97 new FOIA court documents, plus case descriptions

We have added 89 documents from 16 FOIA cases filed between May 4, 2014 and May 17, 2014. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

1. COMPETITIVE ENTERPRISE INSTITUTE v. OFFICE OF SCIENCE AND TECHNOLOGY POLICY (filed May 5, 2014)
   The Competitive Enterprise Institute submitted a FOIA request to the Office of Science and Technology Policy for records sent to and from a non-official email account used by OSTP Director John Holdren. CEI alleged that Holdren was using his email account from when he previously worked at the Woods Hole Research Center to conduct official agency business. The agency responded that it was unable to search for the records because it had no control over the email account. CEI appealed the agency’s response, insisting that Holdren had conducted agency business using his non-official email account. Characterizing CEI’s appeal as a clarification of its request, OSTP agreed to search for any records contained in Holdren’s official email account that contained records to or from his Wood Holes account. Because CEI believed the agency’s response did not address the issues in its appeal, it filed suit.
   Issues: conduct adequate search, production of Vaughn index, disclosure of all non-exempt records, find agency improperly responded to administrative appeal, declare emails from unofficial accounts are subject to FOIA, arbitrary and capricious behavior under APA, violation of Federal Records Act, duty to inform Archivist of FRA violation, attorney’s fees
2. Western Energy Alliance v. United States Geological Survey (filed May 6, 2014)
   The Western Energy Alliance, a regional trade association, submitted two FOIA requests to the U.S. Geological Survey. The first request was for the peer reviews and underlying data for a report by Steven Knick entitled “Modeling Ecological Minimum Requirements for Distribution of Greater Sage-Grouse Leks.” The second FOIA request was for information about how peer review was conducted for another report, “Summary of Science, Activities, Programs and Policies that Influence the Rangewide Conservation of Greater Sage-Grouse.” The agency acknowledged receipt of the requests and indicated that they would need to take an extension to respond. The agency’s response included some, but not all, the information the Alliance was seeking. The Alliance appealed and the agency instructed USGS to provide more information. However, having heard nothing further from the agency since the appeal decision, the Alliance filed suit.
   Issues: improper withholding, disclosure of all responsive records, attorney’s fees
3. ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF THE ARMY (filed May 6, 2014)
   EPIC submitted a FOIA request to the Department of the Army for records concerning its plans to deploy Joint Land Attack Cruise Missile Defense Elevated Netted Sensor Systems in the District of Columbia metropolitan area. EPIC asked for news media status and for a fee waiver. The Army acknowledged receipt of the request and told EPIC it was being forwarded to the Space and Missile Defense/Army Forces Strategic Command at Huntsville, AL, and to the Army Test and Evaluation Command at Aberdeen, MD. After the agency failed to respond in the statutory time limit, EPIC filed an administrative appeal. EPIC was told by the Test and Evaluation Command that it was not the appropriate component, but that it was working to find out where responsive records might be located. The Space and Missile Defense/Army Forces Strategic Command told EPIC its request had been referred to the PEO Missiles and Space, JLENS Product Office at Redstone Arsenal, AL. EPIC then filed suit.
   Issues: prompt disclosure of agency records, production of Vaughn index, attorney’s fees
4. Stevens v. U.S. Department of Homeland Security, Immigration and Customs Enforcement (filed May 6, 2014)
   Jacqueline Stevens, Professor of Political Science and Director of the Deportation Research Clinic at Northwestern University, submitted several FOIA requests to Immigration and Customs Enforcement for records concerning the agency’s detention programs. After the agency failed to respond to any of her requests, Stevens filed suit.
   Issues: conduct adequate and prompt search, improper withholding, disclosure of all records, attorney’s fees
5. SAFETY RESEARCH & STRATEGIES, INC. v. U.S. DEPARTMENT OF TRANSPORTATION (filed May 9, 2014)
   Safety Research Strategies submitted two FOIA requests to the Federal Highway Administration. The first request asked for records concerning the design and development of the ET-2000 and the ET-Plus Guardrail, including the involvement of Trinity Industries. The agency provided some of the records, but withheld 375 pages under Exemption 5 (privileges). The second request asked for records concerning a survey conducted by the American Association of State Highway and Transportation Officials of crash data pertaining to the ET-Plus Guardrail. The agency provided some records and found parts of the request failed to reasonably describe the records. Safety Research Strategies appealed the agency’s decisions for both requests, but after hearing nothing further from the agency, Safety Research Strategies filed suit.
   Issues: disclosure of all responsive records, expeditious proceedings, attorney’s fees
6. American Small Business League v. Department of Defense (filed May 12, 2014)
   The American Small Business League submitted a FOIA request to the Department of Defense for the master comprehensive subcontracting plan submitted by Sikorsky Aircraft Corporation. The agency acknowledged receipt of the request and told ASBL that because the request would require the agency to search in various locations it would take a considerable amount of time. ASBL appealed the agency’s response, arguing that the document was in a single location and did not require consultation with other components. After hearing nothing further from the agency, ASBL filed suit.
   Issues: order agency to process request, disclosure of all documents, expeditious proceedings, attorney’s fees
7. American Small Business League v. United States Department of the Army (filed May 12, 2014)
   The American Small Business League submitted a FOIA request to the Department of the Army for the subcontracting reports submitted by SAIC Canada. The agency acknowledged receipt of the request but failed to respond within the statutory time limit. ASBL then appealed the agency’s failure to respond, but after hearing nothing more from the agency, ASBL filed suit.
   Issues: disclosure of all responsive records, expeditious proceedings, attorney’s fee
8. Forsythe v. U.S. National Labor Relations Board (filed May 12, 2014)
   Earl Forsythe was terminated from his job as a building supervisor by Amalgamated Warbasse Houses. He later submitted a request to the National Labor Relations Board for its case files pertaining to Amalgamated Warbasse Houses. The agency acknowledged his request and indicated the files were in its regional New York office. However, Forsythe received no response to his request and filed suit.
   Issues: plaintiff does not identify any issues, but is apparently asking for the agency to conduct an adequate search and to disclose responsive records
9. Cunningham v. Unites States Postal Office (filed May 13, 2014)
   John Cunningham submitted a FOIA request to the U.S. Postal Service for all records contained in two separate postings for the same vacancy pertaining to applicants seeking lateral reassignment. After taking an extension of time, the agency told Cunningham that the posting numbers he had furnished were incorrect. He appealed and provided evidence that the numbers he had furnished were correct. However, he heard nothing further from the agency and filed suit.
   Issues: order agency to process and disclose all records, attorney’s fees
10. Cassell v. Primus Automobile Financial (filed May 13, 2014)
    Jerry Cassell filed suit against Primus Automobile Financial. No information aside from the docket entry is available for this case, but since FOIA pertains only to federal agencies it is not a FOIA action.
    Issues: N/A
11. LEOPOLD v. NATIONAL SECURITY AGENCY et al (filed May 14, 2014)
    Jason Leopold submitted a request to the Office of Legal Counsel at the Justice Department for records pertaining to the propriety of surveilling federal and state judges. Leopold also asked for a fee waiver. OLC responded by telling Leopold that it had no records. Leopold then filed an administrative appeal. Leopold also sent a request to the National Security Agency for records providing guidance or policies pertaining to the propriety of surveilling federal or state judges. He also asked for a fee waiver. The agency acknowledged receipt of his request, but after hearing nothing further from either agency, Leopold filed suit.
    Issues: improper withholding, grant fee waiver, immediately process and disclose records without charging fees, attorney’s fees
12. LONG et al v. DEPARTMENT OF HOMELAND SECURITY (filed May 15, 2014)
    Susan Long and David Burnham, co-directors of the Transactional Records Access Clearinghouse at Syracuse University, submitted a FOIA request to Immigration and Customs Enforcement for electronic database records. They also asked to be given news media or educational institution status for fee purposes and included information provided to the agency as part of previous TRAC requests. The agency responded by telling TRAC that it would be considered in the non-commercial category rather than the news media or educational institution category. TRAC appealed the agency’s fee status determination. The agency then responded by indicating that it had decided to classify TRAC as a commercial requester rather than a non-commercial requester. Although TRAC tried to resolve the issue without resorting to litigation, the agency said its decision was final. TRAC then filed suit.
    Issues: grant news media or educational institution fee status, arbitrary and capricious behavior under APA, place request further along in queue, attorney’s fees
13. HALL AND ASSOCIATES v. ENVIRONMENTAL PROTECTION AGENCY (filed May 15, 2014)
    Hall & Associates submitted 11 FOIA requests to the EPA for records concerning the agency’s decision to limit the effect of a decision by the U.S. Court of Appeals for the Eighth Circuit finding the agency had improperly revised two rules under the Clean Water Act. After the agency provided a cost estimate of $3,400, Hall & Associates amended the requests, withdrawing the 10 requests to the agency’s regional offices. The agency disclosed six records as part of an interim response that included a list of 21 documents the agency intended to withhold under either Exemption 5 (privileges) or Exemption 7(A) (interference with ongoing investigation or proceeding). The agency did not disclose any further documents, but provided another list containing 49 records subject to Exemption 5 or Exemption 7(A). Hall & Associates appealed the agency decision. In response to the appeal, the agency reduced the fees assessed, but affirmed the denial of records. Hall & Associates then filed suit.
    Issues: enjoin agency from assessing fees, improper withholding, immediate disclosure of all non-exempt records, conduct adequate search, attorney’s fees
14. CITIZENS CONCERNED FOR TODD COUNTY HEALTH AND WELFARE v. RURAL DEVELOPMENT (filed May 15, 2014)
    Citizens Concerned for Todd County Health and Welfare submitted a request to the Department of Agriculture Rural Development for records concerning funds granted or denied to Gourley Brothers, a pork producer. The agency acknowledged receipt of the request, but after considerable back and forth, including granting the requesters a fee waiver, the agency still had failed to respond to the request. Citizens Concerned then filed suit.
    Issues: conduct adequate search, prompt disclosure of all non-exempt records, attorney’s fees
15. JUDICIAL WATCH, INC. v. DEPARTMENT OF DEFENSE et al (filed May 15, 2014)
    Judicial Watch submitted FOIA requests to the Department of Defense and the Department of State for all records concerning any briefings conducted by agency officials for named members of Congress pertaining to the attack of the U.S. compound in Benghazi. Both agencies acknowledged receipt of the requests, but after they failed to respond within the statutory time limit, Judicial Watch filed suit.
    Issues: conduct adequate search, disclosure of all non-exempt records by date certain, production of Vaughn index, attorney’s fees
16. JUDICIAL WATCH, INC. v. DEPARTMENT OF JUSTICE (filed May 16, 2014)
    Judicial Watch submitted a FOIA request to the Department of Justice for records concerning any communications with third parties regarding the investigation of former Virginia Gov. Robert McDonnell. After hearing nothing from the agency, Judicial Watch filed suit.
    Issues: conduct adequate search, disclosure of all non-exempt records by date certain, production of Vaughn index, attorney’s fees

In addition, we have added 8 documents from 2 cases, with earlier filing dates, that have recently appeared on PACER.

• Paul Ryan Barous v. NSA/CSS et al (filed May 2, 2014)
  Paul Ryan Barrous made a FOIA request to the National Security Agency/Central Security Service for records about himself. The agency told Barrous that it could neither confirm nor deny the existence of records. Barrous appealed the agency’s decision, which was upheld on appeal. He then filed suit.
• Julius Johnson, Jr. v. V.O.A. (filed May 1, 2014)
  Julius Johnson filed suit against the Voice of America. Although his complaint contains no allegations, he also lists the U.S. Supreme Court as a defendant and asks for $400 million in damages. This is not a FOIA action.