Court of Appeals Decisions

Watkins v. U.S. Bureau of Customs & Border Protect., No. 09-35996, 2011 WL 1709852 (9th Cir. May 6, 2011) (Walter, J.).  Holding:  Affirming the district court's decision that Exemption 4 applies to the requested material, but concluding that CBP has waived that protection; and reversing the district court's determination that DHS's regulations control, rather than CBP's regulations, for FOIA fee purposes.  The Ninth Circuit determines that plaintiff's "argument that CBP could not assert a claim of competitive harm without presenting affidavits from entities named in the Notices of Seizure is foreclosed by [the Ninth Circuit's decision] in Lions Raisins [v. USDA]," which held that "'[c]ourts can rely solely on government affidavits so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment of the government's claim.'"

District Court Decisions

White v. DOJ, No. 11-279, 2012 WL 19729 (D.D.C. Jan. 5, 2012) (Kollar-Kotelly, J.).  Holding:  Granting defendant's motion for summary judgment on the basis that EOUSA conducted an adequate search for responsive records.  The court concludes that EOUSA's declaration was sufficient because it "explain[ed] what system was searched, the terms used, why it was likely to contain responsive documents, and that no other search method would reveal responsive documents."  The court concludes that plaintiff "failed to provide any evidence to overcome the presumption of good faith afforded to Defendant's affidavit.'"  For one, the court notes that "[p]laintiff fails to explain what additional information could be provided, or why it would be relevant to determining the adequacy of Defendant's search."  Moreover, the court comments that plaintiff does not suggest that other offices or employees might maintain responsive records.  Lastly, the court finds that EOUSA was not required "to search every system of records maintained by the USAO as Plaintiff suggests when the reference to the criminal case was limited to the FBI file number, the name of [a possible witness in the case], and the name of the prosecutor."   

Bonilla v. DOJ, No. 10-22168, 2011 WL 122023 (S.D. Fla. Jan. 13, 2011) (King, J.) .  The court denies the agency's motion for summary judgment because defendant's "[d]eclaration does not provide the Court with any facts that would support a finding that the records requested by Plaintiff fall within a statutory exception from disclosure."

Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401 (D. Colo. Dec. 7, 2010) (Arguello, J.). The court denies plaintiff's motion to strike portions of a declaration of a third party intervenor, who moved to intervene against the disclosure of his identity. The court finds that John Doe's "statements are supported either with personal knowledge or specific factual detail provided with his declaration and, thus, are not conclusory as Plaintiff alleges." The court notes that it "will only consider the supporting facts and documents, not his characterizations of or conclusions surrounding them" as well as "Doe's estimation of harm that may result from a disclosure of his identity, though this information is not essential to the Court's holding."

Schulze v. FBI, No. 05-0180, 2010 WL 2902518 (E.D. Cal. July 22, 2010) (Ishii, J.). The court determines that the FBI and DEA affidavits are insufficient because they "have offered essentially no record-specific justifications" with respect to information requested by plaintiff pertaining to the two third-parties. "[T]he agencies cannot support their refusal to confirm or deny the existence of the records requested on the grounds of privacy or protection of identity of confidential informants because the exercise of those exemptions, as well as the exemption for protection of persons from probable death or physical harm, require record-specific explanation and justification to the court." The court directs defendants to justify their claims of exemption, but cautions "that consideration of information ex parte and in camera is appropriate only where the exemptions cannot be justified on the basis of information that can be made available by public affidavits, Vaughn indices, or the like."

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The court finds that agency's declarations are inadequate because they merely contain categorical descriptions of the withheld records and the harms that would be occasioned by disclosure. Even when the declarations are taken together with the Vaughn index, "they cannot sustain the Corps' withholdings." The Vaughn index "provides some information regarding the withheld records - such as dates and brief descriptions of the records - but it does not describe how the asserted exemptions apply to the withheld documents." The court holds that the agency must provide supplemental submissions if it wishes to maintain its exemption claims.