the CIA will have to explain that exemption's use further.  Finally, the Court also found that the CIA's justification of exemption 6 was inadequate as it never established that any privacy interest in the withheld records existed.

To paraphrase Ricky Ricardo, it looks like the CIA has "lot's of 'xplaining to do". 

Government Loses Rehearing Bid in Trentadue Case

According to the Salt Lake Tribune, The 10th Circuit Court of Appeals has rejected the government's bid to overturn the Court's decision in a FOIA case brought by Jessie Trentadue.  the government argued that the order will violate the privacy of lower-level government employees and allow Trentadue to engage in unwarranted "fishing expeditions."  The suit seeks documents held by the President's Council on Integrity and Efficiency, an agency that investigates allegations of wrongdoing by federal law enforcement officers. A Utah federal district Judge upheld the government's denial of records, but a three-judge panel of the 10th Circuit ruled in September that most of the information must be disclosed.

My original analysis of the original decision can be found here.

Tenth Circuit Issues Major FOIA Decision

The Tenth Circuit Court of Appeals has decided a case that sets standards that are much more pro-disclosure than similar decision of some of the other Courts of Appeals.  This case revolves around Jesse Trentadue's attempt to get certain documents submitted by the Department of Justice's Office of the Inspector General ("OIG") concerning an investigation of the OIG by the Integrity Committee, a subdivision of the President's Council on Integrity and Efficiency.  Trentadue lost his lawsuit at the District Court level--the District Court for the District of Utah had granted summary judgment for the government. 

The Tenth Circuit found that Exemption 5 did not apply to much of the factual material in the withheld documents.  In making this decision. the Court found that factual material in otherwise deliberative material could only be withheld where disclosure would so expose the deliberative process that the material must be exempt.  The Court found that the factual information in the responsive documents did not meet this standard and must be released.

The Court next found that the identity of certain individuals could not be withheld pursuant to FOIA Exemption 6 where the identity of the individuals had previously been identified in a separate but related public document.  The Court also ruled that the public interest outweighed the privacy interests of these individuals and this information was not protected pursuant to FOIA Exemption 7(C).

Ruling on NPS Lincoln Memorial Video Case

Judge Emmit G. Sullivan of the District Court for the District of Columbia has issued a detailed 52 page opinion on the processing of a FOIA request by the National Park Service ("NPS") on material responsive to its plans to alter an eight minute video shown at the Lincoln Memorial since 1994.

This case began when the media reported that the NPS was going to alter the video it showed at the Lincoln Memorial due to complaints about it from conservative groups.  The video shows footage of gay rights, pro-choice and anti-war demonstrations.  Plaintiff's requested information about these plans and subsequently filed the lawsuit. 

The Court found that the NPS did not adequately describe its search for responsive documents because it did not identify the search terms used or why the scope of the search was limited to certain files or personnel.  The Court found that most of the documents withheld pursuant to the deliberative process privilege of Exemption 5 were protectible, however some of the documents were ordered released by the Court.  As to Exemption 6, the plaintiff's received a win in that the Court found that the names of those individuals who sent e-mails about the video were not protectible, only these individuals' personal information was protectible.  Finally, the Court declined to rule on if the e-mail addresses were protectible pursuant to Exemption 6. 

Consumer's Checkbook Bests HHS on Suit for Medicare Information

Consumer's Checkbook has won a FOIA lawsuit against the Department of Health and Human Services ("HHS") and it's component agency, Centers for Medicare and Medicaid Services ("CMS").  Judge Emmit G. Sullivan of the District Court for the District of Columbia has ordered CMS to release unredacted portions of all Medicare claims submitted by physicians in the District of Columbia for 2004 and to grant Consumer's Checkbook a fee waiver for this material.

The lawsuit developed after plaintiff made a request in March of 2006 for the Medicare claims for five localities (besides D.C., they sought Illinois, Maryland, Washington and Virginia) and sought a fee waiver.  CMS denied the request in June of 2006 saying they couldn't "satisfy the request utilizing a reasonable effort."  CMS did not reach a decision on the fee waiver at that time.

Ultimately, Consumer's Checkbook sued CMS.  After the suit was filed, CMS said they could actually produce documents, but since they were denying the fee waiver it would cost Consumer's Checkbook $3,944.70 per each of the five localities for the information.  Consumer's Checkbook then temporarily narrowed the scope of the request, but appealed the denial of the fee waiver.  The government moved for summary judgment on the fee waiver issue because at the time of the lawsuit, Consumer's Checkbook had not exhausted its administrative remedies.  Shortly thereafter, it denied the fee waiver appeal of Consumer's Checkbook but said it would release the documents in full upon payment.

Consumer's Checkbook then filed an amended complaint on April 4, 2007.  The government issued a renewed motion for summary judgment, adding to its fee waiver arguments an argument that it could withhold certain information pursuant to FOIA Exemption 6. 

Judge Sullivan disagreed on all three points with the government.  He found that since the fee waiver had been appealed and decided, the administrative remedies were exhausted.  He next found that Exemption 6 did not protect the annual amounts of Medicare reimbursements to physicians because the public interest (in finding out about government payments to third parties) outweighed the privacy interests of the providers.  In reaching his decision, the Court discussed a line of cases that found that business interests, such as the payments from Medicare, had a lesser privacy interest than other personal information that would reveal intimate details of an individual.  Finally, the Court found that the plaintiff met the requirements of the fee waiver regulations set forth by HHS and therefore, a fee waiver was warranted.   

The government now has a month to release the information.  It will be interesting to see if they push for an appeal or make a timely release per the Court Order.  It should be noted that a trend seems to be occurring in the successful fighting of fee waiver denials by plaintiffs.

OSHA Suffers Defeat on Beryllium Sampling Database

Dr. Adam M. Finkel, Plaintiff in a lawsuit against OSHA has been handed a victory in his attempt to gain access to database information held by OSHA.  Dr. Finkel made two requests to OSHA.  One seeking the contents of an OSHA database on toxic exposures and the second seeking anonymized information about the results of Beryllium sensitization tests conducted on OSHA inspectors.  The government denied both requests and Dr. Finkel sued.

In a 28 page opinion ( Download finkel.pdf ), Judge Mary L. Cooper of the District of New Jersey ruled against OSHA on three different FOIA exemptions (4, 6 and 7(C)) and granted summary judgment for the plaintiff.

Judge Cooper found that OSHA's had not established that some of this information was either Trade Secrets or Confidential Commercial Information.  The Judge found that OSHA's argument that two (2) percent of the data was trade secret information but that trade secrets were only designated in the individual files not the requested database does not allow the government to not segregate and release the 98% of the information that it does not consider trade secrets.  Further, the Judge found that OSHA's argument that the release of Inspector ID numbers, OSHA Office ID numbers and dates of inspections would through a mosaic theory allow employer identities to be revealed was too tenuous of an argument to allow those types of information to be considered trade secrets.

The Judge further found that the information OSHA considered confidential business information to not  have been provided voluntarily too the government even though OSHA did not seek a warrant for the information.  The Court found that OSHA obtained the information through its regulatory authority for workplace inspections pursuant to 29 U.S.C. Section 657(a) and the fact that they didn't need warrants was irrelevant.  Further, OSHA's argument that an increase in seeking warrants will hurt the quality of the material inspected because it will allow companies to clean up areas while waiting for the warrants was shot down by the Court.  The Court pointed out that if this becomes a problem, OSHA can obtain ex parte warrants in advance if necessary.

The Court found that OSHA didn't meet its burden under Exemption 6 of demonstrating that Coded ID numbers of employees would reveal their names and harm their privacy interests.

Finally, the Court found that while the records were created for law enforcement purposes, the public interest in disclosing the information will increase the publics understanding of beryllium sensitization and OSHA's response to it.  Ultimately, the Court found that the public interest outweighed any limited privacy interest in inspection employee ID numbers.

More information on this lawsuit can be found here.