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Case TitlePUBLIC CITIZEN, INC. v. OFFICE OF MANAGEMENT AND BUDGET
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2007cv00409
Date Filed2007-02-28
Date Closed2007-11-06
JudgeJudge Royce C. Lamberth
PlaintiffPUBLIC CITIZEN, INC.
Case DescriptionPublic Citizen submitted a FOIA request to OMB for records concerning lists of agencies allowed to transmit legislative/budgetary materials to Congress without first submitting them to OMB for clearance. The agency denied Public Citizen's request on basis of Exemption 2 (internal practices and procedures) and Exemption 5 (privileges). Public Citizen filed an administrative appeal, which was denied. Public Citizen then filed suit.
Complaint issues: Exemption 2 - Risk of circumvention, Litigation - Attorney's fees

DefendantOFFICE OF MANAGEMENT AND BUDGET
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [23]
FOIA Project Annotation: Although several of FOIA's exemptions contain oblique and convoluted language, the case law has generally made their coverage reasonably clear. But for Exemption 2 (internal practices and procedures), the courts have managed to make its coverage more difficult to understand, in large part because the government has consistently tried to expand the exemption significantly beyond what its plain language can bear. Years ago, the government successfully expanded its coverage to law enforcement manuals that arguably deserved protection but didn't seem to qualify under any of the sub-sections of Exemption 7 (law enforcement records). Even though the exemption applies to records "related solely to the internal personnel rules and practices of an agency," the courts have interpreted the exemption to apply when records are predominantly internal in nature and when their disclosure could risk circumvention of a law or regulation. The Justice Department's Office of Information and Privacy developed the theory that the exemption applied to protect certain security-related information " such as computer systems " and that application was trotted out aggressively after Sept. 11 to protect an array of information " some of which had previously been made public " that could be used to aid terrorism. Two recent cases, considerably different in their factual patterns, provide illustrations of how Exemption 2 has been used recently. One case involves the first terrorism application in several years, while the second holds that the circumvention prong of the exemption can be applied to protect one agency against another. The terrorism-related case comes from Washington state and is really only the third district court decision to deal directly with Exemption 2 as a device for withholding information that could be used to aid terrorists, the other two being Living Rivers v. Bureau of Reclamation, No. 2:02-CV-644TC (D. Utah, Mar. 25, 2003), and Coastal Delivery Corp. v. Customs Service, No. 02-3838 WMB (C.D. Cal., Mar. 14, 2003). Glen Milner requested information concerning the storage of explosives by the Navy on Naval Magazine Indian Island. Milner specifically asked for information on Explosive Safety Quantity Distance analyses, which measure the effects of an explosion at varying distances and which are used to determine minimum separation distances for various quantities of explosives. The Navy analyzed requests for ESQD data on a case-by-case basis and withheld it "if a determination is made that the release might pose a serious threat of death or injury to any person." The Navy shared such data with local first responders. The Navy disclosed to Milner a number of documents, but withheld the ESQD data under Exemption 2 and Exemption 7(F) (harm to safety of any person). Milner then brought suit against the agency. Milner first argued that the agency's affidavit was inadequate under Ninth Circuit standards. Milner complained that the agency's "explanation as to why ESQD information should be withheld is inadequate because it offers only a generalized explanation, not specific to each of the withheld documents listed in the Vaughn Index." But Judge John Coughenour disagreed, noting that "the Court does not read [Ninth Circuit precedents] to require the Vaughn Index to repeat, for each and every document, [the agency's] concerns specific to ESQD arc information, where the concerns and justifications for withholding are properly the same for each document." Turning to the elements of Exemption 2, Coughenour indicated that both the Navy and Milner agreed that the ESQD data was created for predominantly internal purposes "to design, array, and construct ammunition storage facilities, and to organize ammunition operations." Coughenour observed that "that the information is also made available to local municipalities does not negate the fact that these documents are predominantly internal." Analyzing the circumvention prong, he pointed out that "the 'law' sought to be circumvented need not be defined by a particular agency regulation or statute. That the disclosure would cause the information to lose its utility is sufficient. Pointing out that "when the government interest involved is particularly weighty " such as where concerns about national security are justified " courts are more likely to defer to the agency's expertise in assessing the risk of disclosure," Coughenour said he disagreed with Milner's claim that the case was not about national security because if it were the records should have been classified. Coughenour explained that "information need not be 'secret' to implicate national security. That the Navy finds it advisable to, for example, share information with local municipalities in order to better equip first responders in the event of an emergency does not undermine the legitimacy of the Navy's risk assessment. Such a conclusion would be antithetical to any definition of the word 'security.'" Coughenour rejected Milner's assertion that because the Navy had made the ESQD information public in the past its current risk assessment could not be taken seriously. Instead, he concluded that "its release could cause the information to lose its utility in keeping people and property safe from harm in the event of an explosive incident. Second, it could provide essentially a roadmap to wreak the most havoc possible to those persons bent on causing harm, risking circumvention of the Navy's security, force protection and explosives safety efforts. To release this information would be to provide the proverbial fox a virtual map to the chicken coop." The other Exemption 2 case deals with litigation brought by Public Citizen against OMB to force the agency to disclose documents related to which agencies are permitted to bypass OMB's legislative and budgetary clearance processes. OMB ultimately disclosed a list of statutes requiring direct submission of legislative materials and statutes requiring submission of budget materials. The agency withheld other documents under Exemption 2 and Exemption 5 (deliberative process privilege). During the litigation, OMB disclosed redacted versions of 14 of the 22 documents originally withheld in full, but still asserted both exemptions covered the redacted portions. Public Citizen challenged the Exemption 2 claims by arguing that the information was not predominantly internal because it applied to other agencies. By contrast, OMB claimed that the documents "contain a description of OMB officials' interpretations of the views of certain agencies regarding legislative clearance requirements." After reviewing the records in camera, Judge Royce Lamberth agreed with the agency, noting that "the documents offer guidance to OMB officials regarding other agencies' ability to bypass presidential review of those agencies' budgetary and/or legislative recommendations. The information contained in [the documents] is plainly intended for internal use only. Further, plaintiff has presented no evidence that the documents have ever been circulated to (or relied upon by) individuals outside of the Agency." The agency's circumvention argument was essentially that other agencies could use the information to bypass OMB's authority. Public Citizen argued that the circumvention prong was not intended to apply to "agencies within the executive branch [who might be] likely to break the law if the records are released." Lamberth responded that "this Circuit does not require that the potentially circumvented agency regulation be criminally oriented. Further, the potential circumventors from whom the information is being protected need not be outside of the government." He then concluded that "the information contained in these documents would provide guidance on how to circumvent the law to agencies that do not currently possess bypass authority. . .[I]f other agencies knew OMB's beliefs concerning its views or the views of sister agencies, they could use this information to impede and frustrate legislative clearance requirements." Lamberth found the remaining documents, which were letters from OMB to other agencies discussing agencies' legislative authority to bypass OMB's review, were protected by Exemption 5. Public Citizen argued that they merely explained existing policy and were neither predecisional nor deliberative. Lamberth indicated that they were "a discussion between OMB and other agencies about the prospective relationship between OMB and those agencies vis a vis the legislative clearance process. Thus, when these correspondences took place, no decision had been made between OMB and the various agency recipients of these correspondences regarding the agencies' participation in the legislative clearance process."
Issues: Exemption 2 - Risk of circumvention
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2007-02-281COMPLAINT against OFFICE OF MANAGEMENT AND BUDGET ( Filing fee $ 350 receipt number 4616002619)filed by PUBLIC CITIZEN, INC.. (Attachments: # 1 Civil Cover Sheet)(tg, ) (Entered: 03/02/2007)
2007-02-282LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PUBLIC CITIZEN, INC. (tg, ) (Entered: 03/02/2007)
2007-02-28Summons (3) Issued as to OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (tg, ) (Entered: 03/02/2007)
2007-03-023LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PUBLIC CITIZEN, INC. (Rosenbaum, Adina) (Entered: 03/02/2007)
2007-03-294NOTICE of Appearance by Alexander Daniel Shoaibi on behalf of OFFICE OF MANAGEMENT AND BUDGET (Shoaibi, Alexander) (Entered: 03/29/2007)
2007-03-295Consent MOTION for Extension of Time to Respond to Complaint by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 03/29/2007)
2007-04-036ORDER granting 5 Motion for Extension of Time to Respond, and ORDERING that defendant shall file its response to plaintiff's complaint on or before April 30, 2007. Signed by Judge Royce C. Lamberth on 4/3/07. (lcrcl2, ) (Entered: 04/03/2007)
2007-04-03Set/Reset Deadlines: Defendant's Response due by 4/30/2007. (rje) (Entered: 04/03/2007)
2007-04-267Second MOTION for Extension of Time to Respond to Complaint by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/26/2007)
2007-04-268Joint MOTION for a Briefing Schedule by PUBLIC CITIZEN, INC., OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Rosenbaum, Adina) (Entered: 04/26/2007)
2007-05-029ORDER granting 8 Joint Motion for Briefing Schedule, and ORDERING that: 1. Defendant will file a Vaughn Index and dispositive motion by May 14, 2007; 2. Plaintiff will file an opposition and cross-motion by June 13, 2007; 3. Defendant will file an opposition and reply by July 13, 2007; 4. Plaintiff will file a reply by August 3, 2007. Signed by Judge Royce C. Lamberth on 5/2/07. (lcrcl2, ) (Entered: 05/02/2007)
2007-05-0210ORDER GRANTING Defendant's Motion 7 for Extension of Time to Respond to Plaintiff's Complaint, and ORDERING that defendant shall file its response to plaintiff's complaint on or before May 14, 2007. Signed by Judge Royce C. Lamberth on 5/2/07. (lcrcl2, ) (Entered: 05/02/2007)
2007-05-02Set/Reset Deadlines: Defendant's Vaughn Index due by 5/14/2007. Defendant's Dispositive Motions due by 5/14/2007. Plaintiff's Opposition due by 6/13/2007. Plaintiff's Cross Motions due by 6/13/2007. Defendant's Opposition due by 7/13/2007. Defendant's Reply due by 7/13/2007. Plaintiff's Reply due by 8/3/2007. (rje) (Entered: 05/02/2007)
2007-05-02Set/Reset Deadlines: Defendant's Response due by 5/14/2007 (rje) (Entered: 05/02/2007)
2007-05-1411MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts # 2 Exhibit Declaration of Jim Jukes# 3 Exhibit Attachment A - Vaughn Index# 4 Exhibit Exhibit B - January 10, 2007 letter# 5 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 05/14/2007)
2007-06-1312Memorandum in opposition to re 11 MOTION for Summary Judgment filed by PUBLIC CITIZEN, INC.. (Attachments: # 1 Exhibit Declaration of Adina H. Rosenbaum# 2 Text of Proposed Order)(Rosenbaum, Adina) (Entered: 06/13/2007)
2007-06-1313Cross MOTION for Summary Judgment by PUBLIC CITIZEN, INC. (Attachments: # 1 Exhibit Declaration of Adina H. Rosenbaum# 2 Text of Proposed Order)(Rosenbaum, Adina) (Entered: 06/13/2007)
2007-07-1014Consent MOTION for Extension of Time to Reply to Plaintiff's Opposition to Motion for Summary Judgment and to Oppose Plaintiff's Cross-Motion for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 07/10/2007)
2007-07-1115ORDER granting 14 Motion for Extension of Time to Respond, and ORDERING that defendant shall file its reply to plaintiff's opposition to defendant's motion for summary judgment, and its opposition to defendant's cross-motion for summary judgment on or before August 13, 2007; and further ORDERING that plaintiff shall file its reply to defendant's opposition to plaintiff's cross-motion for summary judgment on or before September 4, 2007. Signed by Judge Royce C. Lamberth on 7/11/07. (lcrcl2, ) (Entered: 07/11/2007)
2007-07-12Set/Reset Deadlines: Defendant's reply due by 8/13/2007. Plaintiff's reply due by 9/4/2007. (rje) (Entered: 07/12/2007)
2007-08-0116Consent MOTION for Extension of Time to Reply to Plaintiff's Opposition to Motion for Summary Judgment and to Oppose Plaintiff's Cross-Motion for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 08/01/2007)
2007-08-2217ORDER granting 16 Motion for Extension of Time to reply. Defendant shall file its reply to plaintiff's opposition to defendant's motion for summary judgment, and its opposition to defendant's cross-motion for summary judgment on or before September 7, 2007; plaintiff shall file its reply to defendant's opposition to plaintiff's cross-motion for summary judgment on or before October 5, 2007. Signed by Judge Royce C. Lamberth on 8/20/2007. (lcrcl1, ) (Entered: 08/22/2007)
2007-08-23Set/Reset Deadlines: Defendant's Replies to motion and cross-motion due by 9/7/2007. Plaintiff's reply to cross motion is due by 10/5/2007. (rje) (Entered: 08/23/2007)
2007-09-0718Consent MOTION for Leave to File Excess Pages to Defendant's Reply by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 09/07/2007)
2007-09-0719REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Supplemental Authorities in Support of Statement of Material Facts# 2 Exhibit #1(Amended Jukes Declaration)# 3 Exhibit #2 (August 3, 2007 letter))(Shoaibi, Alexander) Modified on 9/10/2007 (tg, ). (Entered: 09/07/2007)
2007-09-10NOTICE OF CORRECTED DOCKET ENTRY: re 19 Reply to opposition to Motion, was entered in error. The document cannot be opened, it is corrupted. Counsel was instructed to refile said pleading. (tg, ) (Entered: 09/10/2007)
2007-09-10NOTICE OF CORRECTED DOCKET ENTRY: re 19 Reply to opposition to Motion, entered in error by the clerk has been corrected and can now be viewed. (tg, ) (Entered: 09/10/2007)
2007-09-1320ORDER granting 18 Motion for Leave to File Excess Pages. Signed by Judge Royce C. Lamberth on 09/12/2007. (lcrcl2, ) (Entered: 09/13/2007)
2007-10-0421REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment filed by PUBLIC CITIZEN, INC.. (Attachments: # 1 Declaration Supplemental Declaration of Adina Rosenbaum)(Rosenbaum, Adina) (Entered: 10/04/2007)
2007-10-2622ORDER for in camera review. Signed by Judge Royce C. Lamberth on 10/26/2007. (lcrcl2, ) (Entered: 10/26/2007)
2007-11-0623MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 11/06/2007. (lcrcl2, ) (Entered: 11/06/2007)
2007-11-0624ORDER granting 11 Motion for Summary Judgment; denying 13 Cross-Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on 11/06/2007. (lcrcl2, ) (Entered: 11/06/2007)
2007-12-1925NOTICE OF APPEAL as to 24 Order on Motion for Summary Judgment, 23 Memorandum & Opinion by PUBLIC CITIZEN, INC.. Filing fee $ 455, receipt number 1369702. Fee Status: Fee Paid. Parties have been notified. (Rosenbaum, Adina) (Entered: 12/19/2007)
2008-01-14Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 25 Notice of Appeal (tg, ) (Entered: 01/14/2008)
2008-01-16USCA Case Number 08-5004 for 25 Notice of Appeal filed by OFFICE OF MANAGEMENT AND BUDGET, PUBLIC CITIZEN, INC.. (tg, ) (Entered: 01/17/2008)
2008-03-1826ORDER of USCA (certified copy) as to 25 Notice of Appeal filed by OFFICE OF MANAGEMENT AND BUDGET, PUBLIC CITIZEN, INC., ORDERED that the motion for extension of time be granted; motion for summary affirmance due 4/3/2008, appellant's responce due 5/5/2008. (USCA No. 08-5004) (kb) (Entered: 04/15/2008)
2009-08-1427MANDATE of USCA (certified copy) as to 25 Notice of Appeal filed by OFFICE OF MANAGEMENT AND BUDGET, PUBLIC CITIZEN, INC. ; USCA Case Number 08-5004. It is ordered and adjudged that the judgment of the District Court appealed from in this cause is hereby reversed in part and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. (kb) (Entered: 08/17/2009)
2009-09-2928Joint MOTION for Order setting briefing schedule by PUBLIC CITIZEN, INC. (Attachments: # 1 Text of Proposed Order)(Rosenbaum, Adina) (Entered: 09/29/2009)
2009-10-1529Unopposed MOTION for Leave to File Memorandum Under Seal by PUBLIC CITIZEN, INC. (Attachments: # 1 Text of Proposed Order)(Rosenbaum, Adina) (Entered: 10/15/2009)
2009-10-2630ORDER granting the parties' Joint Motion 28 for a Briefing Schedule. Plaintiff's Supplemental Memorandum is due by 10/15/2009. Defendant's Supplemental Memrandum is due bye 11/20/2009. Plaintiff's Reply is due by 12/11/2009. Signed by Chief Judge Royce C. Lamberth on 10/26/2009. (lcrcl2, ) (Entered: 10/26/2009)
2009-10-2631ORDER granting plaintiff's Motion 29 for Leave to File its Supplemntal Memorandum on Remand Under Seal. Signed by Chief Judge Royce C. Lamberth on 10/26/2009. (lcrcl2, ) (Entered: 10/26/2009)
2009-10-2632SEALED Supplemntal Memorandum on Remand filed by PUBLIC CITIZEN, INC.. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 11/06/2009)
2009-10-29Set/Reset Deadlines: Plaintiff's supplemental memorandum due by 10/15/2009. Defendant's supplemental memorandum due by 11/20/2009 Plaintiff's reply due by 12/11/2009. (rje) (Entered: 10/29/2009)
2009-11-2033STATUS REPORT (Joint) by PUBLIC CITIZEN, INC.. (Rosenbaum, Adina) (Entered: 11/20/2009)
2009-12-2334STIPULATION of Settlement by PUBLIC CITIZEN, INC.. (Rosenbaum, Adina) (Entered: 12/23/2009)
2010-01-0535ORDER re: 34 Stipulation of Settlement. The stipulation of settlement is approved. Signed by Chief Judge Royce C. Lamberth on 1/5/2010. (lcrcl2, ) (Entered: 01/05/2010)
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by FOIA Project Staff
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