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.

 

Line Item Prices Held Exempt

Recently the District of Columbia Circuit Court of Appeals held that line item prices can be exempt pursuant to FOIA Exemption 4.  The Unfair Business Practices Blog has more analysis of the decision.

Psychological Tests Ruled Confidential Business Information

Judge Ricardo Urbina of the United States District Court for the District of Columbia has ruled that psychological test results developed by two companies are withholdable pursuant to Exemption 4 of the FOIA as confidential business information.  The companies stated in declarations before the Court that the release of this information would damage the usefullness of the tests in the future, and absent any evidence to the contrary by the plaintiff, the Court accepted the companies arguments.

Motion for Reconsideration Denied in FCC Telecom Case

Judge Ellen S. Huvelle of the United States District Court for the District of Columbia has denied the Center for Public Integrity's motion for reconsideration from her August 27, 2007 decision concerning the zip codes of areas in which broadband providers had installed their services. 

In her decision denying reconsideration, the Judge found that release of the zip code information would cause the submitters of the information a competitive harm.  Thus, the Judge reiterated her earlier decision that the information was protected pursuant to FOIA Exemption 4.

FOIA Trial Looming?

Is there a FOIA Trial in the not so distant future?  Those familiar with FOIA litigation know, FOIA lawsuits are almost always (99.9% of the time) resolved through dispositive motions not a trial.  However, in a ruling by District Court Judge Louis B. Oberdorfer of the United States District Court for the District of Columbia, the FOIA lawsuit brought by In Defense of Animals against the United States Department of Agriculture ("USDA") will be either resolved via a settlement of the parties or a FOIA trial.

The issues resolve around approximately 1000 redacted pages of information that the USDA and defendant-intervenor Life Sciences Research, Inc. ("LSR") claim are exempt pursuant to FOIA Exemption 4 because the release of the information would cause a subsidiary of LSR to suffer substantial competitive harm.  Two rounds of summary judgment briefs have not resolved the issue as Plaintiff states some of the withheld information may be segregated and released without causing any competitive harm to the submitter.  The government and LSR claim that they can't release any of the information in a way that won't cause harm.  Judge Oberdorfer stated that because there was a material issue of fact still to be resolved, summary judgment was not appropriate in this case.

Judge Oberdorfer had a cautionary statement for the defendants.  He stated that he looked at some of the documents in camera and took notice of a recent release of documents that had been segregated and found that while he couldn't resolve the issue without expert testimony, the government and the submitter would best be served to rethink their position before advancing towards a trial.

I completely understand that judicial interests and taxpayer interests would best be served by the defendants taking the judge's hint and attempting to settle the case.  However, a rare FOIA trial would be a fascinating thing to those of us who follow the act.    

Update:  Judge Oberdorfer updated his opinion on August 14th.  I'm not sure what was changed from the first opinion--as the end result is the same.

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.

Slide Show Held to be Protected Under FOIA Exemption 4

A slide show conducted by a grant holder from the Department of the Navy was held to be protectible confidential commercial information by Judge Emmet G. Sullivan of the United States District Court for the District of Columbia. 

In his holding, Judge Sullivan found that the Power Point Presentation given at a closed conference by Harvard Professor David R. Liu was exempt from disclosure from FOIA Exemption 4.  The material was found to be commercial as it was important in Liu's process of obtaining a patent.  Furthermore, as the information was not required to be given to the government, it met the test imposed by Critical Mass Energy Project v. NRC, 975 F.2d 871, 872 (D.C. Cir. 1992) that commercial information given to the government on a voluntary basis need only be the type not normally given to the public to be protected under the FOIA.

FCC, Industry Attempting to Protect Broadband Database

Here is a link to an exhaustive article about the Center for Public Integrity's lawsuit against the FCC for the FCC's database listing companies that have deployed broadband services.  The FCC is attempting to withhold the database citing Exemption 4 of the FOIA (trade secrets/confidential business information). 

The article includes links to all Court filings in the case, including those by intervenors ATT, Verizon and U.S. Telecom Association.  The Intervenors all side with the government and urge the Court to withhold the database from Plaintiff.  Plaintiff has until February 12, 2007 to file its Opposition to the FCC's Motion for Summary Judgment

Baker & Hostetler v. Department of Commerce: Split Decision

The United States Court of Appeals for the District of Columbia has ruled for both parties on certain arguments made before it in Baker & Hostetler v. Department of Commerce.   

The Court ruled in favor of the government's withholding of information pursuant to Exemption 4.  The withheld material was letters voluntarily submitted to it by law firm Dewey Ballantine.

However, the Court reversed and remanded most of the material withheld pursuant to Exemption 5 by the Department of Commerce.  The material consisted of notes of ex parte meetings held with members of the public under the Tariff Act, which requires certain records of ex parte meetings to be made public.  The Court found that the district court's interpretation of this requirement was incorrect, and remanded it back to the district court for a new ruling on whether the notes were required to be made public under the Tariff Act (and therefor ineligible for Exemption 5 FOIA protection.)

Finally, the Court ruled that a law firm representing itself is eligible for attorney fees in a FOIA case if substantially prevails in the lawsuit.  The Court found that a law firm (or any organization) representing itself is different than a pro se plaintiff, who would be ineligible for attorney fees.  The Court remanded the attorney fees issue to the district court for further proceedings.

Army, KBR Withholding Approved by Court

The United States District Court for the District of Columbia has ruled in favor of the Army and intervenor Kellogg, Brown and Root ("KBR") in a FOIA case brought against it by Judicial Watch.  The opinion by Judge Ricardo Urbina is out of the ordinary in that KBR intervened in the case after the Court had ordered some of the documents it submitted to the defendant to be released. 

KBR's arguments were that it had never been notified of the FOIA request for documents it submitted, that the documents were voluntarily submitted and that the documents were of type not usually provided to the public.  The Court accepted the arguments, and changed its earlier decision that the documents should be released and found that the submitted documents could be withheld pursuant to FOIA exemption 4.

Additionally, the Court conducted an in camera review of documents withheld by the Army pursuant to FOIA exemption 5.  The Court stated that the review indicated that the documents were indeed protectible pursuant to the deliberative process privilege, and affirmed the Army's action on them.