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Sep 26 14

FOIA Activity: 7 New Procedural or Substantive Decisions

by foiaproj

We have added 7 decisions of a procedural or substantive nature filed between September 14, 2014 and September 20, 2014. These are associated with 7 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 2:2011cv02799(PS) Jones v. Office of Workers' Compensation Programs
    • September 15, 2014: ORDER denying [93] Motion to Strike signed by Chief Judge Morrison C. England, Jr on 9/12/14. (Kaminski, H)
  2. CAE 2:2014cv02106(PS) Yegorov v. McBrien
    • September 15, 2014: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/15/14 ORDERING that [2] Motion to Proceed IFP is granted. RECOMMENDING that this action be dismissed for lack of subject matter jurisdiction. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)
  3. CAN 3:2012cv03728American Civil Liberties Union of Northern California et al v. Federal Bureau of Investigation
    • September 16, 2014: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT [43] 47 (Illston, Susan) (Filed on 9/16/2014)
  4. DC 1:2013cv00921OCASIO v. DEPARTMENT OF JUSTICE
    • September 16, 2014: MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 09/16/2014. (lctsc2)
  5. DC 1:2014cv00471ELLIS v. COMMISSIONER OF INTERNAL REVENUE SERVICE
    • September 16, 2014: MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/16/2014. (lcabj1)
  6. ILN 1:2013cv03547Aland v. U.S Department of the Interior et al
    • September 19, 2014: ORDER: This is an action brought under the Freedom of Information Act based on a request for documents submitted to the Department of the Interior regarding the agency's efforts to remove grizzly bears from the endangered species list. For the r easons provided, Defendants, the U.S. Department of the Interior and the U.S. Fish & Wildlife Service's Motion for Summary Judgment is granted [29] and Plaintiff Robert H. Alands Motion for Summary Judgment is denied [33] [For further details see order] – Signed by the Honorable Susan E. Cox on 9/19/2014. Mailed notice (np, )
  7. NYS 1:2013cv08620Bishop et al v. United States Department of Homeland Security
    • September 16, 2014: OPINION AND ORDER #104735. For the foregoing reasons, DHS's motion for summary judgment (Docket #16) is granted, and plaintiffs' motion for summary judgment (Docket #19) is denied. The Clerk is requested to enter judgment dismissing the com plaint. re: [16] MOTION for Summary Judgment filed by United States Department of Homeland Security, [19] CROSS MOTION for Summary Judgment filed by Mac William Bishop, Christopher Chivers. (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/16/2014) (rjm) Modified on 9/18/2014 (ca).
Sep 26 14

42 new FOIA court documents, plus case descriptions

by foiaproj

We have added 34 documents from 6 FOIA cases filed between September 14, 2014 and September 20, 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. The Inclusive Communities Project Inc v. The United States Department of Housing and Urban Development (filed Sep 15, 2014)
    The Inclusive Communities Project, a fair housing organization in Dallas, submitted a FOIA request to the Department of Housing and Urban Development for records concerning the Housing Choice Voucher in counties near Dallas. The organization asked for records in electronic format and indicated that the organization was willing to pay up to $1,000 in costs. HUD acknowledged receipt of the request, but after hearing nothing further from the agency, ICP filed suit.
    Issues: Choice of format, Failure to respond within statutory time limit, Litigation – Attorney’s fees
  2. The Inclusive Communities Project Inc v. The United States Department of Housing and Urban Development (filed Sep 15, 2014)
    The Inclusive Communities Project, a fair housing organization in Dallas, submitted a FOIA request to the Department of Housing and Urban Development for records concerning Affirmative Fair Housing Marketing Plans approved by HUD in connection with multi-family HUD insured loans. HUD acknowledged receipt of the request, but after hearing nothing further from the agency, ICP filed suit.
    Issues: Failure to respond within statutory time limit, Litigation – Attorney’s fees
  3. CONLEY v. FEDERAL BUREAU OF INVESTIGATION et al (filed Sep 18, 2014)
    Kevin Conley, convicted of murder in New Jersey, submitted a multi-part request to the FBI for various DNA analysis records pertaining to his conviction. The FBI divided his request into three separate requests. The FBI’s response to the first request contained 107 pages heavily redacted under Exemption 7(E) (investigative methods and techniques). The response to the second request contained 172 pages that pertained to his trial but not to the DNA analysis. The agency failed to respond to the third request. Conley appealed the first two responses to the Office of Information Policy. OIP upheld the FBI’s use of 7(E) but did not respond to the second appeal. Conley then filed suit.
    Issues: Exemption 7(E) – Investigative methods or techniques, Litigation – Vaughn index
  4. ACCURACY IN MEDIA, INC. et al v. DEPARTMENT OF DEFENSE et al (filed Sep 19, 2014)
    Accuracy in Media and a number of retired military officers submitted 17 FOIA requests to multiple agencies for records pertaining to the attack on the U.S. consulate in Benghazi. The requests also asked for expedited processing, inclusion in the media category, and a public interest fee waiver. While some agencies failed to respond further, several agencies denied expedited processing and the State Department asked Accuracy in Media to narrow its request, which it did. After exhausting administrative remedies with all the agencies, Accuracy in Media filed suit.
    Issues: Choice of format, Expedited processing, Failure to respond within statutory time limit, Fee Category – Media or Educational, Litigation – Attorney’s fees, Public Interest Fee Waiver
  5. NOLEN v. DEPARTMENT OF JUSTICE (filed Sep 19, 2014)
    Austin Nolen submitted a FOIA request to the FBI for records linking Martin Andrew Droll, a socialist writer and organizer who had committed suicide, to terrorist groups. The FBI responded by telling Nolen that it could not find any responsive records. Nolen filed an administrative appeal, but after hearing nothing further from the agency he filed suit.
    Issues: Litigation – Attorney’s fees, Withholding not related to exemption claims
  6. Lapp v. The Federal Bureau Of Investigation (filed Sep 19, 2014)
    Eric Lapp, the owner of Fingerprint Solutions, a company dealing with the storage and use of fingerprints, submitted a FOIA request to the FBI for a list of all public housing agencies that had submitted requests to the FBI for Originating Agency Identifiers. The agency told Lapp that it was unable to search based on the description of records he provided. Lapp appealed the denial to the Office of Information Policy, which upheld the agency’s decision and told Lapp he could further appeal to the Office of Government Information Services. Lapp appealed to OGIS, but that agency told him it had limited authority to act. Lapp finally filed suit.
    Issues: Litigation – Attorney’s fees, Withholding not related to exemption claims

In addition, we have added 8 documents from 1 case, with an earlier filing date, that has recently appeared on PACER.

  • Alvin v. United States Department of Justice, et al. (MAG+) (filed Sep 12, 2014)
    Mistrell Alvin, a federal prisoner in Alabama, submitted a request to the Department of Justice for records concerning authorization for wiretaps used in Alvin’s case in Georgia. The Criminal Division withheld the records under Exemption 3 (other statutes). Alvin appealed to the Office of Information Policy, which affirmed the Criminal Division’s denial on the basis of Exemption and Exemption 7(E) (investigative methods and techniques). Alvin then filed suit.
    Issues: Exemption 3, Exemption 7(E), Litigation – Sanctions
Sep 19 14

PACER documents to be restored, court says

by Greg Munno

A spokesperson for the Administrative Office of the U.S. Courts (AOUSC) told the FOIA Project today that “full electronic access” to more than 800,000 cases removed from PACER will be restored. PACER is the electronic court document management and retrieval system relied on by thousands of researchers, lawyers, journalists and others.

The news was first announced in an article this afternoon by Andrea Peterson, who has been covering the issue for The Washington Post, and later confirmed by FOIA Project and other groups.

However, there is still confusion about what exactly was removed from PACER and what exactly will be restored. The documents were removed without warning in August because, according to the AOUSC, they were in a format that prevented the records from migrating to a new PACER  that is being developed.  The  cases removed were closed cases from four appellate circuits and the bankruptcy court for the Central District of California and comprise a fraction of the 33 million cases in the system.

Although AOUSC officials were able to peg the number of affected cases at around 800,000, they were not able to say exactly how many documents or pages those cases encompassed. You can read more about what was removed and the consequences for researchers, lawyers and journalists in our Sept. 5 report.

In an interview with AOUSC staff today, a spokesperson said that only the dockets from the removed cases will be available electronically. But she also said that all of  the documents that were removed would be restored. Asked about the apparent contradiction, she said that it was her understanding that the dockets were the only electronically available information on the cases available before the removal because the cases were old and closed. However, at least some of the cases would have been fairly recent. For example, the U.S. Court Appeals for the Federal District had all of its cases removed prior to March 1, 2012.

The spokesperson said the dockets for the appellate courts would be back online by the end of October, and that the bankruptcy court dockets would be restored after work on the appellate cases is complete.

The FOIA Project will continue to follow this story and share additional information as it becomes available.

Sep 18 14

FOIA Activity: 7 New Procedural or Substantive Decisions

by foiaproj

We have added 7 decisions of a procedural or substantive nature filed between September 7, 2014 and September 13, 2014. These are associated with 7 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 2:2013cv02204Laborers International Union of North America Pacific Soutohwest Region v. U.S. Department of Energy
    • September 9, 2014: STIPULATION AND ORDER signed by Chief Judge Morrison C. England, Jr. on 9/4/2014 ORDERING [21] Plaintiff's opposition to Defendant's motion for summary judgment [19] shall be filed by 10/3/2014; Defendant's reply to Plaintiff's opposition shall be filed by 10/31/2014; Hearing before Judge England shall be held on 11/13/2014 at 2:00 p.m. (Reader, L)
  2. CAN 4:2009cv03351Electronic Frontier Foundation v. Office of the Director of National Intelligence
    • September 11, 2014: ORDER by Judge Saundra Brown Armstrong GRANTING [97] Stipulation of Dismissal in its entirety. Parties to bear fees and costs. Signed by Judge Saundra Brown Armstrong, on 09/11/14. (ndr, COURT STAFF) (Filed on 9/11/2014) Modified on 9/12/2014 (jlmS, COURT STAFF).
  3. CAN 4:2013cv01593Asian Law Caucus v. United States Immigration and Customs Enforcement et al
    • September 11, 2014: ORDER by Judge Saundra Brown Armstrong Granting [37] Stipulation TO CONTINUE CASE MANAGEMENT CONFERENCE. (ndr, COURT STAFF) (Filed on 9/11/2014)
  4. CO 1:2013cv01722Brown et al v. Perez
    • September 9, 2014: COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Motion Hearing held on 9/9/2014, taking under advisement [41] Plaintiffs' Motion for Summary Judgment and [52] Defendants' Motion for Summary Judgment. Bench Trial set for 10/1/2014 and 10/2/2014 is vacated. Court Reporter: Tammy Hoffschildt. (cpear)
  5. CO 1:2014cv02496Rocky Mountain Wild, Inc v. U.S. Forest Service et al
    • September 11, 2014: ORDER Setting Scheduling Conference for 12/10/2014 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya, by Magistrate Judge Kathleen M. Tafoya on 9/11/14. (sgrim)
  6. DC 1:2013cv01461MEZERHANE DE SCHNAPP v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
    • September 9, 2014: MEMORANDUM OPINION. Signed by Judge John D. Bates on 9/9/14. (lcjdb1)
  7. DC 1:2013cv01554ROSENBERG v. DEPARTMENT OF DEFENSE
    • September 11, 2014: MEMORANDUM OPINION regarding the defendant's [12] Motion for Summary Judgment. Signed by Judge Beryl A. Howell on September 11, 2014. (lcbah1)
Sep 18 14

76 new FOIA court documents, plus case descriptions

by foiaproj

We have added 74 documents from 13 FOIA cases filed between September 7, 2014 and September 13, 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. Buckovetz v. U.S. Department of the Navy (filed Sep 8, 2014)
    Dennis Buckovetz submitted a FOIA request to the Department of the Navy for records of an investigation that had formed the basis for three personnel disciplinary actions taken in 2013. The agency denied his request citing Exemption 7(A) (ongoing investigation or proceeding). He appealed the denial and was subsequently told that since the investigation was now closed, the records could be disclosed with redactions under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Buckovetz once again appealed but was told his only remedy was to go to court. He then submitted requests for records related to the denial of his earlier request. The Navy indicated those requests were not considered proper at that time and his only remedy was to go to court. He then filed suit.
    Issues: Exemption 6 – Invasion of privacy, Exemption 7(C) – Invasion of privacy concerning law enforcement records, Exemptions, Litigation – Sanctions, Segregability – Disclosure of all non-exempt records
  2. Rocky Mountain Wild, Inc v. U.S. Forest Service et al (filed Sep 9, 2014)
    Rocky Mountain Wild, Inc., a non-profit organization seeking to protect wildlands in the Southern Rockies, submitted a FOIA request to the U.S. Forest Service for records concerning the Village at Wolf Creek Access Project. The agency provided some records but withheld more than 1600 pages under Exemption 4, (confidential business information), Exemption 5 (privileges), and Exemption 6 (invasion of privacy). The organization appealed the denial, but after finding the appeal had still not been processed, Rocky Mountain Wild filed suit.
    Issues: Exemption 4 – Confidential business information, Exemption 5 – Privileges, Exemption 6 – Invasion of privacy, Exemptions, Litigation – Attorney’s fees
  3. CENTER FOR BIOLOGICAL DIVERSITY v. U.S. FISH AND WILDLIFE SERVICE et al (filed Sep 9, 2014)
    The Center for Biological Diversity submitted a FOIA request to U.S. Fish and Wildlife Services for records concerning the impact of the proposed Keystone Pipeline Project on various migratory species. The agency eventually told the Center that it was referring the documents to the Department of State, which had jurisdiction over the decision to approve the pipeline. The Center appealed the agency’s decision to refer the records to State and after hearing nothing further, the Center filed suit.
    Issues: Litigation – Attorney’s fees, Search – Referral, Withholding not related to exemption claims
  4. SAINT JOSEPH HEALTH SYSTEM, INC. v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (filed Sep 9, 2014)
    Saint Joseph Health System filed suit against the Department of Health and Human Services to block disclosure of records provided by Saint Joseph in the course of an investigation of cardiology procedures at Saint Joseph – London, one of six hospitals in Kentucky operated by Saint Joseph Health System. The investigation resulted in a Corporate Integrity Agreement with the Office of the Inspector General. The Poppe Law Firm submitted a FOIA request for the CIA records and the agency provided predisclosure notification to Saint Joseph. Saint Joseph indicated a number of records it thought should be withheld by the agency. The agency agreed to some redactions but told Saint Joseph that it planned to disclose other records Saint Joseph claimed were protected under Exemption 4 (confidential business information). Saint Joseph then filed a reverse-FOIA suit under the Administrative Procedure Act to block disclosure of the disputed records.
    Issues: Litigation – In camera review, Litigation – Reverse-FOIA
  5. JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE (filed Sep 9, 2014)
    Judicial Watch submitted a FOIA request to the Bureau of Prisons for any records concerning the confinement of Jesse Jackson, Jr. The agency acknowledged receipt of the request but indicated that it would not process the request without a privacy waiver. Judicial Watch then filed suit.
    Issues: Adequacy – Search, Failure to respond within statutory time limit, Litigation – Attorney’s fees, Litigation – Vaughn index
  6. HINZ v. UNITED STATES DEPARTMENT OF TREASURY et al (filed Sep 10, 2014)
    The Internal Revenue Service claimed that Steven Hinz had violated agency regulations pertaining to tax preparers. Hinz denied that he was a tax preparer and filed suit against the agency under the Privacy Act for failure to maintain complete and accurate records, and failure to provide an accounting of disclosures.
  7. Letterese v. Internal Revenue Service (filed Sep 10, 2014)
    Peter Letterese submitted a FOIA request to the Atlanta office of the IRS for records of an investigation pertaining to him. He was told that copies of the records would cost $5,980 in paper form. Letterese then requested the records in electronic format. After repeated failed attempts to access the records from the CDs provided by the agency, Letterese asked the agency to provide a Vaughn index of the records. The agency told Letterese it was not required to provide a Vaughn index and Letterese filed suit.
    Issues: Choice of format, Litigation – Attorney’s fees, Litigation – Vaughn index
  8. (PS) Yegorov v. McBrien (filed Sep 11, 2014)
    Yegorov Dmitriy alleged that Sacramento County Court Commissioner Peter McBrien acted improperly in granting a divorce to Melnichuk Nelya. Aside from allegations of torture, abuse, and violations of the Constitution, Dmitriy does not make a claim for disclosure of any records.
  9. ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF DEFENSE (filed Sep 11, 2014)
    EPIC submitted a FOIA request to the Department of Defense for records concerning e-vote system testing. EPIC requested expedited processing, inclusion in the news media fee category, and a public interest fee waiver. The agency acknowledged receipt of the request, but did not make a determination or address EPIC’s requests for expedited processing, fee category, and fee waiver. EPIC then filed suit.
    Issues: Expedited processing, Failure to respond within statutory time limit, Fee Category – Media or Educational, Public Interest Fee Waiver
  10. Tunnell v. U.S. Department of Defense (filed Sep 11, 2014)
    Harry Tunnell submitted a FOIA request to the Defense Department’s Office of Inspector General for records concerning the investigation of a complaint he had filed. The OIG eventually sent 75 pages, which Tunnell believed were not responsive to his request. He submitted a second request to the Department of the Army for records concerning investigations conducted by LTG Curtis Scaparrotti of brigade commanders under his command. After repeated contacts with the agency, Tunnell received nothing further in response to his second request. He sent a third request to Joint Base Lewis-McChord for training videos. He heard nothing further in response to this third request. He submitted a fourth request to Joint Base Lewis-McChord for court martial transcripts related to the testimony of an expert witness. He was told his request had been transferred to the Army Court of Appeals, but he heard nothing further in response to the request. Tunnell then filed suit.
    Issues: Choice of format, Failure to respond within statutory time limit, Litigation – Attorney’s fees, Public Interest Fee Waiver
  11. PATRIOTS FOUNDATION v. DEPARTMENT OF TREASURY (filed Sep 12, 2014)
    The Patriots Foundation submitted a FOIA request to the Department of the Treasury for records concerning any communications with Sen. Harry Reid and Democratic fundraiser Tom Steyer between May 1, 2014 and June 30, 2014. The agency acknowledged receipt of the request, but after several failed attempts to contact the agency concerning the request, the Patriots Foundation filed suit.
    Issues: Failure to respond within statutory time limit, Litigation – Attorney’s fees
  12. United States Merchant Marine Academy Alumni Association and Foundation v. United States Department of Transportation Maritime Administration et al (filed Sep 12, 2014)
    Because of various adverse actions the Department of Transportation’s Maritime Administration had allegedly taken against the U.S. Merchant Marine Academy Alumni Association and Foundation, the Association submitted 11 FOIA requests to the agency for a variety of records. Although the Association made an advance payment of $11,000 for processing its requests, the Association and the agency got into a dispute over processing its requests, including the agency’s repeated attempts to try to get the Association to withdraw its requests. The Association finally filed suit.
    Issues: Fees – Advance Payment, Litigation – Attorney’s fees, Litigation – Sanctions – Referral to Special Counsel, Withholding not related to exemption claims
  13. Brickman v. United States Department of Agriculture et al (filed Sep 12, 2014)
    James Brickman submitted a FOIA request to the Department of Agriculture for records concerning support for statements made by the Intermediary Relending Program. After appealing the agency’s failure to respond within the statutory time limit, the agency told Brickman that it would cost $690 to process his request. The agency also rejected his request for a fee waiver. Brickman then filed suit.
    Issues: Litigation – Attorney’s fees, Public Interest Fee Waiver, Withholding not related to exemption claims

In addition, we have added 2 documents from 1 case, with an earlier filing date, that has recently appeared on PACER.

  • Posner v. Johnson et al (filed Sep 4, 2014)
    Jonathan Posner submitted a FOIA request to U.S. Customs and Border Protection concerning the denial of his application to join CBP’s Global Entry Program. He also sent requests to U.S. Customs and Immigration Enforcement and the U.S. Postal Inspection Service for records concerning the denial of his application. The Postal Service told Posner it had no records and ICE told Posner that it could not find any responsive records. Posner had nothing further from CBP and filed suit.
Sep 11 14

FOIA Activity: 15 New Procedural or Substantive Decisions

by foiaproj

We have added 15 decisions of a procedural or substantive nature filed between August 31, 2014 and September 6, 2014. These are associated with 15 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. ARW 3:2011cv03043Adams v. United States Department of LABOR/OSHA et al
    • September 5, 2014: OPINION AND ORDER granting [61] Motion for Summary Judgment; declining to adopt [64] Report and Recommendations. Signed by Honorable Timothy L. Brooks on September 5, 2014. (jn)
  2. AZ 4:2013cv00080Star Publishing Company et al v. United States Fish and Wildlife Service et al
    • September 5, 2014: ORDER ADOPTING [48] Report and Recommendation.Defendants need not further redact the documents at issue. The Courts staff shall return the in camera documents (discussed in this Order and the Courts April 23, 2014, Order) and the emails between t he magistrate judge and Defendants counsel to counsel for Defendants. Counsel for Defendants shall retain the documents for any appellate review. The Clerk of Court shall enter judgment and shall then close its file. Signed by Judge Cindy K Jorgenson on 9/3/14. (SMBE)
  3. CAN 4:2011cv05221Electronic Frontier Foundation v. Department of Justice
    • September 3, 2014: ORDER by Judge Yvonne Gonzalez Rogers granting in part [93] Motion for Extension of Time to File to 11/14/14. (fs, COURT STAFF) (Filed on 9/3/2014)
  4. CAN 4:2012cv01013First Amendment Coalition v. U.S. Department of Justice
    • September 2, 2014: ORDER SETTING BRIEFING SCHEDULE. Motions due by 9/25/2014; Responses due by 10/10/2014; Replies due by 10/24/2014. Signed by Judge Claudia Wilken on 9/2/2014. (ndr, COURT STAFF) (Filed on 9/2/2014)
  5. CO 1:2011cv02544Evans v. Central Intelligence Agency
    • September 2, 2014: OPINION AND ORDER granting [53] Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 9/2/14.(dkals, )
  6. CO 1:2013cv01722Brown et al v. Perez
    • September 3, 2014: COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Trial Preparation Conference held on 9/3/2014. [66] Plaintiff's Request for the Court to Take Judicial Notice is DENIED. Hearing on the Motions for Summary Judgment, Docket Entries [41] and [52] , is set for 9/9/2014 at 2:00 PM in Courtroom A 601 before Judge Raymond P. Moore. Court Reporter: Tammy Hoffschildt. (cpear) Modified on 9/4/2014 to correct text (cpear).
  7. CO 1:2013cv02811Western Energy Alliance v. U.S. Fish and Wildlife Service
    • September 2, 2014: OPINION AND ORDER DENYING MOTION FOR ATTORNEY FEES: Plaintiff Western Energy Alliance's Motion for Attorney Fees and Costs [13] is DENIED. by Chief Judge Marcia S. Krieger on 9/2/14. Text Only Entry(msksec, )
  8. DC 1:2011cv00951CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. FEDERAL ELECTION COMMISSION
    • September 5, 2014: MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on September 5, 2014. (NS)
  9. DC 1:2011cv01256LABOW v. DEPARTMENT OF JUSTICE
    • September 4, 2014: MEMORANDUM OPINION AND ORDER granting defendant Department of Justice's motion [32] for summary judgment. Signed by Judge Barbara Jacobs Rothstein on 9/4/14. (lcrwr2)
  10. DC 1:2011cv01681PUBLIC CITIZEN v. DEPARTMENT OF HEALTH AND HUMAN SERVICES
    • September 5, 2014: MEMORANDUM OPINION regarding the defendant's [51] Renewed Motion for Summary Judgment; defendant-intervenor Pfizer Inc.'s [47] Renewed Motion for Summary Judgment; defendant-intervenor Purdue Pharma L.P.'s [50] Renewed Motion for Summary Judgment; and the plaintiff's [53] Renewed Motion for Summary Judgment. Signed by Judge Beryl A. Howell on September 5, 2014. (lcbah1)
  11. DC 1:2012cv01665CONSERVATION FORCE v. JEWELL et al
    • September 2, 2014: MEMORANDUM OPINION granting in part and denying in part Defendants' [16] Motion for Summary Judgment, and denying Plaintiff's 18 Cross Motion for Summary Judgment. See attached Opinion for details. Signed by Judge Ketanji Brown Jackson on 09/02/2014. (lckbj3) (Main Document 25 replaced on 9/3/2014 with corrected signature date) (ztnr, )
  12. DC 1:2013cv01020TAITZ v. DONAHUE et al
    • September 5, 2014: MEMORANDUM Signed by Judge Royce C. Lamberth on 9/4/2014. (zmm, )
  13. DC 1:2013cv01532COMPETITIVE ENTERPRISE INSTITUTE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    • September 4, 2014: MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/4/2014. (lcrmc1)
  14. ILS 3:2014cv00908Henson v. Department of Health and Human Services et al
    • September 2, 2014: ORDER DENYING WITHOUT PREJUDICE [3] 4 [5] 6 [7] 8 and [9] Signed by Magistrate Judge Donald G. Wilkerson on 9/2/14. (sgp)
  15. NYS 1:2012cv04880Gelb v. Federal Reserve Bank of New York et al
    • September 5, 2014: OPINION AND ORDER re: [57] CROSS MOTION for Discovery filed by Bernard Gelb, [48] MOTION for Summary Judgment filed by Federal Reserve Bank of New York. For the reasons set forth within, Defendant's Motion for Summary Judgment (ECF No. 48) is DENIED without prejudice. Plaintiff's Cross-Motion for Discovery (ECF No. 57) is DENIED. Defendant should inform the Court via letter by October 1, 2014, whether it will renew its motion for summary judgment, and propose a briefing schedule jointly with Plaintiff. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 9/5/2014) (ajs)
Sep 11 14

26 new FOIA court documents, plus case descriptions

by foiaproj

We have added 24 documents from 4 FOIA cases filed between August 31, 2014 and September 6, 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. JUDICIAL WATCH, INC. v. DEPARTMENT OF DEFENSE (filed Sep 4, 2014)
    1. Judicial Watch submitted a FOIA request to the U.S. Africa Command for records from the Africa Command’s operation center between Sept. 10, 2012 to Sept. 13, 2012 pertaining to the attack on the U.S. consulate in Benghazi. When the agency failed to respond within the statutory time limit, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  2. JUDICIAL WATCH, INC. v. DEPARTMENT OF HOMELAND SECURITY (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to Immigration and Customs Enforcement for all records pertaining to the Enforcement & Removal Operations Field Office Juvenile Coordination Meeting held in Washington from February 25 to February 27, 2014. The agency acknowledged receipt of the request, but after hearing nothing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  3. JUDICIAL WATCH, INC. v. DEPARTMENT OF JUSTICE (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to the Department of Justice for records concerning Operation Choke Point. The agency acknowledged receipt of the request, but after hearing nothing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  4. JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF STATE (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to the Department of State for records created in response to the attack on the U.S. consulate in Benghazi. The agency acknowledged receipt of the request, but after hearing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records

In addition, we have added 2 documents from 1 case, with an earlier filing date, that has recently appeared on PACER.

  • Van Dyke v. F.C.C. et al (filed Aug 19, 2014)
    Christel Van Dyke submitted a FOIA request to the Federal Communications Commission for records concerning her cell phone number. The agency located eight documents and released them to Van Dyke. Van Dyke appealed the agency’s search, which was upheld. Van Dyke then filed suit.
Sep 5 14

PACER Upgrade Leaves Electronic Warehouse of Court Records Incomplete

by Greg Munno

Research and advocacy groups are exploring ways to restore access to the more than 800,000 cases that were recently removed from PACER, the electronic search and retrieval system for federal court documents.

It is a task made all the more difficult since the records were taken down without public notice or consultation.

With advanced notice, groups seeking to compile and make available federal court documents could have focused on the records that were targeted for removal, said Brian Carver, an assistant professor at the University of California at Berkeley School of Information and director of the Free Law Project. The Free Law Project and Princeton University have teamed up to create RECAP the Law, a browser extension that captures documents downloaded from PACER (at the standard 10 cents-a-page rate) and then makes them available for free on the Web.

“We could have asked RECAP users to focus on the court cases being removed, although it is not clear that we would have made a dent because of the massive number of documents,” Carver said. “Still, we could have made the effort, or perhaps teamed with a commercial provider like Bloomberg to make sure these documents were still available. I also suspect there were technical solutions that, if the right experts were consulted, would have allowed those documents to remain on PACER. If they are in one database, you should be able to migrate them to another.”

Carver is now part of a group spearheaded by Public.Resource.Org that has written to the chief judges of the five affected courts requesting access to digital copies of the records so that they can be made available.

Other efforts are underway as well. Holly M. Riccio, president of the American Association of Law Libraries, said the AALL government relations staff has been in discussions with the Administrative Office of the U.S. Courts to advocate for restoration of the documents, to learn about additional changes that may be coming to PACER, and to encourage a more consultative approach to any future changes to the system.

The changes took place on either Aug. 10 or 11. The announcement of the change went up at the same time the documents were removed, an AOUSC spokesperson said. Concerns about the missing cases began to surface last week.

AOUSC spokesman Charles Hall said that the documents were removed because upgrades to PACER are incompatible with the record management systems of a handful of courts. He said that only about 800,000 cases out of more 33 million were affected. He added that all the cases removed are closed, and that the majority come from a single court, the California Central Bankruptcy Court.

“In addition to being closed cases, they happen to be cases that few seemed to need access to,” Hall said. “The removed cases accounted for less than 1/10th of 1 percent of total search requests on PACER.”

But as the BBC pointed out, some of the affected cases are of significant historical interest, including Ricci v DeStefano, a high-profile racial discrimination case heard on appeal by Sonia Sotomayor – now a Supreme Court Justice – when she was on the Second Circuit Court of Appeals. All Second Circuit Court of Appeals cases filed prior to 2010 are among those removed by the courts from PACER.

PACER Notice

The notice posted to PACER about the removed cases.

read more…

Sep 4 14

FOIA Activity: 10 New Procedural or Substantive Decisions

by foiaproj

We have added 10 decisions of a procedural or substantive nature filed between August 24, 2014 and August 30, 2014. These are associated with 9 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 2:2012cv02601Truthout v. Department of Justice
    • August 29, 2014: ORDER signed by Judge Lawrence K. Karlton on 8/29/2014 DIRECTING defendant United States Department of Justice to electronically file under seal an unredacted version of the in camera, ex parte declaration of David Hardy within 14 days from this order. To this end, a pdf version of the unredacted declaration should be emailed to ApprovedSealed@caed.uscourts.gov. (Donati, J)
  2. CAN 3:2012cv05074Center on Race Poverty & The Environment v. United States Environmental Protection Agency
    • August 26, 2014: ORDER re Vaughn Index. Signed by Judge Laurel Beeler on 8/26/2014. (lblc1S, COURT STAFF) (Filed on 8/26/2014)
  3. CAN 4:2012cv00164Electronic Frontier Foundation v. U.S. Department of Transportation
    • August 28, 2014: ORDER Granting Continuance of Case Management Conference Re Joint Case Management Statement (26 in 4:12-cv-05581-CW and 42 in 4:12-cv-00164-CW). Case Management Statement due by 9/24/2014; Case Management Conference set for 10/1/2014 02:00 PM. Signed by Judge Claudia Wilken on 8/28/2014. (ndr, COURT STAFF) (Filed on 8/28/2014)
  4. DC 1:2012cv01220GAMBOA v. EXECUTIVE OFFICE OF U.S. ATTORNEY et al
    • August 26, 2014: MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 08/25/14. (tb, )
  5. DC 1:2014cv00476ELKINS v. FEDERAL AVIATION ADMINISTRATION
    • August 28, 2014: MEMORANDUM OPINION re [23] Order. Signed by Judge James E. Boasberg on 08/28/14. (lcjeb1)
  6. NYS 1:2004cv04151American Civil Liberties Union et al v. Department of Defense et al
    • August 27, 2014: ORDER AND OPINION GRANTING, IN PART, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT re: [493] SEVENTH MOTION for Partial Summary Judgment by Plaintiffs filed by Americ an Civil Liberties Union, [495] MOTION for Summary Judgment filed by Department of Defense, Department of the Army. As set forth within, plaintiffs' motion is granted in part and the government's motion is denied. Counsel shall atte nd a conference at 3 p.m. on September 8, 2014. The Clerk mark the motions (Doc. Nos. 493 and 495) terminated. The case shall remain open for two issues: the issue discussed in this Order and Opinion and the issue of fees and allowances. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 8/27/2014) (ajs)
  7. PAE 2:2012cv04839SAMAHON v. FEDERAL BUREAU OF INVESTIGATION et al
    • August 25, 2014: MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/25/2014. 8/25/2014 ENTERED AND COPIES E-MAILED.(sg, )
    • August 25, 2014: ORDERED THAT DEFENDANTS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF NO. [23] ) AND SECOND SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF NO. [35] ) ARE DENIED. IT IS FURTHER ORDERED THAT PLAINTIFF'S RENEWED MOTION FOR SUMMARY JUDGMENT (ECF NO. [27] ) AND THIRD MOTION FOR SUMMARY JUDGMENT (ECF NO. [38] ) ARE GRANTED IN PART AND DENIED IN PART AS FOLLOWS: 1. THE FBI'S FAILURE TO PROVIDE PLAINTIFF WITH AN UNREDACTED VERSION OF THE DELOACH MEMORANDUM IS DECLARED UNLAWFUL; 2. THE FBI IS ORDERED TO PROMPTLY PROVIDE PLAINTIFF WITH AN UNREDACTED VERSION OF THE DELOACH MEMORANDUM; 3. THE FBI'S CATEGORICAL DENIAL OF PLAINTIFF'S REQUEST FOR FBI FILE NO. 62-HQ-110654 IS DECLARED UNLAWFUL; 4. THE FBI IS ORDERED TO REVIEW FBI FILE NO. 62-HQ-110654 AGAIN IN LIGHT ON THE COURT'S RULING AND TO RELEASE TO PLAINTIFF ANY REASONABLY SEGREGABLE, NONEXEMPT MATERIAL CONTAINED WITHIN THE FILE; 5. PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF COMPELLING THE FBI TO PRODUCE THE ENTIRETY OF FBI FILE NO. 62-HQ-110654 IS DENIED; 6. ANY ADDITIONAL RELIEF SOUGHT UNDER THE ADMINISTRATIVE PROCEDURE ACT IS DENIED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/25/2014. 8/25/2014 ENTERED AND COPIES E-MAILED.(sg, )
  8. SC 6:2014cv02541Myers v. Stephens et al
    • August 27, 2014: OPINION and ORDER RULING ON REPORT AND RECOMMENDATION for [19] Report and Recommendation, DISMISSING Defendants David C. Stephens, Assistant US Attorney, William N. Nettles, US Attorney for S.C., and Eric Holder, Jr., US Attorney General without prejudice and without issuance and service of process. Signed by Honorable Henry M Herlong, Jr on 8/27/14. (sfla)
  9. UT 2:2008cv00788Trentadue v United States Central Intelligence Agency
    • August 26, 2014: MEMORANDUM DECISION and Order Setting Evidentiary Hearing on Witness Tampering Allegations-granting [191] Motion to Strike ; denying [203] Motion to Strike ; ( Form due by 9/10/2014., Evidentiary Hearing set for 11/13/2014 1 0:00 AM in Rm 8.100 before Judge Clark Waddoups, with the possibility of extending to 11/14/14 if necessary) See Order for details. Signed by Judge Clark Waddoups on 8/26/14. Court Address: NEW COURTHOUSE – 351 South West Temple, Salt Lake City, Utah(jmr) Modified on 8/27/2014 took out text regarding form due (jmr).
Sep 4 14

14 new FOIA court documents, plus case descriptions

by foiaproj

We have added 14 documents from 4 FOIA cases filed between August 24, 2014 and August 30, 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. Henry Provost v. City of Sanger (filed Aug 26, 2014)
    Henry Provost submitted a request to the City of Sanger for clarification of the meaning of a sentence in the “Measure S” ordinance. The “Measure S” ordinance restricts the City of Sanger from using any tax revenues raised by Measure S to pay salaries or overhead expenses for the police or fire departments; such revenues must be spent solely on public safety projects. The City did not respond to Provost’s request and he filed suit in federal court. This is not a FOIA case because the federal FOIA applies only to federal agencies, not state or local agencies. Sanger may have a cause of action in state court under the California Public Records Act, but not in federal court under FOIA.
    Issues: disclosure of records
  2. Martinez v. United States Department of Justice Central Intelligence Agency (filed Aug 26, 2014)
    Ricardo Oscar Martinez submitted a number of FOIA requests to federal agencies concerning his belief that he was the subject of government surveillance and a victim of an Argentinean espionage operation. Unsatisfied with the agencies’ apparent inability to find any responsive records, Martinez filed suit.
    Issues: disclosure of any relevant records
  3. Reedom v. Colvin et al (filed Aug 28, 2014)
    James Patrick Reedom submitted FOIA requests to the Social Security Administration and the IRS. The Social Security Administration did not respond. The IRS provided some records but withheld others under Exemption 4 (confidential business information). The IRS denied Reedom’s appeal. He then filed suit. Because he lived in Texas, the case was transferred from the Southern District of New York, where it was originally filed, to the Northern District of Texas.
    Issues: disclosure of records, expeditious proceedings
  4. Beam v. Internal Revenue Service (filed Aug 29, 2014)
    Troy Beam made several FOIA requests to the IRS for records pertaining to any actions taken by a Special Agent regarding his taxes. The agency responded that it had located 41 boxes of potentially responsive records but that all of them were being withheld under Exemption 3 (other statutes) because they were protected by Federal Rule 6(e) on grand jury secrecy. Another 281 pages were withheld under Exemption 7(C) (invasion of privacy concerning law enforcement records), Exemption 7(D) (confidential sources), and Exemption 7(E) (investigative methods and techniques). Beam appealed and his appeal was declined for lack of jurisdiction. Beam then filed suit.
    Issues: disclosure of all records, attorney’s fees